Nos. 1-14-00744-CR and 1-14-00745-CR

In the 

Court of Appeals 

For the 

First District of Texas 

At Houston 



Nos. 1326112 and 1383738

In the 248th District Court 

Of Harris County, Texas 



ARTAVIOUS DEON HOLLINS, 

Appellant 

V.

THE STATE OF TEXAS

Appellee 



STATE’S APPELLATE BRIEF



DEVON ANDERSON

District Attorney 

Harris County, Texas 

KIMBERLY APERAUCH STELTER 

Assistant District Attorney 

Harris County, Texas 

TBC No. 19141400 

stelter_kimberly@dao.hctx.net 

JOHN WAKEFIELD

Assistant District Attorney 

Harris County, Texas 

1201 Franklin, Suite 600 

Houston, Texas 77002 

Tel: (713) 755-5826 

FAX: (713) 755-5809 

Counsel for Appellee

ORAL ARGUMENT REQUESTED ONLY IF GRANTED TO APPELLANT

ACCEPTED

01-14-00744-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

3/4/2015 10:38:02 AM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 3/4/2015 10:38:02 AM CHRISTOPHER A. PRINE Clerk
i

STATEMENT REGARDING ORAL ARGUMENT

Pursuant to TEX. R. APP. P. 39, the State requests oral argument only if oral 

argument is granted to the appellant.

IDENTIFICATION OF THE PARTIES

Counsel for the State:

Devon Anderson  District Attorney of Harris County

Kimberly Aperauch Stelter  Assistant District Attorney on appeal

John Wakefield  Assistant District Attorney at trial

Appellant or criminal defendant:

Artavious Deon Hollins

Counsel for Appellant:

Todd Dupont, II Counsel on appeal

Casey Garrett  Counsel at trial

Trial Judge:

Katherine Cabaniss Presiding Judge
ii

TABLE OF CONTENTS

Page

STATEMENT REGARDING ORAL ARGUMENT ................................................i

TABLE OF CONTENTS.......................................................................................... ii

INDEX OF AUTHORITIES.................................................................................... iii

STATEMENT OF THE CASE..................................................................................1

STATEMENT OF FACTS ........................................................................................2

SUMMARY OF THE ARGUMENT ........................................................................6

REPLY TO APPELLANT’S FIRST POINT OF ERROR.......................................7

REPLY TO APPELLANT’S SECOND POINT OF ERROR................................15

CONCLUSION........................................................................................................21

CERTIFICATE OF SERVICE AND COMPLIANCE ...........................................21
iii

INDEX OF AUTHORITIES

CASES

Brooks v. State, 

323 S.W.3d 893 (Tex. Crim. App. 2010).............................................................15

Brown v. State,

122 S.W.3d 794 (Tex. Crim. App. 2003).............................................................16

Cantu v. State,

395 S.W.3d 202 (Tex.App—

Houston [1st Dist.] 2012, pet. ref'd).....................................................................19

Chambers v. State, 

805 S.W.2d 459 (Tex. Crim. App. 1991).............................................................15

Coble v. State,

330 S.W.3d 253 (Tex. Crim. App. 2010).............................................................11

Cook v. State,

858 S.W.2d 467 (Tex. Crim. App. 1993).............................................................10

Couchman v. State

3 S.W.3d 155 (Tex.App.—

Fort Worth 1999, pet. ref'd...................................................................................19

Curiel v. State,

243 S.W.3d 10 (Tex. App.—

Houston [1st Dist.] 2007, pet. ref'd).....................................................................10

Finney v. State,

No. 2-02-034-CR, 2003 WL 151972, at 1 (Tex.App.—

Fort Worth Jan.23, 2003, pet. ref'd)

(mem.op.) (not designated for publication) .........................................................12

Godsey v. State,

719 S.W.2d 578 (Tex. Crim. App. 1986)...................................................... 16, 19

Gosch v. State,

829 S.W.2d 775 (Tex. Crim. App. 1991).............................................................18

Guevara v. State,

152 S.W.3d 45 (Tex. Crim. App. 2004)...............................................................18
iv

Holmes v. State,

135 S.W.3d 178 (Tex. App.—

Waco,2004, no pet.) .............................................................................................12

Jackson v. Virginia, 

443 U.S. 307319 (1979)................................................................................ 15, 20

Johnson v. State, 

871 S.W.2d 183 (Tex. Crim. App. 1993).............................................................16

Johnson v. State,

967 S.W.2d 410 (Tex. Crim. App. 1998).............................................................13

King v. State, 

29 S.W.3d 556 (Tex. Crim. App. 2000)...............................................................15

King v. State,

953 S.W.2d 266 (Tex. Crim. App. 1997).............................................................13

Lankston v. State,

827 S.W.2d 907 (Tex. Crim. App. 1992).............................................................10

Lovill v. State,

319 S.W.3d 687 (Tex. Crim. App. 2009).............................................................10

Lugo-Lugo v. State,

650 S.W.2d 72 (Tex. Crim. App. 1983)...............................................................17

Medina v. State,

7 S.W.3d 633, (Tex. Crim. App. 1999)................................................................16

Motilla v. State,

78 S.W.3d 352 (Tex. Crim. App. 2002)...............................................................13

Osbourn v. State,

92 S.W.3d 531 (Tex. Crim. App. 2002)...............................................................11

Patrick v. State,

906 S.W.2d 481(Tex. Crim. App. 1995)..............................................................16

Pena v. State,

441 S.W.3d 635 (Tex. App.—

Houston [1 Dist.] 2014, pet. ref’d).......................................................................19

Penry v. State,

903 S.W.2d 715 (Tex. Crim. App. 1995).............................................................12

Purtell v. State,

761 S.W.2d 360 (Tex. Crim. App. 1988).............................................................10
v

Ramirez v. State,

229 S.W.3d 725 (Tex.App.-

San Antonio 2007, no pet.)...................................................................................16

Rodriguez v. State,

90 S.W.3d 340 (Tex. App.—

El Paso 2001, pet. ref'd) .......................................................................................16

Rogers. v. State,

205 S.W.3rd 525 (Tex. Crim. App. 2006) ...........................................................11

Sloan v. State,

409 S.W.2d 412 (Tex. Crim. App. 1966).............................................................20

Winningham v. State,

334 S.W.3d 309 (Tex.App. –

Fort Worth,2010, pet. ref’d).................................................................................19

Wyatt v. State,

23 S.W.3d 18 (Tex. Crim. App. 2000).................................................................12

STATUTES

TEX. PENAL CODE § 38.04 (West 2010)...................................................................15

TEX. PENAL CODE ANN. § 19.02(b)(2) (West 2011)...............................................16

RULES

TEX .R. APP. P. 44.2(b).............................................................................................13

TEX. R. APP. P. 33.1(a)(1)(A)...................................................................................10

TEX. R. APP. P. 39....................................................................................................... i
vi

TEX. R. EVID. 602.....................................................................................................10

TEX. R. EVID. 702.....................................................................................................11
TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

The appellant was charged with murder and tampering with evidence (CR1–

5, CR2-5).1 He pled “not guilty” to the charges, and the cases were tried to a jury 

(CR1 –308, CR2-66). The jury found him guilty of murder and assessed his 

punishment at life in the Institutional Division of the Texas Department of 

Criminal Justice (CR1-308). The jury also found appellant guilty of tampering with 

the evidence and assessed his punishment in that case at twenty-five years in the 

Institutional Division of the Texas Department of Criminal Justice, to run 

concurrently with appellant’s murder conviction (CR2-66). The trial court certified 

appellant’s right to appeal, and appellant filed notice of appeal for both convictions 

that same day (CR1-311-312, CR2-69-70).

 

1 Appellant was charged with murder in cause no.1326112 and tampering with evidence in cause 

no. 1383738. These cases were tried together, both resulted in convictions, and both were 

appealed (1-14-00744-CR being the murder case and 1-14-00745-CR being the tampering with 

the evidence case). The cases share a common reporter’s record but have different clerk’s 

records, which will be referred to as CR1 and CR2 respectively. While appellant has included 

both cause numbers on his brief, it appears that the issues raised concern only the murder 

conviction, not the tampering with the evidence conviction. Thus, the appeal in No. 1-14-00745-

CR should be dismissed for want of prosecution.
2

STATEMENT OF FACTS

Appellant and his girlfriend had only lived at the Casa Nube apartments a 

few weeks when appellant got into an argument with two neighbors, Shae and her 

friend, Tranea Jones (RR. III-137, 25, IV-265). Appellant called the two “bitches,” 

and told them he was going to “kick their ass.” (RR. IV-26). Jones’ boyfriend 

Andre Lewis intervened and offered to fight appellant, but appellant said he 

wanted to fight the women instead (RR. IV-26). Appellant then said he was going 

to call his “people” or his “boys.” (RR. IV-27-28). Thirty to forty minutes later 

some cars showed up and started circling the apartment, but nobody got out of the 

vehicles (RR. IV-28). In response, Lewis went to a nearby apartment where he 

kept his “protection,” a .40 Glock pistol (RR. IV-29). Lewis put the gun in his back 

pocket so that appellant could see it, then told appellant to “go in your house, 

smoke a sweet, calm down, leave these women alone. Tomorrow be a new day.” 

(RR. IV-31). 

Appellant did return to his apartment, and Lewis to his, but Shae was not 

satisfied (RR. IV-32). After the argument Shae called “D” her “baby daddy,” and 

together the two of them went over to appellant’s apartment (RR. III-141, IV-34). 

They tried to get appellant to come out of his apartment by taunting him, kicking 

his door, and throwing things through his windows, but appellant stayed inside, 

and after 20 to 30 minutes the two left (RR. III-142, 143,145, 148, 206). 
3

Tranea Jones was in her apartment above appellant and heard the 

commotion, including D kicking appellant’s door (RR. III-146). Later she testified 

that there was a footprint on appellant’s door left from the incident (RR. III-147). 

A week later Derrick Williams was visiting Shae outside her apartment 

when Shae brought up the argument with appellant (RR. III-154, 197).2 Williams 

and appellant then began to argue and shout at each other (RR. III-149, 151, 155). 

The arguing between appellant and Williams went on for much of the afternoon, 

until finally Williams came downstairs to the courtyard of the apartment complex 

(RR. III-153, 156, 157). Jones and Lewis also heard the argument (RR. III-157). 

Lewis put on his shoes and headed downstairs to try and calm Williams down (RR. 

156, 157 IV-45).

Williams and apellant continued to exchange words (RR. IV-46). Appellant 

hovered around the door of his apartment, inside his gate (RR. IV-47). Finally, 

appellant opened his gate and told Williams to “come on in.” (RR. III-156, 159-

160, 215). At the time appellant’s gate to his patio was open, as well as his front 

door (RR. III-156). As soon as Williams crossed the threshold of appellant’s 

apartment, appellant pulled out a gun from behind his back (RR. III-164, IV-53). 

Appellant cocked the gun and said “you in my house.” (RR. III-164, IV-53). 

 

2 Derrick also went by the nickname “D,” but all parties agreed he was not the same “D” who 

was involved in the incident with appellant the week before (RR. III-140, 199, 200, IV-209). 
4

Appellant then ran toward Williams and tried to hit him in the face with the pistol 

(RR. IV-53, 54). Williams grabbed appellant’s arm, there was a struggle, and the 

gun went off (RR. IV-54, 125). Williams stepped outside the apartment, said “It 

didn’t have to go like this,” and collapsed (RR. III-167, 168). Jones tried to help 

Williams by determining where he had been shot, trying to stop the bleeding, and 

performing CPR, but her attempts were futile, and Williams died at the scene (RR. 

III-37, 168-169). The autopsy showed that the bullet entered high up under 

Williams’ left armpit and exited lower in the front of his chest, after having passed 

through his left lung and heart (RR. IV-17, 173, 180).

Immediately after the shooting appellant grabbed his keys, locked his door, 

and ran out of the apartment complex through the gate by the apartment office 

(RR. III-167, 169-170, IV-55, 248-249). Once away from the scene appellant 

discarded the white shirt and black cap he had been wearing and left them on the 

ground by a nearby warehouse (RR. III, 50, State’s Exhibit No.7, 8).3 He also hid 

the gun used in the shooting, which was found under a Ligustrum bush 

approximately 30 feet away from the shirt and cap (RR. III-70, State’s Exhibit No. 

13). While the shirt and cap were found in plain view, it took a trained police 

canine unit to locate the weapon (RR. III-54, 69). 

 

3 Dispatch had given out a description of the suspect as a black male wearing a white shirt and a 

black ball cap (RR. III-254). 
5

After disposing of the shirt, cap, and gun, appellant entered a nearby 

secondhand clothing store (RR. IV-133, 135, IV-252). There he purchased a new 

shirt, along with shorts and shoes (RR. IV-140, IV-253). He looked at a cap as 

well, but ended up not buying it (RR. IV-140). Appellant changed into the new 

outfit and left his old clothing in the dressing room (RR. IV-142, 144). 

Appellant then offered to pay anyone $10 to give him a ride to the parking 

lot of a nearby Denny’s (RR. IV-141). Rafael Narvaez, the father of the owner of 

the store, took him up on the offer (RR. IV-141). On the five minute ride to the 

parking lot appellant offered to buy Narvaez’ cap, but Narvaez told him it was not 

for sale (RR. IV-143-144). 

Once appellant was dropped off he met his girlfriend, who had just finished 

getting her nails done at a nearby salon (RR. IV-254). Together they decided not to 

go back to the apartment complex but to Dallas, where they stayed with appellant’s 

aunt (RR. IV-256).

The police were able to get a warrant for appellant’s arrest the day after the 

shooting (RR. III-271). Appellant was arrested in the Dallas/Arlington area a little 

over a month after the offense, after being detained on an unrelated traffic stop 

(RR. III-271, 257). 

At trial, appellant testified that he never invited Williams or Lewis into his 

home (RR. IV-260). Instead, appellant claimed that his front door was closed, he 
6

was in the bathroom, and when he came out Williams and Lewis were in his 

apartment (RR. IV-239). Appellant didn’t hear them enter, but assumed the 

flushing of the toilet covered the sound of them kicking in the door (RR. IV-239). 

According to appellant, Lewis and Williams both had guns, while appellant was 

unarmed (RR. IV-241). Williams pulled out his gun and tried to hit appellant with 

it (R. IV-241). Appellant then claimed that he grabbed the gun, pulled it away, and 

the gun went off (RR. IV-241, 247). Williams and Lewis exited the apartment, and 

Williams fell while Lewis took off running (RR. IV-248). After that, appellant 

panicked and left the scene of the crime (RR. IV-249). 

SUMMARY OF THE ARGUMENT

Appellant raised no point error relating to his conviction for tampering with 

the evidence, therefore his appeal on No. 1-14-00744-CR should be dismissed for 

want of prosecution. The trial court did not err in allowing Officer Holmes to 

testify about the freshness of the footprint on appellant’s door when appellant 

failed to make a specific objection and his objection failed to match his objection 

on appeal. Furthermore, Officer Holmes’ testimony was admissible under TEX. R.

EVID. 702 as the opinion of an expert witness due to his training as a Crime Scene 

Unit Investigator. Even if the trial court had erred in allowing Officer Holmes to 
7

answer the one question about the footprint on appellant’s door, there would not be 

reversible error as introduction of this evidence did not affect a substantial right 

and would not have influenced the decision of the jury. Similarly, the evidence in 

this case was sufficient for the jury to find that appellant committed murder under 

either TEX. PENAL CODE ANN. §19.02(b)(1) or TEX. PENAL CODE ANN.

§19.02(b)(2.).

REPLY TO APPELLANT’S FIRST POINT OF ERROR

The trial court did not err in allowing Officer Holmes to testify about the 

condition of the shoeprint found on appellant’s door, as appellant failed to 

make a specific objection, and Officer Holmes’ testimony was admissible 

under TEX. R. EVID. 702. Even if the testimony had been inadmissible, its 

introduction was not reversible error. 

Appellant argues in his first point of error that the trial court abused her 

discretion in allowing Officer Holmes to testify as to whether the footprint on 

appellant’s door was old or not. Tranea Jones’ testimony was that the footprint was 

made by D a week earlier, when D and Shae were trying to get appellant to come 

out and fight (RR. III-145-147). It fit appellant’s theory of the case that the 

footprint was made at the time of the shooting, when appellant claimed Lewis and 

Williams forced their way into his apartment by kicking open the door (RR. IV239, 325-326). 
8

Officer Holmes was the crime scene investigator. As such, his duty was to 

take photos, measurements, and gather evidence at the scene of the murder (RR. II79). Holmes had taken several pictures of appellant’s door, which were introduced 

into evidence (State’s Exhibit No. 17, 18, 19). Holmes then testified extensively 

about the condition of the door, specifically that it was not cracked, damaged, or 

looked in any way like it had been kicked in (RR. III-86). The door lock and dead 

bolt both appeared to be functioning (RR. III-87). The State then asked about the 

weather on the day of the shooting (RR. III-87). Holmes testified that it was cool 

and dry that day, there had not been any rain, and that there was no wetness on the 

ground or mud nearby (RR. III-88). The State next focused the officer’s attention 

on the footprint on appellant’s door in the following colloquy:

Q: Was this particular thing– you spent a lot of time taking 

photographs of this particular print?

A: Correct.

Q: Was that mud, that dirt there, was it dry or was it wet?

A: It was dry.

Q: Had that mud footprint been there for a while?

[Defense Counsel] Objection, calls for speculation.

THE COURT: Sustained.

Q: Based on your expertise as a CSU officer who has made scene of 

these kinds and investigated scenes of all kinds of crimes, in your 
9

knowledge if you have it based on training and experience did you 

determine that this was old or not?

[Defense Counsel]: Objection as to that print that day.

THE COURT: Overruled.

A: It had been there long enough to dry, which typically means 

number of hours if not days. 

Q: When you were at the scene, it was less than 30 minutes after the 

call for the shooting death had been dropped, right?

A: I got there at 5:15.

Q: Okay. About an hour?

A: Not quite two hours.

Q: Not quite two hours, be an hour and 15 minutes?

A: Correct.

Q: At any time though the investigation of anyone else there, had that 

been noticed as a wet footprint?

A: No.

Q: Was there mud nearby this scene at all?

A: No.

(RR. III-88-89). 

1. Appellant did not preserve error by making a proper objection. 

Appellant claims that the court erred in overruling his objection that Officer 

Holmes’ testimony about the footprint being old was “speculation.” (appellant’s 
10

brief, p. 10). However, appellant’s “speculation” objection was to the previous 

question, and was sustained. When the State rephrased the question, appellant’s 

objection was different: “Objection as to that print that day.” (RR. III-88).

To preserve a complaint for appellate review, a party must make a timely 

objection to the trial court stating “the grounds for the ruling ... with sufficient 

specificity to make the trial court aware of the complaint, unless the specific 

grounds were apparent from the context.” TEX. R. APP. P. 33.1(a)(1)(A). In 

addition, the argument raised on appeal must comport with the specific objection 

made at trial, or error is waived. Lovill v. State, 319 S.W.3d 687, 691 (Tex. Crim. 

App. 2009); Cook v. State, 858 S.W.2d 467, 474 (Tex. Crim. App. 1993); Curiel v. 

State, 243 S.W.3d 10, 19 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd)

Appellant’s argument on appeal does not comport with the objection he 

presented to the trial court. Appellant’s claim that the evidence was speculation 

and his reliance on TEX. R. EVID. 602 for the proposition that a witness may not 

testify to a matter unless he or she has personal knowledge of the matter is not the 

same objection made at trial to this question. Lankston v. State, 827 S.W.2d 907, 

909 (Tex. Crim. App. 1992); Purtell v. State, 761 S.W.2d 360, 365–66 (Tex. Crim. 

App. 1988).

2. Officer Holmes’ testimony was property admitted as the opinion of 

an expert witness under TEX. R. EVID. 702
11

Even if appellant had properly objected under Rule 602, he would not 

prevail, since Officer Holmes’ testimony was admissible as the opinion of an 

expert witness under TEX. R. EVID. 702. After appellant’s first “speculation” 

objection, the State rephrased the question, calling on Officer Holmes’ experience 

and training in crime scene investigation to opine on whether the footprint was old 

or not. Officer Holmes’ answer was tailored to his experience. He did not give a 

precise date on the age or the print, but merely noted that it had been there long 

enough to dry, “which typically means a number of hours if not days.” (RR. III88). 

If the witness has some special knowledge or additional insight into the 

field that would be helpful, then the expert can assist the trier of fact to understand 

the evidence or to determine a fact in issue. Rogers. v. State, 205 S.W.3rd 525, 

527 (Tex. Crim. App. 2006).

4

 A trial court need not exclude expert testimony 

when the general subject matter is within the comprehension of the average jury, 

as long as the witness has some specialized knowledge on the topic that will assist 

the jury. Coble v. State, 330 S.W.3d 253, 288 (Tex. Crim. App. 2010). The special 

knowledge that qualifies a witness to give an expert opinion may be derived from 

 

4

In fact, when a witness who is capable of being qualified as an expert testifies regarding events 

which he or she personally perceived, the evidence may be admissible as both Rule 701 opinion 

testimony and Rule 702 expert testimony. Osbourn v. State, 92 S.W.3d 531, 536 (Tex. Crim.

App. 2002).
12

specialized education, practical experience, a study of technical works, or a 

varying combination of these things. Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. 

App. 2000)(quoting Penry v. State, 903 S.W.2d 715, 762 (Tex. Crim. App. 1995); 

see TEX. R. EVID. 702. An expert witness’s knowledge or experience about an 

issue must only exceed that of an average juror. Holmes v. State, 135 S.W.3d 178, 

182 (Tex. App.—Waco 2004, no pet.).

Officer Holmes testified that he had been a police officer for over 25 years, 

had worked for the Crime Scene Unit since 2009, and had completed a number of 

classes on crime scene investigation, plus what he had learned from on-the-job 

training (RR. III-75-76). It was clear from the prosecution’s rephrasing of the 

question that the State was relying on Officer Holmes’ experience in crime scene 

investigations to qualify him to give an opinion as to whether the footprint was 

fresh or not. Although appellant questions on appeal whether the Officer had 

proper training on how long it would take mud to dry, he did not challenge the 

officer’s qualifications at trial. See Finney v. State, No. 2-02-034-CR, 2003 WL 

151972, at 1 (Tex.App.—Fort Worth Jan.23, 2003, pet. ref'd) (mem.op.) (not 

designated for publication) (holding that when defendant alleged on appeal that the 

trial court erred in admitting detective’s testimony regarding the amount of cocaine 

normally possessed by an individual for personal use because she was not qualified 

as an expert, defendant presented nothing for appellate review because defendant 
13

objected at trial on ground that the questions called for speculation and did not 

object to detective’s qualifications to give an opinion). In fact, both the State and 

the defense relied on Holmes’ training to elicit opinions on the evidence at the 

scene, in particular the condition of appellant’s door (RR. III-86, 115, 116, 123). 

Since Officer Holmes testified based on his experience in crime scene 

investigation, and since appellant made no objection to his testimony on that 

ground, the trial court did not err in allowing Officer Holmes to answer the 

question about the age of the footprint on appellant’s door. 

3. Even if appellant had objected and the trial court had abused its 

discretion in admitting Officer Holmes’ testimony, any error would 

not be reversible.

Erroneous admission of evidence is non-constitutional error and must be 

disregarded unless it affects substantial rights of the defendant. TEX .R. APP. P.

44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). A 

substantial right is affected when the error had a substantial and injurious effect or 

influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 

(Tex. Crim. App. 1997). Substantial rights are not affected by the erroneous 

admission of evidence if the appellate court, after examining the record as a whole, 

has fair assurance that the error did not influence the jury, or had but a slight effect. 

Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). 
14

Appellant argues he was harmed because Officer Holmes’ testimony 

indicated that “the police responders did not believe his version of events.” 

(appellant’s brief, p. 13). Yet appellant’s claim that Williams and Lewis forced 

their way into his apartment could have been true regardless of whether this 

footprint had been there prior to that night. All the State was attempting to 

establish was that the footprint had been there long enough to dry by the time 

Officer Holmes inspected it, and how long it might have taken to dry. 

Holmes’ testimony was cumulative of other testimony, as the State had 

already established that the ground at the scene of the crime was dry, there was no 

mud nearby, and that the victim’s tennis shoes were clean, indicating that the 

footprint did not come from him that day (RR. III-88, 89, 99). Tranea Jones also 

had testified that the footprint was from a week ago, when both she and Lewis 

heard D kick appellant’s door that night (RR. III-146-147, IV-38). Furthermore, 

appellant was able to cross-examine Officer Holmes about whether the footprint 

was “muddy” or “dirty,” and whether he had done any forensic testing of the 

footprint to determine the substance of the footprint (RR. III-116-117). Officer 

Holmes did not try to overreach on his testimony, and even agreed to the following 

statements about the footprint on appellant’s door:

Q: [by defense counsel]: In fairness to the jury you don’t know when 

that got there, do you?

A: Correct.
15

Q: And in fairness you don’t even know how it got there, do you?

A: Correct.

(RR. III-119). Given the evidence introduced in this case, and the negligible 

weight this one question might have on the jury’s verdict, appellant has not met his 

burden of establishing that his substantial rights were affected. For all the above 

reasons, appellant’s first point of error is without merit and should be overruled. 

REPLY TO APPELLANT’S SECOND POINT OF ERROR

The evidence is legally sufficient to support appellant’s conviction for murder. 

The standard of review in the present case is whether, after viewing the 

evidence in the light most favorable to the prosecution, any rational trier of fact 

could have found the essential elements of the crime beyond a reasonable doubt. 

Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 

902 (Tex. Crim. App. 2010); TEX. PENAL CODE § 38.04 (West 2011). The jury was 

the sole judge of the weight of the evidence under this review and could choose to 

believe all, some, or none of it. Chambers v. State, 805 S.W.2d 459, 461 (Tex. 

Crim. App. 1991). 

Evidence can be legally sufficient for a conviction even if it is entirely 

circumstantial. King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000). The 

standard of review for circumstantial and direct evidence is the same. Id. It is not 
16

necessary that every fact point directly and independently to the defendant’s guilt; 

it is enough if the conclusion is warranted by the combined and cumulative force 

of all the incriminating circumstances. Johnson v. State, 871 S.W.2d 183, 186 

(Tex. Crim. App. 1993).

A person commits murder if he intentionally or knowingly causes the death 

of an individual, or intends to cause serious bodily injury and commits an act 

clearly dangerous to human life that causes the death of an individual. TEX. PENAL 

CODE ANN. §§ 19.02(b)(1), 19.02(b)(2) (West 2011). Intent is a question of fact 

and therefore within the sole purview of the jury for which the jury may rely on its 

collective common sense and apply common knowledge and experience. Brown v. 

State, 122 S.W.3d 794, 800 (Tex. Crim. App. 2003); Rodriguez v. State, 90 S.W.3d 

340, 355 (Tex. App.—El Paso 2001, pet. ref'd). Additionally, intent may be 

inferred from the circumstantial evidence surrounding the incident, including the 

acts, words and conduct of the accused. Patrick v. State, 906 S.W.2d 481, 487 

(Tex. Crim. App. 1995). “The specific intent to kill may be inferred from the use of

a deadly weapon.” Godsey v. State, 719 S.W.2d 578, 580–81 (Tex. Crim. App. 

1986).

Intent to kill is not required to commit murder under Section 19.02(b)(2) . 

See Medina v. State, 7 S.W.3d 633, 638 n. 4 (Tex. Crim. App. 1999); Ramirez v. 

State, 229 S.W.3d 725, 729 (Tex. App.-San Antonio 2007, no pet.). It is sufficient 
17

to show only the intent to cause serious bodily injury and commit a clearly 

dangerous act. Rodriguez v. State, 146 S.W.3d 674, 676 n. 3 (Tex. Crim. App. 

2004); Forest v. State, 989 S.W.2d 365, 368 (Tex. Crim. App. 1999) (holding that 

firing a gun in the direction of an individual is an act clearly dangerous to human 

life); Goodin v. State, 726 S.W.2d 956, 959 (Tex. App –Fort Worth 1987), aff’d,

750 S.W.2d 789 (Tex. Crim. App. 1988) (finding intent to cause serious bodily 

injury from defendant’s admission that he pointed a gun at victim and pulled 

trigger). The test for determining whether an act is clearly dangerous to human life 

is an objective one. Lugo-Lugo v. State, 650 S.W.2d 72, 81 (Tex. Crim. App. 

1983). To be clearly dangerous to human life, the act committed need only threaten 

or risk a resulting death. Lugo-Lugo, 650 S.W.2d at 88.

The jury was instructed to convict under either §19.02(b)(1) or §19.02(b)(2) 

(CR1-287-288). Taking into consideration appellant’s actions and conduct, a 

rational jury could have reasonably inferred that appellant either intended to shoot 

and kill Williams or that appellant intended to cause serious bodily injury to 

Williams and committed an act clearly dangerous to human life, namely shooting 

Williams with a gun.

Appellant had a motive to kill Williams, as they had been arguing all day, to 

the point where they were exchanging “fighting words” (RR. IV-46). While 

motive is not an element of the offense of murder, it may be circumstantial 
18

evidence of intent. See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 

2004). 

Appellant’s act of inviting Williams into his home in the middle of this 

argument was with the apparent intent of having a justification for shooting him. 

When asked to describe how appellant’s invitation sounded, Jones explained “[h]is 

tone sounded like you come in, basically I’m going to use that as selfdefense.”(RR. III-159). Sure enough, as soon as Williams crossed the threshold of 

appellant’s apartment, appellant pulled out his gun, cocked it, and announced that 

Williams was in his home (RR. III-164, IV-56). According to Lewis, Williams 

backed up, but appellant ran towards him and tried to hit him in the face with the 

pistol (RR. III-56). Williams grabbed at the pistol, the two struggled for a minute, 

and the gun fired (RR. III-53). The shot was at close range, hit Williams at a very 

vulnerable location under his arm and penetrated his heart and lung before exiting 

the front of his chest (RR.-IV-170, 171, 180). Immediately afterwards, appellant 

fled the scene, hid his weapon, changed clothes, and eventually left for Dallas, 

never returning to his apartment (RR. IV-256). Appellant never contacted anyone 

about the shooting and was still in Dallas a month later when he was arrested (RR. 

III-271-272, IV-257). See Gosch v. State, 829 S.W.2d 775, 783 (Tex. Crim. App. 

1991) (holding intent to flee country probative of intent to murder). 
19

After his arrest appellant’s vastly different explanation of events, which 

were inconsistent with the statements from the other witnesses, also are evidence 

of his guilt. See Couchman v. State, 3 S.W.3d 155, 163–64 (Tex.App.—Fort Worth 

1999, pet. ref'd) (reasoning that a jury can infer that a defendant demonstrated a 

“consciousness of guilt” by lying about events surrounding the alleged crime); 

Winningham v. State, 334 S.W.3d 289, 309 (Tex.App. –Fort Worth 2010, pet. 

ref’d) (same). 

Appellant testified at trial that he didn’t know he had shot the defendant 

(RR. IV-248). The jury, however, was entitled to disbelieve appellant’s testimony, 

particularly given the evidence of appellant’s flight. Pena v. State, 441 S.W.3d 

635, 641 (Tex. App.—Houston [1 Dist.] 2014, pet. ref’d) (contradictions allowed a 

reasonable juror to doubt defendant’s version of events and conclude that 

defendant murdered victim and then posed the scene to attempt to indicate a 

suicide); Cantu v. State, 395 S.W.3d 202, 209 (Tex. App—Houston [1st Dist.] 

2012, pet. ref'd) (citing “inconsistencies in Cantu’s statements” and statements 

inconsistent with physical evidence as basis for rational juror to doubt Cantu’s 

defensive assertions). Furthermore, it is irrelevant if appellant knew he had 

actually shot Williams. The act of drawing, cocking, and firing the gun while it 

was pointed at Williams was sufficient to be an action clearly dangerous to human 

life. Godsey v. State, 719 S.W.2d 578 (Tex. Crim. App. 1986).
20

Appellant claims that “even the State’s own witnesses believed the gun 

accidentally discharged” (appellant’s brief, p. 17). However, neither Jones nor 

Lewis, the two witnesses to the crime, testified that the shooting was an accident. 

To the contrary, when asked “when [appellant] ran from the scene, locked his door 

and ran, do you know why he ran? Do you know why?” Lewis replied “He 

murdered somebody.” (RR. IV-57) (emphasis added). While Williams did struggle 

to defend himself, Lewis testified that appellant was the aggressor, that he cocked 

and ran towards Williams with the gun in his hand, that he hit Williams with the 

gun, and that Williams never grabbed the gun, only appellant’s wrist (RR. IV-121, 

125, 128). Lewis testified that appellant had possession of the gun at all times, 

including after the shooting, and that he took the gun with him when he left (RR. 

IV-129). See gen. Sloan v. State, 409 S.W.2d 412, 414 (Tex. Crim. App. 1966)

(statement of the witness that ‘The gun went off’ does not, under all the facts and 

circumstances, show an accidental killing).

Because there is evidence to support the jury’s finding that appellant had the 

required mental state to cause Williams’ death or commit an act clearly dangerous 

to human life which resulted in his death , the evidence is legally sufficient to 

support his conviction under Sections 19.02(b)(1) or (2). Jackson, 443 U.S. at 319, 

99 S.Ct. 2781. Appellant’s second point of error is without merit and should be 

overruled. 
21

CONCLUSION

It is respectfully submitted that all things are regular and the conviction 

should be affirmed.

DEVON ANDERSON

District Attorney

Harris County, Texas

/s/ Kimberly Aperauch Stelter

KIMBERLY APERAUCH STELTER

Assistant District Attorney

Harris County, Texas

TBC No. 19141400

stelter_kimberly@dao.hctx.net

CERTIFICATE OF SERVICE AND COMPLIANCE

This is to certify that: (a) the word count function of the computer program 

used to prepare this document reports that there are 5,471 words in it; and (b) a 

copy of the foregoing instrument will be served by efile.txcourts.gov to:

Casey Garret

Attorney at Law
22

1214 Heights Boulevard

Houston, Texas 77008

Casey.garrett@sbcglobal.net

/s/ Kimberly Aperauch Stelter

KIMBERLY APERAUCH STELTER

Assistant District Attorney

Harris County, Texas

TBC No. 19141400

stelter_kimberly@dao.hctx.net

Date: March 3, 2015