N O . 05

- 17 -00959- CR
In the Court of Appeals for the Fifth District of Texas

at Dallas

 ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ 

### D ARRYL 

### P AUL 

### G AMBLE 

### ,

A PPELLANT



### v. T HE 

### S TATE OF 

### T EXAS 

### ,

A PPELLEE

 ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ On Appeal from the Criminal District Court No. 1

Dallas County, Texas In Cause No. F17-54557-H

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### S TATE 

### ’ S 

### B RIEF

 ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳

F AITH J OHNSON N INA L. S CHERACH Criminal District Attorney Assistant District Attorney Dallas County, Texas State Bar No. 24100660 Frank Crowley Courts Building 133 N. Riverfront Boulevard, LB- 19 Dallas, Texas 75207-4399 (214) 653-3625 | (214) 653-3643 fax Nina.Scherach@dallascounty.org
Attorneys for the State of Te

xas ACCEPTED 05-17-00959-CR FIFTH COURT OF APPEALS

DALLAS, TEXAS 3/26/2018 11:25 AM LISA MATZ CLERKii T ABLE OF C ONTENTS T ABLE OF A UTHORITIES
................................ ................................ ................................ ....... iii S TATEMENT OF THE C ASE
................................ ................................ ................................ ..... 1 S TATEMENT OF THE F ACTS
................................ ................................ ................................ .... 1 S UMMARY OF A RGUMENTS
................................ ................................ ................................ .... 7 A RGUMENTS
................................ ................................ ................................ ............................ 7 Response to Appellant’s First Point of Error

................................ ................................ .......... 7 The State presented legally

- sufficient evidence to support Appellant’s conviction for burglary of a building.

................................ ................................ ............................. 7 A. Standard of Review

................................ ................................ ............................. 8 B. Applicable Law

................................ ................................ ................................ ..... 9 C. Application of Law to Facts

................................ ................................ ............. 11 Response to Appellant’s Second Point of Error

................................ ................................ ..... 14 Appellant failed to preserve this issue for appellate review because he did not timely object to the complained

- of photographs. Even if he did preserve this issue, the trial court did not abuse its discretion in overruling Appellant’s objection to the photographs. In the alternative, even if the trial court erred, Appellant was not harmed by the e rror. ................................ ................................ ... 14 A. Relevant Facts

................................ ................................ ................................ .... 14 B. Preservation of Error

................................ ................................ ........................ 16 C. Sta ndard of Review and Applicable Law

................................ ........................ 18 D. No Error

................................ ................................ ................................ ............ 19 E. No Harm

................................ ................................ ................................ ............ 22 P RAYER
................................ ................................ ................................ ................................ .. 24 C ERTIFICATE OF C OMPLIANCE
................................ ................................ ........................... 25 C ERTIFICATE OF S ERVICE
................................ ................................ ................................ .... 25iii T ABLE OF A

UTHORITIES
C ASES Adams v. State , 552 S.W.2d 812 (Tex. Crim. App . 1977)

................................ ............ 10, 13 Benedict v. State , No. 05

- 15

- 00958

- CR, 2016 WL 3742127 (Tex. App.

— Dallas July 7, 2016, pet. ref’d) (mem. op., not designated for publication)

.......................... 20 Clayton v. State , 235 S.W.3d 772 (Tex. Crim. App. 2007)

................................ ............... 8, 9 Davila v. State , Nos. 05

- 16

- 00225

- C R, 05

- 16

- 00226

- CR, 2017 WL 656473 (Tex. App.

— Dallas Feb. 17, 2017, no pet.) (mem. op., not designated for publication)

................................ ................................ ................................ ................. 16, 17 De La Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009).

................................ .......... 18 Earls v. State , 707 S.W.2d 82 (Tex. Crim. App. 1986)

................................ ............. 9, 10, 13 Francis v . State , 428 S.W.3d 850 (Tex. Crim. App. 2014)

................................ ...... 18, 19, 20 Fuller v. State , 253 S.W.3d 220 (Tex. Crim. App. 2008)

................................ .................... 16 Garza v. State , 841 S.W.2d 19 (Tex. App.

— Dallas 1992, no pet.)

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

................................ ........................ 9 Jackson v. Virginia , 443 U.S. 307 (1979)

................................ ................................ ...... 8, 9, 13 Johnson v. State , 673 S.W.2d 190 (Tex. Crim. App. 1984)

................................ ................... 9 King v. State , 953 S.W.2d 266 (Tex. Crim. App. 1997).

................................ ..................... 23 Kirksey v. State , 132 S.W.3d 49 (Tex. App.

— Beaumont 2004, no pet.)

.......................... 21 Lane v. State , 151 S.W.3d 188 (Tex. Crim. App. 2004)

................................ ............... 23, 24 Layton v. State , 280 S .W.3d 235 (Tex. Crim. App. 2009 )

................................ ............ 16, 17 Marmon v. State , 704 S.W.2d 90 (Tex. App.

— Dallas 1985, pet. ref’d)

............................ 10 Martinez v. State , 98 S.W.3d 189 (Tex. Crim. App. 2003)

................................ ........... 16, 17 Mendez v. Stat

e , 138 S.W.3d 334 (Tex. Crim. App. 2004)

................................ ................. 16iv

Middleton v. State , 187 S.W.3d 134 (Tex. App.

— Texarkana 2006, no pet.)

.................... 13 Montez v. State , 975 S.W.2d 370 (Tex. App.

— Dallas 1998, no pet.).

.............................. 23 Moore v. State , 999 S.W.2d 385 (Tex. Crim. App. 1999)

................................ ................... 16 Morales v. S tate , 32 S.W.3d 862 (Tex. Crim. App. 2000).

................................ .................. 23 Moses v. State, 105 S.W.3d 622 (Tex. Crim. App. 2003)

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

................................ ................... 23 Poncio v. State , 185 S.W.3d 904 (Tex. Crim. App. 2006)

................................ ................... 10 Ramsey v. State , 473 S.W.3d 805 (Te x. Crim. App. 2015)

................................ ............... 8, 9 Rendon v. State , No. 11

- 14

- 00080

- CR, 2016 WL 787150 (Tex. App.

— Eastland Feb. 25, 2016, pet. ref’d) (mem. op., not designated for publication)

....................... 21 Reyes v. State , 422 S.W.3d 18 (Tex. App.

— Waco 2013, pet. ref’d)

................................ .. 10 State v. LaRue , 108 S.W.3d 431 (Tex. App.

— Beaumont 2003), aff’d , 152 S.W.3d 95 (Tex. Crim. App. 2004)

................................ ................................ ................................ .... 20 Sutherlin v. State , 682 S.W.2d 546 (Tex. Crim. App. 1984)

................................ ............... 10 Taylor v. State , 508 S.W.2d 393 (Tex. Crim. App. 19 74)

................................ ................... 10 Taylor v. State, 268 S.W.3d 571 (Tex. Crim. App. 2008)

................................ ................... 18 Tillman v. State , 354 S.W.3d 425 (Tex. Crim. App. 2011)

................................ ................. 18
S TATUTES Tex. Code Crim. Proc. Ann. Art. 39.14 (West Supp. 2017)

................................ ...... 19, 21 Tex. Penal Code Ann. § 30.02 (West Supp. 2017)

................................ ......................... 1, 9
R ULES Tex. R. App. P. 33.1

................................ ................................ ................................ ............. 16 Tex. R. App. P. 44.2

................................ ................................ ................................ ....... 22, 231

T O T HE H ONORABLE C OURT OF A PPEALS : The State of Texas submits this brief in response to the brief of Appellant, Darryl Paul Gamble

. S TATEMENT OF THE C ASE Appellant was charged by indictment with burglary of a building. (C.R.: 8). See
Tex. Penal Co de Ann. § 30.02 (a), (c)(1) (West Supp. 2017 )

. The in dictment included

two enhancement paragraph s alleging Appellant had two prior state

- jail felony
convictions. (C.R. : 8 , 22, 46 ). Appellant pled not guilty to the charged offense, but a jury found him guilty. (C.R.: 62 ; R.R.3: 14 ). A ppellant pled true to the enhancement paragraphs , and the jury sentenced him to ten years’ confinement in the Institutional Division of the Texas Department of Criminal Ju stice. ( C.R.: 47, 68

– 71 ; R.R.3: 152

– 54, 164 , 174

). The trial court certified Appellan t’s right to appeal , and Appellant filed a timely notice of appeal. (C.R.: 72

– 73 , 76 ). Appellant did not file a motion for new
tria l. (C.R.: 1

– 88). This appeal followed.
S TATEMENT OF THE F ACTS At approximately 1:20 a.m. on May 7, 2017, Adriana Zetina, a ma nager of a U

Haul store on Ferguson Road in Dallas, Texas , was notified by the company’s security

team that a burglar had triggered her store’s security alarm . (R.R.3: 20

– 22 , 48

– 49 , 57 ). Appellant previously worked with Zetina at the same U

- Haul store . (R. R.3: 20

– 22, 43 , 5 3

– 5 4 ). After Zetina learned from the security team that the bur glar had left the store and she could safely enter, she drove there and met with responding Dallas Police2

Department (DPD) Officer Michael Slay and his partner

. (R.R.3: 50

– 51, 71 ). T he burglar had fled from the store by the tim e the officers arrived. (R.R.3: 71). Zetina pulled record ed footage of the burglary from the store’s surveillance camera s , and she and the officers watch ed it . (R.R.3: 23, 26

– 28 , 59, 71

– 72 ). During Zetina’ s testimony, the State played the DVD recording for the jury. (R.R.3: 28 ; SX 1 ).
The recording showed the burglar using rocks to shatter the glass door
entrance to the store . (R.R.3: 29, 59 ; SX 1 ). The burglar entered, exited, and reentered
the U

- Haul sto re at least five times . (R.R.3: 39

– 40 ). T he recording showed the burglar wearing orange or red

- colored gloves, black pants with a white stripe on the bottom portion of the leg , and a black jacket . (R.R.3: 29, 31; SX 1). It appeared to Zetina that the burgl ar was wearing two pairs of pants , with one layered on top of the other. (R.R.3: 35

– 36). Zetina testified that the jacket the burglar was wearing was a U

- Haul

issued jacket ; such jackets are brown or khaki

- colored on the outside and black on the inside. (R .R.3: 23

– 25, 44

– 45 ; SX 39). Zetina brought a U

- Haul jacket with her to court, which she demonstrated to the jury. (R.R.3: 24

– 25; SX 39). If turned inside

- out, the U

- Haul jacket display s a stitched black diamond pattern . (R.R.3: 25, 45

– 46). Zetina testified that the burglar in the recording had turned the U

- Haul jacket inside

out , and it was displaying the black diamond

- patterned stitching. ( R.R.3: 23

– 25, 45

– 46 ; SX 39 ). Officer Slay provided similar testimony regarding the burglar’ s distinctive
clothi ng. He testified that the DVD recording showed the burglar wearing a black3

stitched U

- Haul jacket that had been tu rned inside out. (R.R.3: 65

– 66 , 73

– 7 6 ; SX S 3, 39). Officer Slay further testified that the burglar wore multiple layers of pants, including black pa nts with a white stripe o n the bottom portion of the leg that ran from the calf to the ankle. (R.R.3: 59 , 64

– 68 ; SXS 2, 3 , 7, 8, 10

– 12 ). He noted that t he burglar wore black shoes with a white sole . (R.R.3: 68 , 79 ; SXS 2, 10 ). Finally, Officer Slay stat ed the burglar wore orange

- colored gloves and a white cloth over his face to conceal his identity . (R.R.3: 66 , 68, 72 ; SX S 4

– 6 , 11

– 13 ). After Zetina and the officers finished watching the surveillance recording , they compiled an inventory of th e stolen items. (R.R.3: 72). During the five trips in and out of the store, t he burglar stole money from the U

- Haul cash register, locks, a drill set, hitch balls, gloves, two dollies, yellow

- colored packages of Lysol wipes, a dark

- colored backpack with a brown bottom, and two sets of U

- Haul vehicle key s . (R.R.3: 30

– 40 , 46 , 60 , 66

– 67 ; SX S 7 , 9 ). T he burglar used one of the sets of keys to flee from the
store in a ten

- foot U

- Haul moving van. (R.R.3: 40

– 42). Zetina testifi ed that as a former employee , Appell ant would be familiar with the
U

- Haul store and, specifically, with the organizational system of how U

- Haul matches keys with vehicles . (R.R.3: 32

– 33). Zetina observed that a s she viewed the surveillance recording , the burglar “navigat[ed] easily” through the store. (R.R.3: 38). She specifically noted that the burglar easily enter ed and exit ed the store ’ s office. (R.R.3: 30, 39).4

After Officer Slay viewed the recording , he alert ed other DPD officers about
the stolen U

- Haul van and its license plate number

. (R.R.3: 60 , 72 ). Approximately two hours later, DPD Officer s Amy Anderson and Ch ristopher Slo ne stopped a van that displayed the same license plate number. (R.R.3: 60

– 61, 78, 82

– 8 6 , 102

– 03 , 106

– 10 ). The officers ordered the sole occupant , a black male who was seated in the
passenger ’s seat , to exit. (R.R.3: 86

– 87 , 104 , 110 ). The ma n told the officers that he was the driver of the van. (R.R.3: 87 , 104 ). Both officers identified Appellant in court as the driver. (R.R.3: 89

– 90 , 93 , 104

– 05 , 110

– 11 ).
The State offered O fficer Anderson’s recorded body cam era footage showing
her stop of Appellant , as well as still

- frame photographs of the footage . (R.R.3: 90

– 91 , 95

– 96; SXS 14

– 2 2 ). Officer Anderson provided testimony about the recording and
the still

- frame photogr aphs

. (R.R.3: 90

– 98). She testified that Appellant said he received the van from an unknown older gentleman. (R.R.3: 105

– 06). She further testified that as Appellant exited the van, a dark and tan

- colored jacket, similar to the black U

- Haul jacket provided by Zetina and demonstrate d by the State at trial , fell from Appellant’s lap to the ground. (R.R.3: 88, 94, 97

– 98; SXS 16, 18, 20, 21, 39). Officer Anderson stated that Appellant was wearing dark

- colored clothing, including dark

- colored pants with a white or gray strip e at the bottom of the leg . (R.R.3: 88, 92

– 93, 96; SX 14). Officer Anderson noticed that Appellant had “some change” on his person and rocks in his pocket. (R.R.3: 94

– 95, 99

– 100).5

The State also offered O fficer Slone’s recorded body cam era foo tage showi ng his stop of Appellant , and t he officer based his testimony on the recording . (R.R.3:
112

– 13 ; SX 23). Officer Slone testified that Appellant said he received the van from “some dude” at an unknown neighboring apartment complex. (R.R.3: 111

– 12 , 120

– 21 ). The officer further testified that w hen Appellant exited the van, a tan

- and

- black
U

- Haul jacket, similar to the U

- Haul jacket provided by Zetina and demonstrated by
the State at trial , fell f

rom Appellant’s lap. (R.R.3: 11 4

– 17 , 123, 1 24; SX 39 ). A s Officers Slone and Anderson took Appellant in to custody for possessing a stolen vehicle, Officer Slone noticed that Appellant was wearing three layers of pants . (R.R.3: 87, 115 , 121 ). Officer Slone conducted an inventory the U

- Haul van , in which he
locat ed ratchet straps, padlocks, Lysol wipes, trailer hitches , dollies, drill battery packs, and a dark

- colored backpack . (R.R.3: 116

– 20 ). Officer Slay and his partner drove to O fficer Anderson ’s and Officer Slone ’s
location . (R.R.3: 61 , 77 , 98

– 99 , 117 ). Sinc e Officer Slay had the opportunity to observe the burglary suspect on the U

- Haul store surveillance recording , he quickly was able to identify Appellant as the burglar . (R.R.3: 61 , 77 , 99 , 117

– 18 ). Officer Slay specifically testified that Appellant was wea ring the same clothing as the burglar in the video

— including the same black

- and

- white shoes and the same distinctive pants with a white stripe running from the calf to the ankle . (R.R.3: 61 , 78

– 79 ). Officer Slay testified that the U

- Haul van in Appellant ’s possession contained the same property that had been stolen from the Ferguson Road U

- Haul store just hours earlier . (R.R.3:6

61

– 62). Officer Slay arrested Appellant and searched him . (R.R.3: 62). He testified
that Appellant was wearing several pairs of pan ts, just like the burglar in the
surveillance recording . (R.R.3: 63, 67).
A jail intake property custodian , Dorothea Simon, testified about the property that officers seized from Appellant while booking him into the jail. (R.R.3: 125

– 3 1 ).
Simon brought Ap pellant’s seized property with her to trial . (R.R.3: 126

– 27). The State offered and the trial court admitted photographs of the property , as well as the
actual physical property
. 1 (R.R.3: 127

– 28; SXS 24

– 38, 40). Simon testified that Appellant’s physical pr operty included three pairs of pants, a pair of shoes, a backpack, Lysol wipes, and an orange glove. (R.R.3: 128

– 30; SX S 36, 37). She explained that t he pants included a black pair, a navy

- blue pair, and a blue jean pair ; one of the pairs displayed a gray or white stripe running from the calf to the ankle. (R.R.3: 129). Appellant’s shoes w ere black in color with a white or gray sole. (R.R.3: 129). Simon stated that Appellant’s backpack was navy

- blue in color with a beige bottom. (R.R.3: 129; SX 37). She tes tified that the State’s photographs of the black pants with the white stripe, the Lysol wipes, the navy

- and

- beige backpack, and the orange glove depicted the same physical items in State’s Exhibit 40 . (R.R.3: 1 29

– 30).

1 The trial court admitted the physical property, State’s Exhibit 40, for demonstrative purposes only.7 S UMMARY OF A RGUMENT S Response to App

ellant’s First Point of Error The State presented legally

- sufficient evidence to support Appellant’s conviction for burglary of a building over his claim that he i s not the person who burglarized the Ferguson Road U

- Haul store
. The State proved Appellant c ommitted the offense beyond a reasonable doubt, and the jury rationally found him guilty as charged in the indictment.

Response to Appellant’s Second Point of Error Appellant failed to preserve this issue for appellate review. Even if he preserve d
this iss ue, t he trial court did not abuse its discretion in admitting photographs of Appellant ’s property seized at jail intake because the State did no t violate a discovery order or willfully and untimely disclose the photographs. In the alternative, even
assumin g the trial court erred, Appellant was not harmed because admission of the complained

- of photographs did not affect his substantial rights

.
A RGUMENT S Response to Appellant’s First Point of Error The State presented legally

- sufficient evidence to support Appellant’s conviction for burglary of a building. In his first point of error, Appellant argues the State failed to prove his identity as the burglar of the Ferguson Road U

- Haul store . Appellant’s Br. at 3

– 4

. He specifically complains that the U

- Haul su rveillance recording does not show the race,8

gender, or any other identifying marks of the burglar . Appellant’ s Br. at 3

– 4

. Appellant contends that even though police officers apprehended him just two hours after the burglary , as he drove the stolen U

- Haul van containing stolen U

- Haul merchandise, this does not prov e he wa s the burglar . Appellant’s Br. at 4

– 5. He argues the evidence proves he is guilty of only possessing stolen items and , thus, this Court should vacate his instant conviction and enter a jud gment of acquittal . Appellant’s Br.
at 5. Appellant’s issue has no merit

.
A. Standard of Review When examining the legal sufficiency of the evidence, an appellate court considers the combined and cumulative force of all admitted evidence in the light
most fav orable to the conviction to determine whether, based on the evidence and reasonable inferences therefrom, a rational trier of fact could have found each element of the offense beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307,
318

– 19 (1979); Ramsey v. State , 473 S.W.3d 805, 808 (Tex. Crim. App. 2015) . This standard gives full responsibility to the trier of fact to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from basic facts to
ultimate facts. Jackson , 443 U.S. at 319 ; Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)

. The trier of fac t is the exclusive judge of the credibility and weight of the evidence and is permitted to draw any reasonable inference from the evidence that is9

supported by the record. Ramsey , 473 S.W.3d at 808 . The court on appeal presumes the jury resolved any conflicting inferences in favor of the prosecution and defers to
that resolution. Jackson , 443 U.S. at 326 ; Clayton , 235 S.W.3d at 778 . Direct evidence and circumstantial evidence are equally probative; circumstantial evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the incriminating ci rcumstances is sufficient to support the conviction. Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) . The appellate cour t must defer to the fact finder’s credibility and weight determinations. See Jackson, 443 U.S. at 326

.
B. Applicable Law To obtain a conviction for burglary of a building , the State must prove that (1) the person charged with the offense , (2) entered a building not then open to the public , (3) without the effective consent of the owner , and (4) with the intent to commit a felony or theft. Tex. Penal Code Ann. § 30.02 (a), (c)(1 ) ; Garza v. State , 841 S.W.2d 19, 21

– 22 (Tex. App.

— Dallas 1992, no pet.)

. T he State must prov e beyond a reasonable doubt that the defendant is the person who committed the charged offense

. Johnson v. State , 673 S.W.2d 190, 196

– 97 (Tex. Crim. App. 1984)

. The Court of Criminal Appeals has held that “[e] vidence as to the identity of the perpetrator of an offense can be proved by direct or
circumstant

ial evidence ” as well as reasonable inferences from such evidence. Earls v.
State , 707 S.W.2d 82, 85 (Tex. Crim. App. 1986)

. An e yewitness identification is not10

required

. Id

. C ircumstantial evidence is sufficient to support a conviction for burglary of a building. Taylor v. State , 508 S.W.2d 393, 397 (Tex. Crim. App. 19 74)

. The Court of Criminal Appeals has found that when no witness c an identify a suspect in a burglary case, “[the] defendan t’s unexplained possession of property recently stolen in a burglary permits an inference that the defendant is the one who committed the burglary. ” Poncio v. State , 185 S.W.3d 9 04, 905 (Tex. Crim. App. 2006) ( holding inference that defendant was burglar was permitted because he pawned property stolen from a burglarized home thirty minutes after the offense ). B efore the factfind er may draw such an inference, however, the State must first establish the defendant’s possession was “personal, recent, unexplained, and involved a distinct and conscious assertion of right to the property by the defendant.” Sutherlin v. State, 682 S.W.2d 5 46, 549 (Tex. Crim. App. 1984)

. Generally, if a defendant provides an explanation for his possession of stolen proper ty, the record must demonstrate the explanation is false or unreasonable before the evidence to support a conviction will be deemed sufficient. Adams v. State, 552 S.W.2d 812, 815 (Tex. Crim. App. 1977) ; Reyes v. State, 422 S.W.3d 18, 24 (Tex. App.

— Waco 2013, pet. ref’d) . The false nature of the defendant’s explanation may be shown by circumstantial evidence. Adams, 552 S.W.2d at 815 . Whether a defendant’s explanation for possession of recently stolen property is true or reasonable is an issue to be determined by the fact finder. Id. ; Marmon v. State, 704 S.W .2d 90, 92 (Tex. App.

— Dallas 1985, pet. ref’d)

.11

C. Application of Law to Facts The cumulative force of all of the evidence presented by the State prove d
A ppellant wa s the person who burglarized the Ferguson Road U

- Haul store

. The
surveillance recording showed that t he burglar used rocks to shatter the front door of
the U

- Haul store to gain entry

. When officers apprehend ed Appellant, they found
rocks in his pockets. Zetina and Officer Slay watched and testified about the
surveillance recording . Zetina opined that the burglar could have been a former employee because the burglar knew how and where items were stored , and easily navigate d the store. Appellant pr eviously worked at the very same burglarized U

- Haul store with Zetina. Two hours after the burglary, Officers Anderson and Slone initiated a traffic stop of a U

- Haul van with the same license plate number as the U

- Haul that Officer Slay reported as stolen

. Appella nt was the sole occupant and the driver. Office rs Anderson and Slone noted the stolen U

- Haul contained a large amount of U

- Haul merchandise, including items they learned Zetina and Officer Slay saw the suspect stealing from the store on the survei llance recording , namely several packages of Lysol disinfectant wipes with yellow lid s and a dark

- colored backpack with a beige bottom

. Later when Appellant was placed into custody and booked into jail, officers seized a
navy

- blue backpack wit h a beige bot tom, Lysol wipes , and an orange glove from him

. Further, Appellant was wearing the same dist inctive clothing as the burglar i n the surveillance recording . Specifically, he was wearing black pants with a stripe running12

from the ankle to the calf, multiple l ayers of pants, and black shoes with white or gray
soles. Zetina and Officer Slay provid ed corroborating descriptions of the burglar’s distinctive clothing as shown on the surveillance recording. Specifically, the burglar in
the recording wore multiple lay ers of pants, including black pants with a white stripe running from the ankle to the calf

. When O fficers Anderson and Slay apprehended Appellant, he was wearing black pants with a white stripe running from the ankle to
the calf

— identical to the pants of t he burglar captured on the surveillance recording. Officers Slone and Slay observed that Appellant was also wearing multiple layers o f pants, just like the burglar. The burglar in the recording a lso wore a black and khaki

- colored U

- Haul jacket with unique stitching

. After Officers Anderson and Slone stopped the stolen U

- Haul van and ordered Appellant to exit , they saw a black

- and

- tan jacket

— lik e the jacket the burglar i n the recording wore

— f a ll from Appellant’s lap

. Additionally, t he burglar in
the recordi ng wore black shoes with white soles. The burglar also wore orange or red

colored gloves. Officer Slay , after having viewed the recording and Appellant in
person, testified that Appellant was wearing the same shoes and clothing as the burglar in the survei llance recording. Officer Slay identified Appellant as the burglary
suspec t. As officers booked Appellant into jail, they seized his clothing : multiple pairs of pants, including distinct black pants with a white stripe on the leg ; a black

- an d

- tan U

- Haul ja cket; a pair of bla ck shoes with white or gray sole s ; and an orange glove.13

Finally, although Appellant explained to the officers that he received the U

Haul van and its contents from an unknown man a t an unknown apartment complex,

t he jur y could have foun d Appellant’s vague and illogical explanation for his possession of the stolen property and stolen van unreasonable in light of the totality of the evidence presented

. See Adams , 552 S.W.2d at 815

. Therefore, the jurors could have reasonably inferred Appellant’s guilt as the U

- Haul store burglar based on his personal and recent possession of items stolen in the U

- Haul burglary. See Middleton v.
State , 187 S.W.3d 134, 139 (Tex. App.

— Texarkana 2 006, no pet.) ( hol ding that appellant’s possession of property stolen during burglary , three days after the offense, qualified as “personal, rece nt, and unexplained possession” sufficient to support the appellant ’s conviction

). While circumstantial, the evidence inculpates Appellant as the burglar

. See Earls

, 707 S.W.2d at 85 (finding that direct or circumstantial evidence can prove the identity of a suspect)

. The jury heard the testimony of all the witnesses and resol ved any conflicting
inferences. The appellate court must defer to t he fact finder’s credibility and weight
determinations. See Jackson , 443 U.S. at 326 . Reviewing all the evidence presented at trial in this case in the light most favorable to the prosecution, this Court should determine that the jury rationally found the essential elements of the charged offense beyond a reasonable doubt and found against Appellant on his identity issue beyond a reasonable doubt. This Court should overrule Appellant’s first issue.14 Respon se to Appellant’s Second Point of Error Appellant failed to preserve this issue for appellate review because he did not timely object to the complained

- of photographs. Even if he did preserve this issue, the trial court did not abuse its discretion in over ruling Appellant’s objection to the photographs. In the alternative, even if the trial court erred, Appellant was not harmed by the error. In his second point of error , Appellant contends the trial court erred by admitting photographs of his clothing and property that officers seized when he was booked into jail and that the trial court ’s admission of them harmed and prejudiced
him. Appellant’s Br. at 3, 6

– 7. Appellant’s claims lack merit.

A. Relevant Facts The morning of trial and after the jury had been sel ected , Appellant’s trial

coun sel objected to photographs offered by the State depict ing Appellant’s clothing and property that officers seized during jail intake. (R.R.3: 8

– 12). Counsel argued that despite his motion requesting discovery filed on July 21, 2017 , the State untimely provided the photographs on July 24, 2017, the day before trial began on July 25,
2017

. ( C.R.: 31

– 33; R.R.3: 8

– 12 ). In support of his objection, counsel argued that because the State’s case relied heavily on Appellant’s clothing a nd property to link him to the offense, the photographs were highly prejudicial. (R.R.3: 9, 11

– 12). The trial court noted, “[O] bviously he got arrested in his clothes, and that’s been no surprise since he got arrested.” (R.R.3: 12). The trial court then as ked Appellant’s counsel if the15

photographs surprised him such that he could not defend against them or evaluate the evidence. (R.R.3: 9, 12). Counsel responded that the photographs were a surprise to
him and , had he known the State possessed them, he may h ave pursued a plea bargain. (R.R.3: 9, 12). The trial court overruled co unsel’s objection and found the State timely provided counsel the photographs in response to his discovery motion. (R.R.3: 9, 11

– 12). During trial, t he State offered the photographs a t issue as State’s Exhibits 24 through 38 as follows:

[THE STATE]: Your Honor, can I

– sorry. I’m going to go ahead and offer State’s Exhibits No. 24 through 38 into evidence. These are the photographs taken of the contents of these bags that are [Appel lant’s] property and personal items. [ TRIAL COUNSEL]: No objections.
THE COURT: They’re admitted. (R.R.3: 127

– 28). Prior to offering the photographs, the State also offered the actual physical property as evidence, which the trial court admitt ed for de monstrative
purposes . (R.R.3: 127 ; SX 40 ). Dorothea Simon, t he jail intake property manager and custodian of Appellan t’s property , testified at trial that the photographs accurately depicted Appellant’s physical property. (R.R.3: 128).16

B. Preservation of Err or To preserve a complaint for appellate review, a party must have presented to the trial court a timely and specific request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the

re quest, objection, or motion. Tex. R. App. P. 33.1(a)(1); Layton v. State , 280 S.W.3d 235, 238

– 39 (Tex. Crim. App. 2009)

. The Court of Criminal Appeals has held that “[a] specific objection is necessary to inform the trial judge of the issue and basis of the objection, and to allow the judge a chance to rule on the is sue at hand.” Layton , 280 S.W.3d at 239 (citations omitted ) . Further, the trial court must have ruled on the request, objecti on, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2) ; Mendez v. State, 138 S.W.3d 334, 338 , 341 (Tex. Crim. App. 2004)

. The Court of Criminal Appeals has held that almost all error, even constitutional error, may be forfeited if the party failed to object. Fuller v. State , 253 S.W.3d 220, 232 (Tex. Crim. App. 2008)

. An objection is timely if a party makes it at the earliest opportunity or as soon as the grounds for an objection become apparent. Moore v. State , 999 S.W.2d 385, 403 (Tex. Crim. App. 1999)

. A s a general rule, to preserve error, a party must continue to object each time inadmissible evidence is offered. Martinez v. State , 98 S.W.3d 189, 193 (Tex. Crim. App. 2003 ) ; see also Davila v. State , Nos. 05

- 16

- 00225

- CR, 05

- 16

- 00226

- CR, 2017 WL 656473, at *2 (Tex. App.

— Dallas Feb. 17, 2017, no pet.) (mem. op., not designated17

for publ ication) (citing Martinez , 98 S.W.3d at 193 , and holding that the appellant’s single objection failed to preserve issue for appellate review ) . Texas courts recognize

t wo exceptions to this rule: (1) counsel obtained a running objection, or (2) counsel requested a hearing outside the presence of the jury. Martinez , 98 S.W.3d at 193

. Here, Appellant argues that the trial court erred by admitting the photographs of Appellant’s property and clothing

. Although Appellant objected to the photographs prior to trial, Appellant failed to lodge any further ob jections to the evidence

. Indeed, most importantly, h e did not object when the State offered the evidence at issue during trial

. (R.R.3: 127

– 28). Appellant’s sole objection, therefore ,

was not timely made and preserved nothing for review. See Martinez , 98 S.W.3d at 193 ; Davila , 2017 WL 656473, at *2

. Further, Appellant neither obtain ed a running objection to the photographs , nor requested a hearing outside the presence of the jury to challenge the photographs
at issue when the prosecutor offered them

. See Martinez , 98 S.W.3d at 193. Under these circumstances, Appellant has failed to preserve his second issue for appellate review, and this Court should overrule it. See Layton , 280 S.W.3d at 239

. In the e vent that this Honorable Court deems this issue preserved for review, the State responds to
it below

.18

C. Standard of Review and Applicable Law A n appellate court reviews the trial court’s decision to admit or exclude evidence under an abuse of discretion st andard. Tillman v. State , 354 S.W.3d 425, 435 (Tex. Crim. App. 2011) ; see Francis v. State , 428 S.W.3d 850, 854

– 55 (Tex. Cr im. App. 2014) (applying abuse of discretion standard to the trial court’s decision to admit or exclude evidence where the prosecutor allegedly withheld evidence , and find ing evidence willfully withheld despite the court’s discovery order should be excluded )

. Specifically regarding claim s of trial court error f or failure to exclude allegedly withheld evidence, the Court of Criminal Appeals has held that extreme negligence or even recklessness by a prosecutor in failing to comply with a discovery order “will not, standing alone, justify the sanction of excluding relevant evidence.” Francis , 428 S.W.3d at 855. A trial court does not abuse its discretion if its ruling is within the “zone of reasonable disagreement.” Tillman , 354 S.W.3d at 435 ; Fran cis , 428 S.W.3d at 855

. A trial court abuses its discretion only if its decision is “so clearly wrong as to lie outside
th e zone within which reasonable people might disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008) . A trial c ourt does not abuse its discretion if any evidence supports its decision. Francis , 428 S.W.3d at 855

. An appellate court should uphold the trial court’s evidentiary ruling if it was correct on any theory of law applicable to the case. See De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009). Add itionally, absent a clear abuse of discretion, a reviewing court may not19

substitute its own decision for that of the trial judge. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003)

. Article 39.14 of the Texas Code of Criminal Procedure requires that a prosecutor produce discovery to a defendant “as soon as practicable after receiving a timely request from the defendant.” T ex. Code Crim. Proc. Ann. Art. 39.14(a ) (West Supp . 2017)

.
D. No Error
O n July 21, 2017, Appellant’s trial counsel filed a mot ion requesting discovery. The record does not reflect that the trial court ruled on the motion or otherwise imposed deadlin es for disclosure of discovery. The prosecutor provided the photographs at issue to Appellant’s trial counsel on July 24, 2017, the d ay befor e trial began on July 25, 2017. The prosecutor provided counsel with the evidence three days
after he requested it. Citing Francis v. State , 428 S.W.3d 850, 854

– 55 (Tex. Crim. App. 2014), Appellant argues that because his trial counsel filed a moti on for discovery prior to trial and the Stat e did not timely provide the photographs , the trial court should have excluded them

. In Francis , three

- and

- one

- half

- months before trial, the trial court entered a discovery order requiring the State to provide th e defense an opportunity to inspect physical evidence. Francis , 428 S.W.3d at 855

. The prosecutor i n the case did not disclose the existence of a machete to the defense , and the defense fir st learned20

about the machete in court at trial where it was displayed as evidence. Id. The trial
court nonetheless refused to exclude the machete as evidence because it determined the prose cutor’s failure to disclose it was not willful

. Id. In upholding the trial court’s ruling, the Francis court explained that because a trial court should exclude evidence only to punish will ful prosecutorial misconduct, such a sanction is appropriate only upon a finding that the prosecutor willfully disregarded the court’s discovery order. Id. Appellant’s reliance on Francis i s misplaced because it is distinguishable from
the instant case. Here, unlike in Francis , the trial court did not issue a discovery order.
T here fore, there was no discovery order for the prosecutor to violate

. See id. at 859

– 60 ; s ee, e.g. , Benedict v. State , No. 05

- 15

- 00958

- CR, 2016 WL 37421 27, at *5 (Tex. App.

— Dallas July 7, 2016, pet. ref’d) (mem. op., not designated for publication) ( discus sing Francis and Texas Code of Criminal Procedure A rticle 39.14, and finding that because the trial court did not enter an order grant ing appellant’s motion for discovery, there was no discovery order for the prosecuto r to violate). Accordingly,
Francis pr ovides no guidance in this case

. Furthermore, e ven if the trial court had granted Appellant’s request and entered a discovery order , Appellant has not shown the prosecutor willfully disclosed the photographs in an untimely manner or intended to harm the de fense. See Francis , 428 S.W.3d at 855 ; see also State v. LaRue , 108 S.W.3d 43 1, 434 (Tex. App.

— Beaumont
2003 ) , aff’d

, 152 S.W.3d 95 (Tex. Crim. App. 2004) (noting an act is willful if done voluntarily and intentionally, with the specific intent to disobey the law). Here, unlike21

in Francis , the prosecutor disclosed the photographs at issue in advance of trial. Appellant did not learn about them in court and at trial like in Francis

. Appellant points to no evidence in the r ecord that suggest s the prosecutor willful ly delayed disclosure of the photographs , and the State has not found any such evidence

. Therefore, because the prosecutor did not commit a willful act in connection to the disclosure of the photographs, and in fac t did disclose them, exclusion of them would

not have served any policy of punishment under Francis

. Moreover, t hree days between Appellant ’s discovery request on the eve of trial and his receipt of such discovery is not an unreasonable disclosur e time , such that the trial court should have excluded the photo graph s . The State is unaware of any authority that imposes time deadline s on the State for disclosure in such a situation , and Appellant has not provided this Court with any such authority

. Indeed, Article 39.14 of the Texas Code of Criminal Procedure requires only that a prosecutor produce discovery to a defendant “as soon as practicable after receiving a timely request from the defendant.” Tex. Code Crim. Proc. Ann. Art. 39.14(a) ; s ee Kirksey v.
State , 132 S .W.3d 49, 54

– 55 (Tex. App.

— Beaumont 2004, no pet.) (finding where trial court’s discovery order did not include a deadline for disclosure, prosecutor’s production of photographs immediately prior to witness’ testimony was deemed timely ) ; see e.g. , Rendon v. State , No. 11

- 14

- 00080

- CR, 2016 WL 787 1 50, at *2

- 3 (Tex. App.

— Eastland Feb. 25, 2016 , pet. ref’d) (mem. op., not designated for publication) (finding trial c ourt did not abuse its discretion by admitting evidence that prosecutor22

provided to defense on the day of trial and, in distinguishing Francis , noting no willful action by prosecutor). Here, the trial court did not set a deadline for disclosure and
the Sta te disclosed the evidence before trial started; t herefore, the trial court acted within its discretion by finding that the State had timely provided the photographs to the defense. Through its ruling, the trial court ex plicitly found the State did not c ommit a discovery violation and had timely responded to trial counsel’s discovery request. The trial court reasonably found that trial counsel sh ould have anticipated photographs of Appellant’s clothing because Appellant had been arrested wearing the same clothes and booked into jail. Because Appellant has failed to show the State willfully disclosed evidence in an untimely manner , such that the trial court should have excluded it, this Court should find that the trial court did not abuse its discretion in admitting the photographs , and should overrule Appellant’s second issue

.
E. No Harm Even if this Honorable Court finds that the trial court erred by admitting the photographs of Appellant ’s clothing and personal items , Appellant suffered no harm

. Beca use Appellant is complaining about the admission of evidence, the proper standard of review is that for non

- constitutional error as provided in Texas Rule of Appellant Procedure 44.2(b), which requires that any error, defect, irregularity, or
variance that does not affect substantial rights must be disregarded. See Tex. R. App.23

P. 44.2(b); Morales v. State , 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). A substantial right is affected when the error had a “substantial and injurious” effect or influence in determining the jury’s verdict or when the error leaves one in grave doubt about whether it had such an effect. Montez v. State , 975 S.W.2d 370, 373 (Tex. App.

— Dallas 1998, no pet.). “A substantial right is not affected a nd the error is harmless if, after reviewing the entire record, the appellate court determines that the error did not influence, or had only a slight influence, on the trial outcome.” Id

. Thus, under Rule 44.2(b), unless the error had a substantial and injurious effect or influence in determining the verdict, the error will not constitute reversible error. Tex. R. App. P. 44.2(b) ; King v. State , 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). When conducting a harm analysis under Rule 44.2(b), everything in the record, including evidence of a defendant’s guilt, is a factor to be considered. Motilla v. State , 78 S.W.3d 352, 357 (Tex. Crim. App. 2002). Moreover, the Court of Criminal Appeals has held that regarding erroneous admission of evidence, any error “is cured where the same evidence comes
in elsewher e without objection.” Lane v. State , 151 S.W.3d 188, 193 (Tex. Crim. App. 2004)

. Here, Appellant assert s his trial counsel would have changed his trial strategies had the State timely provided the photographs. Appellant’s Br. at 7. He fails to demonstrate harm. During trial, a fter jail property custodian Simon discussed the photographs of Appellant’s clothing , she demonstrated Appe llant’s physical clothing and personal property to the jurors

. Counsel did not object to Simon’s demonstration24

of the evidence. As Simon testified, the State’s photo graph s of Appellant’s clothing and property accurately depicted the physical items. P ursuan t to Lane , even if the trial court erred by admitting the photographs at issue, Appellant has failed to demonstrate
harm to his case because the jurors still would have seen the physical items of evidence. See id

. Therefore, Appellant has not established that the admission of the photographs had a substantial or injurious effect on influencing the jurors. Moreover, a review of the entire record reveals that, while circumstantial, the entirety of the evidence of Appellant’s guilt w as overwhelming. As discussed in response to Appellant’s first issue, above, t he witness es’ testimony and still

- frame photo graph s of the burglary and Appellant’s arrest constituted sufficient evidence for the jury to f

ind him guilty. Accordingly, even absent the State’s photographs of Appellant’s clothing and property , the jury would have convicted Appellant of the charged offense

. Therefore, any error in admitting Appellant’s photographs was harmless, and this Court sh ould overrule Appellant’s second issue

.

P RAYER The State prays that this Honorable Court will affirm the trial court’s judgment.25 Res pectfully submitted,
/ S / Nina L. Scherach

__________ F AITH J OHNSON N INA L. S CHERACH Criminal District Attorn ey Assistant District Attorney Dallas County, Texas State Bar No. 24100660 Frank Crowley Courts Building 133 N. Riverfront Boulevard, LB

- 19 Dallas, Texas 75207

- 4399 (214) 653

- 3625 | (214) 653

- 3643 fax Nina.Scherach@dallascounty.org

C ERTIFICATE OF C OMPLIANCE I certify that this brief contain s 6, 0 08 words. This word count includes all necessary parts outlined in Texas Rule of Appellate Procedure 9.4(i)(1), and it was conducted with Microsoft Word, which was used to compose this brief

. / S / Nina L. Scherach

__________ N INA L. S CHERACH

C ERTIFICATE OF S ERVICE I certify that a true copy of this brief was served on Shara D. Saget , as appellate
counsel for Darryl Paul Gamble . Service was made via eFile to Shara.Saget @gmail.com on March 26 , 2018

. / S / Nina L. Scherach

__________ N INA L. S CHERACH