## NO. 12

- 19

- 00350

- CR

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

ANDRE MONTREL WOODS , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ APPEA L FROM THE 159TH

JUDICIAL DISTRICT COURT

ANGELINA COUNTY, TEXAS

MEMO RANDUM OPINION Andre Montrel Woods app eals his conviction for murder. In two issues, Appellant urges
the trial court abused its discretion in admitting certain evidence regarding A ppellant’s competency. We affirm.

B ACKGROUND Appellant was charged by indictment with the murder of Ashleigh S imone Elijah. Appellant pleaded “not guilty,” and the matter proceeded to a jury trial. The jury ultimately found Appellant “guilty” as charge d and, after hearing evidence and argument on punishment, sentenced Appellant to life in prison. In a previous appeal, Appellant sought relief based upon the claim that the court’s charge at guilt/innocen ce, and its corresponding jury verdict, were not c ontained within the clerk’s
record. When the record was supplemented with those documents a week after the brief was filed and well before appeal was final, we held that the issues were procedurally moot

. 1 Appellant filed a petition for discretionary revi ew with the Court of Criminal Appeals, which

1 Woods v. State , No. 12

- 19

- 00350

- CR, 2020 WL 6380337, at * 1

- 3 (T ex. App.

— Tyler Oct. 30, 2020), petition for discretion ary review granted, judgment vacated , PD

- 1085

- 20, 2021 WL 476105 (Tex. Crim. App. Feb. 10, 2021) (op., not designated for publication) (per curiam).2 determined Appellant effectively received no meaningful appeal

. 2 Th e case was later remanded to the trial court for appointment of new counsel. This appeal fo llowed.

A DMISSIBILITY OF E VIDENCE In two issues, Appellant asserts the trial court erred in admitting certain evidence during
the State’s cross examination of a w itness . In his first issue, Appellant urges that the State’s improper questions injected harmful facts before the jury. In his second issue, Appellant argues
that the State’s questions referred to matters that are inadmissible as a matter of law. In bot h
issu es, Appellant contends the evidence is inadmissible under Article 46B .007 of the Texas Code
of Criminal Procedure. The State urges that Appellant “ opened the door ” to such evidence and that the error, if any, was harmless. Standard of Review and App licabl e Law
A trial court ’ s ruling admitting evidence will not be reversed on appeal absent a clear
abuse of discretion. Tillman v. State
, 35 4 S.W.3d 425, 435 (Tex. Crim. App. 2011); Russeau v.
State
, 291 S.W.3d 426, 438 (Tex. Crim. App. 2009); Ramos v. State
, 245 S.W.3d 410, 417

– 18 (Tex. Crim. App. 2008); Lozano v. State
, 359 S.W.3d 790, 817 (Tex. App.

— Fort Worth 2012, pet. ref ’ d). The trial court does not abuse its discretion by admitting evidence unless its
determination lies outside the zone of reaso nable disagreement. Lozano
, 359 S.W.3d at 817. The
trial court ’ s ruling will be upheld if it is reasonably supported by the record and is corr ect under any theory of law applicable to the case. Ramos
, 245 S.W.3d at 418; State v. Dixon
, 206 S.W.3d 587, 59 0 (Tex. Crim. App. 2006).
Article 46B.007, entitled “Admissibility of Statements and Certain Other Evidence,” provides, in relevant part, as f ollows:

A statement made by a defendant during a[ ] [competency] examination [or] the testimony of an expert b ase d on that statement

. . . may not be admitted in evidence against the defendant in any criminal proceeding, other than at: (1) a trial on the defendant's incompetency; or (2) any proceeding at which the defendant first introduces into evidence a stateme nt [or] testimony

. . . described by this article.

T EX

. C ODE C RIM

. P ROC

. A NN

. art. 46B.007 (West 2018 )

.

2 Woods , 2021 WL 476105 , at *1.3 However, evidence that would normally b e inadmissible may become admissible if a party “opens the door” to it. See, e.g., Williams v. State
, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) (assuming evidence inadmissible under R ule 404(b), and holding no abuse of discretion because appellant opened the door), cert. denied, 560 U.S. 966, 130 S. Ct. 3411, 177 L. Ed. 2d 326 (2010); Hayden v. State
, 296 S.W .3d 549 , 554 (Tex. Crim. App. 2009) (holding that even though State opened the door, trial court acted within its discretion to exclude rebuttal evid ence under R ule 403); Carroll v. State
, No. 02

– 11

– 00265

– CR, 2013 WL 2435560, at *3 (Tex. App.

— Fort Worth Ju ne 6, 2 013, no pet.) (mem. op., not designated for publication). When defense counsel pursues a subject or line of questioning that would ordinarily be outside of the realm of proper comment for the State, the defense “opens the door” and creates a right of repl y for the
State. Tovar v. State , 221 S.W.3d 185, 190 (Tex. App.

— Houston [1st Dist.] 2006, no pet.). “A party who opens a door to an issue ‘c annot complain when the opposing party desires to go into the details of that subject.’” Id

. (quoting Sherman v. State , 20 S.W.3d 96, 101 (Tex. App.

— Texarkana 2000, no pet.)). The erroneous admission of evidence generally constitutes nonconstitutional er ror. See
Motilla v. State , 78 S.W.3d 352, 355 (Tex. Crim. App. 2002) . We must disregard a
nonconstituti onal error if it does not affect substantial rights. T EX

. R. A PP

. P. 44.2(b). “A substantial right is affected when the error had a substantial and in jurious effect or influence in determining the jury’s verdict.” Schmutz v. State , 440 S.W.3d 29, 39 (Tex. Crim. A pp. 2014). “[S]ubstantial rights are not affected by the erroneous admission of evidence ‘if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.’” Moti lla , 78 S.W.3d at 355 (quoting Solomon v. State , 49 S.W.3d 356, 365 (Tex. Crim. App. 2001)). In assessing the likelihood that the jury’s decision was adversely affected by the error, we must “consider everything in the record, including any testimony or ph ysic al evidence admitted for the jury’s consideration, the nature of the evidence supporting the verdict, the character of the alleged error and h ow it might be considered in
connection with other evidence in the case.” Id

. Analysis Prior to trial, Dr. Jo sep h Kartye examined Appellant to determine his competency to stand trial. Ultimately, Dr. Kartye found Appellant competent. His evaluation con tains notes and opinions on Appellant’s sanity and attempts to feign insanity. His notes reflect that4 Appellan t w as aware of what he was doing at the time of the shooting and that he acted purposefully and out of anger. He believed that Appellant did not hallucinate and was not delusional at the time of the shooting. Dr. Kartye noted that Appellant had no mental he alth issues during his incarceration. He further believed Appellant blatantly faked mental illness during his competency evaluation.
At tri al, Appellant called De tective Starlan Glawson of the Lufkin Police Department as a witness. During direct examin ation, Appellant asked Detective Gl awson to read conversations regarding Appellant’s sanity between Appellant and his family and friends. Gla wson testified
that Appellant made the following statements:

I’m fixing to beat this. I just got murder and ag a ssault, I’m fixing to beat that. I’m going insane

. Somebody took over my body.

. . . I might be coming home. I’m going for insanity. I told th em to leave me alone.

. . . I’m going to bust these guards [sic] ass if they play with me. I’m going insane. I’m pleading insane.

. . . I’m fixing to start punching these guards . I ain’t got no mind. I don’t know what happened to it.

To clarify Appella nt’s mental state, the State cross
- examined Detective Glawson as fo llows:

Q. Let ’ s talk a little bit about this in sanity stuff. Okay. Did you know that Dr. Kartye has examined the Defendant and found that he’s not insane? Did you know that? A. No, sir. Q. Okay. Did you know that Dr. Kartye, a licensed

-- [Appellant] : I ’ m going to object, Your Honor. He ’ s testifying to the jury. He ’ s not asking a question. [State] : I ’ m asking if he knows, Your Honor. Trial Court : All right. This is cross

- examination where l eading is permitted. Overruled. [State] . Did you kn ow that Dr. Kartye, a licensed psychologist, has examined the De fendant and found

-- [Appellant] : And I ’ ll object to the hearsay, Your Honor. Trial Court : Overruled as to the specific question. [State]: It call for a “ yes ” or “ no ” . That ’ s all it calls for. Do you know if Dr. Kartye has examined the Defendant for insani ty? “ Yes ” or “ no ”

. A. I didn ’ t know. No, sir. Q. You don ’ t know; is that correct? A . I don ’ t know. Q. Do you know if he ’ s examined him for an y mental health issues? A. I don ’ t know. Q. All right. Fair enough. Listening to the telephone calls, based on your experience, okay, because you ’ ve been cross

-- no direct examination. Tell the members of the jury, this talk by the5 Defendant about insanit y, did you believe that to be real or just some little defense he is trying to concoct? A. I felt it was just somet hing for him to try to get himself out of jail. Q. To beat the rap, so to speak, right? A. Yes, sir. Q. As a means of avoiding responsibility for shooting Ashleigh Elijah? A. Yes, sir. Q. F rom your roll in this investigation, do you have any particular rea son to believe the Defendant suffers from mental health issues? A. No, sir. I have no reason to believe. Q. Do you believe that there are evi l people in this world? A. I sure do, yes, sir.

Appellant contends this cross

- examination violated Article 46B.00 7 of the Code of Criminal Procedure and injected harmful facts before the jury. However, even were we to assume this cross

- examination was i mproper, any such alleged error was harmless

. A r eview of
the record demonstrates that there was a plethora of evid ence demonstrating Appellant’s guilt. Miesha McKnight , Elijah’s best friend, testified that Elijah was angered by a text message from Appell ant the night before the incident. The same nigh t, McKnight saw Elijah swing a bat at Appellant , but Elijah did no t actually strike Appellant. Appellant smirked and laughed about it. McKnight testified that the next day, she, Elijah, and Elijah’s boyfri end went to McKnight’s mother’s house. McKnight’s mother, Shirley Ray, was Appellant’s neighbor. When they arrive d at Ray’s house, Appellant was already there. Appellant then ran next door to his mother’s house. Elijah also went to Appellant’s mother’s house , where she subsequently had an argument with Appellant’s godmother. McKnight heard the door slam and Elijah leave Appellant’s mother’s house. Appellant yelled “Bitch, don’t slam my mom’s door.” McKnight heard Elijah and Appellant argue and curse at eac h other. McKnight then heard Appellant say, “I’m really fixing to shoot this bitch.” She also saw Appellant enter his mother’s house , exit with a firearm , and chase Elijah and shoot her in the hip. She also saw Appellant push his mother as she att empted to stop him. Appellant chased Elijah around a car as she begged for her life. McKnight testified that Appe llant briefly pointed the gun at her but then pointed it back at Elijah. She heard Appellant say, “Bitch, I got good aim,” and
“this shit ha s to e nd today,” and then she saw Appellant shoot Elijah in the head. Appellant then
ran into a wooded area. Ray testified that she heard a gunshot from inside her house. When she went outside, she saw Elijah bleeding from her side. Ray then saw Appell ant ch ase Elijah with a firearm. Ray6 went inside to call 911. When she returned, Elijah had been shot a second ti me. Ray stated that Elijah was bleeding from her mouth and nose. She then saw Appellant run into the woods. A neighbor’s surveillance vide o was admitted into evidence and played, in part, for the jury. The video corroborated McKnight’s and Ray’s respec tive testimonies. It showed Appellant with a gun in his hand , showed Appellant at least fifteen feet away from Elijah at the
time of the sho oting, and showed Appellant fleeing the scene after the shooting. Lieutenant
David Young of the Lufkin Police Depa rtment testified that he believed th e distance between Appellant and Elijah explained why there was no blood spatter on Appellant. Sandy Par ent, a forensic scientist with the Texas Department of Public Safety Crime Laboratory , testified that
lead and anti mon y, an alloy, were found on Appellant’s right hand after the shooting. She
believed th is corroborated the use of a .22 caliber weapon. Dr . Tommy Brown, a forensic pathologist, performed an autopsy and determined that Elijah died of a gunshot wound to t he
head from a .22 caliber firearm. Appellant’s competency and sanity was not mentioned during the remainder of the evidence portion at tri al. During closing arguments, the State mentioned that Appellant planned to feign insanity while incarcerated, but the State did not mention Dr. Kartye’s report. After reviewing the record, the evidence of Appellant’s guilt is overwhelming. See
Mitte n v . State , 228 S.W.3d 693, 696 (Tex. App.

— Corpus Christi 2005, pet. dism’d). Furthermore, it does not appear the Sta te emphasized the alleged error of admitting Dr. Kartye’s

statements. Id. Based on our review of the record, we hold the evidence regard ing Appellant’s competency had zero or a slight influence on the jury’s verdict; therefore, any such alleged error

was harmless. See Motilla , 78 S.W.3d at 355. We overrule Appellant’s first and second issues.

D ISPOSITION Having overruled Appellant’s first and second issues, we affirm the trial court’s judgment.

J AMES T. W ORTHEN Chief Justice
Opinion delivered September 15 , 2021. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DIS TRICT OF TEXAS

JUDGMENT

SEPTEMBER 15 , 2021

NO. 12

- 19

- 00350

- CR

ANDRE MONTREL WOODS , Appellant V. THE ST ATE OF TEXAS , Appellee

Appeal from the 159th District Court
of Angelina County, Texas (Tr.Ct.No. 2018

- 0521 ) THIS CAUSE came to be heard on the ap pellate record and brief s filed herein, and the same b eing considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed , a nd that this decision be certified to the court below
for observance.
James T. Worthen , Chief Justice

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.