                                       In The

                                Court of Appeals

                    Ninth District of Texas at Beaumont

                               __________________

                               NO. 09-17-00438-CR
                               __________________

                 MONTIE EUGENE GRAHAM JR., Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee

__________________________________________________________________

                On Appeal from the 359th District Court
                     Montgomery County, Texas
                   Trial Cause No. 16-12-14988-CR
__________________________________________________________________

                          MEMORANDUM OPINION

      Montie Eugene Graham Jr. appeals from his conviction for aggravated

robbery. In a single issue, Graham argues the trial court erred by allowing the

detective in charge of the investigation of the robbery to testify that Graham, in the

detective’s opinion, was guilty of robbing the bank. We hold that while admitting

the detective’s opinion was error, the error was harmless.



                                          1
                                    Background

      In March 2017, a grand jury indicted Graham for aggravated robbery, alleging

he robbed a bank in Montgomery County, Texas, while using a deadly weapon, a

firearm. 1 During Graham’s trial, the prosecutor asked the detective in charge of

investigating the bank robbery the following questions:

      [Prosecutor]: Detective, by the end of your investigation, after
      considering all the evidence, including the surveillance videos, the
      photos, and the cellular device, and all that, did you make a
      determination about who you believe robbed the BBVA bank on
      December 20, 2016?

      [Defense]: I object to that. That’s the jury’s question to answer not his.

      [The Court]: Okay. It’s overruled.

      [Prosecutor]: So, did you —

      [The Court]: You may answer.

      [Prosecutor]: Yes, Your Honor. Thank you. Did you come to formulate
      an opinion about who you believed robbed the bank?

      [Detective in Charge]: Yes, sir. I believe it was Montie Eugene Graham,
      Jr., robbed the bank.

      Based on the testimony and evidence admitted before the jury in the trial, the

jury found Graham guilty of aggravated robbery. Graham tried the punishment-


      1
          See Tex. Penal Code Ann. § 29.03(a)(2) (West 2019).


                                           2
phase of the case to the court. In the punishment-phase of the trial, Graham pleaded

true to the three enhancement paragraphs in the indictment, which allege that

Graham had been convicted previously of three other felonies. When the punishment

phase ended, the trial court assessed Graham’s punishment at life.

                                 Standard of Review

      We employ an abuse of discretion standard to review a trial court’s ruling

admitting or excluding evidence in a trial.2 Rule 701 of the Texas Rules of Evidence

contains the principles governing the admission of testimony by lay witnesses.3 One

of those principals requires that opinions of lay witnesses be based on the witness’s

perception. 4 And that requirement is consistent with another rule of evidence, Rule

602, which requires lay witnesses to have personal knowledge on the matters on

which their opinions are based.5 For that reason, we review Graham’s arguments

through the lens of Rule 701.6




      2
          See Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016).
      3
          Tex. R. Evid. 701 (Opinion Testimony By Lay Witnesses).
      4
          Id. 701(a).
      5
          Id. 602.
      6
          Id. 701.
                                         3
                                            Analysis

      In its brief, the State acknowledges that, when the detective in charge of the

investigation testified, he never held himself out as an expert on questions arising

over a defendant’s guilt. For that reason, the trial court could admit the detective’s

opinion as a lay opinion only if the detective’s opinion was based on his personal

knowledge and found the opinion helpful to the jury’s ability to clearly understand

the detective’s testimony or to the jury’s duty to determine a fact at issue in the trial.7

      But the record before us fails to show the detective’s opinion was based on

any personal knowledge. Instead, he clearly based his opinion on the conclusions he

drew from investigating the bank robbery. As such, the detective’s opinion was not

based on his personal knowledge, as he did not see the robbery occur. And the

detective’s opinion was not helpful since the jury could easily understand what the

detective explained he did to investigate the robbery. Finally, the detective’s opinion

was not helpful to determining a fact at issue. It was based neither on the detective’s

consideration of the evidence admitted at trial, nor guided by the instructions and

definitions the trial court gave the jury in the charge.8


      7
          Id. 701; Ex parte Nailor, 149 S.W.3d 125, 134 (Tex. Crim. App. 2004).
      8
        See Tex. R. Evid. 701; Boyde v. State, 513 S.W.2d 588, 590 (Tex. Crim.
App. 1974); DeLeon v. State, 322 S.W.3d 375, 383 (Tex. App.—Houston [14th
Dist.] 2010, pet. ref’d).
                                       4
      We conclude the trial court erred by failing to sustain Graham’s objection to

the prosecutor’s question and should not have allowed the jury to hear the detective

express an opinion on Graham’s guilt. 9

      Nonetheless, we must also decide whether the error was harmful. Defendants

appealing convictions claiming evidentiary errors occurred must show the error

affected the defendant’s substantial rights before they are entitled to another trial.10

And errors in admitting evidence generally will not affect a defendant’s substantial

rights if the reviewing court, after examining the record as a whole, has “fair

assurance that the error did not have a substantial and injurious effect or influence

in determining the jury’s verdict.”11

      Factors the reviewing court considers in reviewing non-constitutional errors

include “the nature of the evidence supporting the verdict, the character of the

alleged error and how it might be considered in connection with other evidence in

the case,” whether the State emphasized the error, and whether the record contains


      9
         See Fairow v. State, 943 S.W.2d 895, 899 (Tex. Crim. App. 1997)
(explaining that if a witness’s testimony yields testimony that amounts to “choosing
up sides” or an opinion of guilt or innocence, the witness’s opinion should be
excluded) (citing Boyde, 513 S.W.2d at 590).
      10
        See Tex. R. App. P. 44.2(b); Casey v. State, 215 S.W.3d 870, 885 (Tex.
Crim. App. 2007).
      11
           Casey, 215 S.W.3d at 885.
                                           5
overwhelming evidence showing the defendant committed the crime. 12 We use these

factors when examining the record in this case as a whole.

       Of the seven witnesses who testified in the guilt-innocence phase of Graham’s

trial, two worked for the bank. The bank employees explained they did not see the

face of the man who robbed the bank because he covered his face. The bank

employees noticed several things about the robber as he was holding them up while

they were working that day. They noticed the robber wore either a black jacket or

hoodie, and that he had on gloves. One of the bank employees testified that the

robber had an average build and was around six feet tall. Both employees

remembered the robber pointed a handgun at the teller he approached.

   While neither employee saw the man’s face, a great deal of evidence in the record

ties Graham to the robbery. That evidence includes the following:

    The afternoon of the robbery, one of Graham’s neighbors captured video
     showing a single-cab-dark-blue-Dodge truck leaving the neighborhood where
     Graham lived;

    Shortly thereafter, video footage, which police obtained from a truck stop near
     Graham’s house, shows a man with tattoos matching Graham’s, wearing blue
     jeans, a white t-shirt, and white-soled shoes getting drinks and leaving;

    Less than an hour later, video footage from a camera at a gas station near the
     bank shows a single-cab-dark-blue-Dodge truck cutting across the station’s
     lot;
       12
            Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim. App. 2002) (cleaned
up).
                                          6
 Still photos taken from the gas station’s surveillance footage shows the Dodge
  truck had two tires in its bed, damage to the rear bumper, and a sticker on the
  tailgate. Police located Graham’s truck during their investigation. Graham
  owns a single-cab-dark-blue-Dodge truck. The damage to the back of
  Graham’s truck as well as the sticker matched the characteristics of Graham’s
  truck;

 Minutes later, video footage police obtained in their investigation from a car
  wash near the bank shows a single-cab-dark-blue-Dodge truck entering an
  apartment complex located behind the bank;

 Video footage the police obtained from the apartment complex shows a
  single-cab-dark-blue-Dodge truck backing into a parking spot in the
  apartment complex’s lot;

 About half-an-hour later, video footage from the apartment complex and car
  wash shows the single-cab-dark-blue-Dodge truck leaving the apartment
  complex’s lot;

 Shortly before the robbery, video footage from the apartment complex and the
  car wash shows a single-cab-dark-blue-Dodge truck return to the apartment
  complex;

 Video footage from the apartment complex and car wash shows a single-cab-
  dark-blue-Dodge truck slow and then back into the same parking spot where
  the same truck parked earlier that day. The footage shows damage on the rear
  bumper and a sticker on the tailgate of the truck;

 Video footage police obtained from a restaurant adjacent to the bank shows a
  man appearing from a hole in the fence running behind the bank;

 The footage from the restaurant shows the man who went through the hole in
  the fence walking toward the bank. The man in the video is wearing dark
  clothing and white-soled shoes;



                                      7
    Within minutes of the robbery, video footage from the restaurant adjacent to
     the bank shows the man in white-soled shoes running back to the hole in the
     fence;

    Video footage from the car wash shows the single-cab-dark-blue-Dodge truck
     leaving the apartment complex;

    Shortly thereafter, cellphone data obtained by police and the testimony of
     Graham’s landlord established that Graham used the cellphone he regularly
     used, which belonged to his girlfriend, to call his landlord;

    About twenty minutes later, video footage that police obtained from Graham’s
     neighbor shows a single-cab-dark-blue-Dodge truck traveling towards
     Graham’s home;

    Cellphone data for the phone Graham used established the phone was in areas
     of town on the day of the robbery consistent with the locations where the
     police obtained video footage that depicts the blue Dodge truck;

    Cellphone data extracted from the phone also shows the phone was used to
     search the internet for information about robberies in Conroe, breaking news
     in the area, and two-dollar bills after the robbery; 13

    According to Graham’s landlord, the evening on the day the robbery occurred
     Graham paid his rent in his usual manner, using cash.

      While circumstantial, the video footage admitted into evidence in Graham’s

trial traces a single-cab-dark-blue-Dodge truck with damage and a sticker on it to

the truck Graham owns. The footage traces the truck from Graham’s neighborhood

to a location near the hole in the apartment’s fence used by the robber in his escape.


      13
         The testimony from the bank’s employees established that the cash the
robber took included eighty-one two-dollar bills and “bait money.” The police never
recovered any of the money taken in robbery.
                                        8
The footage then traces the truck back to Graham’s neighborhood. From the footage,

the jury could find the finger of guilt pointing squarely to Graham. The phone data

allowed the jury to conclude that Graham had the phone in the various locations tied

to the footage they viewed. Moreover, nothing in the record suggests anyone other

than Graham robbed the bank.

      According to the statement Graham gave police, he was not in Conroe the day

the robbery occurred. He suggests the evidence fails to sufficiently tie him to the

crime because the police never recovered the money, gun, mask, clothes, or shoes

the robber used in the robbery. But no alibi witnesses testified that Graham was not

in Conroe. Moreover, nothing in the record explains how a truck matching Graham’s

truck and the records from the phone tracing the phone to locations consistent with

the footage could have existed by mere coincidence. Graham’s argument suggests

nothing more than the State failed to meet its burden of proof, an argument the jury

could reasonably reject.

      According to Graham, the trial court’s ruling, which allowed the jury to hear

the detective’s opinion, prejudiced him because the opinion, admitted on the first

day of his trial, allowed the jury to decide the case before the parties rested. But the

argument lacks merit. At every break, the trial court reminded the jury not to form

any opinions until the jury deliberated on its verdict. While the prosecutor should

                                           9
not have been allowed to elicit the detective’s opinion, the prosecutor never

mentioned the detective’s opinion again during the trial. Finally, in closing

argument, the prosecutor never asked the jury to consider the detective’s opinion

that Graham committed the robbery.

      Generally, we “presume the jury follows the trial court’s instructions in the

manner presented.” 14 In Graham’s case, nothing in the appellate record shows the

jury did not do so. Given the trial court’s instruction, we presume the jury did not

deliberate or discuss the detective’s opinion before retiring to deliberate on its

verdict.15

      Here, the record as a whole fairly assures “the error did not have a substantial

and injurious effect or influence in determining the jury’s verdict.”16 We overrule

Graham’s sole issue and affirm the trial court’s judgment.

      AFFIRMED.




      14
           Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005).
      15
          See id. (instructing appellant’s burden to rebut the presumption the jury
failed to follow the trial court’s instructions).
      16
           See Casey, 215 S.W.3d at 885.
                                           10
                                                  _________________________
                                                       HOLLIS HORTON
                                                            Justice

Submitted on April 16, 2019
Opinion Delivered October 23, 2019
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.




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