                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-08-00237-CR

DAMON ASBERRY,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee


                          From the 54th District Court
                           McLennan County, Texas
                          Trial Court No. 2007-1625-C2


                         MEMORANDUM OPINION


      Damon Asberry was convicted by a jury of murder. TEX. PEN. CODE ANN. §

19.02(b) (Vernon 2003). The jury assessed punishment at imprisonment for life in the

Texas Department of Criminal Justice – Institutional Division. TEX. PEN. CODE ANN. §

12.32 (Vernon 2003).   Asberry complains that the trial court erred by denying his

request for a court-appointed expert and investigator, by denying challenges for cause

to strike members of the jury panel, by allowing the admission of testimony of

extraneous offenses, and by failing to allow him to make objections outside of the

presence of the jury. Because we find that the motion requesting the investigator and
expert were deficient, that the issue of Asberry’s challenges for cause was not properly

preserved, that the trial court did not abuse its discretion in the admission of

extraneous offense testimony of Kelly and Gomez, that the admission of the firebomb

extraneous offense was waived, and that the trial court did not abuse its discretion by

refusing to conduct a hearing outside of the presence of the jury regarding the firebomb

extraneous offense, we affirm the judgment of the trial court.

Denial of Request for Expert and Investigator

        Asberry complains of the trial court’s denial of his motions to have an

investigator appointed to interview witnesses and an expert appointed to examine the

DNA evidence in his case. We review a trial court's ruling on a motion to obtain an

expert under an abuse of discretion standard. Griffith v. State, 983 S.W.2d 282, 287 (Tex.

Crim. App. 1998). An indigent defendant has a right to a court appointed expert under

certain circumstances.1 See Ake v. Oklahoma, 470 U.S. 68, 74, 105 S.Ct. 1087, 1091-92, 84

L.Ed.2d 53 (1985). The defendant must make a preliminary showing that the expert

assistance is necessary to address a significant issue at trial. Moore v. State, 935 S.W.2d

124, 130 (Tex. Crim. App. 1996). In doing so, he must offer more than "undeveloped

assertions that the requested assistance would be beneficial." Id.

        Asberry's motions, however, were insufficient to establish his need for an

investigator or a DNA expert. In cases holding that a sufficiency showing was not

made under Ake, the defendant typically has failed to support his motion with (1)


1 The State argues that because Asberry’s trial counsel was retained, he was not entitled to appointment
of an investigator or expert. However, it is unnecessary for us to reach this issue due to our holding
regarding the deficiencies in Asberry’s motion.

Asberry v. State                                                                                 Page 2
affidavits or other evidence in support of his defensive theory, (2) an explanation as to

what his defensive theory was and why expert assistance would be helpful in

establishing that theory, or (3) a showing that there was reason to question the State's

expert and proof. Rey v. State, 897 S.W.2d 333, 341 (Tex. Crim. App. 1995). Asberry's

motions fail to meet any of the three requirements. See id.; see also Williams v. State, 958

S.W.2d 186, 193-94 (Tex. Crim. App. 1997) (a defendant needs to offer affidavits or

'evidence' in order to prevail). Asberry did not attach any affidavit, expert or otherwise,

or any other evidence to support his motions, offering nothing more than counsel's

undeveloped assertions.      See Williams, 958 S.W.2d at 194-95 (motion seeking

appointment of expert to evaluate history of drug abuse and abuse as a child on

grounds that "these factors could excuse [his] conduct or be a factor in mitigation of

punishment" was supported by expert affidavit); see also Smith v. State, 131 S.W.3d 928,

930 (Tex. App.—Eastland 2004, pet. ref'd) ("Appellant did not present any affidavits or

evidence in support of his motion;" he "only offered his counsel's undeveloped

assertions that appellant needed an expert."). Thus, Asberry failed to make a sufficient

showing under Ake. See Rey, 897 S.W.2d at 341; see also Smith, 131 S.W.3d at 930. We

overrule Asberry’s issue number one.

Challenges for Cause

        Asberry complains that the trial court erred in denying three challenges for cause

during voir dire.     The conduct of voir dire examination rests within the sound

discretion of the trial court and only an abuse of discretion results in a reversal on



Asberry v. State                                                                      Page 3
appeal. Whitaker v. State, 653 S.W.2d 781, 781 (Tex. Crim. App. 1983); Clark v. State, 608

S.W.2d 667 (Tex. Crim. App. [Panel Op.] 1980).

        In order to preserve error on denied challenges for cause, Asberry was required,

on the record, to demonstrate that he: (1) asserted a clear and specific challenge for

cause; (2) used a peremptory challenge on the (objectionable) veniremember; (3)

exhausted all of his peremptory challenges; (4) requested additional strikes; (5) objected

to the juror that sat on the jury; and (6) would have struck that juror with a peremptory

strike if he had been allotted additional strikes. Allen v. State, 108 S.W.3d 281, 282 (Tex.

Crim. App. 2003); Nelson v. State, 848 S.W.2d 126, 134 (Tex. Crim. App. 1992). It is

necessary to preserve error that Asberry show that he was “forced to take an identified

objectionable juror whom he would not otherwise have accepted had the trial court

granted his challenge for cause or granted . . . additional peremptory strikes.” Colella v.

State, 915 S.W.2d 834, 843 (Tex. Crim. App. 1995). Asberry did make challenges for

cause, used peremptory challenges on at least two of them, used all of his peremptory

challenges, and requested additional peremptory challenges. However, in the trial

court, he did not object to a specific juror that sat on the jury, nor demonstrate that he

would have struck that identified juror if given additional peremptory challenges.

Therefore, this issue has not been preserved and Asberry has waived his right to

complain about the challenges for cause. Issue number two is overruled.

Admission of Extraneous Offenses

        Asberry complains in issues three and four that the trial court erred in allowing

testimony regarding extraneous offenses. When reviewing a trial court's ruling on the

Asberry v. State                                                                      Page 4
admission of evidence, we apply an abuse of discretion standard of review. Casey v.

State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). A trial court abuses its discretion

when its decision lies outside the zone of reasonable disagreement. Id. A discussion of

the facts leading up to the admission of the challenged evidence is necessary to our

discussion of these issues.

Factual Background

        In the early morning hours of May 22, 2003, Bryan Daugherty stumbled to the

apartment door of a friend in Lacy Lakeview and knocked on the door. A friend

answered and discovered Daugherty covered in blood on the verge of collapse. Shortly

thereafter, Daugherty became incoherent.       He was unable to divulge what had

happened to him to anyone. After emergency medical assistance arrived, Daugherty

was taken to the hospital where he died shortly thereafter.

        Upon investigation, drops of blood and a shoe with drops of blood on it were

found in different locations at the apartment complex where Daugherty was

discovered. There were no signs of an altercation and it was determined that it was

highly unlikely that the apartment complex was the location of the attack. Daugherty

resided in the complex, but no evidence was located inside his apartment.

        After some investigation, it was determined that Daugherty had been with

Asberry the evening and into the early morning hours before he died. Daugherty and

Asberry had been seen together several times over the course of the weeks leading up to

the murder. There were allegations that Daugherty and Asberry had been together that

day smoking marijuana and cocaine, and that Asberry’s intent was to have sexual

Asberry v. State                                                                 Page 5
relations with Daugherty, but Daugherty did not agree. Asberry did not go to work for

a short time after the offense, but told people at his job that the police were after him for

the murder prior to any interview with the police.

        The vehicle Asberry was alleged to have been driving that night was a 1990 blue

Mazda. That vehicle belonged to Asberry’s brother, who gave law enforcement written

and verbal consent to search and then to impound the vehicle. When the vehicle was

initially opened, the officer described smelling a foul odor like rotting meat, found that

the back seat was wet, and when he touched the seat, the residue was soapy and

reddish colored. A friend of Asberry’s went with him the week after the murder to

detail a car, which turned out to be the Mazda. However, they only cleaned the inside

of the vehicle, and Asberry cleaned the back seat area.

        Shortly after being impounded, the vehicle was stored at an impound lot where

someone threw a type of homemade firebomb or “Molotov cocktail” near it, but it did

not destroy the vehicle. The police were unable to determine who committed that

offense, but believed it was Asberry.

        DNA testing was conducted on the seat cushion and other portions of the

Mazda. This did not return any conclusive evidence linking Asberry to the crime, but

also did not exclude him.

        Another individual, Brandon Trotter, had threatened to kill Daugherty shortly

before his death due to an incident that had occurred in Austin.             When initially

interviewed, Trotter orally admitted to killing Daugherty. However, it was shortly

discovered that Trotter was in Arlington during that time and could not have

Asberry v. State                                                                       Page 6
committed the murder. Both Trotter and his mother confirmed this at the trial. Trotter

is a convicted felon and was incarcerated at the time of trial.

        The case was eventually referred to the Texas Rangers as a cold case. The

investigation was reopened, and Asberry was arrested for committing the murder.

While in jail pending trial, Asberry allegedly confessed to the crime separately to two

other inmates, Jason Donaldson and Regan Preatto. Both inmates stated that Asberry

had stabbed Daugherty in an altercation that took place on a remote road near

Asberry’s home. Asberry stabbed Daugherty because Daugherty refused Asberry’s

sexual advances.     Both Donaldson and Preatto were convicted felons who were

incarcerated and presently facing serious new charges. Asberry attempted to impeach

them by portraying them as self-motivated and untrustworthy. Asberry produced

other evidence to attempt to show that it would have been improbable, if not

impossible, for those conversations to have taken place as described due to a lack of

privacy in the cells in the jail. Additionally, Asberry attempted to prove Donaldson was

allegedly a member of an Aryan gang and Asberry is not white, making it highly

unlikely that Donaldson would have communicated with Asberry at all, much less

about the offense.

        Asberry’s mother attempted to provide an alibi defense for Asberry by testifying

that he was at home at a time that made it impossible for him to have committed the

offense.

Texas Rule of Evidence 403




Asberry v. State                                                                  Page 7
        In issue three, Asberry complains that the trial court erred by allowing the State

to present the testimony of two witnesses in rebuttal regarding other sexual offenses

alleged to have been committed by Asberry pursuant to Texas Rule of Evidence 403.

Rule 403 provides, "Although 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.

        Although the Texas Rules of Evidence are intentionally slanted toward the

inclusion of all relevant evidence, Rule 403 gives the trial court considerable discretion

to exclude evidence when it appears to that individual judge, in the context of that

particular trial, to be insufficiently probative when measured against the countervailing

factors specified in the rule. Winegarner v. State, 235 S.W.3d 787, 791 (Tex. Crim. App.

2007); see Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex. Crim. App. 1991) (op. on

orig. submission); 810 S.W.2d at 391-92 (op. on reh'g); Johnson v. State, 263 S.W.3d 405,

426-427 (Tex. App.—Waco 2008, pet. ref’d).

        In a Rule 403 analysis, a trial court must balance (1) the inherent probative force

of the proffered item of evidence along with (2) the proponent's need for that evidence

against (3) any tendency of the evidence to suggest decision on an improper basis, (4)

any tendency of the evidence to confuse or distract the jury from the main issues, (5)

any tendency of the evidence to be given undue weight by a jury that has not been

equipped to evaluate the probative force of the evidence, and (6) the likelihood that

presentation of the evidence will consume an inordinate amount of time or merely

Asberry v. State                                                                     Page 8
repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex.

Crim. App. 2006); see State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005);

Montgomery, 810 S.W.2d at 389-90 (op. on reh'g).        "The rule gives the trial court

considerable latitude to assess the courtroom dynamics, to judge the tone and tenor of

the witness' testimony and its impact upon the jury, and to conduct the necessary

balancing." Winegarner, 235 S.W.3d at 791.

        The two witnesses, Christy Kelly and Freddy Gomez, were called by the State

during rebuttal. Christy Kelly testified that she had been a friend of Asberry’s for many

years and that on at least 100 occasions, she had aided Asberry in bringing in male

victims between ages 18-24 that they generally located in or around the TSTC campus

where Asberry was a student and worked. Kelly, Asberry, and the male would drive

around and end up near Groesbeck, where Asberry’s mother resided. During this time,

they would ply the male with alcohol, marijuana, and cocaine. Kelly and Asberry

would stage some car problem that would make it impossible to drive the male home.

Kelly would not participate in anything beyond that; however, she did see Asberry

carry an unconscious male into his home one time. Asberry also bragged to Kelly about

having feces on him and victims throwing up on him during sexual encounters with

them. Some of the males were straight and others were gay. Kelly did not believe that

all of the encounters were consensual. Kelly stated that this occurred virtually every

time they were together during a period of several years. Kelly informed the district

attorney’s office of this in a letter she sent while incarcerated because she felt guilty



Asberry v. State                                                                   Page 9
about her participation with Asberry. She was a month away from her release date, and

therefore did not gain anything by her testimony.

        Freddy Gomez was a new student at TSTC and went to the financial aid office to

ask a person to give him a ride to the bank so he could cash a check. The person he

asked for a ride introduced him to Asberry, who agreed to give him a ride. After going

to the bank, Asberry offered to purchase a bottle of alcohol for them to share. Since

Gomez was a minor at the time, he was unable to purchase alcohol himself. Asberry

also gave Gomez marijuana and cocaine. After driving around, they ended up in

Groesbeck, where Asberry’s vehicle then started leaking water and the engine started

smoking. Asberry and Gomez went to Asberry’s mother’s house to spend the night.

They continued drinking and using drugs. Gomez went to bed in Asberry’s room. He

awakened to find Asberry touching his testicles. Gomez told Asberry to stop. Asberry

then masturbated next to him. Gomez got into a verbal and then physical altercation

with Asberry when he refused to participate with Asberry. Gomez threatened to wake

Asberry’s mother who was asleep in the house, which made Asberry stop.              This

occurred approximately one week before Daugherty’s murder.

        Asberry objected that the evidence was not relevant, that it was not admissible

pursuant to Rule of Evidence 404(b), and that its probative value was outweighed by its

prejudicial effect. The trial court, after hearing the proposed testimony outside of the

presence of the jury, ruled that the evidence would be admissible for proof of identity

and modus operandi. The trial court agreed to give the jury a limiting instruction to

this effect. However, in front of the jury, the trial court gave the limiting instruction

Asberry v. State                                                                  Page 10
after the testimony of Kelly but added proof of motive as a basis for the jury to consider

the evidence that they had just heard. Asberry did not object to this instruction. The

trial court did not give any limiting instruction before the testimony of Kelly or after the

testimony of Gomez. Asberry’s sole complaint on appeal regarding the admission of

the testimony of Kelly and Gomez is based on Texas Rule of Evidence 403.

Probative Value

        Asberry agrees that the testimony of the two witnesses was highly probative for

the State. However, Asberry contends that the State’s need for this evidence was not

great. However, the best evidence that the State had to connect Asberry to the offense

at the end of their case-in-chief was the fact that Asberry had been with Daugherty until

shortly before the murder, the statements of the two seasoned felons, whose credibility

had been strongly attacked, and DNA evidence in the vehicle which was not

particularly strong.    Therefore, the State did have a need for this evidence.

Additionally, the decision by the State to introduce this evidence was made after

Asberry presented his case, and was based on the challenges that Asberry had raised to

the above evidence.

Unfair Prejudice

        An extraneous sexual assault can certainly present the danger of the jury making

a decision on an improper, emotional basis. See Wheeler v. State, 67 S.W.3d 879, 889 (Tex.

Crim. App. 2002); Montgomery v. State, 810 S.W.2d 372, 397 (Tex. Crim. App. 1990) (op.

on reh'g). But the presentation of Kelly and Gomez's testimony did not take such a

great amount of time as to confuse or distract the jury from the main issue of the case.

Asberry v. State                                                                     Page 11
Kelly’s direct examination consumed less than 9 pages and Gomez’s direct examination

consumed less than 8 pages of the reporter’s record of a two and a half-day trial on

guilt/innocence. There is nothing to suggest that the jury was not equipped to evaluate

the probative force of the evidence, and as stated previously, the evidence was not

unduly lengthy and did not present unnecessary cumulative evidence. We find that the

trial court’s admission of the evidence is not outside of the zone of reasonable

disagreement. We overrule Asberry’s issue three.

Texas Rule of Evidence 404

        In issue four, Asberry complains that the trial court erred by allowing the State to

present testimony regarding an attempted destruction of the blue Mazda while it was

still impounded pursuant to Texas Rule of Evidence 404(b). Texas Rule of Evidence 404

provides that "[e]vidence of other crimes, wrongs or acts" than that on trial: "is not

admissible to prove the character of a person in order to show action in conformity

therewith. It may, however, be admissible for other purposes, such as . . . knowledge

[or] identity . . . ." TEX. R. EVID. 404(b). "[C]riminal acts that are designed to reduce the

likelihood of prosecution, conviction, or incarceration for the offense on trial are

admissible under Rule 404(b) as showing 'consciousness of guilt.'" Ransom v. State, 920

S.W.2d 288, 299 (Tex. Crim. App. 1996) (op. on reh'g) (quoting, e.g., Brown v. State, 657

S.W.2d 117, 119 (Tex. Crim. App. [Panel Op.] 1983)); see, e.g., Gonzalez v. State, 117

S.W.3d 831, 842 (Tex. Crim. App. 2003); Pierce v. State, 234 S.W.3d 265, 268 (Tex. App.—

Waco 2007, pet. ref'd).



Asberry v. State                                                                      Page 12
        Asberry’s objection is based on the inability of the State to link the attempted

firebombing of the impounded vehicle to Asberry. The State's theory at trial apparently

was that the relevancy of the evidence of the firebombing of the vehicle where Asberry

attached Daugherty was conditioned upon the introduction of evidence that would

permit a jury to find beyond a reasonable doubt that Asberry firebombed the car in an

effort to destroy the evidence against him, demonstrating a “consciousness of guilt.”

See TEX. R. EVID. 104(b).

        The situation before us is analogous to the one presented in Fuller v. State, 829

S.W.2d 191, 196-99 (Tex. Crim. App. 1992).        In Fuller, a capital murder case, the

defendant objected to the introduction at the punishment phase of testimony describing

the beliefs and activities of the Aryan Brotherhood, a prison gang. Id. at 196. The

defendant urged that the evidence was irrelevant because the State had not shown that

he was a member of the gang or subscribed to any of its beliefs. Id. The trial court

overruled the objection and admitted the testimony, but the State never made the

connection between the Aryan Brotherhood and Fuller. Fuller, 829 S.W.2d at 197-98.

The Court of Criminal Appeals held that without probative evidence that the defendant

was a member of the Aryan Brotherhood or subscribed to its beliefs, the previously

admitted testimony concerning the gang's beliefs and activities in the abstract "was

vulnerable to a motion to strike at the conclusion of the State's case, even if it was not

objectionable on relevancy grounds when offered." Id. at 198. The Court went on to

hold that it is not the trial court's duty to notice whether conditionally admitted

evidence is eventually "connected up"; rather, the objecting party must re-urge his

Asberry v. State                                                                   Page 13
objection after all the proof is in, ask that the offending evidence be stricken, and

request that the jury be instructed to disregard it. Id. at 198-99. Because Asberry did

not do this, the error was not preserved for appeal. See Id. See also Fischer v. State, 268

S.W.3d 552, 557 (Tex. Crim. App. 2007) (motion to strike at the conclusion of evidence

necessary to preserve error in admission of extraneous conduct). We overrule Asberry’s

issue four.

Hearing Outside of Jury’s Presence

        Asberry complains that the trial court erred by refusing to allow Asberry to make

his objections regarding the extraneous firebombing outside of the presence of the jury.

Texas Rule of Evidence 104(c) requires hearings on preliminary matters other than those

regarding the admissibility of a confession to be held outside of the presence of the jury

“when the interests of justice so require...” See TEX. R. EVID. 104(c). It appears from the

record that trial counsel for Asberry made an objection at the bench that was not

recorded by the court reporter, which was apparently overruled. Asberry then objected

when the State asked the same question of the witness and requested to be able to make

his objections to the firebomb evidence on the record outside of the presence of the jury.

        The trial court has the responsibility to determine the threshold issue of whether

an extraneous offense is relevant after an appropriate objection. See Mitchell v. State, 931

S.W.2d 950, 953-54 (Tex. Crim. App. 1996); Mann v. State, 13 S.W.3d 89, 94 (Tex. App.—

Austin 2000), aff'd, 58 S.W.3d 132 (Tex. Crim. App. 2001). As the exclusive judge of the

facts, the jury then determines whether or not the State has proved the extraneous



Asberry v. State                                                                     Page 14
offenses beyond a reasonable doubt, and they should be so instructed when requested.

Mitchell, 931 S.W.2d at 954.

        There is no requirement that this threshold determination be made by the court

following a formal hearing as opposed to some other form of preliminary review.

Mann, 13 S.W.3d at 94.         The trial court may determine whether there is sufficient

evidence through an oral or written proffer of evidence, motions, pretrial hearings, and

the trial, including any bench conferences. See Mann, 13 S.W.3d at 93-95; Welch v. State,

993 S.W.2d 690, 697 (Tex. App.—San Antonio 1999, no pet.).

        Asberry contends that the trial court’s failure to have a hearing outside the jury’s

presence required him to object to the testimony, which would prejudice the jury by

hearing the substance of the evidence prior to the judge’s ruling on its admissibility.

However, in his objection to the trial court on the record, he did not refer in any manner

to a firebomb or what specific testimony he believed to be forthcoming to which he

objected. Additionally, the jury was instructed in the charge that they were only to

consider any extraneous offenses if the State had proved them beyond a reasonable

doubt. On appeal, we generally presume the jury followed the trial court's instructions

as presented in the charge. Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005).

To rebut this presumption, Jones is required to point to evidence the jury failed to do so.

Id. Asberry has made no such showing. We overrule issue five.

Conclusion

        We find that any error regarding the denial of an expert and investigator, the

denial of Asberry’s challenges for cause, and the exclusion of the firebomb evidence

Asberry v. State                                                                     Page 15
was not properly preserved. We find that the trial court did not err in the admission of

the extraneous offense testimony of Kelly and Gomez. We find that the trial court did

not err in denying Asberry’s request for a hearing outside of the presence of the jury.

We affirm the conviction.



                                        TOM GRAY
                                        Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed November 4, 2009
Do not publish
[CRPM]




Asberry v. State                                                                 Page 16
