Affirmed and Opinion Filed August 23, 2018 

# S

In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-16-01391-CR ROBERT ARTHUR MOSES, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 219th Judicial District Court Collin County, Texas Trial Court Cause No. 219-81377-2015



### MEMORANDUM OPINION Before Justices Bridges, Brown, and Boatright Opinion by Justice Bridges A jury convicted Robert Arthur Moses of first degree murder and sentenced him to life in prison. In six issues, he challenges the sufficiency of the ev idence to support his conviction, the exclusion of his blood expert, and the admission of certain evi dence. We affirm the trial court’s judgment. Background Anna Moses, the decedent, grew up in Russia and moved to the Un ited States after meeting appellant. Appellant and Anna m arried and appellant treated An na’s young son, Igor , as his own. Anna was described as a beautif ul, elegant woman who cared deep ly for her family and friends. Although the couple seemed to have a happy marriage, several of Anna’s friends described appellant as controlling. It seemed the more educated Anna bec ame, the less dependent she–2– became on appellant. Anna began enjoying other activities and hobbies that did not include appellant such as attending af ternoon tea with Dr. John Wiorkow ski, an elder, male co-worker who often gave Anna money when she needed it because he appreciated that she was always trying to better herself. 1 She also developed a strong friendship with Jerry Caspell bas ed on their mutual interest in opera and musicals. He admitted he was infatuated with Anna and had dedicated two books of poetry to her; however, he was married and denied any romantic relationship with her. Dr. Zharkynay Christian worked at University of Texas at Dallas with Anna, and they became friends based on their mutual Russian background. In De cember of 2012, Anna called her very upset after an incident i nvolving appellant. Anna had loc ked herself in a closet with her two dogs and called police. Police reports from December 15, 2012 indicated Officer Brian Stubblefield was dispatched to the couple’s home because of a 9 -1-1 hang up call, but it was “a mistake.” Reports did not indi cate whether the caller was male or female. Anna went to Dr. Christian’s house because “I’m afraid he will kill me tonight.” When Anna arrived, she “was so upset, like almost shaking.” Anna ta lked on the phone to her mother, who still lived in Russia, for a long time and continued to cry . The next day, Anna and appellant reached “some agreement,” and she returned home. Appellant and Anna divorced in March of 2013. Appellant then m oved into a house with three other divorced men and ren ted a room, which helped him fi nancially. Igor, a student at the UTD, saw his parents on the weekends an d remained close to both of them. Anna continued living in the home after the divorce, and appellant often helped Anna with repairs. Anna never indicated to friends or family that s he was afraid of appellant during

1 He gave her $40,000 to pay for Igor’s college living expenses, which he believed she would have paid back had she lived. He also gave her $6,000 for a European trip she was planning for the upcoming su mmer. He provided other monetary gifts when she expressed thin gs she could not afford.–3– those times after the divorce. Igor saw them argue “every now and then, maybe, but not very often.” Anna also began dating through match.com. She met Michael Stod nick in January or February of 2014. By the end of the summer, they were exclusiv ely dating. Stodnick and Anna had a standing Tuesday evening date each week. On Tuesday, January 13, 2015, Anna set the security alarm on he r home and left for work around 8:23 a.m. Anna worked as a statistical analyst in UTD’s strategy department. She had tea around 2 p.m. with Dr. Wiorkowski. Anna promptly left work at 5 p.m ., as was her usual routine. Video surveillance cameras captured her walking into the parking garage at 5:02 p.m. and l eaving the garage in her blue Hyundai sedan at 5:07 p.m. At 5:37 p.m., she used a credit car d to buy a chicken quesadilla at Taco Bell and video surveillance showed her paying at the drive through window. Video surveillance outside an elementary school near her neighborhood captured a car matching the description of Anna’s car passing by at 5:44 p.m. Steven Carey lived three houses down and across the street from Anna. He had security cameras outside the front of hi s house. Footage showed a sedan driving by at appr oximately 5:46 p.m., but detectives could not say with certainty that it was A nna’s car or whether a female was driving. Stodnick and Anna had planned to meet that evening after he att ended a 6 p.m. school meeting in Grapevine for his daugh ter. He texted Anna as he wa s leaving Grapevine at 7:03 p.m. but never heard back from her. He arrived at her home around 7 :30 p.m. and noticed it was dark and her car was not in the drivew ay, which was unusual. Based on Anna’s habit of not pulling her car in the garage unless there wa s bad weather, he assumed she was not home yet.–4– Stodnick rang the doorbell, called her name, and texted again but still got no response. He left and went to the Starbucks inside a nearby Tom Thumb for ab out fifteen minutes. He circled Anna’s neighborhood again, but not hing had changed at her house so he drove back to Grapevine. David Stafford, her neighbor acros s the street, was working in his home office late that afternoon. The office windows faced towards Anna’s home. He s aid Anna regularly got home after 5:30, picked up the mail, and then parked her car in the driveway. He did not hear or see anything from her house betw een 5:45 and 8:30 p.m. on January 1 3th. Igor had Tuesday evening classes at UTD from 5:30 p.m. to 6:45 p.m. and then from 7 p.m. to 9:45 p.m. Two female students confirmed his presence in cla ss the night of the 13th. Video surveillance showed him at t he campus pub at 9:49 p.m. A man living in Anna’s neighborhood testified there had been se veral car break-ins in the area that January and reported to police that he encountered me n driving in the neighborhood around 11:15 p.m. on January 13th a cting suspiciously. The next day, Stodnick tried to reach Anna again. When he coul d not reach her at work, he reached out to her friends. They agreed it was unusual for her to be unresponsive. He returned to her house again (shortly after 9 a.m. on January 14th) and n oticed her trash bins were still out front and packages were outside the front door. Otherwise, her home looked “normal.” Stodnick had a house key, but did not go inside because he did not know her alarm code. When Anna’s friends confirmed that they had not heard from her, Stodnick notified the Frisco police department. An officer told him to speak with th e UTD police since that was her last known location. He went to the campus police and at first, they treated the sit uation as a woman who did not want to talk to her boyfriend. After Anna’s boss called th e police because she had not shown up for work, Stodnick’s concerns w ere taken more seriously.–5– Officer Stubblefield, who responded to the 9-1-1 call in 2012, arrived at Anna’s home on Wednesday, January 14th, around 10:50 a.m. to perform a welfare check. He did not see any signs of burglary or forced entry into the home. When no one answere d the door, he “cleared the scene” and waited until Detective Lauren Hughes with the UTD police de partment arrived with Igor. Igor had a house key and the alarm code. Officers used Igor’s key a nd the security code to enter the home. A report from Anna’s alarm system confirmed the alarm wa s disarmed at 12:05 p.m., which was the first time it had been di sarmed since the morning of Ja nuary 13th. When officers entered, the house was dark. Detective Hughes he ard someone say, “there she is” from the direct ion of the garage. After she turned on the light in the garage, they found Anna’s body on the ga rage floor. It was obvious Anna was dead, and her car was missing. Anna was still wearing her coat and s carf. Her purse was beside her , and the mail was scattered around her body. Her purse contained, among other things, three one h undred dollar bills. An empty Taco Bell sack with the quesa dilla wrapper was found near her b ody. Anna had abrasions on her left hand and a small abrasion on her right hand. Such marks were consistent with defensive wounds or a fall. Although Anna had been shot seven times (three times in the front, three times in the back, and one that did n ot penetrate her skin), eleven cartridge cases were recovered in the garage. 2 No one noticed any other bullet holes in the garage. Sergean t Nelson Walter thought something su spicious was going on at the scene because of the discrepancy of bullet wounds and casings found. The general consensus of o fficers at the scene was that the killer was trying to make the cr ime scene look like a robbery g one bad. Despite trying to lift fingerprints from the patio door and the interior garage door, no prints were recovered. Nothing in the garage indicated who killed Anna

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2 The medical examiner could not d etermine whether she was first shot in the front or back.–6– Shortly before midnight on January 14, 2015, Texas Ranger Ruebe n Mankin and Detective Brian Tschudy went to the home where appellant lived. Mankin n oticed a band aid covering the backside of appellant’s right hand. The band aid had a stain o n the outside that was consistent with blood. Detective Tschudy asked appellant to go to the station for some questioning. Appellant answered questions, but Mankin described his answers as “very v ague.” He told officers he had been home all day watching footba ll. None of his other roommat es were home to confirm his statement. He told officers he later went to Twin Peaks, and v ideo surveillance showed him going to the bar at 7:06 p.m. an d leaving at 7:57 p.m. Despite his “vague” answers, appellant consented to a search of his bedroom, his cell phone, and firearms. Officers returned to the home around 1:30 a.m. on January 15th to conduct the search. They found several firearms in the search, includi ng a .22 Ruger long rifle appellant built himself, 3 a .22 black pocket pistol, and a .22 black Browning Buck Mark target pistol. All of these were excluded as the murder weapon through testing. While patrolling the area in th e early morning hours of January 15th (around 1:51 a.m.), Officer William Lo noticed a blue Hyundai parked on the side of the road a couple blocks from Anna’s home. A reading of the license plate indicated the car was stolen. He notified Detective Tschudy. Detective Tschudy instructed offi cers to “photograph the car as is, do not touch it, do not go inside, and have it impounded and towed” for processing and a pending search warrant. Officer Lo noticed and photographed a mu ddy footprint on the hood of th e car and more footprints on top of the car. Although gel prints w ere made from the prints take n off the hood, the gels were never compared to anyone.

3 The bullets taken from Anna’s body were consistent with bullet s from a .22 long rifle caliber cartridge.–7– Officer Lo also noticed a red m ark, which appeared to be blood, on the driver’s seat. He took photographs of it and the rest of the car’s interior throu gh the window. A Red Bull can was on the floor of the backseat passenger side and a “very weather ed” cigarette butt was on the floorboard. Anna did not smoke o r consume energy drinks. Like the extra shell casings found in the garage, Detective Tschudy believed the can and the cigarett e were planted in the car to tamper with the crime scene and t hrow off investigators. When Ranger Mankin observed the car at the Frisco police depart ment, he also noticed a red blood stain on the back, righ t driver’s side seat that was consistent with the type of injury appellant had on his right hand. He believed it was likely a f resh stain because it was in a “high traffic area in the car,” meani ng an individual sitting in the car was likely to be r ubbing against it. When Ranger Mankin asked appe llant about the blood, appellant c ould not think of any reason why his blood would be in her car. In a second interview on Ja nuary 28, 2015, appellant said the last time he was in Anna’s car was when he fixed a broken water pipe in the garage. 4 Detective Tschudy also saw a red bloodstain on the driver’s sea t of the car. Based on his training and experience, he thought it was “a newer, fresh bloo dstain.” It was not a saturating stain but “almost like a surface stain or like a graze or smear smudg e . . . but it was bright red in color.” He saw it again five days later (Monday, January 19th) at Garla nd DPS and said it had oxidized to more of a brownish, rustic color. Nicole Mullins, a forensic scientist, conducted a presumptive t est for three potential bloodstains. A stain in the cup holder was negative for blood, but one small stain on the driver’s seat and another small stain on t he upper right back part of th e driver’s seat tested positive.

4 Igor testified Anna texted him about the broken pipe on Novemb er 25, 2014, and also texted appellant to come over in fix it. Conversations extracted from Anna, appellant, and Igor’s phones indicated a p ipe did break in Anna’s home n ear that time. Nothing else indi cated appellant had been in her car after that day.–8– Detective Ronald Robison canvassed the area where the car was f ound and talked to neighbors. Stephen Brockway tes tified that on January 14th, he and a friend were moving a trailer out of the neighborhood between 1 p.m. to 1:40 p.m. and there w ere no cars parked in that location. When Brockway returned around 3 p.m., he saw an SUV parked ther e. Another neighbor in the area noticed a blue Chevy truck parked on the street between 5 p.m. and 6 p.m. Based on these observations, the killer could have left Anna’s car sometime af ter 6 p.m. on January 14th. Detective Cory Kraft interviewed Stodnick and Caspell. Both me n were cooperative and provided DNA samples. Stodnick denied owning any guns. Caspel l admitted to owning a 9 millimeter Glock and a .22 target pistol. Detective Kraft did not retrieve either of these guns because at the time of the interview, he did not know what cali ber of gun killed Anna. Toll records revealed that Caspell left his work in Arlington around 5:18 p. m. on January 13th, and he exited the Renner Road toll booth towards his home at 6 p.m. Once inv estigators determined Anna was killed between 5:50 p.m. and 5: 55 p.m., they did not consider h im a suspect so they did not feel his gun was a viable murder weapon. Dr. Wiorkowski was excluded as a suspect after toll records con firmed he was in Garland/Rowlett on his way home at 5:47 p.m. Although he owned a .40 caliber Glock, officers knew this was not the type of gun that killed Anna. Mullins performed the DNA analysis on the stains found in the c ar. Stodnick, Stafford, Wiorkowski, Caspell, Igor, Tschudy, and Mankin were excluded as contributors to the stain on the upper back driver’s seat. Anna and appellant could not be excl uded as possible contributors, as the stain was a mixture of two individuals. The stain on the d river’s seat bottom was also a mixture of two individuals. Again, the other possible suspects were ex cluded, but Anna and appellant could not be excluded as po ssible contributors.–9– DNA testing on the Red Bull can and the cigarette butt did not match DNA from any individuals involved in the inve stigation, but rather was an un known male. The profile was entered into CODIS (Combined DNA Inde x System) but did not match any pr ofiles in the system. As the physical evidence began to link appellant to the murder , officers began searching for a possible motive. Officers reviewed appellant’s finances and talked with Anna’s friends. They concluded appellant was the only person who stood to finan cially gain from Anna’s death. Stodnick told officers appellant became focused on money within a couple days of Anna’s death. On January 16th, appellant gathered with several of Ann a’s friends and Anna’s mother at a friend’s home. Dr. Christian said appellant was acting odd. He asked for help translating and reading some of Anna’s hand-wr itten notes about her accounts an d passport. He also asked Anna’s mother about the locatio n of Anna’s jewelry. Dr. Christian thought she overheard appellant say it would be g ood if he lived in Anna’s home so he did not have to pay for two places. Anna’s mother t old him she agreed with “whatever Igor wants.” Igor did not say anything during these conversati ons but was “just sitting there, like he was relaxing.” Igor later te stified it was not appellant’s idea to move in. He wanted appellant to move in because he did not know anything about paying bills or taking care of a house. Olga Mead also said appellant seemed more interested in possess ions than a funeral. Tatyana Hieber described him as “very businesslike” and interes ted in her bank accounts, passwords, and other documents. Frank Schoeberle, a friend of the family, was the independent e xecutor of Anna’s will. Appellant went to Schoeberle’s hom e several times a week to dis cuss the estate, often uninvited. Schoeberle encouraged Igor to see a financial advisor, which he did. He also encouraged Igor to set up a trust; however, appella nt told him to put money in a b ank account.–10– On February 4, 2015, the bank account appellant shared with Igo r received a $25,000 deposit. Igor explained the money was used to pay off the car he drove but appellant owned. Title of the car was then transferred to Igor. Money was also used t o pay off the mortgage on Anna’s house. Igor was the beneficiary of Anna’s life insurance policy worth $750,000. Although Detective Tschudy told the insur ance company not to release the money to Igor because he could not be ruled out as a suspect unt il all court proceedings were complete, Igor eventually received the $750,000. Although the police investigation revealed that several men wer e involved in Anna’s life, each of these men were excluded as the killer based on DNA test ing and toll records of their cars around the time of Anna’s death. Officers considered other lea ds and the possibility of an unknown male killer, but based on appellant’s blood in the car, his lac k of a solid alibi, their marriage history, and his financial gain from Anna’s death, officers arrested app ellant and charged him with murder. The jury considered the two stories presented about Anna’s deat h: The State’s version of a controlling ex-husband who bene fitted financially from her de ath and the defense version of a shoddy police investigation that overlooked evidence and other suspects and inst ead focused on a father who stepped in to help his young adult son who had lost his mother and was inexperienced with finances. The jury believe d the State, found appellant gu ilty of Anna’s murder, and sentenced him to life in prison. This appeal followed. Sufficiency of the Evidence Appellant argues the evidence is legally insufficient because h is murder conviction was based on nothing more than pure conjecture and speculation. He relies specifically on the following: (1) no evidence proving Anna’s time of death; (2) no murder weapon linking him to the crime; (3) no evidence of appellant’s motive; (4) insufficient evidence he was in Anna’s car on–11– January 13th or 14th; (5) no ev idence excluding other potential suspects; (6) and numerous failures by officers to investigate other evidence that could have impli cated other suspects. Thus, he contends the evidence against hi m merely raises the possibility of guilt, or perhaps even a strong presumption of guilt, but it is nonetheless legally insufficien t. See Walker v. State , PD-1429-14, 2016 WL 6092523, at *12 (Tex. Crim. App. Oct. 19, 2016) (not de signated for publication) (“A conviction based upon juror specula tion raises only a suspicion of guilt, and mere suspicion is inadequate to satisfy the consti tutional sufficiency standard t hat requires proof beyond a reasonable doubt.”). Appellant is guilty of murder if he intentionally and knowingly caused the death of Anna by shooting her with a firearm. T EX

. P ENAL C ODE A NN . § 19.02(b)(1) (West 2011). In reviewing the sufficiency of the evidence to support a conviction, we vie w all of the evidence in the light most favorable to the prosecution in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasona ble doubt. Jackson v. Virginia , 443 U.S. 307, 319 (1979). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testim ony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id . The trier of fact is the sole judge of the weight and credib ility of the evidence. See T EX

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. A NN . art. 38.04; Brown v. State , 270 S.W.3d 564, 568 (Tex. Crim. App. 2008). We may no t re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. Dewberry v. State , 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Instead, we “determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict.” Hooper v. State , 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We must presume that the factfinder resolved any conflicting infer ences in favor of the prosecution and defer to that resolution. Jackson , 443 U.S. at 326.–12– The standard of review is the same for direct and circumstantia l evidence cases; circumstantial evidence is as probative as direct evidence in e stablishing the guilt of an actor. Hooper , 214 S.W.3d at 13. Appellant relies on ev idence of Anna’s stomach contents after h er death to challenge the time of her death. Dr. William Rohr testified that Anna’s stom ach contained 300 milligrams of chyme, described as food that has been in the stomach “for a lo nger period of time, at least long enough so that it looks completely digested, and it just kind o f has a creamy, homogenous appearance.” Thus, he was unabl e to recognize any kind of food in the contents of her stomach. Dr. Rohr testified that if Anna had eaten a chicken quesadilla on her way home around 5:45 p.m. and was shot ten minutes later (according to the State’s time l ine), it would be reasonable for the contents of her stomach to be partially digested. If Anna had eaten right before her death, he would have expected to see something different, and he would have des cribed her stomach contents differently in the a utopsy report. Dr. Rohr explained the process of digestion can take anywhere f rom two to six hours depending on the type of food and how much was eaten. He could not definitively say how long it takes food to digest to chyme; however, it would take longer than fifteen minutes for a chicken quesadilla to digest into chyme. Based on this testimony, appe llant argues Anna could not have been killed between 5:45 p.m. and 5:50 p.m. Instead, she was k illed sometime after 7 p.m., giving appellant an alibi based on his presence at Twin Peaks and dest roying all the other suspects’ alibis. However, appellant’s theory ove rlooks the fact that no one know s what happened to the quesadilla. While he contends the most “logical” inference is that Anna ate it on her way home, this theory presumes she arrived home, got her mail, and then sat in her ca r for a couple hours until she was killed.–13– The jury was free to reject appe llant’s theory and instead beli eve, based on video surveillance of Anna’s movements that day, that she arrived hom e around 5:45 p.m, picked up her mail, and was ambushed by the kill er as she was going inside he r house. Accordingly, the jury was free to determine the conflicts in evidence and conclude ap pellant was the only suspect who did not have an alibi at the time of Anna’s death. Appellant argues no murder weapon was ever found. However, the jury heard evidence that appellant had the means to kill her. He was familiar with guns based on his ownership of several firearms, including the caliber-type that killed Anna. He served in the military, and Detective Tschudy testified that based on the tight groupings o f the gunshot wounds, the killer had experience with guns and marksmanship. Appellant further argues officers should have tested appellant’ s and other suspects’ clothes for gunshot residue. Officers in terviewed appellant hours afte r the murder. It was likely he had washed his hands or showered during that time, which would inva lidate the test results. Detective Tschudy explained gunshot residue testing is not highly sought after for evidentiary purposes because there are too many false positives. “The FBI doesn’t e ven recognize it as a valid test.” Thus, it was reasonable for offi cers to decide not to test for gunshot residue. Appellant next contends there was no evidence of appellant’s mo tive to kill Anna. First, motive is not an element of murder, but rather a circumstance i ndicative of guilt. See Temple v.
Stat e, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013); see also Delacruz v. State , 278 S.W.3d 483, 491 (Tex. App.—Houston [14th Dist .] 2009, pet. ref’d) (State do es not have to prove motive in a murder prosecution). However, appellant concedes the State pre sented evidence of financial gain as a possible motive, but asserts the motive was “wholly unreas onable” because Igor was the beneficiary of the life insurance and there was no evidence app ellant received any of it. Appellant’s assertion overlooks the other financial benefits he received from Anna’s death. When–14– the couple divorced, he was forced to move out of a two-story h ome and rent a bedroom in a home with three other men. A review of his financial records indica ted he had several credit cards that were nearly maxed out. 5 Given his income of approximate ly $1600 from social security, he had a significantly high debt-to-income ratio. On February 4, 2015, the bank account appellant shared with Igor received a $25,000 deposit from the estate, which hel ped pay off his car and helped pay for the home appellant immediat ely moved back into after Anna d ied. The jury also heard from numerous witnesses that appellant seem ed more concerned about probating Anna’s estate than the murder investigation. He aske d Anna’s mother about her jewelry days after the murder. He enc ouraged Igor to put money into a bank account rather than a trust. However, the jury also heard testimony that Anna “babied” Igor and cared too much for him rather than teaching him how to take care of himself and be a “man.” Thus, the jury hear d the defense’s theory that appellant’s actions after Anna’s death were those o f a caring father trying to make decisions for his adopted son, w ho was ill-equipped to make suc h decisions. The jury did not believe it. The jury, when faced with conflicting evidence abo ut appellant’s motivations, resolved these inconsistencies in favor of the State’s theory that appel lant killed Anna for personal monetary gain. Jackso n, 443 U.S. at 326 (we must pres ume factfinder resolved conflic ting inferences in favor of the prosecution). Appellant next argues it was “wholly unreasonable” for the jur y to conclude the presence of appellant’s blood in Anna’s car proves his guilt, as there w as no evidence he was actually in her car on January 13th or 14th. He argues there is no evidence su ggesting how his blood was deposited in the car because the police assumed the killer wore gloves. He also asserts there is no evidence appellant had the opportunity to abandon her car becau se he was being interviewed by

5 One card with a $10,000 limit had a $9,967.40 balance on Decem ber 29, 2014. Another card with a $3,600 credit limit had a ba lance of $3,577.61 on December 25, 2014. And another one with an $11,50 0 limit had a $11,348.49 balance on December 11, 2014. Appella nt owed $14,497.36 on his car.–15– the police when her car was discovered. Neighbors in the area could only confirm that a blue Chevy truck was parked in the location between 5 p.m. and 6 p.m . Thus, appellant ignores the fact it was reasonable for the jury to conclude that appellant aband oned Anna’s car sometime before the police interviewed him late that night of the 14th and when they found the car around 1:50 a.m. on the 15th. Further, appellant h ad a cut on his right hand th at coincided with the location on the driver’s seat where DNA testing confirmed the presence of his b lood. When first interviewed by police, appellant could not explain why his blood would be in h er car. His statement to police about his whereabouts on January 13th was “very vague,” but he provided other very specific details about prior interactions with Anna such as fixing a wat er filtration system for her in the garage. Although Igor testified the stain had been there for y ears, the jury was free to disbelieve him and instead believe Stodnick, who testified Anna kept her c ar “incredibly clean” and she would have “absolutely” tried to clea n a blood stain if she saw it in her car. Ultimately, no one could confirm appellant’s whereabouts betwee n 6 p.m. and 6:30 p.m. on January 13, 2015. Accordingly, the jury could have reasonab ly concluded appellant was the only person with the motive, means, and opportunity to kill Ann a. See Temple , 390 S.W.3d at 360 (motive, means, and opportunit y are indicators of guilt). To the extent appellant argues Wiorkowski, Caspell, Stodnick, Igor, and an unknown male were not excluded as suspects, his entire premise is based on a fallacy in the State’s time line of Anna’s death because of the contents of her stomach and the mis sing quesadilla. As discussed above, the jury was free to believe the State’s time line of he r death based on surveillance videos of Anna’s movements that evening and the crime scene where she was discovered. Finally, appellant attacks the officers’ investigation of the murder for numerous reasons including, but not limited to: (1 ) failing to test the Taco Bel l bag and wrapper for DNA; (2) failing to compare the gel footprints from Anna’s car to any of the sus pects; (3) failing to follow up on–16– the “very suspicious lead” from the campus police about the unk nown Hispanic male who posed as Igor’s father and tried to get into his apartment after the murder; (4) discounting the possibility Anna was murdered as part of a robbery because the credit card she used to buy the quesadilla was never found; and (5) failing to completely audit Anna’s finance s and explain how she increased her net worth from $4,745 to $111,880 in twenty-three months an d only withdrew $150 in cash during that time but had three one hundred dollar bills in her purse when she was murdered. Appellant asserts the police deve loped a time line for Anna’s d eath before having all the evidence and then stopped inve stigating any l eads that did not fit with their belief appellant killed her. He supports his claim through Detective Tschudy’s stateme nt that “We started getting in evidence, and once the evidence starts to lead certain directio ns, that’s where we go.” However, we do not review the sufficiency of the police investigation, b ut rather review the evidence presented at trial. See McLemore v. State , No. 05-15-00160-CR, 2015 WL 9591398, at *3 (Tex. App.—Dallas Dec. 31, 2015, no pet.) (mem. op., not designated f or publication). As such, appellant’s attacks on the police investigation are not relevan t to our analysis, and we give proper deference to the jury’s verdict. As explained above, the evidence t he State presented establishe d appellant did not have an alibi for the time Anna was killed. He stood to achieve financ ial gain from her death, and his blood was found in her car. Moreover, officers investigated whether Anna had ties to illicit criminal activities but found no eviden ce of such activities. Officers did not believe it was a robbery because Sergeant Nels on explained that in most robbery cases in which a person steals a credit card, the perso n tries to use it right away and purchase merchandise before it i s reported stolen. Here, Anna’ s missing credit card was not used within the couple days after her death. Three hundred dollars in cash as also left in her purse. Further, her car was not missing any parts, and the keys were f ound under the driver’s seat. Rather–17– than a robbery, investigators believed the crime scene was stag ed to throw them off the real killer. Ranger Mankin said the suspect was probably “somebody that watc hed NCIS,” and appellant admitted he had taped NCIS. In assessing the sufficiency of the evidence, we have a duty to “ensure that the evidence presented actually supports a conclusion that the defendant com mitted the crime that was charged.” Winfrey , 323 S.W.3d at 882. The legal s ufficiency standard of review does not require us to decide “what happened,” rather, we only have to be satisfied that a ju ry could rationally answer that question for themselves beyond a reasonable doubt. See Walker , 2016 WL 6092523, at *14; see also Boyce v. State , No. 05-15-01360-CR, 2017 WL 3498475, at *16 (Tex. App.—Dallas Aug. 16, 2017, pet. ref’d) (mem. op., not desi gnated for publication). Although the jury relied on circum stantial and scientific evid ence, appellant’s conviction “was not a determination so outrageous that no rational trier o f fact could agree.” Wirth v. State , 361 S.W.3d 694, 698 (Tex. Crim. App. 2012). Thus, we are satis fied a jury could rationally answer “what happened” to Anna beyond a reasonable doubt. Walker , 2016 WL 6092523, at *14. Accordingly, the evidence is l egally sufficient to support appe llant’s murder conviction. We overrule his first issue. Exclusion of Blood Expert In his second issue, appellant argues the trial court abused i ts discretion by excluding his expert’s testimony regarding the scientific impossibility of de termining a bloodstain’s age. The State responds the trial court did not abuse its discretion by excluding the testimony because officers can testify to personal observations. Further, the St ate asserts appellant was not prevented from presenting the substance of his defense, and the State pre sented other evidence to demonstrate that the bloodstain was recently deposited in Anna’s car.–18– We review a trial court’s ruling on the admissibility of expert testimony for an abuse of discretion. Coronado v. State , 384 S.W.3d 919, 923 (Tex. App.—Dallas 2012, no pet.). Such rulings will rarely be disturbed by an appellant court. As wit h other types of evidentiary rulings, we will uphold the trial court’s decision unless it lies outsid e the zone of reasonable disagreement.
Id . If the record supports the tri al court’s decision, there is no abuse of discretion. Id

. A trial court’s decision to exclu de evidence may violate an acc used’s constitutional right to present a defense. See Potier v. State , 68 S.W.3d 657, 665 (Tex. Crim. App. 2002). This fundamental right is violated if the excluded evidence forms su ch a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense. Id

. Appellant hired Dr. Michael Spenc e, a self-employed consultant focusing on forensic biology and DNA, to consult on the DNA and forensic issues invo lved in the case. The defense asked him to render expert opini ons on transfer of trace DNA an d bloodstains. In a hearing outside the jury’s presence, Dr. Spence explained he would testify to “the lack of ability to determine how long [bloodstains] have been there. ” Specifically, he said he would give the following opinions about bloodstains: I’d say, first and foremost, the bloodstain. Blood is red when it comes out of the body. We all see that. We have seen that from skinning o ur knees as a child. Over a very short period of time of drying out, that b lood does change color at different rates and different circumstances, di fferent substrates that the blood is bei ng deposited on. It’s going to change differently, but it does change t o more of a reddish-brown colo r. He also planned to testify about the results of published artic les trying to determine the age of a bloodstain; however, he admitted he only reviewed them and had not conducted any of his own research. The State objected to Dr. Spence testifying to any opinion reg arding the bloodstain evidence because “he’s just relaying history . . . I don’t thin k he has shown that he has the expertise to be able to testify to that.” The trial judge asked if Dr. S pence would be giving an opinion on–19– whether or not it was possible to determine how long a particul ar bloodstain may have been in a particular location. Dr. Spence answered, “I’m going to offer the opinion that it is impossible to do that just by looking at it. There are means to study the ag e of bloodstains, but those are in development, and none of those are, to my knowledge, validated or in use in any laboratory system that I know of.” Determining the age of a bloodstain “requires more than simply looking at it.” The trial judge indicated his skepticism of needing an expert w itness because it seemed like a “common-sense opinion.” Defense counsel argued the State presented their detectives as experts “with their expert notice” of the bloodstain in the car so Dr. Spence would rebut those opinions. However, no objection was raised to their test imony and the court stated, “ I can only call the pitches that are thrown.” The trial court ultimately ruled that having an exper t testify that “it takes more than just looking at it to tell how old it is” is not a subject for exper t testimony because it “is like having a meteorologist testify that rain i s wet.” An expert’s testimony would give undue weight to the testimony. The trial court empha sized defense counsel could ar gue it “all the livelong day in your closing, but he can’t give that opinion.” At trial, Detective Tschudy test ified, without objection, that based on his training and experience, he thought the bloodstain in Anna’s car was “a newe r, fresh bloodstain.” It was not a saturating stain, but “almost like a surface stain or like a gr aze or smear smudge . . . but it was bright red in color.” During cr oss-examination, defense counse l asked if he had information “that you could never determine the freshness of a stain?” He answer ed, “That is coming from DPS. They probably won’t go on the rec ord saying ‘fresh.’ It’s hard to determine that.” Ranger Mankin testified, without objection, that the stain was in a high traffic area in the car, “So to me, that was apparent that it was likely to be a fr esh stain.” Appellant asserts their–20– testimony left the impression with the jury that they “possesse d some form of street-wisdom concerning the age of bloodstains” that his expert should have been allowed to rebut. Despite appellant’s characterization of the testimony, neither witness testified as an expert on bloodstains but instead provi ded a lay opinion based on thei r observations. A police officer is entitled to provide a lay opinion that is rationally based on h is perceptions, as well as his training and experience. See Osbourn v. State , 92 S.W.3d 531, 539 (Tex. Crim. App. 2002) (officers may provide lay opinions based on personal obs ervations); see also Lozoya v. State , No. 08-15-00278- CR, 2017 WL 4277307, at *4 (Tex. App.—El Paso Sept. 27, 2017, n o pet.) (not designated for publication) (officer testified he observed what he believed to be blood on a knife). 6 Further, Dr. Spence’s opinion was not relevan t to challenge their observatio ns because he did not see the bloodstain in the condition that they did. See Tillman v. State , 354 S.W.3d 425, 435 (Tex. Crim. App. 2011) (expert testimony is admi ssible if it is relevant to the issue in the cas e). Moreover, he agreed it is “common sense” that “[i]f you get a cut where bloo d comes out . . . it will be red.” See Blumenstetter v. State , 135 S.W.3d 234, 249 (Tex. App.—Texarkana 2004, no pet.) (“Whe n the jury is equally competent to form an opinion about the ultimate fact issue or the expert’s testimony is within the common knowledge of the jury, the trial court sho uld exclude the expert’s testimony.”). Further, Dr. Spence testified DNA testing cannot determine the age or time at which a stain was deposited. “It’s a wonderful technology, but it can’t answ er the how or the when.” Accordingly, the jury would not have thought that the officers were able to determine the age of the bloodstain when Dr. Spence te stified to the contrary. Thus , although the trial court refused to

6 The State concedes it has not found any Texas case on point re garding an officer’s testimony about the freshness of blood, bu t it cites several other state courts who have allowed such testimony. See Thompson v. Conn ., 147 S.W.3d 22, 38 (Ky. 2004) (holding it does not require ex pertise to observe whether blood is fresh or dried); Franklin v. State , 405 So.2d 963, 965 (Ala. Cr. App. 1981) (“the police officer merely gave his opinion as the ‘freshness’ of a blood st ain, a matter of common knowled ge, which stain he personally viewed”); People v. Krone , 424 N.E.2d 917, 921 (Ill. App. Ct. 1981) (“it is not nece ssary to qualify a police office r as an expert for the purpose of identifying fresh blood”).–21– explicitly let him testify that the age of a bloodstain cannot be determined, this conclusion was implicit in his testimony regarding DNA. As such, appellant’s argument that he was unable to rebut a false impression with the jury is not supported. In ad dition, defense counsel elicited testimony from Detective Tschudy that it is hard to determine t he freshness of blood. Accordingly, we conclude the trial court di d not abuse its discretion by exc luding Dr. Spence’s testimony. In reaching this conclusion, we likewise conclude the trial co urt did not violate appellant’s constitutional rights to present his defense by excluding such testimony. The fact that a defendant may not get to present his case to the extent or in the form he desired is not prejudicial when he was not prevented from presenting the substance of his defense to the jury. Potier , 68 S.W.3d at
666. Appellant presented evidence challenging the State’s assertion that the bloodstain was fresh. Igor testified the stain had been on the seat for “quit e a long time . . . since like high school.” Dr. Spence explained the age of a bloodstain cannot be determin ed through DNA testing. He also testified that based on his e xperience in the lab, fresh blood dries quickly, which challenged the officers’ observation of “fresh” blood in Anna’s car hours afte r it was found. Through crossexamination, Detective Tschudy acknowledged that DPS would not “go on the record” calling a bloodstain “fresh” because it is “hard to determine.” During c losing argument, appellant challenged the theory that the killer wore gloves because, “If you are wearing gloves, you’re not leaving blood in the car. That blood came at a different time, folks.” As such, appellant presented the substance of his defense r egarding the timing of the blood in the car. The exclusion of Dr. Spence’s testimony did not result in the denial of a constituti onal right. Appellant’s second issue is overruled. Perjured Testimony–22– In his third issue, appellant argues the State’s use of perjur ed testimony violated his constitutional right to due process and due process of law. Sp ecifically, he complains the State relied on perjured testimony when it allowed Detective Tschudy to testify before the jury that Anna’s killing was not part of a robbery because he knew as ear ly as January 16, 2015 that the credit card used at the Taco Bell was missing. 7 The State responds appellant failed to preserve his issue for review, or alternatively, the record does not support his claim that Detective Tschudy’s testimony was false or material. To preserve an issue for review, an appellant must present to t he trial court a timely request, objection, or motion stating the specific grounds for his compl aint. T EX

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. P. 33.1. It is undisputed appellant did not object to Detective Tschudy’s alle ged false testimony during trial. Rather, appellant raised his complaint in a footnote as part of his sufficiency challenge in his motion for new trial. Although appellant claims this was timel y because the State has a duty to correct false testimony and “this i s not something that defense counsel can ascertain until the trial is concluded,” we disagree. As appellant acknowledges, rule 33.1 “simply requires an object ion to be made at the earliest opportunity.” In doing s o, this allows the trial cour t to correct any possible error. However, a defendant’s failure to object may be excused if he c ould not reasonably have known that the testimony was false at the time it was made. See, e.g., Estrada v. State , 313 S.W.3d 274, 288 (Tex. Crim. App. 2010). Here, the record indicates appella nt knew Detective Tschudy’s t estimony was allegedly false as he testified. Defense counsel thoroughly cross-examin ed Detective Tschudy on when he first knew the credit card was stolen and even forced Detective Tschudy to concede that he

7 Detective Tschudy also knew about the missing credit card prio r to his grand jury testimony, i n which he said the killing was not a robbery because nothing was taken.–23– prepared a power point presentat ion for the grand jury that sai d, “This was not a robbery because nothing was taken from her purse .” Detective Tschudy thought R anger Mankin would confirm that he told him the credit card was missing; however, Mankin w as unaware the credit card was missing until asked about it at trial. Accordingly, appellant failed to object to any false testimony at the earliest oppor tunity to preserve his complaint. See Haliburton v. Stat e, 80 S.W.3d 309, 315 (Tex. App.—Fort Worth 2002, no pet.) (“Although Appellant now c omplains that these two witnesses lied under oath, he f ailed to lodge an objection of a ny kind when the two testified .”); see also Castillo v. State , No. 04-11-00422-CR, 2013 WL 781776, at *13 (Tex. App.—San Ant onio Mar. 1, 2013, pet. ref’d) (mem. op., not designated for publica tion) (failing to lodge a timely and specific objection “when the allegedly false testimony was offe red into the record” waived the issue). Appellant’s failure to object was not excused because the record indicates he was aware of the alleged false nature of the testimony at the time Detective Tschudy was on the witness stand. Accordingly, appellant’s third issue is overruled.
Evidence Issues In his final three issues, appellant challenges the admission o f certain evidence. We review a trial court’s decision to adm it or exclude evidence under an abuse of discretion standard. Henley
v. State , 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016). A trial court a buses its discretion when the decision falls outside the z one of reasonable disagreement. Id

. After overruling appellant’s pretrial motions in limine, the tr ial court allowed the State to introduce the following evidence : (1) medical and counseling re cords containing statements that appellant had an affair prior t o their divorce; (2) notes writt en in Russian found in Anna’s locked desk drawer that said things such as, “How can I protect myself financially before filing divorce,” and expressed her concern appellant would “try to ruin me while I try friendly divorce,” and “He says that he will kill himself and will write a letter to the c hild that I drove him to suicide, and–24– other disgusting things, and that the child will not want to as sociate with me”; and (3) Dr. Christian’s testimony regarding Anna’s phone call in December o f 2012 in which she expressed fears appellant was going to kill her that night. We begin by addressing Anna’s Russian notes. Appellant concede s in his reply brief that he failed to preserve error under rules 403, 404(b), and articl e 38.36. However, appellant also argues admission of the notes vio lated his right to confrontati on. Despite acknowledging his failure to object to the trial court, he urges this Court to co nsider his issue because “For far too long, the State has been able to avoid reversal of what are pla inly constitutional errors affecting the substantial rights of the accused by capitalizing on ingenu ous or incomplete objections lodged by trial counsel, when the substa nce of why that piece of evide nce is inadmissible is readily apparent.” We reject appellant ’s invitation. Error, even con stitutional error, may be forfeited if appellant failed to object. Fuller v. State , 253 S.W.3d 220, 232 (Tex. Crim. App. 2008); see also
Robinson v. State , 310 S.W.3d 574, 577 (Tex. App.—Fort Worth 2010, no pet.) (pre servation requirements apply to confronta tion clause complaints). Becaus e appellant failed to preserve any of his complaints regarding adm ission of the Russian notes, his fifth issue is overruled. We now consider whether the trial court abused its discretion b y admitting medical and counseling notes discussing appellant’s affair prior to their d ivorce and evidence of a domestic incident in December of 2012. Appellant objected at trial that the evidence was not relevant and highly prejudicial under rule 403. The trial court overruled b oth objections. Evidence is relevant if it has “any tendency to make the existe nce of any fact that is of consequence to the determination of an action more probable or less probable than it would be without the evidence.” T EX

. R. E VID . 401. Article 38.36 of the code of criminal procedure provides in part that, “[i]n all prosecutions for murder, the s tate or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances . . . going to show the condition of the–25– mind of the accused at the time of the offense.” T EX

. C ODE C RIM

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. A NN . art. 38.36(a) (West 2005). Evidence under article 38.36 is still subject to exclus ion under rules 403 and 404(b). See
Smith v. State , 5 S.W.3d 673, 679 (Tex. Crim. App. 1999). Rule 404(b) provid es that “Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, i dentify, or absence of mistake or accident.” T EX

. R. E VID . 404(b). The nature of the relationship, such as whether the victim and the accused were friends, were co-workers, were married, es tranged, separated, or divorci ng, is clearly admissible under article 38.36(a). See Garcia v. State , 201 S.W.3d 695, 702 (Tex. Crim. App. 2006). Further, in some instances, prior acts of vi olence between the victim and t he accused may be offered to illustrate the nature of the relationship. Id

. Here, the nature of appellant’s and Anna’s relationship was a m aterial issue; therefore, evidence of this relationship was relevant because the State be lieved Anna was killed by someone she knew and had a personal relationship. See Bailey v. State , No. 05-13-01536-CR, 2015 WL 1649946, at *9 (Tex. App.—Dallas Apr. 13, 2015, no pet.) (not d esignated for publication) (“What issues are material will depend on the theories of the prosecut ion and the defense.”). The notes from a December 23, 2008, counseling session revealed a woman w ho “presented in [an] agitated and anxious state” after learning of the affair. The notes fro m a December 29, 2008, session stated she was calmer, but “anxious about being on her own, feeling in debted to [appellant] for staying and helping with son’s cancer battle.” Anna was described as a private woman who did not talk much abo ut her relationships; therefore, this evidence provided an insight into her marriage in which she felt scared about leaving appellant, anxious about being on her own, and indebted to him for previously supporting Igor’s–26– battle with cancer. Because the evidence of their relationship was material, the State was allowed to present such evidence under the “other purposes” clause of r ule 404(b) because it had a purpose other than showing bad character and the defendant acting in co nformity therewith. See, e.g., Chavez v. State , 399 S.W.3d 168, 172 (Tex. App.—San Antonio 2009, no pet.) (re lationship was material issue and evidence helped illustrate nature of relatio nship and possibly explained victim’s fear of defendant). To the extent appellant argues the evidenc e was too remote to consider, neither article 38.36 nor rule 404(b) limits the time period for which such evidence may be admissible. See, e.g., Brock v. State , 275 S.W.3d 586, 590 n.3 (Tex. App.—Amarillo 2008, pet. ref’d)

. Evidence, while relevant and otherwise admissible under rule 40 4(b) and article 38.36, may still be excluded under rule 403 i f the appellant demonstrates the damaging nature of the evidence outweighs its probative value. See Chavez , 399 S.W.3d at 173. Appellant argues the “salacious, irrelevant evidence [] motivated the jury to abandon its oath a nd convict Robert Moses despite the absence of legally sufficient ev idence.” We disagree. As prev iously discussed, the evidence was relevant to illustrate his relationship with Anna. Nothing in the record suggests the jury had a reasonable doubt that appellant m urdered Anna, but instead conv icted him based on evidence of an affair. Rather, appellant was convicted based, in part, on evidence of his blood in her car and no alibi proving his whereabouts at the time of her murder. Ac cordingly, the trial court did not abuse its discretion by admitting Anna’s medical and counseling notes. Appellant’s sixth issue is overruled. Finally, appellant argues the trial court abused its discretion by allowing Dr. Christian to testify about a domestic incident that occurred in December of 2012. Anna asked to come to her house because “I’m afraid he will kill me tonight.” As previou sly stated, the nature of their relationship was a material fact. “In cases in which the prior relationship between the victim and the accused is a material issue, illustrating the nature of the relationship may be the purpose for–27– which evidence of prior bad acts will be admissible.” Bailey , 2015 WL 1649946, at *9 (citing
Garcia v. State , 201 S.W.3d 695, 703 (Tex. Crim. App. 2006)). Neither article 38.36 nor rule 404(b) limits the time period for which such evidence may be ad missible. See, e.g., Brock , 275 S.W.3d at 590 n.3. The fact that the incident happened three y ears before the murder does not make it irrelevant or inadmissible under article 38.36 or rule 404(b). See id . (prior hostile offenses by defendant against victim six years before her death admissib le). Likewise, as explained above, the alleged damaging nature of the evidence was not outweighed by its probative value. Accordingly, the trial court di d not abuse its discretion by ad mitting evidence of a domestic incident. To the extent appellant argues this evidence violate d his right to confrontation, his argument is not preserved because he did not raise it in the tr ial court. T EX

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. P. 33.1; Fuller , 253 S.W.3d at 232; see also Robinson , 310 S.W.3d at 577). Appellant’s fourth issue is overruled.
Conclusion Having overruled all of appellant’s issues, the judgment of th e trial court is affirmed.

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. P. 47 161391F.U05 /David L. Bridges/ DAVID L. BRIDGES JUSTICE–28– 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ROBERT ARTHUR MOSES, Appellant

No. 05-16-01391-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 219th Judicial District Court, Collin County, Texas Trial Court Cause No. 219-81377-2015. Opinion delivered by Justice Bridges. Justices Brown and Boatr ight participating. Based on the Court’s opinion of t his date, the judgment of the trial court is AFFIRMED

. Judgment entered August 23, 2018.