### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00501- CR

Chance Deallen K eller, A ppellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 264 TH JUDICI AL DISTRICT NO. 699 20, H ONO RAB LE MARTH A J. TRUDO , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Chance Dea llen Keller was char g ed with capital murder

. S ee Tex. Penal Code § 19.03(a) (2). I n particula r, the indictment alleg ed that Keller “intentionally cause [d] the death of

. . . S t even Wright, by shooting [ him] with a firear m, and the defe ndant was then and ther e i n t h e

course of committing or a ttempting to commit the offe nse of r obbery .” At the e nd of the trial, the jury found Keller g uilty , and Keller was sentenc ed to life in prison without the possibili ty of parole

. See id. § 12.31(a) (2) (explaining that when State does not seek death penalty in capital- murder case and when def

en d ant is found g uilty , sentenc e is life imprisonment without possibili ty of parole ). Keller appea ls his conviction. W e will aff irm the district court’s judg ment of convic tion.

DISCUSSIO N
I n his appea l, Keller prese nts five issues challeng ing his conviction. I n his first two issues, Keller contends that the district court err ed by overr uling his objections to the admission ofevidenc e reg arding extraneous ag g rava ted-robbe ry offe nses that he alleg edly committed befor e the

char g ed offe nse. I n his third issue, he urg es that the district court err ed by re fu s i n g t o submit a lesser- included-of

fe n s e instruction for manslaug hter. I n his fourth issue, he arg ues that the State “fa iled to produce independe nt evidenc e to corr oborate [hi s] extrajudicial statement that the murder

occur red during the course of committing robber y .” I n his final issue, he alleg es that he “wa s denied
h is r ig h t to c o mp u ls o r

y p r o c e s s w h e n th e tr ia l c o u r t f a il e d to in q

u ir e in to th e le g it im a c y o f [a w it

n e s s ]’ s invocation of his Fifth Amendment privileg e.” We will addre ss Keller ’s issues in the order briefe d but will address his first two issues toge ther.

Extraneous Of

fenses
As mentioned above, in his first two issues, Keller asser ts that the district court err ed by overr uling his objections to the admission of evidenc e reg arding extraneous robbe ry offe nses. When objecting to the evidenc e, Keller arg ued that the evidenc e should not be admitted under Rules of Evidenc e 403 and 404.

The evidenc e at issue perta ins to the alleg ed ag g rava ted robber ies of Aubry Waltrip and Marg are t Biddy

. See Tex. Penal Code § 29.03(a) (2) (stating that person commits ag g rava ted robber y if he commits robber y wh i l e u s i ng or exhibi ting deadly wea pon). Reg arding the alleg ed robber y of Waltrip, testimony was admitted during the trial showing that a wee k befor e the offe nse
at issue in this case , Keller offe red to sell some illega l drug s to Waltrip’s boy friend J esus Perez that
Perez planned to later rese ll

. I n h i s t est imony , Perez explained that he had orig inally ag ree d to purcha se “100 bars” from Keller for $250 but that Keller inform ed P er ez that he could g et Perez

a d d it io n a l d

r u g s in e xc h a

n g e f o r a “ th r o w a w a y g u n
. ” A c c o r d in g to Pe r e z, h e a g r e e d to th e e xc h a n g e ,
2and he g ave Keller a ch ro m e s emi automatic .22 caliber pistol with the understanding that Keller

would later return with more drug s. I n addition, Perez claimed that Keller told Perez to stay behind but insisted that Waltrip g o with hi m t o get the drug s. Moreove r, Perez testified that he g ave the purcha se money to Waltrip befor e she left wi t h Keller but that Waltrip later returne d cry ing and without the money

or any drug s. I n her testimony , Waltrip ag ree d that Keller had asked her to acc ompany him during the ex chang e and instructed P ere z to stay behind. I n addition, she explained that shortly afte r she left with Keller , Keller “put the g un to [her] head” and told her to g ive him the money that Perez had
g iven her . Moreove r, Waltrip testified that afte r she g ave the money to Keller, he took off. Reg arding the second extraneous offe nse, testimony was introduced establishing that Keller robbed Biddy a few hours befor e the offe nse alleg ed in this case
. When descr ibing how she knew Keller , Biddy testified that she met Keller throug h a mutual acqua intance, Meg an Richardson, and that Keller had visited he r home on one or two occa sions. Fur ther, she explained tha t one day Keller showed up at her house and tried to sell her some cell phones and came ras and that when she said that she was not interested and had no money , he pulled a chrome g un out of his pocket and held the g un to her he ad. Next, she recalled tha t Keller a sked her to hand over

any money that she had and told her that if she did not, he was g oing to shoot her. Moreove r, she rela ted that Keller started

to leave afte r she started screaming for her son and that s h e ch as ed afte r hi m out of t he house. I n addition, she explained that when Keller left the house and when she went outside on the porch, she “hea rd a shot g o off outside.” Finally , she stated that when the police came to investiga te, they found a shell ca sing.

3I n addition to Biddy ’s testimony , Offic er Todd Rajkowski explained that he arr ived

at Biddy ’s home afte r responding to a call reg arding the “discha rg e of a firea

rm.” I n his testimony , Offic er Rajkowski stated that when the responding office rs sear ched the are a, one found a “.22 shell

ca s ing.” During the trial, another office r, Detec tive Cassey Allen, provided additional testim o n y
reg arding the casing

. Specifica lly , Detec tive Allen stated t h at she worke d for the Depa rtment of Public Safety Crime L abora tory , that she compar ed the casing rec overe d from Biddy ’s proper ty with another rec overe d from Wright’s home, that those two casing s wer e from car tridg es fired from the
same g un, and that both ca sings “ wer e consistent with .22 long or long rifle c artridg e ca ses.”

Finally , evidenc e re gar ding this incident was admitted throug h a rec ording of a

conver sation betwee n Keller and Chrisann Cameron that was made when Keller called Cameron while he was in jail. On t he recording , Kel l er stated t hat he shot at Biddy when he left her home.

A s me n ti o n e d above, during the trial, Keller objected to the admission of the evidenc e

con cer ning these two prior extraneous offe nses under Rule of Evidence 404. That rule g ener ally prohibits the ad m i s s i o n of “other crimes, wrong s or acts

. . . to prove the char acte r of a person in order to show action in confor mity there with.” Tex. R. Evid. 404(b). Howeve r, the rule does allow that ty pe of evidenc e to be admitted “for other purposes, such as proof of motive, opportunity , intent,
prepa ration, plan, knowledg e, identity , or absenc e of mistake or acc ident.” Id. ; see Dev oe v. State , 354 S.W .3d 457, 469 (Tex. Crim. App. 2011) (e x plaining tha t “evidenc e may be admissible w hen it has releva

nce a part fr om char acte r conf

ormity ”).
On ap p ea l , we revie w a trial court’s ruling reg arding the admission of evidenc e under an abuse- of-discr etion standard. Prible v. State , 175 S.W .3d 724, 731 (Tex. Crim. App. 2005).

4“A trial court abuses its discre t i o n wh en its ruling is arbitra ry or unrea sonable.” Gaytan v. State , 331 S.W .3d 218, 223 (Tex. App.—Austin 2011, pet. ref ’d). But, a t rial court does not abuse its discretion if its ruling lies within “the zone of rea sonable disag ree ment.” Bigon v. State , 252 S.W .3d 360, 367 (Tex. Crim. App. 2008). “A trial co u rt ’s 404(b) ruling admitting evidenc e is g ener ally within this zone if there is evidenc e supporting that an extraneous transac tion is rel ev an t to a

ma te r ia l, n o n - p r o p e n s it

y is s u e
. ” D e v o e , 3 5 4 S. W. 3 d a t 4 6 9

. Pr o v id e d th a

t “ th e tr ia l c o u

r t’ s e v id e n ti a

r y ruling is corre ct on any

theory of law a pplicable to that ruling , it will not be disturbed.” Id. The wea pon that wa s used to kill Wright was never rec overe d, and no witnesses

te s ti f ie d th a t th e y s a w w h o s h o t Wr ig

h t. M o r e o v e r , d

u r in g th e tr ia l, K e ll e r u

r g e d th a t o th e r in d iv id

u a ls could have been r esponsible for the death of Wright. See M

cGre gor v. State , 394 S.W .3d 90, 118 (Tex. App.—Houston [1st Dist.] 2012, pet. ref ’d) (discussing various way s in which identity can be raised, including by cross-e x amining witnesses). Acc ording ly , t he identity of the shooter was at issue and was the primary are a of dispute, and the evidenc e of the extraneous offe nses was rele vant
to the identity and motive of the shooter in this case
. As d i s cu s s ed above, there was testimony 1

Keller arg ues that identity “wa s not an issue in this case due to the multipl e admissions he 1 made to the murder of Wright.” As will be detailed more thoroug hly in Keller ’s other issues, various witnesses testified that Ke ller admitted that he shot Wrig ht. I n addition, two e mploy ees a t the jail that Keller was housed in prior t o t ri al , M ike Helfe r and Austin Roberson, testified that Keller admitted to them that he had killed someone but did not name Wright in particula r. Howeve r, as discussed above, the wea pon was not rec overe d and, there fore , could not direc tly link Ke ller to the murder. Moreove r, Br ittany Buc kner and Keller ’s sister L acy Fitch both testified that Keller told them that Cameron had stolen the g un from Keller

. More importantly , Keller extensively arg ued that other people might have had a motive to kill Wright and arg ued that the police chose not to investiga te them even though evidenc e alleg edly linked them to the murder.
For example, in his opening statement, Keller asser ted that “two suspects, Sarah Steglich and Br andon Har g ett, [were] completely and totally uninvestiga ted ” by the police. Simi larly , in his 5showing that Keller obtained a .22-ca liber pistol approxi mately a we ek bef

ore the offe nse at issue here , that he used the wea pon to rob Waltri p , t h at he shot a firea rm g ener ally matching the descr iption of the g un obtained from Perez outside Biddy ’s proper ty a few hours befor e Wright was killed, that he fired the wea pon afte r unsucce ssfully try ing to rob Biddy and afte r explaining to Biddy that he neede d money , and that the shell casing s rec overe d from Biddy ’s proper ty and from Wright’s
proper ty wer e from car

tridg es that had been fired from the same g un. See Garcia v. State , No. 05- 2 05-01305-CR, 2006 Tex. App. L EXI S 5406, at *5 (Tex. App.—Dallas J une 23, 2006, pet. ref ’d) (not d es i g nated for publication) (conc luding that casing from prior extraneous offe nse was rele v an t

closing arg ument, Keller urg ed that Steglich and Harget t m ay have been responsible for W rig ht’s d e a th b u t th a t th e p o li c e c h o s e n o t to in

v e s ti g a te th e m. I n a d d it io n , K e ll e r q

u e s ti o n e d v a

r io u s w it n e s s e s about the possibili ty that Steglich and Har g ett might have been involved and also urg ed that Wright might have been targ eted by other individuals that he owed money to. Fur thermore , Keller implied during his questioning that Steglich was ignor ed as a possible suspect beca use her fathe r was a law-e nforc ement office r. Finally , when questioning Steglich, Keller also inquired into whether she had previously told the police her suspicion that W ri gh t ’s stepfathe r, Gunter Pontes, might have been r esponsible. I n his brief, Keller contends that the evidenc e of the extraneous offe nses is irrele vant to the 2 crime at issue in this appea l beca use the State never proved that the “pistol taken from Perez was the same pistol us ed t o ro b Bi d d y or murder Wright” and beca use the State “did not prove that the projec tile which killed Wright was at some point part of the casing found in Wright’s bedroom.” Although we rec og nize that Keller corr ectly notes that matching the bullet f ound in Wright’s body to the i ncident at Biddy ’s property and to the robbery of W al t ri p wo u l d have presente d a st rong er case , we cannot ag ree that evidenc e of the extraneous offe nses and of the testing perf ormed on the casing rec overe d from Wrig ht’s proper ty is irreleva

nt to the crime at issue. See Tex. R. Evi d. 401 (def inin g evidenc e as rele vant if it has “any tendenc y to make the exis tence of the fac t that is of conseque nce to the deter

mination of t h e ac t i o n m ore probable or less probable than it would be without the evidence” ); cf. Quesada v . State , No. 04-04-00438- CR, 2006 Tex

. App. L EXI S 6181, at *4, *7-8 (Tex. App.—San Antonio J uly 19, 2006, pet. dism’d) (mem. op., not desig nated for publication) (conc luding that there was “[a] rea sonable connec tion” betwee n shell casing s “spent

. . . months befor e the crime was committed” that wer e rec overe d from defe ndant’s bedroom and those used during commission of crime alleg ed). 6beca

use it matched those rec overe d from scene of char g ed offe nse and helpe d to establish identity of shooter)

. I n addition to helping to link Keller to the capital m u rder of Wright throug h the descr iption of t he wea

pon used during the prior offe nses and throug h testing perf ormed on the

ca sings rec overe d from the scene s, the evidenc e of the extraneous offe nses helped lin k Ke l l er t o the cha rge d o ff

en s e d ue to the simil arity of the prior offe nses and by providing a motive for the char g ed offe nse. For example, Offic er Robert Preston testified that afte r he advised Keller of his
M ir a n d a r ig h ts , K e ll e r to ld h im th a

t “ h e w a s in

to ja c k in g o r r o b b in g ” d

r u g d e a le r s
. S

e e Ca s e y v
. S ta te , 215 S.W .3d 870, 881 (Tex. Crim. App. 2007) (explaining that modus opera ndi ref ers to distinctive

manner of committing crimes and may be used, among other rea sons, as proof of identity or motive). Additionally , two of K el l er ’s wi tnesses provided simil ar testimony reg arding the t y pes of victims that Keller targ eted. I n particula r, Sara h Steglich e x plained that she first met Keller when he tried

to ste al illega l dr

ug s from her, a

nd Tay lor Camp testified that she was a friend of Keller ’s and that he had a reputa tion for stealing from known dr ug deale rs. That t estimony is consistent with the t estimony from W altrip and P ere z descr ibing Keller ’s actions. Moreove r, although Biddy testified t hat Keller attempted to rob her beca use she ref used to purcha se cell phones and came ras from him, Offic er Rajkowski explained in his testimony that he believed that Keller attempted to rob Biddy beca use he thought that she had illega l drug s in her home. As support for this testimony , Offic er Rajkowski r evea led that he suspected that Biddy

was under the influence of some substance when he interviewe d her afte r the incident. I n addition, Biddy admitted during her t es t i m o n y that she had previously been char g ed with possession with

7intent to deliver illega l dr ug s and pleade d g uilty to the lesser offe nse of possession. Finally , in the taped c onversa tion between K eller a nd Cameron, Ke ller desc ribes B iddy as a know n drug deale r. Reg arding the char ged offe nse, various witnesses, including Waltrip and Wright’s stepfathe r, Gunter Pontes, testified that Wright used and sold drug s. I n addi t i o n , ev i d ence was introduced establishing that the char g ed offe nse occur red just a few hours afte r Kell e r unsucce ssfully attempted to rob B iddy

.

Ba sed on the prec eding , we can n o t co n clude that the district court abused its discretion by deter

mining that the evidenc e of the extraneous offe nses was admissible for purposes other than c hara cter

confor mity

. I n his second issue, Keller contends that the evidenc e of the two extraneous offe nses should not have been admitted under Rule 403 beca use the probative value of the evidenc e is outweig hed by its prejudicia l value. See Tex

. R. Evid. 403. Rule 403 provides that “[a]lt houg h rele vant, evidenc e may be excluded if its probative value is substantial ly outweig hed by the dang er

o f unfair prejudice , confusion of the issues, or misleading the jury , or by considerations of und u e delay , or needle ss pr esenta tion of cumulative evidenc e.” Id. (empha sis a dded). “Unde r Rule 403, it is presumed that the probative value of rele vant evidenc e exceeds any dang er of unfair prejudice

. The rule envisions exclusion of evidenc e only when there is a clea r disparity betwee n the deg ree of prejudice of the offe red evidenc e and its probative value.” Hamme r v. State , 296 S.W .3d 555, 568 (Tex. Crim. App. 2009) (footnotes and internal quotation marks omitted). Acc ording ly , “the plain lang uag e of Rule 403 does not allow a trial court to exclude evidenc e when that evidenc e is mere ly prejudicia l. I ndeed, all evidenc e aga inst a defenda nt is, by its nature , desig ned to b e p re j u d i cial.” Pawlak v. State , 420 S.W .3d 807, 811 (Tex. Crim. App. 2013) (interna l citation omitt ed).

8When perfor ming a 403 analy sis, courts should balance the following fac tors:
(1) the inhere nt probative forc e of the proff ere d item of evidenc e along with (2) the proponent’s need for that evidence ag ainst (3) any tendenc y of the evidenc e to sug g est dec ision on an improper ba sis, (4) any tendenc y of the e vidence to confuse or distract the jury from the main issues, (5) any tendenc y of the evidenc e to be g iven undue weig ht by a jury that has not been equipped to evalua te the probative forc e of the evidence, and (6) the likelihood that pre sentation of the e vidence will consume an inordinate amount of time or mer ely repe at evidenc e alr eady

admitted.
Gigliobianco v. Stat

e , 2 1 0 S. W.3d 637, 641-42 (Tex. Crim. App. 2006) (footnote omitted); see Davis

v. State , 329 S.W .3d 798, 806 (Tex. Crim. App. 2010) (explaining that “proba tive value” ref ers to how strong ly

evidenc e makes exis tence of fact m ore or less probable and to how much pr oponent needs evidence and that “unf air pre judice” c onsiders how likely evidenc e mi g ht result i n decision made o n i m p ro per basis, including emotional one). As with other evidentiar y ruling s, appellate

courts rev iew a trial court’s ruling on a 403 objection for an abuse of discretion. See Pawlak , 420 S.W .3d at 810. Moreove r, revie wing courts s h o u l d b ea r in mind that trial courts are g iven
“an es p ec i al l y h i g h level of defe renc e” for R ule 403 deter minations. United St ates v. Fields , 483 F.3d 313, 354 ( 5th Cir. 2007).

As discussed in the first issue, the evidenc e of the extraneous offe nses was rele vant to the issue of whe ther a

nd why Keller shot W rig ht. Reg arding the State’s need for the evidenc e, we note that there was other testimony linking Keller to Wright. For example, as will be discussed more thoroug hly later, Richardson, who was romantically involved with Keller at the time of the offe nse, t estified that she drove Keller to someone’s home on the night of the shooting, and her phone rec ords place d her phone near Wright’s

9home around the time of the murder. But the evidenc e from Richard s o n d i d n o t establish that

Keller had a g un when he went to Wright’s home, and no witnesses testified that they observe d the shooting. I n addition, althoug h a couple of witnesses testified that Keller told them that he had shot Wright, Keller did n o t confess to the crime in his conver sations with the police, and he strong ly disputed that h e wa s the killer during the trial and urg ed that other individuals wer e responsible.
Moreove r, the g un that was used in the shooting was never rec overe d and, there fore , could not have been used to help identify the shooter throug h fore nsic evidenc e. Acc ording ly , we believe, as Keller mentions in his brief, that the State’s need for this ty pe of evidenc e linking Keller to the shooting of Wright wa s g rea t.

Unquestionably , evidenc e establishing that a defe ndant committed two viol en t offe nses shortly befor e the offe nse at issue could potentially have an impact on the jury

. Howeve r, 3

t h e j u ry ch arge in this case curta iled that potential for misuse of the evidenc e reg arding th e

I n this issue, Keller contends that this case prese nts a unique situation i n wh ich t he prior 3 o f f e n s e s c o u ld h a

v e c o n f u s e d th e ju

r y . Wh e n ma

k in g th is a r g u me n t, K e ll e r a s s e r

ts th a t th e in d ic tm e n t failed to specific ally alleg e that the victim of the robber y was Wright. I n addition, Keller notes that the cha rg e instructed the jury

that conduct oc curr ing in f light af ter a robber y is pa rt of the c onduct constituting “[i] n the course of committing theft.” Acc ording ly , Keller urg es that the jury might have relied on the evidenc e of the prior robbe ries, par ticularly the robbe ry of Biddy

a fe w hours ea

rlier, to conclude tha t the elements of the alleg ed ca pital murder we re sa

tisfied.
As an initial matter, we are not persua ded that Keller ’s rea ding of the indictment is a fair one. The indictment a lleg es that Keller “intentionally cause [d] the death of

. . . Wright, by shooting .

. . Wright with a firea

rm” while “then and there in the course of committing or attempting to c ommit the offe nse of robber

y .” Acc ording ly , the only victim listed was Wright, and the indictment alleg ed that Wright was killed during the robber y . Moreove r, all of the evidenc e reg arding the prior offe nses demonstrated that the prior offe nses occur red befor e Wright was killed and b ef o re the robber

y of Wright was attempted. I n any event, the char g e g iven to the jury specifie d that Wright was the victim of the robber

y . 10extraneous offe nses. See Thrif t v. State , 176 S.W .3d 221, 224 (Tex. Crim. App. 2005) (explaining th a t a p p e ll a te c o u r ts “ p r e s u me th e ju r y f o ll o w s th e tr ia l c o u

r t’ s in s tr u c ti o n s in th e ma

nn e r p r e s e n te d ” )

. I n particula

r, the char g e provided specific instructions reg arding extraneous offe nses and informed the jury that it could not “conside r said testimony for any purpose unless y ou find and believe bey ond

a rea sonable doubt that the defe ndant committed such other offe nse
. . . and even then y ou may only consider the same in deter mining the identity , intent, knowledg e, prepa ration, motive, or plan of the defe ndant, in connec tion with the offe nse, if any , alleg ed ag ainst him in the indictment.” Moreove r, the char g e set out the elements for robber y and murder and define d various rele vant terms, including
“in the co u rs e o f co mmitt ing theft” as “conduc t that occur s in an attempt to commit, during the commission, or in immediate flig ht afte r the attempt or commission of theft.” I n addition, the char g e instructed the jury to find Keller g uilty of capital murder, “bea ring in mind the fore g oing instructions and definitions, if y ou believe from the evidenc e bey ond a rea sonable doubt tha t .

. . Keller

. . . did then and there intentionally cause the death of .

. . Wright, by shooting . . . Wright wit h a firear m, and [Keller] was then and there in the course of committing or attempting to commit the offe nse of robber y of

. . . Wright.” Finally , the evidenc e reg arding the prior offe nses was not overly technica l or conf using a nd did not concer

n topics that the jury

was not equippe d to consider.
I n his brief, Keller corr ectly points out that a larg e portio n o f t h e S t ate’ s case was dedica ted to establishing the occur renc e of these extraneous offe nses and that the State emphasized these offe nses during its ope ning and closing statements. Howeve r, as mentioned previously , the 4

I n his brief, Keller estimates that “34% of the total testimony prese nted by the State 4 conce rned the extraneous ag g rava ted robber ies of Biddy an d W al[ t] rip.” Compare McG regor v. State , 394 S.W .3d 90, 121-22 (Tex. App.—Houston [1st Dist.] 2012, pet. ref ’d) (conc luding that fac t 11ident i t y of the shooter was the cruc ial fac tor to be proved in this case , and beca use there wer e

no witnesses to the shooting, the identity neede d to be proved thr o u gh ci rcumstantial evidenc e, including throug h the evidenc e of prior extraneous offe nses. Moreove r, th e j u ry char g e corr ectly instructed the jury that befor e they could consider the extraneous offe nses, the State had the burden of establishing those offe nses bey ond a rea sonable doubt. Simi larly , when discussing the im p o r ta n c e of t hese ex trane ous offe nses, t he S tate empha siz ed that the evidence could only be considered for the limit ed purposes identified in the jury char g e. Fur ther, althoug h the State called witnesses to descr ibe the offe nses and identify Keller as the perpe trator as well as descr ibe evidenc e that was collecte d from the extraneous offe n s es and tests that wer e perf ormed on that evidenc e in order to
proper ly link the extraneous offe nse to the char g ed offe nse, the amount of time spent discussing the tests used to link those prior offe nses to the cur rent off ense w as minimal. After considering the fa ct o rs above and in light of the standard of revie w and the presumptions reg arding admissibili ty , we cannot conclude that the district court abused its disc retion by overr uling Ke l l er ’s Rule 403 objection. See Garcia , 2006 Tex. App. L EXI S 5406, at *7-8 (conc luding that evidenc e of prior shooting was not improperly admitted over Rule 403 objection when g un used in c harg ed offe nse was not rec overe d, when evidenc e linking defe ndant to g un and murders was neede d, when time spent developing prior offe nse was substantial but amount of time

that evidenc e of extraneous offe nses constituted one third of trial weig hed ag ainst admissibili ty but upholding trial court’s decision to admit evidenc e), and Newton v. State , 301 S.W .3d 315, 321-22 (Tex. App.—Waco 2009, pet. ref ’d) (same for evidenc e comprising 27% of testimony ), with Russell v. State , 113 S.W .3d 530, 544-49 (Tex. A pp.—For t Worth 2003, pet. re f’d) (dete rmining that trial court err ed by admitting evidenc e of extraneous offe nses wher e evidenc e was 30 % o f t es t imony , wher e State’s need for evidenc e was low, and wher e evi d en ce o f extraneous offe nse was “more heinous” than c harg ed off ense)

. 12actua lly linking crimes was minimal, when details of prior offe nse wer e kept to minimum , and when

State’s nee d for e vidence was g rea t due to fac t that identity

was disputed issue).
For the rea sons previously g iven, we overr ule Keller ’s first and second issues on
appea l.

Lesser- Includ ed Charge

I n his third issue on appeal, Ke ller conte nds that the district court er red by deny ing his request for

a lesser -included- offe nse instruction in the jury char g e for

manslaug hter.
Deter mining whether a lesser- included-of fense instruction should be g iven involves

two steps. State v. Meru , 414 S.W .3d 159, 162 (Tex. Crim. App. 2013); Hall v. State , 225 S.W .3d 524, 535 (Tex. Crim. App. 2007). The first step is a question of law and consi ders “whe ther an offe n s e i s a l esser -included offe nse of the alleg ed offe nse.” Hall , 225 S.W .3d at 535. This step “does not depend on the evidenc e to be produce d at the trial” and “compa res the elements of the offense as alleg ed in the i ndictment with the elements of the requested lesser offe nse.” Meru , 414 S.W .3d at 162. An offe nse is a lesser- included one if “it is established by proof of the same or less than all the facts require d to establish the commi ssion of t he offense charg ed” or if “it differ s from the offe nse char g ed only in the respe ct that a less culpable mental state suffice s to establish its commission.” Tex. C ode Crim. Proc. ar t. 37.09(1), (3)

. As discussed ear lier, the indictment in this case alleg ed that Keller “did then and there intentionally cause the death of

. . . Wright, by shooting

. . . Wright with a firea rm, and [Keller] was
t h en an d t h er e in the course of committing or attempting to commit the offe nse of robber y .” See
Tex. Penal Code §§ 19.02(b) (setting out elements for murder) , .03 (providing that murder is capital

13murder if defe ndant commits murder “in the course o f co m m i t t i ng or attempting to commit

. . .

robber y ”). A person acts intentionally “whe n it is his conscious objective or desire to eng ag e in the conduct or cause the result.” Id. § 6.03(a)

. On the other hand, a person commits manslaug hter “if he rec klessly cause s the death of an individual.” Id. § 19.04. A person acts rec klessly “whe n he is

awa re of but consciously disreg ards a substantial and unjustifiable risk that the circ umstances exis t or the re sult will occur .” Id. § 6.03(c)

.

Both the indicted offe nse an d t h e o ffense of manslaug hter involve the death of an individual, but the t wo offen s es di ffe r i n “the mental state required.” Arnold v. Stat e , 234 S.W .3d 664, 671 (Tex. App.—Houston [14t h Dist.] 2007, no pet.). Moreove r, t he crime o f m ansl aug hter is established by proof of the same or less than all of the fac ts require d to establish the commission of the offe nse for which Keller was indicted. Acc ording ly , manslaug hter is a lesser- included offe nse of the crime at issue in this case
. See T ex
. C o d e C ri m
. P roc. art. 37.09; see also Mathis v. State , 67 S.W .3d 918, 925 (Tex. Crim. App. 2002) (re cogn i z i n g t h at “manslaug hter is a lesser-included offe nse of c apital murder ”).

Under the second step, courts must consider “whe ther there is evidenc e that supports
g iving the instruction to the jury .” Hall , 225 S.W .3d at 536. “This is a fac t determ i n at i on and is based on the evidenc e prese nted at trial.” Meru , 414 S.W .3d at 163. A defe ndant is entitled to the instruction if “a rational jury could find that, if the defe ndant is g uilty , he is g uilty only of the lesser offe nse.” Id. “I f there is evidenc e that raises a fac t issue of whether the defe ndant is g uilty only of the lesser offe nse, an instruction on the lesser- included offe nse is war rante d, reg ardle ss of whether the evidenc e is wea

k, impeache d, or contra dicted.” Id. ; see Hampton v. State , 109 S.W .3d 437, 441

14(Tex. Crim. App. 2003) (explaining t hat “it is not enoug h that the jury may disbelieve cruc ial

evidenc e perta ining to the g rea ter offe nse, but rathe r, there must be some evidenc e direc tly g erma ne
to th e le s s e r - in c lu d e d o f

f e n s e f o r th e f in d e r o f f a c t to c o n s id e r b e f

o r e a n in s tr u c ti o n o n a le s s e r - included offe nse is war

rante d”). I n this case , the second step “is satisfied if th ere is some evidenc e from

w h ic h a r a ti o n a l ju r y c o u ld f in d th a t [K e ll e r ] c o n s c io u s ly d is r e g a r d e d th e s u

b s ta n ti a l a n d u n ju s ti f ia b le risk that his conduct would cause [W rig ht] ’s death” rathe r than find that it was Keller ’s “consc ious objective or

desire to c ause [Wright]’s death.” See A rnold , 234 S.W .3d at 671.
As support for his asser

ti o n that a lesser- included-of fense instruction should have been g iven, Keller points to testim o ny from his sister Alexis Keller and from his friend Br ittany
B u c k n e r
. I n h e r te s ti mo n y , A le xis e xp la in e d th a t w h e n s h e v is it e d K e ll e r in ja il a f te r h e w a s a

r r e s te d , she asked him if he shot Wright and that he told her that “it wa s a m i s t ak e and that he knows he shouldn’t have done that.” When Buc kner testified, she stated that she previously g ave a statement to the police in w hich she rela ted that prior to K eller’ s arr est she was trave ling in a car with K eller and that when the police wer e pulling them over, Keller stated that “he went and—to rob [W rig ht] , and he—the y

g ot in a fig ht a

nd he strug g led. And then he pulled his g un out and that he shot, and he didn’t know whether or not he killed him. He said that [W rig ht] was beg g ing for him not to leave and—but [Keller] ra

n awa y .” Acc ording to K eller, this testimony shows that he rec klessly cause d the dea th of Wright during a strug g le and that he did not intend to kil l Wright.

Ho we ver, we do not believe that this testimony would have allowed a j u ry t o deter mine that if Keller was g uilty , he was only g uilty of manslaug hter. Although Alexis ’s testimony
i n dicated that Keller expressed remorse for his actions, a fee ling of remorse afte r the o ff en s e i s

15not ev i d ence that Keller was acting rec klessly when the offe nse occur red. I f any

thing, Alexis ’s testimony rela t i n g Keller ’s s tatement that “he shouldn’t have done t hat” evidence s Keller ’s i ntent to shoot W rig ht at the time of the incide nt. Sim ilarly , we do not be lieve that Buc kner’ s testimony constituted evidenc e that Keller was acting rec klessly

. Although Buc kner mentioned that Keller and Wright phy sically strug g led befor e Wright was shot, Buc kner did not testify that Keller told her that Wright was acc identally or i nadver tently shot during the s trug g le. I nstead, Buckne r recalled tha t 5
Keller told her that he intended to rob Wright and that he shot Wright afte r the strug g le. Moreove r, Keller ’s asser

tion that the evidenc e shows that he did not act intentionally is underc ut by the portion

On appea l, Keller ref

ers to sever al case s in which courts deter mined that a char ge o n 5 manslaug hter should ha

ve been g iven due to evidenc e showing that a g un acc identally discharg ed, due to evidenc e showing that victim wa s shot dur ing a strug g le, or due to e vidence showing that a defe ndant eng ag ed in rec kless behavior

. See, e.g. , Ross v. State , 861 S.W .2d 870, 875 (Tex. Crim. App. 1993) (conc luding that char g e was a ppropriate wher e evide nce showed that g un was pointed at victim’s head a

nd “we nt off” when defenda nt “shoved” the victim), rev’ d in part on rehearing , 861 S.W .2d 870, 877 (Tex. Cri m
. Ap p. 2013) (holding that “ther e was not sufficie nt evidenc e to raise the issue of involuntary manslaug hter” ); Haye s v. State , 728 S.W .2d 804, 809-10 (Tex. Crim. App. 1987) (dete rmining that char g e on rec klessness should have been g iven wh e r e e v id e n c e s howed that victim was shot during strug g le with defe ndant and whe re de fenda nt “testified that he did not intend to shoot the comp l ai n an t and that the actua l discharg e of the g un was acc idental”) ; Bell v. State , 693 S.W .2d 434, 441-42, 444 (Tex. Crim. App. 1985) (finding that defe ndant was entitled to instruction when defenda nt testified t hat he did not aim for victim’s h o m e wh en he fired and was instead shooting into air); Salinas v. State , 644 S.W .2d 744, 746 (Tex. Crim. App. 1983) (conc luding that manslaug hter char g e was neede d wher e defe ndant testified that g un that h e wa s holding acc identally went off and that he did not intend to shoot any one); Mullins v. State , 767 S.W .2d 166, 169-70 (Tex. App.—Houst o n [ 1 s t Dist.] 1988, no pet.) (dete rmining that instruction for rec kless conduct should have be en g iven wher e evide nce w ould have allowed j ury to infer that “def endant rec klessly fired a war

ning shot intended to hit a vaca nt apar tment”); Hernande

z v. State , 742 S.W .2d 841, 843 (Tex. App.—Corpus Christi 19 8 7 , n o pet.) (conc luding that manslaug hter char g e was appropr iate wher e defe ndant testified that althoug h he shot wea pon, he did not intend to hit victim and that he only intended to scar e victim). Howeve r, we believe that the case s that Keller ref ers to are distinguishable from the prese nt circ umstances, particula rly in light of the nature of the testimony that Keller

relies on in pre senting this iss ue. 16of Buc kner’ s testimony in which she explained that Keller left Wright to die afte r he was shot even

though he was be g g ing f

or help.
For these rea sons, we cannot conclude that the second prong of the test was satisfied
in this case , nor can we conclude that the district court err ed by failing to include in the jury char g e an instruction re g arding manslaug hter. Ac cording ly , we ove rrule K eller’ s third issue on appea l.

P roof of Corpus Delicti of Robb ery I n his fourth issue on appea l, Keller conce des that the evidenc e is s u ff icient to establish that Wright was murdere d. Howeve r, he notes that he was convicted of capital murder and that the jury deter

mined that he killed Wright “in the course of committing or attempting to commit the offense of robber

y .” Although he ac knowledg es that B uckner testified that he told her that he

went to Wright’s home in order “to rob” Wright, he urg es that the doctrine of corpus delicti require s the State to provide “indepe ndent evidenc e to corr oborate [hi s] extrajudicial statement that the murder occur

red during the course of committing robber y .” More o v e r , h e u

r g e s that this require ment

was not met in this case beca use there was no evidenc e demonstrating that any thing had been taken from Wright’s home. Acc ording ly , Keller arg ues that there was no evidenc e showing a completed 6
robber y and that, there fore , “[t] he j u dg ment should be ref ormed to the offe nse of murder and the

cause rema

nded for a punishment hea

ring for the of

fense of murder .” Under common law, the doctrine perta ined to the usability of a confe ssion made by a criminal defe ndant out side of court, Carrizal es v. State , 414 S.W .3d 7 3 7 , 742 (Tex. Crim. App.

As support for this proposition, Keller points to the testimony of various witnesses, 6 including investiga ting office rs, descr ibing how afte r Wright was murdere d, drug s and money wer e found in the home. 172013), and refe rre d to the first two components of the foll owing three -par t conce ptual brea

kdown of a c riminal offe nse:
first, the occ u rr en ce of the specia l kind of injury or loss (as, in homicide, a person d e c e a s e d ; in a

r s o n , a h o u s e b u

r n t; in la r c e ny , p r o p e r

ty mi s s in g ) ; s e c o n d ly , s o me b o d y ’ s criminality as the source of the loss,—these two toge ther involving the commission of a crime by somebody ; and, thirdly , the acc used’s identity as the doer of this crime.

I d

. a t 7 4 1 ( q u o ti n g 3 Jo h

n H e n r y Wi g mo r e , A Tre a ti

s e o n th e S y s te m o f E v id e n c e in Tr ia ls a t Co m m o n La w § 2 0 7 2 a

t 2 7 8 2 ( 1 9 0 4 ) )

. T h e th ir d e le me n t w a s n o t “ c o n s id e r e d p a r t o f th e c o r

p u s d e li c ti b e c a u s e [t he def endant], of cour se, had a lrea dy confe ssed to the cr ime.” Id. “The corpus d elicti doctrine require s that evidenc e independe nt of a defe ndant’s extrajudicial confe ssion show that the ‘esse ntial nature ’ of the char g ed crime was committed by someone,” Hack

er v. State , 389 S.W .3d 860, 866 (Tex. Crim. App. 2013) (q u oting Bible v. Stat e , 162 S.W .3d 234, 246 (T ex
. Crim. App. 2005)), and was desig ned to g uard “ag ainst the shocking specta cle and deleter ious ef fe ct u pon the criminal justice sy stem when a murder victim suddenly

rea ppear ed, hale and hear

ty , after his self-c onfesse d murdere r had been tried and executed,” Salazar v. State , 86 S.W .3d 640, 644 (Tex. Crim. App. 2002). The require ments of the doctrine are
met “if some evidenc e outside of the extra-j udicial confe ssion which, considere d alone or in

connec tion with the confession, shows that the c rime ac tually occur red.” Id. at 645.
Rece ntly , the court of criminal appea ls explained that “[ t ] he old corpus-de licti ‘usability ’ rule has

. . . been superse ded by the due-pr ocess ‘suffic iency of the evidenc e’ model set
out in Jack

son v. Virginia .” Carrizal es , 414 S.W .3d at 742; see Jack son v. Virginia , 443 U.S. 307,
319 (1979) (re quiring appellate courts to revie w evidenc e in light most favor able to verdic t and

18deter

mine whether “ any rational tri er of fact could have found the essential elements of the crime bey ond a reasonable doubt” bearing mind that it is fac tfinder’ s duty to weig h evidenc e, to resolve conflicts in testimony , and to make reasona ble i nfer ence s “fr om basic fa cts to ultim ate f acts” ). I n other words, the court stated that “proof of the corpus delicti in non-conf essi o n ca s es is wholly subsumed by the Jack

son elements test.” Carriz a l es , 414 S.W .3d at 744 (explaining that if State
proves eac h element bey ond rea sonable doubt, there is no doubt that cr i m e wa s committed by defe ndant). Acc ording ly , the court clar ified that the doctrine “exists, in the post Jack son v. Virginia

era , only in confe ssion cases.” Id. at 739 (footnote omitted).
As mentioned above, Keller was char g ed with capital murder for killing Wright “in the course of committing or attempting to commit the offe nse of robber y .” As conce ded by Keller , Wright’s body was rec overe d, and the fore nsic evidenc e established that Wright had been murdere d.
Acc ording ly , to the extent that the doctrine of corpus delicti applies in this case , it was not nece ssary for the State to prese nt “indepe ndent corrobora tion of each element and descriptive allega tion” of the underly

ing felony in order t o s at i s fy t h e require ments of the doctrine in this case ; instead, the doctrine only “re quires that there be some independe nt evidenc e tending to show the essential nature of the char g ed crime.” Salazar , 86 S.W .3d at 644. I n this issue, Keller focuse s on evidenc e that he contends shows that there was no completed robber y and essentially ignor es the “attempted” portion of the char g e. For that rea son alone, Keller ’s conviction could arg uably be upheld. I n any event, we believe that the evidenc e prese nted tended to establish the “esse ntial nature ” of attempted robber y . Under the Pe n a l Co d e , an individual commits robber y if, “in the course of committing th e f t

. . . a n d w it h in te n t to o b ta in o r ma in

ta in c o n tr o l o f th e p r o p e r

ty , h e
. . . in

te n ti o n a ll y , k

n o w in g ly ,

or rec klessly cause s bodily injury to another .” Tex. Penal Code § 29.02(a)

. Moreove r, “‘[ i ] n t h e 19course of committing t h ef t ’ means conduct that occur s in an attempt to commit, during the commission, or in immediate flig ht afte r the attempt or commission of theft.” Id. § 29.01(1); see also Bustamante v. State , 106 S.W .3d 738, 740-41 (Tex. Crim. App. 2003) (expl ai n i n g that “an intent to steal may be inferr ed from circ umstantial evidenc e”) ; Russo v. State , 228 S.W .3d 779, 794 (Tex. App.—Austin 2007, pet. ref ’d) (noting that “[p] roof of a completed theft is not even require d” for rob b er y co n viction). An individual attempts to commit an offe nse if “with specific intent to commit an offe nse, he doe s an act amounting to more than mer e pre para tion that tends but fails to eff ect the c ommissi on of the off ense intende d.” Te x . Penal Code § 15.01(a ). During the trial, in addition to evidence establishing tha t Wright was shot and die d from those wounds, the following evidenc e rele vant to the char g e of robber y or attempted robber

y was introduce d:

• that Keller

targ eted dr

ug deale rs for r obbery ,

• that Perez and Wrig ht were known drug deale rs,

• that Keller

believed tha t Biddy

was a drug deale r,

• that Keller obtained a wea pon from Perez shortly befor e he robbed Waltrip,

• that Keller robbed Waltrip using that wea pon afte r Perez handed her money and later robbed B iddy

just a few hour s befor e the of fense at issue,

• that the wea

pon used by Keller to rob Biddy g ener ally matched the wea pon that he g ot from Pere z,

• that Keller

fired the wea

pon when B iddy

did not give him any

money ,

• that the casing from a car tridg e rec overe d from Biddy ’s proper ty matched the ca sing f

rom a c artridg e re cover ed fr om Wright’s home,

• that Keller asked Richardson to dr ive him to someone’s home on the night of the murde r,
20• that Keller asked if he could use Richardson’s phone to call someone sever al times while they

wer e driving ,

• that Richardson’s phone had been used to call Wright four times on the night that he wa s killed,

• that Richardson waited in the car for Keller to return afte r he went inside the home, and

• that rec ords from cell phone tow e r s n e a r Wr ig h t’s home place d Richardson’s phone in close pr ox imity

to Wright’s home a t the time of the murder

.

I n light of this evidenc e, we believe that some evidenc e independe nt of the statement Keller made to Buc kner was introduced tending to establish the essential nature of the crime of attempted robbe ry
. See H acke r , 389 S.W .3d at 866; Salazar , 86 S.W .3d at 644-45.
For these re asons, we ove rrule K eller’ s fourth issue on appe al.

Witness’s P rivilege Against Self-incrim ination

I n his final issue on appea l, K eller contends that the district court err ed by allowing

one of the witnesses at trial, Br andon Har g ett, to invoke his rig ht ag ainst self-inc rimination without inquiring into the leg itimacy of that invocation. At the time that he was called to testify , Har g ett had pending ag ainst him a motion seeking to revoke his probation for two burg lary convictions. When seeking to question Har g ett, Keller stated that Har g ett “has a g rea t deal of salient fac ts to our defe nse

a n d th a t w e n e e d to p r e s e n t. ” B e c a u s e th e tr ia l c o u

r t a ll e g e d ly a ll o w e d H a

r g e tt to in v o k e th e p r iv il e g e without perf

orming an inquiry , Keller contends that h i s S i x th Amendment rig ht to compulsory
proce ss was denied. See Boler v. State , 177 S.W .3d 366, 371 (Tex. App.—Houston [1st Dist.] 2005,

21pet. ref

’d) (stating that privileg e ag ainst self-inc rimination overr ides defe ndant’s rig ht to c o mp u ls o r y
proce ss of witnesses).

Under the Fifth Amendment, “[n] o person
. . . shall be compelled in any criminal case
to be a witness ag ai n s t h i mself.” U.S. Const. amend. V. The privileg e extends “‘to answe rs that would in themselves support a conviction

. . . but likewise embrace s those which woul d furnish a
link in the chain of evidence neede d to prosec ute t he claimant.’” Ohio v. Reiner , 532 U.S. 17, 21 (2001) (quoting Hoffman v. United States , 341 U.S. 479, 486 (1951))

. “[I ]t n ee d o n l y be evident from the implications of the question, in the setting in which it is asked, that a responsive answe r to the question or an explanation of why it cannot be answe red might be dang erous beca use injurious disclosure could result.” Hoffman , 341 U.S. at 486-87. The protec tions of the privileg e only extend

to wi t n es s es wi th “re asonable cause to appre hend dang er from a direc t answe r.” Id. at 486. I n
appra ising the propriety of the invocation, the trial court should be g overne d by the fac ts in evidenc e

an d t h e p ec u l iarities of the case , and “a trial court is require d to make an inquiry into th e

r easona bleness of a witness’s asser tion of the Fifth Amendment privile g e a g a in s t s e lf

- in c r im in a

ti o n
. ”
W alters v

. State , 359 S.W .3d 212, 215, 216 (Tex. Crim. App. 2011); see also id. at 215 (providing that “trial courts are require d to i n q u i re into the source and rea sonablene ss of” witness’s fea r of
prosec ution). But a trial court “ca nnot compel a witness to answe r unless it is perf ectly clea r, from

a car eful consideration of all the circ umstances in the case , that the witness is mistaken in asser ting the privileg e, and that the answe r cannot possibly tend to incriminate the witness.” Grayson v. State , 6 8 4 S. W. 2 d 6 9 1 , 6 9 6 ( T e x. Cr im

. A p p
. 1 9 8 4 )

. O n a

p p e a l, w e r e v ie w a tr ia l c o u r t’ s d e c is io n a ll o w in g

a witness to invoke his Fifth Amendment privileg e for an abuse of discretion. United States v.

22W

ashington , 318 F.3d 845, 856 (8th Cir. 2003); Cas t i l l o-Salgado v. State , No. 07-12-00393- CR,
2014 Tex. App. L EXI S 8312, at *4 (Tex. App.— Am ar i l l o J uly 30, 2014, no pet.) (mem. op., not desig nated f

or publication).
I n a hear ing held outside the prese nce of the jury , Har g ett explained that he intended

to invoke his Fifth Amendment rig ht beca use of the motion to revoke

. Fur ther, Har g ett clar ified that he was conce rned that his answe rs could be used ag ainst him during a revoc ation hear ing, and Keller ’s counsel responde d, “You are about a hundred perc ent rig ht on that, sir.” When discussing the matter, Keller ’s attorney stated that he wanted to question Har g ett but also informed the district

court a s follows:

Be ing a defe nse attorney , I am conce rne d w it h the g entleman’ s level of understanding of his predic ament. But I am also conce rned that if I proce ed at this po i n t an d t he jury comes in and I follow the questions that I am g oing to follow, any one of about three y es answe rs or even more will simply hasten and incre ase his rig ht of possibly g etting his probation revoke d.

. . . I don’t want to cre ate something that I can’ t undo.

The State responde d by say ing that it was “g oing to ask him a whole lot of stuff. We’re g oing to do

a full cross-e x amination about that motion to revoke and violation and ever y thing else.” Sho rt l y th e rea fter, the district court verifie d that Har g ett had been appointed an attorney reg arding the mo ti o n
to revoke and temporarily excused Har g ett so that he could confe r wit h his attorn ey reg arding the potential conseque nces of testify ing.
On the following day , the district court rec onvened and further addre ssed the issue, and Har g ett’s attorney was prese nt during the hear ing. I n that hear ing, Keller ’s attorney stated that he was not g oing to ask Har g ett “to step on his own rig hts” but stated that he wanted to ask Har g ett

23questions that he did not believe would “be incriminating to him, but mere ly g ener ic information.”

Fur ther, Keller ’s attorney proposed questioning Har g ett to see which questions, “if any , he may try
to exercise the Fifth for,” but then war ned, “I cannot speak for the State. So what I may acc omplish
in direc t the S t at e m ay want to expand on cross.” When discussing the predic ament, the State explained as follows:

That’s the conce rn, Your Honor. We are entitled to a full cross-e x amination and not a l i m i t ed cross-examination and that cross-e x amination without fail would subject this defe ndant to criminal liability reg arding things done on probation.

. . . And y ou can’t limit what we g et to ask him about and then he can’ t come back, well, I ’m g oing to take the Fif

th on some and talk about other s. I t’s all or nothing .”

Keller ’s attorne y

ag ree d and stated, “ I can’ t dispute what the State is say ing.” Then, Keller ’s attorney asked Ha rge t t whether and how long he knew Wright, whether he knew that Wright sold drug s, whether he visited Wright’s home reg ularly , whether and ho w well he knew Steglich, whether he had a tattoo of Steghlich’ s name, when he g ot the tattoo, whether he had acc ess to Steghlich’ s phone around the time of the offe nse at issue, and whether he

sent a text using her phone around the time of the offe nse discussing heroin that he or Steghlich “had acquir ed.” B ut Harg ett invoked the F ifth Amendment and did not answe r any of the que stions. After Har g ett invoked his Fifth Amendment rig ht, Keller’s att orney stated that the questions listed above “would be the questions that we would be asking ” in front of the jury and that “those questions

. . . would be critica l to the def en s e ca se, it would establish his knowledg e, his location and his wher ewithal on the day befor e the event and on the night o f the event and for a

24couple of day s afte r.” I n ad d i t ion, Keller ’s attorney repe ated that he believed that he would be

entitled to ask Har g ett if he wa s the author of the text concerning heroin. 7 Finally , Keller ’s attorney stated that he did not believe that those questions would be incriminating but stated that he did “not have the rig ht to g ive [Harg ett] advice so [he] would defe r
to [Harg ett’s] attorney .” After Har g ett ag ain invoked his Fifth Amendment rig ht, the State reque sted that this exchan ge not occur in front of the jury , and Keller ’s attorney stated, “I ’ve seen all of the
g entlemen I

need to se e.”
I n light of the above, we cannot agr ee with Keller ’s assertion that the di strict court failed to c onduct an inquiry into the l eg itimacy of Harg ett’s i nvocation. As mentioned above , the district court convene d a hear ing reg arding the matter outside the prese nce of t h e j ury
. Fur ther,

a lt h o u g h H a r g e tt w a s a s k e d f

e w q u e s ti o n s r e g a

r d in g h is c o n c e r

n s a b o u t te s ti f y in g , h e d id c o mm

u n ic a te that he was afr aid his answe rs would be used ag ainst him in a revoc ation proce eding

. M o re o ver, b o th th e St a

te a n d K e ll e r a g r e e d th a

t H a r g e tt ’ s c o n c e r

n s w e r e w e ll

- f

o u n d e d

. I n f a c t, K e ll e r s p e c if

ic a ll y stated that Har g ett’s answe rs would “haste n and incre ase” the probability of a revoc ation. I t was this

conce rn that prompted the district court to allow Har g ett an opportunity to consult with an attorney befor e testify ing, and Keller ag ree d to defe r to whateve r rec ommendation Har g ett’s attorney made.
I n addition , a lt

h o u g h H arg ett did not answe r them, the questions that Keller asked Har g ett conce rned,

Although Keller ’s attorney inquired whether Har g ett had sent a text mes s age , h e later 7 explained that the m essag e at issue was a voicemail messag e and not a text messag e. The subject of the voicemail had been mentioned during Waltrip’s testimony when Keller attempted to question Waltrip reg arding a messag e that she rec eived from Har g ett in which he alleg edly stated that Adrian Morin was involved in the death of Wright. When Keller asked Waltrip about the messag e, the State succe ssfully objected on hear say g rounds. L ater , in a hear ing outside the prese nce of the jury , Keller and the State ag ree d that the messag e had been deleted. The district court’s ruling reg arding the admissibili ty

of the voice mail is not an issue in thi s appea l. 25among other topics, whether Har g ett reg ularly socialized with an individual that sold il leg al drug s

a n d w h e th e r h e h a d o b ta in e d p o s s e s s io n o f d r u g s a f te r th e o f f e n s e in q u e s ti o n
. M o r e o v e r , th

r o u g h o u t 8
the t rial, Keller had arg ued that Har get t should have been investigate d as a suspect in the charg ed offe nse, and some of the que stions posed by Keller ’s attorney wer e desig ned to link Har g ett to the offe nse. See Ohio v. Reiner , 532 U.S. 17, 21-22 (2001) (explaining that it was rea sonable for witness

to fea r that answe rs might incriminate her when defe nse’s theory was that witness was responsible for victim’s death)

. Finally , afte r Har g ett ref used to answe r any of Keller ’s questions, Keller did not ask the district cour

t to make any

further inquiries reg arding the proprie ty of that invoca tion. After car efully revie wing the rec ord in this matter, we cannot conclude that the district c ourt abused its discr etion by failing to inquire into the leg itimacy of Har g ett’s invocation,

nor can we conclude that the district c ourt abused its discre tion by failing to c onclude that Har g ett

w a s mi s ta k e n w h e n a s s e r

ti n g th e p r iv il e g e b e c a

u s e th e a n s w e r s c o u ld n o t p o s s ib ly te n d to in c r im in a te him. Accor dingly , we ove rrule K eller’ s final issue on appe al.

CONCLUSION Having o v er ru l ed all of Keller ’s issues on appea l, we aff irm the district court’s judgme nt of conviction.

I n his brief, Keller points to a statement made by the district court in which the district court 8 descr ibed the motion to revoke as alleg ing technica l violations. Ba sed on this statem ent, Keller urg es that if a proper objection had been made, the State would not have been allowed to inquire into th e te c h n ic a l v io la

ti o n s o n c r o s s - e xa

mi n a ti o n
. S e e T e x. R. E v id

. 6 0 8 ( b ) ( p r o h i b i t i n g c ro s s - e x a m i n a t i o n reg arding specific instances of conduct by witness for “the purpose of attacking or sup p o rt i ng the witness’s credibility ”). Acc ording ly , Keller contends that “Ha rg ett’s a p p rehension of dange r was not well founded.” Howeve r, as summarized above , the answe rs to the questions posed by Keller could have been use d ag ainst Harg ett in a future proce eding

. 26__________________________________________ David Pury ear , J ustice
Be fore J ustices Pury ear , Pemberton, and F ield
Affir med Filed: Nove mber 20, 2014 Do Not Publish

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