                                     In The

                               Court of Appeals
                   Ninth District of Texas at Beaumont
                          ____________________
                             NO. 09-13-00057-CR
                          ____________________

                   JAMES DAVID CLARKE JR., Appellant

                                       V.

                      THE STATE OF TEXAS, Appellee
_______________________________________________________           ______________

                   On Appeal from the 221st District Court
                        Montgomery County, Texas
                      Trial Cause No. 12-12-12927-CR
_________________________________________________                  _____________

                         MEMORANDUM OPINION

      A jury found James David Clarke Jr. (“Clarke” or “Appellant”) guilty of the

murder of Amber Elkins, Clarke’s twenty-year-old girlfriend. The jury also found

the enhancement allegation “true,” and assessed a punishment of life in prison and

a $10,000.00 fine. In a single issue on appeal, Clarke argues he was denied

effective assistance of counsel because he was not allowed to present evidence and




                                        1
cross examine a witness to prove his theory that there was an alternative

perpetrator. We overrule Clarke’s issue and affirm the judgment. 1

                                  BACKGROUND

      The record indicates that, prior to her death, Amber Elkins was in a

relationship with Clarke. Elkins had a nine-month-old daughter from an earlier

relationship with Frankie Ferrata. Thomas Smith, one of the witnesses at trial,

testified that he tried to help Elkins get a job. Smith testified that Elkins had a

daughter, and there were custody issues between Elkins and the child’s father. A

few days before she was murdered, Smith put Elkins up in a hotel to help her get

away from Clarke. When Smith went to check on Elkins, she was with Clarke in

the hotel. Clarke had a gun. Smith described Elkins as being “real scared, set-

offish[,]” and she indicated to Smith “she was really concerned about the weapon

several times.” On July 24, 2011, a couple of days later, Elkins called Smith and

asked him to bring her some money that she needed for court. Smith took the

money to Elkins and met her at the “Ross Dress for Less” store where she was

      1
        Clarke does not claim that his trial counsel’s performance fell below the
objective standard of reasonableness or that there is a “reasonable probability” the
result of the proceeding would have been different but for counsel’s allegedly
deficient performance. Accordingly, Clarke has not asserted an ineffective
assistance claim. See Strickland v. Washington, 466 U.S. 668, 693-94 (1984).
However, Clarke also alleges he was not allowed a meaningful opportunity to
develop his “alternative perpetrator” defense. Therefore, we focus on that claim.

                                         2
buying clothing items. Smith saw Clarke, who was sitting in Elkins’ SUV in the

parking lot while Elkins was shopping in the store. Smith testified that he could see

that Clarke had a gun between his lap and the console. Smith went inside the store

and gave Elkins the money. Later that night, Elkins called Smith again and asked

for gas money. Smith met Elkins at a gas station and gave her more money. Smith

testified that Clarke was with Elkins at the station that night, and that was the last

time Smith saw Elkins.

      Shellie Krenzke, one of Elkins’ friends, also testified at trial. Krenzke stated

that she saw Elkins on July 24th, and Elkins told her that Clarke and Elkins had

been “fighting really bad[,]” and that Elkins was going to leave Clarke and end

their relationship. Elkins had a scheduled court appearance on July 25, 2011, on a

drug possession charge, and she was also supposed to be in Madisonville on that

date regarding a custody matter.

      Elkins’ mother, Shani Kilpatrick, testified that Elkins and Clarke had been

dating about two months, and Kilpatrick did not approve of the relationship. In the

early morning hours of July 25th, Kilpatrick received a phone call from Elkins’

cell phone. Kilpatrick was asleep and did not notice the call until later that

morning. She then called Elkins’ cell phone and Clarke answered it. When

Kilpatrick asked him where Elkins was, he hung up without answering the


                                          3
question. Kilpatrick continued thereafter to call Elkins’ cell phone but she never

heard back from her daughter.

      After Elkins was reported missing, the police began an investigation. The

police received a report of an abandoned SUV located on Hull Road in

Montgomery County that was registered to Elkins. The police examined the SUV

and it had “a lot of blood” in it, as well as items from Ross Dress for Less. Elkins’

body was not located until several days thereafter.

      Rebecca Hull, who had children by Clarke, testified Clarke came by her

home in the early morning hours of July 25, 2011. He told her that he had killed

someone. Clarke told Hull that “sometimes the witch was Crystal and sometimes

she was Amber.” Clarke further said he shot the person in the head when they were

in a vehicle travelling on Beltway 8. And he said he put the body in the bed of his

pickup truck, and then disposed of the body by a bridge. Clarke told Hull that he

“had been out all night washing his car at the car wash” and that he disposed of the

victim’s clothes by putting them in dumpsters at motels. Hull testified that Clarke

referred to the back of his pickup truck as being the place “where [he] had the

body.” Clarke also showed Hull a bloody cell phone. Seeking to protect her

children, Hull left in a vehicle with Clarke. Among other stops, they went to the

post office because Clarke told Hull he wanted to get him, Hull, and Hull’s


                                         4
children passport applications. They later returned to Hull’s home, and ultimately

Clarke left.

      Over the next few days, Clarke stayed in a motel with another friend, Crystal

Stokes. Elkins was still missing. Stokes testified that she commented to Clarke that

it would be horrible for a parent to not know the whereabouts of his or her child.

Clarke replied, “How do you think I feel? I had her brain matter on me -- sprayed

on me.” Stokes testified that Clarke stated that “they are bigger than the cops, they

are bigger than him, they would kill his kids.” Clarke did not identify the people he

was referencing when he said “they.”

       A search team assisted in locating Elkins’ remains. On July 31, 2011, the

search team found her body in a dry creek bed near the side of a bridge just a few

miles from Hull’s home. The coroner confirmed that Elkins suffered two close-

range gunshot wounds to her head.

      Cell phone records were admitted into evidence. The records reveal activity

on Clarke’s phone from July 20-24, 2011. Clarke told the officers that he had not

had his phone for the last week to two weeks, but the records indicated that

Clarke’s and Elkins’ phones were used in the area where Elkins was last seen and

in the vicinity of where her body was found.




                                         5
      DNA evidence was obtained from inside Elkins’ SUV and from Clarke’s

pickup truck. There were some unknown DNA samples from some areas inside the

SUV that were not a match for either Clarke or Elkins. The investigators did not

obtain a DNA swab from Ferrata, the father of Elkins’ child. The police also

recovered other physical evidence from Elkins’ SUV, including drug

paraphernalia, clothing items, and methamphetamines.

                         CLARKE’S ARGUMENT ON APPEAL

      Clarke contends he was not allowed to fully develop his theory that someone

else murdered Elkins. In closing argument, defense counsel suggested that drug

dealers, Ferrata, or the “they” (mentioned by Clarke in his description to Crystal

Stokes) may have murdered Elkins. Clarke maintains that the trial court did not

allow him to sufficiently present evidence and cross-examine witnesses to further

support his alternative perpetrator defense at trial. He specifically references the

exclusion of the additional evidence he sought to introduce about Ferrata.

                    EVIDENCE ADMITTED REGARDING FERRATA

      On cross-examination, defense counsel questioned Kilpatrick about Frankie

Ferrata. She testified that Elkins had a nine-month-old daughter by Ferrata, that at

one point Elkins allowed Ferrata to keep the child, and that he refused to return the

child to Elkins. At the time of Elkins’ death, Ferrata had the child with him in


                                         6
Madisonville. Kilpatrick testified that Elkins tried to get child support from

Ferrata, but he would not cooperate; Ferrata served Elkins with papers related to

the custody of the child, and Elkins was planning on going to Madisonville on July

25, 2011, on a custody matter about her child. Kilpatrick further stated that Ferrata

was a “psycho,” and that he had kicked and dented the door of Elkins’ vehicle.

                    EVIDENCE EXCLUDED REGARDING FERRATA

      On cross examination of Kilpatrick, defense counsel sought to elicit more

details from her about Ferrata. In the presence of the jury, defense counsel asked

the following questions:

      Q. Who was the father of this child?
      A. Frankie Ferrata. . . .
             ....
      Q. All right. So that child was with the father in Madisonville; is that
      correct?
      A. Yeah.
      Q. And there was a dispute between them as to whether the child --
      the case was going to be moved back to Harris County? Is that what it
      was?
      A. I am not really sure what it was that she had to go sign for. She let
      Frankie take Ava to spend the night. He was supposed to bring her
      back. She didn’t -- he served her with papers for custody.
      Q. Out of Madisonville?
      A. Yeah.
      Q. Now, you had an interview, did you not, with a couple of
      detectives, Detective Quintanilla and someone else; is that correct?
      A. Yes, sir.
      Q. Did you describe the father of Amber’s child as being a psycho?
      A. Yes, I did.


                                         7
      Q. And when you say he was a psycho, what sort of things was he
      doing to make you think that?

The State then objected on relevancy grounds to the question. The trial court

sustained the objection.

      Defense counsel requested the opportunity to take the witness on voir dire

outside the presence of the jury and to make an offer of proof “to show that there

[was] one or more persons who had an interest in disposing of this deceased.” The

State further objected: “[I]f they are trying to establish an alternative perpetrator,

they have to establish evidence, including some nexus to this crime.” During the

voir dire of Kilpatrick, defense counsel asked her to explain why she described

Ferrata as a “psycho.” She explained that Ferrata was a military veteran, and,

according to her, he had “post-traumatic stress syndrome.” Kilpatrick further

stated, “[Ferrata] got addicted to pills . . . it just made him crazy.” She indicated

that at one time Ferrata and Elkins were using pills, and “[w]hen they would fight,

they would be crazy.” The trial judge sustained the objections.

             CLARKE ARGUES FERRATA COULD HAVE KILLED ELKINS

      Clarke contends he was not allowed to fully develop his cross examination

of Kilpatrick regarding his theory that Ferrata, “in order to avoid losing custody of

[his] daughter,” had the “motive and temperament” to murder Elkins (or to have

others commit the murder). During his closing argument, defense counsel

                                          8
explained to the jury that Ferrata had initiated family custody proceedings and had

taken possession of the child. Counsel told the jury that “I am not telling you

Frankie Ferrata killed Amber[,]” but “if you put a red fire department hat on with a

blinky light, you could not be more of a suspect than Frankie Ferrata.”

                       THE SIXTH AMENDMENT GUARANTEE

      “The Constitution guarantees criminal defendants a meaningful opportunity

to present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986). The

Sixth Amendment “guarantees an opportunity for effective cross-examination, not

cross-examination that is effective in whatever way, and to whatever extent, the

defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (emphasis in

original). Therefore, the fact a defendant is not allowed to present his case to the

extent or in the manner he may desire does not rise to constitutional error when the

defendant was not prevented from presenting the “substance of his defense” to the

jury. Potier v. State, 68 S.W.3d 657, 666 (Tex. Crim. App. 2002); see also Tex. R.

App. P. 44.2(a). Erroneous evidentiary rulings rarely constitute a denial of the

constitutional right to present a meaningful defense. Williams v. State, 191 S.W.3d

242, 257 (Tex. App.—Austin 2006, no pet.).




                                         9
                            ALTERNATIVE PERPETRATOR

      A defendant in a criminal prosecution may be entitled to present relevant

evidence that another party is responsible for the crime alleged against the

defendant. Wiley v. State, 74 S.W.3d 399, 406 (Tex. Crim. App. 2002); Caldwell v.

State, 356 S.W.3d 42, 47 (Tex. App.—Texarkana 2011, no pet.). A defendant is

not required to show that the alternative suspect murdered the victim. See Wiley, 74

S.W.3d at 406-08. But the defendant must show that “his proffered evidence

regarding the alleged alternative perpetrator is sufficient, on its own or in

combination with other evidence in the record, to show a nexus between the crime

charged and the alleged ‘alternative perpetrator.’” Id. at 406. Weak, speculative

evidence that someone else may have committed the crime is inadmissible and

poses a great threat of confusing the issues in a trial. Id. at 406-07; see also Tex. R.

Evid. 403 (danger of confusion of the issues).

      In Wiley, the defendant was the owner of a restaurant and he was charged

with arson after the restaurant was damaged by a fire. At trial, Wiley wanted to

introduce evidence about a “known ‘fire-starter,’ … [who] ‘was thrown out of the

restaurant a few days prior to the fire and, in fact, was standing across the street

watching it burn.’” Id. at 406. The State objected to the evidence and the trial court

sustained the objection “apparently under Rule 403.” Id. at 403. On appeal, Wiley


                                          10
argued that “had the jury been permitted to hear evidence that another person could

have committed the offense, they might have entertained a reasonable doubt as to

Appellant’s guilt.” Id. at 405. The Court of Criminal Appeals held that the trial

court did not err in excluding the evidence, and stated as follows:

      In weighing probative value against Rule 403 counterfactors, courts
      must be sensitive to the special problems presented by “alternative
      perpetrator” evidence. Although a defendant obviously has a right to
      attempt to establish his innocence by showing that someone else
      committed the crime, he still must show that his proffered evidence
      regarding the alleged alternative perpetrator is sufficient, on its own or
      in combination with other evidence in the record, to show a nexus
      between the crime charged and the alleged “alternative perpetrator.”

Id. at 406 (emphasis added). The Wiley court determined that the evidence was

speculative, and even if it was relevant, it could not survive the Rule 403 balancing

test because it had a great risk of causing confusion of the issues and requiring a

side trial about whether the alleged alternative perpetrator committed the crime. Id.

at 407. “It is not sufficient for a defendant merely to offer up unsupported

speculation that another person may have done the crime. Such speculative

blaming intensifies the grave risk of jury confusion, and it invites the jury to render

its findings based on emotion or prejudice.” Id. Accordingly, even if evidence may

otherwise be relevant, before admitting the evidence of an alternative perpetrator,

the trial court must weigh the probative value of otherwise relevant evidence

against the “special problems” presented by alternative perpetrator evidence.

                                          11
Dickson v. State, 246 S.W.3d 733, 739-40 (Tex. App.—Houston [14th Dist.] 2007,

pet. ref’d) (citing to Wiley, supra at 406).

                        CLARKE WAS NOT DEPRIVED
            OF A MEANINGFUL OPPORTUNITY TO PRESENT HIS DEFENSE

       “Exclusions of evidence are unconstitutional only if they ‘significantly

undermine fundamental elements of the accused’s defense.’” Potier, 68 S.W.3d at

666 (quoting United States v. Scheffer, 523 U.S. 303, 315 (1998)). “‘That [the

defendant] was unable to present his case to the extent and in the form he desired is

not prejudicial where . . . he was not prevented from presenting the substance of

his defense to the jury.’” Potier, 68 S.W.3d at 666 (quoting United States v. Willie,

941 F.2d 1384, 1398-99 (10th Cir. 1991)).

      Based upon the record in this case, we conclude that the excluded evidence

did not form “such a vital portion of the case” that the exclusion effectively

precluded Clarke from presenting the substance of his alternative perpetrator

defense to the jury. Even without the excluded evidence, there was evidence in the

record before the jury (which we have detailed herein) from which Clarke could

argue to the jury that a third party, such as Ferrata, was the killer because he was a

“psycho” and because he had a motive to commit the offense. See James v. State,

356 S.W.3d 728, 736 (Tex. App.—Fort Worth 2011, pet. ref’d).



                                           12
      The excluded testimony that Clarke wanted to explore was Ferrata’s military

status, prior drug use, previous fights with Elkins, and an alleged diagnosis of post-

traumatic stress disorder. Based upon the record, it appears that Kilpatrick was not

qualified to diagnose any mental disorder, and much of her testimony relating to

the excluded items would have been based on hearsay. Even if the excluded

evidence had been admitted, it would have only “incrementally” buttressed

Clarke’s defensive theory of an alternative perpetrator.

      Accordingly, we conclude that the exclusion of the proffered testimony was

not of a constitutional dimension and did not rise to the level of denying Clarke’s

fundamental constitutional right to have a meaningful opportunity to present his

defense. Walters v. State, 247 S.W.3d 204, 221-22 (Tex. Crim. App. 2007); Ray v.

State, 178 S.W.3d 833, 836 (Tex. Crim. App. 2005); Wiley, 74 S.W.3d at 408;

Kappel v. State, 402 S.W.3d 490, 496 (Tex. App.—Houston [14th Dist.] 2013, no

pet.) (Appellant was permitted to present his defense and was only barred from

exploring specific details; trial court’s limitation on cross-examination did not rise

to constitutional level of violating appellant’s due process right to present his

defense.); see also Tex. R. App. P. 44.2(a).




                                         13
                THE TRIAL COURT DID NOT ABUSE ITS DISCRETION

      Although we have already concluded that Clarke was not denied a

meaningful opportunity to present his alternative perpetrator defense, we also

conclude that, based upon this record, the trial court did not abuse its discretion in

excluding the evidence in question. We review the trial court’s evidentiary rulings

using an abuse of discretion standard. Tienda v. State, 358 S.W.3d 633, 638 (Tex.

Crim. App. 2012); Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App.

2010). A trial court does not abuse its discretion unless its decision is outside the

“zone of reasonable disagreement.” Tienda, 358 S.W.3d at 638.

      In this case, Clarke has not shown that the trial court abused its discretion by

excluding the evidence. The additional questions Clarke wanted to ask Kilpatrick

were related to Ferrata’s military background, Ferrata’s prior drug use, past fights

with Elkins when they were previously together, and the allegation that he had

post-traumatic stress disorder. The fact that Ferrata was or was not a veteran, or

that he possibly had PTSD, or that he may have been a drug user would not have

been relevant to any substantive issue in the trial. And the past fighting or how he

may have acted when he was on drugs in another unrelated incident with Elkins

would be only marginally relevant. Moreover, even if such details may have been

marginally relevant, the trial court’s decision to exclude the evidence is within the


                                         14
zone of reasonable disagreement, given the “special problems presented by

‘alternative perpetrator’ evidence,” because the excluded evidence would not have

established a “nexus” between Ferrata and the murder of Elkins. Wiley, 73 S.W.3d

at 406. Accordingly, the trial court did not abuse its discretion in excluding the

evidence.

      We further conclude that, even if the evidence was improperly excluded,

there was no harm under Rule 44.2(b) of the Rules of Appellate Procedure. Rule

44.2(b) provides that any non-constitutional error that does not affect a substantial

right must be disregarded. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim.

App. 1998); Tillman v. State, 376 S.W.3d 188, 199 (Tex. App.—Houston [14th

Dist.] 2012, no pet.); see also Tex. R. Evid. 103(a) (“Error may not be predicated

upon a ruling which admits or excludes evidence unless a substantial right of the

party is affected[.]”). An error does not affect substantial rights if the appellate

court “has fair assurance that the error did not influence the jury, or had only a

slight effect.” Johnson, 967 S.W.2d at 417.

      The substance of the alternative perpetrator defense was before the jury. In

view of all the evidence presented to the jury, it is with “fair assurance” we

conclude that the exclusion of the additional details from Kilpatrick about Ferrata

did not influence the jury or that it had only a slight effect. As noted above, the


                                         15
additional testimony would not have added significantly to Clarke’s defense; the

excluded testimony would only have added incrementally to that defense. Given

the evidence that was before the jury, the error, if any, was not of constitutional

dimension and, moreover, under Rule 44.2(b), would have had only a slight effect

on the jury.

      We overrule Clarke’s issue on appeal, and we affirm the judgment.

      AFFIRMED.

                                             ______________________________
                                                    LEANNE JOHNSON
                                                         Justice


Submitted on January 2, 2014
Opinion delivered April 16, 2014
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, J.J.




                                        16
