Opinion
01-21-00566-CR
12-29-2022
DAVID RAY CONLEY, III, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 183rd District Court Harris County, Texas Trial Court Case No. 1477785
Panel consists of Chief Justice Radack and Justices Landau and Hightower.
MEMORANDUM OPINION
SARAH BETH LANDAU JUSTICE
A jury convicted David Ray Conley, III ("Conley"), of the capital murder of his former romantic partner and her husband. The trial court sentenced Conley to confinement for life without the possibility of parole. On appeal, Conley contends:
(1) insufficient evidence supported his conviction; (2) the trial court erred by refusing to allow questioning of the jury about media coverage of this case; (3) the trial court erred by denying his motion to suppress his custodial statements; (4) the trial court erred by omitting a voluntariness instruction from the jury charge; and (5) the trial court erred by admitting certain evidence that was irrelevant, extraneous-offense evidence, unfairly prejudicial, or cumulative. We affirm.
Conley raises these complaints in eight issues, which we have reorganized for the purpose of this opinion.
Background
Conley previously had a romantic relationship with Valerie Yanske ("Yanske"), who later married Dwayne Jackson Sr. ("Jackson"). Yanske and Conley had two older children: Natalie and Nathaniel. Yanske and Jackson had five younger children: Dwayne Jr., Caleb, Jonah, Honesty, and Trinity.
In August 2015, the Harris County Sheriff's Office was dispatched to a welfare check at Yanske's home. Officers conducted multiple welfare checks throughout the day, beginning in the morning, but only from outside of the house. That evening, two sergeants and several deputies went to the home. They learned Conley had an outstanding warrant, so they checked the back door. One of the officers looked inside through a window and saw a boy with a gunshot wound to the head that was pooling blood. The officers attempted to enter the home upon seeing the injured boy.
As the officers attempted entry, Conley shot at them. The officers retreated and waited for backup to arrive. A negotiator arrived and spoke with Conley. Conley told the negotiator that he had shot Yanske and Jackson. Conley also spoke to his daughter Natalie over the phone and told her that he "killed them all."
Conley eventually surrendered. The officers entered the home and found eight people deceased throughout the home. The bodies of Dwayne Jr., Caleb, and Honesty were found in one room. Trinity's body was found handcuffed to a bed in another room. In the main bedroom, the bodies of Yanske and Jackson were found handcuffed. And the bodies of Nathaniel and Jonah were found in the main bathroom. Everyone had been shot.
Conley waived his rights and spoke with investigators. Conley admitted that he shot and killed everyone in the home. Two months later, Conley was indicted for the felony offense of capital murder of Yanske and Jackson. A jury found him guilty, and he was sentenced to life without the possibility of parole.
Sufficiency of the Evidence
In his eighth issue, Conley challenges the legal sufficiency of the evidence to support the jury's verdict. Because this issue would provide Conley the greatest relief if he prevailed, we address it first.
A. Standard of Review
We review the legal sufficiency of the evidence by considering all the evidence in the light most favorable to the jury's verdict to determine whether any "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We consider "all evidence in the record . . . whether it was admissible or inadmissible." Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Graves v. State, 557 S.W.3d 863, 866 (Tex. App.-Houston [14th Dist.] 2018, no pet.); Edwards v. State, 497 S.W.3d 147, 158 n.15 (Tex. App.-Houston [1st Dist.] pet. ref'd).
It is the jury's responsibility "to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Witcher v. State, 638 S.W.3d 707, 709-10 (Tex. Crim. App. 2022). A reviewing court must defer to those determinations and not usurp the factfinder's role by substituting its judgment for that of the jury. Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). Evidence is only legally insufficient if "the record contains either no evidence of an essential element, merely a modicum of evidence of one element, or if it conclusively establishes a reasonable doubt." Id.
A person commits murder if the person "intentionally or knowingly causes the death of an individual." TEX. PENAL CODE § 19.02(b)(1). A person commits capital murder if the person "murders more than one person [] during the same criminal transaction." TEX. PENAL CODE § 19.03(a)(7)(A). The Texas Court of Criminal Appeals has interpreted the phrase "same criminal transaction" to mean "a continuous and uninterrupted chain of conduct occurring over a very short period of time . . . in a rapid sequence of unbroken events." Jackson v. State, 17 S.W.3d 664, 669 (Tex. Crim. App. 2000).
B. Analysis
Conley only disputes whether there is sufficient evidence to prove that the deaths of Jackson and Yanske were part of the same criminal transaction. Conley argues that while there was testimony about the day Yanske's mother became concerned about her daughter's welfare, there was no testimony establishing the last time anyone interacted with Jackson or Yanske.
A jury may draw "reasonable inferences" from the evidence but may not reach conclusions "based on mere speculation." Witcher, 638 S.W.3d at 710. Here, both Jackson and Yanske were killed in like manner, with the same weapon, and were found dead in the same home at the same time. See Jackson, 17 S.W.3d at 669. Yanske's mother and daughter testified that they believed Yanske was in danger on the offense date alleged in the indictment. The jury also heard the statement Conley provided to law enforcement about what happened on the date alleged in the indictment. Conley stated that he entered Yanske's home through a bedroom window. And he described the order of the shootings. He admitted to first shooting Jackson multiple times in Yanske's bedroom. Conley told law enforcement that Jackson was corrupting the children and the children were becoming monsters. Conley explained that he shot his son Nathaniel next, and then the three remaining boys, Jonah, Dwayne Jr., and Caleb. Conley shot Yanske, whom he had handcuffed to her bed, before shooting Honesty and Trinity. Conley described the shootings as occurring between when he entered the home and when law enforcement entered the home on the same day.
The jury also heard from Sergeant E. Ewing, the negotiator who spoke to Conley before his arrest, that Conley had a gun and had killed Yanske and others inside the home. There was also testimony from Dr. Pramod Gumpeni, Assistant Deputy Chief Medical Examiner at the Harris County Institute of Forensic Sciences, that gun shot wounds were the cause of Yanske's and Jackson's deaths.
Based on the record, "the jury could rationally conclude [Conley] engaged in a continuous and uninterrupted process, over a short period of time, of carrying on or carrying out murder of more than one person." Id. at 669 (quoting Rios v. State, 846 S.W.2d 310, 314 (Tex. Crim. App. 1992)). Because the murders occurred within the same house, within a few hours of each other, in a continuous and uninterrupted series of events, they were murders that occurred "during the same criminal transaction." See Harper v. State, 540 S.W.3d 223, 230 (Tex. App.-Houston [1st Dist.] 2018, pet. refd) (citing Coble v. State, 871 S.W.2d 192, 198-99) (Tex. Crim. App. 1993) (murders occurred "during the same criminal transaction" when they "occurred in close proximity to each other, on the same road, within a few hours of each other, in a continuous and uninterrupted series of events")).
Conley's eighth issue is overruled.
Voir Dire
After voir dire, a jury was selected but not sworn in before being sent home for the day. The selected jurors returned the next day. Conley moved for the trial court to individually voir dire the selected jurors on media bias before they were sworn in. The trial court denied the motion. In his first issue, Conley contends that the trial court abused its discretion by denying his request to question the selected jurors about the media coverage of his case before they were sworn. The State responds that Conley had the opportunity to question the entire venire during voir dire and that he had no objection to the selected jurors, so he cannot complain now about any constraints on voir dire.
A. Standard of Review
Both the State and the defense have a right to examine and question potential jurors. Tex. Code Crim. Proc. art. 35.17. A party may challenge a potential juror as having a bias for or against the defendant. Id. art. 35.16(a)(9). The trial court determines the qualifications of and decides challenges to potential jurors. Id. art. 35.21. The trial court may also impose reasonable limitations on the scope and duration of a party's voir dire. Boyd v. State, 811 S.W.2d 105, 116, 118 (Tex. Crim. App. 1991). An appellant may be harmed when they are denied questioning during voir dire that would allow them to intelligently choose jurors to strike. See Sullivan v. State, 678 S.W.2d 162, 166 (Tex. App.-Houston [1st Dist.] 1984, pet. ref'd). If a juror withholds material information during voir dire that the defense, using due diligence, could not uncover, the defense's selection of an impartial jury is hindered. State v. Gutierrez, 541 S.W.3d 91, 100 (Tex. Crim. App. 2017). For reversal, there must have been a violation of the right to an impartial jury and the defendant must have been harmed by that violation. Franklin v. State, 138 S.W.3d 351,357-58 (Tex. Crim. App. 2004); see TEX. R. APP. P. 44.2(A).
B. Analysis
Conley argues that because there was media coverage at the time of the offense back in 2015 and again on the day of jury selection in 2021, he should have been allowed to re-open voir dire to question the selected jurors about the media coverage of his case.
Before the parties questioned the venire, the trial court warned the venire why they could not rely on what was reported in the media. The trial court emphasized to the potential jurors that "[i]t would be ridiculous to have a jury trial if people were going to read the paper and watch the news and form an opinion about whether or not someone was guilty." It then questioned the potential jurors about pretrial publicity and whether they had formed an opinion based on the publicity around the case. The trial court also informed the potential jurors that "once the jury is selected, I'm going to instruct you that you will not be allowed to watch TV or read the newspaper. If there's anything that you see . . . that you think might be related to this case, you're going to be instructed to . . . not watch it, not read it."
During voir dire, Conley asked the venire questions on: the presumption of innocence, their experiences with violent crime, their bias related to child victims of violent crime, their relationship with law enforcement, the reasonable doubt standard, and the right not to testify. After questioning, the parties challenged potential jurors for cause and exercised their peremptory strikes.
Once the jury was selected, the trial court asked the parties whether there were any objections to those selected, and Conley responded that he had none. The selected jurors were sent home before being sworn in.
The next day, before swearing in the selected jurors, the trial court instructed them as follows:
Do not read newspapers, watch television, or listen to radio reports about the trial while you are jurors. Do not do any outside investigation. That is not permitted. Do not visit the location that may be described in the testimony admitted in this trial. Do not look in books or records for additional information.... The evidence comes from the witnesses and the exhibits admitted by me throughout the course of this trial.
For a complaint to be preserved for appeal, a timely request, objection, or motion must be made to the trial court, stating "the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." TEX. R. APP. P. 33.1(a)(1)(A); see Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004).
The trial court covered the topic of media bias with the venire before selecting the jury. Conley did not raise an objection to the seating of the jury when they were selected. See Thrift v. State, 134 S.W.3d 475, 477 (Tex. App.-Waco 2004, pet. denied) (error was not preserved where matter was explored with jury panel before defendant objected). Nor did he request further questioning based on concerns over bias or his inability to question the venire on the topic of bias before the remainder of the venire was dismissed. See Marshall v. State, 312 S.W.3d 741,743 (Tex. App.-Houston [1st Dist.] 2009, pet. ref'd) (to preserve error for review one must object to trial court's voir dire comments). Only the next day, after the remainder of the venire was dismissed, did Conley request additional questioning of the selected jurors on the topic of media bias. See McLean v. State, 312 S.W.3d 912, 915 (Tex. App.- Houston [1st Dist.] 2010, no pet.) ("[T[he record must show that the party raised the issue with the trial court in a timely and specific request, objection, or motion."); see also Ross v. State, 154 S.W.3d 804, 807 (Tex. App.-Houston [14th Dist.] 2004, pet. ref'd) (to preserve error about voir dire questioning, party must make their request at earliest possible opportunity). Because Conley agreed to have the court question potential jurors about media coverage and then waited until after the venire was dismissed to raise his complaint, after all potential jurors could be questioned about media bias, his request was untimely.
Because error was not preserved, we must now consider whether the error was fundamental so that no objection was necessary. See TEX. R. EVID. 103(E). "FUNDAMENTAL ERROR MUST BE SO EGREGIOUS IT PREVENTS A FAIR AND IMPARTIAL TRIAL." Beltran v. State, 99 S.W.3d 807, 811 (Tex. App.-Houston [14th Dist.] 2003, pet. ref'd) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984)).
Conley cites no cases to show that any voir dire error was fundamental. Nor can we find any that support Conley's position that after being selected a jury panel can be subjected to an individual voir dire about media bias.
Conley compares his situation to Franklin v. State, 138 S.W.3d 351 (Tex. Crim. App. 2004), State v. Gutierrez, 541 S.W.3d 91 (Tex. Crim. App. 2017), and Wappler v. State, 183 S.W.3d 765 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd). But these cases are distinguishable because no jurors withheld information about their potential bias that the defense could not reasonably uncover.
In Franklin, a juror revealed during trial that she withheld that she personally knew the complainant in the case. 138 S.W.3d at 355. In Gutierrez, a juror revealed during trial that he went to school with a witness. 541 S.W.3d at 95. Unlike in Franklin and Gutierrez, there is no evidence that any juror withheld material information here.
Moreover, in those cases, it was not enough that the juror withheld information that tended to show bias. The withholding also needed to be information that the defendant, using due diligence, could not uncover. Franklin, 138 S.W.3d at 355-56. Here, Conley did not exercise due diligence. Conley knew that there was media coverage of this incident in 2015 and asked the trial court about the presence of media on the day voir dire occurred. While one defense attorney objected that she was not present when another member of Conley's defense team agreed to have the trial court question the jurors about media coverage, all defense counsel were present at the beginning of voir dire, during voir dire, and during the exercise of challenges for cause and peremptory strikes. Nothing in the record shows that Conley was prevented from asking the jurors additional questions about the media coverage during his own voir dire, after the court completed its questioning.
Nor is there any cognizable issue about the time the defense received to question potential jurors. In Wappler, defense counsel was limited to 15 minutes for voir dire and did not object to the time limit. 183 S.W.3d at 771. When that time expired, defense counsel asked for more time, stating that he had more issues to cover. Id. The trial court denied the request, instructing defense counsel that he "could read the questions he wanted to ask the venire members into the record" after the jury was empaneled. Id. The parties then exercised their challenges for cause, and defense counsel raised that he should be able to read his questions into the record before making peremptory strikes and empaneling the jury. Id. The trial court denied the request, the parties exercised their peremptory strikes, and the jury was seated. Id. at 772.
Wappler dealt with a defendant being denied additional time to continue asking the entire group of potential jurors questions in order to intelligently exercise his peremptory strikes. Unlike Wappler, Conley exercised his challenges for cause and peremptory strikes, and a jury was selected without objection. The only members from the venire present when Conley requested an opportunity to ask about media coverage were the ones selected to be jurors after the exercise of challenges and strikes.
We hold the trial court's denial of Conley's request for the trial court to individually voir dire the jurors after they were selected does not constitute fundamental error.
Conley's first issue is overruled.
Motion to Suppress
Conley moved to suppress statements he made while in custody. The trial court denied his motion. In his second issue, Conley contends that his custodial statements were involuntary and should have been suppressed. The State argues that the statements were voluntary, and, even if they were not, Conley has not shown that he was harmed by the admission of those statements.
A. Standard of Review
We review a trial court's ruling on a motion to suppress under a bifurcated standard. Martinez v. State, 348 S.W.3d 919, 922-23 (Tex. Crim. App. 2011); Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010). We give the trial court almost complete deference in its determination of historical facts that the record supports, especially those that are based on an assessment of credibility and demeanor. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). We afford the same level of deference to the trial court's rulings on application of law to fact questions or mixed questions of law of fact if resolution of those questions depends on an evaluation of credibility and demeanor. Id. However, for mixed questions of law and fact that do not fall within that category, a reviewing court may conduct a de novo review. Id. We will sustain the trial court's ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Valtierra v. State, 310 S.W.3d 442, 447-48 (Tex. Crim. App. 2010).
A defendant's statement may be used only if it was freely and voluntarily made. Tex. Code Crim. Proc. art. 38.21. There are three theories under which a defendant may claim that his statement was involuntary: (1) general involuntariness under article 38.22, section 6; (2) Miranda and article 38.22, sections 2 and 3; or (3) the Due Process Clause. Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim. App. 2008). A claim under article 38.22 may be based on "sweeping inquiries into the state of mind of a criminal defendant who has confessed." Id. at 172. "A confession given under the duress of hallucinations, illness, medications, or even a private threat . . . could be involuntary under [articles 38.21 and 38.22]." Id. Involuntariness because of an issue other than police overreaching, such as disabilities, "are usually not enough, by themselves, to render a statement inadmissible." Id. at 173. We examine the totality of the circumstances of a confession when determining whether it was given voluntarily. Griffin v. State, 765 S.W.2d 422, 429 (Tex. Crim. App. 1989).
Miranda v. Arizona, 384 U.S. 436 (1966).
When a confession is erroneously admitted, the error is subject to a harm analysis. Dowthitt v. State, 931 S.W.2d 244, 263 (Tex. Crim. App. 1996). If the error is constitutional, the court must reverse a conviction "unless [it] determines beyond a reasonable doubt that the error did not contribute to the conviction[.]" TEX. R. APP. P. 44.2(a). Non-constitutional error must be disregarded unless it "affect[ed] the [defendant's] substantial rights." TEX. R. APP. P. 44.2(b). An article 38.22 violation that is not a Miranda violation is "appropriately characterized as 'non-constitutional' error." Nonn v. State, 117 S.W.3d 874, 881 (Tex. Crim. App. 2003).
B. Analysis
Conley was transported from the crime scene to the Harris County Sheriff's Office where he was interviewed by Sergeants S. Miller and G. Clopton around 3:00 a.m. Conley was read his Miranda rights. While reading Conley his rights, Sergeant Clopton asked, "do you understand that?" Conley nodded his head and repeatedly responded, "yes." After reading Conley his rights, Sergeant Clopton asked whether Conley would waive those rights and provide a statement. Conley considered whether he would, stating, "Well, that is a good question," before finally affirming, "I'll go as much as I can." Law enforcement emphasized, "it's up to you. If you're tired, if you don't want to say no more, it's on you man. We're not here to force you to do anything." Conley nodded along saying, "Ok, alright." Conley then provided his statement.
Conley argues that due to his mental disability, sleep deprivation, and emotional state he did not voluntarily waive his Miranda rights. As for Conley's alleged mental disability, there is limited evidence in the record to support this claim other than Conley stating that years ago he heard voices and defense counsel stating that Conley was examined and declared intellectually disabled. Even so, a person's mental deficiency is only a single factor in determining the voluntariness of a confession. Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App. 1995). As for Conley's alleged sleep deprivation and emotional state, there is no evidence that he was anything but lucid and responsive when speaking with Sergeants Clopton and Miller. See Contreras v. State, 312 S.W.3d 566, 575-76 (Tex. Crim. App. 2010) (confession was not involuntary when there was no evidence police purposefully kept defendant awake and defendant had opportunity to sleep); Foster v. State, 101 S.W.3d 490, 497 (Tex. App.-Houston [1st Dist.] 2002, no pet.) (lack of sleep for as long as 16 hours does not alone render confession involuntary); See Brimage v. State, 918 S.W.2d 466, 504 (Tex. Crim. App. 1996) (defendant being upset before confession did not render confession involuntary).
When giving his statement, Conley does mention being "disabled," but he explains that his disability is due to suffering from congestive heart failure and kidney failure.
Based on an examination of the totality of the circumstances of the statements, we conclude that the trial court did not err by finding that Conley's statements were voluntarily made and denying his motion to suppress.
Conley's second issue is overruled.
Charge Error
In his third issue, Conley contends the trial court erred by omitting from the jury charge an instruction on the voluntariness of his oral statements to Sergeant Miller, which were admitted into the evidence over his objection. The State argues that a voluntariness instruction was not required because Conley did not raise the issue before the jury and, even if it was required, the error was harmless.
A. Standard of Review
A trial court must give a jury charge that accurately sets out the "law applicable to the case." TEX. CODE CRIM. PROC. art. 36.14. When a statute requires an instruction under certain circumstances, that instruction is "law applicable to the case." Oursbourn, 259 S.W.3d at 180. A trial court must give an instruction for the law applicable to the case even if it was not specifically requested. Id. at 179-80.
A "general" voluntariness instruction under article 38.22, section 6 becomes the "law applicable to the case" when a "question is raised as to the voluntariness of a statement of an accused." TEX. CODE CRIM. PROC. art. 38.22, § 6. There is a sequence of events that must occur to raise the question of voluntariness. Oursbourn, 259 S.W.3d at 175. They are:
(1) a party notifies the trial judge that there is an issue about the voluntariness of the confession (or the trial judge raises the issue on [their] own);
(2) the trial judge holds a hearing outside the presence of the jury; (3) the trial judge decides whether the confession was voluntary;
(4) if the trial judge decides the confession was voluntary, it will be admitted, and a party may offer evidence before the jury suggesting that the confession was not in fact voluntary; and,
(5) if such evidence is offered before the jury, the trial judge shall give the jury a voluntariness instruction.Id. "It is only after the trial judge is notified of the voluntariness issue (or raises it on [their] own) that a chain of other requirements comes into play, culminating in the defendant's right to a jury instruction." Id.; see also Vasquez v. State, 225 S.W.3d 541, 545 (Tex. Crim. App. 2007) (voluntariness instruction is required if, based on evidence presented at trial, reasonable jury could conclude that statement was not voluntary). The trial court need not give the instruction if there is no evidence before the jury "suggesting that the confession was not in fact voluntary." Oursbourn, 259 S.W.3d at 175. But an article 38.22, section 6 instruction becomes "law applicable to the case" if the parties litigate a section 6 voluntariness issue before the trial court. Ramjattansingh v. State, 587 S.W.3d 141, 159 (Tex. App.-Houston [1st Dist.] 2019, no pet.)
When a trial court commits charge error but there is no objection, a reviewing court may only reverse where the error causes "egregious harm." Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). "Jury charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory." Stuhler v. State, 218 S.W.3d. 706, 719 (Tex. Crim. App. 2007). When reviewing for charge error, we review the entire jury charge, the evidence, the arguments of counsel, and any other relevant information in the record. Gelinas v. State, 398 S.W.3d 703, 706 (Tex. Crim. App. 2013); Paz v. State, 548 S.W.3d 778, 793 (Tex. App.-Houston [1st Dist.] 2018, pet. ref'd).
B. Analysis
Conley concedes that he did not object to the omission of a voluntariness instruction from the jury charge. But he argues that the instruction should have been given by the Court because the issue was raised in his motion to suppress and argued before the trial court. No one disputes that Oursbourn's first three steps were followed. See 259 S.W.3d at 175. It is also established that Conley's confession was admitted at trial and that the trial court did not include a voluntariness instruction in the jury charge. Thus, this issue turns on whether the jury heard evidence about the voluntariness of Conley's statements. See id.
Because Conley raised and litigated the voluntariness of his oral statements to Sergeant Miller, article 38.22, section 6 became law applicable to the case, and the trial court had a duty to prepare a jury charge that accurately set out the law, including the voluntariness issue. See Ramjattansingh, 587 S.W.3d at 156 (citing Oursbourn, 259 S.W.3d at 176, 179). Because the jury charge included no voluntariness instruction, the trial court erred. Oursbourn, 259 S.W.3d at 176, 179.
Conley did not object to the trial court's failure to include a voluntariness instruction, so the "egregious harm" standard applies. Ngo, 175 S.W.3d at 743-44. "[W]e determine whether appellant suffered egregious harm by analyzing the impact of the omission of the voluntariness instruction, not by analyzing the impact of the admission of the . . . statement." Oursbourn v. State, 288 S.W.3d 65, 69 (Tex. App.-Houston [1st Dist.] 2009, no pet.).
Upon careful review, neither the record nor Conley's arguments persuade us that any harm was realized here, let alone egregious harm that affected the core of the case, deprived Conley of a valuable right, or vitally affected a defensive theory.
First, considering the jury charge as a whole, we note the absence of a voluntariness instruction may have led the jury to believe that the voluntariness of the confession was not before them. At a minimum, the lack of an instruction made it less likely that the jury even considered the voluntariness of the confession.
Second, the arguments of the parties. The State argued in closing that nothing changes the fact that Conley killed Jackson and Yanske. It referred to Conley as a mass murderer, emphasizing Conley's statement confessing to Jackson's and Yanske's murders and describing what Conley did and why he did it. It agreed that the jury was not there to decide Conley's responsibility for the children's deaths, but that the jurors may consider those deaths when considering Conley's motive, intent, or plan. It then explained its theory of Conley's plan and how it all took place in one day as part of one continuous episode.
The defense argued that the only question before the jury was whether Conley committed the capital murders of Jackson and Yanske. The defense reminded the jury that the State did not charge Conley with the children's deaths and that the jury was not to base its verdict on whether Conley was guilty of only murder. The defense emphasized that the State did not satisfy every element of capital murder. And to find Conley guilty of capital murder, the jury must find that Conley killed Jackson and Yanske in the same transaction. Finally, the defense reminded the jurors that they should each make their own decision and not be easily swayed in reaching it.
The State relied heavily on Conley's statement to law enforcement to establish its theory and the sequence of events that occurred in Yanske's home. The only element Conley disputed was whether the murders were within the same criminal transaction.
Finally, as for the state of the evidence against Conley, it was strong. See Ramjattansingh, 587 S.W.3d at 157 (considering entirety of the evidence at trial and its support for jury's verdict). As discussed, Conley was the only one whom law enforcement found alive in Yankse's home. All decedents were also found within Yanske's home. Law enforcement testified about when they began conducting welfare checks on Yanske's home and when Conley ultimately surrendered, thereby narrowing the location to Yanske's home and the timeline of events to within a single day. See Coble, 871 S.W.2d at 198-99 (murders occurred "during the same criminal transaction" when they "occurred in close proximity to each other, on the same road, within a few hours of each other, in a continuous and uninterrupted series of events"). This also limits the potential culprits.
Conley's statement to Sergeant Miller was also not the only time he discussed Jackson's and Yanske's murders. There was testimony from Conley's daughter, Natalie, that she became concerned when she saw Yanske's Facebook status updates on the morning of the incident. Later that night, when Natalie spoke to Conley over the phone, she asked him if he had killed her mother, and he told her that he had "killed them all."
There was testimony from the negotiator, Sergeant Edwin Ewing, that Conley had a gun and had killed Yanske and others inside the home. The evidence established that all the decedents were shot. The nature of the injuries of the decedents, provided significant proof of intent. See Herrera v. State, 526 S.W.3d 800, 809 (Tex. App.-Houston [1st Dist.] 2017, pet. ref'd) (jury can infer intent from extent of injuries and relative size and strength of parties). Dr. Pramod Gumpeni testified that the gunshot wounds caused Yanske's and Jackson's deaths.
Considering the charge as a whole, the parties' arguments, and the significant evidence showing that Conley committed the offense, we cannot say Conley suffered egregious harm because of the omission of the voluntariness instruction from the jury charge. See Johnson v. State, 981 S.W.2d 759, 763 (Tex. App.-Houston [1st Dist.] 1998, pet. ref'd) (noting that "state of the evidence, including the contested issues and weight of probative evidence, is the most important factor in the analysis"). Conley's third issue is overruled.
Evidence of Extraneous Offenses
The jury received evidence of the six children's deaths in photos and testimony from witnesses, including Conley. In his fourth issue, Conley contends that evidence of the children's deaths should not have been admitted because it was irrelevant, extraneous offense evidence, that was unfairly prejudicial. In his fifth and sixth issues, Conley contends that the evidence of the children's deaths was unfairly prejudicial under Rule 403. The State argues that the evidence was relevant because it provided context and showed Conley's motive, intent, and plan. Because the evidence at issue is the same, testimony and images of the children, we address these issues together where appropriate.
A. Standard of Review
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Henley v. Statet493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016). A trial court abuses its discretion if the decision "falls outside the zone of reasonable disagreement." Id. at 83. Trial courts are given "wide latitude" to make evidentiary rulings. Fowler v. State, 544 S.W.3d 844, 848 (Tex. Crim. App. 2018). We uphold a trial court's decision to admit evidence if it is not outside the zone of reasonable disagreement. Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009).
B. Analysis 1. Relevance under Rules 401, 402, and 404(b)
To be admissible, evidence must be relevant. Tex. R. Evid. 402. Evidence is relevant if it tends to make a fact "of consequence in determining the action" "more or less probable than it would be without the evidence." Tex. R. Evid. 401. "There must be a direct or logical connection between the evidence and the fact the proponent is trying to prove." Inthalangsy v. State, 634 S.W.3d 749, 754 (Tex. Crim. App. 2021) (quotations omitted).
Evidence of a crime, wrong, or act other than the offense charged is not admissible to prove that the defendant acted in conformity with his character but may be admissible for other purposes. Tex. R. Evid. 404(b); see also Robles v. State, 85 S.W.3d 211, 213 (Tex. Crim. App. 2002) (evidence of extraneous offenses is normally inadmissible). These purposes include proving intent, motive, and plan as well as "illustrating other aspects of an 'indivisible criminal transaction,' also known as same-transaction contextual evidence." Inthalangsy, 634 S.W.3d at 756; see TEX. R. EVID. 404(B)(2). "SAME-TRANSACTION CONTEXTUAL EVIDENCE 'ILLUMINATE[S] THE NATURE OF THE CRIME ALLEGED." Id. (quoting Camacho v. State, 846 S.W.2d 524, 532 (Tex. Crim. App. 1993)). The jury is entitled to know the relevant surrounding facts and circumstances of the charged offense. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). But same-transaction contextual evidence must be "'necessary to the jury's understanding of the offense' such that the charged offense would make little sense without the same-transaction evidence." Inthalangsy, 634 S.W.3d at 756 (quoting Pondexter v. State, 942 S.W.2d 577, 584 (Tex. Crim. App. 1996)).
"[A] trial court cannot admit extraneous-offense evidence unless a jury could find beyond a reasonable doubt that the defendant committed the extraneous offense." Fischer v. State, 268 S.W.3d 552, 558 (Tex. Crim. App. 2008) "Whether extraneous offense evidence has relevance apart from character conformity, as required by Rule 404(b), is a question for the trial court." Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).
Conley argues that the evidence of the six children's deaths was irrelevant because he was charged only in connection with the deaths of Yanske and Jackson, not the children. The State responds that the evidence of the children's deaths was admissible as same-transaction contextual evidence. In support, the State points to Natalie's testimony that she was unable to reach her siblings and that Conley lied to her about having seen them. The State also highlights the testimony of law enforcement who saw a child with a gunshot wound, which caused them to enter the home and discover Yanske's and Jackson's bodies. The State also argues that the murders of Jackson and Yanske were the beginning and end of Conley's offense and that the children's deaths were what happened in between, so to exclude them would create a significant gap in the timeline of events.
This case is like Devoe. There, the defendant was charged with the capital murder of two girls. Devoe, 354 S.W.3d at 461, 463. The State introduced evidence of other crimes that depicted the defendant's three-day crime spree spread across multiple towns in multiple states. Id. at 462-66. These events occurred before and after the shooting deaths of the girls. Id. The trial court found that leaving out these facts created "a gaping hole" in the State's case. Id. at 470. Because the offenses comprised one continuous course of conduct, the trial court's conclusion that the evidence of the extraneous offenses was admissible was within the zone of reasonable disagreement. Id.; see also Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (evidence of three other killings that occurred during or right after the murder of main complainant was same-transaction contextual evidence).
As in Devoe, excluding evidence of the children's deaths would create a "gaping hole" in State's case. Applying the abuse-of-discretion standard of review, we hold the trial court's decision conclusion that the evidence of the children's deaths provided necessary context to the capital murder, and that Conley was responsible for the children's deaths beyond a reasonable doubt, was within the zone of reasonable disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). The evidence of the children's deaths was part of the crime scene and of the State's theory as to why Jackson and Yanske were murdered. Conley told law enforcement that Jackson was corrupting the children who were becoming monsters. Moreover, a jury would naturally wonder what change in circumstances caused law enforcement to enter the home instead of simply knocking as they had done multiple times that day. Accordingly, Conley's issues based on Rules 401, 402, and 404(b) are overruled.
2. Unfair prejudice under Rule 403
Even when evidence is relevant, a court may exclude it "if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." Tex. R. Evid. 403. The phrase "probative value" means more than mere relevance. "Probative value" refers to "the inherent probative force of an item of evidence-that is, how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation-coupled with the proponent's need for that item of evidence." Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006). The term "unfair prejudice" is the "tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Id. "The fact that a piece of evidence portrays the defendant in a negative light is not sufficient to justify its exclusion on Rule 403 grounds." Inthalangsy, 634 S.W.3d at 758. Almost all evidence offered against the defendant will be prejudicial; rule 403 only prevents evidence that is unfairly prejudicial. Id. The probative value of a photograph depicting a gruesome scene is not unfairly prejudicial if it "simply reflects the gruesomeness of the crime." See Ripkowski v. State, 61 S.W.3d 378, 392 (Tex. Crim. App. 2001). It is the burden of the opponent of the evidence to prove that one of the enumerated "dangers" substantially outweighs the probative value. Montgomery, 810 S.W.2d at 377.
Conley points out that the evidence of the children's deaths was admitted as photos, testimony, and his own statement. For his Rule 403 challenge on appeal, Conley specifically argues that the photos and testimony about the deceased children were unfairly prejudicial and confused the issues.
Before excluding evidence, a court must conduct a Rule 403 balancing test referencing these 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 the evidence. Montgomery, 810 S.W.2d at 389-90.
As for the probative value of the photos and testimony, the evidence of the children's deaths throughout the home where Yanske and Jackson were found dead supports the inference that Conley was responsible for the deaths of the two adults. It also furthered the State's theory as to Conley's motive for killing Jackson. Conley believed that the children were becoming "monsters" because of Jackson's influence. The children's health and safety was a major factor in law enforcement's decision to enter the home after Yanske's mother called. This factor weighs heavily in favor of admission. See Inthalangsy, 634 S.W.3d at 758.
As for the unfair prejudice, there is a slight risk that the jury would be confused that Conley was on trial for murdering the six children as well as Yanske and Jackson, and that risk may have been elevated because the State emphasized the children's deaths in its closing argument. But the jury also heard Conley's statement admitting that he killed Yanske and Jackson. The jurors heard how Conley planned this action by buying a gun from a private seller, bringing multiple pairs of handcuffs, bringing multiple magazines for the firearm he purchased, parking his car away from Yanske's home, and entering through a window in the home because the doors were locked. They also heard testimony from the negotiator to whom Conley admitted killing Yanske and the others inside the home. Considering all the evidence presented, it is unlikely that the evidence of the children's deaths led to a different verdict. This factor favors admission.
As for the trial time consumed by the evidence of extraneous offenses, the State did not spend excessive time on evidence related to the children's deaths. The State called 14 witnesses over two days. Testimony about the children was limited to what law enforcement observed upon arriving at the crime scene, the explanation of why Yanske's mother contacted law enforcement in the first place, and what Conley told his daughter Natalie. Over 300 exhibits were admitted into evidence, and only a few were photos depicting the bodies of the children where their faces were obscured or most of their bodies were not included in the images. In contrast, the State's numerous photos of Yanske's and Jackson's bodies included their faces and close-up images of their injuries. This factor favors admission.
Finally, as for the State's need for this evidence, it was moderate. Conley confessed to killing Yanske and Jackson in his statement to police, there was testimony from the negotiator that Conley told him that he killed Yanske, Natalie testified that Conley told her he had "killed them all" when asked whether he had killed Yanske, and Conley was found with the murder weapon. But the evidence of a child's injury was what led law enforcement to enter the home to discover Jackson's and Yanske's bodies. This factor favors the admission of the testimony about the children's deaths, but not the images of their bodies.
Because we review the trial court's decision for an abuse of discretion, and considering the Rule 403 balancing test along with the fact that the extraneous offense showed the context in which the charged offense occurred, we find that the trial court did not err in admitting the evidence of the children's deaths. See Inthalangsy, 634 S.W.3d at 759-60. Conley's issues challenging the evidence of extraneous offenses as being unfairly prejudicial under Rule 403 is overruled.
Waiver
In Conley's sixth and seventh issues, he contends that the trial court erred by admitting cumulative evidence. In his sixth issue, Conley specifically argues that exhibits 51, 53, 56, 67, 74, 76, 113, 115, 120, 121, and 126 were cumulative. And in his seventh issue, Conley argues that exhibits 19, 20, 28, 31, 32, 46, 73, 84, 93, 102, 132, 138, 139, and 151 were cumulative. The State argues that Conley failed to preserve error. We agree.
At trial, Conley did not specify which pieces of evidence were cumulative, noting only that some of the offered exhibits were cumulative. An issue raised on appeal generally must be preserved by specific objection at trial. Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009). A party must make a specific objection that lets the trial court "know what he wants, why he thinks himself entitled to it, and do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it." Id. at 312-13. A general objection to evidence that consists of both admissible and inadmissible material does not preserve error. Schmidt v. State, 612 S.W.3d 359, 368 (Tex. Crim. App. 2019). To preserve error for appellate review, an objection must be specific enough to make the trial court aware of the complaint. Tex. R. App. 33.1(a)(1)(A).
Because Conley did not specify at trial which exhibits were the "some" that he considered cumulative, the issue is not preserved for our review. See TEX. R. APP. 33.1. CONLEY'S SIXTH AND SEVENTH ISSUES RELATED TO CUMULATIVE EVIDENCE ARE OVERRULED.
Conclusion
We affirm the trial court's judgment.