Affirmed and Opinion filed May 29, 2014.

In The

Fourteenth Court of Appeals

NO. 14-12-00790-CR

JASON ALEXANDER SMITH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 240th District Court

Fort Bend County, Texas

Trial Court Cause No. 06-DCR-044730A

O P I N I O N

In six issues, appellant Jason Alexander Smith appeals his felony conviction 

for murder. Appellant complains (1) he was denied a speedy trial; (2) there was 

insufficient corroborating evidence to support accomplice testimony; (3) he was 

denied the right to confront and cross-examine the expert who performed DNA 

tests; (4) the trial court admitted hearsay testimony; (5) the trial court limited crossexamination of the accomplice witness; and (6) the jury charge allowed an 
2

improper non-unanimous verdict. We affirm.

Factual Background

Appellant and Hiro Hariram met through a mutual friend. They instantly 

struck up a friendship. For a time, appellant lived in a garage apartment with 

Hariram and his girlfriend Yvette. The apartment was attached to the home where

Yvette’s mother and Roberto Cabrera lived. Hariram and Yvette subsequently 

married and moved into their own apartment, at which time appellant moved into 

another apartment.

1

Cabrera told the police investigator that, while appellant lived in the garage 

apartment, someone had been going into Cabrera’s bedroom while he was not 

there. Cabrera suspected appellant was the culprit. When appellant moved away, 

these occurrences stopped. Cabrera owned a .357 magnum revolver with the 

initials M.J.W. on the handle that he kept in his unlocked nightstand. 

Hariram testified at trial to the following events. On August 8, 2003, 

Hariram returned home in a rental car from a business trip to Atlanta. During the 

return drive, Hariram received two separate phone calls from appellant and the 

complainant, Daryl Hayes, regarding a marijuana drug deal they wanted to 

conduct. Hariram had acted as the middleman for Hayes in several prior drug 

deals. Hayes told Hariram he was not comfortable around appellant and wanted 

Hariram to be present for the transaction. Hariram picked up appellant at his

apartment and went to meet Hayes. Appellant purchased one pound of marijuana 

from Hayes, and Hayes told appellant more marijuana was available to purchase.

Hariram and appellant thereafter went to Hariram’s apartment. Hariram and 

appellant took Yvette’s yellow Nissan Xterra to meet Hayes and negotiate the 

 

1 Yvette changed her last name when she married Hariram. We refer to her as Yvette for 

clarity.
3

purchase of the additional marijuana. Once a deal was reached, appellant left in 

the Xterra, purportedly to deliver to his buyer the one pound of previouslypurchased marijuana. The Xterra keychain included a key to Cabrera’s home. 

Approximately twenty minutes later, appellant called Hariram and asked Hariram 

and Hayes to meet him at Cabrera’s home.

Hariram and Hayes subsequently picked up appellant at Cabrera’s home in 

Hayes’s black Mitsubishi. They had placed the remaining marijuana in a duffle 

bag in the trunk of the car. They then left in the Mitsubishi to meet appellant’s 

buyer. Appellant was in the backseat behind Hayes, who was driving. Hariram 

was in the passenger seat. Only appellant knew where they were supposed to be 

going and provided the directions. On the way, an argument arose between 

appellant and Hayes. Appellant allegedly was angry that Hayes required Hariram 

to be present during their drug transactions. A gun then discharged, the car picked 

up speed, and Hayes slumped over the steering wheel. Hariram attempted to gain 

control of the car, which hit a fence behind a house and came to rest against a 

telephone pole.

A neighbor testified she was in her home and heard the collision. She 

looked out the window and saw a hubcap roll into her yard. She went outside, saw 

a man in an orange shirt across the street, and heard him yelling to call 911. She 

went back inside and did so. She then went back outside and saw a second man 

“wearing a white T-shirt, jeans, and a blue cap backwards on his head.” One of the

men grabbed something out of the trunk, and they both “took off running down the 

street.” Hariram and Yvette both testified that Hariram had been wearing an 

orange shirt that day, and Hariram testified that appellant was wearing a blue 

bandana and a light “grayish” t-shirt. 

After the car crashed, Hariram saw appellant place a gun with a brown and 
4

chrome handle in his waistband. Hariram also noticed appellant had retrieved the 

duffle bag from the trunk. Forgetting the Xterra keys, Hariram fled on foot with 

appellant to appellant’s apartment. When Hariram asked appellant why he shot 

Hayes, appellant allegedly responded, “[H]e was talking shit,” and appellant “had 

to put God in his life.” Hariram then called Yvette, who picked him up, and they 

went to a hotel where Hariram called an attorney.

Hariram and his attorney contacted the police, and Hariram led police to 

appellant’s apartment, where they recovered, among other things, six shell casings 

from a .357 magnum revolver hidden in a shoe. Hariram also led police to the 

location of the revolver allegedly used in the crime. According to Hariram, the 

evening of the murder, he received a phone call from a friend who said appellant 

had given him the revolver. Hariram retrieved the revolver and gave it to his 

brother for safekeeping in the brother’s apartment, where police recovered it. 

Police later determined through ballistics testing that five of the six shell casings

found in appellant’s apartment were fired from the revolver.2

Appellant fled to Kansas after the murder. His apartment was vacant when 

police searched it, and appellant never returned to his job in Houston after the 

murder. Almost two years after the murder, appellant was arrested in Kansas and 

thereafter extradited to Texas. Subsequently, a Fort Bend County Sheriff’s deputy 

conducted a human-scent lineup with three bloodhounds. Officers had collected

scent samples implicating appellant from various locations and items inside 

Hayes’s car, a white t-shirt found on or near the trunk of the vehicle, and the 

revolver. 

 

2

The test results as to the sixth shell casing were inconclusive.
5

Procedural History

Appellant was released on bond, and nine months later, a grand jury indicted 

him for murder.

3

 He filed a pre-trial motion for discovery, production, and a Kelly4

hearing on the scent-lineup evidence. After a hearing, the trial court denied the

motion to suppress the scent-lineup evidence. Appellant thereafter filed a motion 

to exclude all testimony and evidence in connection with the scent lineup, which 

the trial court denied at another hearing. The trial court subsequently held a nonevidentiary hearing on appellant’s motion to reconsider the ruling on the scentlineup evidence. The trial court orally granted the motion for reconsideration and 

ruled the scent-lineup evidence would be excluded, setting aside the previous

ruling. The State filed its first motion for continuance on the same day for want of 

a witness. The trial court granted the continuance.

The State filed its second motion for continuance five days after the trial 

court signed the order to exclude the scent-lineup evidence. The State sought that 

continuance because its motion to reconsider the ruling on the scent-lineup 

evidence had not yet been heard by the trial court. The trial court granted the 

motion for continuance but denied the motion for reconsideration. The State 

appealed the denial of the motion for reconsideration. This court affirmed, and 

mandate issued on November 21, 2011. See State v. Smith, 335 S.W.3d 706 (Tex. 

App.—Houston [14th Dist.] 2011, pet. ref’d).

Appellant’s jury trial commenced eight months later.5 At trial, the State 

 

3 Hariram also was indicted on murder charges for the same crime.

4 Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992).

5 Before the case went to trial, appellant had agreed to at least 33 resets of preliminary 

hearings and trial.
6

introduced testimony regarding test results of DNA obtained from certain items.

6

 

The analyst who performed the DNA testing did not testify at trial. Instead, the 

laboratory director testified. The forensic report was not offered or admitted into 

evidence. Appellant objected to the testimony on the basis that it would violate his 

Sixth Amendment right to confront and cross-examine the analyst who performed 

the tests and prepared the results. The trial court overruled the objection.

A jury found appellant guilty of murder as charged in the re-indictment of 

April 2, 2012, and the trial court sentenced appellant to sixty years’ imprisonment, 

in accordance with the jury’s verdict. 

Discussion

I. No Violation of Right to Speedy Trial

In his first issue, appellant contends that he was deprived of his right to a 

speedy trial because his case was tried more than seven years after he was arrested. 

The right of an accused to a speedy trial is guaranteed through the Sixth 

Amendment to the United States Constitution. Zamorano v. State, 84 S.W.3d 643, 

647 (Tex. Crim. App. 2002). In addition, Article I, section 10 of the Texas 

Constitution guarantees the accused in all criminal prosecutions the right to a 

speedy and public trial. Id. 

We analyze a speedy trial claim on an ad hoc basis by applying a factspecific balancing test under Barker v. Wingo of the following four factors: 

(1) length of delay; (2) the reason for the delay; (3) the defendant’s assertion of his 

right; and (4) the prejudice inflicted on the defendant by the delay. 407 U.S. 514, 

530 (1972); Henson v. State, 407 S.W.3d 764, 767 (Tex. Crim. App. 2013).7 No 

 

6 DNA from blood on the revolver and a t-shirt in the trunk of the Mitsubishi were tested 

and determined to match the complainant’s DNA to a reasonable degree of scientific certainty.

7

The Texas constitutional speedy trial right exists independently of the federal guarantee, 
7

single factor is necessary or sufficient to establish a violation of the right to a 

speedy trial; instead, the court must weigh the conduct of the prosecution and 

defendant using a balancing test of the four factors. Barker, 407 U.S. at 530, 533; 

Cantu v. State, 253 S.W.3d 273, 281 (Tex. Crim. App. 2008). 

The State must satisfy its burden of justifying the length of the delay while 

the defendant must meet his burden of proving the assertion of the right and 

showing prejudice. Cantu, 253 S.W.3d at 280. The reasons proffered by the State 

to justify any amount of delay serve to determine how heavily such delay should 

weigh against it. Zamorano, 84 S.W.3d at 649. “The defendant’s burden of proof 

on the latter two factors ‘varies inversely’ with the State’s degree of culpability for 

the delay.” Cantu, 253 S.W.3d at 280. In other words, the greater the State’s bad 

faith or official negligence and the longer its actions delay a trial, the less a 

defendant must show actual prejudice or prove diligence in asserting his right to a 

speedy trial. Id. at 280-81.

We apply a bifurcated standard of review to a trial court’s ruling on a speedy 

trial claim. Id. at 282. We review the factual components for an abuse of 

discretion, while we review the legal components de novo. Id. Review of the 

individual Barker factors necessarily involves factual determinations and legal 

conclusions, but the balancing test as a whole is “a purely legal question.” Id. 

With regard to the trial court’s resolution of factual issues, we view all the 

evidence in the light most favorable to the trial court’s ultimate ruling. Id. 

Because appellant lost in the trial court on his speedy trial claim and the trial court 

did not enter findings of fact or conclusions of law on this issue, we presume that 

the trial court resolved any disputed fact issues in the State’s favor and defer to the 

 

but we analyze claims of a denial of the state speedy trial right under the factors established in 

Barker. Zamorano, 84 S.W.3d at 648.
8

implied findings of fact supported by the record. See id.

A. Length of the Delay

The Barker test is triggered by a delay unreasonable enough to be 

“presumptively prejudicial.”8 Celestine v. State, 356 S.W.3d 502, 507 (Tex. 

App.—Houston [14th Dist.] 2009, no pet.) Until there is some delay which is 

presumptively prejudicial, there is no necessity for inquiry into the other factors 

that go into the balance. Id. at 507 n.3 (citing Barker, 407 U.S. at 530); see also 

Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003). A delay approaching 

one year from formal accusation or arrest of the defendant until trial has generally 

been found to be presumptively prejudicial, triggering the Barker inquiry. 

Celestine, 356 S.W.3d at 507 (citing Cantu, 253 S.W.3d at 281, and Shaw, 117 

S.W.3d at 888–89).

The invocation of the right to a speedy trial requires either actual restraint by 

the State or formal accusation. Wells v. State, 319 S.W.3d 82, 88 (Tex. App.—San 

Antonio 2010, pet. ref’d). Appellant was arrested and taken into custody on 

June 28, 2005.

9

 Thus, for purposes of appellant’s speedy trial claim, the relevant 

time period begins on that date. See id.; see also Zamorano, 84 S.W.3d at 649 

(considering four-year delay between arrest and plea hearing in reaching 

conclusion that delay was presumptively prejudicial).

Appellant’s case was reset many times, each time by party agreement.10 

 

8 Appellant complains that more than nine years elapsed between the murder and 

appellant’s trial. However, it is undisputed that appellant was not arrested until nearly two years 

after the crime was committed. Pre-accusation delay is not relevant to the speedy trial analysis. 

United States v. Marion, 404 U.S. 307, 313 (1971). 

9 Appellant was released on bond in October 2005.

10 The record reflects 33 agreed reset forms were filed. The State contends that three 

additional reset forms were filed, but they are not part of the appellate record. Each reset form in 

the record includes the following information, “This case is reset to [date] at [time], by 
9

Moreover, appellant did not assert his right to a speedy trial until April 24, 2012, 

which is the same day he agreed to the last reset. We exclude the time covered by 

agreed resets from the speedy trial calculation because agreed resets are 

“inconsistent with [the] assertion of a speedy trial right.” Celestine, 356 S.W.3d at

507.

11

 The agreed resets covered the time period from August 31, 2006 through 

the date of trial on July 17, 2012. Excluding that time from the speedy trial 

computation, however, still leaves a delay of over one year between the date of 

appellant’s arrest on June 28, 2005 and the first agreed reset on August 31, 2006,

which is presumptively prejudicial.12 See Cantu, 253 S.W.3d at 281; Celestine, 

356 S.W.3d at 507. Accordingly, we must analyze the other Barker factors. See

Celestine, 356 S.W.3d at 507.

B. Reason for the Delay

Once the length of time is found to be presumptively prejudicial, the burden 

of justifying the delay falls on the State. Cantu, 253 S.W.3d at 280. The particular 

reason for the delay will determine how heavily this factor should weigh against 

the State. Zamorano, 84 S.W.3d at 649. Prosecutorial delay determined to be 

intentional or deliberate will weigh heavily against the State. Id. (citing Barker, 

407 U.S. at 531). Delays determined to be neutral in nature, such as for negligence 

 

agreement of all the undersigned.” Of the 33 reset forms in the record, all were signed by 

appellant’s attorney, and all but one were signed by appellant. Several of the resets occurred

during the pendency of the State’s appeal of the trial court’s order suppressing scent-lineup 

evidence. See Smith, 335 S.W.3d 706.

11 Prior to deciding Celestine, we had held a defendant waives his right to speedy trial by 

agreeing to resets. See Caicedo v. State, 769 S.W.2d 597, 598 (Tex. App.—Houston [14th Dist.] 

1989, no pet.). But both before and after we decided Caicedo, we had held that the time covered 

by a defendant’s agreed resets is to be excluded from the speedy trial calculation. See State v. 

Kuri, 846 S.W.2d 459, 463 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d); see also Lewis v. 

State, 686 S.W.2d 243 (Tex. App.—Houston [14th Dist.] 1985), aff’d, 711 S.W.2d 41 (Tex.

Crim. App. 1986).

12 The State concedes that the length of the delay in this case is presumptively prejudicial.
10

or overcrowded courts, will weigh less heavily on the State. Id. Any delay that is 

determined to be valid should not weigh against the State at all. See State v. 

Munoz, 991 S.W.2d 818, 822 (Tex. Crim. App. 1999). When the State has not 

assigned a reason for the delay, we may presume neither a deliberate attempt on 

the part of the State to prejudice the defense nor a valid reason for the delay. 

Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003). The reason for the 

delay is a fact-specific inquiry and may not be readily apparent from the trial 

record. Henson, 407 S.W.3d at 769.

As set forth above, the relevant time period for the delay is from June 28, 

2005 through the date of the first reset on August 31, 2006. See id. The record is 

silent as to any reason for this fourteen-month delay. Thus, this factor weighs 

against the State, albeit not heavily. See Dragoo, 96 S.W.3d at 314; see also 

McIntosh v. State, 307 S.W.3d 360, 368 (Tex. App.—San Antonio 2009, pet. 

ref’d); Rodriquez v. State, 227 S.W.3d 842, 844 (Tex. App.—Amarillo 2007, no 

pet.).

C. Assertion of the Right

When and how a defendant asserts his right to a speedy trial is entitled to 

strong weight in determining whether the defendant is being deprived of the right. 

Cantu, 253 S.W.3d at 283. A defendant’s failure to diligently seek a speedy trial 

can be an indication that he does not want one. See id. (“[T]he failure to diligently 

seek a speedy trial supports the hoary lawyer’s adage, ‘Never tried, never 

convicted.’”); see also Shaw, 117 S.W.3d at 890 (“[A] defendant’s failure to make 

a timely demand for a speedy trial indicates strongly that he did not really want one 

and that he was not prejudiced by not having one.”). Thus, a defendant’s inaction 

weighs more heavily against finding a violation the longer the delay becomes. 

Shaw, 117 S.W.3d at 890.
11

Appellant first asserted his right to a speedy trial by filing a motion on 

April 24, 2012, over seven years after his arrest and nearly seven years after his 

initial indictment. Appellant asserts that he did not waive his demand for speedy 

trial through inaction because he “never sought to delay trial.” Although appellant 

did not waive his right to a speedy trial, his actions are inconsistent with a demand 

for speedy trial. See Henson, 407 S.W.3d at 769; Shaw, 117 S.W.3d at 890. 

Besides waiting seven years to demand a speedy trial, appellant continually 

acquiesced in resetting his case for trial, the last time being on the same day he 

filed his speedy trial motion, which cuts against showing an assertion of the right. 

See Henson, 407 S.W.3d at 769. 

Appellant contends, however, he asserted his speedy trial right in November 

2009 by opposing the State’s second of three motions for continuance and 

requesting immediate trial.13 Simply announcing “ready” or requesting the trial be 

held that day is not a demand for a speedy trial because this merely shows a 

defendant is ready to go to trial. Henson, 407 S.W.3d at 769. A speedy trial

demand must be unambiguous. Id. Appellant’s opposition to the continuance, 

when considered alongside the resets agreed to by appellant, does not reflect “the 

actions of someone seeking to preserve and protect his right to a speedy trial.”14 

 

13 Although the State’s second motion for continuance filed October 28, 2009 and the 

trial court’s order granting the continuance signed November 3, 2009 are in the record, 

appellant’s opposition is not. However, we take judicial notice of the opposition that was part of 

the previous appeal before this court. See Smith, 335 S.W.3d 706; see also Ex parte Joyner, 367 

S.W.3d 737 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (“An appellate court may take 

judicial notice of its own records in a related proceeding involving the same or nearly the same 

parties.”). Appellant also argues he sought dismissal of the case as an alternative to an 

immediate trial. Appellant did not request dismissal of the case in the opposition; rather, he 

asked the trial court to “strike the State’s pleadings filed after the State’s First Motion for 

Continuance.” Even if he had, seeking a dismissal will generally weaken a speedy trial claim 

because it shows a desire to have no trial instead of a speedy one. Cantu, 253 S.W.3d at 283. 

14 Appellant agreed to resets before, after, and on the same day the trial court granted the 

continuance on November 3.
12

See id.

The trial began three months after appellant filed his motion. This factor 

weighs heavily against finding a speedy trial violation. See Dragoo, 96 S.W.3d at 

315 (“In view of the lengthy delay here, in which appellant quietly acquiesced, this 

factor weighs very heavily against finding a violation of the speedy trial right.”); 

see also Kelly v. State, 163 S.W.3d 722, 729 (Tex. Crim. App. 2005) (concluding 

factor weighed against appellant when assertion of right was tardy and trial 

occurred two months after). 

D. Prejudice Analysis

We assess prejudice in light of the interests that the speedy trial right was 

designed to protect: preventing oppressive pretrial incarceration, minimizing

anxiety and concern of the accused, and limiting the possibility that the defense 

will be impaired. Zamorano, 84 S.W.3d at 652. The defendant has the burden to 

make some showing of prejudice, although a showing of actual prejudice is not 

required. Munoz, 991 S.W.2d at 826; State v. Smith, 76 S.W.3d 541, 551 (Tex. 

App.—Houston [14th Dist.] 2002, pet. ref’d). When the defendant makes a prima 

facie showing of prejudice, the burden shifts to the State to show that the defendant 

suffered “no serious prejudice beyond that which ensued from the ordinary and 

inevitable delay.” Munoz, 991 S.W.2d at 826; Smith, 76 S.W.3d at 551.

Pretrial incarceration. In determining whether pretrial incarceration was 

oppressive, the dispositive consideration is the effect the incarceration has upon the 

defendant. Munoz, 991 S.W.2d at 828; Webb v. State, 36 S.W.3d 164, 174 (Tex. 

App.—Houston [14th Dist.] 2000, pet. ref’d). Incarceration affects a defendant’s 

livelihood and family life and enforces idleness. Barker, 407 U.S. at 532; Webb, 

36 S.W.3d at 174. 
13

Appellant was incarcerated for four months before his release on bond for 

the remaining majority of seven years before trial. While any period of 

incarceration is not to be taken lightly as it imposes restraints on one’s liberty, the 

speedy trial guarantee was designed to minimize the possibility of lengthy 

incarceration before trial. Barker, 407 U.S. at 532; see also United States v. 

MacDonald, 456 U.S. 1, 8 (1982). Incarceration can amount only to minimal 

prejudice when it is for a small period of time relative to a much longer time period 

awaiting trial. Compare Barker, 407 U.S. at 533-34 (spending ten months in jail 

awaiting trial during five-year delay between arrest and trial amounted to minimal 

prejudice against defendant) with Munoz, 991 S.W.2d at 828 (implicitly finding 

seventeen-month incarceration oppressive when it was for entire delay before 

trial). 

While appellant spent four months in jail, he subsequently was able to find 

employment in Kansas, enroll in school, enter into a relationship, and have a 

daughter while awaiting trial. Our review of the record does not show that 

appellant’s incarceration had much effect upon his ability to earn a livelihood or 

upon his family life over the duration of the delay between his arrest and trial.15 

See Barker, 407 U.S. at 532; see also Webb, 36 S.W.3d at 174. While appellant’s 

pretrial incarceration is indicative of some prejudice, the prejudice is minimal. See

Barker, 407 U.S. at 533-34. Accordingly, the interest in preventing oppressive 

pretrial incarceration is not strongly implicated under these circumstances.

Anxiety and concern. Appellant contends he suffered from “anxieties and 

concern as a result of his indictment.” Evidence of generalized anxiety, though 

relevant, is not sufficient proof of prejudice under the Barker test, especially when 

 

15 Moreover, as discussed above, the vast majority of that time period was covered by 

agreed resets. As discussed below, appellant claims that he lost three jobs as a result of required 

court appearances. But this occurred during the timeframe he consistently agreed to resets.
14

it is no greater anxiety or concern beyond the level normally associated with a 

criminal charge or investigation. See Cantu, 253 S.W.3d at 285-86. However, 

appellant presented evidence that he had to travel nine-to-ten hours each way to 

court every thirty-to-ninety days and lost three jobs due to these court appearances. 

Although evidence of costs and lost jobs related to court appearances support an 

inference of actual prejudice, see Zamorano, 84 S.W.3d at 654,

16 these things 

occurred during the time period appellant consistently agreed to reset his case for 

trial. See Celestine, 356 S.W.3d at 507 (excluding time covered by agreed resets 

from speedy trial analysis). Accordingly, appellant has not presented evidence 

supporting an inference that the interest in minimizing his anxiety and concern was 

implicated under these circumstances.

Impairment, if any, of defense. The last type of prejudice is the most 

serious “because the inability of a defendant adequately to prepare his case skews 

the fairness of the entire system.” Barker, 407 U.S. at 532; Cantu, 253 S.W.3d at 

285. With regard to the ability to mount a defense, affirmative proof of 

particularized prejudice is not essential to a speedy trial claim because “excessive 

delay presumptively compromises the reliability of a trial in ways that neither party 

can prove or, for that matter, identify.” Dragoo, 96 S.W.3d at 315. However, the 

presumption of prejudice is extenuated by the defendant’s acquiescence in the 

delay. Id.

Appellant complains that his defense was impaired because he could not 

cross-examine two witnesses who were unavailable and certain evidence was

missing by the time of trial. Appellant, however, has not shown that these 

 

16 In Zamorano, appellant’s testimony of direct economic costs, four years’ of disruptions 

to his job, and weekly requirement to report to bonding company supported an inference of 

actual prejudice. 84 S.W.3d at 654; see also State v. Burckhardt, 952 S.W.2d 100, 104 (Tex. 

App.—San Antonio 1997, no pet.) (concluding disruptions to work and income stream were 

prejudicial).
15

witnesses and the missing evidence were not available during the relevant 

timeframe preceding the agreed resets. See Clarke v. State, 928 S.W.2d 709, 716 

(Tex. App.—Fort Worth 1996, pet. ref’d) (noting defendant must show witnesses 

were unavailable to establish prejudice). In fact, appellant concedes that one of the 

witnesses was available to testify as late as 2009. Moreover, with regard to the 

missing evidence—two coolers and a digital scale allegedly taken from appellant’s 

apartment, along with file notes from a State’s witness, probation officer Amber 

Moody17—appellant has not shown how their absence prejudiced him. Appellant 

has not made a prima facie showing of prejudice by satisfying his burden to show 

that the missing witnesses and evidence were unavailable during the relevant 

timeframe or what the missing evidence would have established. Thus, no

evidence supports an inference that his defense was impaired under these 

circumstances.

We conclude appellant suffered no serious prejudice resulting from the 

delay.

E. Balancing the Barker Factors

While the first two factors—presumption of an unreasonable delay and the 

State’s failure to explain the delay—support appellant’s position, the last two do 

not. Appellant’s tardy assertion of the right weighs heavily against him, and the 

fact that he suffered little or no serious prejudice does not support his position. We 

conclude that the weight of the four factors, balanced together, is against finding a 

violation of appellant’s right to a speedy trial. See Barker, 407 U.S. at 534 

(concluding defendant’s right to speedy trial was not violated when he was not 

seriously prejudiced by five-year delay between arrest and trial and did not really 

 

17 Moody testified that she left her file notes in the possession of her former employer. 

Appellant did not attempt to subpoena the records. 
16

want a speedy trial); see also Dragoo, 96 S.W.3d at 308 (holding defendant’s right 

to speedy trial was not violated when he demonstrated no serious prejudice by 

three-and-one-half-year delay between arrest and trial and he waited until just 

before trial to assert his right to a speedy trial). 

We overrule appellant’s first issue.

II. Evidence to Corroborate Accomplice Testimony Sufficient

In his second issue, appellant complains of insufficient evidence to 

corroborate Hariram’s testimony. Hariram, as a person indicted for the same 

offense as appellant, is an accomplice as a matter of law. See Burns v. State, 703 

S.W.2d 649, 651 (Tex. Crim. App. 1985); Batts v. State, 302 S.W.3d 419, 432 

(Tex. App.—Houston [14th Dist.] 2009, pet. ref’d).

A conviction obtained in reliance upon accomplice testimony must be 

supported by sufficient corroborating evidence tending to connect the defendant to

the offense committed. Tex. Code Crim. Proc. art. 38.14; Druery v. State, 225 

S.W.3d 491, 498 (Tex. Crim. App. 2007). When reviewing the sufficiency of the 

evidence to corroborate accomplice testimony, we eliminate the accomplice 

testimony and then examine the remaining portions of the record to see if there is 

any evidence that tends to connect the defendant with the commission of the 

offense. Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008); Lacaze v. 

State, 346 S.W.3d 113, 117 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). 

The corroborating evidence need not, standing alone, rise to the level of proof 

beyond a reasonable doubt. Malone, 253 S.W.3d at 257; Lacaze, 346 S.W.3d at

117. Instead, the evidence simply must link the defendant to the commission of 

the offense and show that rational jurors could conclude that the evidence 

sufficiently “tended to connect” the defendant to the offense. Simmons v. State, 

282 S.W.3d 504, 508 (Tex. Crim. App. 2009); Lacaze, 346 S.W.3d at 117. 
17

Accordingly, corroborative evidence need not be legally sufficient in itself to 

establish a defendant’s guilt.18 Casanova v. State, 383 S.W.3d 530, 538 (Tex. 

Crim. App. 2012). 

Taken in isolation, suspicious circumstances such as the accused’s presence 

at the scene of the crime, motive, or opportunity to commit the crime are not by 

themselves sufficient to corroborate the testimony of an accomplice witness. Yost 

v. State, 222 S.W.3d 865, 872 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d).

But cumulative suspicious circumstances may tend to connect the accused to the 

charged offense, even if no circumstances are sufficient to do so individually. 

Yost, 222 S.W.3d at 872. Viewed collectively, even otherwise insignificant 

incriminating circumstances may tend to connect a defendant to a crime he is 

accused of committing. Id. Therefore, we “consider the combined force of all of 

the non-accomplice evidence that tends to connect the accused to the offense.” 

Smith v. State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011). We view the 

evidence in the light most favorable to the jury’s verdict. Brown v. State, 270 

S.W.3d 564, 567 (Tex. Crim. App. 2008); Lacaze, 346 S.W.3d at 117. 

The State argues Hariram’s testimony was corroborated sufficiently by 

appellant’s flight, evidence connecting appellant to the murder weapon, and eyewitness testimony placing appellant with the accomplice. We agree. 

Flight. While flight alone is not adequate corroboration of an accomplice 

witness’s testimony, McDuff v. State, 943 S.W.2d 517, 523 (Tex. App.—Austin 

1997, pet. ref’d), “[e]vidence of flight and guilty demeanor, coupled with other 

corroborating circumstances, may tend to connect a defendant with the crime,”

 

18 Thus, we are not required to parse every element of the alleged offense, as appellant 

has done in his appellate brief. See Joubert v. State, 235 S.W.3d 729, 731 (Tex. Crim. App. 

2007).
18

Hernandez v. State, 939 S.W.2d 173, 178 (Tex. Crim. App. 1997). As set forth 

above, appellant fled to Kansas after the shooting, where he remained for nearly

two years before being apprehended. He never returned to his apartment in Texas 

to retrieve his personal belongings and did not return to work after the murder. 

Before he was arrested in Kansas in 2005, appellant presented a driver’s license 

with a false identity to an officer and told another officer that he had been on the 

run for “a couple of years” and “I know I have drug-related charges in Texas, but I 

didn’t know they were murder, because I didn’t know the guy died.” These

statements, along with appellant’s flight, tend to connect him to the offense. See 

Hernandez, 939 S.W.2d at 178; see also Yost, 222 S.W.3d at 875 (“Evidence of 

flight and using a false identity . . . each reflect an appellant’s consciousness of 

guilt for the charged offense.”).

Connection to weapon. Evidence also tends to connect appellant to the 

murder weapon. As stated above, Cabrera suspected that appellant previously had 

entered his bedroom and, shortly after the murder, Cabrera discovered his revolver, 

which he kept in his bedroom in an unlocked nightstand, was missing. Shell 

casings found hidden in appellant’s apartment had been fired from Cabrera’s

revolver. Cabrera’s revolver was introduced at trial as the murder weapon. Proof 

that connects an accused to a weapon used in an offense is proper corroborative 

evidence. Cockrum v. State, 758 S.W.2d 577, 582 (Tex. Crim. App. 1988) (finding 

evidence that appellant was seen with a gun similar to the one used in the offense 

corroborated accomplice testimony); see also Lacaze, 346 S.W.3d at 117.

In the company of accomplice at or near time of crime. Yvette testified 

she picked up Hariram at appellant’s apartment complex on the day of the murder.

An eyewitness also testified that she saw a man in an orange shirt and a man in a 
19

blue cap and white t-shirt flee after the car collided with the fence.19 This tends to 

support Hariram’s testimony that Hariram was wearing an orange shirt and 

appellant was wearing a blue bandana and a light “grayish” t-shirt. Evidence that 

the accused was in the company of the accomplice at or near the time or place of a 

crime—when coupled with evidence tending to connect the accused to the 

commission of the crime—properly corroborates accomplice testimony in support 

of a conviction. Hernandez, 939 S.W.2d at 178; see also Nolley v. State, 5 S.W.3d 

850, 854 (Tex. App.—Houston [14th Dist.] 1999, no pet.).

Viewing all of the foregoing evidence in the light most favorable to the 

jury’s verdict, we conclude that a reasonable jury could have found that the nonaccomplice evidence tends to connect appellant to the murder. We overrule 

appellant’s second issue.

III. Admission of Expert Testimony Harmless If Erroneous

In his third issue, appellant argues the trial court erred in admitting 

testimony from a DNA laboratory supervisor, Dr. Rick Staub, as to DNA tests that 

Staub did not observe or conduct, in violation of appellant’s Sixth Amendment 

right to confront the witness who conducted the DNA tests. The Confrontation 

Clause gives a criminal defendant the right to confront the witnesses against him. 

U.S. Const. amend. VI; Burch v. State, 401 S.W.3d 634, 636 (Tex. Crim. App. 

2013). This means that testimonial evidence is inadmissible unless the witness 

appears at trial and is cross-examined or the witness is unavailable and the defense 

had an opportunity to cross-examine. Burch, 401 S.W.3d at 636; Adkins v. State, 

 

19 The witness testified that the man in the blue cap was Hispanic, but appellant is 

African American with a dark complexion. When there are conflicting views of the evidence—

one that tends to connect the accused to the offense and one that does not—we must defer to the 

factfinder’s resolution of the evidence. See Smith, 332 S.W.3d at 442. We may not

independently construe the non-accomplice evidence. See id.
20

418 S.W.3d 856, 861 (Tex. App.—Houston [14th Dist.] 2013, no pet.). 

Staub’s testimony was based on his review of test results conducted by 

another analyst, Dierdre Ward. Relying on Burch, appellant argues he should have 

had the opportunity to cross-examine Ward regarding whether the lab’s policies 

and practices were followed when she conducted the DNA tests. Burch stands for 

two propositions. First, a forensic report that asserts a fact is testimonial. Adkins, 

418 S.W.3d at 862. Second, to satisfy the Confrontation Clause, the analyst who 

tested the substance must be subjected to cross-examination or, if the analyst is 

unavailable, the defense must have had the opportunity to cross-examine her. Id. 

(citing Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011) and Burch, 401 S.W.3d 

at 634). 

Here, the lab report prepared by Ward was not admitted into evidence.20 In 

Burch, the Court of Criminal Appeals expressly declined to address whether a 

defendant’s rights would be violated when surrogate expert testimony is admitted 

as to lab results but the forensic report is not admitted into evidence. 401 S.W.3d 

at 639. The court acknowledged that the Supreme Court addressed this issue in

Williams v. Illinois, 132 S. Ct. 2221 (2012), but noted it was “a splintered decision 

in which only an outcome, and not an opinion, received a majority vote,” which 

“made its full impact hard to discern.” Burch, 401 S.W.3d at 638. As we similarly 

have noted, Williams “raises as many questions as it answers.”21 Lee v. State, 418 

 

20 A chart containing a summary of the test results was admitted at trial without objection 

as a demonstrative exhibit. The chart is not part of the appellate record.

21 From the viewpoint of the Williams plurality, the defendant’s rights were not violated 

when an expert for the prosecution, relying on a report generated by an independent lab, testified 

that semen samples belonged to the defendant. Burch, 401 S.W.3d at 638. The plurality reached 

the conclusion that the out-of-court statement (that the DNA profile came from semen within the 

victim) was not offered to prove the truth of the matter asserted but instead was offered to 

explain the basis of the witness’s independent conclusion (that the profile matched the 

defendant’s DNA). Id. at 638-39. Alternatively, the plurality concluded that the report was not 
21

S.W.3d 892, 898 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). But we need 

not address whether Williams applies under these circumstances, because the 

admission of Staub’s testimony, even if erroneous, was harmless.

A violation of a defendant’s right to confrontation is subject to harmless 

error analysis. Rubio v. State, 241 S.W.3d 1, 3 (Tex. Crim. App. 2007); Mason v. 

State, 416 S.W.3d 720, 731 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). 

Thus, even if the admission of the testimony were erroneous, we nevertheless will 

affirm the conviction if we determine beyond a reasonable doubt that the alleged 

error did not contribute to appellant’s conviction. Mason, 416 S.W.3d at 731; see 

also Tex. R. App. P. 44.2(a). 

In determining whether the admission of the statement was harmless beyond 

a reasonable doubt, we consider (1) the importance of the statement to the State’s 

case; (2) whether the statement was cumulative of other evidence; (3) the presence 

or absence of evidence corroborating or contradicting the statement on material 

points; and (4) the overall strength of the State’s case. Mason, 416 S.W.3d at 731. 

In addition to those factors, we also may consider the source and nature of the 

error, the extent of the State’s emphasis on the evidence, and the relative weight 

the jury may have assigned to the evidence as compared with the balance of the 

remaining evidence relevant to the issue. Scott v. State, 227 S.W.3d 670, 690 (Tex.

 

testimonial because it was created before there was a specific suspect and thus was not inherently 

inculpatory or created for use against the defendant. Id. at 639. 

The opinion stressed that it was not a departure from earlier cases such as Bullcoming

because the actual report was not admitted into evidence. Id. In Bullcoming, the Supreme Court 

held that forensic reports including testimonial statements of the analysts who performed the 

tests could not be offered into evidence through the testimony of surrogate witnesses. 131 S. Ct. 

at 2710. Although the result in Williams—that the expert’s testimony was admissible—“was 

endorsed by five votes,” the plurality’s analysis was rejected by five justices. Lee v. State, 418 

S.W.3d 892, 898 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (citing Williams, 132 S. Ct.

at 2265).
22

Crim. App. 2007); Mason, 416 S.W.3d at 731. Finally, we consider any other 

factor contained in the record that might shed light on the probable impact of the 

evidence on the minds of average jurors. Clay v. State, 240 S.W.3d 895, 904 (Tex.

Crim. App. 2007); Mason, 416 S.W.3d at 731.

We are not simply to decide whether the jury verdict enjoyed evidentiary 

support. See Scott, 227 S.W.3d at 690; Mason, 416 S.W.3d at 731. Instead, the 

question is whether the alleged constitutional error was actually a contributing 

factor in the jury’s deliberations in arriving at a verdict. Scott, 227 S.W.3d at 690; 

Mason, 416 S.W.3d at 731. Thus, Confrontation Clause error does not require 

reversal unless there is a reasonable possibility that, within the context of the entire 

trial, the perceived error “moved the jury from a state of non-persuasion to one of 

persuasion on a particular issue.” Scott, 227 S.W.3d at 690; Mason, 416 S.W.3d at 

731.

After reviewing these considerations, we are persuaded beyond a reasonable 

doubt that the jury would have found appellant guilty of murder even if the trial 

court had not admitted Staub’s testimony. See Clay, 240 S.W.3d at 905; see also

Mason, 416 S.W.3d at 731. Staub testified that the lab received and tested a 

bloodstain card,22 allegedly from the victim, swabs from the ejector housing, 

trigger guard, and cylinders of the revolver allegedly used in the crime, a hair 

recovered from one of the revolver’s cylinders, and a t-shirt found in the trunk of 

the victim’s car. The DNA taken from the ejector housing, the trigger guard, and a 

bloodstained area of the t-shirt matched the victim’s DNA to a reasonable degree 

of scientific certainty.

23

 With regard to the samples from the revolver’s cylinders, 

 

22 Labs maintain blood samples from individuals by placing blood on bloodstain cards 

and letting it dry.

23 The nonstained area of the t-shirt was also tested to try to determine its wearer. Test 

results of the DNA taken from these areas were inconclusive, but the victim could not be ruled 
23

the victim could not be excluded as a contributor to the DNA profile, and some 

results were present from another individual, but no match could be determined.

Testimony somewhat important but not crucial to the State’s case. The 

State’s case did not hinge on Staub’s testimony. The testimony regarding the 

revolver was somewhat important to the State because it shows the revolver was 

used in the murder. However, the importance of that evidence is offset by other 

factors linking the weapon to the crime, as discussed below. It does not link 

appellant to the crime, however, while other evidence presented at trial does. 

The fact that the victim’s blood was on the t-shirt alone does not link 

appellant to the crime. During closing argument, State’s counsel stated: 

[Hariram] tells you [appellant] went to the trunk. . . . Don’t 

forget, too, that T-shirt that was hanging over the trunk. . . . . But, 

remember, that T-shirt has on it bloodstains that are Daryl Hayes’.

So what makes the most sense there? Well, if you just shot 

somebody point-blank, you’re probably going to have blood on your 

hand and you’re going to have blood on the gun. So when you go to 

the trunk to get the—the drugs out, you may grab a T-shirt that’s

laying there, wipe your hand, and wipe the gun before putting it in 

your waistband. That makes the most sense. And it was [appellant]

that was standing at the trunk, according to [Hariram].

Although Staub’s testimony was somewhat important because it tends to 

show that the revolver was used in the murder and that the shooter handled the tshirt, the testimony was not crucial to the State’s case. During closing argument, 

the State emphasized, “The most crucial piece of evidence is . . . those casings . . . 

in [appellant’s] apartment.” The State presented ballistics evidence that five shell 

casings were fired from the revolver used in the murder. The casings were linked 

to appellant because they were found in a shoe in his apartment. The casings also 

 

out as a DNA contributor. 
24

were linked to the revolver, and the revolver was linked to the murder. Hariram 

testified appellant took the Xterra to Cabrera’s home. Appellant had the key to 

Cabrera’s home and thus had an opportunity to retrieve the revolver shortly before 

the murder, and it was missing from Cabrera’s home after the murder. 

Corroborated by and cumulative of other evidence. Other evidence 

besides the victim’s DNA on the revolver shows it was the murder weapon, as set 

forth above. Cabrera’s revolver had a brown handle with the initials M.J.W. 

carved into it. Hariram testified that after the shooting and collision, he saw 

appellant put a gun with a brown and chrome handle in his waistband. At trial, 

Hariram identified the revolver as being “consistent with [the revolver appellant] 

place[d] into his waistband that day.” The revolver was admitted at trial, and it had 

the same initials on the handle.

Hariram further testified a friend called him on the evening of the murder. 

The friend “sounded irate” because appellant had asked for a favor and had given

him “something that he wasn’t comfortable with.” Hariram retrieved “the item,”

which was a revolver. Hariram gave the revolver to his brother, who kept it in his 

apartment. Hariram subsequently told police officers where it was, and they 

recovered the revolver there. Thus, the victim’s DNA on the revolver was 

cumulative of and corroborated by other evidence that the revolver was the murder 

weapon. 

Strength of the State’s case without the statement. The State’s case was 

strong without Staub’s testimony because, among other things, (1) shell casings 

from the revolver were found in appellant’s apartment; (2) other evidence linked 

appellant to the revolver, as set forth above; (3) appellant fled the state 

immediately after the murder and was on the run for two years; (4) appellant made 

incriminating statements to the officer in Kansas after appellant was apprehended; 
25

(5) Hariram testified appellant was the shooter; and (6) one of the men the 

eyewitness saw at the collision site was wearing clothes similar to the ones 

Hariram described appellant as wearing. 

After considering all of the harmless error factors, we find no reasonable 

probability that the trial court’s alleged Confrontation Clause error “moved the jury 

from a state of non-persuasion to one of persuasion” on the issue of appellant’s 

guilt. See Mason, 416 S.W.3d at 732. We hold any error by the trial court in

admitting the evidence was harmless.

IV. Hearsay and Confrontation Clause Complaints Not Preserved for 

Review

In his fourth issue, appellant complains that the trial court abused its 

discretion in admitting the following testimony from Hariram regarding hearsay 

statements made to Hariram in a telephone conversation:

[State’s counsel:] What did [your friend] tell you?

[Hariram:] [My friend] told me that he was given 

something—he had been called by [appellant] and 

asked to do something that he wasn’t comfortable 

with. [My friend] was on probation at the time and 

wasn’t comfortable being around—

[Defense counsel:]Judge, I’m going to object. The answer calls for a 

hearsay response on [his friend’s] part . . . .

The trial court did not admit the above testimony, as appellant contends. To 

the contrary, the trial court sustained the hearsay objection, but appellant was 

required to request additional relief to preserve error. See Unkart v. State, 400 

S.W.3d 94, 98–99 (Tex. Crim. App. 2013); Martinez v. State, 17 S.W.3d 677, 690 

n.11 (Tex. Crim. App. 2000). The traditional method for seeking relief at trial for 

a complaint that must be preserved is to object, request an instruction to disregard, 
26

and move for mistrial.24 Unkart, 400 S.W.3d at 99. Because appellant did not seek 

an instruction to disregard the hearsay statements or move for a mistrial, he has not 

preserved his complaint for appellate review. 

Appellant also asserts that the trial court violated his right to confront and 

cross-examine the declarant in violation of the Sixth Amendment. Appellant 

challenged the admission of the evidence only as impermissible hearsay. A 

hearsay objection does not preserve error on Confrontation Clause grounds. See 

Austin v. State, 222 S.W.3d 801, 810 (Tex. App.—Houston [14th Dist.] 2007, pet. 

ref’d). Appellant failed to preserve this complaint for appellate review. See id. 

We overrule appellant’s fourth issue.

V. Cross-Examination Not Unconstitutionally Limited

In his fifth issue, appellant complains that the trial court unconstitutionally 

limited his cross-examination of Hariram by excluding certain testimony regarding 

Hariram’s felony convictions for possession of a controlled substance and theft. 

See Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996) (“The 

Constitutional right of confrontation is violated when appropriate crossexamination is limited.”). The Confrontation Clause guarantees a defendant the 

right to cross-examine witnesses. See U.S. Const. amend. VI; Delaware v. Van 

Arsdall, 475 U.S. 673, 678 (1986); Carroll, 916 S.W.2d at 496–97. A defendant 

may cross-examine a witness on any subject “reasonably calculated to expose a 

motive, bias or interest for the witness to testify.” Carroll, 916 S.W.2d at 497.

The right of confrontation is not absolute, however. It guarantees an 

opportunity for effective cross-examination, not cross-examination that is effective 

 

24 A party may skip the first two steps and request a mistrial, but he will be entitled to one 

only if a timely objection would not have prevented and an instruction to disregard would not 

have cured the harm flowing from the error. Unkart, 400 S.W.3d at 99.
27

in whatever way and to whatever extent the defense might wish. Van Arsdall, 475 

U.S. at 679. The trial court may limit the extent of cross-examination for the 

purpose of challenging credibility. Cantu v. State, 939 S.W.2d 627, 635 (Tex.

Crim. App. 1997); see also Ho v. State, 171 S.W.3d 295, 304 (Tex. App.—

Houston [14th Dist.] 2005, pet. ref’d). The scope of cross-examination is left to 

the sound discretion of the trial court, and its decision is not subject to reversal 

absent a clear abuse of that discretion. See Cantu, 939 S.W.2d at 635; Ho, 171 

S.W.3d at 304.

Possession of a controlled substance. Appellant argues the trial court erred

in admitting only the judgment and sentence against Hariram, but not allowing 

appellant to question Hariram on “details of [his] underlying conviction” for 

possession of a controlled substance. At trial, Hariram testified that prior to the 

murder he had been convicted of two felonies, one for unlawful use of a motor 

vehicle and one for credit card abuse. Appellant’s counsel offered evidence that

before the murder Hariram had a third felony conviction for possession of a 

controlled substance. She informed the trial court that she was offering the 

evidence to correct “a false impression to the jury that . . . [Hariram] was convicted 

of only two felonies when, in fact, he was convicted of this felony as well.” She 

also sought to introduce evidence that appellant had pleaded guilty and had been

placed on probation for the crime and subsequently violated his probation. The 

trial court stated, “I will allow into evidence the judgment and sentence of the 

conviction only.” 

The trial court thus admitted evidence to rebut Hariram’s testimony that he 

had only two felony convictions prior to the murder. Appellant did not show at 

trial and has not shown on appeal how the trial court’s refusal to admit evidence of 

appellant’s guilty plea and probation violation—in addition to the judgment and 
28

sentence—were needed to correct the false impression left with the jury. 

Moreover, appellant provides no explanation of how these details regarding the 

conviction would be admissible. Under Rules of Evidence 608 and 609, the fact of 

a prior conviction is generally admissible to impeach a witness, but details of the 

conviction are generally inadmissible for purposes of impeachment. Tex. R. Evid. 

608, 609; see Jabari v. State, 273 S.W.3d 745, 753 (Tex. App.—Houston [1st 

Dist.] 2008, no pet.). 

Theft. Appellant also argues that the trial court erred in “refus[ing] to allow 

the defense to go into Hariram’s probation conditions and refus[ing] to admit 

defense exhibits [sic] 25” with regard to Hariram’s theft conviction after the 

murder. Defense exhibit 25 included a copy of the indictment, judgment and 

sentence, and conditions of probation for the theft case. Appellant asserted at trial 

and now asserts on appeal that he should have been able to introduce these details 

to correct “the false impression this conviction was only a business deal gone bad 

and that he did not owe any restitution.” 

On cross-examination, Hariram admitted that he was convicted for theft, but 

stated, “That was a business deal gone bad” and “Now, no one’s owed money.”25 

 

25 The whole exchange follows:

[Defense counsel:] Now, the probation that you talked about—I think you’ve 

already testified that was for a theft case, correct?

[Hariram:] That was a business deal gone bad.

[Defense counsel:] And somebody owed money in that case?

[Hariram:] It wasn’t a matter of owing money. It was a contract that 

went bad.

[Defense counsel:] Did someone owe money in that?

[Hariram:] Yeah, someone owed money. Now no one’s owed money.

[Defense counsel:] The [C]ity of Brownsville?

[Hariram:] No. They’re not owed money anymore.
29

Appellant’s counsel made the following argument outside the presence of the jury:

Hariram referred to the incident in Cameron County as a business 

deal, a contract deal, that went bad. This was, in fact, a felony theft 

case. He was indicted. He’s on probation for it. Secondly . . . he said 

that he did not owe any money in regards to this deal. And according 

to the conditions of probation of April 2011, there[’s] a $41,000 

restitution that is owed from this incident.

We think the credibility of this witness is vital to this case, 

Your Honor. We think, here again, there was left a false impression 

to the jury in regards to what this case is about . . . . We feel the fact 

that he’s on probation gives an additional issue of whether he is 

currying to the [S]tate of Texas in regards to his testimony, whether 

he’s more—or whether he’s more vulnerable in his testimony. And 

we would like an opportunity, here again, to present a defense in this 

case.

State’s counsel argued testimony regarding the details surrounding 

Hariram’s probation was inadmissible, citing Gonzales v. State. 929 S.W.2d 546, 

549 (Tex. App.—Austin 1996, pet. ref’d) (“Other than conviction of a crime, a 

witness’s character for truthfulness may not be impeached by proof of specific 

instances of conduct.”). The trial court stated, “if [Hariram] testified that nobody 

is owed any money, then I think that subjects him to cross-examination and 

impeachment on whether somebody is or is not owed money.” 

Hariram testified on voir dire that the City of Brownsville was noted as the 

complainant with regard to his theft conviction. However, Hariram testified he did 

not owe restitution to the city as a condition of his probation—rather, he owed 

restitution to an individual named Richard Hope in the amount of $42,000. The 

trial court ruled that appellant’s counsel could “ask [Hariram] in front of the jury 

whether or not he continues to owe any money as a result of his business 

dealings . . . and to whom that is, Mr. Richard Hope, and what the dollar amount is, 

period.” Hariram subsequently admitted on cross-examination that he owed 
30

Richard Hope $42,000. Appellant’s counsel had also asked Hariram, “The theft 

case that you’re on probation for—would you agree with me that a person who 

steals is a thief?” to which Hariram replied, “That’s correct.” In addition, Hariram 

had agreed on direct examination that his theft conviction was for a felony. 

The jury thus heard testimony to rebut Hariram’s testimony that the theft 

conviction “was a business deal gone bad” and “no one’s owed money.” Again, 

appellant has not shown on this record how the additional information regarding 

appellant’s theft conviction and probation conditions was necessary to correct any

false impression left with the jury or why that information would be admissible. 

See Tex. R. Evid. 608, 609; see also Jabari, 273 S.W.3d at 753.

We conclude that appellant’s confrontation rights were not violated, and the 

trial court did not abuse its discretion in limiting appellant’s cross-examination of 

Hariram. We overrule appellant’s fifth issue.

VI. Unanimity Requirement Not Violated

In his sixth issue, appellant complains the guilt-innocence charge allowed 

for a non-unanimous verdict. The jury charge permitted conviction for any one of 

four theories of murder, and appellant contends no evidence supports the theory 

submitted for felony murder pursuant to a conspiracy to deliver marijuana, which, 

according to appellant, could result in a non-unanimous verdict.

“Under our state constitution, jury unanimity is required in felony cases, 

and, under our state statutes, unanimity is required in all criminal cases.” Ngo v. 

State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005). While the jury must 

unanimously agree about the occurrence of a single criminal offense, it need not be 

unanimous about the specific manner or means of how that offense was committed.

Young v. State, 341 S.W.3d 417, 422 (Tex. Crim. App. 2011); Ngo, 175 S.W.3d at 

745–46. When an appellant’s indictment does not allege different offenses but 
31

only different ways of committing the same offense, the court properly furnishes 

the jury with a general verdict form. Aguirre v. State, 732 S.W.2d 320, 326 (Tex. 

Crim. App. 1982) (op. on reh’g). Further, the unanimity requirement is not 

violated by instructing the jury on alternative legal theories of committing the same 

offense. Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim. App. 2004). 

Alternative methods of committing the same offense are properly submitted to the 

jury in the disjunctive if the evidence is legally sufficient to support a finding of 

the offense under any of the theories submitted. Wert v. State, 383 S.W.3d 747, 

755 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (citing Kitchens v. State, 823 

S.W.2d 256, 258 (Tex. Crim. App. 1991)).

The jury charge allowed the jury to find appellant “guilty of murder as 

charged in the indictment”26 if it found beyond a reasonable doubt that appellant, 

among other things, “on or about August 8, 2003 in Fort Bend County, Texas”:

(1) “intentionally and knowingly cause[d] the death of . . . Daryl Hayes . . . by 

shooting him with a firearm”; (2) “intentionally and knowingly commit[ted] an act 

clearly dangerous to human life that cause[d] the death of . . . Daryl Hayes . . . by 

discharging a firearm in [his] direction”; (3) “commit[ted] or attempt[ed] to 

commit [the] felony [of] aggravated robbery [and] intentionally and knowingly 

commit[ted] an act clearly dangerous to human life that caused the death of . . . 

Daryl Hayes . . . by discharging a firearm in [his] direction”; or (4) “commit[ted] 

or attempt[ed] to commit [the] felony [of] conspiracy to deliver marijuana [and] 

intentionally and knowingly commit[ted] an act clearly dangerous to human life 

that caused the death of . . . Daryl Hayes . . . by discharging a firearm in [his] 

direction.” The general verdict form submitted to the jury permitted a verdict of 

not guilty or guilty of murder as charged in the indictment.

 

26 The indictment alleged appellant “intentionally and knowingly cause[d] the death 

of . . . Daryl Hayes . . . by shooting him with a firearm.”
32

The Penal Code provides that one commits the offense of murder by 

(1) intentionally or knowingly causing the death of an individual, (2) intending to 

cause serious bodily injury and committing an act clearly dangerous to human life 

that causes the death of an individual, or (3) in the course of committing or 

attempting to commit a felony other than manslaughter, or in immediate flight 

therefrom, committing or attempting to commit an act clearly dangerous to human 

life that causes the death of an individual. See Tex. Penal Code § 19.02(b). 

Although the conduct is distinctly different, the three methods of committing 

murder set forth in the statute are different manners and means of committing the 

same offense, not distinct and separate offenses. Gandy v. State, 222 S.W.3d 525, 

529 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) (citing Aguirre, 732 

S.W.2d at 325–26 (holding when indictment contained two paragraphs, the first 

alleging murder under § 19.02(b)(1) and the second alleging murder under 

§ 19.02(b)(3), the allegations were merely two different manners and means of 

committing same offense)); see also Young, 341 S.W.3d at 423 (noting murder is a 

“result of conduct” offense “because it punishes the intentional killing of someone 

regardless of the specific manner . . . of causing the person’s death”). 

Both the indictment and the jury charge indicate that the only offense 

involved in this case was murder by any of the three methods set forth in the Penal 

Code. See Penal Code § 19.02(b). The jury returned a unanimous verdict that 

appellant committed murder. The jury was not required to agree unanimously as to 

the manner and means by which appellant did so. See Aguirre, 732 S.W.2d at 326; 

see also Young, 341 S.W.3d at 427-28. We conclude that the trial court committed 

no error in the jury charge and the charge did not violate appellant’s right to 

unanimity of the jury verdict. We overrule appellant’s sixth issue.
33

We affirm the judgment of the trial court.

/s/ Martha Hill Jamison

Justice

Panel consists of Chief Justice Frost and Justices Jamison and Wise.

Publish — TEX. R. APP. P. 47.2(b).