Opinion issued February 7, 2019




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                            ————————————
                              NO. 01-17-00527-CR
                           ———————————
                    STEPHANO CULBREATH, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 119th District Court
                         Tom Green County, Texas
                    Trial Court Case No. B-15-0747-SA*

                         MEMORANDUM OPINION

      Following his jury trial and conviction for murder, appellant Stephano

Culbreath challenges the sufficiency of the evidence to support his conviction. He

*
      Pursuant to its docket-equalization authority, the Supreme Court of Texas
      transferred this appeal from the Court of Appeals for the Third District of
      Texas to this Court. See TEX. GOV’T CODE § 73.001 (authorizing transfer of
      cases). We are unaware of any conflict between precedent of that court and
      that of this court on any relevant issue. See TEX. R. APP. P. 41.3.
also contends that the trial court abused its discretion by admitting presumptive-

gunshot-residue tests into evidence. Because we conclude that the evidence was

sufficient and that the trial court did not abuse its discretion in its evidentiary

ruling, we affirm.

                                    Background

      Not long before he was murdered, David Titus asked his ex-girlfriend for

some money so that he could pay off a debt. He told her that he might be harmed if

he could not come up with the cash. But the ex-girlfriend was conscious of Titus’s

methamphetamine addiction and the two other loans she had recently given him, so

she denied his request. Later that month, around 5:45 AM on July 25, 2015, Titus

was riding his bike—his usual mode of transportation after he lost his driver’s

license—when he was shot and killed in the middle of a street in San Angelo. The

bullet entered through the back of his neck, severed his spine, and exited.

      About five hours before the shooting, appellant Stephano Culbreath had

returned home with his wife in their maroon Chevrolet Suburban. Culbreath sat

down on the couch, and his wife went to bed. Sometime within the next hour,

Culbreath’s wife heard him start their Suburban and leave.

      Around 4:00 AM, Culbreath crossed paths with a female acquaintance

outside of a convenience store that was about five minutes away from where Titus

was later shot. During their brief chat, Culbreath asked if she had seen Titus. She


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could tell something was wrong with Culbreath, as if he was ill; he was “shaking,

and just, you know, sweating.” After finishing their talk, Culbreath got back into

his Suburban and left. Sometime during the next hour, Culbreath picked up Berry

Baity, another acquaintance. With Baity in the Suburban, Culbreath made his way

towards the home of the Mathias sisters, who also were acquaintances.

      Meanwhile, one of the Mathias sisters was sitting outside smoking some

marijuana when she heard a “pow.” Over the fence in her yard, she noticed a man

with a bike sitting on a curb. The man jumped on his bike and sped off when she

began approaching him. After the man on the bike was out of sight, she heard

another shot. About five or ten minutes later, she saw a maroon Suburban pull in

front of her house. She made her way to the vehicle to find Baity and Culbreath.

She asked if they heard a gunshot. Baity said he did hear something. Culbreath said

nothing. The group talked for a few minutes, and then Culbreath left and dropped

off Baity at another location. Meanwhile, police were already responding to call

that a man and what looked like a bike were lying in the middle of a street a block

away from the Mathias sisters’ home.

      The first officer to respond to the scene noticed that there was little vehicle

traffic on the street and surrounding area, a fact the officer found unsurprising

given the early-morning hour and his experience patrolling the area. The officer

called for backup and began examining the area. He noticed that the bike’s rear tire


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was flat and that it looked like some reddish paint had rubbed on to the tire. The

officer could not find the murder weapon, but he did find a spent .380-calibre

cartridge and packet of cigarillos that contained some marijuana.

      By 7:00 AM, the street was taped off and filled with police. Detectives were

canvasing the area, knocking on nearby residents’ doors and asking if they knew

what had happened. While the police were beginning their investigation, Culbreath

entered a nearby game room, where he ran into a woman he knew. After about an

hour, the woman asked Culbreath for a ride home. On their way to her house,

Culbreath drove near the crime scene. One of the detectives canvasing the area

noticed the maroon Suburban heading in his direction. When the detective spotted

the vehicle, it abruptly slowed down, swerved slightly to left, and then the right. To

the detective, it seemed like the driver was unsure of whether to turn around or

continue in the same direction. The detective watched the vehicle slowly drive by.

The driver was sweating “profusely,” and as soon as his eyes locked with the

detective’s, he looked away, slouched into the seat, and continued driving. The

detective recorded the vehicle’s license plate and passed the number on to the

sergeant overseeing the crime scene. Police quickly identified the vehicle’s driver

as Culbreath and sent a couple of officers to his house.

      By the time police were knocking on his door, Culbreath had already

brought the woman from the game room back to her residence and met up with


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another acquaintance, Rockcil Beasley, who followed him back to his house where

he dropped off the Suburban before leaving again with Beasley in her car.

Culbreath’s wife, who had just watched Culbreath run inside, throw the keys on the

counter, grab a packet of cigarillos, and leave without saying a word, answered the

officers’ knocks at the door. She allowed them to search the house for Culbreath,

but they found nothing. The officers turned their attention to the maroon Suburban

parked out front. They noticed that the vehicle had what appeared to be white and

red paint-transfer marks on its bumper, nineteen to twenty-three inches off the

ground.

      After driving around for a while, Culbreath asked Beasley to drive him back

to his house. When they got there, his house was swarming with police. After

seeing the police, Beasley noticed that Culbreath became paranoid. She then saw

Culbreath reach into his pocket and briefly pull out what she later described to

detectives as “a black semi-automatic pistol” that “was slightly larger than a

Glock.” After Culbreath instructed her to drive away from his house, Beasley

dropped him off on a side street. Within a couple of hours, Culbreath and Baity

were located and arrested.

      During the course of their investigation, police conducted a number of tests,

including presumptive-gunshot-residue tests on a number of items. As the name

suggests, a presumptive test does not definitively establish whether gunshot residue


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is in fact present on the tested item; rather, the test is designed to detect the

existence of nitrates that are always but not exclusively produced by a discharging

firearm. Accordingly, the existence of nitrates on an item shows only that there

may be gunshot residue on the item. To determine if gunshot residue is in fact

present, the item must be sent to a laboratory for more detailed testing. Police

received positive presumptive-test results on the Suburban, Culbreath’s shorts, and

the back of Baity’s jersey that he was wearing while riding in the passenger seat of

Culbreath’s Suburban the morning of Titus’s murder. Subsequent laboratory

testing confirmed the existence of gunshot residue on Baity’s shirt and on the

waistband, pocket, and back of Culbreath’s shorts. The laboratory testing for

Culbreath’s Suburban, however, came back negative.

      While waiting in jail, Culbreath called his wife. He explained to her that

police found gunshot residue on him because a friend had accidentally discharged

a firearm in their kitchen that left a bullet hole in the cabinets. Neither Culbreath’s

wife nor investigators found a bullet hole in the kitchen.

      The State charged Culbreath with murder under Penal Code section

19.02(b). During his jury trial, the State produced a number of exhibits and

witnesses substantiating the account described above. One of the State’s witnesses

testified that he had seen Culbreath deliver drugs to Titus but never saw Titus pay

Culbreath any money. Notably, Culbreath objected to the State’s offering into


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evidence the results of the presumptive-gunshot-residue tests on his Suburban. He

argued to the trial court that the presumptive tests were irrelevant because the

subsequent laboratory test of the Suburban’s samples were negative. He argued

alternatively that the presumptive tests should be excluded because there was

substantial likelihood that the jury would understand the presumptive tests as

evidence that gunshot residue was in fact found inside of his car, despite the

negative results from the laboratory test. The trial court overruled Culbreath’s

objection. After an eight-day trial, the jury returned a verdict of guilty. Culbreath

appeals.

                                    Analysis

      Culbreath raises two issues. He first argues that his murder conviction rests

on insufficient evidence. He next maintains that the trial court abused its discretion

under Rules of Evidence 401 and 403 by admitting the results of the presumptive

tests for gunshot residue on his Suburban. We overrule both issues.

I.    Sufficiency of the evidence

      Culbreath argues that the evidence presented at trial was insufficient to

support his murder conviction. In assessing a challenge to the sufficiency of the

evidence, we identify the essential elements of the charged offense and then ask

whether the evidence and reasonable inferences therefrom, viewed in the light

most favorable to the conviction, would permit a rational juror to find each element


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beyond a reasonable doubt. Braughton v. State, ___ S.W.3d ___, ___, No. PD-

0907-17, 2018 WL 6626621, at *11 (Tex. Crim. App. Dec. 19, 2018). The State

charged Culbreath with murder under section 19.02(b)(1) of the Texas Penal Code.

The essential elements of murder under that section are intentionally or knowingly

causing the death of another. TEX. PENAL CODE § 19.02(b)(1).

      Whether a conviction rests on direct or circumstantial evidence, the

sufficiency standard remains unchanged. Wise v. State, 364 S.W.3d 900, 903 (Tex.

Crim. App. 2012). The analysis requires us to keep in mind that the jury is the sole

judge of the evidence’s weight and credibility, and we presume that the jury

resolved any conflicting inferences in favor of the verdict. Braughton, ___ S.W.3d

at ___, 2018 WL 6626621, at *11. Although this standard mandates great

deference to the jury, we do not defer to a jury’s conclusions that are based on

“mere speculation or factually unsupported inferences or presumptions.” Id.

(quoting Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007).

      The evidence reflects the following facts. Culbreath previously delivered

methamphetamine to Titus without being paid. Culbreath boasted that many people

owed him money. Before his murder, Titus spoke to his ex-girlfriend, told her that

he feared for his safety over a monetary debt that he owed, and asked her to borrow

money. Culbreath was looking for Titus shortly before the murder. Culbreath was

in the area of Titus’s murder at a time and place where and when few people were


                                         8
out. Mathias, who lives a block away from where Titus was murdered, testified

that she heard gunshots while she was outside her home around the time Titus was

shot. Mathias testified that minutes after hearing the last gunshot, Culbreath

showed up at her house in his Suburban. Police found gunshot-primer residue on

and in Culbreath’s shorts. Police also found gunshot-primer residue on the back of

Baity’s shirt—the shirt Baity was wearing when he was riding in Culbreath’s

Suburban around the time of the murder. Beasley told police that she saw

Culbreath draw a firearm from his pocket a few hours after the murder. Culbreath

fabricated an explanation for why gunshot-primer residue was on and in his

clothes. Following the murder, Culbreath drove by the crime scene in his

Suburban, and after he saw that police noticed his presence, he immediately went

to his house and swapped vehicles.

      In his sufficiency argument, Culbreath points to some evidence and asks us

to draw inferences in a manner contrary to the standard of review. For example,

Culbreath acknowledges that gunshot-primer residue was found on and in his

shorts, but he notes that expert testimony established that the residue can be

transferred from one person to another by simply brushing against each other. He

then emphasizes that during his arrest, officers repeatedly made physical contact

with him, including reaching into his pockets and touching his pants. Culbreath

asks us to infer that the gunshot-primer residue was on him not because he fired a


                                        9
gun, but because armed officers had inadvertently placed the residue on him when

they arrested him. This argument is unavailing. A defense theory that is merely

consistent with the evidence does not equate with a conclusion that the evidence as

a whole was insufficient to support a criminal conviction. See Braughton, ___

S.W.3d at ___, 2018 WL 6626621, at *12 (The credibility of “evidence is solely

within the jury’s province,” the jury is therefore “free to accept or reject the

defensive evidence.”). And when evidence is subject to two or more permissible

views, the view selected by the jury—which, on appeal, is the view most consistent

with the verdict—controls. See id. at *11. Accordingly, even if we found

Culbreath’s argument convincing, we cannot reevaluate the weight and credibility

of the evidence and substitute our judgment for that of the jury’s. See id. at *15.

      Viewing the evidence in the light most favorable to the verdict and through

the lens of a rational jury, we conclude that the cumulative effect of the trial

evidence would permit a rational jury to find beyond a reasonable doubt that

Culbreath intentionally shot and killed Titus. We therefore overrule his first issue.

II.   Admissibility of presumptive-gunshot-residue tests

      Culbreath contends that the results of the presumptive-gunshot-residue tests

are irrelevant under Rule of Evidence 401 and, to the extent they are relevant, their

probative value is greatly outweighed by the risk of unfair prejudice under Rule

403. We review a trial court’s evidentiary ruling for an abuse of discretion.


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Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). “In other

words, as long as the trial court’s decision was within the zone of reasonable

disagreement and was correct under any theory of law applicable to the case, it

must be upheld.” Id.

      Rule 401 provides that evidence is relevant if it has any tendency to make a

fact of consequence “more or less probable than it would be without the evidence.”

Rule 403 provides that a trial court “may exclude relevant evidence if its probative

value is substantially outweighed by a danger of one or more of the following:

unfair prejudice, confusing the issues, misleading the jury, undue delay, or

needlessly presenting cumulative evidence.” We afford trial courts broad discretion

in ruling on 403 objections. State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim.

App. 2005). A trial court conducting a Rule 403 analysis balances the evidence’s

probative value; the evidence’s potential to impress the jury in an irrational or

indelible way; the time needed to develop the evidence; and the proponent’s need

for the evidence. Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App.

2006).

      Culbreath’s evidentiary arguments regarding the presumptive-gunshot-

residue tests are unconvincing. Relevant evidence is generally admissible. TEX. R.

EVID. 402. And under Rule 403, there is a presumption that relevant evidence is

more probative than prejudicial. Paz v. State, 548 S.W.3d 778, 795 (Tex. App.—


                                        11
Houston [1st Dist.] 2018, pet ref’d). Culbreath contends that because a

presumptive-gunshot-residue test determines only whether gunshot residue may be

present and because subsequent laboratory testing concluded that there was no

gunshot residue on the samples from his Suburban, the positive results of the

presumptive-gunshot-residue tests only served to mislead the jury into believing

that gunshot residue was in fact found in his vehicle. Had the State offered the

results of the presumptive-gunshot-residue tests for the sole purpose of establishing

that gunshot residue was found in the Suburban, Culbreath’s argument would be

stronger. But evidence that tends to rebut a defensive theory is relevant. See Dennis

v. State, 178 S.W.3d 172, 177–78 (Tex. App.—Houston [1st Dist.] 2005, pet

ref’d). The State offered the evidence because a significant part of Culbreath’s

defensive strategy was attacking the investigative procedures employed by the

police.

      For example, in his closing argument, Culbreath summarized his defense

strategy by repeatedly contending that the police failed to properly investigate this

crime, that they failed to “challenge” any of their hypotheses, and that they were

simply guessing. These presumptive-gunshot-residue tests assisted the State in

rebutting that argument. That is, the tests were both relevant and probative. The

presumptive tests and subsequent police action showed that the police were

investigating the case seriously. When the results from the presumptive tests came


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back positive, they conducted confirmatory testing. The trial court reasonably

could have concluded that the State needed the presumptive tests to rebut

Culbreath’s theory that the police were indefensibly cavalier in their investigation

of Titus’s murder. See, e.g., id. at 177–78.

      Contrary to Culbreath’s suggestions, the jury was well aware of the

presumptive tests’ probative scope. The jury heard expert testimony that the

presumptive-gunshot-residue tests did not actually test for gunshot residue, but

only for nitrates. The expert continued, explaining that nitrates do exist in gunshot

residue but that nitrates can also come from many innocent things, such as hot

dogs. In fact, every time the presumptive test’s results were discussed in front of

the jury—which was done rarely and only in the context of explaining how the

tests work or in describing law enforcement’s investigative efforts—both

Culbreath and the State made it a point to convey to the jury that the tests were

merely preliminary, testing only whether gunshot residue may be present. Further,

the State did not mention the tests in its closing argument.

      When the trial court ruled on Culbreath’s Rule 403 objection to the

presumptive tests, it specifically noted that any risk to the jury was minimal

considering the expert’s testimony that explicitly described the probative value of

the tests. In light of the expert testimony, the purpose for which the presumptive

tests were introduced into evidence, and the relatively small amount of trial time


                                          13
spent discussing the tests, we conclude that the trial court’s rulings on Culbreath’s

Rule 401 and 403 objections were appropriate exercises of its discretion. We

overrule issue two.

                                    Conclusion

      We affirm the judgment of the trial court.




                                                Richard Hightower
                                                Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.

Do not publish. TEX. R. APP. P. 47.2(b).




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