Opinion
No. 05-19-00317-CR
08-20-2020
HAKEEM GRIFFINWHITE A/K/A HAKEEM GRIFFIN WHITE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 363rd Judicial District Court Dallas County, Texas
Trial Court Cause No. F17-75362-W
MEMORANDUM OPINION
Before Justices Myers, Partida-Kipness, and Reichek
Opinion by Justice Reichek
A jury convicted Hakeem Griffinwhite a/k/a Hakeem Griffin White of murder and assessed punishment at seventy-five years in prison. In two issues, appellant challenges the sufficiency of the evidence to support his conviction and the admission of a Facebook Live video into evidence. For reasons set out below, we overrule both issues and affirm the trial court's judgment.
The indictment and judgment shows appellant's name as "Hakeem Griffinwhite." A letter from appellant to the trial court, however, shows his name as "Hakeem Griffin White." Accordingly, we identify him as Hakeem Griffinwhite a/k/a Hakeem Griffin White.
FACTUAL BACKGROUND
On the afternoon of March 2, 2017, appellant shot his childhood friend, Drekeiston Alex, in the middle of a busy Dallas street. After running more than 200 feet, Alex collapsed in the street and died at the scene. Appellant ran to a nearby car driven by his girlfriend, Ashley Coleman, and fled the scene. A jury indicted him on a charge of murder. At trial, appellant did not dispute that he was the person who shot and killed Alex; rather, his defense was that he did not intend to kill him and that his act was reckless, supporting only a charge of manslaughter.
Coleman is a co-defendant, but she was not tried at the same time as appellant in this case.
The State presented the following evidence. The patron of a nearby business-who heard the gunshot, witnessed appellant running from the scene, and saw Alex collapse in the street-called 911. When Dallas police arrived at the scene, Alex was being placed in an ambulance. The crowd that gathered began to immediately disperse, and witnesses were reluctant to talk. Police located two bullet casings on the roadway within a couple of feet of each other. Both casings were marked, "Perfecta .380 Auto." That same day, the investigating detective obtained a surveillance video from a nearby business. The video captured the shooting.
The recording was shown to jurors. On the recording, which did not have audio, Alex enters the frame walking across the edge of a parking lot while talking on his cell phone. Less than ten seconds later, Alex turns around and begins walking backwards into the six-lane divided roadway as appellant enters the frame. The two exchange words. Appellant follows Alex into the middle of the roadway, where they block a car driving forward. From about seven feet away, appellant pulls out a gun and shoots Alex, who crouches down either in response to being hit or in an attempt to prevent being shot. Alex then takes off running down the street, limping, until he is no longer shown on the video. Appellant follows him and stops in the street to again take aim with the gun before running to a nearby car that had pulled onto the parking lot. The passenger side door was open, and appellant got in, and the car fled the area. Off video, Alex collapsed in the street. He had been shot in the left hip, and the bullet struck a major caliber vein. Alex died within minutes.
Alex's aunt, Felicia Alex, testified that on the day of the shooting, she was at work when she saw a Facebook feed showing Alex lying on the ground. At first, she thought he might have had a seizure but later learned he had been fatally shot. That night, she was tagged in a Facebook Live video, which was posted three to four hours after the shooting. The video depicted appellant and Coleman talking into the camera. Felicia testified that the video, admitted over objection, showed appellant displaying a gun and bullets and "[b]ragging about how he did it." Although the video did not mention her nephew by name, she believed a reference to someone with a son was a reference to Alex.
By the following day, police identified appellant and Coleman as suspects in the shooting and obtained arrest warrants. The two were arrested two days later. In an interview with Detective David Grubbs, appellant said he had shot at Alex one time, but the gun jammed. He claimed that he did not know Alex was hit by a bullet until later that night. Appellant told the detective that Alex had been threatening him for a while, and he pulled the gun to scare him. Appellant said he did not intend to kill Alex; rather, he only wanted to shoot past him. After the incident, Alex and Coleman went to Duncanville, where they tossed the gun in the backyard of a house with a sign that stated, "Beware of Dog." Coleman subsequently directed the police to the house, and the police recovered the gun and the gun's magazine.
During his testimony, Detective Grubbs said that based on the surveillance video, he estimated that Alex was within seven feet of appellant when he was shot. He agreed that Alex ran at least 200 feet after being shot before he fell onto the ground. When asked if the gun had jammed, as claimed by appellant, would that mean appellant was only able to attempt to fire one time at Alex, Grubbs indicated it would not. He said that if the gun jammed, "that would mean that you fired it and then tried to fire again to know that there was a jam." But Grubbs said it would not surprise him that, given the condition of the gun, it would jam or misfire. Grubbs also testified the .380 auto bullets recovered with the gun matched the bullets shown on the Facebook Live video.
The jury charge authorized a conviction for murder under the two theories alleged in the indictment: (1) intentionally and knowingly causing Alex's death by shooting him with a firearm, a deadly weapon, or (2) intending to cause serious bodily injury to Alex and committing an act clearly dangerous to human life that caused Alex's death. See TEX. PENAL CODE ANN. § 19.02(b)(1), (2). The jury was also charged that, if it found appellant was not guilty of murder, it could consider the lesser offense of manslaughter. See TEX. PENAL CODE ANN. § 19.04(a) ("A person commits an offense if he recklessly causes the death of an individual). After considering the evidence, the jury convicted appellant of murder. This appeal followed.
SUFFICIENCY OF THE EVIDENCE
In his first issue, appellant contends the State failed to prove he had the requisite intent to commit murder and showed only that he was reckless, which would support a conviction for only the lesser included offense of manslaughter.
The charge defined "reckless" in accordance with section 6.03(c) of the penal code.
In assessing the sufficiency of the evidence, we review all the evidence in the light most favorable to the verdict to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim. App. 2011). Thus, when performing an evidentiary sufficiency review, we may not reevaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Rather, we determine whether the necessary inferences are reasonable based upon the cumulative force of the evidence when viewed in the light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011). Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and the standard is the same for direct and circumstantial evidence cases. Isassi, 330 S.W.3d at 638; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
Murder is a "result of conduct" offense, which requires that the culpable mental state relate to the result of the conduct—causing the death. Schroeder v. State, 123 S.W.3d 398, 400 (Tex. Crim. App. 2003). By its nature, a culpable mental state must generally be inferred from the circumstances. Nisbett v. State, 552 S.W.3d 244, 267 (Tex. Crim. App. 2018). A reviewing court cannot read an accused's mind, and absent a confession, we must infer his mental state from his "acts, words and conduct." Id.
Here, appellant argues that his statement to the police that he intended only to scare Alex and not kill him, combined with the video of the shooting, show only that he was reckless. Appellant argues the video shows that he "never pointed up towards . . . Alex or took careful aim in his direction." And, although appellant admits that he fired the gun, he contends "it was pointed in a downward direction not towards [Alex's] head or torso."
The interpretation of the video was a matter for the jury, which could have reasonably concluded that appellant intended to kill Alex when he shot him or he intended to cause him serious bodily injury and committed an act clearly dangerous to human life by shooting him. Having watched the video, the jury could reasonably believe that appellant stalked Alex into the middle of a busy street, pulled a gun, took aim at Alex, and fired the gun, at least twice. Given that appellant was only seven feet away from Alex at the time he shot him, it is reasonable that the jury would disbelieve appellant's account to Grubbs that he was just attempting to "shoot past" Alex or trying to scare him, rather intending to kill him. See Ervin v. State, 333 S.W.3d 187, 200 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd) (concluding that when person discharges firearm at close range and death results, law presumes intent to kill); Cavazos v. State, 382 S.W.3d 377, 384 (Tex. Crim. App. 2012) (specific intent to kill may be inferred from use of deadly weapon). That conclusion is reinforced by the fact that appellant chased Alex after he was shot and aimed the gun at him again. After shooting Alex, appellant did not seek to get him medical help; rather, he fled the scene and got rid of the gun, both circumstances from which the jury could have inferred his intent. See Wilkerson v. State, 881 S.W.2d 321, 324 (Tex. Crim. App. 1994) (finding of intent to kill may be inferred from evidence of flight from scene); Nisbett, 552 S.W.3d at 267 (jury may consider defendant's attempt to destroy or conceal evidence as evidence of culpable mental state for murder). Although appellant claimed that he did not know until hours later that Alex had been hit by a bullet, the jury was entitled to find that claim unworthy of credibility.
After reviewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to prove that appellant either intentionally or knowingly murdered Alex or that he committed an act clearly dangerous to human life by shooting Alex with a gun. We overrule the first issue.
ADMISSION OF FACEBOOK LIVE VIDEO
In his second issue, appellant contends the trial court reversibly erred by admitting State's Exhibit 38, the Facebook Live video that recorded audio and visual commentary from appellant and Coleman. He argues the exhibit was inadmissible because (1) it lacked foundation and (2) violated Texas Rule of Evidence 403.
In a hearing outside the presence of the jury, the State told the trial court that the exhibit was posted by Coleman, appellant's co-defendant, in the hours before the murder. Defense counsel objected that "there has been no foundation for that fact that it was posted on that date at any time on that date." The State responded that the issue came up when Grubbs interviewed appellant and "he lands on having posted the video on the morning of the murder." Counsel then responded, "Or the day before." The trial court then viewed the video, and defense counsel renewed his objection. Counsel argued the video contained nothing more than "just a bunch of random talking." Counsel said, "You can't understand 90 percent of what's being said. You can't understand the context of the other ten percent. It's just two people on Facebook running their mouths." Counsel then objected that its probative value was outweighed by its prejudicial effect. The State responded that the video was "directly on point" and was probative of "lack of mistake, motive." The trial court overruled defense counsel's objections.
At trial, the exhibit was admitted during the testimony of Alex's aunt, Felicia. Felicia acknowledged that three or four hours after her nephew's death, she was repeatedly sent or tagged on a Facebook Live video. She described it as the video in which appellant was "talking about the bullets" and "bragging" about killing Alex. Felicia testified that State's Exhibit 38 was a complete copy of the video she received, with no additions or deletions. Appellant renewed his objection, and the trial court admitted the exhibit. As the video played for the jury, Felicia identified appellant as one of the two people on it. Felicia testified that after she received the video, she went to police headquarters and made sure that investigators had it as a resource. She also assisted with identifying the two people on the video.
On cross-examination, Felicia acknowledged that she did not view the video when it posted live and did not know whether it was made a day or hours before her nephew was shot. When she saw the video, she believed it "trickle[d] down" to her nephew's shooting.
1. Lack of foundation
We begin with appellant's complaint that the State failed to establish when the video was produced, which he characterizes on appeal as a failure to authenticate. Appellate review of a trial court's ruling on authentication issues is done under an abuse of discretion standard. Fowler v. State, 544 S.W.3d 844, 848 (Tex. Crim. App. 2018). This deferential standard requires an appellate court to uphold a trial court's admissibility decision when that decision is within the zone of reasonable disagreement. Id. A trial court judge is given considerable latitude with regard to evidentiary issues. Id. Different trial judges may "reach different conclusions in different trials on substantially similar facts without abusing their discretion." Id. (quoting Winegarner v. State, 235 S.W.3d 787, 791 (Tex. Crim. App. 2007)).
To satisfy the requirements 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). Authenticity may be established with testimony of a witness with knowledge and with evidence of "distinctive characteristics and the like," which include "[t]he appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances." Id. 901(b)(1), (4).
In his brief, appellant relies solely on the court of criminal appeals's opinion in Fowler v. State to establish that the State failed to make such a showing here. In Fowler, the court considered the admissibility of a surveillance videotape used to identify a suspect in the theft of an all-terrain vehicle (ATV); thus, the date and time of the recording was essential to the case. Fowler, 544 S.W.3d at 849-50. The evidence showed circumstantial evidence that (1) the officer made an in-person request of the store manager to pull the surveillance video on a certain date and a certain time; (2) there was a date and time stamp on the videotape; (3) the date and time on the videotape corresponded to the date and time on the receipt found within three feet of the stolen ATV; and (4) the videotape pulled by the manager revealed that appellant was at the store on that date at that time purchasing items listed on the receipt found near the stolen ATV. Id. The court ultimately concluded that even though the State could have produced testimony from more witnesses to authenticate the videotape, the police officer supplied facts sufficient to support a reasonable jury determination that the videotape was authentic. Id. at 850.
Here, there was no question that the recorded video was in fact a Facebook Live video containing commentary from appellant and Coleman. We agree with the State that, unlike the surveillance video in Fowler, determining the remoteness of the recording to the time of the murder was not necessary to prove the authenticity of the social media post. Moreover, Felicia testified that the video was tagged to her Facebook page on the date of the murder, and the trial court was able to view the video and observe its unique features, which including the red "LIVE" indicator on top, the eye indicator displaying the viewership numbers, a listing of comments from other users, and the thumbs up and heart buttons. We conclude the trial court's decision that the videotape was authentic was a decision well within the zone of reasonable disagreement.
2. Rule 403
Next, appellant argues that even if properly authenticated, the exhibit was inadmissible under Texas Rule of Evidence 403, contending the video's probative value was substantially outweighed by its prejudicial effect.
We review a trial court's rule 403 determination for an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g); see Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002). In resolving this issue, we analyze the following factors: (1) the inherent probative force of the proffered item of evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Of course, these factors may well blend together in practice. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).
The Texas Court of Criminal Appeals has noted that "[v]irtually all evidence that a party offers will be prejudicial to the opponent's case, or the party would not offer it." Casey v. State, 215 S.W.3d 870, 883 (Tex. Crim. App. 2007). Thus, the question under rule 403 is not whether evidence is prejudicial, but whether it is unduly prejudicial.
Here, appellant characterizes the exhibit as evidence that he was "handling a gun and ammunition in a car stored in the closed garage" and argues it was not relevant to the charged offense and was "highly prejudicial." To the contrary, the evidence at trial showed that the ammunition shown in the Facebook Live video matched the bullets recovered with the gun used in the murder. Moreover, appellant handling a gun in a car is certainly far less prejudicial than viewing appellant on videotape pulling the gun and shooting Alex. Further, we note that the video was more than its pictures; it contained running commentary by appellant. The State offered it as evidence of lack of mistake and for motive, and a witness characterized appellant's comments as appellant "bragging" about killing Alex. Nevertheless, appellant has not made any attempt to analyze the content of what was being said on the video. Having failed to do so, we conclude he has not shown reversible error.
Finally, even if the exhibit was inadmissible, any error was harmless. Error in the erroneous admission of evidence will be disregarded as harmless if the error did not affect the substantial rights of the defendant. TEX. R. APP. P. 44.2(b). A substantial right is implicated when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). In weighing harm, we consider everything in the record, including the evidence, the character of the alleged error and how it might be considered together with the other evidence in the case, the jury instructions, the State's theory, any defensive theories, closing arguments, voir dire, and whether evidence of guilt is overwhelming. Motilla v. State, 78 S.W.3d 352, 355-58 (Tex. Crim. App. 2002).
Here, the issue was whether appellant acted with intent or was reckless in shooting Alex. The jury charge is not pertinent to our analysis. There were no jury notes and nothing to suggest the jury placed any emphasis on State's Exhibit 38. We acknowledge that the State (and the defense) referred to the exhibit in closing arguments, but it was not the focus of the State's argument nor did the State spend much time on the exhibit during the trial. Finally, the jury had before it a video recording of the actual shooting and, from that piece of evidence, could make inferences about appellant's culpable mental state and his intent when he shot Alex. Given the nature of the evidence of appellant's guilt, and the lack of emphasis on State's Exhibit 38, we have fair assurance that the admission of this evidence did not affect appellant's substantial rights. Thus, any error in admitting the evidence would have been harmless and should be disregarded. We overrule the second issue.
We affirm the trial court's judgment.
/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
190317F.U05
JUDGMENT
On Appeal from the 363rd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F17-75362-W.
Opinion delivered by Justice Reichek; Justices Myers and Partida-Kipness participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered August 20, 2020