Opinion
No. 05-10-01410-CR
03-28-2012
MARTIN DAVID MCKEE, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion Filed March 28, 2012.
On Appeal from the 422nd Judicial District Court
Kaufman County, Texas
Trial Court Cause No. 28381-422
OPINION
Before Justices Lang, Murphy, and Myers
Opinion By Justice Myers
Appellant, Martin David McKee, was convicted of capital murder and sentenced to life imprisonment without parole. In eight points of error, he alleges (1) the evidence is insufficient to support the conviction; (2) the trial court erroneously failed to instruct the jury that a witness was an accomplice as a matter of law; (3) the evidence is insufficient to prove venue; (4) the trial court improperly commented on venue; (5) the trial court erroneously admitted four recorded telephone conversations; (6) the trial court failed to make written findings of fact and conclusions of law; (7) the trial court erroneously denied appellant's motion to suppress allegedly involuntary statements; and (8) the trial court improperly refused to suppress evidence that was obtained as a result of an illegal search. We affirm the trial court's judgment.
Background and Procedural History
On the morning of Tuesday, November 10, 2009, Johnna Warden was jogging along County Road 280 in rural Kaufman County, when she saw the body of a little girl in a water-filled drainage ditch. Warden called 911, and Kaufman County Sheriff's deputies were dispatched to the crime scene. They found two bodies in the ditch: a woman mostly submerged in the water and a child lying partially on top of her. To Kaufman County Sheriff's investigator Tim Moore, it appeared as though the two bodies had "slid down" into the ditch from the nearby roadway. Moore did not think anyone had disturbed the bodies before his arrival.
Texas Ranger William Eric Kasper was called to the crime scene to assist with the investigation. He viewed the two bodies after they had been pulled out of the ditch and moved to the nearby road. The girl was wearing a denim skirt and a blue shirt with a "white horse" and the words "Janie Stark" on it. There was no identification on either of the victims, but an internet search revealed that "Janie Stark" was the name of an elementary school in Farmer's Branch, Texas. Kasper got in touch with a detective from the Farmers Branch Police and asked him to contact the school to see if any female students were missing. On the afternoon of November 10, a Farmer's Branch Police sergeant went to Janie Stark Elementary School and found that a student, Korryn Threadgill (Threadgill), had been absent since Friday, November 6. This was unusual behavior for Threadgill, who was "normally always there." Threadgill's grandfather, James Olander, had been to the school looking for his granddaughter and his daughter, Fionna Olander (Olander), who was also missing. The school's information listed appellant as the "emergency contact."
Stokes forwarded photographs and information regarding both Threadgill and Olander to the Farmer's Branch detective, who shared the information with Kasper. Kasper reviewed the photographs and concluded Korryn Threadgill and Fionna Olander were the people found in the ditch.
According to the medical examiners, Korryn Threadgill died as a result of homicidal violence, including mechanical asphyxia, and Fionna Olander's death was caused by homicidal violence, including strangulation. Both victims had significant levels of cyclobenzaprine, a muscle relaxant, in their blood.
Brian Threadgill was Fionna Olander's ex-husband and the father of Korryn Threadgill. Brian testified that, at the time of her death, Olander worked for a government contractor, Siemens, in Richardson, Texas, and lived at an apartment complex in Addison, Texas. Brian knew appellant because Olander had dated him for more than a year. Before moving to the Addision apartment, Olander and Threadgill lived with appellant at his eighty-three year old grandmother's house on Mount View street in Farmer's Branch. Brian was familiar with the Mount View address because he had been there to pick up his daughter for visitation, and he noted it was "[e]asily five minutes" from Olander's Addison apartment. Brian testified his daughter was a well-behaved, scholarly child, and she feared appellant's temper. Brian recalled he had spoken to appellant about discipline and told him that if there was a problem with Threadgill, either he or Olander "would deal with it."
Based on the information linking the victims to the Mount View residence, Farmers Branch police officers conducted surveillance of that residence. On the night of November 10, 2009, they followed appellant as he drove away from the house in a black Toyota Corolla with another individual later identified as Virginia Gayle Youngblood. Officers stopped appellant after they saw him commit several traffic violations, and appellant was arrested based on outstanding traffic warrants. One of the Farmer's Branch officers, Pete Turner, noticed appellant had a "leather whip" draped around his neck. Appellant said "he did not want to go to jail with the whip," and "kept asking [Turner] over and over again can you please put this back in the car." The officer removed the whip from appellant's neck and put it back in the car. Appellant also told the officers there were knives in the car. When an officer looked in the back seat, he saw a double-edged dagger on the driver's side rear floorboard.
The officers began to do an inventory of the Corolla prior to impounding it, then suspended the inventory when they found a social security card belonging to "Barbara Ann Threadgill," which was Olander's name before her divorce from Brian Threadgill, in a silver case that was on the rear floorboard of the Corolla. The case also contained "a bunch of clear little plastic baggies" that were, according to Turner's testimony, "routinely used to distribute narcotics with," as well as a pair of scales often associated with narcotics distribution. The officers arranged for the Corolla to be towed to the Farmer's Branch police station, and obtained a search warrant before searching the vehicle any further. Resuming the search, officers found, among other items, a black purse in the trunk of the car. Inside the purse, officers found two prescription medication bottles that bore the name of Fionna Olander, and one of the prescription medications was cyclobenzaprine, a muscle relaxer. In a cardboard box that was on the car's back seat, inside a small purple case that was in a black leather case, officers found Olander's Texas driver's license and Threadgill's photographic school identification card, along with some bank and gift cards that belonged to Olander.
Virginia Gayle Youngblood testified against appellant as an accomplice witness under a grant of testimonial immunity. She recalled she first met appellant, who she also knew as "Mouse," in April 2009, and they had a sexual and drug-based relationship. From April 2009 until November 2010, Youngblood and appellant were together "[a]lmost daily." And when they were together, according to Youngblood, they had only two things, "[s]ex and drugs," or methamphetamine, on their minds. Youngblood noted appellant had a strong appetite for methamphetamine and "wide" sexual interests, including "group sex" and "kinky sex." Appellant thought of himself as "kind of a gigolo" or "swinger." Youngblood testified she and appellant would "party" for a "few hours" or even days at a time. Youngblood knew she did not have an exclusive relationship with appellant, and she became involved with him even though he was married to another woman, Zanelle McKee, who lived in Oklahoma, and appellant had been dating Olander for several years. Youngblood testified she had met the other two women at the Mount View address appellant shared with his grandmother.
On the night of November 6, 2009, appellant was released from the Dallas County Jail. He had been incarcerated there for approximately six weeks on charges of aggravated kidnapping and was released because the grand jury "no billed" the case. The following day, Saturday, November 7, was appellant's birthday, and the day after that, November 8, was Youngblood's birthday. When appellant arrived at Youngblood's house during the early morning hours of November 7, Youngblood gave him a silver case as a birthday present. It was intended for use as a "schiz" or drug paraphernalia kit. Appellant and Youngblood then went to appellant's grandmother's house to "party and have sex."
Appellant and Youngblood remained at appellant's grandmother's house through the weekend, spending most of their time "partying," using methamphetamine, and "having sex." Neither of them slept, according to Youngblood's testimony, on Friday night, Saturday, or Sunday. On the morning of Sunday, November 8, 2009, at approximately 8:00 or 9:00 o'clock, Olander came to appellant's grandmother's house. Youngblood saw Olander and appellant go "[d]own the hall and around the corner" to talk, but she could hear only muffled conversation. She did not hear any fighting or raised voices. Olander stayed about thirty minutes, then left. After Olander drove away, appellant told Youngblood that he and Olander "had just broke[n] up." At approximately 3 p.m. later that day, Youngblood and appellant left the Mount View residence in a black Toyota Corolla that belonged to appellant's grandmother, and drove to Olander's apartment in Addison "to pick up some stuff." Youngblood testified she had never before been to Olander's apartment and the drive took them less than ten minutes. Youngblood did not see any "moving boxes" in the car. They went to the apartment door and knocked. Olander answered the door and they went inside. Appellant "went down the hallway" toward the bedrooms, and Youngblood sat down in a chair in the living room and waited for him. She passed the time by playing a video game on her cell phone, while appellant went back and forth from the bedrooms and placed some items on one of the chairs in the living area, including CDs, a knife, and other "small things." Youngblood testified that, at one point, she heard "[a] little girl's voice" calling out for her mother, and appellant telling her that "she couldn't go in there right now." Youngblood "heard mumbling" but no screaming, yelling, or indications of fighting between appellant and Olander. Youngblood estimated she and appellant remained at the apartment for "[a]t least three hours."
Youngblood realized appellant had murdered Olander when she saw him carry her body into the living area, rolled up in a purple blanket. He laid the body on the living room floor. After appellant told Youngblood "what it was," she "tried to get to the back door to leave." But appellant grabbed Youngblood from behind by her arms and locked the door. Youngblood "tried to jerk loose" and hit her hand on the edge of the kitchen cabinet, fracturing her hand. With the door locked and "nowhere for [her] to go," appellant told Youngblood she "had to help him carry them out." When Youngblood refused, appellant threatened her. They argued, but Youngblood eventually gave up on escaping. Appellant then brought out the little girl's body wrapped in a blanket, and laid it on the floor beside her mother. The bodies remained there for "[a]bout thirty minutes or so." By the time they carried the bodies to Olander's SUV, which was parked about twenty feet from her front door, it was dark outside. Youngblood estimated the time to have been "[a]round 6:00 or 7:00" in the evening, possibly later. Youngblood helped appellant load the bodies--first the woman, then the child--into the SUV by holding the hatch open and keeping the vehicle's inside light dimmed. Appellant also "brought out a white trash bag from the back" of the apartment "with some stuff in it," and Olander's purse. He put those items in the back of the SUV. Appellant did not appear angry or upset, and seemed "very calm." He did not tell Youngblood what had happened in the apartment, and Youngblood was afraid to ask him about it because she feared she could be "next."
After the bodies were loaded into the SUV, appellant "gathered up the things in the recliner" and put them in the trunk of the Corolla. Youngblood and appellant remained in the apartment for about ten minutes, then appellant "walked" Youngblood to the Corolla. Youngblood drove the Corolla, and appellant followed her in the SUV. Appellant also took Youngblood's cell phone. They drove to Youngblood's house in Pleasant Grove. Youngblood testified she did not try to drive away because she thought appellant "would have just chased me down." When they reached Youngblood's house, they pulled into her driveway, parked the Corolla, and appellant told Youngblood to get into the SUV. They followed Highway 20 and headed east toward the point where Highway 20 and Highway 80 merge.
As they headed east, appellant's grandmother called Youngblood's cell phone at approximately 9:40 p.m. Appellant spoke to her briefly and told her "he'd be home in a little bit."
They exited Highway 20 near an Exxon gas station located at FM 1641 and drove down another road that Youngblood did not recognize. Appellant did not say anything. They eventually stopped in a remote area and appellant got out of the vehicle. He opened the rear hatch and walked to the back of the SUV. Then, with Youngblood holding the rear hatch open "to keep the light from coming on," appellant removed Olander's body from the back of the SUV, carried it to the edge of the road, pulled off the blanket, and rolled it down a slope into some water. They did the same thing with the child's body. Appellant tossed the blankets into the back of the SUV, and they drove to Youngblood's house.
Youngblood testified that, when they arrived at her house, she went inside to use the bathroom and appellant talked to Youngblood's former boyfriend, Billy Wayne Taylor. Appellant took Olander's purse and the white trash bag from the SUV, and put those items in the Corolla. He left the blankets in the SUV. Leaving the SUV parked at Youngblood's house, they got into the Corolla and drove to appellant's grandmother's house, arriving there after midnight. They stayed up all night but did not talk about what had happened. According to Youngblood, appellant did not express any remorse.
Youngblood and appellant remained together throughout the following day, Monday, November 9. In the morning, they made two trips to the Balch Springs Police Department to pick up personal property that belonged to appellant. Appellant obtained some cash using Olander's ATM card and bought gas. Youngblood testified she and appellant took methamphetamine at the home of a mutual friend, "Rambo," where they stayed for about an hour before returning to appellant's Mount View residence on the afternoon of November 9. Back at appellant's residence, they unloaded the property the police had confiscated, including a box containing computer equipment, and spent the evening "[h]aving sex and doing drugs." Youngblood also testified that, at one point that evening, she went outside and saw appellant in the back yard burning "[a] piece of plastic" that "was in the shape of a cell phone." She "went back in the house."
The property had been seized as part of the case against appellant that was "no billed," and was returned to appellant in a cardboard box.
By the morning of Tuesday, November 10, 2009, Youngblood and appellant had been awake since the night of Friday, November 6, and had been "high," according to Youngblood's testimony, for most of that time. In the early afternoon, while Youngblood and appellant were out looking for more "dope," appellant's grandmother called appellant on Youngblood's cell phone to tell him that Olander's father had been to her house looking for Olander, who was missing. They drove back to the Mount View residence, arriving there at about 3:00 p.m. that afternoon. Youngblood "gathered up" her belongings and put them in a box so that appellant could drive her home, and they put the box in the Corolla. Youngblood testified the box contained, among other items, her shirt and Olander's black camera case with a small purple wallet from Olander's purse. Youngblood also noted she saw appellant put the social security card for "Barbara Ann Threadgill" in the silver case she had given him for his birthday.
Youngblood and appellant left his grandmother's house in the Corolla at approximately 9:00 or 9:45 p.m. When they were pulled over by the Farmer's Branch police, appellant told Youngblood, "Keep your mouth shut." Youngblood was interviewed at the scene by Sergeant Sarah Rankin of the Kaufman County Sheriff's Department and Ranger Kasper. Youngblood recalled it was a lengthy interview, and that she did not tell the officers anything about what had been going on that day or her whereabouts during the weekend. At trial, Youngblood also noted that, at the time, she was afraid for her life because appellant had threatened her. After the interview, the officers drove Youngblood back to appellant's grandmother's house, where Taylor picked her up and drove her back to her house. She did not tell him what had happened, nor did she see the SUV on her property when she got home that night.
On the morning of Wednesday, November 11, Youngblood received a telephone call from appellant, who told her "they still had him for tickets, and that they were questioning him about Olander." They did not talk about keeping their "stories straight" or Youngblood's injured hand, but she assumed the telephone call was a reminder she was supposed to "keep my mouth shut." Youngblood also received two telephone calls from "Rambo" asking if Olander's SUV was still at Youngblood's house, and offering to buy it for $2500. Youngblood told him she did not know where the vehicle was located, which was not true. Later that day, Youngblood received a telephone call from Sergeant Keith Ramsey of the Kaufman County Sheriff's Office. Youngblood met Ramsey at a gas station near her house, where they talked for approximately an hour. At trial, Youngblood admitted she lied to Ramsey about the location of the SUV, telling him it was at a gravel pit. Later, while Youngblood watched police officers conduct a fruitless search of the gravel pit, she received a telephone call from Taylor. She spoke to Taylor several times, telling "him he needed to move the SUV if he had it." That night, as Youngblood was driven home from the gravel pit by her mother, she noticed the SUV had been moved to the corner of Teagarden Road and Hay Market Road, just outside of Youngblood's property.
On Thursday, November 12, Ramsey asked Youngblood to come to the sheriff's office. Youngblood accompanied Ramsey to the sheriff's office, where they had a long and contentious interview, after which Ramsey asked her to write a statement. At trial, Youngblood acknowledged much of her statement to Ramsey, which denied she had been to Olander's apartment or ridden in the SUV, was untrue. Youngblood also falsely insisted to Ramsey she was not with appellant "the whole time" on Sunday, November 8, and that Olander left her ATM card at appellant's grandmother's house on that Sunday morning. Youngblood testified Ramsey told her he did not believe her statement and she was "gonna get the needle over this deal," but she did not begin to cooperate with police until confronted with DNA evidence indicating she had been a passenger in the SUV. That same day, Youngblood was arrested and charged with capital murder.
Billy Wayne Taylor also testified for the State. He admitted that he had three prior felony convictions--two of which resulted in penitentiary time--and was on parole. He testified that he lived with Youngblood for twelve years until they ended their romantic relationship in 2002 or 2003, after which they remained friends because of their daughter, Aron. He acknowledged he lived with Youngblood again briefly in August of 2009, and that he did occasional favors for her. Taylor knew appellant because he was friends with Youngblood; he had met him "a few times." On the night of November 6, 2009, Taylor drove Youngblood to the Dallas County Jail to pick up appellant after his release, because Youngblood did not have a driver's license. Taylor drove appellant to his grandmother's house, dropped him off, and then Taylor and Youngblood went back to Youngblood's house. The next day, Youngblood called Taylor and told him "she was gonna be away from the house." Taylor then recalled waking up at Youngblood's home at approximately 2:00 or 3:00 in the morning--he was not sure about the day--and seeing a black SUV in the driveway. He called Youngblood and asked her about it, and she told him the SUV belonged to a friend of appellant's, "Collin," who was getting a divorce.
Taylor testified that Youngblood and appellant came to Youngblood's house some time "after daylight" in the Corolla that belonged to appellant's grandmother. He heard appellant indicate to Youngblood, who then told Taylor, that he wanted the SUV parked in the driveway "destroyed." According to Taylor, appellant's "exact words" to Youngblood were that he "[w]anted the car burnt, with a hole dug, it pushed off kin [sic] the hole and buried." Believing this was merely an "insurance job," Taylor agreed to participate. He testified he knew people who could sell a car for someone and "get it out of the area." After Youngblood and appellant took some items from the SUV and the house and put them in the Corolla, appellant handed the keys to the SUV to Taylor. Taylor assisted appellant in removing a spare tire from the SUV, which Taylor left by a tree. After Youngblood and appellant drove away in the Corolla, "at some point" Taylor--he had difficulty recalling specific dates and times--moved the SUV to the back of Youngblood's property at the request of Youngblood's mother, who did not want it parked in the driveway.
Taylor testified that the only way to move the SUV to the other side of Youngblood's property was to drive it through a neighbor's property. Taylor contended he spoke to the neighbor, James Howard, "and told him I was gonna cross the property in a car," but Howard testified that Taylor crossed his property without his permission or knowledge. When Taylor parked the SUV on the back of Youngblood's property, he removed a purple blanket from the vehicle and put it in a trash bag he took out of the back of the car. He also removed a blue blanket. Taylor testified he removed these items from the vehicle because Youngblood told him she "had a buyer" for the SUV, a man named "Rambo." Youngblood later called Taylor from the gravel pit, where she was with law enforcement officers, and told him to "get that car off the property." She also told Taylor "they thought [appellant] killed that girl." After this conversation, Taylor got in the SUV and quickly moved it from Youngblood's property to the corner of Teagarden Road and Haymarket Road, not far from Youngblood's house. He put the keys on the floorboard, wiped his fingerprints from the steering wheel, the gear shift, and the door handle using a towel he tossed in a nearby ditch, then walked home.
Taylor admitted he repeatedly lied to law enforcement officers. He acknowledged, for example, he lied when he told investigators Youngblood was with him during the weekend of the murders, and that an individual named "Collin" assisted appellant in bringing the SUV to Youngblood's home. Later, after he was arrested for tampering with evidence, Taylor gave another statement to law enforcement officers, and after being incarcerated for approximately five months, gave yet another statement and reached a deal with prosecutors to testify in return for immunity on the tampering with evidence charge. After his arrest, appellant gave two lengthy and rambling statements to Kaufman County Sheriff's sergeants Rankin and Joey Cagle. Both statements were videotaped and introduced at trial. The first interview, State's exhibit 207, occurred during the early morning hours of November 11, 2009, shortly after appellant's arrest. Appellant told the officers that Olander came to his house on Sunday morning "screaming" and "broke-up" with him. Appellant stated that the break-up occurred suddenly and without warning, and he repeatedly called Olander and left messages because he wanted to return her personal belongings, including her purse, but she would not return his calls. Appellant insisted he did not look through the purse, stating, "I don't go into a woman's purse." Appellant contended he did not know what was in the silver case because it did not belong to him and he did not open it. Appellant also told the officers that Youngblood injured her hand by slamming it on the counter during an argument with appellant, and that Youngblood had been angry with him because she caught him "with [his] hand in the cookie jar." When Rankin told appellant they had found a "dead woman" and a "dead child," appellant appeared to lose his composure for several minutes. Rankin testified she believed appellant's reaction was a "purported" display of emotion and "[t]here were no actual tears during the interview."
The prosecutor stated that portions of the videotaped statements were being muted by mutual agreement, but the record does not specify what portions of the statements were muted.
After Cagle mentioned the scratches on appellant's face, appellant told them Olander had scratched him during their argument, and police would probably find his DNA underneath Olander's fingernails. Appellant then mentioned he "may" have slapped Threadgill when she "clawed" him after he "got between" her and a stuffed animal. Appellant repeatedly said that when he left the apartment, Olander and Threadgill were "alive and well." Appellant told the officers that when he went to Olander's apartment, he followed her into the bedroom and back into the living room, Olander grabbed him, and that, when Olander would not let him go, he pushed her and caused her right shoulder to hit the door frame. Appellant also said he may have slapped Threadgill when she grabbed him after he picked up one of the child's stuffed animals, after which Olander took the child back to her room. Olander continued to yell at appellant as he retrieved files from his computer. They traded insults, and he left the apartment. He repeated, "When I left the apartment they were very much alive." Appellant told the officers he "really felt bad" about slapping Threadgill. He told them the breakup came as a shock to him because they had signed their last letters to one another while appellant was in jail as "my loving husband" and "my loving wife." Appellant contended they were trying to have a baby, and that they had discussed "stepping out" of their singles "swinger" lifestyle and buying a home.
Rankin testified that, after she and Cagle completed the interview, they went to the Dallas County Medical Examiner's Office to observe the autopsies of Olander and Threadgill. As they awaited the autopsies, Rankin received a telephone call from the Farmer's Branch Police Department that indicated appellant was asking to meet with them again. In the second videotaped interview, State's exhibit 208, appellant began by telling the officers his memory was clearer because he "had gotten a little bit of sleep." He stated he had looked through Olander's purse and used one of her ATM cards to purchase gas because he was angry that she would not return his telephone calls. He could not remember the name of the gas station. When Cagle asked how much methamphetamine Olander typically used in a day, appellant said he did not know she used methamphetamine, that her "drug of choice" was marijuana, and that her "thing" was pain pills, such as hydrocodone. He told the officers he had also used the ATM card from Olander's purse to withdraw $100 from her account, and that he and Youngblood had been together "the whole time."
Appellant explained that Olander's social security card fell out of her purse when he took the ATM card, and that he put the social security card in his silver box. When Rankin asked appellant when he had last had sex with Olander, appellant claimed to have been at the apartment less than thirty minutes, at around 6:45 or 7:00 a.m. in the morning, while Threadgill was still asleep. He said he had "quickie" sex with Olander, then he made coffee and copied files from Olander's computer. Appellant noted that some of the files on the computer included "sexual" pictures of appellant and Olander, and this was one of the reasons he and Olander were arguing. Pressed for further details of his argument with Olander and Threadgill, appellant told the officers that Olander started yelling at him after they had sex, that when he came out of the bedroom Threadgill came out of her room, Olander threw the stuffed animal at him, and Threadgill ran towards him, scratching him several times. Appellant said he pushed Olander and told her they needed a "time out" to calm down. He explained that, when they argued, he would often "grab" Olander and "hold her" to calm her down, and that he may have grabbed her arms and pushed her away, just to calm her down. Appellant also offered a different account of how Youngblood had hurt her hand, saying she injured her hand when they were in a storage shed moving boxes. Toward the end of the interview, appellant told the officers that Olander was angry with him because he would not give her drugs, and that he was not sure if Threadgill had slapped him. He also described slapping Olander on the side of her head with his open hand; he said he was trying to calm her down. Appellant told the officers that as he was trying to calm Olander, she received a telephone call, then told appellant she needed to leave the apartment. Appellant repeatedly told the officers, sometimes tearfully, that both Olander and Threadgill were alive when he left the apartment, and that he did not kill anyone.
Rankin testified in detail regarding cellular telephone records obtained from Olander, Youngblood, and appellant. Rankin testified the records showed Sunday, November 8 was the last day Olander's cell phone was ever used, that the only incoming calls were from appellant's residence or Youngblood, and the last call to Olander's phone occurred at 5:04 p.m. that day. Rankin also testified the investigation revealed appellant was unable to use his personal cell phone on November 8, and on that day he was using Youngblood's cell phone to send and receive calls. Rankin further testified that, from shortly after 2 p.m. on November 8 until 10:41 p.m. that day, all of the calls on Youngblood's cell phone were incoming, which was unusual for her. In addition, there were no text messages during that time period, which was likewise unusual. Rankin talked to "Collin," a school friend of appellant's, and to "Rambo," as well as other individuals, and found nothing that would have led her to suspect anyone other than appellant and Youngblood of involvement in the offense.
Three DNA analysts, Casey Dupont, Jill Cramer, and Barbara Leal, compared samples obtained from appellant, Youngblood, Olander, and Threadgill, to evidence obtained from Youngblood's house and Olander's apartment and SUV. "Presumptive" testing on a blue comforter found behind Youngblood's house revealed no blood stains on the comforter, but three hairs were present. Two of those hairs contained no DNA profiles, and partial testing on the third--a complete test could not be performed--showed a DNA profile that was "consistent" with Fionna Olander. Samples from blood stains on two plastic trash bags found in Olander's SUV did not match appellant's DNA profile, but were identified as originating from Threadgill. The probability that either sample originated from someone other than Threadgill was one in 2.641 quadrillion.
One of the blood stains from the cargo area of the SUV contained a mixture of DNA from more than one person. Appellant and Threadgill were excluded as potential contributors. But Dupont testified that "[w]hen that mixed profile was compared to the four individuals in this case, Fionna Olander could not be excluded" as a possible contributor, with a probability of one in 2.179 thousand Caucasians. Swabs from fingernail clippings taken from Olander's right hand showed a "mixture" of DNA, "including a male," and appellant could not be excluded as a "possible minor donor." Threadgill and Youngblood could be excluded as contributors, however, and the probability that appellant was not the "minor donor" was one in 1.176 thousand Caucasians. Testing of swabs taken from fingernail clippings from Threadgill's right hand showed a mixture of DNA, and appellant could not be excluded as a "possible minor contributor to that mixture." Additional DNA testing indicated that male DNA was not detected in the fingernail clippings from Threadgill's right hand. Further DNA testing of the nail clippings showed appellant could not be excluded as a donor of the DNA samples obtained from Olander's right hand, left hand, or Threadgill's left hand, with probabilities of, respectively, less than 1 in 11,393 males, 2 of 4,114 males, and 5 of 4,114 males.
Dupont noted there was not enough information in the sample to make a determination regarding Youngblood.
Cramer tested swabs obtained from Olander's SUV and found a "mixed" DNA profile on the gear shift--from which Youngblood was excluded but from which neither appellant nor the owner of the SUV, Olander, could be excluded. Cramer obtained a partial DNA profile from the passenger door's inside handle that excluded Olander, Threadgill, and appellant as contributors, but did not exclude Youngblood, with a statistical probability of one in 37,640 unrelated individuals. Cramer obtained a mixed DNA profile of several individuals from a swab of the SUV's steering wheel--from which Youngblood and Threadgill could be excluded but neither appellant nor Olander could be excluded as possible contributors. Rope found in the SUV's cargo area was "presumptive blood positive," and had a partial mixed DNA sample of at least two individuals. Youngblood and appellant were excluded as DNA contributors but Olander and Threadgill could not be excluded.
Appellant's partial DNA profile occurred in one in 1.017 million in one sample, and one in 1.282 million in the other sample. For Olander, the statistical probability was one in 1.282 million.
The statistical probability for Olander's DNA profile was one in 521,900 unrelated individuals, and for appellant's it was one in 487.
Adam Unnasch, a communications analyst with the Texas Department of Public Safety, reviewed cellular telephone records obtained from appellant, Youngblood, and Olander, and testified that cell phone tower operations indicated the general location of Youngblood's phone at different times on Sunday, November 8, 2009. A map of the locations of the various cell phone towers, along with appellant's Mount View residence, Olander's apartment, Youngblood's house, and the place where the victim's bodies were found, was introduced into evidence. Referring to the map as he testified, Unnasch first noted there were no phone calls on appellant's cell phone on November 8. The first call on Youngblood's phone occurred at shortly after 7:12 a.m. and was made in Farmer's Branch, not far from appellant's Mount View residence or Olander's apartment. All of the calls made to and from Youngblood's phone from 9:54 a.m. on November 8 until 8:51 p.m. were relayed through a cell tower that was, Unnasch agreed, "close by" Olander's apartment. The calls made to and from Youngblood's cell phone during the late evening hours on November 8 indicated routes of travel of her cell phone from an area near the intersection of Interstate Highway 635 North and Military Parkway, south to the vicinity of Interstate Highway 20, several miles east of 635, to an area several miles east of that point, in the direction of the place where the bodies of the two victims were found, then to an area near the location of Youngblood's house, and finally back to Farmer's Branch, near the location of appellant's Mount View residence. Unnasch acknowledged "tower overload" could have shifted cell phone calls from one cell tower to another.
The State also introduced audio recordings of four telephone calls appellant made shortly before his release from the Dallas County Jail on the aggravated kidnapping charge. These recorded conversations were between appellant and Olander, who briefly put Threadgill on the speaker phone, and appellant and his grandmother. The telephone call to Olander was recorded at the Dallas County Jail on Thursday, November 5, 2009, at 17:38:44 hours, and the three calls to appellant's grandmother were recorded there on Friday, November 6, at 14:15:23, 15.34:37, and 17:05:31 hours. In the phone conversation with Olander, appellant talked to her for several minutes about disciplinary problems she had been having with Threadgill. Appellant spoke with Threadgill on the speaker phone, scolding her for her attitude and telling her he would be released from jail and return to Olander's apartment "within the next few days, maybe a week," and that "we can either get right or get God, because I will get your ass." Referring to the disciplinary problems Olander said she was having with Threadgill, appellant told Olander she was too lenient with the child and that if "you can't have peace at night then have war. Have full scale one hundred percent war." Olander also told appellant that Threadgill "went to the verbal stabs at you," that Threadgill believed appellant was not a "good person" because he was in jail, and that Threadgill thought her father should be told that appellant was in jail. Olander said she told Threadgill her father "could already have found out" about appellant's criminal record if he really cared, and, in any event, the internet did "not tell the full story." In contrast to his chastisement of Threadgill, appellant's tone with Olander was mostly gentle and patient. Both appellant and Olander could be heard on the recording making mutually affectionate comments suggesting a close romantic and sexual relationship.
The CD with the recorded telephone calls, State's exhibit 219, contains other recorded telephone conversations, but only four were played for the jury.
In the first of the three telephone conversations with his grandmother, appellant and his grandmother began by discussing financial matters, including her efforts to post appellant's bond so he could be released from the county jail. Appellant asked his grandmother if Olander knew whether he was "getting out today." Appellant's grandmother said no, and appellant replied, "Good. Keep it that way, because they don't know." Appellant told his grandmother he wanted her to tell his wife, Zanelle, "word for word" that "I am as best as I can be. I meant exactly what my first letter said." Appellant emphasized that message was very important to him and he did not want it "adulterated" or "paraphrased" in any way. Appellant expressed frustration that his grandmother had disturbed some of his personal property, including his guitar and a book that belonged to him. Appellant said, "I'm gonna wreck a whole bunch of shop when I get home with a whole bunch of people." Appellant and his grandmother argued about his relationship with Samantha, a romantic friend of appellant's, and he took issue with his grandmother's opinion that Samantha was "trash." Appellant complained that his grandmother was "living in the 1950s," and that her social attitudes towards his female friends were out-of-date and unfair.
Appellant's grandmother said she asked Samantha, a romantic friend of appellant's, who lived at appellant's Mount View address before appellant's grandmother asked her to move out, to dispose of the book because it was a "piece of trash." She added, without further explanation, that the book was "about a woman having sex with a dog."
In the second conversation, appellant and his grandmother discussed the imminent posting of his bond. Appellant said he needed "a little time" with Samantha without Youngblood present. He also said he had "other plans" and "other machinations" that "nobody realizes and nobody knows." He said he intended to move back to Oklahoma to live with his wife, but the move would not be permanent, at least not right away, because there were other "things" he had to "take care of." He added, "Right now there are things in play that nobody knows about," and that he did not "usually include others in my machinations" because "it makes them accessories." He also said Youngblood had lied to him, and he knew she had lied because he found pictures on his camera of Youngblood and other several other individuals "engaging with one another" and "doing stuff with other people." Appellant said he was "sick and tired of everyone. Everyone. Fionna's fixing to feel the wrath, too, she's gonna be all lonely and wondering what the fuck just hit her." Appellant's grandmother mentioned Olander was having financial difficulties, including "lots of bank charges," and Olander had claimed to have "put money in your account twice." Appellant said, "No, she didn't," then added that he could no longer mail letters from the jail because he did not have "money for envelopes."
In the third conversation, appellant's grandmother told appellant she had spoken to appellant's wife and "gave her your message, exactly as you said." Appellant said he wanted Samantha to stay at the house after his release from the jail because he needed "some time away from [Youngblood]," but that was no longer possible because Samantha made other living arrangements after appellant's grandmother indicated she did not want Samantha to stay at the house. In an angry tone, appellant said he had "no choice" but to "play nice right now with a few people," and that "there are things in play you have no clue about." Growing more angry, appellant then said:
Well, stop trying to outplan me. . . . Everything I put in motion you try to rent [sic] asunder. Everything. It seems like everything I try to do you try to undo, because you don't approve of how it happens. I don't give a fuck who approves. Everybody needs to stop trying to undo my plans, because they're all for a good God-damn reason. I've got everybody fighting against me--nobody wants to do what I tell them to do, and sometimes I actually do know what the fuck is going on, and if they'd left it alone it would be okay.Appellant added, "You can accidentally fuck up more shit than anybody could purposefully undo, mamaw," and that, "You need to realize that if I'm doing something it might be for a reason." After castigating his grandmother for disrupting his personal life and for her "1950s outlook," appellant said he wanted to stop talking "because my blood pressure is getting up." Referring to the blood pressure medication he was taking in jail, appellant said,
Now, I don't have a choice right now but to play nice, so I'm going to play nice. Okay? Okay? So deal with the fact that I have to play nice right now with a few people I don't want to play nice with, for the simple fact that I need them in the position they're in--they're like little pawns on a chess board. They need to be where they're at to block some shit. Okay? I'm using certain people to keep idiots in check.
They have me on blood pressure medication in here. I was at the point of stroke and killing people, killing myself and killing everybody else because nobody wants to do what I say to do. . . .
I'm about to pop, and it's because nobody wants to let happen what I want to let happen. See, I was on the verge of R and G hanging themselves and going to prison for a long, long time. All I had to do was be at the house for a few weeks so that I could set it so that they were in the right place and right time when the feds rolled up on them. See, I don't let anybody know because it might slip out.
The jury convicted appellant of capital murder as charged in the indictment. The State did not seek the death penalty. Punishment was set by operation of law at life imprisonment without parole. See Tex. Penal Code Ann. § 12.31(a)(2) (West 2011). This appeal followed.
Discussion
Sufficiency of the Evidence and Accomplice Witness Corroboration
In his first point of error, appellant argues the evidence is insufficient to establish he participated in the offense. Appellant acknowledges there is no dispute Youngblood was involved in the murders of Fionna Olander and Olander's ten-year-old daughter, Korryn Threadgill. There is likewise no dispute Taylor assisted Youngblood in disposing of Olander's vehicle. But appellant contends the evidence is insufficient to prove he committed the offense of capital murder. When reviewing the sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 899-900 (Tex. Crim. App. 2010) (plurality op.); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters. Brooks, 323 S.W.3d at 899-900; Laster v. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009). Appellant was indicted for capital murder. A person commits the offense of capital murder if he commits murder and murders more than one person during the same criminal transaction. Tex. Penal Code Ann. §§ 19.02(b)(1), 19.03(a)(7)(A) (West 2011).
The jury charge included the following accomplice witness instruction regarding Youngblood:
The witness Virginia Gayle Youngblood is an accomplice, if an offense was committed, and you cannot convict the defendant upon her testimony unless you first believe that her testimony is true and shows that the defendant is guilty as charged, and then you cannot convict the defendant upon said testimony unless you further believe that there is other evidence in this case, outside of the testimony of Virginia Gayle Youngblood, tending to connect the defendant with the offense committed, if you find that an offense was committed, and the corroboration is not sufficient if it merely shows the commission of the offense, but it must also tend to connect the defendant with its commission, and then from all of the evidence you must believe beyond a reasonable doubt that the defendant is guilty of the offense charged against him.
When, as in this case, the State's case is based in part on the testimony of an accomplice, the sufficiency review must incorporate the accomplice witness rule stated in article 38.14 of the code of criminal procedure.
Article 38.14 provides that a conviction cannot stand on accomplice testimony unless there is other evidence tending to connect the defendant to the offense. The corroborating evidence under 38.14 need not be sufficient, standing alone, to prove beyond a reasonable doubt that a defendant committed the offense. All that is required is that there is some non-accomplice evidence tending to connect the defendant to the offense. . . . . There need be only some non-accomplice evidence tending to connect the defendant to the crime, not to every element of the crime.Joubert v. State, 235 S.W.3d 729, 731 (Tex. Crim. App. 2007) (emphasis in original; internal footnotes omitted). There is no set amount of non-accomplice corroboration evidence that is required for sufficiency purposes; each case must be judged on its own facts. Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008). Even apparently insignificant incriminating circumstances may sometimes afford satisfactory evidence of corroboration. Trevino v. State, 991 S.W.2d 849, 852 (Tex. Crim. App. 1999). Proof the accused was at or near the scene of the crime about the time of its commission, when coupled with other suspicious circumstances, may tend to connect the accused to the crime so as to furnish sufficient corroboration to support a conviction. Malone, 253 S.W.3d at 257. But mere presence alone of a defendant at the scene of a crime is insufficient corroboration of accomplice testimony. Id.
The appellate court views the corroborating evidence in the light most favorable to the jury's verdict. Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994). "The appellant's liability as a principal or under a parties theory is of no relevance under an Article 38.14 analysis. The question is whether some evidence 'tends to connect' him to the crime; the connection need not establish the exact nature of his involvement (as a principal or party)." Joubert, 235 S.W.3d at 731.
The record in this case contains significant non-accomplice evidence tending to connect appellant to the offense, including the results of the search of the Toyota Corolla, Taylor's testimony, the cellular telephone records, records from the cell phone tower operations that indicated the location and movement of Youngblood's cell phone on the day of the offense, DNA evidence, the jail-recorded telephone conversations, and appellant's statements to the police. The non-accomplice corroborating evidence may not have been sufficient to prove guilt beyond a reasonable doubt. See Joubert, 235 S.W.3d at 731. But it was sufficient for a rational jury to have concluded the corroborating evidence tended to connect appellant to the offense. See id.; Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999). Moreover, having carefully reviewed the evidence under the appropriate standard, we find sufficient evidence from which a rational jury could have found appellant guilty of capital murder. We overrule appellant's first point.
Was Taylor an Accomplice Witness as a Matter of Law?
In his second point of error, appellant argues the trial court erred by failing to instruct the jury that Taylor was an accomplice witness as a matter of law.
The record shows appellant did not request an accomplice witness instruction regarding Taylor, he did not object to the jury charge on that basis, and he did not make any other objections to the charge. Initially, we must therefore determine whether error occurred, and if it did, we must then evaluate whether sufficient harm resulted from the error to require reversal. Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994). Under Almanza, jury charge error requires reversal of the judgment when the defendant has properly objected to the charge and the appellate court finds "some harm" to his rights. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). When, however, the defendant fails to object or states that he has no objection to the jury charge, an appellate court will not reverse for jury charge error unless the record shows "egregious harm" to the defendant. Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005). Regarding accomplice witnesses, a court of criminal appeals case provides the following guidance:
Texas law requires that, before a conviction may rest upon an accomplice witness's testimony, that testimony must be corroborated by independent evidence tending to connect the accused with the crime. This accomplice witness rule creates a statutorily imposed review and is not derived from federal or state constitutional principles that define the legal and factual sufficiency standards. An accomplice is someone who participates with the defendant before, during, or after the commission of a crime and acts with the required culpable mental state. To be considered an accomplice witness, the witness's participation with the defendant must have involved some affirmative act that promotes the commission of the offense with which the defendant is charged. A witness is not an accomplice witness merely because he or she knew of the offense and did not disclose it, or even if he or she concealed it. In addition, the witness's mere presence at the scene of the crime does not render that witness an accomplice witness. And complicity with an accused in the commission of another offense apart from the charged offense does not make that witness's testimony that of an accomplice witness. In short, if the witness cannot be prosecuted for the offense with which the defendant is charged, or a lesser-included offense of that charge, the witness is not an accomplice witness as a matter of law.Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007) (footnotes omitted). Taylor was not charged with capital murder or any lesser included offense thereof. He received immunity from prosecution for the offense of tampering with physical evidence, but Taylor's role in tampering with or concealing evidence does not make him an accomplice to capital murder as a matter of law. Tampering with physical evidence is not a lesser-included offense of capital murder. See Dermody v. State, No. 03-02-00279-CR, 2002 WL 31317126, at *3 (Tex. App.--Austin Oct. 17, 2002, no pet.) (not designated for publication) (noting alleged accomplice was convicted of tampering with physical evidence, not capital murder, and tampering with physical evidence is not a lesser included offense of capital murder). Furthermore, there is no evidence showing Taylor was present during the commission of the murders, that he had any advanced knowledge of them, or that he committed any affirmative act to promote or assist in the commission of the murders. Based on our review of the evidence, we conclude the trial court did not err by refusing to submit an accomplice witness instruction regarding Taylor because there was no evidence he was an accomplice witness as a matter of law. We overrule appellant's second point.
Venue
In his third point of error, appellant argues the evidence was insufficient to prove venue for the offense of capital murder. Appellant notes it is undisputed that the murders of the two victims occurred at Olander's apartment in Addison, which is in Dallas County, and that their bodies were found in Kaufman County. The indictment alleged that the offense occurred in Kaufman County. Appellant contends that article 13.07 of the code of criminal procedure, which provides that if a person receives an injury in one county and dies in another by reason of such injury, the offender may be prosecuted in the county where the injury was received or where the death occurred, or in the county where the dead body was found, does not apply to capital murder. See Tex. Code Crim. Proc. Ann. art. 13.07 (West 2005). Appellant suggests the applicable venue statute is the general venue statute of article 13.18, which provides that if venue is not specifically stated, the proper county for the prosecution of offenses is that in which the offense was committed. Id. art. 13.18. The State responds that appellant failed to timely raise the issue of venue.
We presume venue was proved in the trial court unless the matter was disputed in the trial court or the record affirmatively shows to the contrary. Tex. R. App. P. 44.2(c)(1). Venue must be proved only by a preponderance of the evidence, which may be either direct or circumstantial. Tex. Code Crim. Proc. Ann. art. 13.17 (West 2005); see Murphy v. State, 112 S.W.3d 592, 564 (Tex. Crim. App. 2003); Black v. State, 645 S.W.2d 789, 790 (Tex. Crim. App. 1983). The trier of fact may make reasonable inferences from the evidence to decide the issue of venue. Hernandez v. State, 198 S.W.3d 257, 268 (Tex. App.--San Antonio 206, pet. ref'd). The evidence is sufficient if the jury may reasonably conclude the offense was committed in the county alleged. Rippee v. State, 384 S.W.2d 717, 718 (Tex. Crim. App. 1964).
In this case, appellant does not direct us to any place in the record where he disputed venue, nor does our own review of the record show any such objection. Furthermore, we note that, during the voir dire, appellant's trial counsel had the following exchange with two of the panel members:
[DEFENSE COUNSEL]: Yes, sir, Mr. Erickson.
VENIREPERSON: Didn't the prosecutor say that the actual act could have occurred somewhere else?
[DEFENSE COUNSEL]: Yes.
VENIREPERSON: And then they recovered the bodies here in Kaufman County?
[DEFENSE COUNSEL]: That is correct. That's why Kaufman County is trying this case, because the bodies were recovered here.
VENIREPERSON: And yet the offense part of it may have occurred outside of Kaufman County?
[DEFENSE COUNSEL]: Yes, sir.
VENIREPERSON: Okay.
[DEFENSE COUNSEL]: Yes, sir. But Kaufman County, in this particular case we don't contest jurisdiction over the matter with regards to where the bodies are found, okay. Ms. Blanton, are you all right with that?
VENIREPERSON: I'm all right with it.
Because appellant did not timely raise the issue of venue at trial, appellant waived any venue challenge. See Heiman v. State, 923 S.W.2d 622, 624 (Tex. App.--Houston [1st Dist.] 1995, pet. ref'd) (appellant waived venue issue by not raising it at trial); Creekmore v. State, 860 S.W.2d 880, 889 (Tex. App.--San Antonio 1993, writ ref'd) ("Improper venue, not being a jurisdictional flaw, may be waived by the defendant's failure to raise it as an issue at trial."); see also Aponte v. State, No. 05-09-01088-CR, 2012 WL 266446, at *5 (Tex. App.--Dallas Jan. 31, 2012, no pet.) (not designated for publication); Green v. State, No. 05-09-01254-CR, 2012 WL 75661, at *6 (Tex. App.--Dallas Jan. 11, 2012, no pet.) (not designated for publication). Appellant's third point is overruled.
Lack of a Venue Instruction in the Jury Charge
In his fourth point of error, appellant argues the trial court "commented that the State proved venue by failing to instruct the jury on venue." The State responds that appellant waived any error by failing to object to the omission in the court's charge and failing to request submission of venue instructions, and that, in any event, the charge did not comment on the weight of the evidence.
The sua sponte duty of the trial judge to instruct the jury on the law applicable to the case does not necessarily extend to all potential defensive issues, lesser-included offenses, or evidentiary issues. Generally, such issues depend on trial strategy and tactics and are .law applicable to the case. for purposes of article 36.14 only if raised by the evidence and requested to be included in the charge. Delgado v. State, 235 S.W.3d 244, 249-51 (Tex. Crim. App. 2007).
Appellant did not object to the court's charge, which included no instructions on venue, and appellant has not directed us to any place in the record showing he disputed the issue of venue. Our own review of the record shows no such objection. "'Venue is not a 'criminative fact and thus, not a constituent element of the offense.'" Creekmore, 860 S.W.2d at 889 (quoting Fairfield v. State, 610 S.W.2d 771, 779 (Tex. Crim. App. 1981)). Having therefore failed to contest the issue of venue at trial or object to the charge on that basis, appellant has not shown he suffered egregious harm. Ngo, 175 S.W.3d at 743-44; Almanza, 686 S.W.2d at 174. We overrule appellant's fourth point of error.
Recorded Jail Telephone Conversations
In his fifth point of error, appellant argues the trial court erred by admitting the audio recordings of the four telephone calls made from the county jail because the probative value of that evidence was outweighed by the substantial risk of prejudice "from the indications that [a]ppellant was an unsavory character with nefarious intentions." See Tex. R. Evid. 403.
We review a trial court's ruling on the admissibility of evidence for an abuse of discretion. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). We must uphold the trial court's ruling so long as it is within the zone of reasonable disagreement. Id.
Texas Rule of Evidence 403 provides: "[A]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403. All testimony will be prejudicial to one party or the other. Joiner v. State, 825 S.W.2d 701, 708 (Tex. Crim. App. 1992). It is only when a clear disparity exists between the degree of prejudice of the proffered evidence and its probative value that rule 403 is applicable. Id. Unfair prejudice does not mean the evidence injures the opponent's case-the central point to offering evidence. Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999). Rather, it refers to "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Id. Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009); Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006). It is the opponent's burden to demonstrate the prejudicial attributes of the evidence and to show how these attributes substantially outweigh the probative value of the evidence. Sosa v. State, 230 S.W.3d 192, 195 (Tex. App.--Houston [14th Dist.] 2005, pet. ref'd). "A proper Rule 403 analysis includes, but is not limited to, the following factors: (1) the probative value of the evidence; (2) the potential of the evidence to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence." Prible v. State, 175 S.W.3d 724, 733 (Tex. Crim. App. 2005). The trial court is presumed to have conducted the proper balancing test if it overrules a 403 objection, regardless of whether it conducted the test on the record. See Williams. v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997). Weighing the rule 403 factors, the disputed evidence was probative because it tended to show the nature of appellant's relationship with Olander and Threadgill shortly before his release from the county jail, appellant's state of mind, that appellant and Olander ostensibly intended to resume their romantic relationship after appellant's release, but that appellant harbored suspicions about Olander and did not want Olander or Threadgill to know when he was going to be released from jail. The State's need for the evidence was significant because it tended to show appellant's interactions with Olander, Threadgill, and his grandmother shortly before the murders, and because the witnesses' testimony regarding appellant's activities that weekend and the nature of his relationship with Olander was inconsistent. Further, the evidence had little potential to impress the jury in some irrational, yet indelible, way. Appellant contends the State admitted the tapes "for the powerful value of showing [a]ppellant's abhorrent lifestyle and negative style of interpersonal relations," and to mislead the jury that appellant's "wrath" was a motive for killing Olander. But appellant spoke about his "swinger" lifestyle, sexual and drug-related activities, and his volatile relationships with various individuals in much greater detail during the extensive video-recorded interviews with Rankin and Cagle. In addition, the jury heard the full recordings of the three admitted telephone calls between appellant and his grandmother, and could view the context of appellant's "wrath" comment. We also conclude the State did not spend an excessive amount of time developing the disputed evidence. The four recorded telephone calls are of relatively brief duration compared to the lengthy video-recorded interviews between appellant and law enforcement officers. We therefore conclude the trial court did not abuse its discretion by admitting the complained-of evidence. We overrule appellant's fifth point of error.
Trial Court's Failure to File Findings of Fact
In his sixth point of error, appellant argues the trial court erred by failing to file written findings of fact and conclusions of law concerning whether his videotaped statements to the police were voluntary. On our own motion, on January 18, 2012, we abated this case and remanded it to the trial court to file written findings of fact and conclusions of law. Pursuant to our order, the trial court rendered findings and conclusions in an order signed on January 25, 2012. Appellant's sixth point is therefore overruled as moot. See Rocha v. State, 16 S.W.3d 1, 10 (Tex. Crim. App. 2000).
Voluntariness of Appellant's Recorded Statements
In his seventh point of error, appellant argues the trial court erred by denying his motion to suppress "his statements as involuntary due to substantial sleep deprivation." Appellant alleges he had been awake for approximately five days prior to giving his recorded statements, and that the sleep deprivation "was evidently fueled by prolonged methamphetamine use."
The record shows that, prior to the trial of this case, the trial court held a hearing regarding various pretrial motions, including appellant's motion to suppress, which alleged in part:
Any statements obtained from [appellant] were obtained in violation of Article 38.22 of the Texas Code of Criminal Procedure and in violation of the rights of [appellant] pursuant to the Fourth, Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution, Article I, Sections 9, 10, and 19 of the Constitution of the State of Texas.During that hearing, defense counsel told the court there might be some defense challenges to the voluntariness of appellant's several video-recorded statements to the police, but counsel deferred her arguments until the parties could confer. The trial court took the matter under advisement in order to give the defense an opportunity to review the recorded statements and make objections. Later, during trial, defense counsel told the court during a hearing held out of the jury's presence that the two recorded statements the State anticipated offering into evidence should be suppressed because appellant had invoked his right to counsel. The trial court concluded appellant had not invoked his right to counsel, and orally denied the motion to suppress as to both statements. Appellant never advised the trial court of any complaint regarding the voluntariness of his statements based on sleep deprivation caused by drug use. Thus, appellant did not preserve this claim for appeal. See Tex. R. App. P. 33.1(a); Leza v. State, 351 S.W.3d 344, 354 n.28 (Tex. Crim. App. 2011).
In the trial court's written "findings on [a]ppellant's objections to admissions of his oral statements," signed following the remand order from this Court, the trial court found appellant knowingly waived his right to counsel and made the statements in the first and second videotaped statements freely and voluntarily.
But even if appellant's contention was preserved, the record shows appellant's statements were voluntary. We review a trial court's ruling on a motion to suppress for abuse of discretion, using a bifurcated standard. See Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). Generally, with respect to a suppression ruling the trial court's findings of historical fact supported by the record, as well as mixed questions of law and fact that turn on an evaluation of credibility and demeanor, are given "almost total deference." Id. at 89. A de novo standard is applied to a trial court's determination of the law and its application of law to the facts that do not turn upon an evaluation of credibility and demeanor. Id. We will uphold a trial court's ruling on a motion to suppress if the ruling is reasonably supported by the record, and the ruling is correct under any theory of law applicable to the case. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). Regarding any argument that drug use rendered appellant's waiver involuntary for Fifth Amendment purposes, the record shows any tendency the drugs may have had to overbear appellant's will to resist waiving his Miranda rights was not due to any actions of the police. See Leza, 351 S.W.3d at 350 (although police were told shortly after interrogation began appellant had "'shot up' with heroin just before he was arrested, any tendency that the influence of heroin may have had to overbear his will to resist waiving his Miranda rights was due to no causative action on the part of the police, and therefore cannot serve to undermine the voluntariness of his subsequent statements for Fifth Amendment purposes."). Before one can say a waiver of the Miranda right was involuntary, there must be some element of official intimidation, coercion, or deception. Id. at 349. The record before us, however, contains no indication of any official action that could be characterized as intimidation, coercion, or deception. A defendant's voluntary choice to take drugs does not undermine the voluntariness of his statement for Fifth Amendment purposes. See id. at 350.
Moreover, to the extent appellant argues the drug use impacted the voluntariness of the waiver of his statutory rights under article 38.22, we note that, unlike a Fifth Amendment claim, .a claim that a purported waiver of the statutory rights enumerated in Article 38.22 is involuntary .need not be predicated on police overreaching... See Leza, 351 S.W.3d at 352 (quoting Oursbourn v. State, 259 S.W.3d 159, 172 (Tex. Crim. App. 2008)). The court of criminal appeals explained that .[c]ircumstances unattributable to the police that nevertheless impact an accused's ability to resist reasonable police entreaties to waive his statutory rights, such as intoxication, are .factors' in the voluntariness inquiry, though they .are usually not enough, by themselves, to render a statement inadmissible under Article 38.22.." Id. (quoting Oursbourn, 259 S.W.3d at 173).
In this case, Rankin began the first interview by reading appellant his Miranda rights, including the right to terminate the interview at any time. Appellant affirmatively indicated he understood those rights. The videotape shows appellant willingly participated in the interview. It does not show any improper conduct by the police. Appellant calls our attention to testimony that, by the morning of Tuesday, November 10, 2009, Youngblood and appellant had been awake since approximately Friday, November 6, and had been "high" for most of that time. But Rankin testified she believed, based on her investigation and her familiarity with appellant's and Youngblood's "lifestyle," that "[b]eing up all night" was not unusual behavior for them. The record also shows appellant told the officers at the beginning of the second interview he asked for them to return because he had gotten "a little bit of sleep" during the hours between the two interviews. The recording of the second interview again shows appellant willingly participated in the interview. It does not suggest any improper conduct by the police. Accordingly, the trial court did not abuse its discretion by admitting appellant's two videotaped statements. We overrule appellant's seventh point of error.
Inventory Search of the Toyota Corolla
In his eighth point of error, appellant argues the trial court erred by refusing to suppress evidence obtained from the search of the Toyota Corolla. Appellant contends "[t]here was no probable cause to justify a search of [a]ppellant's car without evidence discovered during an inventory search of a closed container in [a]ppellant's car," and, "[a]bsent any showing that the police department had a standard policy regarding the handling of closed containers during an inventory search, the inventory exception to the probable cause requirement was inapplicable."
Appellant's objections at trial to the search were that the warrantless stop was not authorized, the car was improperly impounded because it could have been released to the custody of another person or parked, the State did not articulate the reason for the impoundment, the search warrant was improper because there was insufficient evidence it was issued by a "municipal court of record," and that there was an unspecified Franks error in the search warrant affidavit. Appellant did not argue that the inventory of a closed container was outside the Farmer's Branch Police Department policy, nor did he object regarding the scope of the inventory search. Detective David Barnett of the Farmer's Branch Police, who testified at the suppression hearing, testified at trial that he drafted the search warrant, then inventoried the Toyota Corolla with the assistance of another officer, Lt. Siegel. Barnett also testified as follows:
See Franks v. Delaware, 438 U.S. 154, 155-56 (1978) (in deciding whether intentional misrepresentations in warrant affidavit require suppression of evidence obtained as a result of search, courts must excise the false information and decide if sufficient, untainted information exists to establish probable cause in affidavit).
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Q. [DEFENSE COUNSEL:] So the search of the vehicle is just for impoundment purposes, correct?No other questions were posed to Barnett regarding the inventory policy of the Farmer's Branch Police Department.
A. [BARNETT:] Correct.
Q. And what is your department's policy with regards to impounding vehicles?
A. Once a person has been arrested in the vehicle, if there is no one left to release the vehicle to, then we impound it. And part of the impound process is we do an inventory of the vehicle, just basically go inside and check off everything we find on the inside of the vehicle.
The point of error on appeal must comport with the objection made at trial. See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (to preserve error for appellate review, objection at trial must comport with point of error on appeal); Martinez v. State, 17 S.W.3d 677, 682 (Tex. Crim. App. 2000) (argument based on lack of authority to consent to search was not preserved when only argument at trial was voluntariness of consent); Johnson v. State, 803 S.W.2d 272, 292 (Tex. Crim. App. 1990) (an objection stating one legal theory may not be used to support a different legal theory on appeal), overruled on other grounds by Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991). This is true even though the alleged error may concern a constitutional right of the defendant. See Davis v. State, 313 S.W.3d 317, 347 (Tex. Crim. App. 2010). Because appellant's complaint on appeal does not comport with the trial objections, appellant did not preserve his complaint for appellate review. We overrule appellant's eighth point.
We affirm the trial court's judgment.
LANA MYERS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101410F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MARTIN DAVID MCKEE , Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01410-CR
Appeal from the 422nd Judicial District Court of Kaufman County, Texas. (Tr.Ct.No. 28381- 422).
Opinion delivered by Justice Myers, Justices Lang and Murphy participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 28, 2012.
LANA MYERS
JUSTICE