In The 

Court of Appeals 

Seventh District of Texas at Amarillo

________________________

No. 07-11-0444-CR 

________________________

DERRICK LYNN LEWIS, APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

 

On Appeal from the 27th District Court 

Bell County, Texas1 

Trial Court No. 63,971, Honorable Joe Carroll, Presiding 

 

April 17, 2013 

 

OPINION 

 

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. 

Following a plea of not guilty, Appellant, Derrick Lynn Lewis,

2 was convicted by a 

jury of capital murder3 and sentenced to life imprisonment without parole. By three 

 1

Originally appealed to the Third Court of Appeals, this appeal was transferred to this Court by the Texas 

Supreme Court pursuant to its docket equalization efforts. TEX. GOV=T CODE ANN. ' 73.001 (WEST 2005). 

We are unaware of any conflict between precedent of the Third Court of Appeals and that of this Court on 

any relevant issue. Tex. R. App. P. 41.3.

2

Lewis, a juvenile at the time of the offense, was certified to be tried as an adult.

3

TEX. PENAL CODE ANN. § 19.03(a)(2) (WEST SUPP. 2012).
2

issues, he maintains (1) the trial court erred in allowing the State’s witness to testify 

after a violation of Rule 614 of the Texas Rules of Evidence, (2) the evidence is legally 

insufficient to support his conviction when the indictment alleges retaliation against a 

person other than the victim of the murder as the aggravating circumstance and (3) the 

trial court erred in admitting the State’s computer generated animation. We affirm.

BACKGROUND FACTS

On Friday, August 22, 2008, Constable Thomas Prado was at the Emerald 

Green Apartments searching for Appellant. The apartment manager, Jamie Lujan, and 

a maintenance worker, Mark Jimenez, informed Prado that Appellant could be located 

at apartment 214 of the Beverly Arms Apartments, an adjoining complex. Although 

Appellant was not at that apartment, Jimenez later pointed out a vehicle driven by Andre 

Hamilton, in which Appellant might be a passenger, and Prado waved down that

vehicle. Although Appellant was not in the vehicle, a passenger, Montreal Wright, was 

arrested on an outstanding warrant and for carrying a pistol. According to witnesses, 

Appellant was extremely upset over Wright’s arrest. 

When Jimenez left work that day, he was at a stop sign when four males made 

threatening gestures towards him. He called Lujan and told him he would not be 

coming back to work. Lujan assured him it would be “okay” to return and he did so the 

following Monday. After returning to work Jimenez noticed an individual, later identified 

as Appellant, following him around for a few days while he was picking up the grounds. 

Because Appellant, Hamilton and others were angry with Jimenez for pointing out 

Hamilton’s vehicle, which had led to Wright’s arrest, they conspired to “get” Jimenez. 
3

There was conflicting testimony on whether “getting” him meant shooting him or beating 

him. 

On August 28, 2008, Jimenez arrived at work at 7:50 a.m. and Lujan was already 

in the office. They noticed a male, later identified as Anthony Thomas, walk by the 

office. Thomas had been previously banned from the complex. Jimenez left the office 

to do some work at a nearby apartment complex. Approximately twenty minutes later, 

he heard an ambulance.4 When he returned to the apartment complex, he observed 

the ambulance as well as police cars. He was told the manager had been shot and saw 

Lujan being carried out on a stretcher. Lujan suffered five gunshot wounds and on 

September 1, 2008, he died as a result of those wounds. 

Yolanda Evans, a tenant at the Beverly Arms Apartments, testified that she was 

looking out her window on the morning of the shooting when she observed Appellant, 

Hamilton and Thomas cover their faces with bandanas while standing outside the 

manager’s office at the Emerald Green complex.5

 Soon thereafter, she heard gunshots, 

followed by three individuals running from the area. Lakeisha Davis, a tenant at the 

Beverly Arms Apartments, testified she heard a noise and looked out her window and 

saw Appellant, Hamilton and Thomas running up the stairs of the Beverly Arms 

complex. Thomas was carrying a black bag.6

 Another witness testified that she was 

 4

Lujan called 911 at 8:28 a.m. to report that he had been shot.

5

Most witnesses were tenants of the Beverly Arms and from their windows could see the back of the 

Emerald Green Apartments. An alley separated the two complexes.

6

There was confusion among different witnesses on whether all three suspects ran up the stairs or 

whether Thomas ran upstairs to hide the black bag before returning downstairs to join Appellant and 

Hamilton in apartment number 112.
4

working on her car when she heard shots and later saw the suspects run into apartment

number 112 where Thomas’s cousin lived. Thomas’s cousin testified that shortly after 

hearing gunshots, Appellant and Hamilton entered his apartment and Thomas showed 

up not long thereafter.

Numerous officers arrived at the scene. After interviewing witnesses, they 

determined the suspects were holed-up in an apartment at the Beverly Arms. After 

SWAT arrived, an officer trained as a negotiator was able to convince the three 

suspects to come out of the apartment and they were arrested. They were identified as 

Appellant, Hamilton and Thomas and they were each subsequently charged with capital 

murder for causing the death of Lujan while in the course of retaliating against Jimenez.

On the morning of the shooting, Inga McCook, Thomas’s girlfriend, was cleaning 

when she heard a boom similar to a dumpster lid closing. She went to look out her 

window and saw Thomas carrying a black bag. Suddenly, she realized that Thomas 

was in her apartment and he told her, “[t]hey shot him. They shot . . . the [racial slur].” 

She ordered him out of her apartment. When he left her apartment, Thomas did not 

have the black bag on his person.

McCook also testified that Thomas called her from jail to tell her he had hidden 

the black bag in a Christmas tree box in her bedroom closet. She found the bag, 

discovered it had two guns inside and drove down a country road to dispose of them. 

When she returned to her apartment, investigators were waiting to question her and she 

eventually led them to the area where she had tossed the guns.
5

Appellant, Hamilton and Thomas were each tested for gunshot primer residue. 

An expert testified that a classic primer mixture consists of three compounds and a 

particle of primer residue can contain one, two or all three of those compounds. He 

further testified that a particle that contains all three compounds usually results from the 

discharge of a firearm. The policy of the Texas Department of Public Safety is that any 

gunshot primer residue collected more than four hours after a shooting is usually not 

analyzed because too much time has passed. An exception is made when a district 

attorney requests testing. However, under those circumstances, interpretations are not 

drawn from the results. 

In the underlying case, Appellant’s gunshot primer residue test was conducted

within the four hour window. Test results were consistent with him having recently fired 

a weapon, being nearby when a weapon was fired or contacting some surface with 

gunshot primer residue on it. Results from the gunshot residue collected from Thomas, 

which was also timely obtained, did not show any gunshot primer residue particles on 

his hands, but some was detected on the pocket of his shorts. Hamilton’s test was not 

conducted within the four hour window; however, his results were consistent with him 

having fired a weapon or having been in the proximity to or touching a weapon that had 

been fired. Due to the time frame issue, the expert did not draw any conclusions from 

those results.

Thomas originally agreed to testify against Appellant and Hamilton at their trials 

in exchange for an offer to plead guilty to a lesser included offense. Following this 

development, the State moved to jointly try Appellant and Hamilton. The trial court 

granted that motion and they were subsequently tried together in the same proceeding. 
6

Eventually however, at Thomas’s plea hearing, he withdrew from his plea bargain and 

instead entered a plea of guilty to the offense of capital murder. He testified that he 

initiated the shooting and “it just wouldn’t seem right blaming two individuals that 

absolutely had, you know, nothing to do with the whole situation, sir.” At trial, an 

excerpt from Thomas’s plea hearing was offered into evidence; however, the State’s 

objection was sustained. It was subsequently introduced by the defense for purposes of 

appeal.

ANALYSIS

ISSUE ONE – VIOLATION OF “THE RULE” OF WITNESSES

By his first issue, Appellant alleges the trial court abused its discretion in 

admitting the testimony of State witnesses Lakeisha Davis and Byronishia Moore after 

they violated “The Rule” of witnesses, Rule 614 of the Texas Rules of Evidence. We 

disagree. 

Rule 614 provides that at the request of a party or on its own motion, the trial 

court may exclude witnesses to prevent them from hearing testimony of other 

witnesses. TEX. R. EVID. 614. A violation of the rule is not in itself reversible error, but 

only becomes so where the objected-to testimony is admitted and the complaining party 

is harmed. Webb v. State, 766 S.W.2d 236, 239-240 (Tex.Crim.App. 1989). Two 

criteria that have been suggested for determining injury or prejudice are (1) whether the 

witness actually conferred with or heard testimony of other witnesses and (2) whether 

the witness’s testimony contradicted testimony of a witness from the opposing side or 

corroborated testimony of a witness he or she had conferred with or heard. Bell v. 
7

State, 938 S.W.2d 35, 50 (Tex.Crim.App. 1996) (citing Webb, 766 S.W.2d at 240). It is 

within the trial court’s discretion whether to exclude testimony for a violation of Rule 

614. Webb, 766 S.W.2d at 240.

During a hearing outside the jury’s presence, the State questioned Davis and 

Moore about a conversation that occurred in a motel room after Wright’s arrest about 

“getting” Jimenez. During her testimony, Moore refused to answer numerous questions 

posed by the prosecutor. When the prosecutor requested a break, Moore was 

permitted to leave the stand and sit outside the courtroom. Unbeknownst to the court, 

during the break, Moore and Davis conferred about questions the prosecutor was 

asking when a deputy overheard them and separated them.

After the trial court had already overruled several hearsay and confrontation 

objections, that Davis’s and Moore’s testimony was admissible, it came to defense 

counsel’s attention that Rule 614 may have been violated and counsel for both 

defendants requested the trial court explore the violation. The deputy who overheard 

the witnesses testified that all he heard was one of them say, “[t]hat’s what they had 

asked me as well.” The trial court questioned Davis about her conversation with Moore. 

She claimed they did not discuss anything other than the manner in which the State 

repeatedly asked the same question in different ways. The trial court did not see a 

need to question Moore. 

Defense counsel moved to exclude both witnesses from testifying. The State 

responded that the witnesses were not really discussing their testimony, only the 
8

manner of questioning. Agreeing with the State, the trial court felt that if a violation 

occurred, it was harmless. Both Appellant and Hamilton objected to the ruling.

Once the jury returned, Davis and Moore testified. Davis testified that she told 

the police two months after the shooting that Appellant, Hamilton, Thomas and another 

individual identified as C.J. talked about “getting” Jimenez. During cross-examination, 

however, she could not recall whether Hamilton was involved in the discussion and was 

evasive on questions concerning a conspiracy to get Jimenez. Moore testified there 

was a conversation about beating up Jimenez but could not recall who said what or who 

was present during the discussion. She denied there was a conversation about killing 

Jimenez.

During the questioning to determine whether Rule 614 had been violated, the 

defense did not produce any evidence that Davis and Moore conferred about each 

other’s testimony. Neither was there any evidence that their testimony contradicted the 

testimony of a defense witness or that their testimony corroborated each other’s. We 

conclude the defense failed to establish a violation of Rule 614 and the trial court did not 

abuse its discretion in admitting the testimony of Davis and Moore. Issue one is 

overruled.

ISSUE TWO - LEGAL SUFFICIENCY OF THE EVIDENCE

By his second issue, Appellant maintains the evidence is legally insufficient to 

support his conviction for capital murder when the indictment alleges retaliation against 

a person other than the victim of the murder as the aggravating circumstance elevating 

the offense of murder to capital murder. We disagree. 
9

The only standard that a reviewing court should apply in determining whether the 

evidence is sufficient to support each element of a criminal offense the State is required 

to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia, 443 

U.S. 307, 33 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Brooks v. State, 323 S.W.3d 893, 

912 (Tex.Crim.App. 2010). Under that standard, in assessing the sufficiency of the 

evidence to support a criminal conviction, this Court considers all the evidence in the 

light most favorable to the verdict and determines whether, based on that evidence and 

reasonable inferences to be drawn therefrom, a rational trier of fact could have found 

the essential elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S. 

at 319; Brooks, 323 S.W.3d at 912. We measure the legal sufficiency of the evidence 

by the elements of the offense as defined by a hypothetically correct jury charge. Malik 

v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). In our review, we must evaluate 

all of the evidence in the record, both direct and circumstantial, whether admissible or 

inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999), cert. 

denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). We must give 

deference to the responsibility of the trier of fact to fairly resolve conflicts in the 

testimony, to weigh the evidence and to draw reasonable inferences from basic facts to 

ultimate facts. Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). 

A person commits capital murder if he commits murder as defined in section 

19.02(b)(1) and intentionally commits the murder in the course of committing or 

attempting to commit, among other offenses, the offense of retaliation. TEX. PENAL 

CODE ANN. § 19.03(a)(2) (WEST SUPP. 2012). A person commits murder if he 

“intentionally or knowingly causes the death of an individual.” Id. at § 19.02(b)(1). See
10

Adames v. State, 353 S.W.3d 854, 861-62 (Tex.Crim.App. 2011), cert. denied, 2012 

U.S. LEXIS 2268, 132 S.Ct. 1763, 182 L.Ed.2d 533 (2012). A person commits 

retaliation if he intentionally or knowingly harms or threatens to harm another by an 

unlawful act in retaliation for or on account of the service or status of another as an 

informant. TEX. PENAL CODE ANN. § 36.06(a)(1)(A) (WEST 2011). An informant is a 

person who has communicated information to the government in connection with any 

governmental function. Id. at 36.06(b)(2).

By amended indictment, Appellant was charged with intentionally causing the 

death of Jamie Lujan . . . in the course of committing or attempting to commit the 

offense of retaliation against Mark Jimenez. The charge instructed the jury on 

transferred intent, the law of parties and criminal responsibility for conduct of another as 

follows: 

[a] person is nevertheless criminally responsible for causing a result if the 

only difference between what actually occurred and what he desired, 

contemplated or risked is that:

(1) a different offense was committed; or 

(2) a different person or property was injured, harmed or otherwise 

affected.

A person is criminally responsible as a party to an offense if the offense is 

committed by his own conduct, by the conduct of another for which he is 

criminally responsible, or both.

Each party to an offense may be charged with commission of the offense.

A person is criminally responsible for an offense committed by the conduct 

of another if acting with intent to promote or assist the commission of the 

offense, he solicits, encourages, directs, aids, or attempts to aid the other 

person to commit the offense.
11

If, in the attempt to carry out a conspiracy to commit one felony, another 

felony is committed by one of the conspirators, all conspirators are guilty 

of the felony actually committed, though having no intent to commit it, if 

the offense was committed in furtherance of the unlawful purpose and was 

one that should have been anticipated as a result of the carrying out of the 

conspiracy.

See TEX. PENAL CODE ANN. §§ 6.04(b), 7.01(a) & (b), 7.02(a)(2) & (b) (WEST 2011).

Conspiracy requires an agreement with one or more persons that they or one or 

more of them engage in conduct that would constitute the offense; and the person or 

one or more of them performs an overt act in pursuance of the agreement. See TEX.

PENAL CODE ANN. § 15.02(a) (WEST 2011). The essential element of conspiracy is the 

agreement to commit the crime. Williams v. State, 646 S.W.2d 221, 222 (Tex.Crim.App. 

1983). A person may be guilty of conspiracy by doing nothing more than agreeing to 

participate in the conspiracy so long as another co-conspirator does some overt act in 

furtherance of the conspiracy. Walker v. State, 828 S.W.2d 485, 487 (Tex.App.—Dallas 

1992, pet. ref’d). However, if the evidence shows there was no actual, positive 

agreement to commit a crime, the evidence is insufficient to support a conviction for 

conspiracy. Brown v. State, 576 S.W.2d 36, 43 (Tex.Crim.App. [Panel Op.] 1978). 

Commission of the underlying substantive offense is not an essential element of 

conspiracy. McCann v. State, 606 S.W.2d 897,898 (Tex.Crim.App. [Panel Op.] 1980). 

Since direct evidence of intent is rarely available, the existence of a conspiracy can be 

proven through circumstantial evidence. Rhoten v. State, 299 S.W.3d 349, 351

(Tex.App.—Texarkana 2009, no pet.). 
12

Nothing in section 19.03(a)(2) of the Penal Code requires that the intended victim 

of the aggravating offense must also be the murder victim. See Chirinos v. State, 2011 

Tex.App. LEXIS 147, at *14 n.3 (Tex.App.—Houston [14th Dist.] 2011, pet. ref’d). 

Appellant does not cite this Court to any authority holding otherwise and we see no 

reason to read such a requirement into the statute. 

Jimenez provided information to Constable Prado, a government official, on the 

possible whereabouts of Appellant. Thus, he falls within the definition of an informant 

for purposes of the retaliation statute. Jimenez testified that he felt threatened when 

four individuals made gestures to him when he left work the same day he gave that 

information to Prado. McCook, who lived in an upstairs apartment at the Beverly Arms, 

testified that Thomas told her Appellant and Hamilton blamed Jimenez for Wright’s 

arrest and were plotting against him. Lakeisha Davis testified she had told the police 

that Appellant, Hamilton, Thomas and others were going to “get” the maintenance man 

[Jimenez]. Although she wavered in her testimony before the jury on whether Hamilton

was present during the conversation, she did testify that the group talked about shooting 

the maintenance man. 

Byronishia Moore, Appellant’s girlfriend and a tenant at the Beverly Arms, 

testified she and Appellant went to a motel room with a group a few days after Wright 

was arrested. While there, they engaged in a conversation about getting the 

maintenance man. She denied any conversation about killing Jimenez and just thought 

the group was conspiring to beat him up. We conclude the evidence shows that 

Appellant conspired with others to harm or threaten to harm Jimenez in retaliation for 

providing information to Constable Prado that lead to Wright’s arrest. 
13

Appellant is guilty of Lujan’s murder regardless of which conspirator actually fired 

the fatal shots. Thus, the evidence is legally sufficient to support the jury’s verdict that 

Appellant, as a principal or party, murdered Jamie Lujan while in the course of 

attempting to commit the offense of retaliation against Mark Jimenez as alleged in the 

indictment. Issue two is overruled.

ISSUE THREE – ADMISSION OF ANIMATION

By his third issue, Appellant alleges error by the trial court in admitting State’s

Exhibit 35A,7 a computer generated three-dimensional (“3-D”) time elapse animation 

that purportedly reconstructs events surrounding the shooting, as viewed from Evans’s 

perspective. The animation is approximately 120 seconds in length and purportedly 

portrays her view from the bedroom window of her apartment and then from her front 

door. In the animation, three non-descript, identical, 3-D figures are seen standing in 

the breezeway adjacent to a non-descript single level box-like object, purportedly 

representing the office at the Emerald Green Apartments. The figures pause for 

approximately five seconds at the corner of that object and then disappear around a 

corner to the left. Approximately ten seconds later, seven loud gun shots are heard, all 

of the same decibel, but with various time lapses in between each shot. Two seconds 

after the last shot, the three figures are seen running through the breezeway in the 

opposite direction until they disappear to the right. The perspective then changes, 

purportedly moving from Evans’s bedroom window to the front door of her apartment. 

 7

Exhibit 35 is the animation with audio. Exhibit 35A is the animation sans audio. Unless otherwise 

specifically noted, for purposes of this opinion we will refer to the exhibit simply as “the animation.”
14

Thirty-two seconds later, the animation portrays a single figure running from left to right 

across the screen. 

Leading up to the admission of the animation, Yolanda Evans testified she knew 

Appellant and Hamilton through their families. Just before the shooting, she was 

looking out her apartment bedroom window and saw Appellant, Hamilton and Thomas 

standing in the alley near the Emerald Green Apartment office covering their faces with 

bandanas. When she inquired into their activity, they told her to stop being nosy. She 

ignored their warning and watched them go around the corner toward the office, which 

was out of her eyesight. She testified she heard “maybe five” shots and then saw the 

three individuals running. She witnessed Thomas and Appellant passing something 

back and forth. She momentarily lost sight of them in a blind spot then heard footsteps 

going upstairs. She moved from her window to her front door where she witnessed 

Thomas almost at the top of the stairs. Within seconds, she saw Thomas running down 

the stairs with a black bag in his hands and “looking scared.”

After Evans testified before the jury, in a hearing outside the jury’s presence, she 

was questioned by the State for the purpose of authenticating the animation. While 

Evans did state that the animation “accurately” depicted the view from her apartment 

window and then from her front door on August 28, 2008, cross-examination seemed to

establish otherwise. Some of the questions related to the lack of a window screen in 

the animation and the fact that her building sits at a higher elevation than portrayed in 

the animation. Even though the gunshots in the animation were all the same decibel, 

other evidence established that the victim sustained wounds from two different caliber 

weapons, a .22 and .40 caliber. Cross-examination further revealed that while the 
15

suspects were of different body weights and heights, the suspects in the animation were

identical. Additionally, although the number of gunshots heard in the animation was 

seven, Evans testified she heard “maybe five.”

Numerous objections were lodged to the admission of the animation including 

relevance, probative value versus unfair prejudice, confusion of the issues, and the 

inaccurate reflection of Evans’s testimony. All objections were overruled and Evans 

was excused but was asked to leave a contact number. 

Although the animation was identified by Evans in her testimony outside the 

presence of the jury, the State sought to introduce the exhibit before the jury through the 

testimony of the person who created the animation, Officer Joe Fielder, an accident 

reconstructionist. Fielder testified that using crime scene measurements, photographs, 

Evans’s statements and an accident reconstruction computer software program, he was 

able to create the animation. 

The State then asked to publish the exhibit, whereupon defense counsel 

requested assurance that the record reflected their prior objections. At that point, the 

judge asked counsel to approach and inquired as to Evans’s whereabouts. He 

expressed the following concern:

I just would expect that she should be here to testify to the jury that that’s 

the way it happened. I mean, that’s just simple enough, you know. He 

places it. She looks at it. She says that’s the way it happened. I mean, to 

me, that’s what you need.
16

The State responded that Officer Fielder was sufficient to sponsor the exhibit before the 

jury and that Evans had already established its admissibility. In ruling the animation 

admissible, the judge added, “[s]o, okay, I guess so. But I just – That’s not exactly the 

way I thought it was going to unwind.” Defense counsel then made hearsay and 

confrontation clause objections which were overruled. The exhibit was admitted and 

played for the jury. In ruling the animation admissible, the trial court likened it to 

admission of a photograph, a visual aid for the jury. Notwithstanding its ruling, the trial 

court again expressed concern in Evans not being available during Officer Fielder’s 

testimony to authenticate the animation. 

The defense asked to have Officer Fielder qualified as an expert before testifying 

about the animation. That objection was also overruled. During cross-examination, 

Officer Fielder admitted to discrepancies in the details of the animation but explained 

that some details were omitted because they require more memory to run the computer 

program. He testified that the number of shots heard in the animation was based on the 

number of shell casings found at the scene. Following Officer Fielder’s crossexamination, the trial court announced, “[b]ased on your cross, I’m going to sustain the 

objection to the audio.” Counsel for Appellant commented the ruling was “a little late.” 

Thereafter, the court instructed the jury to disregard the audio portion of the computer 

generated animation, i.e., the seven gunshots. During redirect testimony, the court 

excused the jury and asked the parties if they had previously agreed to the animation 

during pretrial discovery. Defense counsel advised the court that they had only been 

made aware of it a few days prior to trial. The court reiterated that the animation was 

admissible, but that the State had not proven the audio portion to be fair and accurate.
17

Appellant contends admission of the animation violated Rules 602 and 701 of 

the Texas Rules of Evidence because Fielder lacked sufficient personal knowledge of 

the details it purports to reflect, such as placement of the individuals, elapsed time 

between distinguishable events, number and volume of gunshots, and the direction and 

speed of travel of the individuals portrayed. Appellant contends that because Fielder 

lacked sufficient personal knowledge of those details, as a layman he could only render 

an opinion or inference rationally based on the perception of a witness with personal 

knowledge of those details, to-wit: Evans. He further argues that, even as an expert, his 

opinions and inferences are limited to the facts or data upon which an expert in his field 

of expertise would reasonably rely and that the perceptions of Evans lacked sufficient 

detail for him to speculate as to certain details, rendering the animation inadmissible. 

While we ultimately agree the trial court erred in admitting the animation, we conclude 

the error was harmless.

“A computer animation is merely a series of images generated by a computer 

that serves as demonstrative evidence. It may, for example, illustrate what a witness 

saw, demonstrate for the jury the general principles that underlie an expert opinion, or 

depict an expert’s theory of how an accident occurred. In each such instance, the 

evidence may be authenticated by the witness’s testimony that the computer animation 

presents a fair and accurate depiction . . . [of] what they purport to represent. If they do 

not, they will not be admissible.” Steven Goode, The Admissibility of Electronic 

Evidence, 29 Rev. Litig. 1, 10 (Fall 2009). 

The use of animations to depict a crime scene has been approved by Texas 

courts. The State cites Mendoza v. State, No. 13-09-00024-CR, 2011 Tex. App. LEXIS 
18

4378 (Tex.App.—Corpus Christi 2011, no pet.) and Murphy v. State, No. 11-10-0150-

CR, 2011 Tex.App. LEXIS 7230 (Tex.App.—Eastland 2011, no pet), as authority for the 

admissibility of such animations. In Mendoza, a computer generated three-dimensional

diagram of the crime scene was produced using a commercially available software 

program. From that opinion it appears as if the animation depicted nothing more than a 

three-dimensional rendering of the crime scene showing possible bullet trajectories. In 

affirming the ruling of the trial court in admitting that evidence, the Corpus Christi Court 

of Appeals noted that diagrams are generally admissible to explain the testimony of a 

witness and render it more intelligible. 2011 Tex. App. LEXIS 4378, at *41. Nothing in 

the Mendoza opinion approves the use of speculative animations showing anything 

more than documented facts.

Similarly, in Murphy v. State, No. 11-10-0150-CR, 2011 Tex. App. LEXIS 7230 

(Tex.App.—Eastland 2011, no pet.), the Eastland Court of Appeals approved the use of 

a computer generated animation of a crime scene. In Murphy, the supporting witness 

testified that he was a police officer assigned to the traffic division of the Midland Police 

Department, and that his duties included accident investigations and preparing accident 

reconstructions. He indicated that the purpose of the animation in question was simply 

to show the amount of distance covered by two vehicles in a given period of time in 

order to show the relative positions of the vehicles in the roadway. Unlike the animation 

in this case, he also testified that all the information and assumptions he used to 

generate the animation were based on speed and distance information actually known 

to him or other investigating officers. After reviewing the animation, the court found that 
19

the factual discrepancies depicted did not cause the probative value of the evidence to 

be substantially outweighed by any unfair prejudice from its admission.

The animations in both Mendoza and Murphy depicted inanimate objects based 

on quantifiable measurements. In this case, however, the animation attempts to portray 

the actions of at least four persons. With respect to animations involving animate 

objects, the Texas Court of Criminal Appeals has said, “[a]ny staged, re-enacted 

criminal acts or defensive issues involving human beings are impossible to duplicate in 

every minute detail and are therefore inherently dangerous, offer little in substance and 

the impact of re-enactments is too highly prejudicial to insure the State or the defendant 

a fair trial.” Miller v. State, 741 S.W.2d 382, 388 (Tex.Crim.App. 1987). (quoting Lopez 

v. State, 651 S.W.2d 413, 414 (Tex.App.—Fort Worth 1983), opinion withdrawn by 

Lopez v. State, 667 S.W.2d 624 (Tex.App.—Fort Worth 1984), which opinion was 

reversed on other grounds, Lopez v. State, 664 S.W.2d 85 (Tex.Crim.App. 1985). 

“[T]he artificial recreation of an event may unduly accentuate certain phases of the 

happening, and because of the forceful impression made on the minds of the jurors by 

this kind of evidence, it should be received with caution.” Lopez, 651 S.W.2d at 414 

(quoting People v. Dabb, 32 Cal.2d 491, 498, 197 P.2d 1, 5 (1948)). This is especially 

true where the event sought to be depicted is simple, the testimony adequate, and the 

animation adds nothing more than a one-sided, manipulated visual image to the mental 

picture already produced in the mind of the jurors by the oral testimony of an eyewitness who has been subjected to the crucible of cross-examination.

We review a trial court’s ruling on the admissibility of this exhibit under an abuse 

of discretion standard. Coble v. State, 330 S.W.3d 253, 272 (Tex.Crim.App. 2010). We 
20

must uphold the trial court’s ruling if it was within the zone of reasonable disagreement. 

Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). 

Rule 602 provides that a witness may not testify to a matter unless evidence is 

introduced sufficient to support a finding that the witness has personal knowledge of the 

matter. TEX. R. EVID. 602. Rule 701 provides that if a witness is not testifying as an 

expert, his testimony in the form of opinions or inferences is limited to those which are 

(a) rationally based on the perception of the witness and (b) helpful to a clear 

understanding of the witness’s testimony or the determination of a fact in issue. TEX. R.

EVID. 701. The perception requirement of Rule 701 is consistent with the personal 

knowledge requirement of Rule 602. See Furrow v. State, 943 S.W.2d 895, 898

(Tex.Crim.App. 1997). See also Madrigal v. State, 347 S.W.3d 809, 814 (Tex.App.—

Corpus Christi 2011, pet. ref’d). It requires the proponent of the lay opinion testimony to 

establish that the witness has personal knowledge of the events upon which his opinion 

is based. Furrow, 943 S.W.2d at 898. If the proponent of the evidence cannot establish 

personal knowledge, the trial court should exclude the testimony. Id.

Before State’s Exhibit 35 was admitted, the defense asked to have Fielder 

qualified as an expert. That objection was overruled and he testified as a lay person. 

He testified that by using crime scene measurements, photographs, Evans’s statements 

and an accident reconstruction computer software program, he was able to create the 

animation. Nothing in the record, however, supports many of the details contained in 

the animation. Those details were provided by nothing more than pure speculation on 

his part. Accordingly, we conclude the trial court abused its discretion in admitting the 

computer generated animation. 
21

Finding error in the admission of the animation does not, however, end our 

inquiry. The admission of evidence in violation of an evidentiary rule is nonconstitutional error. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). We 

must disregard the error if it did not affect Appellant’s substantial rights. TEX. R. APP. P.

44.2(b). We review the entire record to ascertain the effect or influence on the verdict of 

the wrongfully admitted evidence. Barshaw v. State, 342 S.W.3d 91, 93 (Tex.Crim.App. 

2011); Motilla v. State, 78 S.W.3d 355-56 (Tex.Crim.App. 2002). Reversal is required 

for non-constitutional error if the reviewing court has grave doubt that the result of the 

trial was free from the substantial effect of the error. Burnett v. State, 88 S.W.3d 633, 

637 (Tex.Crim.App. 2002). “Grave doubt” means that “in the judge’s mind, the matter is 

so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of 

the error. Thus, in cases of grave doubt as to harmlessness the petitioner must win.” 

Id. at 637-38 (citing O’Neal v. McAninch, 513 U.S. 432 436, 115 S.Ct. 992, 130 L.Ed.2d 

947 (1995)).

The crux of the case against Appellant was linking him to the conspiracy to get 

Jimenez. Davis and Moore testified that Appellant entered into an agreement with 

others to retaliate against Jimenez for giving Constable Prado information which led to 

the arrest of his friend. The animation did little to answer that question. Moreover, the 

improper admission of evidence is harmless if the trial record contains other, properly 

admitted evidence that is probative of the same manner. See Saldano v. State, 232 

S.W.3d 77, 102 (Tex.Crim.App. 2007). Considering the entirety of the record, including 

the contested issues, we conclude that Appellant’s substantial rights were not affected 

by admission of the animation and that the error in admitting it was harmless. See 
22

generally Miller v. State, 741 S.W.2d 382, 388 (Tex.Crim.App. 1987). Issue three is 

overruled.

CONCLUSION

Accordingly, the trial court’s judgment is affirmed.

Patrick A. Pirtle

 Justice

Publish.