Affirmed as Modified; Opinion Filed August 4, 2015.

In The 

## Court of Appeals Fifth District of Texas at Dallas

No. 05
- 14
- 01365
- CR TERRANCE GERMAINE WI LKINS , Appellant

V. THE STATE OF TEXAS , Appellee On Appeal from the Criminal District Court No. 6

Dallas County, Texas Trial Court Cause No. F10
- 62224
- X 

### MEMORANDUM OPINION Before Justices Fillmore, Myers, and Evans Opinion by Justice Myers A jury convicted appellant Terrance Germaine Wilk ins of the capital murder of Carlon Hellner, a nd the trial court imposed an automatic sentence of life imprisonment without the possibility of parole. 1 In twelv e issues, appellant challenges the sufficiency of the evidence, the denial of various motion s f or mistrial , and several ruling s on evidentiary issues. As modified, we affirm the trial court’s judgment.
B ACKGROUND AND P ROCEDURAL H ISTORY Sarah Malesky testified that she and the decedent, Carlon Hellner, lived together in the apartment where Hellner’s body was found. She had known him for five years and lived with him for four months before he was killed. Malesky described her relationshi p with Hellner as a

1 The State did not seek the death penalty.– 2

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“father

- daughter” type of relationship. Malesky admitted she a nd Hellner sold marijuana out of the apartment

. Hellner dr o ve for Malesky , t ook phone calls for her, and protect ed her. The apartment next door was a “trap ” h ouse where illegal narcotics were sold. Appellant

–– Malesky and Hellner called him “Youngster”

–– sold crack and cocaine out of this apartment

. Malesky had known appellant for approximately a month at the time of these events

. Appellant sold some crack cocaine to Hellner before his death. Hellner had attempted to quit his

c rack habit and was clean for six years, but he relapsed and began using crack again in October
2010 , around the time the trap house opened

. A man named “ Short y” or “Nate” ran the tra p house ; appellant worked for him

. Malesky said that appellant had been in the apartment with her once. Malesky did not know if appellant spent a lot of time in the apartment with Hellner when she was not there. She said Hellner would give appellant ri des to another apartment complex, and appellant would pay him with a “ nickel ” rock (five dollars’ worth) of crack. Malesky had also given appellant a ride in her car at least once. According to Malesky, Hellner would get upset because appellant “was show ing up and knocking on the door a lot.” Malesky testified that on October 26, 2010, she was ill with a fever, sore throat, and coughing. She and Hellner always locked the ir front door and it was locked on this occasion. She took twice the recommended dos e of Theraflu, smoked some marijuana, and took Xanax. At around 6:00 p.m., she went to sleep with the lights on in her bedroom. She awakened to find appellant standing over her pointing a gun at her. He did not wear a mas k or try to hide his identity. Appellant demanded money and marijuana and picked up some change she had on her table. He asked Malesky where her stash was, and led her out into the living room. Malesky told appellant there might be some marijuana in the freezer. When he walked to the refrigerator, she tried to run, but appellant caught her by the arm and told her to stop playing. He forced her– 3

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into the bathroom, and as he was closing her door he looked Malesky “right in [her] eyes” and said, “Sarah, I am sorry about what happen [ sic ] to your daddy, but he started tripping.” Appellant then sh u t the door. When she thought it was safe, Malesky picked up a knife and went to check on Hellner. She could not get into Hellner’s room because the closet door was falling over and barricadin g the door to the bedroom. She pushed the door open and saw Hellner lying on the floor. She shook him by his left shoulder and touched his neck but felt no pulse. When she saw he was not breathing, Malesky pulled a cell phone out of Hellner’s pants pock et and called 911. After she called 911, she took the marijuana that was hidden under Hellner’s mattress and put it in her bedroom. Malesky said she did not see Hellner get shot. Dallas Police Officer Timothy Gilliam was the first officer to arrive at th e scene. He knocked on the door of the apartment in question, and the door was opened by Malesky. Malesky was frantic, crying, and appeared to be in a state of shock. Malesky led the officer to a bedroom. The door was partially open, but there was an ob ject in front of the door that prevented it from being opened completely. When the paramedics pushed the object away, the officer saw Hellner lying on the floor between the bed and a chair. He appeared to have been shot. The paramedics subsequently told the officer they were unable to resuscitate Hellner and believed he was dead. Detective Will Vick was dispatched to the apartment, where he met with Malesky and the patrol officers. Detective Vick observed that there was no forced entry into the apartmen t. As he did an initial walk

- through of the apartment, Detective Vick noticed that the freezer door was open, a closet door was off of its hinges, and a chair was knocked over. A glass table near Hellner ’ s bed had been knocked askew, and held a crack pip e and a “ drug baggie. ” There was a knife on the nightstand by the bed in Malesky’s bedroom . Several “baggies” of ma rijuana, an– 4

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aluminum container, a digital scale, and a grinder were found in her bedroom closet. Detective Vick also found two empty presc ription bottles , for hydrocodone and Alprazolam , in Malesky’s
bedroom

. No firearms, bullets or other ammunition were found in the apartment. There were no blood spatters , blood stains, or latent fingerprints found in the apartment

. Malesky admitted that when she talked with the detectives she tried to cover up the drug activity and did not tell them she was selling and using drugs. Although she initially told the police that $500, her purse (containing her keys) , and prescription me dication s (hydrocodone and Xanax) w ere missing from t he apartment, she subsequently found everything she had reported missing. In her interview with the police, Malesky said she knew nothing about the marijuana that the police found in the apartment and t hat it must have belonged to Hellner. When she testified, however, she admitted that she bought a pound of marijuana for about $450 a week before the incident. Malesky recalled telling the detective that Hellner must have let appellant into the apartment and that maybe they had been fighting about money or “ dope. ” Malesky was tested for gunshot residue at the police station. A trace evidence examiner testified that she examined the gunshot residue kit and found two prime r gunshot residue particles on the back of Malesky’s right hand. The examiner was unable to offer an opinion as to where the particles came from and how they were transferred.
Dr. Jill Urban, a forensic pathologist, testified about the autopsy that was pe rformed on Hellner. There were two gunshot wounds to Hellner’s right shoulder, with no exit wounds. The gunshot wounds resulted from a contact or close range shot, and it was difficult to determine if there had been a struggle. The toxicology report sho wed no cocaine present but Hellner’s blood
contained cocaine metabolites. Dr. Urban explained that the presence of cocaine metabolites indicate d it was likely Hellner had smoked or ingested cocaine several hours before he died. Although the EMS crew w as able to get an “electrically measured heart rhythm” while Hellner– 5

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was being transported to the hospital, he was not breathing and had no detectable pulse or respirations when he arrived at the hospital. Dr. Urban testified that an individual who sustained injuries like Hellner’s would be unlikely to survive more than a half hour, and probably “considerably less.” Hellner had a normal body temperature when he arrived at the hospital , which, according to Dr. Urban, indicated that the wounds were likely sust ained within minutes of his receiving EMS treatment. Dr. Urban further testified that a “head hair standard” and fingernail clippings from the left and right hands were taken from Hellner. She also testified , however, that when signing the final autopsy report she did not see any results from the crime lab for the fingernail clippings and did not think they were examined

. A t race evidence examiner testified that she examined Hellner’s clothing and found two
holes in th e right front shoulder of his t

- shirt. The examiner testified that there was a nitrate reaction, lead wipe, and vaporous lead reaction near the sites, indicating that the shots were within an eighteen to twenty

- four inch range. A trace evidence superviso r testified he examined the gunshot residue test performed on Hellner and that the test showed gunshot residue particles on the back of Hellner’s right hand. Appellant was aware the police were looking for him. He was arrested on the afternoon of November 15, 2010 , twenty days after the offense , and was interviewed that day by Dallas Police Detective Robert Quirk. During the interview, which was video taped and introduced at appellant’s trial, appellant told Detective Quirk Hellner had called him and that he was in the apartment that night to deliver drugs to Hellner. He admitted to waking up Malesky with a gun in his hand and looking for drugs in the freezer. Appellant said that he did not remain in the apartment because he had drugs on him and wanted to get rid of them that night. Appellant described his gun as a .38 0 pistol and said he later sold i t. Appellant repeatedly denied shooting Hellner . He claimed to have found Hellner on the floor in his bedroom when he arrived at the– 6

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apartment. Detective Quirk also testified that there was no DNA, gunshot residue, fingerprint, or other physical evidence linking appellant to the offense. Heather Thomas, a firearm and tool mark examiner for the Dallas County Crime lab , testified about the bullets that were f ired and examined as evidence. Thomas stated that there were two bullets, fired by the same gun, consistent with a .32 caliber revolver. The day after the medical examiner testified about the autopsy and the fact that the fingernail clippings taken from Hellner had not been tested , there was discussion among counsel and the court about several evidentiary matters including the fact that the fingernail clippings had not been tested. After discussing whether to test the clippings, the parties agreed that t he trial should continue while the tests were being performed. Th os e test results, which were reported to the court while the jury was deliberating its verdict, showed Hellner had biological material under the fingernails of his right hand that did not be long to appellant or Malesky. Appellant was convicted by the jury and sentenced to imprisonment for life without the possibility of parole. He subsequently filed a motion for new trial that a rgued newly

- discovered

or newly

- available evidence based on th e results of the DNA testing of the fingernail clippings that had been taken from Hellner during the autopsy. T he trial court granted a ppellant’s motion
for new trial

. We vacated the trial court’s order granting a new trial and reinstated the guilty verdict. See State v. Wilkins , No. 05

– 12

– 00154

– CR, 2014 WL 465820 , at *8 (Tex. App.

– – Dallas February 4, 2014, pet. ref’d) (not designated for publication). Appellant n ow pursu es the direct appeal of his criminal conviction.
D ISCUSSION I. Sufficiency of the Evidence In his first issue, appellant argues the evidence is insufficient to support the conviction. We review appellant’s sufficiency challenge by considering all the evidence in the light most– 7

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favorable to the verdict; based on that evidence and any reasonable inferences, we must determine whether a rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319 (1979); Thornton v. State , 425 S.W.3d 289, 303 (Tex. Crim . App. 2014). Under this standard, the fact finder has full responsibility for resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from basic facts to ultimate facts. Jackson , 443 U.S. at 319. We presume that the fact finder resolved any conflicts in the evidence in favor of the verdict and defer to that determination. See id . at 326. We do not reassess witness credibility. Thornton , 425 S.W.3d at
303. The indictment in this case alleged appellant committed capital murder by having shot and killed Carlon Hellner in the course of committing and attempting to commit aggravated robbery. Shortly before the start of voir dire, the State abandoned the aggravated robbery allegation and elected to proceed on the the ory that appellant committed capital murder in course of committing and attempting to commit robbery. The penal code provides that a person commits capital murder if he commits murder in the course of committing or attempting to commit robbery

. T EX
. P ENAL C ODE A NN . § 19.03(a)(2)

. A person commits robbery “ [i] f, in the course of committing theft . . . and with intent to obtain or maintain control of the property, he (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intenti onally or knowingly threatens or places another in fear of imminent bodily injury or death.” Id

. § 29.02(a). A person commits theft if he unlawfully appropriates property with the intent to deprive the owner of it. Id

. § 31.03(a). The court of criminal appeals has defined “in the course of committing” an offense as conduct occurring in an attempt to commit, during the commission of, or in the immediate flight after the attempt or commission of the robbery. Lincecum v. State , 736 S.W.2d 673, 680 (Tex.– 8

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C rim. App. 1987). W hen a person is charged with committing murder in the course of committing a robbery, “[e]vidence is sufficient to support a capital murder conviction if it shows an intent to obtain or maintain control of property which was formed before or contemporaneously with the murder.” Sheffield v. State , 189 S.W.3d 782, 791 (Tex. Crim. App. 2006). The State does not have to prove “that the appellant completed the theft of the victim in order to establish the underlying offense of robbery o r attempted robbery.” Young v. State , 283 S.W.3d 854, 862 (Tex. Crim. App. 2009 ). Instead , if there is evidence from which the jury rationally could conclude beyond a reasonable doubt that the defendant formed the intent to obtain or maintain control of the victim ’ s property either before or during the commission of the murder, then the State has proven that the murder occurred in the course of robbery. Alvarado v.
State , 912 S.W.2d 199, 207 (Tex. Crim. App. 1995). The jury may infer the requisite inten t to rob from circumstantial evidence, including the conduct of the defendant. Id .; see Young , 283 S.W.3d at 862. Appellant raises various arguments concerning why the evidence is insufficient to show
h e committed capital murder as charged in the indictme nt. He argues that the police accepted Malesky’s story as true and never inv estigated the case further

– – failing to test Malesky’s hands or clothing for gunshot residue at the crime scene, failing to examin e her bedroom or the baggies of marijuana for fingerprints, and failing to confiscat e Malesky’s cell phone and examining it for
calls and text messages

. Appellant also points out there i s no physical evidence

– – i.e., DNA, fingerprints, gunshot residue

– – tyin g him to the crime scene at the exact time Hellner was shot and killed. In addition, the only evidence of an alleged robbery or attempted robbery came from Malesky, who used drugs that night, sold drugs out of the apartment, changed her story of what happ ened , and “was more concerned about concealing her marijuana than getting help for her friend.” Appellant further argues nothing was stolen or attempted to be stolen from the victim at– 9

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the time of the murder ; Malesky reported the $500, her purse, and the medication as missing from the apartment, but she later found everything she had reported missing. We find these arguments unconvincing. Although appellant repeatedly attacks Malesky’s credibility as a witness, the jury was the ultimate judge of the weight and credibility of the evidence and was free to either accept or reject any or all evidence presented by either side. See
Sorto v. State , 173 S.W.3d 469, 475 (Tex. Crim. App. 2005) ; Lancon v. State , 253 S.W.3d 699 , 707 (Tex. Crim. App. 2008). As for the adequacy or inadequacy of the investigation, D etective Quirk’s testimony and appellant’s recorded statement show that appellant admitted he was in the apartment that night. At first, appellant repeatedly denied ha ving had a gun, but then, later in the interview, he admitted he was armed with a pistol. Appellant also admitted searching the freezer looking for marijuana , but he admitted this only after Detective Quirk asked appellant, in what the d etective described as an interrogation tactic, what appellant would say if the police found appellant’s fingerprints o n the refrigerator or f r eezer. A rational trier of fact could consider such statements by appellant, in connection with the other circumstances of the case , as affirmative evidence of guilt. See, e.g., Padilla v. State , 326 S.W.3d 195, 201

– 02 (Tex. Crim. App. 2010.
Moreover , a

ppellant admitted there was “bad blood” between himself and Hellner , and that Hellner called him and he spoke to Hellner a short tim e before the victim’s body was found. Appellant also admitted he ran from the police that night and that he k new the police were looking for him. It has long been recognized that a jury may infer guilt from the circumstance of flight. See, e.g., Clayton v. State , 235 S.W.3d 772, 780 (Tex. Crim. App. 2007) (citing Hardesty
v. State , 656 S.W.2d 73, 78 (Tex. Crim. App. 1983)). Additionally, while Hellner’s time of death could not be pinpointed, Dr. Urban, the forensic pathologist , testified that he had a normal body temperature, 98.9 degrees Fahrenheit, at 9:57 p.m., shortly after he arrived at the hospital

–– at a point when Hellner had no blood pressure,– 10

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pulse, or respirations. Dr. Urban added that the wounds were likely sustained minutes before Hellner w as treated by emergency medical personnel, and that his body temperature would have been lower than 98.9 degrees if more than an hour had passed since he died. Together with the other circumstances of this case , the jury could reasonably determine from such evidence that appellant was at the crime scene when Hellner was shot and killed. As for the argument that the record does not show appellant took or attempted to take any property, t he State was not required to prove appellant completed the thef t i n order to establish the underlying offense of robbery or attempted robbery. See Young , 283 S.W.3d at 862. Malesky testified that when she woke up

a ppellant immediately began demanding money and marijuana

. Other e vidence showed that Malesky and Helln er sold marijuana out of the apartment together , that they did so the entire time Malesky was at the apartment, and that they shared the apartment. Appellant cites evidence indicat ing that the marijuana was Malesky’s exclusive property, but the r esolution of conflicts and inconsistencies in the evidence was the province of the trier of fact. See Bowden v. State , 628 S.W.2d 782, 784 (Tex. Crim. App. 1982) (op. on reh ’ g).
I t is not our role to act as a “thirteenth juror” and disregard, realign, or reweigh the evidence in this case

. See Williams v. State , 235 S.W.3d 742, 750 (Tex. Crim. App. 2007);
Moreno v. State , 755 S.W.2d 866, 867 (Tex. Crim. App. 1988) (en banc). Our task i s limited to determining whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson , 443 U.S. at 319. Viewing the evidence in the light most favorable to the verdict, we conclude a reasona ble jury could conclude beyond a reasonable doubt that appellant committed the charged offense. We overrule appellant ’ s first issue.
II. Motions for Mistrial Second and Third Issues In his second and third issues, appellant contends the trial court shoul d have granted a– 11

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mistrial because the State did not disclose that Malesky’s “allegedly stolen property,” i.e., the $500, her purse (and its contents) , and her medication, was in fact found , and that the State’s
failure to disclose this fact violated its ob ligations under Brady

. See Brady v. Maryland , 373 U.S. 83 (1963). Appellant also faults the trial court for refusing to provide a curative instruction. We review a trial court ’ s denial of a motion for mistrial and refusal to give a curative instruction for an abuse of discretion. Hawkins v. State , 135 S.W.3d 72, 76

– 77 (Tex. Crim. App. 2004) (mistrial); Ladd v. State , 3 S.W.3d 547, 567 (Tex. Crim. App. 1999) (mistrial); Berrera v.
State , 291 S.W.3d 515, 518 (Tex. App.

– – Amarillo 2009, no pet.) (curative instruction). A mistrial is appropriate when error “is so prejudicial that expenditure of further time and expense would be wasteful and futile.” Hawkins , 135 S.W.3d at 77 (quoting Ladd , 3 S.W.3d at 567). “In effect, the trial court conducts an appella te function: determining whether improper conduct is so harmful that the case must be redone.” Id

. We uphold the trial court ’ s ruling if it was within the zone of reasonable disagreement. Coble v. State , 330 S.W.3d 253, 292 (Tex. Crim. App. 2010)

. “Onl y in extreme circumstances, where the prejudice is incurable, will a mistrial be required.” Hawkins , 135 S.W.3d at 77; see also Ocon v. State , 284 S.W.3d 880, 884

– 85 (Tex. Crim. App. 2009).
Pursuant to Brady , the State has an affirmative duty under the Du e Process Clause of the Fourteenth Amendment to disclose evidence that is favorable to the defendant and is material to a defendant’s guilt or punishment. Thomas v. State , 841 S.W.2d 399, 407 (Tex. Crim. App. 1992). To establish a Brady violation, a defendant must show: (1) the State failed to disclose evidence; (2) the withheld evidence was favorable to the defendant; and (3) the evidence is material, meaning there is a reasonable probability that, had the evidence been disclosed to th e defense, the result of the proceeding would have been different. Hampton v. State , 86 S.W.3d 603, 612 (Tex. Crim. App. 2002); Little v. State , 991 S.W.2d 864, 866 (Tex. Crim. App. 1999).– 12

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Favorable evidence is material if there is a reasonable probabilit y that had the evidence been disclosed to the defense, the outcome of the proceeding would have been different. Ex Parte
Kimes , 872 S.W.2d 700, 703 (Tex. Crim. App. 1993)

. A reasonable probability is a probability sufficient to undermine confidence in th e outcome of the trial. Id . at 702. The mere possibility that undisclosed evidence may have helped the defense or affected the trial ’ s outcome does not establish “materiality” in the constitutional sense. Hampton v. State , 86 S.W.3d 603, 612 (Tex. Crim. App. 2002). Whether the evidence is material is viewed in the context of the overall strength of the State ’ s case. Id . at 613. When, as in the present case, the alleged Brady material is discovered during trial, the inquiry is whether the defendant is p rejudiced by the late disclosure. Olivarez v. State , 171 S.W.3d 283, 290 (Tex. App.

– – Houston [14th Dist.] 2005, no pet.)

. If the defendant receives the material in time to put it to effective use at trial, his conviction should not be reversed simply bec ause it was not disclosed as early as it might or should have been. See i d. ; see also Khoshayand v. State , 179 S.W.3d 779, 783 (Tex. App.

– – Dallas 2005, no pet. ) ; Valdez v. State , No. 05

– 09

– 01093

– CR, 2010 WL 2636149, at *4 (Tex. App.

–– Dallas July 2, 2010, pet. dism’d) ( not designated for publication).
T he record shows Malesky testified on direct examination that she originally told the police that the $500 , her purse , and the other items were missing from the apartment , but that she later found her purse a nd the other items in her bedroom closet. She testified on cross examination that she called Detective Quirk and told him she had found the items that she originally thought were missing

. She could not recall precisely when th is call took place, but estimated it would have been around the 29th or 30th of October. On the following day, prior to the start of testimony, defense counsel moved for a mistrial based on having learned for the first time when Malesky was on the witness s tand that her purse, medication, and the other items were– 13

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recovered. He argued that this was Brady material that could have been used for impeachment, and that it would have been crucial in trial preparation, the voir dire of jurors, and in arguing for

a lesser

- included offense of murder if it could be proved that appellant “ didn ’t steal anything. ” Detective Quirk subsequently testified on cross - examination that th ere was nothing in his notes indicating he was contacted by Malesky regarding the recovery o f the missing property. Defense counsel asked, “Let me ask you, as far as the information in this case regarding the purse, the
dr ugs, the money, $500, were you ever contacted by Ms. Malesky indicating that that property had been found?” He replied, “Not that I recall. I have no notes on that.” The d etective also testified that the first time he learned the missing property had been found was “ about a month
ago during trial preparation meeting with the DA,” and that was “the first time I heard that she found her purse, she found her money and prescriptions.”
The State acknowledges in its brief that “the record is clear that the information regarding the erroneous nature of Malesky’s initial claims should have been provided to [a] ppellant’s
defense team more promptly.” During the discussion with the trial court that accompanied the motion for mistrial, the prosecutor told the court that they mistakenly believed they had provided the defense with copies of everything in their possession as part of their “open file” policy

. Nevertheless, the State argues the record shows appellant’s defense team received the
informat ion in sufficient time to put it to effective use at trial. We agree. The record reflects that defense counsel was able t o use Malesky’s admission regarding the recovery of the missing items during his cross - examination, pointing out she “went through” several meetings with detectives while maintaining that the items were missing , and that if she was mistaken about th os e mis sing items there might be other things about which Malesky was mistaken. In its closing argument, the defense cited not only the information from Malesky regarding how she had been wrong in claiming the aforementioned items were missing from the apartment , but also– 14

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the way in which th at information had been tardily provided to the defense : Look, we start this case out and I find out the day of trial, the day of trial when we are in here with a witness on the stand, that $500 wasn’t stolen, that a purse was n’t stolen, that rings weren’t stolen. And you know that I found out that day because I asked the detective, and the detective finds out a month or two before trial and doesn ’ t go back and investigate. He gets a GSR [gunshot residue] report that comes ba ck for somebody else and doesn ’ t go out and investigate. L ater, when defense counsel resumed his argument after the State objected that there was no evidence to support counsel’s suggestion that Hellner may have had “a buddy” with him in his room that nigh t, “at least one, maybe two,” defense counsel stated: And I am glad he objected to that because I’m going to show you some pictures that might show it differently. So you keep that in mind. You keep in mind what they are trying to keep you from hearing and keep you from seeing by giving things late. That’s what you need to keep in mind here. W e conclude a ppellant received notice of the information regarding the recovered items in time to make effective use of it at trial. Accordingly, appellant has failed to show he was prejudiced by any tardy disclosure of the above

- mentioned information , and t he trial court did not abuse its discretion by denying the request for a mistrial. See Wilson v. State , 7 S.W.3d 136, 146 (Tex. Crim. App. 1999) (defendant b ears burden of showing prejudice from tardy disclosure). Our finding that appellant has failed to show he was prejudiced is buttressed by the fact that there is no indication in the record he sought a continuance upon learning Malesky had changed her stor y. See State v. Fury , 186 S.W.3d 67, 73

– 74 (Tex. App.

–– Houston [1st Dist.] 2005, pet. ref’d) (defendant’s failure to ask for continuance upon disclosure of Brady material at trial i s a situation in which the defendant either waived any Brady error or esse ntially conceded that any Brady error did not prejudice him); see also State v. DeLeon , 971 S.W.2d 701, 706 (Tex. App.

–– Amarillo 1998, pet. ref’d); Brindle v. State , No. 05

– 10

– 01258

– CR, 2012 WL 1150533, at *3 (Tex. App.

–– Dallas Apr. 9, 2012, no pet.) (mem. op., not designated for publication). As for the trial court’s failure to provide a curative instruction, defense counsel told the– 15

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trial court he was alternatively asking for a curative instruction because the prosecutor who conducted the voir di re told the panel that the State had an “open file” policy under which the prosecutor “has to open his file.” Th at prosecutor explained the policy this way: “E verything in our file that is not work product

–– and what I mean by work product is our notes on preparing for trial

–– the Defense attorneys have a copy of it. Any statements, any police reports, any DNA reports, anything like that have been turned over to the Defense. ” The trial court ultimately denied appellant’s request for a curative instruction

. Appellant argues that the State’s comments during voir dire “left a false impression of the real state of the facts about disclosure with the jury , ” and that appellant’s right to a fair trial was thereby prejudiced.
A ppellant , however, never specifi ed what kind of curative instruction he wanted the trial court to give. Defense counsel asked “for an attempted curative instruction to the jury” that
M alesky’s story had not been provided to appellant’s defense team until the day she testified, despite w hat the State’s prosecutor said in voir dire , but the jury was well aware that Malesky had changed her story regarding the missing property, and that defense counsel did not learn Malesky’s story had changed until the day of trial. Given that the defense provided no other indication of what kind of instruction it expected the trial court to provide, we conclude that no abuse of discretion has been shown. We overrule appellant’s second and third issues. Fourth Issue In his fourth issue, appellant contends the trial court erred by denying appellant’s request for a mistrial “concerning highly relevant information not being turned over to the defense prior to trial.” At issue are the fingernail clippings taken from Hell ner that were not tested for DNA until the later stages of the trial

– – DNA tests that showed Hellner had biological material under the fingernails of his right hand that did not belong to appellant or Malesky. Appellant contends the trial court’s refusal to grant a mistrial constituted reversible error– 16

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because highly relevant information was not turned over to the defense prior to trial. The record, however, shows that the failure to have the DNA results from the fingernail clippings available

sooner wa s at tributable to appellant’s defense team. As we stated in our previous opinion : It is undisputed that the State had furnished defense counsel the autopsy report months before trial, that the report clearly referred to the fingernail clippings taken from the decedent, and that defense counsel completely overlooked the report ’ s reference to the fingernail clippings. Counsel advised the court he was shocked when the medical examiner testified about the fingernail clippings. Wilkins , 2014 WL 465820 , at * 5. We also stated : [Appellant] characterizes the DNA test results conducted on the fingernail clippings as the newly discovered evidence and argues the test results were unknown to him at the time of trial. At trial, however, it is clear that counsel was alarme d only after realizing that the autopsy reported the collection of fingernail clippings, a fact counsel admitted overlooking, and that no DNA testing had been conducted. In other words, the evidence which was newly discovered by counsel was the fingernail clippings. Counsel ’ s oversight, however, does not render the originally discovered evidence, the fingernail clippings, or the subsequently developed evidence, the DNA test results, “newly discovered evidence” simply because counsel belatedly realized the existence of the fingernail clippings and the potential significance of DNA testing. The autopsy report and the information regarding the fingernail clippings were in defense counsel ’ s possession for months. Such possession imputes counsel with knowledg e of the contents of the document. Otherwise, disclosure by the State could be easily undercut by counsel ’ s failure to examine a document. Nor may [appellant] advance a claim of “newly discovered evidence ” by arguing, as he does, that the DNA test result s conducted on the fingernail clippings were unknown to him at the time of trial. The DNA test results were unknown to [appellant] but only because counsel failed to take advantage of the material disclosed and failed to request such testing prior to tria l. What [appellant] ignores is that the DNA testing process was known and available at the time of trial. [Appellant] simply failed to utilize it. The [appellant] is responsible for his own lack of knowledge and the unavailability of the test results. [Appellant] had the opportunity to request DNA testing after receiving the autopsy report. He had a second opportunity when the State offered exhibit 108, the actual clippings, into evidence at the outset of the trial because exhibit 108 again placed him on notice of the fingernail clippings. But in each instance, counsel took no action. We, therefore, find no merit in [appellant’s] argument that the DNA test results should be characterized as newly discovered evidence unknown to [appellant]. Id

.

“ A Brady violation occurs when the state suppresses, willfully or inadvertently, evidence– 17

–

favorable to appellant. ” Harm v. State , 183 S.W.3d 403, 407 (Tex. Crim. App. 1986). It is axiomatic that there can be no Brady violation without the suppression of fav orable evidence. Id

. As we explained in our previous opinion, t he record here shows that appellant ’s defense team was provided with a copy of the autopsy report almost six months before the trial started, that the autopsy report clearly referred to the fingernail clippings taken from Hellner, and that defense counsel simply overlooked the report’s reference to the fingernail clippings

. Given the record in this case, the trial court did not abuse its discretion by denying appellant’s request for a mistri al. Fifth and Sixth Issues In his fifth and sixth issues, appellant argues the trial court erred by refusing to declare a mistrial based on the State’s having introduced hearsay into evidence , and by refusing to declare a mistrial when the State elicite d hearsay testimony from a detective. The se issues concern testimony from Detective Vick and Detective Quirk. Appellant first calls ou r attention to a portion of Detective Vick’s testimony where he was asked about State’s exhibit 73, which is a photograp h of the bathroom inside the apartment where Hellner’s body was found. The relevant portion of the record reads as follows: Q. What do we see in State’s 73? A. Just a picture of the bathroom and the area where she said she retrieved the knife from. Q. Did you check this bathroom door for latents, as well? [DEFENSE COUNSEL:] I’m sorry, Your Honor, I’m going to object again to anything she said. Clearly it’s hearsay. THE COURT: Sustained. [DEFENSE COUNSEL:] Respectfully request that the jury disregard

. THE COURT: The jury will be instructed to disregard the last answer from the witness. [DEFENSE COUNSEL:] Respectfully request a mistrial, Your Honor.– 18

–

THE COURT: Overruled. Appellant next directs our attention to a portion of Detective Quirk’s testimony where he was discussing the interview with appellant. The detective testified that appellant changed his story about an hour and a half into the interview, admitting he had a gun that night and that he later sold it

. The record then reads as follows: Q. During that interview we see you on your cell phone for a little bit; is that right? A. Yes. I am on the phone with other detectives actually trying to find that house. And we found a house, we were unable to develop any leads from the gun that way. Q. Doesn’t he get specific about where that house is, sir? A. He does. Q. He gives you in some relation to, I think it’s Lincoln. A. Lincoln High School, a particular corner, Hispanic family living there, those kinds of details he did give me, yes. Q. So he does give up some details saying, I sold the house [ sic ] to this house, to this family, and that ’ s on the video, right? A. Yes. Q. Did you investigate that further, sir? A. We did

–

– I did. Q

. Did his info rmation turn out to be correct? A. No. Q. You were able to make contact with the family that lives in that house? A. Yes. Q. And had they received any gun from the defendant? A. They did not know him. [ DEFENSE COUNSEL:] Y our Honor, I am going to obje ct. That is based upon hearsay.– 19

–

THE COURT: Sustained. [DEFENSE COUNSEL:] I ask that the jury be instructed to disregard. THE COURT: The jury will disregard the last answer and question. [DEFENSE COUNSEL:] And respectfully request a mistrial. THE COURT: Overruled. The trial court sustained appellant ’ s hearsay objection s and promptly instructed the jury to disregard the complained

- of testimony. Such instructions are ordinarily considered sufficient to cure error associated with an improper questio n and answer

. See Simpson v. State , 119 S.W.3d 262, 272 (Tex. Crim. App. 2003) (“We have held that ‘ordinarily, a prompt instruction to disregard will cure error associated with an improper question and answer.’”) (quoting Ovalle v.
State , 13 S.W.3d 774, 783 (Tex. Crim. App. 2000)); Martinez v. State , 17 S.W.3d 677, 691 (Tex. Crim. App. 2000) (“Even when the prosecutor mentions facts outside the record during argument, an instruction to disregard will generally cure the error.”). This cas e is no different.
T he testimony in question

– – that Malesky retrieved the knife from the bathroom and that the family that lived in the house where appellant indicated he sold the gun did not know him

–– did
not constitute the sort of indelible, prejudicial evidence that normally warrants the granting of a mistrial. See Wood v. State , 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (improper statement must be “of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors”). Based on the record in this case, we conclude that any possible harm caused by the testimony in question was cured by the trial court’s prompt instructions to disregard, and that the trial court did not err by denying the motion s for mistria l

. We overrule appellant’s fifth and sixth issues. Seventh Issue In his seventh issue, appellant contends the trial court erred by denying his motion for mistrial following an attempt by the State to elicit testimony from Detective Quirk regarding– 20

–

whether appellant was telling the truth

. The record shows that after Detective Quirk testified regarding his law enforcement background, how he became involved in th is case, and his experience interviewing suspects, the State introduced the video tape of appellant’s interrogation, State’s exhibit 96. The video was then played for the jury, but problems with the audio prompted the State to pause and ask for a delay of several minutes. While th ose audio problems were attended to, the prosecutor continued
h is examination of D etective Quirk

. Eventually, the State asked him , “From what you know, throughout the course of the investigation is this defendant telling the truth throughout his confession?” Before the detective could answer the question , d efense co unsel objected an d asked to approach the bench, at which point the trial court excused the jury. After the jury left the cou rtroom, defense counsel objected to what he called a “highly improper, highly prejudicial” question, arguing it violated appellant’s Fifth Amendment and due process rights and that appellant had been prejudiced “beyond any curative instructions the Court could do.”
The trial court a ssured defense counsel that when the jury returned it would ins truct them to disregard the last question asked by the State , and it ultimately sustained the objection

. T he video was played when the jury returned , but further technical difficulties prompted the State to ask for another delay while the problems were ad dressed. Following a lunch recess, the court briefly turned its attention to a juror who testified that she could no longer go on with the trial due to the death of a family friend. After th at juror was excused, and while the jury was still out of the co urtroom, defense counsel reminded the court of his earlier objection and the court’s promise to instruct the jury to disregard the prosecutor’s last question. When the jur ors w ere brought in , t he trial court instructed them as follows: Good afternoon. I want y’all to know that, due to some difficulties in her personal life, we have released one of the jurors. So you 12 are now the jury in this case. And before we proceed I want to also remind you that right before we saw the– 21

–

video, back when the attorn eys were having some technical difficulties, the detective was on the stand, a question was asked of him, Defense objected, and then we stopped at that time. I have sustained that objection and I am instructing you at this time to disregard and not consi der for any purpose the question that was asked at that time. The d efense also moved for a mistrial, which was denied. Although nearly four hours passed between appellant’s initial objection and the instruction to disregard , 2 it is worth remembering that the question to which defense counsel objected went unanswered

. We presume the jury followed the trial court ’ s instruction. See Wesbrook v. State , 29 S.W.3d 103, 116, (Tex. Crim. App. 2000). Furthermore, the asking of an improper question seldom call s f or a mistrial, because, in most cases, any harm can be cured by an instruction to disregard. Ladd , 3 S.W.3d at 567 ; see also Russeau v. State , 171 S.W.3d 871, 885 ( Tex. Crim. App. 2005). A mistrial is required only when the improper question is clearly
p rejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. Ladd , 3 S.W.3d at 567. This is not such a case. Accordingly, we conclude that any error in this instance was cured by the trial
court ’ s instruction to disregard , and that the trial court did not abuse its discretion by denying the motion for mistrial

. We overrule appellant’s seventh issue. Ninth Issue In his ninth issue, appellant argues the t rial court erred by failing to grant a motion for mistrial “when a person in the audience caused a disturbance that prejudiced [a]ppellant’s right to a fair trial.”
At issue is a disturbance i n the courtroom caused by a bystander when LaShanda Nwachukwu , appellant’s sister, was on the stand. The State asked Nwachukwu how she felt

2 According to the reporter’s record, the initial objection was lodged at 10:37 a.m., and the jury was brought into the courtro om to hear the instruction to disregard at 2:27 p.m.– 22

–

when she learned her brother had been charged with murder. She r eplied, “Bad.” The State then
asked: “You felt bad? Did you feel surprised? I see you shaking your head from side to side. Does that mean no?” At that point, defense counsel asked to approach the bench. The court excused the jury and counsel made the following objection: Judge, the prosecution was asking what I would believe to be a rather important question of this witness as to whether or not she was surprised. The prosecution then made a statement that she was shaking her head and asked if that meant no. The witness was

–

– had not answered yet, was in the process of answering, at which point an individual on the front row in the jury [ sic ] stood up in hysterics, rushed out of the courtroom making a big commotion. I believe that is highly prejudicial especially at the point at which that was, especially basically the implication to the question is you are not surprised because he committed capital murder, which was definitely the implication of the question and she gets up and makes that motion. I respectfully request a mistrial at this point based upon the actions of the family member of the decedent, or whoe ver it was that was sitting over there. I do not think that there is anything that can cure that in the minds of these jurors based upon when that happened and the question that was on the table. THE COURT: I will hold my ruling for now. (Pause in procee dings.) THE COURT: On the record. I have considered the Defense motion for mistrial and I am going to deny that motion at this time. [DEFENSE COUNSEL:] Thank you, Your Honor. We would then request a curative instruction to the jury that they are to disregard any comments, statements or emotions from the gallery and not to consider that in any way, shape or form in the jury ’ s deliberations. THE COURT: I will grant that. When the jury was brought back to the courtroom, the trial court instructed it as follows: “Before we continue I am going to instruct the jury to disregard any comments or statements or displays of emotion that were shown in the courtroom before we took our break and not consider such for any purpose whatsoever in this trial.”– 23

–

The Texas Court of Criminal Appeals has “long held conduct by a bystander ‘ which interferes with the normal proceedings of a trial will not result in reversible error unless the defendant shows a reasonable probability that the conduct interfered with the jury ’ s verdict. ’ ” Gamboa v. State , 296 S.W.3d 574, 580 (Tex. Crim. App. 2009) (quoting Landry v. State , 706 S.W.3d 105, 112 (Tex. Crim. App. 1985) )

. “ Instructions to the jury are generally considered sufficient to cure improprieties that occur during tri al. ” Id . “ And we generally presume that a jury will foll ow the judge ’ s instructions” Id

. The record in this case does not illustrate precise ly what kind of disturbance occurred in the courtroom , but it appears to have been brief in nature, and the ju ry was quickly excused. Based on counsel’s description, i.e., that the bystander “ stood up in hysterics ” and “ rushed out of the courtroom making a big commotion ,” it does not appear the bystander made any discernable
statements. In any event, n othing in th is record suggests the disturbance was of such a nature that the jury could not follow the trial court ’ s instruction

. See i d

. (capital murder defendant not entitled to mistrial based on outburst by member of victim ’ s family that sho ut ed “ [y] ou did this for 200 dollars?” during testimony of prosecution witness); Brown v. State , 92 S.W.3d 655, 661 (Tex. App.

–

– Dallas 2002) (victim ’ s father ’ s outburst of “ [g] ive my son justice, please” during murder trial cured by trial court’s instructions to disregard comm ent), aff ’ d on other grounds , 122 S.W.3d 794 (Tex. Crim. App. 2003). The trial court did not abuse its discretion by denying appellant’s motion for mistrial. We overrule appellant’s ninth issue. Twelfth Issue In his twelfth issue, appellant argues the trial court erred by denying appellant’s motion for mistrial “when one of the State’s prosecutor’s gave a personal opinion about his co

- counsel putting [appellant’s] sister on the witness stand.”
A ppellant’ s complaint is based on a comment made by the prosecutor during the State’s– 24

–

closing argument . The relevant portion of the record reads as follows : I don’t know many people that go commit a heinous, intentional capital murder and call 911 within 13 minutes of doing it, because tha t’s what they want you to believe is that she went and killed the guy she ’ s known for five years and been living with and then calls 911 within 13 minutes. That’s the story they are trying to sell you. You buy off on it? I can’t. Again, it’s your decis ion. But they are trying to say that this woman, who had no beef whatsoever with the guy she is living with, who is her partner in her drug trade business, who she considered her daddy, she is going to go shoot two times and then call 911. Then

– – and this is why my co

- counsel

–

– and I think he did a great job putting the defendant’s sister on the stand

–

– [DEFENSE CO

- COUNSEL:] I’m going to object to his characterization of how his co

- counsel did anything, Your Honor. THE COURT: Sustained. [DEFENSE CO

- COUNSE L:] It’s not proper argument. Ask the jury be instructed to disregard that statement of this prosecutor. THE COURT: The jury will be instructed to disregard the last statement of the prosecutor. And you have one minute. [DEFENSE CO

- COUNSEL:] And becaus e of the prejudicial nature, we must move for a mistrial. THE COURT: Motion is overruled. The State concedes that the prosecutor’s comment that his co

- counsel “did a great job putting the defendant’s sister on the stand” does not fall within any of the fo ur “normal” categories of proper jury argument. See , e.g., Freeman v. State , 340 S.W.3d 717, 727 (Tex. Crim. App. 2011) (p roper jury argument must generally fall within one of four categories: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) responses to argument of opposing counsel; and (4) pleas for law enforcement )

. But even when an argument exceeds the permissible bounds of generally accepted jury argument, it is not reversible unless the argument is extreme or manifest ly improper, violates a mandatory statute, or injects into the trial new facts harmful to the accused. Wesbrook , 29 S.W.3d at 115. The remarks must have been a willful and calculated effort on the part of the State to deprive a ppellant of a fair and– 25

–

impa rtial trial. Id

. I nstructions to the jury will generally cure most improprieties that occur during a trial, and we presume that a jury will follow the trial court’ s instructions. Gamboa , 296 S.W.3d at 580

. M istrial is an appropriate remedy only in extreme circumstances and is reserved for a narrow class of highly prejudicial and incurable errors. Hawkins , 135 S.W.3d at 77. If the harm caused by an improper jury argument is incurable, a motion for mistrial p reserves error for appellate review. Cruz v. State , 225 S.W.3d 546, 548 (Tex. Crim. App. 2007); Young v. State , 137 S.W.3d 65, 70 (Tex. Crim. App. 2004). In determining whether improper jury argument warrants a mistrial, we balance three factors: (1) se verity of the misconduct (the magnitude of the prejudicial effect of the prosecutor ’ s remarks); (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the court ); and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). Hawkins , 135 S.W.3d at 77; Mosley v. State , 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh ’g)

. When , as in this case, the trial court sustains the objection and instructs the jury to d isre gard but denies the defendant’s motion for a mistrial, the issue is whether the trial court erred by denying the mistrial. Faulkner v. State , 940 S.W.2d 308, 312 (Tex. App.

– – Fort Worth 1997, pet. ref ’ d) (op. on reh ’ g). Applying the above factors, the State concedes the prosecutor’s comment does not fall within any of the “normal” areas of proper jury argument. But although improper, the prosecutor’s comment was brief , it did not inject any new facts into the record, and the jury was in a position to e valuate the truthfulness of the prosecutor’s statement that his co

counsel did “ a great job putting the def endant’s sister on the stand.” G iven the nature of the prosecutor’s comment, we conclude that th is first factor does not weigh heavily in appellant’ s favor. See Mosley , 983 S.W.2d at 260. As for the second factor, the trial court sustained the objection and instructed the jury to disregard the prosecutor’s comment. T he court ’s instruction cured any error caused by the comment, which was isolated an d not repeated. See Gamboa , 296– 26

–

S.W.3d at 580. Turning to the final factor, the prosecutor did not inject any new or harmful facts into the trial , did not violate a mandatory statute , and the jury was presented with considerable evidence of appellant’s guilt. See Mosley , 983 S.W.2d at 260. Balancing the relevant factors, we conclude the prosecutor ’ s comment did not render ineffective the instruction to disregard, and that the trial court did not abuse its discretion by denying the motion for mistrial. We overrule appellant’s twelfth issue.
III. Evidentiary Issues Eighth Issue In his eighth issue, appellant contends the trial court erred by overruling appellant’s objection to the 9 11 manager for the City of Dallas , Kimberly Cole, being allowed to testify concerning a 911 record when she was not the actual 911 operator that received the call, and that appellant’s rights to confrontation and cross

- examination were thereby violated. The o perator who took the October 26, 2010 911 call, Velma Finn, was unavailable to testify at trial because she had suffered a stroke about a year before trial, followed by a series of strokes since then. The State called Kimberly Cole, the 911 manager for the City of Dallas, and during her testimony it established a business records predicate for the admission of the 911 record, State’s e xhibit 115

. See T EX
. R. E VID . 803(6). State’s exhibit 115 was a n “I ncident Detail Report” that reflected the placement of the 911 call that reported Hellner had been shot. The report contains various information including the address and apartment number , the caller’s first name, the time of the call, and the “call back” t elephone number of the 911 call. Cole testified that she was the custodian of record s for Stat e’s e xhibit 115, that State’s e xhibit 115 was a business record that was prepared by 911 during the course of business, and that the entries in State’s e xhibit 115 would have been made at or near the time of the offense

. Cole also testified that the system was designed to automatically generate, or as she put it “auto

- populate,” the– 27

–

phone number of the 911 call once a call had been placed, but sometimes the system would slow down and the 911 operators could manually input the information on the report as they heard it over the telephone

. The recording of Malesky’s 911 call, State’s exhibit 95, which had already been admitted and played for the jury, show ed her giving the 911 operator her address and telephone number. The defense thus argued it was being denied the right of confrontation as to whether the phone number of the 911 call was automatically entered by the computer or manually entered by the 911 operator based on information supplied to her by M alesky. We review a trial court ’ s decision regarding the admissibility of evidence for an abuse of discretion. Martinez v. State , 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court ab uses its discretion when its decision lies “outside the zone of reasonable disagreement.” Walters v.
State , 247 S.W.3d 204, 217 (Tex. Crim. App. 2007). Appellant’s argument is that his Sixth Amendment right to confront and cross

- examine the witnesses against him was violated

. The Confrontation Clause of the Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him

. Langham v. State , 305 S.W.3d 568, 575 (Tex. Crim. App . 2010); see also U.S. C ONST
. AMEND . VI. The threshold inquiry for any supposed Confrontation Clause violation is whether the admitted statement i s testimonial or nontestimonial in nature. Vinson v.
State , 252 S.W.3d 336, 338 (Tex. Crim. App .2008); Loll is v. State , 232 S.W.3d 803, 805

– 06 (Tex. App.

–

– Texarkana 2007, pet. ref ’ d). Whether a statement is testimonial or nontestimonial is a question of law we review de novo. Langham , 305 S.W.3d at 576; see also Wall v. State , 184 S.W.3d 730, 742 (Tex. Crim. App. 2006)

. Statements are testimonial if “the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Davis v. Washington , 547 U.S. 813, 822 (2006). Statements are
nont estimonial when made during an interrogation whose objective primary purpose wa s to– 28

–

enable the police to respond to an ongoing emergency. Michigan v. Bryant , 562 U.S. 344, 356 (2011) ; Davis , 547 U.S. at 822; State v. Echendu , No. 05

– 11

– 00346

– CR, 2012 WL 1 130419, at *2 (Tex. App.

–

– Dallas Apr. 5, 2012, no pet.) (not designated for publication) ( 911 telephone call recording admissible under Confrontation Clause because statements to 911 operator were nontestimonial ). “Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because

—having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact
at trial

— they are not testimonial.” Melendez

– Diaz v. Massachusetts , 557 U.S. 305, 324 (2009) ; Sessums v. State , No. 06

– 14

– 00017

– CR, 2014 WL 5421023, at *7 (Tex. App.

–– Texarkana Oct. 24, 2014, pet. ref’d) (mem. op., not designated for publication)

. However, a business or public record may nonetheless be inadmissible if it is prepared for prosecutorial use or in anticipation it will be used for prosecutorial purposes. Sessums , 2014 WL 5421023, at *7 (citing Melendez

– Diaz , 557 U.S. at 324) . In such a situatio n, the business or public record is considered testimonial and subject to a Confrontation Clause challenge. Id

. T he intended or anticipated use of the statement determines whether it is testimonial. Grey v. State , 299 S.W.3d 902, 909 (Tex. App.

– – Austin 2009, pet ref ’ d) (citing Davis , 547 U.S. at 813). In this case, we find no violation of appellant’s confrontation rights stemming from the admission of the 911 “Incident Detail Report

. ” Regardless of whether the telephone number and other information on the report w as “auto

- populated” or entered manually, it would have been entered during the October 26, 2010 911 call, at a time when the police were responding to a reported shooting victim. That was before the police had had an opportunity to even begin their investigation , much less make any arrests

. Detective Vick testified that when he first arrived at the crime scene and began gathering evidence, he had no particular suspects or subjects that he– 29

–

was looking for. There is simply no indication the 911 report was prepared for prosecutorial use. On the contrary, the report contains the kind of information that would have aided the police in responding to the reported shooting and providing emergency assistance. W e conclude the 911 “Incident Detail Repo rt” was no n testimonial in nature and its admission did not violate appellant’s right to confront or cross - examine the witnesses against him

. W e overrule appellant’s eighth issue Tenth Issue In his tenth issue, appellant argues the trial court erred by refusing to admit a portion of his recorded statement where he expressed a willingness to take a polygraph test. Texas courts have long held that b ecause polygraph testing is inherently unreliable, the results of polygraph testing are not admissible for an y purpose regardless of whether the evidence is offered by the State or the defendant. See Nethery v. State , 692 S.W.2d 686, 700 (Tex. Crim. App. 1985). As the Austin Court of Appeals once stated: [T]he only reason anyone would take a [polygraph] test is to determine whether the witness is telling the truth. Likewise, the only reason a person would agree to take a polygraph test is to determine whether that person is telling the truth. Neither taking, nor agreeing to take the test, in actuality, deter mi nes who is telling the truth. The test is inherently unreliable for this purpose. Its inherent unreliability notwithstanding, the purpose for the test is to determine whether a person is being truthful. Therefore, the only reason one would agree to take, or would actually take, the test is for the purpose of resolving the question of whether that person is telling the truth, whether that can actually be determined or not. Sparks v. State , 820 S.W.2d 924, 92 8

– 2 9 (Tex. App.

– – Austin 1991, no pet.); see also Kirk v.
State , 07

– 97

– 0389

– CR, 1999 WL 158496, at *7 (Tex. App.

– – Amarillo Mar. 12, 1999 , no pet. ) (not designated for publication) (citing Sparks ). Texas courts also hold that when , as in this case, the accused does not take the stand, self

- serving statements are not admissible where they are merely contradictory to some act or declaration first proffered by the prosecution. Hafdahl v.
State , 805 S.W.2d 396, 402 (Tex. Crim. App. 1990), disavowed on other grounds by Cook v.– 30

–

State , 858 S.W.2d 467 , 469 (Tex. Crim. App. 1993); see also Moore v. State , 849 S.W.2d 350, 351 n.1 (Tex. Crim. App. 1993) (Baird, J., concurring); Reado v. State , 690 S.W.2d 15, 17 (Tex. App.

–– Beaumont 1984, pet. ref ’d); Kirk , 1999 WL 158496, at *7

. At trial, the defense argued it should be allowed to show appellant was willing to take a polygraph test to rebut the State’s argument regarding appellant’s flight a s a circumstance of guilt : [T] he one issue I am talking about is my client agreed to take a polygraph test. And I think that that is very relevant because a time was set up where the investigator was going to come back and take that polygraph test. He never showed. Part of what I will show is that they didn ’ t do a fair and proper investigation in this aspect. Whether he took the polygraph or not, it ’ s the results of a polygraph that aren ’ t admissible. And we ’ re asking that it goes in there because it goes to our client ’ s state of mind that he was willing to cooperate. They are going to argue flight and that f light shows guilt. Well, we can argue then that his ability and desire to cooperate combats that flight. So we would argue that the fact that he was willing to take a polygraph test, and Quirk had indicated he was going to come back and do one, that that in and of itself should be admissible and the jury should be able to analyze that and review it in regards to all the testimony. A trial court does not violate a defendant ’ s constitutional rights by excluding inadmissible evidence. Osby v. State , 939 S.W .2d 787, 792

– 93 (Tex. App.

–– Fort Worth 1997, pet. ref ’ d) (“It goes without saying that a trial court does not violate a defendant ’ s constitutional rights by excluding inadmissible evidence.”). As other courts have noted, t he only reason a
person would agree to take a polygraph is to prove he is telling the truth

–– through a means that courts have long held to be inherently unreliable. See Sparks, 820 S.W.2d at 928

– 29; Kirk , 1999 WL 158496, at *7

. Appellant’s expressed willingness to take a polyg raph test wa s , consequently , an out

- o f

- court self

- serving declaration offered as proof of his truthfulness , and as the trial court noted, it was clearly inadmissible

. We overrule appellant’s tenth issue. Eleventh Issu e In his eleventh issue, appellant contends the trial court erred by admitting into evidence– 31

–

recordings of telephone calls that appellant made while he was an inmate at the Dallas County Jail

. Before the State offered those recordings into evidence, appellant ’s co

- counsel made the followin g objection: In anticipation of the State offering jail calls, this defendant has been incarcerated in the jail, and it’s my understanding that the jail system here records every outgoing phone call from defendants and has this process. Our esoteric argu ment is that this is actually the same as having planted an agent into a cell with him to record or to get statements from him. So we claim that this is a violation of his due process rights to record his conversations and then play them in court without first having a Mirand a warning. And it’s a violation of 38 [.] 22. The trial court overruled the objection. The State later called Scott Seacat, the custodian of records of the inmate phone system for the Dallas County Jail

. Seacat testified a prompt noti fies inmates and the other party to the call at the beginning of the call that it is being “recorded and/or monitored.” The State also called Jeff Savage, an investigator for the Dallas County District Attorney’s Office, who testified that he retrieved te lephone calls made by appellant at the Dallas County Jail from November 14, 2010 to December 7, 2010. Savage “burned” th os e calls to a CD and gave them to the prosecutor. Miranda warnings must be given before a suspect ’ s statements made during custodial interrogation may be admitted into evidence. See Miranda v. Arizona , 384 U.S. 436, 444 (1966); Estrada v. State , 313 S.W.3d 274, 293 (Tex. Crim. App. 2010). The Texas Code of Criminal Procedure imposes restrictions on the admissibility of an accused ’ s statements made as a result of custodial interrogation. See T EX
. C ODE C RIM
. P ROC
. A NN . art. 38.22, § 2 ; see als o Wilkerson
v. State , 173 S.W.3d 521, 527 (Tex. Crim. App. 2005)

. In order for a statement to be the result of “ custodial interrogation, ” howev er, it must be made in response to interrogation by law enforcement officers or their agents

. State v. Scheineman , 77 S.W.3d 810, 813 (Tex. 2002); see Wilkerson , 173 S.W.3d at 527 (noting that Miranda generally applies only to questioning by law enforcement officers or their agents). In this case, a ppellant made the statements in question– 32

–

during telephone calls that he placed from the jail wh ere he was incarcerated awaiting trial.
Texas c ourts have l ong held that statements made under such circumstances are admissible because an accused has no legitimate expectation of privacy, the loss of which is an inherent incident of confinement. See S cheinema n , 77 S.W.3d at 813 (arrestee had no “legitimate
expe ctation of privacy in conversations between arrestees who are in custody in a county law enforcement building , ” and recorded statements made during conversation between arrestees were admissible) ; Banargent v. State , 228 S.W.3d 393, 402 (Tex. App.

– – Houston 14th Dist. 2007, pet. ref’d) (statements made in telephone call by appellant from county jail not the product of custodial interrogation); Rubio v. State , 04

– 13

– 00436

– CR, 2014 WL 13 19336, at *1 (Tex. App.

–– San Antonio Apr. 2, 2014, no pet.) (mem. op., not designated for publication) (telephone calls made from interrogation room of police station not product of custodial interrogation) ; Escalona v. State , No. 05

– 12

– 01418

– CR, 2014 WL 1022330, at *10 (Tex. App.

–– Dallas Feb. 20, 2014, pet. ref’d ) (mem. op., n ot designated for publication) ( trial court did not abuse its discretion by admitting recordings of two telephone calls appellant made from county jail). T he trial court did not abuse its discretion by admitting the complained

- of statements

. We overrule appellant’s eleventh issue. IV. Modification of Judgment
T he judgment in this case, under “Punishment and Place of Confinement,” incorrectly states “LIFE INSTITUTIONAL DIVISION , TDCJ,” when the trial court actually imposed a mandatory sentence of life im prisonment without parole. See T EX
. P ENAL C ODE A NN . § 12.31(a)(2). Based on the record and the relevant law, we modify the judgment to reflect that appellant was sentenced to life imprisonment without the possibility of parole. See T EX
. R. A PP
. P. 43.2(b); Asberry v. State , 813 S.W.2d 526, 529

– 30 (Tex. App.

– – Dallas 1991, pet. ref ’ d) (providing that an appellate court has the authority to modify incorrect judgments sua sponte– 33

–

when the necessary information is available to do so); see also Tyler v. St ate , 137 S.W.3d 261,
267

– 68 (Tex. App.

–

– Houston [1st Dist.] 2004, no pet.) (authority to modify judgment is not dependent upon a party ’ s request). As modified, t he trial court’s judgment is affirmed.

/ Lana Myers/ LANA MYERS JUSTICE Do Not Publish TEX. R. APP. P. 47 141365F.U05– 34

– 

## Court of Appeals Fifth District of Texas at Dallas

JUDGMENT
TERRANCE GERMAINE WILKINS, Appellant
No. 05

- 14

- 01365

- CR V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 6, Dallas County, Texas Trial Court Cause No. F10

- 62224

- X. Opinion delivered by Justice Myers. Justices Fillmore and Evans participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows: “Punishment and Place of Confine ment: LIFE INSTITUTIONAL DIVISION , TDCJ” should be changed to read “Punishment and Place of Confinement: LIFE WITHOUT PAROLE INSTITUTIONAL DIVISION , TDCJ.” As REFORMED , the judgment is AFFIRMED . We direct the trial court to prepare a new judgment that reflects this modification. Judgment entered this 4th day of August, 2015.