Opinion
NO. 01-18-00551-CR
11-21-2019
Timothy Scott PARLIN, Appellant v. The STATE of Texas, Appellee
Dal Ruggles, 1103 Nueces St., Austin, Texas 78701, for Appellant. Margaret Moore, District Attorney, Travis County, Texas, Lisa Stewart, P.O. Box 1748, Austin, Texas 78767, for Appellee.
Dal Ruggles, 1103 Nueces St., Austin, Texas 78701, for Appellant.
Margaret Moore, District Attorney, Travis County, Texas, Lisa Stewart, P.O. Box 1748, Austin, Texas 78767, for Appellee.
Panel consists of Justices Radack, Landau, and Hightower.
Sarah Beth Landau, Justice The State charged Timothy Scott Parlin with five counts of capital murder. Parlin pleaded not guilty to all five counts and "not true" to both enhancement paragraphs. The case was tried to a jury, and the jury convicted Parlin of capital murder. At sentencing, the State waived three counts, leaving two counts of capital murder. See TEX. PENAL CODE § 19.03(a)(2), (a)(7)(A). The trial court sentenced Parlin to life imprisonment without the possibility of parole. See id. § 12.31. In two issues, Parlin contends the trial court erred by denying his motion to suppress custodial statements and admitting the testimony of a witness. We affirm.
Count I alleged the murders of Kathy Blair, Billie Shelton, and Sidney Shelton under Texas Penal Code section 19.03(a)(7)(B). Count II alleged the murder of Kathy Blair in the course of committing burglary of a habitation under Texas Penal Code section 19.03(a)(2). Count III alleged the murders of Sidney Shelton and Billie Shelton during the same criminal transaction under Texas Penal Code § 19.03(a)(7)(A). Count IV alleged the murder of Sidney Shelton in the course of committing burglary of a habitation under Texas Penal Code section 19.03(a)(2). Count V alleged the murder of Billie Shelton in the course of committing burglary of a habitation under Texas Penal Code section 19.03(a)(2).
A. Murder of Kathy Blair
Kathy Blair rented a home on Tamarack Trail from James Willett. Willett hired Timothy Scott Parlin and his brother to perform yardwork and landscaping. Although apologetic, Willett fired Parlin when it took too long to complete the tasks.
Lieutenant Joseph Hargis is Blair's son. He temporarily resided with his mother beginning in November 2014. On December 6, 2014, Lieutenant Hargis discovered his mother's body on her bedroom floor covered in a dark red substance. Lieutenant Hargis called 911, and a paramedic later determined that Blair was deceased. The medical examiner concluded Blair's cause of death was multiple sharp force injuries with asphyxiation. The investigators saw "Shoes For Crews"-brand shoeprints tracked throughout Blair's home in her blood and in dust. The investigators also found blood in her jewelry boxes and concluded that the suspect had stolen jewelry after Blair's murder. The investigators spoke with Blair's neighbor, Robert Leef, who lived a couple blocks from Blair. In the early morning hours of December 6, 2014, Leef, while using a FLIR recording system, observed a vehicle parked in a "semi-unusual location." He could not recognize the vehicle's driver. Leef provided the FLIR video to the police as soon as he heard about the murder on Tamarack Trail.
FLIR stands for "forward looking infrared." A FLIR is a night-vision device that takes thousands of temperature samplings and turns them into pixels, producing a graphic image.
Leef's FLIR footage led officers to a green Toyota Camry owned by Parlin's sister, Edie. On January 1, 2015, officers visited Edie to question her about Parlin. According to Edie, Parlin gave all of the family members jewelry for Christmas that year. Edie testified that she loaned her car to Parlin around the middle of November 2014 because someone had stolen his van. Parlin returned the car to Edie on December 26, 2014. Edie signed a written consent form authorizing officers to seize and search her car. Officers discovered bloodstains on the passenger side of the car. The bloodstains in the car matched Blair's blood.
B. Murders of Sidney Shelton and Billie Shelton
Sidney Shelton and Billie Shelton were around 80 years old. Dow Kotrla, a home health nurse, was responsible for caring for Mr. Shelton for various health issues. On December 15, 2014, Kotrla arrived at the Sheltons' home for a scheduled appointment and noticed the front door was open. Kotrla went through the house and found Mr. Shelton's unresponsive body on the bed. She called the police. When the police arrived, they noticed Mr. Shelton's body was cold to the touch and he did not have a pulse. The officers also noticed Ms. Shelton was next to Mr. Shelton and covered in a blanket. They observed a silver-colored handle protruding from her right eye. The Sheltons were pronounced dead. The cause of Mr. Shelton's death was homicide by strangulation and blunt-force injuries. Ms. Shelton died from sharp and blunt-force injuries and by strangulation. Ms. Shelton's death was also ruled a homicide.
The investigators discovered a shoeprint in the carpet near a guest bedroom door. The investigators also observed an empty blood-stained jewelry box and an empty ring holder in the Sheltons' bedroom. The Sheltons' rings were also missing from their fingers.
The investigation revealed connections between Parlin and both murder cases. The Sheltons were members of the church where Parlin married his wife. Parlin's brother, a deacon at the church, had done handiwork for the Sheltons, and Parlin assisted him at times. Edie, Parlin, and their brother had all lived on the same street as the Sheltons.
During the investigation, police learned that Parlin and his wife resided at InTown Suites, an extended stay hotel. On December 30, 2014, Parlin's wife voluntarily authorized the police to search their residence. The officers found a pawn slip for a piece of women's jewelry that had been pawned on the day of Blair's murder, along with other items that raised suspicion about Parlin's involvement in the murders of Blair and the Sheltons. On the same day, December 30, 2014, Parlin was in police custody because he had been arrested for driving without a valid license. Officers questioned Parlin about the murders of Blair and the Sheltons, and he denied knowledge of the murders. Parlin was issued a citation and released from custody. Later, after further investigation of the murders, Parlin made statements implicating himself as a party to the murders.
C. Suppression hearing
Parlin moved to suppress certain incriminating statements. Detective Israel was the only witness at the suppression hearing, and these details are based on his sole testimony. Detective Israel investigated the murders of Blair and the Sheltons.
On December 30, 2014, while Parlin was in police custody on the traffic violation, Detective Israel advised Parlin of his Article 38.22 rights. Detective Israel then asked Parlin about the murders of Blair and the Sheltons, and Parlin denied knowledge of the murders. Parlin was issued a citation and released from custody. On January 1, 2015, Detective Israel discovered that the car loaned to Parlin by his sister contained unidentified bloodstains on the seat. The car appeared very similar to a car identified in the FLIR video.
See Tex. Code Crim. Proc. art. 38.22 (providing statutory warnings virtually identical to warnings established in Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), except that Article 38.22 includes warning that accused has right to terminate interview at any time, which Miranda does not require).
The next day, Parlin was arrested pursuant to a warrant for possession of a controlled substance and a parole violation hold. Detective Israel again advised Parlin of his Article 38.22 rights. Parlin stated that he understood his rights and agreed to waive them. Detective Israel confronted Parlin about the bloodstains in the car during the time he had it in his possession. When Detective Israel accused Parlin of murdering Kathy Blair and the Sheltons, Parlin "denied culpability" but eventually claimed that he knew a person named "Shawn Gant-Benalcazar" who committed the murders. According to Detective Israel, the conversation "got a little more heated" when Detective Israel started "accusing him of the crime." At that point, Parlin said, "Maybe we should terminate." Detective Israel testified that he did not interpret Parlin's remark as an unequivocal request to terminate the interview. Detective Israel explained that "it was a convenient time for me to—to end the interview because we really weren't progressing." When Detective Israel stopped asking Parlin questions and told him that "he knew how to get ahold" of him, Parlin told Detective Israel that he was "willing to talk" to him any time as long as Detective Israel was "nicer to him."
On January 9, 2015, Gant-Benalcazar confessed to murdering Kathy Blair. Afterwards, Detective Israel investigated Gant-Benalcazar's confession for several days. Armed with Gant-Benalcazar's confession and the information obtained during the investigation, Detective Israel visited Parlin in jail on January 16, 2015, while he was still in custody for the parole violation. Detective Israel apologized to Parlin, told him that Gant-Benalcazar had confessed to the murder, and asked him to accompany him to the Homicide Office. When they reached the Homicide Office, Detective Israel read Parlin his Article 38.22 rights. Parlin agreed to show Detective Israel where Gant-Benalcazar had disposed of property after the murder of Blair. He also agreed to take Detective Israel to the scene of a prior burglary. Parlin signed a form consenting to accompany Detective Israel.
On cross-examination, Detective Israel stated that he waited 14 days to re-approach Parlin for questioning to make sure he complied with the requirements of the prosecutor's "Appellate division."
Detective Israel appeared to be "nicer" to Parlin also by offering him a hamburger, sweet tea, and cigarettes. Parlin appeared to be receptive to this gesture by participating in the conversation and volunteering information to Detective Israel.
Detective Israel and other officers drove Parlin to a bridge over Shoal Creek where Parlin claimed Gant-Benalcazar dumped some property in the creek. Parlin then made statements implicating himself as a party to the burglaries and murders of Blair and the Sheltons. They arrived at the bridge, and Parlin described the events of that day when he and Gant-Benalcazar were at the creek. Parlin stated that he parked on the side of the road and watched Gant-Benalcazar place clothes, shoes, and other items containing bloodstains in a red plastic grocery bag for disposal. Then Parlin recalled a conversation he had with Gant-Benalcazar. Parlin explained that when he tried to obtain additional details about what Gant-Benalcazar had done, Gant-Benalcazar told Parlin that he "put the knife to their face" or "in their face" and then he "went back to put his foot in her face." Parlin then contradicted himself. Parlin denied being present when Gant-Benalcazar committed murder of Blair but recalled that Gant-Benalcazar told him that he "kicked him" "using the bottom of his foot." Parlin did not identify the man Gant-Benalcazar had allegedly kicked using the bottom of his foot when describing what happened during the Blair murder.
Blair is a woman. According to the record, Parlin's description of "him" alarmed officers to the extent that Parlin confused himself by describing Mr. Shelton as "him" opposed to Blair, leading officers to believe that Parlin was a party to both murders.
Parlin then directed the officers to the Fentonridge address. Parlin told officers that Gant-Benalcazar chose to murder Blair because Parlin felt he had not been treated fairly on a job done there and wanted to get back at Blair's landlord. Parlin then showed Detective Israel where he parked before Blair was murdered and where he dropped off Gant-Benalcazar for the Shelton murders. Finally, Parlin told the officers that his own "hands" never killed anyone.
This is the location where Parlin met with a witness to discuss an extraneous act evidence as described later in this opinion.
D. The jury trial
Parlin moved to suppress the statements Detective Israel described. At the end of the hearing, the trial court denied Parlin's motion to suppress. The jury convicted Parlin of capital murder. This appeal followed.
Suppression of Custodial Statements
Parlin challenges the trial court's denial of his motion to suppress statements he made implicating himself as a party to the murders. Parlin contends that Detective Israel did not honor his requests to remain silent or terminate the interview. In response, the State argues that Parlin's statements about remaining silent or terminating the interview were ambiguous.
A. Standard of review
A trial court's ruling on a motion to suppress is subject to review on appeal for abuse of discretion. Amador v. State , 275 S.W.3d 872, 878 (Tex. Crim. App. 2009). "In reviewing a trial court's ruling on a motion to suppress, appellate courts must view all of the evidence in the light most favorable to the trial court's ruling." State v. Garcia–Cantu , 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). We use a bifurcated standard of review in assessing the trial court's ruling. St. George v. State , 237 S.W.3d 720, 725 (Tex. Crim. App. 2007).
We afford almost total deference to the trial court's determination of historical facts supported by the record, especially when the fact findings are based on credibility and demeanor. State v. Martinez , 570 S.W.3d 278, 281 (Tex. Crim. App. 2019) ; Ex parte Estrada , 573 S.W.3d 884, 891 (Tex. App.—Houston [1st Dist.] 2019, no pet.). And we afford the same deference to the trial judge's rulings on application of law to fact questions if resolving those ultimate questions turns on evaluating credibility and demeanor. Sandifer v. State , 233 S.W.3d 1, 2 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) ). "[B]ut we review de novo application-of-law-to-fact questions that do not turn on credibility and demeanor." McCulley v. State , 352 S.W.3d 107, 117 (Tex. App.—Fort Worth 2011, pet. ref'd) (citing Amador v. State , 221 S.W.3d 666, 673 (Tex. Crim. App. 2007) ). The trial judge may choose to believe or disbelieve any or all of a witness's testimony. Ramirez v. State , 44 S.W.3d 107, 109 (Tex. App.—Austin 2001, no pet.).
B. Applicable law
The Fifth Amendment privilege against self-incrimination is protected during custodial interrogation by certain procedural safeguards established in Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). These "safeguards" have been codified in the Texas Code of Criminal Procedure. See TEX. CRIM. PROC. CODE art. 38.22 ; Vrba v. State , 69 S.W.3d 713, 724 n.7 (Tex. App.—Waco 2002, no pet.). Article 38.22 incorporates Miranda and prohibits the use of an accused's incriminating statement made during a custodial interrogation unless he received the warnings provided in Article 15.17 or Article 38.22 Section 2(a) or Section 3(a). TEX. CRIM. PROC. CODE art. 38.22 §§ 2(a), 3(a). Within these principles, the right to terminate a custodial interrogation is a "critical safeguard" of the right to remain silent. See Watson v. State , 762 S.W.2d 591, 596 (Tex. Crim. App. 1988) (en banc) (citing Michigan v. Mosley , 423 U.S. 96, 103, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) ).
No formal invocation of this right is necessary. Watson , 762 S.W.2d at 598. Anything said or done by the suspect that could reasonably be interpreted as a desire to invoke the right to terminate the interview or to remain silent should be sufficient to halt questioning. Id. Hence, if the suspect suggests "in any manner" that he invokes the right to terminate the interview or to remain silent, the interrogation must stop. Miranda , 384 U.S. at 473–74, 86 S.Ct. 1602. But, any indication that the suspect wishes to remain silent must be unambiguous, and interrogating officers need not clarify wishes that are ambiguous. Dowthitt v. State , 931 S.W.2d 244, 257 (Tex. Crim. App. 1996). If the suspect's statement is not an unambiguous or unequivocal request to terminate the interview or to invoke the right to silence, then the officers have no obligation to stop questioning him. Davis v. United States , 512 U.S. 452, 461–62, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) ; Ramos v. State , 245 S.W.3d 410, 418 (Tex. Crim. App. 2008). An officer's failure to stop a custodial interrogation after an unambiguous invocation of the right to remain silent renders any later-obtained statements inadmissible. Id. In determining whether the right to remain silent was unambiguously invoked, courts look to the totality of the circumstances. Williams v. State , 257 S.W.3d 426, 433 (Tex. App.—Austin 2008, no pet.). Ambiguity exists when the suspect's statement is subject to more than one reasonable interpretation under the circumstances. Id.
C. The trial court did not abuse its discretion when it denied Parlin's motion to suppress
The circumstances surrounding the interrogation shows that Parlin never unambiguously invoked his rights to remain silent and to terminate the interrogation. Texas courts have provided guidance to determine whether a suspect has invoked his right to terminate an interview. See, e.g. , Dowthitt , 931 S.W.2d at 257 (holding that suspect's statement, "I can't say more than that. I need to rest," was ambiguous and conveyed only that suspect believed that he was physically unable to continue); Franks v. State , 90 S.W.3d 771, 787 (Tex. App.—Fort Worth 2002, no pet.) (concluding that suspect's statement that he was tired and did not want to talk anymore was ambiguous and merely signified that suspect was physically unable to continue); Granberry v. State , 745 S.W.2d 34, 37 (Tex. App.—Houston [14th Dist.] 1987, no pet.) (determining the totality of the circumstances around the statement "I will terminate it now" did not invoke appellant's right to terminate the interview "because appellant indicated his approval to be questioned" by waiving his rights and answering the officer's questions); Davis v. State , No. 06-05-00222-CR, 2007 WL 858782, at *3 (Tex. App.—Texarkana Mar. 23, 2007, pet. ref'd) (mem. op., not designated for publication) (determining that the statement "I really don't want to talk about it" was an ambiguous invocation of his right to remain silent or to terminate the interrogation); but see Ramos v. State , 245 S.W.3d 410, 418–19 (Tex. Crim. App. 2008) (holding that the statement statement—"I don't want to talk to you. I don't want to talk about it anymore"—was "an unambiguous, unequivocal, and unqualified assertion of his right to remain silent"); Friend v. State , 473 S.W.3d 470, 478–79 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd) (determining that the "not saying" responses to inculpatory questions about alcohol consumption invoked appellant's Fifth Amendment right to terminate the interview); Miller v. State , No. 13-98-00149-CR, 2000 WL 34251150, at *2 (Tex. App.—Corpus Christi July 20, 2000, no pet.) (mem. op., not designated for publication) (concluding appellant invoked his Fifth Amendment right to remain silent when appellant refused to give breath sample, refused to sign a written copy of the Miranda warning, and he replied "no" to officer's request to "answer some questions").
By reviewing the totality of the circumstances, we do not conclude Parlin's comment that "maybe we should terminate" was an unambiguous assertion of his rights to terminate the interview and to remain silent. The record supports that Parlin, "at best, expressed ambivalence" toward waiving his rights. Mayes v. State , 8 S.W.3d 354, 359 (Tex. App.—Amarillo 1999, no pet.). Detective Israel testified that he did not construe Parlin's remark—"Maybe we should terminate"—as an unequivocal request to terminate the interrogation. In Detective Israel's view, Parlin only stopped talking to him because the conversation got "heated." Parlin stated to him that he would keep talking when Detective Israel was "nicer to him." When Detective Israel approached Parlin two weeks later with a different tone and some food and cigarettes, Parlin waived his Miranda rights, agreed to show him the location of the crimes, and signed a consent form before making inculpatory statements. Thus, the evidence supports the view that Parlin's willingness to engage in the interrogation hinged on Detective Israel conducting the interview in a more friendly manner.
The trial court issued findings of fact on the record on Parlin's statement. At the end of the suppression hearing, the trial court stated:
Okay. Based on all of that, it appears that on the 2nd, even though he terminated the interview—and it sounded like it was kind of a mutual termination of interview based on things getting heated up—he at least left the door open and said, "I'll talk to you at any time as long as you're going to be nice to me." And so, the argument about the Miranda custody, I don't know—I don't recall any testimony that he was specifically placed in custody and we Mirandized him and that was still the only hold. There were clearly other holds involving other activities and other crimes, the parole hold which was partly from the new [possession
of a controlled substance] case and partly because of the murder investigation.
But I don't think he was ever specifically told he was in Miranda custody. But even if he was and two weeks passed and they have new information that somebody else confessed to the murders, I think it's appropriate for them to re-approach him and see if he wants to talk. And they did that, and he appeared to have left the jail voluntarily and volunteered to—or agreed to make a statement to them and went along with it and signed that waiver and all of that and was properly Mirandized.
Because we afford almost total deference to the trial court's determination of facts and the facts support the trial court's determination that Parlin did not unequivocally terminate the initial interview and that he agreed to speak to Detective Israel in the second interview, we conclude that the trial court did not abuse its discretion by denying Parlin's motion to suppress. We overrule Parlin's first issue.
Extraneous-Act Evidence
Parlin contends the trial court erred by admitting the testimony of a witness, Travis Scott, about a conversation Scott had with Parlin about a year before the charged offense. Scott testified that Parlin asked him to burglarize a home for marijuana and then murder the woman living in the home in exchange for money from the woman's ex-husband. Parlin asserts that the one-year lapse in time depleted the probative value of the extraneous-act evidence, dissimilarities exist between the extraneous act and the charged offense, and the State did not need the evidence. The State argues that Scott's testimony was admissible to show Parlin's intent and plan under Rule 404(b)(2)—"that [Parlin] was willing to orchestrate capital murders with the hands of another."
A. Standard of review
A trial court's ruling on the admissibility of extraneous-act evidence is reviewed under an abuse-of-discretion standard. Devoe v. State , 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). A trial court's ruling to admit extraneous-act evidence will be upheld if it is "within the zone of reasonable disagreement." Fowler v. State , 544 S.W.3d 844, 848 (Tex. Crim. App. 2018). A trial court's ruling on extraneous-offense evidence is generally within the zone of reasonable disagreement "if the evidence shows that 1) an extraneous transaction is relevant to a material, non-propensity issue, and 2) the probative value of that evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." De La Paz v. State , 279 S.W.3d 336, 344 (Tex. Crim. App. 2009). Furthermore, an evidentiary ruling under any theory of law applicable to the case will be upheld, "even if the trial judge gave the wrong reason for his right ruling." Id.
B. Applicable law
Generally, evidence of a person's character is inadmissible to prove that on a particular occasion the person acted in conformity with the character or trait. TEX. R. EVID. 404(a)(1). Although evidence of a crime, wrong, or other act is not admissible to prove a person's character to show that on a particular occasion the person acted in accordance with the character, this evidence may be admissible for other purposes, such as proving a person's intent or plan. TEX. R. EVID. 404(b).
We review the erroneous admission of extraneous-offense or extraneous-bad-act evidence for non-constitutional error under Texas Rule of Appellate Procedure 44.2(b). TEX. R. APP. P. 44.2(b) ; Rodriguez v. State , 546 S.W.3d 843, 861 (Tex. App.—Houston [1st Dist.] 2018, pet. ref'd). Under Rule 44.2(b), we disregard the error unless it affected the appellant's substantial rights. TEX. R. APP. P. 44.2(b) ; Kibble v. State , 340 S.W.3d 14, 20 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State , 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States , 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) ). But an error does not affect a substantial right if we have "fair assurance that the error did not influence the jury, or had but a slight effect." Solomon v. State , 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). We must examine whether the evidence had significant potential "to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged." Old Chief v. United States , 519 U.S. 172, 180, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997).
C. The trial court did not abuse its discretion when it overruled Parlin's objections to extraneous-act evidence
To assess the probative value that extraneous-act evidence has apart from its tendency to prove character conformity, we consider (1) "the closeness in time between the extraneous offense and the charged offense"; (2) "the similarities between the extraneous offense and the charged offense"; and (3) "the availability of alternative sources of proof, and, more generally, the State's need for the evidence." Kiser v. State , 893 S.W.2d 277, 281 (Tex. App.—Houston [1st Dist.] 1995, pet. ref'd) (citing Montgomery v. State , 810 S.W.2d 372, 392 (Tex. Crim. App. 1990) (en banc)).
First, Parlin argues that evidence was too remote to have probative value because there was a one-year gap between his conversation with Scott and the offenses here. We note that courts have found that even long lapses in time do not deplete the probative value of the evidence. See, e.g. , Corley v. State , 987 S.W.2d 615, 617, 621 (Tex. App.—Austin 1999, no pet.) (concluding that extraneous crime 13 years before trial was not too remote); Keller v. State , 818 S.W.2d 425, 429–30 (Tex. App.—Houston [1st Dist.] 1991, pet. ref'd) (extraneous offense committed 26 months before charged offense was not too remote in time); Gomez v. State , No. 13-17-00180-CR, 2019 WL 470933, at *5 (Tex. App.—Corpus Christi Feb. 7, 2019, pet. ref'd) (mem. op., not designated for publication) ("A time period of four to seven years was not so remote as to erode the probative value of the extraneous offense evidence"). A one-year lapse in time does not per se erase the probative value of the testimony.
Second, Parlin argues that there were no similarities between the conversation and the charged offenses. Parlin argues that the extraneous act involved a different person and was intended to occur at a different location. A review of the record shows significant differences between Parlin's conversation with Scott and the charged capital murders.
Third, Parlin acknowledges that "Scott's testimony took very little time." See generally , Chaisson v. State , No. 13-16-00548-CR, 2018 WL 1870592, at *8 (Tex. App.—Corpus Christi Apr. 19, 2018, pet. ref'd) (mem. op., not designated for publication) ("Chaisson concedes that the testimony was not too time consuming and therefore the time needed to develop the evidence was not prejudicial."). Parlin also contends that Scott's testimony was unnecessary because there was an abundance of overwhelming evidence linking Parlin to the murders of Blair and the Sheltons—"several confessions that described his participation in the crimes and implicated himself as a party to the murders." Gant-Benalcazar had provided statements that linked Parlin to the murders. Parlin made inconsistent statements about his presence when Gant-Benalcazar's murdered Blair. And the officers found a pawn slip for a piece of women's jewelry that had been pawned on the day of Blair's murder, along with other items that raised suspicion about Parlin's involvement in the murders of Blair and the Sheltons during their consensual search of Parlin's InTown Suites residence.
Accordingly, the trial court could have determined that the probative value of the extraneous-act evidence was high and weighed in favor of admission. Mcree v. State , No. 03-17-00021-CR, 2018 WL 1547278, at *11 (Tex. App.—Austin Mar. 30, 2018, pet. ref'd) (mem. op., not designated for publication); Norwood v. State , No. 03-16-00659-CR, 2017 WL 6756949, at *6 (Tex. App.—Austin Dec. 22, 2017, no pet.) (mem. op., not designated for publication). For that reason, we conclude that the trial court did not abuse its discretion by admitting Scott's testimony.
Even assuming admission of the extraneous offense was erroneous, Parlin cannot show harm given the overwhelming evidence of guilt. Parlin made several statements that described his participation in the crimes and implicated himself as a party to the murders. Without Scott's testimony about an earlier discussion about a possible fourth murder, there was still overwhelming evidence linking Parlin to the murders of Blair and the Sheltons and the jury reasonably could have determined that Parlin was guilty beyond a reasonable doubt of these capital murders based on his statements. We therefore hold that, even if the trial court erred, the admission of Scott's testimony was harmless. We overrule Parlin's second issue.
Motion for Judgment Nunc Pro Tunc
While this appeal has been pending, the State filed a motion for judgment nunc pro tunc, asserting that the judgment of conviction contains an error and requesting that we modify the judgment accordingly. The State points out that the judgment inaccurately reflects the Penal Code provision under which Parlin was convicted. The jury convicted Parlin of capital murder for Texas Penal Code section 19.03(a)(7) under Count III of the indictment, but the judgment inaccurately reflects Texas Penal Code section 19.03(a)(2). Parlin has not responded to the State's motion.
While it is the trial court that has the authority to enter a nunc pro tunc judgment pursuant to Rule 23.1 of the Texas Rules of Appellate Procedure, we have the authority to correct a trial court's judgment when we have the necessary information to do so. See TEX. R. APP. P. 23.1, 43.2(b) ; Bigley v. State , 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993) ; Figueroa v. State , 250 S.W.3d 490, 517–18 (Tex. App.–Austin 2008, pet. ref'd). After reviewing the record and judgment, we agree with the State that the judgment contains errors in need of correction because Section (a)(7) criminalizes the murder of multiple people during criminal transactions committed pursuant to the same scheme or course of conduct, as was established with the evidence of the murders of Blair and the Sheltons. Section (a)(2) criminalizes murder in the course of committing certain statutory felonies with no regard to murdering multiple people. Accordingly, we modify the judgment to reflect that Parlin was convicted under Texas Penal Code section 19.03(a)(7) in trial court cause number D-1-DC-15-900075. Conclusion
Having overruled both of Parlin's issues and having granted the State's motion and modified the judgment to correct an error, we affirm the trial court's judgment of conviction as modified.