COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00018-CR

KEITH DEMONT MCCUIN A/K/A 

KEITH MCCUIN

APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

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MEMORANDUM OPINION1

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I. INTRODUCTION

In six issues, Appellant Keith Demont McCuin a/k/a Keith McCuin appeals 

his conviction for capital murder. We will affirm.

 

1See Tex. R. App. P. 47.4.
2

II. BACKGROUND

On the night of November 22, 2008, McCuin shot and killed Rodney Ryan 

at a self-service car wash located in Fort Worth. A nearby liquor store’s 

surveillance camera captured images of McCuin, his Cadillac, and his twin 

brother, Kevin, on video from the night of the offense.2 After releasing the 

surveillance footage to the media, investigators developed McCuin as a suspect, 

arrested him, and collected a DNA sample from him. Authorities investigating the 

homicide never found the $500 in cash that Ryan’s employer had given Ryan 

before he was last seen or a red backpack that he ―always‖ carried, but they did 

learn that DNA discovered in the front pocket of Ryan’s jeans was consistent with 

McCuin’s DNA. McCuin pleaded not guilty to the offense of capital murder,3but 

a jury convicted him of that offense, and the trial court sentenced him to life 

imprisonment without parole.4

 

2

The footage shows McCuin driving his Cadillac to the car wash; McCuin 

then parking the Cadillac at the liquor store; McCuin exiting the Cadillac and 

walking towards the car wash; Kevin exiting the passenger side of the Cadillac 

and entering the driver’s side of the Cadillac; Kevin backing the Cadillac out of 

the parking space and pulling forward; a patron of the liquor store turning towards 

the car wash upon hearing a gunshot; the Cadillac leaving the liquor store 

parking lot and driving to the car wash; and McCuin running from the car wash to 

the Cadillac.

3

The indictment alleged in relevant part that McCuin ―did then and there 

intentionally cause the death of an individual, Rodney Ryan, by shooting him with 

a firearm, and the said defendant was then and there in the course of committing 

or attempting to commit the offense of robbery.‖

4

The State did not seek the death penalty.
3

III. EVIDENTIARY SUFFICIENCY—INTENT TO COMMIT ROBBERY

In his first and second issues, McCuin argues that the evidence is legally 

and factually insufficient to show that he committed capital murder because 

―there was insufficient evidence to establish that [he] intended to rob the victim, 

rather than merely to kill him.‖ McCuin thus does not challenge the sufficiency of 

the evidence to show that he murdered Ryan.

The court of criminal appeals has held that there is no meaningful 

distinction between the legal sufficiency standard and the factual sufficiency 

standard. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)

(overruling Clewis v. State, 922 S.W.2d 126, 131–32 (Tex. Crim. App. 1996)). 

The Jackson standard is the ―only standard that a reviewing court should apply in 

determining whether the evidence is sufficient to support each element of a 

criminal offense that the State is required to prove beyond a reasonable doubt.‖ 

Id. Therefore, we overrule McCuin’s second issue challenging the factual 

sufficiency of the evidence.

In our due-process review of the sufficiency of the evidence to support a 

conviction, we view all of the evidence in the light most favorable to the 

prosecution to determine whether any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 

443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d 

772, 778 (Tex. Crim. App. 2007). This standard gives full play to the 

responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the 
4

evidence, and to draw reasonable inferences from basic facts to ultimate facts. 

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778.

A person commits capital murder if he commits murder in the course of 

committing or attempting to commit robbery. Tex. Penal Code Ann. § 19.03(a)(2) 

(West 2011). A person commits robbery ―if, in the course of committing theft . . . 

and with intent to obtain or maintain control of the property, he (1) intentionally, 

knowingly, or recklessly causes bodily injury to another; or (2) intentionally or 

knowingly threatens or places another in fear of imminent bodily injury or death.‖ 

Id. § 29.02(a) (West 2011). A person commits theft if he unlawfully appropriates 

property with the intent to deprive the owner of it. Id. § 31.03(a) (West 2011).

The court of criminal appeals has defined ―in the course of committing‖ an 

offense as conduct occurring in an attempt to commit, during the commission of, 

or in the immediate flight after the attempt or commission of the robbery. 

Lincecum v. State, 736 S.W.2d 673, 680 (Tex. Crim. App. 1987), cert. denied, 

486 U.S. 1061 (1988). When a person is charged with committing murder in the 

course of committing a robbery, ―[e]vidence is sufficient to support a capital 

murder conviction if it shows an intent to obtain or maintain control of property 

which was formed before or contemporaneously with the murder.‖ Shuffield v. 

State, 189 S.W.3d 782, 791 (Tex. Crim. App.), cert. denied, 549 U.S. 1056 

(2006); Armstrong v. State, No. AP-75706, 2010 WL 359020, at *3 (Tex. Crim. 

App. Jan. 27, 2010) (not designated for publication). The State does not have to 

prove ―that the appellant completed the theft of the victim in order to establish the 
5

underlying offense of robbery or attempted robbery.‖ Young v. State, 283 

S.W.3d 854, 862 (Tex. Crim. App.), cert. denied, 130 S. Ct. 1015 (2009). Rather, 

if there is evidence from which the jury rationally could conclude beyond a 

reasonable doubt that the defendant formed the intent to obtain or maintain 

control of the victim’s property either before or during the commission of the 

murder, then the State has proven that the murder occurred in the course of 

robbery. Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim. App. 1995). The 

jury may infer the requisite intent to rob from circumstantial evidence, including 

the conduct of the defendant. Id.; see Young, 283 S.W.3d at 862.

The evidence demonstrates that Ryan died from a gunshot wound to the 

chest. Although the car wash is located just ―next door‖ to the liquor store, 

approximately ninety seconds elapsed between the time that a patron leaving the 

liquor store heard a gunshot and the time that Appellant ran from the car wash to 

the Cadillac, according to the surveillance footage. Both Ryan’s sister and his 

employer testified that Ryan ―always‖ carried a red backpack with him, but the 

backpack was not discovered at the scene or ever returned to his sister. Ryan’s 

employer, Matthew Tago, testified that Ryan worked the day of the offense, that 

Ryan was still at work when Tago left the office between 6:00 and 6:30 p.m., that 

Ryan had said that he wanted to wash his car, and that Tago gave Ryan $500 

cash, which Ryan put in his shirt pocket. Authorities did not find the $500. DNA 

discovered in the front pocket of Ryan’s jeans was consistent with McCuin’s 

DNA; the DNA profile excluded 99.88% of African-Americans. Medical personnel 
6

found Ryan’s driver’s license identification card on the ground. Demarcus Penix

told police that McCuin had told him that McCuin ―tried to jack a guy and had to 

knock him out.‖ Penix also told Eric Holder that McCuin had told Penix that 

McCuin ―approached [Ryan] to rob him, he just wanted an easy take.‖

McCuin argues that the presence of his DNA in Ryan’s pocket could be a 

result of ―many possibilities,‖ not just that he had the intent to rob Ryan. But 

McCuin’s argument is unpersuasive because ―[c]ourts and juries no longer face 

the difficult task of excluding every reasonable hypothesis other than the 

defendant’s guilt.‖ See Laster v. State, 275 S.W.3d 512, 520–21 (Tex. Crim. 

App. 2009) (explaining abolition of reasonable hypothesis test); Wilson v. State, 7 

S.W.3d 136, 141 (Tex. Crim. App. 1999) (―We have rejected the reasonable 

hypothesis construct as a measure of legal sufficiency.‖).

McCuin also points out that the time interval between when Ryan left work 

and the time of the first 911 call at 8:38 p.m. was more than two hours and, 

therefore, ―[t]his interval provided ample time for Ryan to make one or more 

stops, and to dispose of his backpack and the money.‖ Notwithstanding that this 

appears to be another reasonable hypothesis-type argument, Tago testified that 

he ―left [Ryan] behind‖ when he left work, not that Ryan also left work between 

6:00 and 6:30 p.m.

McCuin further argues that ―Penix’s unsworn statements about McCuin’s 

alleged admission were denied by him under oath in court, and were of very 

dubious credibility in any event.‖ But it was within the province of the jury as 
7

factfinder to believe the portions of Penix’s testimony in which he admitted telling 

authorities that McCuin had made incriminating statements and to disbelieve the 

portions of Penix’s testimony in which he said that he was lying when he told 

authorities about MCuin’s statements. See Sharp v. State, 707 S.W.2d 611, 614 

(Tex. Crim. App. 1986), cert. denied, 488 U.S. 872 (1988).

McCuin argues that his case is ―strikingly similar‖ to Herrin v. State, 125 

S.W.3d 436 (Tex. Crim. App. 2002), a case in which the victim’s wallet 

disappeared after his murder and there was no evidence directly linking the 

appellant to the missing wallet. Id. at 441–42. Herrin is distinguishable from the 

facts of this case because in addition to the missing red backpack and $500, 

McCuin’s DNA was found in Ryan’s front jeans pocket and McCuin made 

admissions to Penix, which were admitted in evidence.

Viewing all of the evidence in the light most favorable to the prosecution, a 

rational jury could have found beyond a reasonable doubt that McCuin murdered 

Ryan in the course of committing or attempting to commit robbery. See Tex. 

Penal Code Ann. § 19.03(a)(2); Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. 

Accordingly, the evidence is sufficient to support McCuin’s conviction for capital 

murder. We overrule McCuin’s first issue.

IV. LESSER INCLUDED OFFENSE

In his third issue, McCuin argues that the trial court erred by denying his 

request to instruct the jury on murder, a lesser included offense of capital murder. 
8

McCuin relies solely on the arguments that he asserted in his evidentiary 

sufficiency challenge.

We use a two-step analysis to determine whether an appellant was entitled 

to a lesser included offense instruction. Hall v. State, 225 S.W.3d 524, 528 (Tex. 

Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666, 672B73 (Tex. Crim. 

App.), cert. denied, 510 U.S. 919 (1993). First, the lesser offense must come 

within article 37.09 of the code of criminal procedure. Tex. Code Crim. Proc. 

Ann. art. 37.09 (West 2006); Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 

1998). Second, some evidence must exist in the record that would permit a jury 

to rationally find that if the appellant is guilty, he is guilty only of the lesser 

offense. Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734, 741 (Tex. 

Crim. App. 2005); Rousseau, 855 S.W.2d at 672B73.

Murder is a lesser included offense of capital murder. McKinney v. State, 

207 S.W.3d 366, 370 (Tex. Crim. App. 2006). Therefore, McCuin has satisfied 

the first prong of the two-step analysis. He cannot, however, satisfy the second 

prong. The State presented evidence that Ryan’s red backpack and $500 were

missing, that genetic material consistent with McCuin’s DNA was discovered in 

Ryan’s front jeans pocket, that McCuin confessed to Penix that he murdered and 

robbed Ryan, and that McCuin did not return to his Cadillac until approximately 

ninety seconds after the gunshot. Because the jury rationally could have 

concluded that McCuin had the specific intent to commit robbery, no jury could 

rationally find that, under the evidence presented, McCuin was guilty of murder 
9

but not guilty of capital murder. See Hall, 225 S.W.3d at 536; Salinas, 163 

S.W.3d at 741. Accordingly, we overrule McCuin’s third issue.

V. EVIDENCE OF GANG MEMBERSHIP

In his fourth issue, McCuin argues that the trial court abused its discretion 

by permitting the State to present evidence of McCuin’s membership in a violent, 

criminal street gang. He contends that the evidence was inadmissible (1) under

rule of evidence 404(b) because it ―was probably very damaging to the Defense 

case‖ and (2) under rule of evidence 403 because ―[n]ot only would it make the 

jury more likely to believe that McCuin was capable of murder, but the jury would 

also be tempted to convict McCuin in order to keep a potentially violent criminal 

off the streets.‖

We review a trial court’s decision to admit or exclude evidence under an 

abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. 

Crim. App. 2000). A trial court does not abuse its discretion as long as the 

decision to admit or exclude evidence is within the zone of reasonable 

disagreement. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 

1990) (op. on reh’g).

The general rule is that the defendant is to be tried only for the offense 

charged, not for any other crimes or for being a criminal generally. Segundo v. 

State, 270 S.W.3d 79, 87 (Tex. Crim. App. 2008), cert. denied, 130 S. Ct. 53 

(2009). Therefore, ―[e]vidence of other crimes, wrongs or acts‖ may not be 
10

admitted during the guilt-innocence phase of trial ―to prove the character of a 

person in order to show action in conformity therewith.‖ Tex. R. Evid. 404(b).

The State called Demarcus Penix to testify. Penix testified on direct 

examination that he told police that McCuin had told him that McCuin ―tried to 

jack a guy and had to knock him out.‖ Penix also testified that he told Eric Holder 

that McCuin had told him that McCuin was involved in the ―robbery and killing.‖ 

Specifically, Penix said that McCuin told him that McCuin had ―approached 

[Ryan] to rob him, he just wanted an easy take.‖ Although Penix confirmed 

making these statements, he testified that he had lied about what McCuin told 

him to get the authorities ―out my face.‖

On cross-examination, Penix confirmed that he signed an affidavit stating 

that he had a conversation with McCuin after the offense and that McCuin said 

he was not involved in the incident at the car wash. Penix also stated in the 

affidavit, ―Since [McCuin] has told me that he did not commit this crime and I 

have known him for as long as I have, I don’t believe [McCuin] was involved and 

did not commit this murder.‖

On redirect examination, Penix testified that he, McCuin, and Kevin 

(McCuin’s brother) were members of a street gang and that ―[i]t’s bad‖ to tell the 

police what you know about another gang member.

It is apparent from the record that the State did not call Penix for the 

purpose of eliciting testimony that McCuin was a gang member. Instead, the 

State called Penix to testify about his statements to police regarding McCuin’s 
11

comments implicating himself in the offense. It was not until after Penix testified 

on cross-examination about his affidavit, in which he stated that he did not 

believe that McCuin had murdered Ryan, that the State impeached Penix with 

evidence that he and McCuin were in the same gang and elicited testimony that 

―[i]t’s bad‖ to tell the police what you know about another gang member. This 

court has previously held that evidence of gang membership bears on the 

witness’s veracity and bias. See McKnight v. State, 874 S.W.2d 745, 746–47 

(Tex. App.—Fort Worth 1994, no pet.) (citing United States v. Abel, 469 U.S. 45, 

49, 105 S. Ct. 465, 469 (1984)).5 Accordingly, we hold that the evidence of 

McCuin’s membership in the same gang as Penix was admissible to show that 

Penix was biased to testify in favor of McCuin. See id.; see also Tex. R. Evid. 

607 (stating that the credibility of a witness may be attacked by any party, 

including the party calling the witness).

Turning to McCuin’s rule 403 argument, ―[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 

 

5

In Abel, the Supreme Court reasoned,

Mills’ and respondent’s membership in the Aryan Brotherhood 

supported the inference that Mills’ testimony was slanted or perhaps 

fabricated in respondent’s favor. A witness’ and a party’s common 

membership in an organization, even without proof that the witness 

or party has personally adopted its tenets, is certainly probative of 

bias.

469 U.S. at 52, 105 S. Ct. at 469.
12

considerations of undue delay, or needless presentation of cumulative evidence.‖ 

Tex. R. Evid. 403. Once a rule 403 objection is made, the trial court must weigh 

the probative value of the evidence to determine if it is substantially outweighed 

by its potential for unfair prejudice. Santellan v. State, 939 S.W.2d 155, 169 

(Tex. Crim. App. 1997). A rule 403 balancing test includes the following factors: 

(1) the inherent probative force of the proffered item of evidence along with 

(2) the proponent’s need for that evidence against (3) any tendency of the 

evidence to suggest decision on an improper basis, (4) any tendency of the 

evidence to confuse or distract the jury from the main issues, (5) any tendency of 

the evidence to be given undue weight by a jury that has not been equipped to 

evaluate the probative force of the evidence, and (6) the likelihood that 

presentation of the evidence will consume an inordinate amount of time or merely 

repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641–

42 & n.8 (Tex. Crim. App. 2006); Dodson v. State, No. 02-08-00286-CR, 2010 

WL 2889693, at *4 (Tex. App.—Fort Worth July 22, 2010, pet. ref’d) (mem. op., 

not designated for publication).

The probative value of the impeachment evidence was high because the

State wanted to show why Penix testified that he had lied to police about the 

statements that McCuin had made to him. The State mentioned the gang 

affiliation at closing argument, but it was done in the context of arguing that Penix 

was ―trying his best to extricate himself from this case, doing everything he can to 

take back the bad things that he said about [McCuin] because they are from the 
13

same gang.‖ McCuin argues that the evidence of his gang membership made 

the jury ―more likely‖ to believe that he was capable of committing murder; but 

there was other, much stronger evidence that served the same purpose—

McCuin actually told Penix that he murdered and robbed Ryan. After balancing 

the rule 403 factors, we conclude that the trial court could have reasonably 

determined that the probative value of the evidence that McCuin was a member 

of the same gang as Penix was not substantially outweighed by the 

countervailing factors specified in the rule. See Tex. R. Evid. 403. We overrule 

McCuin’s fourth issue.

VI. HEARSAY

In his fifth issue, McCuin argues that the trial court abused its discretion by 

admitting hearsay testimony regarding the venue of the offense. When the State 

questioned two of its witnesses about whether the offense had occurred in 

Tarrant County, McCuin asserted hearsay objections because the witnesses’ 

knowledge was based on road signs or on a map. But one witness testified on 

voir dire that he had ―learned that Tarrant County covers different parts of Texas 

and some parts of Arlington as well.‖ The other witness testified that he based 

his opinion in part on his ―training.‖ The trial court therefore did not abuse its 

discretion by overruling McCuin’s objections because the venue testimony was 

derived from the witnesses’ personal knowledge about Tarrant County’s borders. 

See Johnson v. State, No. 07-07-00327-CR, 2009 WL 102930, at *9 (Tex. 

App.—Amarillo Jan. 15, 2009, pet. struck) (mem. op., not designated for 
14

publication) (―The testimony . . . that San Jacinto Park is located in Potter County 

is not hearsay. Here, the officers were merely testifying from their personal 

knowledge and that testimony was subject to cross-examination.‖). Alternatively, 

the testimony was admissible as an exception to the hearsay rule. See Tex. R. 

Evid. 803(20) (―Reputation in a community . . . as to boundaries of . . . lands in 

the community . . . .‖); Shilling v. State, 977 S.W.2d 789, 790 (Tex. App.—Fort 

Worth 1998, pet. ref’d) (holding that testimony about county’s boundary location 

was admissible under rule of evidence 803(20)). We overrule McCuin’s fifth 

issue.

VII. SURVEILLANCE FOOTAGE EXHIBIT

In his sixth issue, McCuin argues that the trial court erred by denying his 

motion for new trial because the jury was permitted to consider surveillance 

footage that was not expressly admitted in evidence. The trial court held a ―sua 

sponte hearing‖ after McCuin’s trial concluded because it came to the court’s 

attention that the video of the surveillance footage from the liquor store that had 

been published to the jury during trial and during the jury’s deliberations was not 

the video contained on the disc that was entered in evidence as State’s Exhibit 

20. As McCuin acknowledges, the video that was published to the jury, which 

was transferred onto a disc marked as Court’s Exhibit C during the sua sponte 

hearing, contains the same footage as State’s Exhibit 20 but has an additional

eight minutes of surveillance footage that was not included in State’s Exhibit 20. 

At the sua sponte hearing, the trial court, the State, and both McCuin and his trial 
15

attorney watched both exhibits, and the State and McCuin’s attorney agreed that 

Court’s Exhibit C was the version of the surveillance footage that had been 

published to the jury. On the State’s motion, the trial court supplemented the 

record with Court’s Exhibit C in order to conform the record to the evidence at 

trial.

An exhibit not expressly admitted in evidence may nonetheless be 

considered as evidence when the parties and the judge treat the exhibit as if it 

were in evidence. See Harden v. State, 417 S.W.2d 170, 174 (Tex. Crim. App. 

1967); see also Amador v. State, 221 S.W.3d 666, 673–74 (Tex. Crim. App. 

2007). Here, the record demonstrates that both parties treated Court’s Exhibit C 

as if it had been admitted in evidence. Both parties agreed at the sua sponte 

hearing that Court’s Exhibit C was the video that was published to the jury. 

There is no dispute that State’s Exhibit 20 was never published to the jury. The 

cases that McCuin cites are all distinguishable from the facts of this case 

because the exhibits in those cases were never treated as though they had been

admitted in evidence. See, e.g., Osborne v. United States, 351 F.2d 111, 115 

(8th Cir. 1965). We hold that the trial court did not abuse its discretion by 

denying McCuin’s motion for new trial. See State v. Herndon, 215 S.W.3d 901, 

906–07 (Tex. Crim. App. 2007) (identifying abuse of discretion as standard to 

review denial of motion for new trial). Accordingly, we overrule McCuin’s sixth 

issue.
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VIII. CONCLUSION

Having overruled all of McCuin’s issues, we affirm the trial court’s 

judgment.

PER CURIAM

PANEL: MEIER, J.; LIVINGSTON, C.J.; and GABRIEL, J.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: June 30, 2011