COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

KEVIN LAMONT MCCUIN , § No. 08

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- 00108

- CR Appellant, § Appeal from the v. § Criminal Distric t Court No. 1 § THE STATE OF TEXAS, of Tarrant County, Texas § Appellee. (TC# 1139278D)

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O P I N I O N Kevin McCuin was convicted of capital murder and sentenced to life in prison. He appeals his conviction , and raises three issues for this Court ’ s review. In Issue One , he contends the evidence is legally insufficient to support the conviction. In Issues Two and Three , he contends the trial court abused its discretion by overruling two evidentiary objections. Finding no reversible error, we affirm. BACKGROUND In 2008, Rodney Ryan went to work for Se ga Towing Company , in Fort Worth, Texas as a mechanic. Within seven months he was a manager in the shop. During that time he purchased a 1999 Range Rover SUV from his employer. Mr. Ryan took great pride in the vehicle,

co nstantly washing and polishing the vehicle, and performing the main tenanc e himself. When Mr. Ryan left work on the evening of November 22, 2008, his boss gave him $500 cash, which Mr. Ryan was supposed to deliver to another employee. Mr. Ryan carried the money, along with the rest of his daily necessities, in a red backpack. Mr. Ryan ’ s sister, teased her brother that the2

backpack was like his “ purse. ” The backpack generally contained Mr. Ryan ’ s wallet, photos of his three children, his cell phone, and datebook, and other miscellaneous items, like bills or work related items. Mr. Ryan ca rried the backpack everywhere. On that same evening, Department of Homeland Security Offi cer Stephe n Mullinax drove past the All American Car Wash o n Berry Street near S ega Towing ’ s shop , where he noticed a man lying on the ground near a vehicle in one of the wash bays. When he stopped to check on the man, he found Rodney Ryan laying on the ground near his Range Rover in a pool of blood. Officer Mullinax immediately cal led 9

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man ’ s SUV, a Range Rover, was still running when he approached. The wash bay and the vehicle were wet, as though the man had been shot while he was washing the vehicle. The victim, identified as Mr. R odney Ryan, died from a gunshot to the chest. Just prior to his death , he also suffered several abrasions to his face, right shoulder, right elbow, right knee, and left hand. The Tarrant County Medical Examiner ruled Mr. Ryan ’ s death a homicide, and City of Fort Worth Detective Sarah Waters handled the investigation. Without any eyewitnesses to the shooting, Detective Waters proceeded to contact the businesses surrounding the car wash to locate security footage of the area. With the help of Detective Tr oy Lawrence of the police department ’ s digital forensic lab, Detective Waters recovered video footage from several security cameras at a liquor store. The liquor store,

“ Zoom

- In Liquor, ” is located adjacent to the car wash and had several outdoor security cameras which recorded some of the events immediately prior to Officer Mullinax ’s 9

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- call. The detectives copied the footage and released the images to the media, in an attempt to identify the individuals seen on the tape

. The recording was turned ov er to Forensic Video Analysist Mark Porter for further analysis and enhancement. The video showed a dark color ed3

Cadillac sedan pull through the parking lot, and then return and stop facing toward the car wash.
Two individuals can be seen in the car. Th e driver, wearing a multi

- colored baseball cap, exit ed the vehicle, walk ed toward the car wash , and out of the view of the cameras

. The i ndividual in the front passenger ’ s seat then g o t out of the car, walk ed around the vehicle, and g o t into the driver ’ s seat. Moments later, the individual wearing the baseball cap, who had walked in the direction of the car wash reappears on the tape , running toward the Cadillac. He jump ed into the car, and the two men drove away. Minutes later, Officer Mullinax found Mr. Ryan on the ground alongside his vehicle. One of the people who saw the video was Mr. Mario Penix. He recognized the liquor store and the car wash depicted, and identified the individuals on the video as Appellant, and his identical twin brother Kei th McCuin. He also recognized the Cadillac sedan as Keith McCuin ’ s

car , and recognized Kevin because of the jacket he was wearing when he got out of the Cadillac to move into the driver ’ s seat

. Mr. Penix told the police that he recognized that particular jacket, because he ha d seen Kevin wearing it and remembered the distinctive sports team logo on it. Based on Mr. Penix ’ s identifications, Detective Waters arrested Kevin McCuin and his brother at their home in Fort Worth. During a search of the premises, officers located a baseball hat which Detective Waters described as, “ strikingly similar ” to the hat worn by the individual Mr. Penix had identifi ed in the video as Keith McCuin. Officers also confirmed that a Cadillac, which was identical to the vehicle in the liquor store video , was registered to the McCuin s ’ mother. Appellant was indicted for capital murder for his participation in the offense . He was convicted by a jury and sentenced to life imprisonment in the Institutional Division of the Texas Dep artment of Criminal Justice.4 ANALYSIS In Issue One, Appellant contends that the evidence is legally insufficient to support his conviction. When conducting a legal sufficiency review , the reviewing court views all the evidence in the light most favorable to the verdict, to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. 1 Brooks v.
State , 323 S.W.3d 893, 895 (Tex.Crim.App. 2010). We must defer to the fact finder ’ s resolution of conflicts in the evidence, as well as its evaluation of the weight and credibility attributed to witnesses. Hooper v. State , 214 S.W.3d 9, 16

- 7 (Tex.Crim.App. 2007). Sufficiency is measured by the elements of the offense as defined by the “ hypothetically correct jury charge. ” Malik v.
State , 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). A hypothetically correct charge includes an accurate statement of the law, is authorized by the indictment, and adequately describes the particular offense f

or which the defendant was tried. Malik , 953 S.W.2d at 240. There are several methods by which someone may commit a capital murder offense. See TEX.PENAL CO DE ANN. § 19.03 (West 20 11 ). In this case, Appellant was convicted of taking part in the murder o f Mr. Ryan during the commission of another felony offe nse, robbery.
TEX.PENAL CODE ANN. § 19.03(a)(7)(West Supp. 20 11 ). As such , the essential e lements of the offense included: (1) intentionally or knowingly; (2) causing; (3) the death of an individual ; (4) during the commission of a robbery

. See TEX.PENAL CODE ANN. §§ 19.03(a), 29.02(a)(West 20 11 ). A pers on commits the offense of robbery if, in the course of committing a theft and with the intent to obtain or control of the property he: (1) intentio nally or knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or

1 This is the only standard applicable to determine whether the evidence is sufficient to support a criminal conviction. See Adames v. State , 353 S.W.3d 854, 859 (Tex.Crim.App. 2011). To the extent A ppellant has raised an argument under the standard of re view for factual sufficiency, that argument presents nothing for our review. See id.5

places another in fear of imminent bodily injury or death. TEX.PENAL CODE ANN. § 29.02( a)(West 20 11 ). A person commits a theft by un lawfully appropriating property with the intent to deprive the owner of that property. TEX.PENAL CODE ANN. § 31.03(a)(West Supp.
20 11 ). In addition to the statutory elements, the jury in this case was provided the following instruction , without objection :

Now if you find from the evidence beyond a reasonable doubt, in Tarrant County, Texas, on or about the 22nd day of November 2008, [Appellant] acting with the intent to promote or assist the commission of the offense of capital murder, solicited, encouraged , directed, aided, or attempted to aid Keith Demont McCuin to commit the offense of capital murder, or that Keith Demont McCuin, in the attempt to carry out a conspiracy to commit robbery, committed capital murder by intentionally causing the death of Rodn ey Ryan by shooting him with a firearm, though Kevin Lamont McCuin had no intent to commit capital murder if the capital murder was committed in furtherance of the un lawful purpose of Kevin Lamont McCuin and Keith Demont McCuin and should have been anticip ated by Kevin Lamont McCuin as a result of the carrying out of the conspiracy, then you will find the defendant guilty of the offense of capital murder. Mr. Mario Penix, a long

- time friend of Appellant and his brother, testified that he recognized the brothers as the individuals in the Cadillac visible on the video

. Mr. Penix testified that he recognized the car depicted in the video as Keith McCuin ’ s car . He explained that when the car pulled up to the liquor store , Keith was driving. When the vehicle stopped, Mr. Penix explained that he saw Keith get out of the car first. According to Mr. Penix, the individual who exited the vehicle from the passenger ’ s side and walked around the car to the dri ver ’ s position was Appellant. Detective Sarah Jane Waters provided testimony regarding the video footage. She stated that after he left the vehicle, the individual who had originally been driving the Cadillac w alked away from the vehicle, toward the back of the car wash and out of camera view

. The detective explained the individual ’ s path led di rectly toward a large gap in the fence separating the back of6

the liquor store ’ s property from the rear of the car was h. The detective testified that the condition of the fence would have provided easy access between the rear of the liquor store and the rear of the car wash. Returning to the video footage, Detective Waters noted that when the individual re - appears in th e camera frame, he can be seen running from the direction of the car wash, and jumping in to to the back of the Cadillac before the sedan drove away from the scene. Mr. Ryan ’ s sister testified that her brother ’ s red backpack went missing after the shooting, and was never recovered. Similarly, according to Mr. Ryan ’ s employer, the ca sh
Mr. Ryan was carrying when he left work on Nov ember 22, 2008, disappeared. The State ’ s theory of the case, as evidenced by the se ction of the charge quoted abo ve, and from the prosecution ’ s presentation of the evidence, was that the McCuin brothers acted together in the planning and execution of a would

- be robbery. Keith McCuin was consistently identified as the individual who approached the victim, and Appella nt as the getaway driver. Appellant ’ s legal sufficiency argument makes little or no reference to the statutory elements of the offense , but he seems to argue that the evidence is legally insufficient because his alleged role in the offense was limited to driving the getaway car. What Appellant ’ s argument fails to address is that the jury was instructed that Appellant could be convicted of the charged offense , regardless of the nature of his physical involvement, if the jury found that he solicit ed ,

encour ag ed , direct ed , aid ed , or attempt ed to aid Keith in the commission of the robbery which led to Mr. Ryan ’ s death. The central question in any legal sufficiency review is whether there was a rational basis for the jury ’ s conc lusion that the State proved its case beyond a reasonable doubt. See Brooks , 323 S.W.3d at 895. While the review is founded in the concept of the “ hypothetically correct jury charge, ” that charge does not exist in a vacuum. As noted above, the concept itself7

necessarily includes statem ents of applicable principles of law, as well as a description of the particular offense for which the defendant was tried. See Malik , 953 S.W.2d at 240. The jury receives this information via the court ’ s charge, and is presumed to have read and followed its instructions. Here , in addition to the statutory elements necessary for a capital murder conviction, the jury was instructed that it could convict Appellant if it determined that he committed the off

ense by soliciting, encouraging, directing, aiding , or attempting to aid a nother in the actual commission of the offense

. We cannot consider the rationality of the jury ’ s decision without taking these additional instructions into account . Having consider ed all of the evidence, as well as any reasonable inferences therefrom, it is clear that a rational juror could have found Appellant guilty of the offense beyond a reasonable doubt. See Powell v. State , 194 S.W.3d 503, 506 (Tex.Crim.App. 2006). Issue One is overruled. In Issues Two and Three , Appellant challenges the trial court ’ s decision to admit two pieces of evidence over Appellant ’ s Rule 403 objection. Appellant objected to the admission of
State ’ s E xhibit 19, the video recording from the liquor sto re, and State ’ s E xhibit 22 a photograph of Appellant ’ s brother wearing a multi

- colored hat. Both objections were overruled by the trial

court and the evidence was admitted. We review a trial court ’ s decision to admit or exclude evidence under an abuse of discretion standard. See De La Paz v. State , 279 S.W.3d 336, 343 (Tex.Crim.App. 2009). A trial court abuses its discretion when its decision lies outside the “ zone of reasonable disagreement. ” Id. at 343

- 44. As a general matter, relevant evidence is admissible. See TE X.R.EVID. 401. Evidence may be excluded despite its relevance, however, if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by8

considerations of u ndue delay, or needless presentation of cumulative evidence. TEX.R.EVID. 403. An objection under Rule 403 requires the trial court to weigh the probative value of the evidence to determine whether it is substantially outweighed by its potential for unfai r prejudice. Santellan v. State , 939 S.W.2d 155, 169 (Tex.Crim.App. 1997). A Rule 403 balancing test includes consideration of several factors: (1) the inherent probative force of the proffered item of evidence; (2) the proponent ’ s need for the evidence ; (3) the evidence ’ s tendency lead to a decision on an improper basis; (4) any tendency of the evidence to confuse or distract the jury from the main issues in the case; (5) the 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 the presentation of the evidence will consume an inordinate amount of time, or be cumulative of evidence already admitted. Giglio bia nco v. State , 210 S.W.3d 637, 641

- 42, n. 8 (Tex.Crim.App. 2006).
1. Probative Value and Need With regard to both the video and still images, the trial court could reasonably have concluded that the evidence was probative to show Appellant ’ s presence at the scene , and the degree of cooperation bet ween Appellant and his brother before, during , and after the shooting. In addition, because this is a case where the camera was the only “ eye witness ” available, the trial court could have concluded that the images recovered were necessary for the prosecu tion

. 2. Unfair Prejudice There is no indication, and Appellant does not argue, that the images had any tendency to
i nci te the jury into deciding the case on an improper basis. While the exhibits were certainly prejudicial to Appellant, the trial court could reasonably have concluded that the prejudice was

not so u nfair as to warrant exclusion.9

3. Confusion of the Issues As was discussed in Issue One, the evidence presented by the St ate was consistent with the theory that Appellant ’ s brother was the individual w ho actually shot Mr. Ryan, leaving Appellant in the vehicle to provide a quick escape. There is no indication in the record that the challenged exhibits created or added to any confusion regarding the events leading up to and following the shooting. Acco rdingly, the trial court could reasonably have concluded that the evidence had very little tendency to confuse, and that the eviden ce assisted the jury in understanding the brothers ’ orchestrated, but separate roles in the enterprise.
4. Misleading the Jury Similar to our analysis under factor three, due to the nature and content of the evidence at issue, the trial court could reasonably have concluded that there was little danger the images would mislead the jury.
5. Undue Delay and Needless Presentation of Cum ulative Evidence As is evident from our legal sufficiency review above, the State spen t a great deal of its time during the guilt

- innocence phase of trial presenting different aspects and portions of the video recording through multiple witnesses. How ever , in light of the probative value of the recording , the trial court could reasonably have concluded that there was no undue delay implicated by the presentation. Similarly, with regard to the still images, given the highly probative nature of the images, the trial court could reasonably have concluded that to the extent the photographs were cumulative , the ir presentation was nec essary . In sum, h aving considered the Rule 403 factors as they relate to each challenged piece of evidence, we conclude that the trial court could reasonably have concluded that the probative value of the evidence was not substantially outweighed by the potential for undue prejudice.10

Therefore, the trial court ’ s decision to admit the evidence over App ellant ’ s objection was not an abuse of discretion in either instance. 2 Issue s Two and Three are overruled. CONCLUSION Having overruled all three of Appellant ’ s issues, we affirm the trial court ’ s judgment.

February 22 , 2012 CHRISTOPHER ANTCLIFF, Justice Before McClure, C.J., Rivera, and Antcliff, JJ. (Do Not Publish)

2 Having concluded that the rulings were not erroneous, there is no need to conduct a harm analysis. See TEX.R.APP.P. 44.2(b).