Opinion
03-21-00500-CR
08-30-2023
Dylan David Nelson, Appellant v. The State of Texas, Appellee
Do Not Publish
FROM THE 155TH DISTRICT COURT OF FAYETTE COUNTY NO. 2020R-057, THE HONORABLE JEFF R. STEINHAUSER, JUDGE PRESIDING
Before Byrne, Chief Justice Triana and Smith Justices.
MEMORANDUM OPINION
Edward Smith, Justice.
Appellant Dylan David Nelson was convicted by a jury of murder and sentenced to life imprisonment. See Tex. Penal Code § 19.02(b)(1). In two issues, he contends that the trial court abused its discretion by admitting extraneous-offense evidence and that the court erred by ordering him to pay attorney's fees. We will modify the judgment of conviction to reflect that he does not owe attorney's fees and affirm the judgment as modified.
The jury also assessed a $10,000 fine.
BACKGROUND
Nelson was charged by indictment with the murder of Jeremy Cornwell. At trial, the State presented testimony from Daniel Cernoch, Jeremy's employer; Karen Cornwell, Jeremy's mother; Tessa Mangis, an acquaintance of Nelson; Emily Scott, Mangis' former supervisor; David Williams, a jail informant; Department of Public Safety Trooper Colby Havel; Hugo Moro, a tow-truck driver; Dr. Vickie Willoughby, a Travis County Medical Examiner; Fayette County Sheriff's Office (FCSO) Chief Deputy Randy Noviskie; Texas Ranger Brent Barina; Mallory Foster, a ballistics expert; and Ross Garcia, who purchased the alleged murder weapon. The State's exhibits included a recording of the 911 call, crime-scene and autopsy photographs, screenshots from Mangis' and Garcia's cell phones, video recordings of Nelson's interviews with law enforcement, the alleged murder weapon, an iPhone purportedly belonging to Nelson, ballistics evidence, and surveillance video from various businesses tracking Nelson's movements on the day of the alleged murder. The defense did not call any witnesses.
Mangis testified about her relationship with Nelson and his unwanted attention toward her. She first met Nelson, who is approximately four years older than her, when she was 12. When she turned 15, they began to text and to see each other frequently. Her cousin and friends became concerned about the difference in age between her and Nelson and cautioned her that he might be "grooming" her.
When she was 17, she realized that he was a bad influence on her, and "[c]ertain things" occurred, which "made [her] realize he was dangerous." Although she told him that they could not hang out anymore and stopped responding to him, he would "just show up." On multiple occasions, he drove from Cypress to her home in La Grange uninvited, which felt "very invasive." The "stalking" included "constant[]" calls and texts, and when he would show up at her friends' homes, she would pretend that she was not there. She testified that "[n]o matter how many times [she] tried to avoid him, he would always be there." She also described one incident approximately a month before the alleged murder in which he came to a barbecue at Jeremy's home uninvited and when asked to leave, invented a story about his brother dying in prison. After the lie was discovered, he produced a bottle of liquor and was allowed to stay. However, when the partygoers changed locations, he was again asked to leave but instead slept in his car in the front yard.
At the time, Mangis was in a relationship with Jekorion "Kory" Wilson. Nelson did not like Wilson, who was black, and would call Wilson racial slurs and forbid him from coming to his apartment.
On April 25, 2017, Nelson gave Mangis a .380 pistol as a birthday present. He had "multiple guns" and would carry them "on a regular basis." She gave the pistol to Wilson to sell, but it was taken by a "crackhead" and turned over to police. She informed Nelson that the pistol had been lost, and on July 4, 2017-the day before the shooting-he responded with texts indicating that he was angry and did not believe her explanation.
Specifically, Nelson texted, "Y'all got me fucked up if y'all think you ain't paying me back cuz I never told her she could take that Gun to Lagrange," and, "That crack head story was bullshit like I thought huh?".
He called her phone on July 5th while she was working at a sports bar, but she ignored his calls. In the afternoon, he showed up at the bar, and she hid in the back and asked her supervisor to tell him to leave. After twice disregarding the supervisor's instructions, Nelson went to the bar's private rear entrance, which the supervisor had locked because employees were concerned by his actions. He eventually left, and Mangis had no more contact with him.
Karen Cornwell testified about the events of July 5, 2017, the date of the alleged murder. She and Jeremy lived in "very close" neighboring homes on the family's property on Creamer Creek Road in La Grange. Jeremy had been living with his son Josh, but the two had a falling out, and, after Josh "beat up" a truck that Jeremy had given him, Josh moved to Arizona around July 1st to 3rd.
While at home on the evening of July 5th, Karen heard Jeremy shouting. She went to the window and heard approximately five "pops," which sounded like gunfire, coming from near Jeremy's home. She also noticed a red car in his driveway.
The next morning, she spoke with Cernoch, who had come to the property because Jeremy had not shown up for work. After Cernoch left, she went to check on Jeremy. The door to his home was closed, and she noticed that there were holes in it. When she opened the door, she saw him lying unmoving on the floor and called 911.
Dr. Willoughby testified that she performed Jeremy's autopsy. She testified that the manner of death was homicide and that the cause was gunshot wounds, of which there were at least seven. She also testified that all of the wounds were "from somewhere around the front or side of the body" and that although most of the bullets had exited the body, she was able to recover a bullet from Jeremy's back.
Williams testified regarding his attempts to obtain information about the shooting from Nelson while both were in the Fayette County Jail following Nelson's arrest for stalking. Williams, Wilson's cousin, had once dated Mangis and recognized Nelson. After they discussed the stalking allegations, Nelson told Williams that officers were "trying to pin a murder case on him." Over a serious of conversations, he told Williams "everything": that he drove to La Grange on July 5th to retrieve a firearm from Mangis; that he first went to Mangis' home, where her sister told him that Mangis was at work; that he attempted to confront Mangis at the bar but was made to leave by her supervisor, for which he was "beyond pissed"; that he next went to Wilson's home but did not find him; and that he ultimately went to Jeremy's house to ask Josh where Wilson was. Nelson explained that Jeremy had answered the door and that "the voices in his head told him that somebody needed to die." Nelson told Williams that he shot Jeremy with a 9mm pistol until the magazine was empty, that he "shot all the bullets out before the body even dropped," that he dragged the body into the home by the wrists, that he wrecked his car near the TA truck stop on Interstate 10 while driving back to Houston, that he was driven to the truck stop by a tow-truck driver, and that he tossed the pistol and his cellphone into a puddle of water near the truck stop.
Williams, who had met Jeremy, testified that he decided to tell a detective what Nelson had said because "Jeremy didn't deserve that" and because he believed that helping officers find the gun and cellphone would "be a way [he] could help" with the charges pending against him. He testified that before his conversation with Nelson, he did not have any information about the shooting and had not spoken about it with anyone. Williams reported Nelson's statements to Chief Deputy Noviskie and attempted to get more information from Nelson, including the exact location of the pistol. Williams told Nelson that they could pin the murder on Wilson but would need the murder weapon. Nelson stated that the gun was about 200 to 300 meters from the truck stop and that he had been walking against traffic on the left side of the road toward Houston when he tossed it. He also attempted to mark the gun's location on a map.
Trooper Havel testified that he was dispatched to a motor vehicle accident on Interstate 10 around 5:30 p.m. on July 5, 2017. He testified that the accident occurred "in the middle of Columbus and Sealy" and that the TA truck stop is eight to ten miles west of Sealy. The driver of a maroon 2007 Saturn Ion, Nelson, reported crashing into the cable barrier on the median after the car in front of him suddenly braked. Nelson twice went back to his car and appeared "nervous." Havel testified that he issued Nelson a citation for speeding, that the wrecked vehicle was towed by Delgado Wrecker Service, and that Nelson accompanied the tow-truck driver.
Moro, formerly a driver with Delgado, testified that he drove Nelson from the accident site to the nearest gas station, the TA truck stop. He testified that Nelson was shaking and "wasn't all there." He also testified that Nelson told him that he needed privacy to collect his belongings, which in Moro's twenty-year experience "was a first because [he] always help[ed] the people . . . get their stuff out."
Chief Deputy Noviskie testified about his role in the murder investigation. On July 6, 2017, he was called to the scene of a homicide on Creamer Creek Road and, per procedure, notified the Texas Rangers, who assigned Ranger Barina as the primary investigator. At the scene, Noviskie observed dried blood on the stairs leading to Jeremy's home as well as on the sidewalk in front of the stairs. He also observed gunshot holes in "a little pattern" in the home's wall that appeared to have been from bullets fired at a downward angle and that were "consistent with shots taken as an individual might have been going down." Jeremy was "basically right inside the door," and his leg was elevated onto a little table in the room. From a drag mark, Noviskie concluded that the body was dragged into the home. It appeared that someone had gone through items inside; there were ammunition boxes scattered on the floor. Similarly, Jeremy's truck door was open, there were blood stains on the running board and seat, and it looked as though someone had gone through the truck's contents. Officers recovered spent 9mm pistol casings from inside the carport near the walkway to the back patio.
With respect to Williams' account, Noviskie testified that Williams had details that only someone "who had been there" would know, that had not been published when Williams relayed them to him, and that even officers did not know, such as Nelson's wreck on Interstate 10 on the date of the shooting. Noviskie testified that from the information provided by Williams, officers had found a pistol and cellphone in dried puddles within 40 yards of the truck stop "right there in a ditch on the left." The pistol's magazine was fully loaded, and there was a round in the chamber. He testified that to his knowledge, the only way that Williams could have had all of those details was "straight from" Nelson.
Ranger Barina likewise testified about the investigation. He was present when officers processed the scene and observed that the spent casings were located to the right of the front door; from their location, he determined that the "approximate area" from which the shots were fired was under the carport. It appeared to him that Jeremy had been dragged into the home by his feet.
Nelson first came to Barina's attention on July 8th, when he was informed that Mangis had told officers that Nelson was in town, drove a red car, and had been looking for her on the day of the shooting. Neither Wilson nor Josh drove a red car, and at Barina's request, officers in Arizona confirmed that Josh was in that state.
On July 9th, Barina drove to Houston, interviewed Nelson, and searched his apartment pursuant to a warrant. Prior to the interview, officers obtained surveillance video from the sports bar and Kort's Korner, a convenience store located at the intersection of Country Club Drive-which connects to Creamer Creek Road-and U.S. 77, approximately two miles from Jeremy's home. On the Kort's Korner video, they observed a red-colored car missing the hubcaps on its passenger's side drive down Country Club Drive, away from Jeremy's home, and turn onto the highway at 4:42 p.m. on July 5th. In the video from the bar, Nelson could be seen wearing "distinctive" bright-neon-blue shoes with white soles.
Nelson began the interview, which was recorded, by telling Barina "some direct lies" until Barina confronted him with information known to law enforcement. Nelson at first said that he had a wreck when coming back from Columbus and that he had not been to La Grange in a month. When told that officers had surveillance video from the bar, however, he stated that he had gone to La Grange to collect $300 owed to him by his "cousin," who was avoiding him. He stated that after his cousin, Mangis, denied knowing him, he went home. He also stated that he did not know where Creamer Creek Road is and that he had been trying to find the highway when he was recorded in the Kort's Korner video. When Barina revealed that officers had looked at the texts on Mangis' phone and were aware of his real purpose in driving to La Grange, Nelson explained that she was going to pay him back for a firearm that she and Wilson had stolen from him. He said that after leaving the bar, he tried unsuccessfully to find Wilson but had not gone to Creamer Creek Road.
During the search of Nelson's apartment, officers failed to locate the clothes or shoes that he had been wearing in the surveillance videos from the date of the shooting. They did, however, find an empty shoebox for shoes consistent with those that Nelson was wearing in the videos.
On July 10th, officers obtained a search warrant for Nelson's vehicle and confirmed that it had no hubcaps on the passenger's side. The same day, he was arrested for stalking. Subsequent testing of swabs taken from the vehicle did not provide evidence of blood transfer.
Barina also testified about Williams' revelations and the subsequent search for the 9mm pistol and cellphone. He understood that Williams had come forward with the information "all on his own." He and Noviskie had interviewed Williams on July 17th, and he had known information that only Nelson, and not the general public, would have known.
The murder weapon, a Taurus 9mm pistol, was found on July 24th where Williams told Barina and Noviskie that it would be. Officers also found an iPhone, believed to be Nelson's, with the pistol, but the phone was damaged, and its contents could not be analyzed. Barina traced the pistol to Garcia and from information provided by him confirmed that he had sold the pistol to Nelson. Barina followed Nelson's route from the day of the shooting and determined that he could "easily drive those distances in the time allotted."
Foster testified that she tested four bullets submitted for analysis and that all four, including the bullet extracted from Jeremy's back, were fired by the Taurus 9mm pistol.
Garcia testified that he purchased the Taurus pistol but decided to sell it on Houston Gun Trader, a website. He testified that the buyer informed him that he lived in Cypress and drove a red Saturn Ion, in which he showed up to the sale on May 24, 2017. Garcia testified that he remembered the buyer as a slender white male-a description fitting Nelson- but could not identify him in the courtroom. Screenshots from Garcia's phone reflect that the buyer's number is the same as that identified by Mangis as belonging to Nelson.
The jury convicted Nelson of murder and, following a punishment hearing, sentenced him to life imprisonment and a $10,000 fine. This appeal followed.
DISCUSSION
I. Extraneous-Offense Evidence
In his first issue, Nelson contends that the trial court abused its discretion by admitting Mangis' testimony concerning several extraneous offenses, including testimony that (1) Nelson "stalked her in various ways"; (2) her friends and family were concerned that he was "grooming" her; (3) he called Wilson racial slurs and would not let him come to his apartment; (4) something happened that caused her to "cut [Nelson] off completely"; and (5) he lied about his brother's death and provided alcohol to minors. Nelson challenges the evidence's admission under Texas Rules of Evidence 403 and 404(b), arguing both that it was not admissible for a non-propensity purpose and that its probative value was substantially outweighed by a danger of unfair prejudice.
In its brief, the State contends that this Court need not address Nelson's arguments because they are multifarious. See Davidson v. State, 249 S.W.3d 709, 717 n.2 (Tex. App.- Austin 2008, pet. ref'd) (explaining that issue containing "more than one specific ground of error is a multifarious one" and that appellate courts "may refuse to consider it"). To the extent that these arguments are multifarious, we will address them in the interest of justice. See id. (noting that appellate courts "may consider multifarious issues if [they] can determine, with reasonable certainty, the alleged error about which the complaint is made").
A. Preservation
As a preliminary matter, we must determine to what extent Nelson's arguments are preserved for appellate review. Preservation of error is a systemic requirement on appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009) (citing Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005)). If an issue has not been preserved for appeal, we should not address the merits of that issue. Id. Ordinarily, we should review preservation of error on our own motion. Id. at 532-33; see Wood v. State, 560 S.W.3d 162, 165 n.8 (Tex. Crim. App. 2018); Darcy v. State, 488 S.W.3d 325, 327-28 (Tex. Crim. App. 2016).
In his brief, Nelson asserts that he preserved his evidentiary complaint "through pretrial motion, to the improper admission of [] extraneous and highly prejudicial extraneous offenses." Elsewhere, he asserts that the issue was preserved through a pretrial evidentiary hearing or, alternatively, by objections at trial to the screenshots from Mangis' phone and her testimony regarding the barbecue incident.
To preserve a complaint for appellate review, there must ordinarily be a timely, specific objection and a ruling by the trial court. Tex.R.App.P. 33.1(a). "To be timely, a complaint must be made as soon as the grounds for complaint [are] apparent or should be apparent." Wilson v. State, 7 S.W.3d 136, 146 (Tex. Crim. App. 1999). To be sufficiently specific, an objection need not employ "hypertechnical or formalistic . . . words or phrases," Golliday v. State, 560 S.W.3d 664, 670 (Tex. Crim. App. 2018); "magic words," Ford, 305 S.W.3d at 533; or a citation to a particular statute, Laws v. State, 640 S.W.3d 227, 229 (Tex. Crim. App. 2022) (quoting Ford, 305 S.W.3d at 533). Rather, the objecting party must "let the trial judge know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the judge to understand him at a time when the judge is in the proper position to do something about it." Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009); see Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). "This gives the trial judge and the opposing party an opportunity to correct the error." Pena, 285 S.W.3d at 464 (citing Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005)).
The complaint on appeal must also comport with the objection made at trial. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012); see Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) ("An objection stating one legal theory may not be used to support a different legal theory on appeal." (quoting Johnson v. State, 803 S.W.2d 272, 292 (Tex. Crim. App. 1990), overruled on other grounds by Heitman v. State, 815 S.W.2d 681, 685 n.6 (Tex. Crim. App. 1991))). Where it does not, nothing is presented for review. Williams v. State, 191 S.W.3d 242, 255 (Tex. App.-Austin 2006, no pet.); see Lovill v. State, 319 S.W.3d 687, 691-92 (Tex. Crim. App. 2009). In determining whether an issue on appeal comports with a trial objection, "we look to the context of the objection and the shared understanding of the parties at the time." Clark, 365 S.W.3d at 339 (citing Lankston, 827 S.W.2d at 911).
Nelson's motion to suppress did not raise the issues currently asserted on appeal.In it, he sought the suppression of all statements, "communications," and "tangible evidence" on the basis that officers had lacked probable cause for his arrest and that his statements were coerced and involuntary. Because the arguments raised in the motion do not comport with those on appeal, they preserve nothing for review. See Williams, 191 S.W.3d at 255.
To the extent that Nelson by "pretrial motion" refers to his motion in limine, such a motion does not preserve error. See Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007) ("[M]otions in limine do not preserve error.").
Similarly, the bases for his trial objections differ from the legal theories now alleged. He objected to admission of the screenshots from Mangis' phone solely on the ground that no proper predicate for the images had been laid. During her testimony concerning their relationship and the barbecue incident, he objected to a lack relevance, her nonresponsiveness, and the State's "testifying for the witness." Those objections do not preserve the present complaints alleging that the photographs and testimony were inadmissible under Rules 403 or 404(b). See Broxton, 909 S.W.2d at 918.
The scope of his objection during the pretrial evidentiary hearing was likewise limited to evidence of stalking, particularly texts sent by him to Mangis' phone on the day before the alleged murder. Defense counsel summarized the nature of the objection as follows:
Judge, first off, there was no stalking of [Mangis]. The texts were not sent to [Mangis]. The texts were sent to the boyfriend of [Mangis], and not [Mangis]. There's absolutely no proof that he was stalking her. There's also no proof that he went to any of these locations to look for a gun but simply to possibly look
for [Mangis].
There - it's other bad acts. They are trying to show that he's a bad character. They're trying to show that he has bad character by using this particular bad act in this case to show some sort of propensity to commit a murder. It doesn't go. It's violative of the rules, the Rules of Evidence.
It's clearly a bad act. They can't prove it beyond a reasonable doubt. And those particular text messages that they are trying to use and the information concerning the text messages has nothing to do with stalking because they are specifically not to [Mangis]. They are to the boyfriend. The boyfriend and him are talking, not him and [Mangis].
The State responded that the evidence was same-transaction contextual evidence and served to establish Nelson's motive for the alleged murder:
[T]he stalking is the basis of the defendant's arrest. It's why he was in custody at the time the statements were given. The stalking is part and parcel of the whole offense. It's part of the motive, the defendant's obsession with [Mangis] and following her around, him seeking the gun at various locations, him not finding the gun and getting frustrated and shooting this man who had nothing to do with it.
It's all part of the motive. It's all part of the case. It's interwoven with the case and, under the same transaction contextual evidence, it should be admissible.
At the hearing's conclusion, the trial court ruled that the defense's objection was overruled and that "the contextual evidence of the stalking comes in" with a contemporaneous limiting instruction regarding extraneous offenses. At no point during the hearing did Nelson challenge the evidence's admissibility under Rule 403 or assert that its probative value was outweighed by the risk of unfair prejudice. See Montgomery v. State, 810 S.W.2d 372, 388 (Tex. Crim. App. 1991) (op. on reh'g) (observing that Rule 404(b) objection does not preserve Rule 403 complaint); Lopez v. State, 200 S.W.3d 246, 251 (Tex. App.-Houston [14th Dist.] 2006, pet. ref'd) ("A rule 403 objection is not implicitly contained in relevancy or 404(b) objections; rather, a specific rule 403 objection must be raised to preserve error."). Thus, from the record we conclude that his first issue is preserved only insomuch as it challenges the admissibility under Rule 404(b) of evidence that he stalked Mangis and sought the return of a pistol. Conversely, he has failed to preserve error with respect to his Rule 403 complaint or the admissibility of Mangis' testimony concerning grooming, racial bias, what precipitated the end of their relationship, or his "bad character trait for lying and providing alcohol to minors." See Clark, 365 S.W.3d at 339.
B. Rule 404(b)
We review a trial court's decision to admit evidence for an abuse of discretion. Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016); see also Dabney v. State, 492 S.W.3d 309, 316 (Tex. Crim. App. 2016). An abuse of discretion does not occur unless the trial court acts "arbitrarily or unreasonably" or "without reference to any guiding rules and principles." State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)). In other words, we may not reverse the trial court's ruling unless the "decision falls outside the zone of reasonable disagreement." Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016); see also Henley, 493 S.W.3d at 83. An evidentiary ruling will be upheld if it is correct on any theory of law applicable to the case. Henley, 493 S.W.3d at 93 (citing De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009)).
Rule 404(b) provides that "[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Tex. R. Evid. 404(b)(1). The rule is one of inclusion, not exclusion-it excludes only evidence that is offered solely for proving bad character and conduct in conformity with that bad character. Dabney, 492 S.W.3d at 317. Extraneous-offense evidence may be admissible, however, "for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Tex. R. Evid. 404(b)(2).
These exceptions are neither mutually exclusive nor exhaustive. De La Paz, 279 S.W.3d at 343. Evidence of extraneous offenses may also be admitted to illustrate "other aspects of an 'indivisible criminal transaction,' also known as same-transaction contextual evidence." Inthalangsy v. State, 634 S.W.3d 749, 756 (Tex. Crim. App. 2021) (citing Tex. R. Evid. 404(b); Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011)). Same-transaction contextual evidence "refers to those events and circumstances that are intertwined, inseparable parts of an event that, if viewed in isolation, would make no sense at all." Delgado v. State, 235 S.W.3d 244, 253 (Tex. Crim. App. 2007); see Devoe, 354 S.W.3d at 469 (explaining that such evidence is appropriate where "several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony . . . of any one of them cannot be given without showing the others" (quoting Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000))). Its admissibility is justified because it is "intrinsic" to the charged offense, Worthy v. State, 312 S.W.3d 34, 39 (Tex. Crim. App. 2010); because it is impracticable to narrate one offense without the other, Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993); because the evidence "illuminate[s] the nature of the crime alleged," Camacho v. State, 864 S.W.3d 524, 532 (Tex. Crim. App. 1993); and because the jury "is entitled to know all relevant surrounding facts and circumstances of the charged offense," Devoe, 354 S.W.3d at 469. However, under Rule 404(b), same-transaction contextual evidence is admissible only when it is "necessary to the jury's understanding of the offense" and when the charged offense "would make little sense without the same-transaction evidence." Inthalangsy, 634 S.W.3d at 756 (citing Pondexter v. State, 942 S.W.2d 577, 584 (Tex. Crim. App. 1996)).
Here, as the State correctly recognizes, the charged offense would have made little sense to the jury in the absence of the stalking evidence and text messages. Mangis' testimony that Nelson would drive from Houston to La Grange and "just show up" uninvited at her home, her friends' homes, and her place of work provided the reason for his presence at Jeremy's home on the day of the alleged murder. Viewed in the light of her testimony, the text messages concerning the gifted pistol allowed the jury reasonably to infer that Nelson used the firearm as a pretext for seeing her after she had ended their relationship. His apparent obsession with her and disregard for her repeated demands that he stop contacting her likewise provided essential perspective for the jury to understand how her ignoring his phone calls and hiding from him at the bar affected his mental state and created a motive for the shooting. As Williams testified, Nelson was "beyond pissed off" that he had been unable to reach Mangis the day before the alleged murder and was similarly "beyond pissed" that Mangis' supervisor made him leave the bar. By the time he arrived at Jeremy's home, "the voices in his head told him that somebody needed to die."
Although it is at least questionable whether the text messages constitute evidence of wrongful actions by Nelson, we will construe them as extraneous-offense evidence for purposes of our analysis. See Manning v. State, 114 S.W.3d 922, 926-27 (Tex. Crim. App. 2003) (defining "extraneous offense" as "any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging papers").
The stalking testimony and text messages were thus necessary for the jury to contextualize Nelson's actions on the day of the alleged murder, from his decision to drive to La Grange to his attempts to confront Mangis and Wilson at Jeremy's and Mangis' homes and Mangis' work. Without the evidence, the State's theory-and Nelson's statements to Williams-would have appeared nonsensical and the shooting arbitrary. Moreover, Mangis' stalking allegations were the basis for Nelson's arrest on July 10th and provided not only the opportunity for his statements concerning the shooting to Williams but the impetus for the two to begin talking initially. Accordingly, the stalking testimony and text messages were necessary for the jury to understand the murder charge, which would have made little sense absent the extraneous-offense evidence. See Inthalangsy, 634 S.W.3d at 756.
Alternatively, the stalking evidence was also admissible to show Nelson's mental state under article 38.36 of the Texas Code of Criminal Procedure, which provides that in murder trials:
the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.Tex. Code Crim. Proc. art. 38.36.
As discussed above, the record suggests that Nelson's belief that "he had a right to be in [Mangis'] life," coupled with his inability to communicate with or confront her before and on the day of the alleged murder, caused him to become enraged and to shoot Jeremy. As his calls to Mangis were ignored or answered by Wilson, Nelson appears to have begun to spiral, becoming "beyond pissed" and driving to La Grange to meet with Mangis, purportedly concerning the lost pistol, about which he also appears to have felt aggrieved and betrayed. When he was unable to find her at her home and was forced to leave her work, he became angrier still, until voices in his head reportedly told him to kill someone. Because Mangis' testimony helped to illuminate his state of mind at the time of the shooting, it was admissible under article 38.36.
For these reasons, we conclude that the trial court did not abuse its discretion by admitting the stalking testimony or evidence that Nelson sought the return of a pistol he had given Mangis. See Dabney, 492 S.W.3d at 316. We overrule his first issue.
II. Attorney's Fees
In his second issue, Nelson contends that the trial court erred by ordering him to pay $400 in attorney's fees. In its brief, the State concedes that the trial court's order was erroneous.
"A defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant's financial circumstances occurs." Tex. Code Crim. Proc. art. 26.04(p); Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010). The trial court determined that Nelson was indigent, and we find nothing in the record to support a finding that his financial circumstances materially changed before the order to pay attorney's fees. Therefore, no evidence supports the trial court's order. See Tex. Code Crim. Proc. art. 26.05(g). Accordingly, we sustain Nelson's second issue and modify the judgment to reflect that he does not owe attorney's fees. See Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (courts of appeals have authority to modify judgment).
CONCLUSION
Having modified the trial court's judgment of conviction as set out above, we affirm the judgment as modified.
Modified and, as Modified, Affirmed