Opinion
NO. 01-18-00440-CR
08-01-2019
JOSHUA BEARD, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from Criminal District Court No. 2 Tarrant County, Texas
Trial Court Case No. 1376884D
MEMORANDUM OPINION
A jury found appellant Joshua Beard guilty of felony murder (Count 1) and tampering with evidence, namely, a human corpse (Count 4). Following the punishment phase, the jury assessed his sentence at imprisonment for life and a $10,000 fine for Count 1, and twenty years' confinement and a $10,000 fine for Count 4, and the trial court ordered that appellant's sentences run concurrently.
In seven points of error, appellant contends that (1) the evidence is legally insufficient to support his conviction for the offense of felony murder; (2) the evidence is insufficient to prove that venue was proper in Tarrant County with regard to the tampering with evidence charge; (3) the State failed to "connect up" State's Exhibit 189 that was used to create a DNA profile; (4) the State failed to give the required notice of its intent to use extraneous offense evidence; (5) the State failed to prove beyond a reasonable doubt that appellant committed the extraneous offenses; (6) the trial court abused its discretion in admitting the evidence under Texas Rule of Evidence 403; and (7) the trial court erred in cumulating his two fines. We affirm as modified.
Background
In 2011, Alexis Botello and Christopher Moore began dating in high school. On December 31, 2012, T.M. was born to Botello and Moore.
In early 2014, Botello began dating appellant. Later that year, she and T.M. moved into appellant's house on Polo Club Court in Arlington, Texas.
On July 4, 2014, at approximately 3:00 a.m., appellant visited his former girlfriend, Rachel Jameson. Appellant told Rachel that he "hated the baby" and that he "could not handle it anymore."
Later that morning, appellant went to see his mother, Samantha Norman, at her place of work. Appellant, who was crying, told Norman, "I don't know what to do." When Norman asked him what was wrong, appellant replied several times, "I can't tell you."
Appellant and Botello later met Norman at a park. T.M. was not with them. When Norman asked where T.M. was, appellant replied, "at the house." Norman noticed that appellant was still upset. When she asked him again what was wrong, he repeated that he could not tell her. Norman, who was troubled at the thought of the eighteen-month old child being left alone at home, called 911 to request a welfare check on appellant, Botello, and T.M. When the police went to appellant's house, nobody was home.
On July 5, 2014, Norman called the police again to request another welfare check. Officer Muslimovic and Officer Fite of the Arlington Police Department arrived at the house as appellant was leaving. Botello was still home but T.M. was not. Appellant volunteered to the officers that he had marijuana. Based on that information, and the fact that he had outstanding misdemeanor warrants, the police arrested him and placed him in the back of a police car. Officer Fite remained in the car with appellant while Officer Muslimovic spoke with Botello. When appellant saw Officer Muslimovic interviewing Botello, appellant's demeanor noticeably changed and he became distressed and agitated.
On July 6, 2014, appellant called his aunt, Trina McKenzie, from jail. When she asked him where T.M. was, appellant told her that T.M. was at Botello's mother's house. McKenzie called Botello's mother, Angela, who told McKenzie that T.M. was not with her. After speaking with appellant, McKenzie went to Studio 6 Motel where she found Botello, who appeared to be on the phone, sitting in her car outside of the motel's front office. After getting no answer as to T.M.'s whereabouts, McKenzie called the police.
On the check-in form for the motel room, appellant listed an address in Florida as his home address, even though he had not lived in Florida since 2010. He paid $367.27 in cash for the motel room.
Later that day, detectives interviewed Botello. After the interview, Botello and the detectives went to a remote area in Springtown, in Parker County. There, the detectives discovered a grave under a small bridge and two shovels hidden in some nearby trees. Because it was getting dark, the area was secured until early the next morning.
On July 7, 2014, Detective Lopez interviewed appellant. Appellant said that he last saw T.M. alive in her room on July 4, 2014. Appellant told Detective Lopez that he did not do anything to her and that he did not know where she was.
That same morning, Detective Lopez, Dr. Dana Austin from the medical examiner's office, and crime scene investigators met at the grave in Parker County and exhumed a body wrapped in a moving blanket. Detective Lopez conducted a second interview of Botello. Police obtained a surveillance video from a Walmart in Weatherford and a store receipt showing that appellant and Botello had purchased two shovels and two pairs of gloves on July 4, 2014. The video showed appellant using the store's plastic bag to handle the shovels as he left.
Detectives interviewed appellant a second time. Appellant again denied knowing where T.M. was. The detectives then informed appellant that Botello said that he had killed T.M., and they showed him a photo of Botello with officers near the gravesite and a photo of T.M. at the medical examiner's office. When they asked him whether he thought that he and Botello should be punished, he replied, "yes, I do." Appellant told detectives, "I hope [T.M.'s murder] hits [Chris, T.M.'s father] so fucking hard," and "I hope [T.M.'s murder] haunts [T.M.'s father]'s ass so fucking hard."
Darrell McKenzie, appellant's uncle, testified that appellant, Botello, and T.M. came to his home several times before T.M.'s death. On the last occasion, appellant became frustrated when T.M. started crying, grabbed her to leave, and stormed out. On the way out, McKenzie heard appellant say, "[L]et's go. I'm taking her home to whoop her ass."
Vy Phan, a detective with the Crimes Against Children Unit of the Arlington Police Department, analyzed several text messages that were retrieved from appellant's cell phone and admitted at trial. In two of the messages, Botello is told "you need to train T.M." and "You have a week. So shape her up . . . ."
On November 13, 2014, Detective Lopez submitted a Disney blanket, a pair of boxer shorts, two swabs, two pairs of gloves, two pillows, a black pillowcase, and a floral pillowcase obtained in the course of the investigation to the Department of Public Safety crime lab for testing. Kathryn Patterson, a DPS serologist, tested the items for the presence of bodily fluid. Patterson testified that three stains on the Disney blanket tested presumptively positive for blood and the black pillowcase also tested positive for blood.
Nicole Newquist, a crime scene investigator, testified that she and her team removed T.M.'s body from the grave in Parker County. The investigation was assigned case number 1435860. T.M.'s body, which was wrapped in a blue blanket, was placed directly into a body bag and transported to the medical examiner's office. Charles Clow, a trace evidence collector, testified that the medical examiner's office received a body bag containing the body of a female Caucasian child wrapped in a blue blanket.
Kristin Cossota, a DNA analyst with the DPS crime laboratory, tested several items of evidence to develop a DNA profile and compare it to the known DNA profiles of appellant, Botello, and T.M. Cossota testified that one of the items that she received from the Tarrant County Medical Examiner's office was a known sample from T.M. in the form of a blood card (State's Exhibit 189), from which she developed a DNA profile for T.M. After defense counsel asserted that the chain of custody of the blood sample had not been established, the trial court allowed the State to offer it conditionally, without objection.
Cossota testified that she compared the DNA profiles of the three blood stains found on the Disney blanket with the DNA profiles of appellant, Botello, and T.M. With regard to the DNA profile from the first blood stain, it was "463 octillion times more likely [that] the DNA came from T.M. than if the DNA came from an unrelated unknown individual." Cossota testified that T.M. could not be eliminated as a contributor to the DNA of the first presumptive blood stain, but that appellant and Botello were excluded as contributors. With regard to the DNA profile from the second stain, it was "484 octillion times more likely that the DNA came from T.M. than the DNA came from an unrelated unknown individual." T.M. could not be excluded as a possible contributor to the profile, but appellant and Botello were both excluded as contributors. With regard to the DNA profile from the third stain, it was "277 octillion times more likely that the DNA came from T.M. than the DNA came from an unrelated unknown individual." T.M. could not be excluded as a possible contributor to the profile, but appellant and Botello were both excluded as contributors. Costello also compared the DNA profile from two stains on the black pillowcase found at appellant's home. The DNA profile of the first stain was "614 octillion times more likely that the DNA came from T.M. than if the DNA came from an unrelated unknown individual." T.M. could not be excluded as a contributor to the profile, but appellant and Botello were excluded as possible contributors. The DNA profile of the second stain was "2.8 octillion times more likely to have come from T.M. than if the DNA came from an unrelated unknown individual." T.M. could not be excluded as a contributor to the profile, but appellant and Botello were excluded as possible contributors.
Dr. Susan Roe, a deputy medical examiner with the Tarrant County Medical Examiner's Office, performed the autopsy on T.M. Her autopsy report, which was admitted at trial, identified evidence and specimens that were collected from T.M., including three blood cards. She testified that the internal injuries to T.M.'s chest were extensive. Her left chest cavity and left lung were collapsed, and there was an acute rib fracture and twenty-one other right rib fractures that showed some evidence of healing. The autopsy also revealed two lacerations to T.M.'s liver, one of which was significant in size, lacerations to her spleen and small bowel mesentery, and a shattered right adrenal gland. Dr. Roe testified that the autopsy also revealed some healing changes to T.M.'s pelvic and rectal area. She stated that, based on T.M.'s extensive injuries, T.M. was either struck with an object, or her body struck an object, at least a dozen times. She further stated that the injuries to T.M. which could be considered fatal, either alone or in combination, were the injuries to her chest, liver, adrenal gland, and small bowel mesentery. She testified that the injuries were consistent with being stomped, and that the cause of death was blunt force trauma. Dr. Roe ruled T.M.'s death a homicide.
Dr. Dana Austin, a forensic anthropologist with the Tarrant County Medical Examiner's Office, examined T.M.'s body. Her examination revealed twenty-two rib fractures: one acute fracture and twenty-one healing fractures. Dr. Austin testified that T.M.'s injuries were caused by blunt force trauma rather than sharp force trauma. To determine how many incidents of blunt force trauma had occurred, Dr. Austin looked for fresh, or acute, trauma, that occurred around the time of death as well as healing trauma. She testified that she considered all of the rib fractures, both acute and healing, in her analysis to determine what kind of trauma was applied to T.M.'s body.
After both sides rested, the jury found appellant guilty of felony murder and tampering with evidence. At the conclusion of the punishment hearing, the jury assessed appellant's punishment at confinement for life and a $10,000 fine for the offense of felony murder, and twenty years' confinement and a $10,000 fine for the offense of tampering with evidence. The trial court ordered that appellant's sentences run concurrently. This appeal followed.
Appellant was indicted for capital murder and the lesser charges of felony murder, injury to a child, and tampering with evidence.
Sufficiency of the Evidence
In his first point of error, appellant contends that the evidence is legally insufficient to support his conviction for murder.
A. Standard of Review
We review appellant's challenge to the sufficiency of the evidence under the standard enunciated in Jackson v. Virginia, 443 U.S. 307 (1979). See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Under that standard, we examine all of the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2789. The jury is the sole judge of the credibility of witnesses and the weight to give testimony, and our role on appeal is simply to ensure that the evidence reasonably supports the jury's verdict. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The jury may reasonably infer facts from the evidence presented, credit the witnesses it chooses, disbelieve any or all of the evidence or testimony proffered, and weigh the evidence as it sees fit. See Canfield v. State, 429 S.W.3d 54, 65 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd). Inconsistencies in the evidence are resolved in favor of the verdict. See Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). In circumstantial evidence cases, it is not necessary that every fact and circumstance "point directly and independently to guilt if the cumulative force of all incriminating circumstances is sufficient to support the conviction." Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim. App. 2018). On appeal, the same standard of review is used for both circumstantial and direct evidence cases. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
B. Applicable Law
A defendant commits felony murder if he "commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual." TEX. PENAL CODE § 19.02(b)(3). The underlying felony offense in this case is injury to a child. See id. § 22.04; Contreras v. State, 312 S.W.3d 566, 584 (Tex. Crim. App. 2010) ("The offense of 'injury to a child' can qualify as an underlying felony in a felony murder prosecution.").
C. Analysis
Appellant contends that the evidence is insufficient to support his conviction because there was no physical evidence connecting him to T.M.'s injuries, and the circumstantial evidence was too weak to allow a rational juror to find beyond a reasonable doubt that he committed the offense of felony murder.
The evidence at trial established that appellant, Botello, and T.M. lived together in a house on Polo Club Court, in Arlington. On July 4, 2014, at around 3:00 a.m., appellant went to his ex-girlfriend's house and told her that "he hated [T.M.]" and that " he couldn't handle it anymore." See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) ("Motive is a significant circumstance indicating guilt."); Harris v. State, 727 S.W.2d 537, 542 (Tex. Crim. App. 1987) (noting that while motive is not element of murder, it is circumstance indicative of guilt).
Later that morning, appellant showed up at his mother's workplace, crying. When Norman asked appellant what was wrong, he repeatedly said, "I can't tell you" and told Norman that he did not know what to do. Norman later met appellant and Botello in a park, but T.M. was not with them. When Norman asked appellant, who was still upset, where T.M. was, appellant replied "at the house." See Brown v. State, 657 S.W.2d 117, 119 (Tex. Crim. App. 1983) (noting that conduct of defendant subsequent to alleged commission of crime that indicates consciousness of guilt is circumstance tending to prove that defendant committed act with which he is charged); Torres v. State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990, no writ) ("A 'consciousness of guilt' is perhaps one of the strongest kinds of evidence of guilt."). Norman called 911 to request that police conduct a welfare check on appellant, Botello, and T.M. When police arrived, nobody was home.
The night of July 4, 2014, appellant and Botello purchased shovels and gloves and paid for them with cash at a Walmart in Parker County. The store surveillance video shows that appellant covered his hand with a bag before picking up the shovel on his way out of the store. See Guevara, 152 S.W.3d at 50 (noting actions taken to conceal incriminating evidence is circumstantial evidence of guilt).
On July 5, appellant rented a motel room at Studio 6. On the check-in form, he listed an address in Florida as his home address even though he had not lived in Florida since 2010, and he paid cash $367.27 in cash for the motel room. See id.
When police conducted another welfare check on July 5, appellant and Botello were home but T.M. was not. Based on appellant's admission to police that he had marijuana in his possession, and several outstanding misdemeanor warrants, police arrested him and placed him in the back of a police car. When appellant saw an officer speaking with Botello, he became noticeably agitated.
Appellant called McKenzie from jail. When she asked him where T.M. was, appellant told her that T.M. was at Botello's mother's house. McKenzie called Botello's mother, Angela, but was told that T.M. was not with her. When McKenzie demanded that appellant tell her where T.M. was, appellant repeatedly denied any knowledge of her whereabouts. See Gear v. State, 340 S.W.3d 743, 747 (Tex. Crim. App. 2011) (stating fact finder can consider defendant's untruthful statements as affirmative evidence of guilt); King, 29 S.W.3d at 565 (noting making false statements reflects consciousness of guilt and attempt to cover up crime).
When appellant called his mother from jail, Norman told appellant that Botello blamed him for T.M.'s murder. When Norman tried to comfort appellant, appellant told her that he did not think everything was going to be alright. See Villareal Lopez v. State, 267 S.W.3d 85, 96 (Tex. App.—Corpus Christi-Edinburg 2008, no pet.) (concluding suspect's demeanor evidenced consciousness of guilt, supporting inference of guilt); Torres, 794 S.W.2d at 598.
When police interviewed appellant, he told the detectives he did not know where T.M. was, and that the last time he saw her she was in her room. See Gear, 340 S.w.3d at 747; King, 29 S.W.3d at 565. During his second interview with police, he continued denying having any knowledge of T.M.'s whereabouts. See Gear, 340 S.w.3d at 747; King, 29 S.w.3d at 565. When the detectives showed appellant a picture of Botello and the police at T.M.'s grave, they asked him whether he thought he and Botello should be punished, to which he replied, "yes, I do." See Villareal Lopez, 267 S.W.3d at 96; Torres, 794 S.W.2d at 598. Appellant told detectives, "I hope [T.M.'s murder] hits [Chris, T.M.'s father] so fucking hard," and "I hope [T.M.'s murder] haunts [T.M.'s father]'s ass so fucking hard." See Guevara, 152 S.W.3d at 50; Harris, 727 S.W.2d at 542.
The jury also heard evidence that the Disney blanket that police collected from appellant's home had three presumptive blood stains on it. The results of DNA analysis revealed that the DNA profiles from the stains were, respectively, 463, 484, and 277 octillion times more likely to have come from T.M. than if they came from an unrelated unknown individual, T.M. could not be eliminated as a contributor to the DNA profiles from the three stains, and appellant and Botello were excluded as contributors to the DNA of the three presumptive blood stains on the blanket.
The autopsy of T.M. showed that she died from injuries suffered as a result of blunt force trauma. T.M. had one acute rib fracture and twenty-one healing fractures. Dr. Roe characterized T.M.'s healing and acute injuries as consistent with those of someone who had been stomped.
Based on this evidence, the jury could have reasonably inferred that appellant stomped T.M.'s chest and abdomen in the house on Polo Club Court more than one time, and that the last occasion occurred in the early morning hours of July 4, 2014. The jury could also have reasonably inferred that T.M. died as a result of the injuries she sustained from appellant stomping her and that, after she died, appellant and Botello transported her to Parker County where they buried her. See Canfield, 429 S.W.3d at 65.
Appellant argues that, based on this evidence, it is equally plausible that Botello killed T.M. and that he only helped her dispose of the body. However, even if true, we presume that the factfinder resolved the conflicts in favor of the prosecution and therefore defer to that determination. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Moreover, the State need not disprove all reasonable alternative hypotheses that are inconsistent with the defendant's guilt in order for the evidence to be sufficient to support conviction. Cantu v. State, 395 S.W.3d 202, 208 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd) (concluding State was not required to exclude all reasonable defensive hypotheses for evidence to be sufficient to support murder conviction based on circumstantial evidence).
After viewing the evidence in the light most favorable to the verdict, we conclude that the circumstantial evidence in this case, coupled with reasonable inferences from them, is sufficient to establish, beyond a reasonable doubt, that appellant committed felony murder. Evans v. State, 202 S.W.3d 158, 166 (Tex. Crim. App. 2006). We overrule appellant's first point of error.
Venue for Tampering with Evidence Charge
In his second point of error, appellant contends that the evidence is insufficient to establish that venue for the charge of tampering with evidence was proper in Tarrant County. Specifically, he argues that while there is evidence that he and Botello buried T.M. in Parker County, there is no evidence that any aspect of the offense was connected to Tarrant County.
Venue is not considered an element of an offense; therefore, it need only be proven by a preponderance of the evidence. See TEX. CODE CRIM. PROC. art. 13.17; Fairfield v. State, 610 S.W.2d 771, 779 (Tex. Crim. App. [Panel Op.] 1981); Williams v. State, 356 S.W.3d 508, 518 (Tex. App.—Texarkana 2011, pet. ref'd). Proof of venue may be established by direct or circumstantial evidence, and the jury may draw reasonable inferences from the evidence. Thompson v. State, 244 S.W.3d 357, 362 (Tex. App.—Tyler 2006, pet. dism'd); Edwards v. State, 97 S.W.3d 279, 285 (Tex. App.—Houston [14th Dist.] 2003, pet. ref'd). The evidence is sufficient if the jury may reasonably conclude that the offense was committed in the county alleged. See Thompson, 244 S.W.3d at 362.
The indictment alleged, in relevant part:
AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT THE DEFENDANT IN THE COUNTY OF TARRANT AND STATE AFORESAID ON OR ABOUT THE 5TH DAY OF JULY, 2014, DID THEN AND THERE KNOWING THAT AN OFFENSE HAD BEEN COMMITTED, NAMELY INJURY TO A CHILD, CONCEAL A HUMAN CORPSE, WITH INTENT TO IMPAIR ITS VERITY OR AVAILABILITY AS EVIDENCE IN A SUBSEQUENT INVESTIGATION OR ANY OFFICIAL PROCEEDING RELATED TO THE OFFENSE.
The undisputed evidence shows that appellant and Botello purchased the shovels and gloves they used to bury T.M in Parker County, and that they buried T.M. in Parker County. However, the evidence also shows that appellant, Botello, and T.M. lived in Tarrant County and evidence of T.M.'s blood stains were found in her Tarrant County home. Viewing this evidence in the light most favorable to the verdict, the jury could have reasonably concluded that T.M. was murdered in her home in Tarrant County on July 4, 2014, and that, while in Tarrant County, appellant and Botello concealed T.M.'s body in a blanket and loaded it into the car, with the intent to impair its verity or availability as evidence by burying it. Venue was therefore proper in Tarrant County. See Williams, 356 S.W.3d at 518. We overrule appellant's second point of error.
Conditionally Admitted Evidence
In his third point of error, appellant contends that the trial court erred in overruling his objection to State's Exhibit 189—a blood card—because the State failed to "connect up" the conditionally admitted evidence that was used to create a DNA profile for T.M.
A. Standard of Review and Applicable Law
"When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later." TEX. R. EVID. 104. Under this doctrine of "conditional relevancy," a trial court may admit evidence that initially appears irrelevant on the condition that the proponent introduces additional evidence demonstrating the relevancy, "or 'connect[s] it up,' at a later time." See Powell v. State, 898 S.W.2d 821, 829 (Tex. Crim. App. 1994).
Whether a conditional fact has been proven is a question for the jury, and the trial judge's role is limited to determining whether there is sufficient evidence to support such a finding. Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007). In other words, the trial judge should admit evidence that is relevant based upon a conditional fact only if there is sufficient evidence to support a jury finding that the conditional fact is true. See id. "To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." TEX. R. EVID. 901(a).
Evidence may be authenticated in a number of ways, including by direct testimony from a witness with personal knowledge, by comparison with other authenticated evidence, or by circumstantial evidence. Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). The State meets the authentication requirement for admissibility once it "has shown the beginning and the end of the chain of custody, particularly when the chain ends at a laboratory. Any gaps and minor theoretical breaches go to the weight rather than the admissibility of the evidence, absent a showing of tampering." Martinez v. State, 186 S.W.3d 59, 62 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd); see also Druery, 225 S.W.3d at 503-04 ("Absent evidence of tampering or other fraud, which has not been presented here, problems in the chain of custody do not affect the admissibility of the evidence. Instead, such problems affect the weight that the fact-finder should give the evidence, which may be brought out and argued by the parties.").
The trial court has discretion to determine the sufficiency of the predicate of authentication, and, absent an abuse of that discretion, we will not reverse the trial court's judgment. Foster v. State, 101 S.W.3d 490, 498 (Tex. App.—Houston [1st Dist.] 2002, no pet.). The trial judge does not abuse his or her discretion in admitting evidence where he or she reasonably believes that a reasonable juror could find that the evidence has been authenticated or identified. Druery, 225 S.W.3d at 502; Dossett v. State, 216 S.W.3d 7, 17 (Tex. App.—San Antonio 2006, pet. ref'd).
B. Relevant Facts
During the State's case-in-chief, Dr. Cossota testified as follows:
Q: All right. Were you able to develop a DNA profile from any of the stains that were on State's Exhibit 116A?
A: Yes, ma'am.
Q: How many stains or areas did you look at?
A: There were three different stains.
Q: Three different stains. Did any of those three stains test positive for blood?
A: Let me find her report.
Q: Sure.
A: Yes. On her report it was presumptive positive for the presence of blood.
Q: On all three stains?
A: Yeah. Yes, ma'am.
Q: Okay. And were you able to develop a DNA profile—well, let me ask you this first.
A: Okay.
Q: Getting ahead of myself. Did you receive some known samples from some individuals?
A: Yes, ma'am.
Q: And did you receive a known sample from an individual named T.M.?
A: Yes, ma'am.
Q: And was that in the form of a blood card from the Tarrant County Medical Examiner's Office?
A: Yes, ma'am.
Q: Is that what we see here in State's Exhibit 189?
A: Yes, ma'am.
Q: Do you see your identifying markings on it to indicate that was the item you tested?
A: Yes, ma'am.
Q: Okay. And so when you received this sample from the Tarrant County Medical Examiner's Office, were you able to develop a profile of what [T.M.]'s DNA looked like?
A: Yes, ma'am.Defense counsel then stated:
We're getting ready to get into some testimony here of the chain of custody which has not been shown. And the chain of custody on whatever exhibit number this is, which presumes to be a blood sample, the beginning of the chain has not been shown.
The trial court allowed the State to conditionally offer Exhibit 189, provided that it connect up the evidence before the close of its case. Cossota then explained the results of her DNA analysis. The trial court later conditionally admitted the blood card over defense objection. At the close of the State's case, defense counsel renewed its objection: "[O]ur objection is relevance and our objection is under Rule 104 of the Rules of Evidence that the condition for that—for admissibility has not been fulfilled."
C. Analysis
The State presented the following evidence to demonstrate that Exhibit 189 was a sample of T.M.'s blood collected during her autopsy.
Newquist, the crime scene investigator, testified that her team removed a blue blanket that contained a body from the location of the grave in Parker County, in case number 14-35680. Once removed, the body and blanket were directly placed in a body bag to preserve the evidence and to transport it to the medical examiner's office.
Detective Caleb Blank testified that he carried the body from the gravesite to the transport van. Charles Clow, a trace evidence collector, testified that the medical examiner's office received a body bag containing the body of a female Caucasian child wrapped in a blue blanket.
Dr. Roe, the deputy medical examiner, performed the autopsy of T.M. Her autopsy report, admitted without objection, identified evidence and specimens that were collected from T.M. Items collected during the autopsy of T.M.'s body, which included the blood cards, were marked with number 2014-00035860. Newquist testified that the medical examiner's office released several items for testing, including Exhibit 189. Cossota, the DNA analyst, testified that she received Exhibit 189 from the medical examiner's office and that the exhibit contained a known blood sample from an individual named T.M. from which she was able to develop a DNA profile.
This evidence established that (1) T.M.'s body was taken directly from the gravesite to the Tarrant County Medical Examiner's office where Dr. Roe performed the autopsy on T.M.'s body; (2) during the autopsy, evidence and specimens were taken from T.M.'s body, including blood cards; and (3) Cossota received State's Exhibit 189, a blood card marked with case number 2014-00035860, from the medical examiner's office.
We conclude that the State presented sufficient evidence for the trial court to conclude that the matter in question, the blood card, is what its proponent, the State, claims that it is—a blood sample collected during the autopsy of T.M. See TEX. R. EVID. 901(a); Tienda, 358 S.W.3d at 638; Druery, 225 S.W.3d at 503-04. Further, appellant makes no allegations of alteration, tampering, or fraud and, therefore, any problems in the chain of custody do not affect the admissibility of the evidence, but rather they affect the weight the jury gives to the evidence. See Druery, 225 S.W.3d at 503-04. The trial court could have reasonably believed that a reasonable jury could find that State's Exhibit 189 was authenticated and identified and, therefore, it did not abuse its discretion in admitting the blood card and the testimony related to it. See Druery, 225 S.W.3d at 502; Dossett, 216 S.W.3d at 17. We overrule appellant's third point of error.
Evidence of T.M.'s Healing Rib Fractures
In his fourth, fifth, and sixth points of error, appellant contends that the trial court erred in admitting evidence of T.M.'s healing rib fractures because (1) the State did not provide appellant notice of its intent to use the extraneous offense evidence; (2) the State failed to show beyond a reasonable doubt that appellant inflicted these injuries; and (3) the probative value of the prior injury evidence was substantially outweighed by the danger of unfair prejudice.
A. Standard of Review
We review a trial court's decision to admit or exclude evidence, as well as its decision as to whether the probative value of evidence was substantially outweighed by the danger of unfair prejudice, under an abuse of discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). As long as the trial court's decision was within the zone of reasonable disagreement and was correct under any theory of law applicable to the case, it must be upheld. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g)). This is so because "trial courts . . . are usually in the best position to make the call on whether certain evidence should be admitted or excluded." Winegarner, 235 S.W.3d at 790 (quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).
B. Applicable Law
Relevant evidence is generally admissible. TEX. R. EVID. 402; Montgomery, 810 S.W.2d at 391. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. TEX. R. EVID. 401. 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. TEX. R. EVID. 403.
Under Texas Rules of Evidence 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove that the accused committed the charged offense in conformity with his bad character. TEX. R. EVID. 404(b). In order for an extraneous offense to be admissible, it must be relevant apart from supporting an inference of character conformity. See TEX. R. EVID. 401; Montgomery, 810 S.W.2d at 387. Additionally, to be admissible, the State must prove beyond a reasonable doubt that the defendant committed the extraneous offense. See Harrell v. State, 884 S.W.2d 154, 160 (Tex. Crim. App. 1994).
C. Nature of the Evidence
Appellant's fourth and fifth points of error—that the State provided insufficient notice under Rule 404(b) that the evidence of healing injuries would be used at trial, and that it failed to prove beyond a reasonable doubt that he inflicted those injuries—depend on whether the injuries constituted extraneous offenses. The State argues that the evidence in question is not extraneous offense evidence.
In anticipation that the State would introduce evidence of T.M.'s healing injuries, defense counsel objected to the admission of the evidence on the grounds that it was extraneous offense evidence for which the State did not provide sufficient notice, and the State could not prove beyond a reasonable doubt that appellant was responsible for the injuries. In response, the State argued that the evidence was not extraneous offense evidence and that, if it was, it was same transaction contextual evidence and therefore an exception to Rule 404(b), and the State provided sufficient notice to the defense. The trial court overruled defense counsel's objections, initially finding that the evidence was same transaction contextual evidence and that the State provided sufficient notice to the defense of its intention to use it as trial, but subsequently ruled that the evidence was not extraneous. The trial court also overruled defense counsel's objection that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice.
After noting that T.M.'s autopsy revealed twenty-one healing rib fractures and one acute fracture, Dr. Austin testified as follows:
Q: And why is that important to your analysis that you're documenting all of the rib fractures as opposed to just the acute rib fracture?
A: Well, that's really the purpose of my analysis when I do trauma analysis. I want to, first of all, assess what type of trauma was applied to the body. So in this case it would be blunt force trauma versus sharp force trauma where someone is cut with a knife.
Then I want to try and determine how many times this blunt force trauma was applied. Can I determine how many incidences occurred? And one of the ways that I determine how many incidences occurred is I look for fresh trauma, what we call acute, something that happened right around the time the person died. And I look for trauma that's healing and when it's healing. I try to look for biological information of how long it's been healing.
Q: So you don't consider those healing rib fractures to be extraneous to the injury, those are all part of your analysis for the injury?
A: Correct.
Q: So even though some of these are healing, that's still an injury that's going on in her body that can cause death.Discussing T.M.'s injuries, Dr. Roe testified as follows:
A: Yes. And in addition to that, there was no evidence that the fractures had been treated at all.
Q: Okay. Are you able to tell—when I say how many impacts, what does that mean?
A: How many times that she has been struck with an object or that her body has struck an object.
Q: Yes, ma'am. Are you able to tell how many impacts there were at a minimum?
A: I can go through and give an estimate. It's difficult because of the extensive injuries. It's over a dozen.
Q: And which of these injuries that you went through with the jury are what we would call fatal injuries that you explained earlier?
A: The chest injuries by themselves are fatal, can be fatal. They're extensive. The liver injury by itself is a fatal injury. The combination of the adrenal gland with some of the other injuries, the mesenteric injury by itself could be fatal. The adrenal gland may or may not be fatal by itself, but it's a very significant injury.
Appellant contends, as he did at trial, that T.M.'s healing rib fractures and the acute fracture were separate from her fatal injury. He argues that "the healing fractures do nothing to explain the internal injuries which eventually killed [T.M.]," and that "[t]hese healing wounds were used by the State to imply that appellant himself had beaten up [T.M.] in the past, not because of a medico-technical opinion that wounds which healed at least days before a fatal injury are bound up with that injury."
Dr. Roe, however, did not testify that any one injury was the fatal injury. Rather, she stated that the injuries to T.M. which could be considered fatal, either alone or in combination, were the injuries to her chest, liver, adrenal gland, and small bowel mesentery. Dr. Roe's testimony that T.M. died from blunt force trauma and that all of her injuries were due to blunt force trauma, in conjunction with Dr. Austin's testimony that the determination of blunt force trauma was reached by examining all of T.M. injuries, including the healing rib fractures, and that some of the healing injuries are "still an injury that's going on in her body that can cause death," lead us to conclude that the healing injuries could have reasonably been considered a component of T.M.'s cause of death rather than extraneous evidence.
D. Rule 403 Objection
Appellant also argues that the trial court erred in overruling his Rule 403 objection to the evidence of T.M.'s healing injuries. Specifically, he argues that there was a substantial possibility that the jury would decide the case on an improper basis, i.e., appellant beat T.M. before and, therefore, he probably beat her again.
The party objecting under Rule 403 has the burden to show that the probative value is substantially outweighed by the danger of unfair prejudice. Runnels v. State, 193 S.W.3d 105, 107 (Tex. App.—Houston [1st Dist.] 2006, no pet.). A trial court is entitled to broad discretion in ruling on a Rule 403 objection, and great deference is given to the trial court's decision to admit or exclude evidence under Rule 403. See Powell v. State, 189 S.W.3d 285, 288 (Tex. Crim. App. 2006).
When conducting a Rule 403 analysis, a court must balance the probative force of and the proponent's need for the evidence against (1) any tendency of the evidence to suggest decision on an improper basis; (2) any tendency of the evidence to confuse or distract the jury from the main issues; (3) 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 (4) the likelihood that presentation of the evidence will amount to undue delay. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006). We presume that relevant evidence is more probative than unfairly prejudicial. Montgomery, 810 S.W.2d at 388; Smith v. State, 355 S.W.3d 138, 154 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd). Exclusion of evidence under Rule 403 is required "only when there is a 'clear disparity between the degree of prejudice of the offered evidence and its probative value.'" Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (quoting Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)).
The evidence that T.M. had numerous healing rib fractures was probative to show the basis for determining that she died as a result of blunt force trauma, and that the healing injuries were a component of the cause of her death. The evidence of these additional fractures was not so prejudicial or inflammatory, nor do they suggest decision on an improper basis, when considered alongside the evidence of T.M.'s other extensive injuries, admitted without objection, which included two lacerations to her liver, one of which was significant in size, lacerations to her spleen and the small bowel mesentery, a shattered right adrenal gland, as well as healing changes to T.M.'s pelvic and rectal area. Finally, of the more than 700 pages of testimony, Dr. Austin's and Dr. Roe's testimony comprised less than 100 pages, of which the testimony related to T.M.'s healing rib fractures was only a fraction. The challenged evidence did not unduly delay or extend the trial.
Having considered the various factors relevant to a Rule 403 admissibility determination, we conclude that there was not a clear disparity between the degree of prejudice of the challenged evidence and its probative value. See Hammer, 296 S.W.3d at 568; Conner, 67 S.W.3d at 202. The trial court could have reasonably concluded that the probative value of the evidence was not substantially outweighed by the countervailing factors specified in the rule. See Gigliobianco, 210 S.W.3d at 642-43. Accordingly, we conclude that the court did not abuse its discretion by admitting the challenged evidence. See id.; Montgomery, 810 S.W.2d at 379-80. We overrule appellant's fourth, fifth, and sixth points of error.
Modification of Judgment
In his seventh point of error, appellant argues that one of the two orders to withdraw funds incorporated in the judgments of conviction should be deleted, and the corresponding judgment modified, because the trial court ordered that appellant's two sentences run concurrently.
The record reflects that the jury assessed appellant's punishment at life imprisonment and a $10,000 fine for the offense of felony murder, and twenty years' confinement and a $10,000 fine for the offense of tampering with evidence. At the conclusion of trial, the trial court orally pronounced that appellant's sentences would run concurrently. The judgments of conviction also reflect the concurrent nature of the sentences. However, the judgments include and incorporate separate orders to withdraw funds from appellant's inmate account, one for $10,319 (fine plus court costs) and the other for $10,000.
A trial court's order that sentences run concurrently applies to the entire sentence, including fines. See State v. Crook, 248 S.W.3d 172, 174 (Tex. Crim. App. 2008). Thus, "[w]hen sentences are ordered to run concurrently, the judgment should not reflect a cumulated fine." Habib v. State, 431 S.W.3d 737, 742 (Tex. App.—Amarillo 2014, pet. ref'd). Here, while the trial court's oral pronouncement of sentences and written judgment correctly reflect the concurrent nature of the fines, the withdrawal fund orders in both causes include a $10,000 fine.
This Court has the power to modify the judgment of the court below to make the record speak the truth when we have the necessary information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). Accordingly, we modify the judgment for tampering with evidence (Count 4) to delete the $10,000 fine, and we strike the corresponding $10,000 withdrawal notice and bill of cost. See Williams v. State, 495 S.W.3d 583, 591 (Tex. App.—Houston [1st Dist.] 2016) (op. on reh'g) (reforming judgment to "delete the fine from the bills of cost"), pet. dism'd, improvidently granted, No. PD-0947-16, 2017 WL 1493488 (Tex. Crim. App. Apr. 26, 2017); Habib, 431 S.W.3d at 742 (modifying judgment to delete fine when bills of cost reflected cumulated fines); see also Cantu v. State, No. 07-16-00389-CR, 2018 WL 618610, at *5 (Tex. App.—Amarillo Jan. 25, 2018, no pet.) (mem. op., not designated for publication) ("Here, the judgments and orders to withdraw funds in both causes include a $10,000 fine. Accordingly, we strike the $10,000 fine from the judgment and order to withdraw funds in trial court cause number CR-15F-114."). The judgment for Count One and its corresponding withdrawal notice and bill of cost are unchanged. We sustain appellant's seventh point of error.
Conclusion
We affirm the trial court's judgments as modified.
Russell Lloyd
Justice Panel consists of Justices Lloyd, Landau, and Countiss. Do not publish. TEX. R. APP. P. 47.2(b).