Opinion
05-22-01003-CR
02-05-2024
LARRY DAQUAN JENKINS, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish TEX. R. APP. P. 47.2(b)
On Appeal from the Criminal District Court No. 7 Dallas County, Texas Trial Court Cause No. F20-76597-Y
Before Justices Molberg, Pedersen, III, and Nowell
MEMORANDUM OPINION
ERIN A. NOWELL JUSTICE
The State indicted appellant Larry Daquan Jenkins for intentionally causing the death of Andre Emmett by shooting him with a firearm in the course of committing or attempting to commit robbery. The jury found him guilty of capital murder, and the trial court sentenced him to life in prison. Appellant raises three issues on appeal. He first challenges the sufficiency of the evidence to support his conviction because the State failed to prove his identity beyond a reasonable doubt. In his two remaining issues, he argues the trial court abused its discretion by overruling a Crawford v. Washington, 541 U.S. 36 (2004) objection and by admitting into evidence cellphone records and cellular mapping data. In a cross-issue, the State requests modification of the judgment to correct a clerical error. As modified, we affirm the trial court's judgment.
Background
Andre Emmett was a former NBA player, who was well-known and respected in the community. On the evening of Saturday, September 22, 2019, Emmett went to Longshots, a sports bar in Dallas, and then to Club Theory, another of his usual hangouts. He left Club Theory in the early hours of September 23, picked up food at Whataburger, and returned to his condo located in the 4900 block of Monarch Street in East Dallas. He parked in his front driveway, opened the driver's side door of his Range Rover, and proceeded to eat his meal in his front seat.
A neighbor's Ring camera captured two men approach Emmett in his Range Rover. One man hit Emmett in the face and pointed a gun at him. He told Emmett, "Pull off everything." Emmett put his hands up and removed a necklace. He then ran down the street, away from the assailant, while one of the men started shooting at him.
Justin Baker lived in a nearby condo and woke to the sound of multiple gunshots. When he looked out his window, he saw two black men standing in the middle of the street. One of the men was still firing the gun. Baker thought the man firing the gun wore a red hat. Baker saw a third man running away. Two of the men jumped into a white Chrysler 300 and drove towards Emmett.
Daniel Murry lived about a block from Monarch Drive. He was outside around 2 a.m. watching television on his laptop when he saw two cars pull over and change drivers. One car was a darker sedan and the other was a white sedan. He saw a man wearing a red hat get out of the passenger side of a white sedan and switch to the dark sedan.
Michael Valladares worked at Longshots on September 22 and saw Emmett earlier in the evening. He knew Emmett as a frequent patron. On Valladares's way home that night, he saw a man in the road dragging himself toward the curb and asking for help. Valladares called 9-1-1 and waited for paramedics to arrive before leaving. He did not recognize the injured man, but learned the next day it was Emmett.
Officer Michael Dittmer was dispatched to the scene and arrived as paramedics loaded Emmett into an ambulance. Emmett was alive but "pretty critical." Officer Dittmer began looking for shell casings and a blood trail but did not find any. He observed only a puddle of blood where Emmett bled out. He believed Emmett was shot in a different location and then dumped on the street.
Regina Oliver, Emmett's mother, lived four minutes from Emmett's condo. Around 6:45 a.m., she drove to Emmett's condo to drop off his daughter. When she arrived, she noticed his Range Rover in the driveway with the door open. She panicked and repeatedly called his cellphone and rang his doorbell, but he did not answer. She eventually noticed his cellphone in the car's console. She called 9-1-1 and asked for a welfare check. She provided a description of her son and said "Andre" was tattooed across his chest. Officer Dittmer recalled seeing the described chest tattoo as paramedics loaded the victim into the ambulance and made the connection between the two scenes. He proceeded to Emmett's condo where he immediately observed shell casings around the Range Rover and a blood trail starting at the vehicle and continuing in the direction where officers found Emmett.
Crime scene analysts gathered evidence from both locations. Five fired cartridge casings were found on the ground near the driver's side door of the Range Rover with what appeared to be blood on the left front quarter panel. A blood trail led from the driveway down the sidewalk. Based on the evidence, "whatever happened probably happened at the vehicle" and continued down the street. Surveillance video from the neighbor's Nest camera aligned with the physical evidence at the scene. It was also consistent with Emmett running in the direction of the second crime scene where paramedics found him.
Detective Scott Sayers was the lead detective on the case. He watched the Nest video and believed Emmett was shot in the course of a robbery, because based on his experience, "pull off everything," indicates a robbery. Further, Emmett was not wearing jewelry when paramedics found him, but family members told officers he always wore two necklaces and a custom Rolex watch worth $80,000. Detective Sayers tried to track the stolen jewelry based on information he received, but he never found it.
Detective Sayers talked to people in the area and learned two black males were seen running to a white vehicle shortly after the gunshots. Further investigation revealed it was a white Chrysler 300. He reviewed surveillance videos from the surrounding area to identify the Chrysler, but after about two weeks with no leads, he released information about the crime to the public. He hoped someone would recognize the voices from the Nest security video and identify the car's owner.
Detective Sayers received tips identifying three possible suspects: Michael Lucky, Keith Johnson, and appellant. He next tried to link the Chrysler to the suspects. Detective Sayers learned Johnson's girlfriend, Charzelle Fields, purchased a white Chrysler 300 around September 4, 2019, from Del Real Automotive. The used car dealership had installed two GPS trackers on the Chrysler, a typical practice to track a car for repossession.
Using a program called CellHawk, Detective Sayers inputted the car's GPS coordinates from September 22 and September 23, which created a map displaying the information. The map revealed the Chrysler was parked one street over from Club Theory, and although it periodically moved, remained in that general area. When Emmett left the Whataburger, the Chrysler pulled out from across the street and followed him to his condo. The Chrysler later drove to the area where Daniel Murry lived and near where paramedics found Emmett.
Detective Sayers continued following the Chrysler's movements in the days after the murder. Lucky and Johnson took the car to an individual to destroy it, but the person refused. The car was eventually disassembled, the tracker removed, and the parts sold. On October 26, 2019, Detective Sayers found the crushed Chrysler 300 in a salvage yard and identified it through the VIN number. No evidence was recovered from the car.
Officers arrested Johnson and Lucky and charged them with capital murder and tampering with evidence (destroying the car). The officers continued investigating the crime, however, because they received tips that appellant was the shooter.
Detective Sayers researched social media and found a Facebook page for "Frank Lucas." Appellant's picture appeared on Frank Lucas's Facebook page the night of the murder. Detective Sayers obtained a search warrant for information regarding the Facebook page. The account holder's date of birth was February 19, 1997, the same birthday as appellant. "Frank Lucas" verified the phone number associated with the account as 214-***-6381. A Facebook thread from September 30, 2019, noted a missed video chat between "Wana Love" and "Frank Lucas." Lucas then sent a message that said, "This is Larry answer." Based on the Facebook records, Detective Sayers believed appellant was Frank Lucas. Detective Sayers then got a search warrant for the phone number linked to the Facebook account. Call records indicated "Frank Lucas" called Fields right after the murder. Detective Sayers believed the evidence now confirmed a phone call from appellant to Johnson's girlfriend, who owned the Chrysler 300 involved in the murder.
Detective Sayers also discovered a Facebook Live video clearly showing appellant on September 24, 2019, around midnight. The video description was "mood," and it was "uploaded by account holder." While he could not say with certainty who set up the Facebook account, it was clear to him appellant was using it, and he had no doubt the phone number verified by the account holder belonged to appellant.
Detective Sayers entered the cellphone information he received through the search warrant into CellHawk. The resulting map "following" the cellphone was similar to the map created by the Chrysler 300 GPS tracker information on the night of the murder. This indicated to Detective Sayers appellant was in the car on the night of the murder.
Two witnesses, both with extensive criminal histories, provided officers with information linking appellant to the crime. Dominique McNeely told authorities he heard "chatter" on the street about Emmett's murder, and appellant's name came up. He later saw appellant at Groveside Tobacco and asked him why he shot Emmett if he already had his valuables, and appellant said, "He shouldn't have run. I would do it again."
Arking Jones had known appellant for over fifteen years. He saw appellant, Lucky, and Johnson earlier in the evening of September 22 standing by the Chrysler 300 in an East Dallas neighborhood. Jones also identified appellant's voice in the Nest security footage from the crime scene and identified appellant as the shooter based on his voice. Like McNeely, Jones heard "chatter on the streets" of those involved, which included appellant, Johnson, Lucky, and Fields. He saw appellant a couple days after the murder, and appellant said, "No, no, shit, if I going down, they all going down. I had to shoot him."
The medical examiner confirmed Emmett suffered a single gunshot wound that entered his right shoulder and went into the right side of his chest. The bullet was an RIP bullet or "radically invasive projectile." It had eight prongs coming off of it and when the bullet hit Emmett, the prongs broke off into different directions. In this case, the prongs traveled into his shoulder bone, his back, and his right lung. The injury to the lung caused about a liter of blood to bleed into his chest. He also had "blunt force injuries to the head and neck" with some bruising around his left eye. There was also bruising and scrapes on his hands, knees, and shins consistent with falling to the ground or possible defensive movements. The medical examiner concluded the cause of death was a gunshot wound to the right shoulder into the chest and manner of death was homicide.
Through Detective Sayers's investigation, he concluded appellant was the shooter. Appellant was arrested and charged with capital murder.
At trial, the jury heard the evidence discussed above from numerous witnesses. The jury also heard expert testimony from Greg Gambrell. Gambrell worked for ZetX, a company that provided a web-based program called TraX. TraX allows a person to upload raw data from cellular carriers and GPS records from platforms like Google and Facebook. The program then maps the records according to longitudes and latitudes creating a visual map through Google Earth. TraX created a map similar to the one Detective Sayers created using CellHawk. The TraX map likewise indicated the Chrysler 300 and appellant's cellphone moved in the same areas as Emmett's Range Rover on the night of the murder.
The jury found appellant guilty of capital murder, and the trial court sentenced him to life in prison. This appeal followed. Because resolution of appellant's evidentiary challenges could potentially affect the sufficiency of the evidence supporting his conviction, we will address his second and third issues first.
Crawford Objection
In his second issue, appellant asserts the trial court abused its discretion by overruling his Crawford v. Washington objection to Detective Sayers's testimony. 541 U.S. 36 (2004). The State responds the trial court properly admitted the hearsay testimony to correct a false impression created by the defense.
The Confrontation Clause bars admission of any "testimonial" out-of-court statement unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. Crawford, 541 U.S. at 59.
Prior to trial, appellant filed a motion to sever from co-defendant Keith Johnson because Johnson voluntarily provided a statement to police implicating appellant as the shooter. Because of Crawford concerns, in part, the State did not call Johnson as a witness, and Detective Sayers was cautious during his direct examination not to say anything that could cause a mistrial. However, during cross- examination, defense counsel tried to elicit testimony from Detective Sayers regarding eyewitnesses, and the following exchange occurred:
Q. Larry Jenkins was never, ever, ever seen with Michael Lucky and Keith Johnson on September 23rd, 2019, was he?
A. Well, I believe Larry Jenkins is the individual that is seen with Keith Johnson on video.
Q. That's what you believe. I'm saying are there witnesses who put those three together?
A. In my investigation, yes, there are.
Q. That evening?
A. The evening that this happened.
Q. Yeah?
A. Are there witnesses that put Larry Jenkins and Keith Johnson at the scene shooting Andre Emmett? Yes. People have come forward and told me.
Q. I understand what you're saying, that people came forward and told you. I understand that. I understand that people have come forward and said things to you involving Larry Jenkins. Right?
A. Right.
Q. I understand that. Again, what we know, however, for a fact is that we have Keith Johnson and Michael Lucky connected to that Chrysler, and Keith Johnson and Michael Lucky trying to get rid of that Chrysler.
A. That's correct.
Q. We know that.
A. That's correct.
Q. There's nobody talking about it. We have witnesses to show it, right?
A. Correct.
Q. Okay. There's not a witness at the crime scene who can say -there's not a witness at the crime scene who can say that Larry Jenkins jumped out of that car and shot that man, Andre Emmett?
A. I understand what you're saying. Yes, that's correct. There's no witnesses at the crime scene that identifies Larry.
Subsequently, the State requested a hearing outside the presence of the jury because Detective Sayers's "no" answer was incorrect. Johnson identified appellant as the shooter during his police interview.
Defense counsel responded there was no independent eyewitness to place appellant at the scene, but only a codefendant who wanted to blame appellant and had "a lot to gain." The State argued the defense opened the door through its questioning and left a mistaken impression with the jury. The State asserted it had its own reasons for not calling Johnson as a witness and understood the constitutional implications and potential harm; thus, it tried to avoid the issue. The State explained the reason Detective Sayers answered "no" was because he considered Johnson an accomplice and not a witness.
Defense counsel then questioned Detective Sayers on voir dire. Detective Sayers confirmed Johnson placed appellant at the scene. He did not know if Johnson was testifying but explained:
I just know that I wasn't supposed to talk about anything Keith Johnson interviewed with me on because I was afraid it would be a mistrial. That's kind of what I was led to believe, so when he asked the question, I was a little confused about eyewitnesses because, technically, I had an eyewitness.
Defense counsel objected under Crawford because if the testimony came in, then appellant would be deprived the opportunity to cross-examine Johnson, which would severely impact his right to a fair trial. The State emphasized again it did not open the door and should be allowed to correct the false impression.
The trial court ruled the State could correct the impression before the jury but could not ask the name of the eyewitness. The trial court emphasized the State needed to be careful, especially regarding Crawford, because although the defense opened the door, "I'm not going to allow the State to go everywhere with this testimony."
On redirect, the State asked Detective Sayers if there was a witness who placed appellant at the crime scene, and he corrected his answer to yes. He did not reveal the identity of the witness.
The Confrontation Clause of the Sixth Amendment guarantees an accused the right to confront and cross-examine adverse witnesses. U.S. CONST. amend. VI; Vinson v. State, 252 S.W.3d 336, 338 (Tex. Crim. App. 2008). The principal concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the jury. Maryland v. Craig, 497 U.S. 836, 845 (1990).
The Confrontation Clause bars admission of any "testimonial" out-of-court statement unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. Crawford, 541 U.S. at 59. A statement is testimonial if "the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Burch v. State, 401 S.W.3d 634, 636 (Tex. Crim. App. 2013) (noting testimonial statements are those that are "formal and similar to trial testimony"). Testimonial evidence includes "[s]tatements taken by police officers in the course of interrogations." Crawford, 541 U.S. at 52 (2004). However, otherwise inadmissible evidence, such as evidence violating Crawford, "may become admissible when a party opens the door to such evidence." Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim. App. 2009). This can happen when a party merely asks a question leaving "a false impression with the jury that invites the other side to respond." Id.; Wilson v. State, No. 05-19-00978-CR, 2021 WL 4771795, at *4 (Tex. App.-Dallas Oct. 13, 2021, pet. ref'd) (mem. op., not designated for publication). When one party leaves a false impression, the other party may present evidence to correct that impression. Wilson, 2021 WL 4771795, at *4; Houston v. State, 208 S.W.3d 585, 591 (Tex. App.-Austin 2006, no pet.).
Under the facts of this case, the trial court did not abuse its discretion by overruling appellant's Crawford objection because appellant opened the door and left a false impression with the jury regarding the presence of an eyewitness at the crime scene. See Wilson, 2021 WL 4771795, at *4 (reviewing the admission of evidence under an abuse of discretion standard); see also West v. State, 169 S.W.3d 275, 278-79 (Tex. App.-Fort Worth 2005, pet. ref'd). The trial court narrowly tailored its ruling by allowing the State to elicit testimony regarding only the presence of a witness but forbade the State from asking a name. As such, the trial court's ruling was not arbitrary, unreasonable, or outside the zone of reasonable disagreement as to be deemed an abuse of discretion. State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). We overrule appellant's second issue.
Cell Phone Evidence
In his third issue, appellant argues the trial court abused its discretion by admitting cellphone call records into evidence. He further argues that without establishing appellant used the phone number listed in the records, the cellular mapping was irrelevant. The State responds appellant waived his objection, and alternatively, the evidence was both proper and harmless.
Appellant requested a rule 702 hearing regarding the State's digital mapping expert, Greg Gambrell. During the hearing, Gambrell explained TraX, a type of software capable of ingesting thousands of call detail records, GPS records, or any other type of record with a longitude and latitude coordinate. The software then creates a Google Earth file, which is a mapping file with the plotted coordinates.
The State provided Gambrell with cellular data records from phone number 214-***-6381, the number tied to appellant's Facebook page. Gambrell entered the data, along with the Chrysler's GPS information, into TraX. The mapping showed the phone and the Chrysler following Emmett the night of the murder.
On cross-examination, defense counsel asked where appellant's name appeared on the cellular records provided by the State. Gambrell admitted the records did not contain appellant's name, but only the "equipment identifier of the serial number, that was the device that was given to me." Defense objected to the admission of State's 169 and 170, a digital tracking demonstration. Defense counsel argued there was no evidence linking appellant to the phone number listed in the cellphone call record and subsequently put into TraX to track appellant on the night in question. The trial court overruled appellant's objection and admitted the exhibits for all purposes. Gambrell later testified before the jury, explained TraX, and used State exhibit 170.
To the extent appellant challenges the admissibility of the cellphone records, he failed to preserve his complaint. To preserve a complaint for review, the record must show appellant made a timely objection. TEX. R. APP. P. 33.1(a). Here, the State offered, and the trial court admitted, cellphone records for all purposes during Detective Sayers's earlier testimony. Detective Sayers explained how he found the phone number from the Facebook account created under the name "Frank Lucas," which he determined was appellant. When the State offered the evidence, defense counsel responded, "No objection to the particular records." When a defendant affirmatively asserts he has no objection to the admission of the complained-of evidence, he waives any error in its admission. See Cortez v. State, No. 08-23-00112-CR, 2023 WL 6199187, at *10 (Tex. App.-El Paso Sept. 22, 2023, pet. filed) (mem. op., not designated for publication) (citing Holmes v. State, 248 S.W.3d 194, 196 (Tex. Crim. App. 2008)).
We now consider appellant's argument that the cellular mapping was irrelevant because the State failed to establish appellant used the phone number. We review a trial court's decision to admit evidence under an abuse of discretion standard. Inthalangsy v. State, 634 S.W.3d 749, 754 (Tex. Crim. App. 2021). We must uphold the ruling if it is within the zone of reasonable disagreement. Wells v. State, 611 S.W.3d 396, 427 (Tex. Crim. App. 2020).
The violation of an evidentiary rule that results in the erroneous admission of evidence constitutes nonconstitutional error. See Elison v. State, 494 S.W.3d 316, 327 (Tex. App.-Eastland 2015, pet. ref'd). Thus, it is subject to a harm analysis under rule of appellate procedure 44.2(b). TEX. R. APP. P. 44.2(b). Under rule of appellate procedure 44.2(b), we must disregard nonconstitutional error that does not affect a defendant's "substantial rights," that is, if upon examining the record as a whole, there is a fair assurance the error did not have a substantial and injurious effect or influence in determining the jury's verdict. TEX. R. APP. P. 44.2(b); Hailey v. State, 413 S.W.3d 457, 469 (Tex. App.-Fort Worth 2012, pet. ref'd). The improper admission of evidence is harmless if the same or similar evidence is admitted without objection at another point in the trial. Hailey, 413 S.W.3d at 469 (citing Estrada v. State, 313 S.W.3d 274, 302 n. 29 (Tex. Crim. App. 2010)).
Here, appellant objected to the cellular map Gambrell created using TraX. However, prior to Gambrell's testimony, Detective Sayers testified without objection about using software called CellHawk to create a similar digital map. He explained the software created a map allowing one to "follow" a cellphone or other device, like a GPS tracker, once the data was entered into the program. He entered appellant's cellphone information and the Chrysler 300's GPS information into CellHawk. Appellant's phone tracked with the Chrysler on the night of the murder. CellHawk confirmed the cellphone "hitting" around Club Theory at the same time the GPS was also showing the Chrysler by the club. Both also "hit" by the Whataburger. It also tracked to Emmett's condo where the shooting occurred and eventually back to the neighborhood where appellant lived. Essentially, CellHawk revealed where the phone went, the car also went, which indicated to Detective Sayers appellant was in the car.
CellHawk tracked essentially the same movements of the cellphone and the Chrysler 300 as TraX. Because the same evidence came in from Detective Sayers, without objection, appellant cannot establish harm by the alleged erroneous admission of the cellular mapping created by TraX. See id. We overrule appellant's third issue.
Sufficiency of the Evidence
In his first issue, appellant argues the evidence is legally insufficient to support his conviction because the State failed to prove his identify beyond a reasonable doubt. The State responds the evidence is sufficient to support a conviction for intentionally causing Emmett's death by shooting him with a firearm while robbing or attempting to rob him.
Evidence is sufficient to support a conviction if a rational jury could find each essential element of the offense beyond a reasonable doubt. When reviewing the sufficiency of the evidence, we consider all the admitted evidence in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). The jury is the sole judge of the credibility of a witness's testimony and the weight to assign that testimony. Id. at 319; Metcalf v. State, 597 S.W.3d 847, 855 (Tex. Crim. App. 2020). Thus, the jury can believe all, some, or none of a witness's testimony. Metcalf, 597 S.W.3d at 855. Juries can draw reasonable inferences from the evidence so long as each inference is supported by the evidence produced at trial. Jackson, 443 U.S. at 319; see Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). Although the State is required to prove the accused is the person who committed the crime charged beyond a reasonable doubt, identity may be proved by both direct and circumstantial evidence, coupled with all reasonable inferences from that evidence. Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009); Romero v. State, No. 05-18-01318-CR, 2020 WL 400182, at *3 (Tex. App.-Dallas Jan. 23, 2020, pet. ref'd) (mem. op., not designated for publication).
Appellant challenges, in particular, the credibility of McNeely and Jones because each had criminal histories and pending criminal cases. He also argues the State failed to prove appellant owned the cellphone associated with the records because none of the records listed appellant as the user of the phone number. Further, there was no evidence appellant used the cellphone at the time of the murder. He argues the cellphone records linking him to the offense were, therefore, more speculative than reliable.
As discussed above, Detective Sayers explained in detail his investigation of Frank Lucas's Facebook page, which contained pictures and a video of appellant. Records also indicated appellant sent a Facebook message after a missed call that said, "This is Larry answer." Based on Facebook records, Detective Sayers believed appellant was Frank Lucas. Call records indicated "Frank Lucas" called Fields after the murder. To the extent appellant argues the evidence is speculative because (1) appellant shares the same name with two other family members, (2) the State did not sufficiently link the phone number to appellant, and (3) the State failed to prove he actually called Fields, we assume the jury considered the conflicting evidence and decided in favor of the State. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013) ("[W]e presume that the jury resolved the conflicts in favor of the verdict and therefore defer to that determination.").
Similarly, the jury heard the criminal backgrounds of both McNeely and Jones. The defense emphasized both of their histories and possible motivations for testifying to receive deals in other pending prosecutions. Jones admitted he was a career criminal, but he testified he was telling the truth in this case. It is the jury who determines whether a witness's testimony is credible and what weight, if any, should be given to that testimony. Id. It is not the role of an appellate court, while reviewing a cold record without the benefit of observing a witness's demeanor, to supplant a jury's reconciliation of conflicts within the evidence with the court's own opinions. Medina v. State, No. 06-03-00143-CR, 2004 WL 764444, at *2 (Tex. App.-Texarkana Apr. 9, 2004, pet. ref'd) (not designated for publication).
Considering the evidence in the light most favorable to the judgment, the record shows appellant followed Emmett in a white Chrysler 300 from Club Theory, to Whataburger, and back to Emmett's condo. Security footage indicates Emmett removed jewelry and gave it to appellant while appellant threatened him with a gun. Jones identified appellant's voice in the security footage and identified him as the shooter. Two witnesses testified they heard "chatter" on the street that appellant was not only involved in the murder, but also the shooter. A rational jury could have found beyond a reasonable doubt the State proved appellant's identity. Thus, the evidence is sufficient to support appellant's conviction for intentionally causing the death of Emmett by shooting him with a firearm in the course of committing or attempting to commit robbery. Appellant's first issue is overruled.
Modification of Judgment
In a cross-issue, the State requests modification of the judgment to properly reflect the trial court, not the jury, assessed punishment. The reporter's record reveals the trial court read the jury's unanimous guilty verdict and then orally imposed appellant's life sentence without the possibility of parole. It made an affirmative finding that a deadly weapon, a firearm, was used during the commission of the offense.
Where the record contains the necessary information to do so, the court of appeals has authority to modify the incorrect judgment. TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993) (en banc). Accordingly, we sustain the State's cross-issue and modify the trial court's judgment to reflect the trial court, not the jury, assessed punishment. See Cortez v. State, No. 05-22-00089-CR, 2023 WL 370180, at *1 (Tex. App.-Dallas Jan. 24, 2023, no pet.) (mem. op., not designated for publication) (modifying judgment to reflect trial court, not jury, assessed punishment).
Conclusion
As modified, we affirm the trial court's judgment.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court MODIFIED as follows:
Under "Punishment Assessed by: Jury," we DELETE "Jury" and REPLACE with "Trial Court."
As modified, the judgment is AFFIRMED.