Opinion filed August 11, 2016




                                      In The


        Eleventh Court of Appeals
                                   __________

                                No. 11-14-00216-CR
                                    __________

               MATTHEW SCOTT NAVARRO, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 35th District Court
                             Brown County, Texas
                        Trial Court Cause No. CR21833

                      MEMORANDUM OPINION
      The jury convicted Matthew Scott Navarro of the offense of capital murder.
See TEX. PENAL CODE ANN. § 19.03 (West Supp. 2015). Pursuant to Section 12.31
of the Texas Penal Code, the trial court assessed his punishment at life imprisonment
without parole. Id. § 12.31. Appellant raises seven issues on appeal. We affirm.
      In Appellant’s first issue, he argues that the trial court abused its discretion
and deprived him of his Sixth Amendment right to counsel when it denied
Appellant’s request that his trial counsel be appointed to also handle this appeal. In
Appellant’s second issue, he asserts that Section 12.31(a)(2) of the Texas Penal Code
violates the Eighth Amendment prohibition of cruel and unusual punishment as
applied to Appellant. In Appellant’s third issue, he contends that the trial court
abused its discretion and caused some harm when it overruled Appellant’s objection
to an instruction on the law of parties in the trial court’s charge to the jury. In
Appellant’s fourth issue, he argues that the trial court abused its discretion when it
allowed inadmissible evidence of extraneous misconduct. In Appellant’s fifth issue,
he contends that the trial court abused its discretion when it allowed inadmissible
and harmful statements “under the guise of the statement of co-conspirator rule.” In
Appellant’s sixth issue, he argues that the trial court abused its discretion when it
denied Appellant’s motion for new trial, which he based upon a claim of spoliation
of evidence. In Appellant’s seventh issue, he alleges that he was also entitled to a
new trial because of the cumulative effect of extensive spoliation of evidence, an
overabundance of leading questions by the prosecution, and the prosecution’s use of
false evidence.
      On December 11, 2009, Appellant, Pedro Rocha, Efrain Castillo, and Alex
Gil Jr. broke into Ronald and Randall Philen’s house to steal marihuana. Appellant
and the three men each had a gun with them. Gil and Castillo both testified that they
got the guns from Appellant’s house. The four men arrived at the Philens’ house
around three in the morning; they kicked in one of the doors to gain access to the
house. Once inside the house, they found Randall Philen in the kitchen. Gil and
Castillo pointed their guns at Randall and made him drop to the ground and put his
hands behind his back. Meanwhile, Appellant and Rocha went to another part of the
house to look for the marihuana. Within minutes after they entered the house,
gunshots were fired, and Ronald Philen died as a result.
      We will first address Appellant’s third issue, in which he argues that the trial
court abused its discretion and caused some harm when it overruled Appellant’s
                                          2
objection to an instruction on the law of parties in the trial court’s charge to the jury.
Under the law of parties, a person may be charged as a party to the offense if the
offense is committed by his own conduct or by the conduct of another for whom he
is criminally responsible. PENAL § 7.01(a) (West 2011). A person is criminally
responsible for an offense committed by another if he intentionally promotes or
assists the commission of the offense by soliciting, encouraging, directing, aiding,
or attempting to aid the other person to commit the offense. Id. § 7.02(a)(2).
         Appellant argues that the prosecution’s theory of the case was that Appellant
was the shooter and, therefore, that there should have been no instruction on the law
of parties. Appellant contends that the instruction on the law of parties lessened the
State’s burden of proof and, as a result, caused Appellant some harm.
         While the evidence may best support a theory that Appellant was the principal
actor, we conclude that there was sufficient evidence to properly submit an
instruction on the law of parties. See Goff v. State, 931 S.W.2d 537, 545 (Tex. Crim.
App. 1996). Appellant and the three other men all actively participated in the
offense. See Gilmore v. State, 397 S.W.3d 226, 243 (Tex. App.—Fort Worth 2012,
pet. ref’d). The evidence showed that they each used a gun in the course of
committing the robbery or burglary and that one of the four codefendants shot and
killed Ronald Philen.
         Further, Appellant’s argument that the State’s burden of proof was lessened
is without merit. Under the law of parties, the State was held to a beyond-a-
reasonable-doubt burden of proof, the same standard as that required to determine
whether Appellant was the primary actor. Therefore, we overrule Appellant’s third
issue.
         Next, we will address Appellant’s fifth issue, in which he argues that the trial
court abused its discretion when it allowed inadmissible and harmful statements
“under the guise of the statement of co-conspirator rule.” Appellant complains that
                                             3
“[t]he combined effect” of the “drinking game” testimony, Gil blurting out “I found
out he stole a grinder from the house,” and Gil’s testimony regarding Appellant’s
admission to the shooting was more prejudicial than probative and contrary to the
coconspirator rule.
      We review a trial court’s decision to admit or exclude evidence under an abuse
of discretion standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.
1991) (op. on reh’g). We will reverse a trial court’s ruling only if it is outside the
“zone of reasonable disagreement.” Id.
      Alicia Bates testified at trial for the State about a drinking game that she
played with Appellant sometime after the murder. Bates explained that, during the
game, she was to tell something that she had never done before. If anyone had done
that particular thing, he was to take a drink of alcohol. When Bates said, “I’ve never
killed anyone,” Appellant stated, “Oh, that’s f’d up,” and, in accordance with the
rules of the game, took a drink.
      Appellant contends that the testimony was admitted under the coconspirator
rule. It was not; rather, it was admitted as an admission by a party-opponent.
      Under Rule 801(e)(2)(A) of the Texas Rules of Evidence, a statement is not
hearsay if it “is offered against an opposing party” and “was made by the party in an
individual or representative capacity.” The statement Bates testified to was made by
Appellant and offered against Appellant; therefore, it is not hearsay and was properly
admitted under the party-opponent rule.
      Gil testified at trial that, when they arrived back at Appellant’s house after the
shooting, Appellant apologized for shooting Ronald Philen and said that he shot
Ronald Philen “because he saw him reaching for something, he thought he was going
to hurt him.” Defense counsel objected to the testimony on hearsay grounds, and
the trial court admitted the statement under the statement-against-interest exception
and as a coconspirator statement. We will uphold a trial court’s ruling if it is
                                           4
reasonably supported by the record and is correct under any theory of law. Hayden v.
State, 296 S.W.3d 549, 553 (Tex. Crim. App. 2009). Even if Gil’s testimony was
improperly admitted as a statement against interest or as a coconspirator statement,
the statement that Gil testified to was made by Appellant and offered against
Appellant; therefore, it could have been properly admitted under the party-opponent
rule. Thus, we cannot say that the trial court abused its discretion when it admitted
Gil’s statement.
      While testifying and without being prompted, Gil divulged, “I didn’t hear it
personally from [Appellant] about the grinder, but I found out he stole a grinder from
the house.” Appellant contends that this testimony was inadmissible and harmful.
However, at Appellant’s request, the trial court struck the response and instructed
the jury not to consider it for any purpose. We presume that the jury followed this
instruction. See Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010).
Therefore, no reversible error occurred in connection with Gil’s testimony about the
grinder.
      Rule 403 of the Texas Rules of Evidence provides that relevant evidence may
be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury or by considerations of
undue delay or needless presentation of cumulative evidence. TEX. R. EVID. 403;
see Young v. State, 283 S.W.3d 854, 874 (Tex. Crim. App. 2009). A trial court is
presumed to have engaged in the required balancing test when Rule 403 is invoked.
Williams v. State, 958 S.W.2d 186, 195–96 (Tex. Crim. App. 1997) (citing
Santellan v. State, 939 S.W.2d 155, 173 (Tex. Crim. App. 1997)). An analysis under
Rule 403 includes, but is not limited to, the following factors: (1) the probative value
of the evidence, (2) the potential to impress the jury in some irrational yet indelible
way, (3) the time needed to develop the evidence, and (4) the proponent’s need for


                                           5
the evidence. Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012);
Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006).
      We conclude that the trial court did not abuse its discretion when it determined
that the statements should not be excluded under Rule 403. The statements were
highly probative. Both statements constituted evidence that Appellant was involved
in the murder, and Bates’s testimony was evidence that Appellant had killed
someone. Additionally, the State had a serious need for this testimony. First, Bates
was not involved in the murder, and her testimony as an independent witness was
crucial to the State’s case. Second, Appellant asserted at trial that Gil lied about
Appellant’s involvement to avoid the death penalty in his own case, and this
evidence rebuts Appellant’s assertion.         Therefore, Appellant’s fifth issue is
overruled.
      In Appellant’s first issue, he argues that the trial court abused its discretion
and denied Appellant his Sixth Amendment right when it denied his request that trial
counsel be appointed to handle this appeal. Appellant contends that the trial court
exceeded its authority when it destroyed Appellant’s relationship with his trial
counsel because both Appellant and his trial counsel urged the continuation of their
attorney-client relationship.
      A criminal defendant is entitled to counsel of his choice if he is able to pay
for the counsel. Powell v. Alabama, 287 U.S. 45, 53 (1932). However, an indigent
defendant does not have the right to the appointment of counsel of choice.
Stearnes v. Clinton, 780 S.W.2d 216, 221 (Tex. Crim. App. 1989). Additionally, the
Texas Code of Criminal Procedure provides that the “court shall appoint an attorney
from a public appointment list.” TEX. CODE CRIM. PROC. ANN. art. 26.04(a) (West
Supp. 2015).
      Evan Pierce-Jones was appointed to represent Appellant at the trial court level.
After the completion of all of the trial court proceedings, the trial court was required
                                           6
to appoint a qualified appellate attorney from the public appointment list. Id. Pierce-
Jones was not on the appellate counsel appointment list in the 35th Judicial District.
Therefore, the trial court did not abuse its discretion when it denied Appellant’s
request that trial counsel be appointed to handle the appeal. Appellant’s first issue
is overruled.
      In Appellant’s second issue, he argues that Section 12.31(a)(2) of the Texas
Penal Code violates the Eighth Amendment prohibition of cruel and unusual
punishment as applied to him. Section 12.31(a)(2) provides that “[a]n individual
adjudged guilty of a capital felony in a case in which the state does not seek the death
penalty shall be punished by imprisonment . . . for . . . life without parole, if the
individual committed the offense when 18 years of age or older.” The Eighth
Amendment prohibits cruel and unusual punishments and “guarantees individuals
the right not to be subjected to excessive sanctions.” Roper v. Simmons, 543 U.S.
551, 560 (2005); see U.S. CONST. amend VIII.
      At the time of the offense, Appellant was nineteen years old. In Miller v.
Alabama, the Supreme Court held that mandatory life imprisonment without parole
for those under the age of eighteen at the time of their offense violates the Eighth
Amendment’s prohibition on cruel and unusual punishments. 132 S. Ct. 2455, 2460
(2012). Appellant argues that “there must be individualized sentencing of youthful
offenders” and contends that “[t]hat is a logical and necessary extension of Miller.”
      The State argues that the holding in Miller is explicitly limited to offenders
who are under the age of eighteen at the time of their offense and that such expansion
of Miller runs afoul of all other case law. We agree with the State and its reasoning,
and we decline to extend Miller. Appellant’s second issue is overruled.
      In Appellant’s fourth issue, he contends that the trial court abused its
discretion when it allowed inadmissible evidence of extraneous misconduct. The


                                           7
State asserts that the evidence was admissible to prove motive, to rebut defensive
theories, to show identity, or to corroborate accomplice witness testimony.
      Again, we review a trial court’s decision to admit or exclude evidence under
an abuse of discretion standard. Montgomery, 810 S.W.2d at 391. We will reverse
a trial court’s ruling only if it is outside the “zone of reasonable disagreement.” Id.
Rule 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show that he acted in conformity
therewith. TEX. R. EVID. 404(b). The rule further provides that evidence may be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident. Id. A trial
court’s ruling on the admissibility of evidence will be upheld if the record reasonably
supports the ruling and is correct under any theory of law applicable to the case.
Brito Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005).
      The State offered evidence of a February 20, 2010 traffic stop in which
Appellant was an occupant in Steven Navarro’s vehicle.            Steven Navarro is
Appellant’s brother. The traffic stop ultimately led to the search of Appellant’s
apartment and Steven’s apartment. Appellant lived in an apartment with his mother,
and she granted consent to search the apartment. In the search of Appellant’s room,
officers with the Early Police Department found marihuana, marihuana grinders,
three .22-caliber rounds, plastic baggies, and a glass smoking pipe. Marihuana found
in Steven’s apartment was packaged in individual bags for sale. The State argued at
trial that the evidence in question showed that Appellant, Steven, and the
codefendants were drug dealers and that the evidence supplied a motive to steal the
marihuana.
      Although Appellant argues that the evidence as a whole should be
inadmissible, we will look at the evidence from each apartment separately to
determine whether the evidence was admissible. Thus, we will first consider the
                                           8
evidence from Appellant’s apartment. The State’s theory at trial was that Appellant
and his friends were drug dealers who wanted to steal the marihuana and sell it. The
State argues on appeal that the extraneous misconduct was circumstantial evidence
that Appellant was a drug dealer who sold marihuana. The evidence admitted from
Appellant’s apartment was all drug related and supported the State’s theory.
Specifically, a marihuana grinder that was found in Appellant’s bedroom was
admitted, and it had distinctive characteristics that linked Appellant to the crime
currently at issue on appeal. The grinder was decorated with a skull and crossbones
with red flames. The grinder belonged to Ronald Philen, but Appellant claimed
ownership of it while being interviewed by Trooper Michael Sams. Accordingly,
we cannot say that the trial court erred when it admitted the evidence from
Appellant’s apartment under Rule 404(b) for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.
      We next turn to Steven’s apartment. Assuming, without deciding, that the
trial court erred when it admitted the evidence from Steven’s apartment because it
did not show motive, identity, rebut defensive theories, or serve as corroboration of
accomplice witness testimony, any error was harmless. The erroneous admission of
extraneous offense evidence is nonconstitutional error. See Hernandez v. State, 176
S.W.3d 821, 824–25 (Tex. Crim. App. 2005). Rule 44.2(b) of the Texas Rules of
Appellate Procedure applies to nonconstitutional errors. Pursuant to Rule 44.2(b),
an error is not reversible error unless it affects a substantial right of the defendant.
A substantial right is affected when the error has “a substantial and injurious effect
or influence in determining the jury’s verdict.” Johnson v. State, 43 S.W.3d 1, 4
(Tex. Crim. App. 2001); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).
We are not to overturn a conviction due to the erroneous admission of evidence if,
after examining the record as a whole, we have fair assurance that the error did not
                                           9
influence the jury or had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417
(Tex. Crim. App. 1998). When conducting a Rule 44.2(b) harm analysis based upon
the erroneous admission of evidence, an appellate court should consider everything
in the record, including:
      [A]ny testimony or physical evidence admitted for the jury’s
      consideration, 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, the jury instructions, the
      State’s theory and any defensive theories, closing arguments, voir dire,
      and whether the State emphasized the error.

Rich v. State, 160 S.W.3d 575, 577–78 (Tex. Crim. App. 2005).
      When reviewing the evidence as a whole, the admission of the evidence from
Steven’s apartment did not harm Appellant. The trial court gave the following
instructions to the jury:
      [E]vidence concerning an alleged offense or offenses and the evidence
      you’ve just heard other than the offense alleged in the indictment may
      only be considered if . . . you believe beyond a reasonable doubt that
      the Defendant committed such other offense or offenses, if any; and
      even then, you may only consider such evidence in determining the
      motive, identity of the Defendant, or to rebut a defensive theory, if any,
      in connection with the offense alleged against him in the indictment.
      You’re not to consider this evidence for any other purpose.
We presume the jury followed these instructions. See Coble, 330 S.W.3d at 292.
      Further, other evidence showed that Appellant was involved in the capital
murder. Bates testified that Appellant admitted, while playing a drinking game, to
killing someone. We earlier held that no error occurred when the “drinking game”
testimony was admitted. Appellant’s cellmate testified that Appellant admitted that
he was concerned about bullets that the police had found in his apartment and also
admitted that he was present at the house when Ronald Philen was murdered.
Moreover, Appellant told a coworker that he had attempted to steal marihuana from


                                         10
two guys. Appellant also lied to the police about his whereabouts on the night of the
murder, December 11, 2009. He said that he spent the night with his girlfriend,
Shaunta Denison, but they did not start dating until June of 2010. Lastly, the unique
grinder, which belonged to Ronald Philen and was found in Appellant’s bedroom
and claimed by Appellant, was some evidence that Appellant was involved in the
murder.
      Based on our review of the record, we find that the admission of the
extraneous bad acts, even if error, likely had no influence, or only a slight influence,
on the jury’s verdict. See Johnson, 967 S.W.2d at 417; Spencer v. State, No. 11-02-
00306-CR, 2003 WL 22233540, at *3 (Tex. App.—Eastland Sept. 26, 2003, pet.
struck) (not designated for publication) (finding the trial court’s error in admitting
extraneous offenses harmless when the jury was given a limiting instruction and the
evidence in favor of the verdict was strong). We overrule Appellant’s fourth issue.
      In Appellant’s sixth issue, he argues that the trial court abused its discretion
when it denied Appellant’s motion for a new trial based upon the spoliation of
evidence. Specifically, Appellant contends that he was denied due process as a result
of the “sloppy police work and exceedingly contaminated crime scene.” Appellant
does not suggest any bad faith on the part of the officers; instead, he points to the
“numerous failures to lift fingerprints,” the failure to perform any “touch DNA”
analyses, and the absence of luminol testing.
      The spoliation of evidence doctrine concerns the loss or destruction of
evidence. Torres v. State, 371 S.W.3d 317, 319 (Tex. App.—Houston [1st Dist.]
2012, pet. ref’d); White v. State, 125 S.W.3d 41, 43–44 (Tex. App.—Houston [14th
Dist.] 2003, pet. ref’d). When the spoliation concerns potentially useful evidence,
the defendant bears the burden of establishing that the State lost or destroyed the
evidence in bad faith. Ex parte Napper, 322 S.W.3d 202, 229 (Tex. Crim. App.
2010); Torres, 371 S.W.3d at 319.
                                          11
      Defense counsel questioned Robert Mullins, a retired police detective with the
Brownwood Police Department, about several items that were photographed but not
seized when the crime scene was processed. Those items appeared to have blood on
them. After the crime scene was processed, the items that were not seized were
released to Penny Lawson, a family member of Ronald Philen. Detective Mullins
testified that the police seized all of the physical evidence at the crime scene that he
believed had any relevance to Ronald Philen’s murder. Additionally, he stated that
he had nothing to do with what happened to those items once they were released to
Lawson.
      Defense counsel also asked Larry Owings, a former detective with the
Brownwood Police Department, about fingerprints taken throughout the house,
specifically pointing to fingerprints taken from the door panel in Ronald Philen’s
bedroom and from Ronald Philen’s exposed skin, and about whether the door was
“luminol’d” or tested for any human blood, tissue, or hair. Owings stated that the
fingerprints from the door panel were preserved at the scene and were photographed
and tested later at the police department. Additionally, Owings explained that
luminol, Blue Star, or other liquid used to test for blood could “mess” with any latent
prints on the door.
      The record does not contain any evidence that the State acted in bad faith.
Additionally, there is no indication that any of the evidence that was not preserved
was potentially exculpatory or potentially useful. See Ex parte Napper, 322 S.W.3d
at 229–40; Brecheen v. State, 372 S.W.3d 706, 711 (Tex. App.—Eastland 2012, pet.
ref’d). We hold that the trial court did not err when it denied Appellant’s motion for
new trial insofar as it was based upon the spoliation of evidence. Appellant’s sixth
issue is overruled.
      In Appellant’s seventh issue, he argues that “[t]he cumulative effect of
extensive spoliation of evidence, an overabundance of leading questions by the
                                          12
prosecution, as well as the prosecution’s use of false evidence” entitles Appellant to
a new trial.    Specifically, Appellant argues that his due process right to a
fundamentally fair trial was violated because of these errors.
      The State argues that each allegation is individually meritless and, therefore,
that no error exists to cumulate. We agree.
      We discussed the spoliation of evidence above and held that no error occurred;
thus, it did not contribute to any cumulative error.
      On direct examination, leading questions should be used only when necessary
to develop a witness’s testimony. TEX. R. EVID. 611(c). The decision to allow
leading questioning is within the discretion of the trial court. Wyatt v. State, 23
S.W.3d 18, 28 (Tex. Crim. App. 2000); Mega Child Care, Inc. v. Tex. Dep’t of
Protective & Regulatory Servs., 29 S.W.3d 303, 308 (Tex. App.—Houston [14th
Dist.] 2000, no pet.). Abuse of discretion cannot be shown unless the appellant
demonstrates that he was unduly prejudiced as a result of such questioning. Wyatt,
23 S.W.3d at 28.
      Appellant does not direct us to any of the “overabundance” of leading question
violations committed by the State that allegedly denied him “one tolerably fair trial.”
Appellant makes only a general claim that the use of leading questions caused him
harm. Additionally, at the request of defense counsel, the trial court gave the jury
an explanation of what a leading question was, told the jury when a leading question
could be used, and specifically stated that the prosecution was instructed not to lead
the witness. Further, the jury was instructed in the jury charge that statements made
by lawyers and questions asked by attorneys were not evidence. We also note that
the trial court sustained objections to leading questions when appropriate. Thus, no
error occurred from the State’s use of leading questions.
      Appellant also contends that the diagram of the interior of Ronald Philen’s
residence offered by the State is “false” evidence. At trial, defense counsel objected
                                          13
to the diagram on the ground that it was not a “fair and accurate rendition of the floor
plan.” The State, however, explained in the presence of the jury that the diagram
was not to scale, was only a “general layout” of Ronald Philen’s house, and was for
demonstrative purposes only. The trial court overruled the objection. The State
contends that Appellant has not shown that any false evidence was offered, and we
agree. No error occurred with the admission of the diagram of Ronald Philen’s
house.
      Accordingly, we have determined that each claim is individually meritless;
thus, we hold that Appellant’s cumulative-effect claim is also meritless. Appellant’s
seventh issue is overruled.
         We affirm the judgment of the trial court.




                                                      JIM R. WRIGHT
                                                      CHIEF JUSTICE


August 11, 2016
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




                                           14
