Opinion issued April 10, 2014




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-12-00555-CR
                           ———————————
                      BOBBY DEAN JONES, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 339th District Court
                           Harris County, Texas
                       Trial Court Case No. 1303052


                         MEMORANDUM OPINION

      Appellant, Bobby Dean Jones, was charged by indictment with capital

murder. 1 The State did not seek the death penalty. Appellant pleaded not guilty.

The jury found him guilty, and Appellant was automatically sentenced to


1
      See TEX. PENAL CODE ANN. § 19.03(a)(2) (Vernon Supp. 2013).
confinement for life.2 On appeal, Appellant argues in his first issue that the trial

court abused its discretion by overruling an objection to the State’s eliciting victim

impact testimony during the guilt-innocence phase and in his other three issues that

he received ineffective assistance of counsel when his counsel failed to object to

the remainder of the victim impact testimony.

      We affirm.

                                    Background

      The complainant, Donald Frye, was found dead on his driveway at 1:00 a.m.

on April 12, 2011 in an unincorporated part of Harris County known locally as

Atascocita. He died of a gunshot to the chest. Harris County constables found a

fingerprint on the complainant’s car that matched a fingerprint of Giovanni Mora.

The constables located Mora and placed him under arrest.            Mora ultimately

identified Appellant and Bruce Taylor as being involved in the murder.

      Tyler Crutcher, a friend of Appellant’s, testified that, on the evening before

the incident, Appellant, Mora, and Taylor were at Crutcher’s apartment. Mora

announced, “Let’s go hit a lick,” which means to commit a crime. Appellant,

Mora, and Taylor then left. They returned around 6:00 the next morning. Crutcher

saw Mora rubbing down a gun.




2
      See TEX. PENAL CODE ANN. § 12.31(a)(2) (Vernon Supp. 2013).

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      Steven Wilson, a friend of Appellant’s and Mora’s, testified that he heard

about Mora’s arrest and called Appellant. Appellant told Wilson that he and Mora

had gone to a man’s house in Atascocita, and the man started wrestling with Mora.

The man then approached Appellant, and Appellant “pulled the trigger.”

      When Shannon Carr, one of Mora’s brothers, learned of Mora’s arrest, he

began trying to find out what happened.           He learned about Appellant’s

involvement and sought him out. Cedrick Clark, one of Mora’s cousins, obtained

Appellant’s phone number and called him. Appellant told Clark that he and Mora

went to rob someone “and it went wrong.” Clark asked to meet in person, and

Appellant agreed, telling Clark where he was.

      Shannon Carr and Clark drove to the location with James Carr, another

brother of Mora’s. When they arrived, Clark got out of the car, and Appellant

approached and started talking with Clark.      While Clark and Appellant were

talking, Shannon Carr decided to start recording the conversation. The recording

was admitted into evidence. In the recording, Appellant told Clark that he shot the

man in Atascocita.

      Raymond Dixon, a friend of Appellant’s and Mora’s, testified that, in early

April 2011, he saw Appellant in a car with a pistol in his lap. Dixon offered to buy

the gun, but Appellant declined. A day or two after the incident, Appellant asked

Dixon if he was still interested in buying the gun and sold it to Dixon. A forensic



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test determined that the bullet found near the scene of the crime came from the gun

Appellant sold to Dixon.

      Once he was arrested, Appellant gave a statement. In his statement, he

acknowledged going with Mora and Taylor to rob a man. He claimed, however,

that he remained in the car. Appellant stated that Mora was the only one to get out

of the car, that Mora talked with the man in the man’s car for five to ten minutes,

and that Mora shot him after the two got in a fight.

                             Victim Impact Testimony

      All of Appellant’s issues on appeal concern the testimony of Elizabeth Frye,

the complainant’s wife.      During the guilt-innocence phase of the trial, Frye

testified extensively about her husband’s kind and outgoing nature as well as the

way in which he cared for his family. Appellant complains that much of this

testimony was victim impact evidence, which is not relevant in a guilt-innocence

determination. See Love v. State, 199 S.W.3d 447, 456–57 (Tex. App.—Houston

[1st Dist.] 2006, pet. ref’d). Initially, Appellant’s attorney did not object to Frye’s

victim impact testimony. However, Appellant’s attorney raised an objection to the

victim impact testimony later, in the middle of Frye’s testimony. The trial court

overruled this objection. In his first issue, Appellant argues that the trial court

abused its discretion by overruling his objection to the victim impact testimony. In

his remaining issues, Appellant argues that he received ineffective assistance of



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counsel because of his counsel’s failure to object to the earlier portions of what he

identifies as victim impact testimony.

      To obtain a reversal based on the erroneous admission of evidence, the error

must have affected an Appellant’s substantial rights. Kibble v. State, 340 S.W.3d

14, 20 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). That is, it must have had

“a substantial and injurious effect or influence in determining the jury’s verdict.”

Id. (citing King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Similarly,

in order to obtain a reversal for ineffective assistance of counsel, Appellant must

establish that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.          Strickland v.

Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984); Andrews v. State,

159 S.W.3d 98, 101–02 (Tex. Crim. App. 2005).

      When an ineffective assistance of counsel claim concerns the failure to

object to the admission of evidence, the Appellant must establish both that the

evidence was inadmissible and that its admission probably affected the outcome of

the trial. Hollis v. State, 219 S.W.3d 446, 463 (Tex. App.—Austin 2007, no pet.);

Cooper v. State, 707 S.W.2d 686, 688 (Tex. App.—Houston [1st Dist.] 1986, pet.

ref’d). In this situation, the appellant must show then that, if the evidence had been

objected to, its denial would have been reversible error.




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       Accordingly, if the complained-of testimony taken as a whole—that is,

considering the objected-to evidence and the unobjected-to evidence together—

does not constitute harmful error, then all four of Appellant’s issues regarding the

admission of victim impact testimony and the claims of ineffective assistance of

counsel must fail. For the reasons identified below, we conclude that is the proper

result in this appeal.

A.     Standard of Review

       1.     Admission of Evidence

       Whether erroneous admission of evidence constitutes reversible error is

governed by Texas Rule of Appellate Procedure 44.2(b), which applies to non-

constitutional errors in criminal cases. See TEX. R. APP. P. 44.2(b); Cruz v. State,

238 S.W.3d 381, 386 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). The

judgment will be reversed only if the error affected an Appellant’s substantial

rights. See Kibble, 340 S.W.3d at 20. An error affects an Appellant’s substantial

rights “when the error has a substantial and injurious effect or influence in

determining the jury’s verdict.” Id. (citing King, 953 S.W.2d at 271). An error

that did not influence the jury or had but a slight effect on the jury is not reversible.

McRae v. State, 152 S.W.3d 739, 744 (Tex. App.—Houston [1st Dist.] 2004, pet.

ref’d) (citing Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001)). In

making the determination of whether Appellant’s substantial rights were affected,



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the factors we consider include the nature of evidence supporting the verdict, the

character of the alleged error, and how it might be considered in connection with

other evidence in the case. Id. (citing Bagheri v. State, 119 S.W.3d 755, 763 (Tex.

Crim. App. 2003)). We also consider whether the State emphasized the error,

whether the erroneously admitted evidence was cumulative, and whether it was

elicited from an expert. Id.

      2.     Ineffective Assistance of Counsel

      The Sixth Amendment to the United States Constitution guarantees the right

to reasonably effective assistance of counsel in criminal prosecutions. See U.S.

CONST. amend. VI. To show ineffective assistance of counsel, a defendant must

demonstrate both (1) that his counsel’s performance fell below an objective

standard of reasonableness and (2) that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different. Strickland, 466 U.S. at 687–88, 694, 104 S. Ct. at 2064, 2068; Andrews,

159 S.W.3d at 101–02. Failure to make the required showing of either deficient

performance or sufficient prejudice defeats the ineffectiveness claim. See Williams

v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); Andrews, 159 S.W.3d at

101. “A ‘reasonable probability’ is one sufficient to undermine the confidence in

the outcome.” Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).




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B.    Analysis

      Victim impact evidence consists of “two distinct, but related, types [of

evidence]: victim character evidence and victim impact evidence.” Salazar v.

State, 90 S.W.3d 330, 335 (Tex. Crim. App. 2002). Victim character evidence “is

designed to give the jury ‘a quick glimpse of the life that the [defendant] chose to

extinguish, to remind the jury that the person whose life was taken was a unique

human being.’” Id. (quoting Payne v. Tennessee, 501 U.S. 808, 830–31, 111 S. Ct.

2597, 2611 (1991) (O’Connor, J., concurring)).        Victim impact evidence “is

designed to remind the jury that murder has foreseeable consequences to the

community and the victim’s survivors.” Id. Victim impact testimony is irrelevant

and, therefore, inadmissible “at the guilt-innocence phase of a trial because it does

not tend to make more or less probable the existence of any fact of consequence

with respect to guilt or innocence.” Love, 199 S.W.3d at 456–57 (citing Miller-El

v. State, 782 S.W.2d 892, 895 (Tex. Crim. App. 1990)).

      Appellant identifies the following statements from Frye’s testimony as

victim impact evidence:

      •      The complainant’s father-in-law has died;

      •      The complainant’s son, D.F., had seizures;

      •      The aforementioned events caused Mrs. Frye to stop working
             for two years;

      •      The complainant’s family had a cat named Fuzzy;


                                         8
      •     In addition to Fuzzy, the complainant’s family had three dogs, a
            Pomeranian, a stray, and a dog named Pluto that was a
            Christmas present;

      •     The complainant and his family lived in a house that “had been
            in the family a long time” and that had been purchased from the
            complainant’s father;

      •     The complainant was very outgoing, funny, and passionate;

      •     The complainant “did all kinds of things” with his family;

      •     The complainant and his family spent every Sunday with his
            parents;

      •     The complainant rode his bike with his children;

      •     The complainant was D.F.’s third base coach;

      •     The complainant was D.F.’s YMCA coach;

      •     The complainant was an avid golfer and played all the time;

      •     The complainant got his children involved in golf at an early
            age;

      •     The complainant played in charity golf events;

      •     The complainant liked to bike almost as much as golf; and

      •     The complainant walked the dogs at night.

As explained above, Appellant’s counsel did not object initially to the presentation

of some of this evidence. When Appellant’s counsel did object, the trial court

overruled the objection.

      For the purpose of the following harm analysis, we will assume without

deciding that all of the above testimony constitutes victim impact evidence. We


                                         9
further assume that the trial court erred by overruling Appellant’s objections, and

that Appellant’s counsel’s failure to object to portions of this testimony resulted in

his counsel’s performance falling below an objective standard of reasonableness.

Our focus in this appeal is instead on whether Appellant’s substantial rights were

affected.

      In making the determination of whether Appellant’s substantial rights were

affected, the factors we consider include the nature of evidence supporting the

verdict, the character of the alleged error, and how it might be considered in

connection with other evidence in the case. McRae, 152 S.W.3d at 744. We also

consider whether the State emphasized the error, whether the erroneously admitted

evidence was cumulative, and whether it was elicited from an expert. Id.

      Appellant admitted in his custodial statement that he was present when the

complainant was shot. The State presented the jury with an audio recording of

Appellant admitting to relatives of Mora’s that Appellant shot a man while Mora

was attempting to rob him. Before that recorded conversation, Appellant told

Wilson over the phone that he went with Mora to a man’s house in Atascocita,

where the complainant lived. Appellant said the man began to wrestle with Mora

and then came after him. Appellant shot him because the man saw his face.

      In addition, the evidence from trial establishes that Mora and Taylor

identified Appellant as being involved in the robbery and murder. Crutcher, a



                                         10
friend of Appellant’s, testified that, on the evening before the incident, Appellant,

Mora, and Taylor were at Crutcher’s apartment. Mora announced, “Let’s go hit a

lick,” which means to commit a crime. Appellant, Mora, and Taylor then left.

They returned around 6:00 the next morning. Crutcher saw Mora rubbing down a

gun. Mora’s fingerprint was found on a car at the scene of the crime.

      Dixon, a friend of Mora’s and Appellant’s, saw Appellant with a gun some

time before the incident in question. Dixon offered to buy the gun, but Appellant

declined. A day or two after the incident, Appellant asked Dixon if he was still

interested in buying the gun and sold it to Dixon. A forensic test determined that

the bullet found near the scene of the crime came from the gun Appellant sold to

Dixon.

      There was extensive evidence, including Appellant’s own admission,

establishing Appellant as the shooter. Frye’s testimony was not emphasized. The

testimony did not come from an expert. Although the State referenced Frye’s

testimony during closing, it did not discuss the details of her testimony and it did

not dwell on the testimony. Instead, the State’s closing argument focused on the

evidence linking Appellant to the murder.

      Appellant argues that the victim impact testimony had a significant impact

on the jury’s determination because evidence of his guilt “was often at odds with

itself,” but provides no explanation or citations to the record to support this



                                         11
argument. See TEX. R. APP. P. 38.1(i) (requiring arguments to be supported by

citations to the law and to the record). He also argues that the evidence of

Appellant’s involvement was from questionable sources.         While much of the

evidence establishing Appellant’s involvement came from close friends or relatives

of Mora, one of Appellant’s accomplices, all of the evidence also identifies Mora’s

involvement in the crime. In other words, none of the evidence from Mora’s

friends or relative implicates Appellant in lieu of Mora. Moreover, the fact that

Mora was not identified as the shooter does not lessen his criminal culpability. See

TEX. PENAL CODE ANN. § 7.02(b) (Vernon 2011) (establishing criminal

responsibility for offense committed by another when, in the attempt to commit

one felony, another felony is committed by one of the conspirators).

      Furthermore, one piece of evidence establishing Appellant’s guilt was a

recording of Appellant admitting to the shooting. Appellant suggests that this

recording “was made under physically intimidating circumstances.” There is no

evidence to support this argument, however. While the evidence establishes that

the three other men present during the recording were all taller than Appellant,

there is no evidence that any of them took any action to intimidate Appellant.

Instead, the evidence establishes that Appellant willingly told them where he was,

Appellant willingly approached them when they drove to that location, and only

one man got out of the car during the conversation.



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      Considering the heavy weight of evidence establishing Appellant’s

involvement in the murder—including Appellant’s recorded admission—and

considering how little emphasis the victim impact testimony was given during the

trial and during the State’s closing argument, we hold that its admission did not

affect Appellant’s substantial rights or have a substantial and injurious effect or

influence in determining the jury’s verdict.         See Kibble, 340 S.W.3d at 20.

Accordingly, it does not constitute reversible error. Because the victim impact

testimony does not constitute reversible error, the portion of the testimony to which

Appellant did not object also cannot establish the harm element of Appellant’s

ineffective assistance of counsel claims.

      We overrule Appellant’s four issues.

                                    Conclusion

      We affirm the judgment of the trial court.




                                                 Laura Carter Higley
                                                 Justice

Panel consists of Justices Keyes, Higley, and Massengale.

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




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