Opinion issued December 19, 2013

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-11-00898-CR

———————————

CORNELL SMITH, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Case No. 1316670

O P I N I O N

A jury found appellant, Cornell Smith, Jr., guilty of the offense of murder,1

and the trial court assessed his punishment at confinement for forty years. In his 

first of six issues, appellant contends that trial court erred in allowing the State to 

 1 See TEX. PENAL CODE ANN. § 19.02 (Vernon 2011).
2

seek an illegal sentence and mislead the jury panel during voir dire. In his 

remaining issues, he contends that the trial court erred in admitting evidence of a 

previously-recorded interview of a witness, irrelevant and prejudicial evidence, 

evidence of an extraneous offence, and hearsay evidence.

We affirm appellant’s conviction, but reverse and remand for a new 

punishment hearing.

Background

Ned White, a maintenance man at the Apache Springs apartment complex, 

testified that on May 30, 2009, while walking through the complex, he saw two 

men, later identified as Daniel Sepeda, the complainant, and his younger brother, 

Gregory Ramos, washing a car. After White spoke to them for a few minutes, he

returned to an area outside of a friend’s apartment, where he watched television. 

White then saw two young black men pass by the apartment; one wore a bandana 

around his head and the other a bandana around his neck. White later heard two 

gunshots, ran inside his friend’s apartment, and locked the door. He then looked 

out from a window and saw the two men, each holding a handgun, run toward and 

then past his friend’s apartment. White exited the apartment to see that Sepeda had 

been shot.

Jessica DeLaRosa, a resident at the apartment complex, testified that on May 

30, 2009, she, while standing on her balcony, saw the complainant and a young
3

child washing a car in the apartment complex parking lot. Approximately one or 

two minutes after she went inside her apartment, she heard two gunshots. When 

she looked back to the parking lot, she saw two black men running away. 

Harris County Sheriff’s Office (“HCSO”) Sergeant C. Clopton testified that

at about 2:00 p.m. on March 30, 2009, he was dispatched to the apartment complex 

to investigate the shooting. Clopton identified three witnesses to the shooting: 

Laura Vincent, the complainant’s fiancé, Ramos, and White. Ramos, who was 

eleven years old at the time, appeared “very scared or traumatized” but “could

describe what had occurred.” Clopton interviewed Ramos and recorded the 

interview. 

Ramos testified that on May 30, 2009, he was helping the complainant wash 

his car. The complainant told Ramos to find Vincent, who lived at the apartment 

complex, and ask her to bring him his gun because he had seen someone watching 

him. Later, the complainant and Ramos were approached by two young black men

who said something to the complainant. Ramos could not remember what was 

said, but when the complainant stood up to face the men, he told Ramos to “get 

back.” Ramos climbed into the back seat of the car, and, approximately five 

seconds later, heard two gunshots. When he looked out of the car, he saw the 

complainant bleeding from his neck and the two men running away. Later, Ramos 

gave a recorded statement to a police officer. 
4

Ramos further testified that, at the time of trial, he remembered the 

“important” events of the shooting, but could not remember “every single detail.” 

On cross-examination, Ramos noted that he remembered telling a police officer 

that he had seen the complainant pull a gun from his waist. And, over appellant’s 

objection, the State then offered, and the trial court admitted into evidence, a 

redacted audio recording of Ramos’s statement to Sergeant Clopton. 

Bobby Williams, Jr., appellant’s cousin, testified that on May 30, 2009, 

Roderick Brooks, another cousin, picked him up in a white Buick to run errands. 

At some point, Brooks received a cellular telephone call, and the two drove to pick 

up appellant and Marquieth Jackson. Appellant then asked Brooks to drop him off 

at an apartment complex to meet some friends at around 12:30 or 1:00 p.m. After 

Brooks parked the car at the apartment complex, appellant and Jackson exited the 

car.

Approximately five minutes later, Williams heard a gunshot, and appellant 

ran back into the car, saying that someone “tried to rob him,” “the guy shot him,” 

and “he shot the guy.” Although Williams wanted to take appellant to the closest 

hospital, Houston Northwest Memorial Hospital, appellant insisted on going to 

Doctors Hospital, which was further away. Brooks told Williams to lie to law 

enforcement officers and state that they had picked up appellant and Jackson from 
5

a nearby convenience store. Williams later told officers that he did not know that 

appellant had a gun with him until he got back into the car after the shooting.

Houston Police Department (“HPD”) Officer T. Winn testified that on May 

30, 2009, he was dispatched to check on appellant at Doctors Hospital because he 

was a shooting victim. Appellant told Winn that he was shot and robbed while 

walking to a store in the 6800 block of West Montgomery. Winn investigated the 

parking lot of the store, but he did not see any evidence that a shooting had

occurred or find any witnesses. 

Glenn Bowie testified that on May 13, 2009, he walked to a gas station near 

his apartment to buy food. On his way to the gas station, two black men punched 

him in the ribs and mouth, stole his wallet, and drove away in a blue Cadillac. 

Law enforcement officers later asked Bowie to identify two potential suspects, and 

Bowie identified appellant and Jackson as the men who had robbed him. 

HPD Officer J. Salazar testified that on May 14, 2009, he received a call 

from Bowie claiming that he had seen the two men who had robbed him the 

previous day. Bowie told him that the men left in an “aqua blue” Cadillac with 

“front end damage.” Salazar later pulled over a car matching Bowie’s description. 

Appellant was driving the car, Jackson was in the passenger seat, and Chris Hines 

sat in the back seat. Bowie specifically identified appellant and Jackson as his 

assailants, and he later identified appellant from a photograph lineup.
6

Appellant testified that he had previously gotten into a fight with the 

complainant when he was in high school. On May 30, 2009, appellant and Jackson 

were walking back from a store when Brooks offered to give them a ride to the 

Apache Springs apartment complex to sell marijuana. When they arrived, Brooks 

handed a gun to appellant. After appellant and Jackson sold marijuana in one of 

the apartments, appellant “locked eyes” with the complainant. Appellant kept 

walking, but the complainant and Jackson soon began fighting each other. The 

complainant pulled a gun and fired it at Jackson, but he missed and struck 

appellant instead. Appellant then fired his gun at the complainant, turned around, 

and ran away.

Voir Dire

In his first issue, appellant argues that, during voir dire, the trial court erred 

in allowing the State to seek an “illegal sentence” and “misled the jury panel on the 

grave consequences of their potential verdict” because the State “erroneously 

informed potential jurors that [appellant] would be eligible for parole if he were 

convicted of capital murder, when in fact he was facing a sentence of life without 

the possibility of parole.”

A Harris County grand jury issued a true bill of indictment, accusing 

appellant of committing the offense of capital murder. See TEX. PENAL CODE ANN.
7

§ 19.03 (Vernon Supp. 2013). Prior to September 1, 2009, the Texas Penal Code 

provided that, 

In a capital felony trial in which the state does not seek the death 

penalty, prospective jurors shall be informed that the state is not 

seeking the death penalty and that a sentence of life imprisonment 

without parole is mandatory on conviction of the capital felony. 

Act of May 28, 2005, 79th Leg., R.S., ch. 787, § 1, 2005 Tex. Gen. Laws 2705,

2705 (amended 2009) (emphasis added) (current version at TEX. PENAL CODE ANN.

§ 12.31(b)(2) (Vernon Supp. 2013)). The Texas Legislature later amended the 

provision to provide that if a case is transferred from a juvenile court to a criminal 

district court, prospective jurors shall be informed that a sentence of life 

imprisonment with parole is mandatory on conviction of the capital felony. Act of 

May 29, 2009, 81st Leg., R.S., ch. 765, § 1, 2009 Tex. Gen. Laws 1930, 1930. The 

amendment states that the change only applies to offenses committed on or after 

September 1, 2009, the effective date of the amendment. Id. § 3. 

Here, the indictment alleged that appellant committed the offense of capital 

murder on or about May 30, 2009. Because he was sixteen years old at the time 

that he shot the complainant, appellant’s case was initially brought in a juvenile 

court and then transferred to the criminal district court. The trial court did not

instruct the venire panel pursuant to section 12.31(b). And appellant complains of 

the following statements made by the State during voir dire, discussing the 

applicable punishment in the case:
8

[STATE]: Well, the way it works with capital murder, 

you hear the case and decide whether or not 

the defendant committed the crime or not 

and it’s just by statute that the punishment is 

automatically life. For a certified juvenile, 

it’s not possible to seek the death penalty on 

them; but if they are convicted of capital 

murder, they get life in prison.

Now, an adult that gets convicted of capital 

murder gets life without the possibility of 

parole, but there is a distinction made for 

juveniles that are certified as adults. It’s a 

life sentence, but there’s a possibility of 

parole.

[VENIRE PERSON]: So, in this case, there is a possibility of 

parole?

[STATE]: I can’t go into the facts of this case; but if 

one is certified as a juvenile and they are 

charged with capital murder, convicted of 

capital murder, the sentence is automatic 

life. It can’t be death, life with the 

possibility of parole.

Appellant further complains of the following exchange between the State and 

another venire person:

[VENIRE PERSON]: I have a question. On the part about if they 

are certified as an adult and they are 

convicted, what is the longest sentence – I 

mean, you said that he could be paroled, but 

how long would they have to serve before 

they would be eligible for parole?

[STATE]: For a certified juvenile, they’re not eligible 

for parole until they have served 40 years.

[VENIRE PERSON]: Forty years? Four or forty?

[STATE]: Forty.
9

To the extent that appellant complains that the State engaged in improper 

jury argument during voir dire, we note that a party must both object and pursue 

the objection to an adverse ruling to preserve error regarding allegedly improper 

jury argument. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). 

Likewise, a defendant must timely object to remarks by the State and the trial court 

during voir dire. See Marshall v. State, 312 S.W.3d 743, 745 (Tex. App.—

Houston [1st Dist.] 2009, pet. ref’d); Espinosa v. State, 194 S.W.3d 703, 708 (Tex.

App.—Houston [14th Dist.] 2006, no pet.) (holding defendant failed to preserve

for review issue of improper argument by State because he did not object when

argument first made during voir dire). 

Here, appellant did not object to the State’s comments or request that the 

trial court instruct the venire panel pursuant to section 12.31(b). Without an 

objection, a defendant waives the complaint on appeal unless the alleged error was 

fundamental and affected substantial rights. See TEX. R. APP. P. 33.1(a)(1); see 

also Brewer v. State, 572 S.W.2d 719, 721 (Tex. Crim. App. 1978). A substantial 

right is affected when an error has a substantial and injurious effect or influence in 

determining a jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 

1997). If the error had no effect or only a slight influence on the verdict, it is 

considered harmless. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.

1998). 
10

Appellant argues that the complained-of comments constituted “drastic 

misinformation” and “fundamental error.” We note that the harm resulting from 

errors occurring in the context of jury formation can be difficult to discern from an 

analysis focusing on the ultimate outcome of a trial. See Ford v. State, 73 S.W.3d 

923, 925–26 (Tex. Crim. App. 2002). If a defendant does not present record 

evidence that demonstrates that the error deprived him of a jury comprised of 

legally-qualified jurors, we cannot say that he suffered harm.2

 Gray v. State, 233 

S.W.3d 295, 301 (Tex. Crim. App. 2007). Appellant points to nothing in the 

record indicating that the State’s comments or the trial court’s error in not 

instructing the venire panel pursuant to section 12.31(b) resulted in the empaneling 

of unqualified jurors. 

More importantly, the jury ultimately did not convict appellant of the 

offense of capital murder, but of the lesser-included offense of murder, and the trial 

court determined his punishment. We cannot conclude that the State’s comments 

had a “substantial and injurious effect or influence in determining a jury’s verdict.” 

 2 We note that in an unpublished opinion, the Texas Court of Criminal Appeals 

explained that a defendant was not harmed by a trial court’s error in not properly 

instructing a venire panel under section 12.31(b) because she failed to establish

that the error affected the legal qualifications of the venire members. Murphy v. 

State, No. PD-0798-08, 2009 WL 3368693, at *5–6 (Tex. Crim. App. Oct. 21, 

2009) (not designated for publication); see also McCluer v. State, No. 14-09-

00058-CR, 2010 WL 1438957, at *9–10 (Tex. App.—Houston [14th Dist.] Apr. 

13, 2010, pet. ref’d) (not designated for publication) (holding error harmless where 

defendant made no showing failure to instruct venire members pursuant to section 

12.31(b) resulted in deprivation of right to empanel qualified jurors).
11

See King, 953 S.W.2d at 271. Accordingly, we hold that appellant has not 

preserved this complaint for appellate review.

We overrule appellant’s first issue.

Recorded Recollection

In his second issue, appellant argues that the trial court erred in publishing to 

the jury Ramos’s prior recorded statement because “it was inadmissible hearsay 

that constituted improper bolstering and contained irrelevant and prejudicial 

material.”

We review a trial court’s decision to admit or exclude evidence for an abuse 

of discretion. See Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App.

2006). Therefore, we will not reverse a trial court’s ruling as long as it is within 

the “zone of reasonable disagreement.” See id.

Hearsay is a statement, other than one made by the declarant while testifying 

at trial, that is offered to prove the truth of the matter asserted. See TEX. R. EVID.

801(d). Hearsay statements are generally inadmissible. See TEX. R. EVID. 802. 

However, recorded recollections are excepted from the hearsay rule:

(5) Recorded Recollection. A memorandum or record concerning 

a matter about which a witness once had personal knowledge but now 

has insufficient recollection to enable him to testify fully and 

accurately, shown to have been made or adopted by the witness when 

the matter was fresh in his memory and to reflect that knowledge 

correctly, unless the circumstances of preparation cast doubt on the 

document’s trustworthiness. If admitted, the memorandum or record 
12

may be read into evidence but may not itself be received as an exhibit 

unless offered by an adverse party.

TEX. R. EVID. 803(5). 

The State, as the proponent of the evidence, had the burden of showing that 

Ramos’s previous statement was admissible under the hearsay exception. See 

Cofield v. State, 891 S.W.2d 952, 954 (Tex. Crim. App. 1994). Four prerequisites 

must be shown under rule 803(5). Johnson v. State, 967 S.W.2d 410, 416 (Tex.

Crim. App. 1998). First, the witness must have “insufficient recollection to enable 

the witness to testify fully and accurately” about the event; second, the 

“memorandum or record” must be one “made or adopted by the witness”; third, the 

recollection must have been recorded “when the matter was fresh in the witness’s

memory”; and fourth, the recorded recollection must “reflect” the witness’s prior 

“knowledge correctly[.]” TEX. R. EVID. 803(5).

Appellant argues that the trial court erred in admitting Ramos’s previous 

statement as a recorded recollection because Ramos, at trial, did not lack a present 

recollection of the events. Ramos testified that he did not remember if appellant 

and Jackson had said anything to the complainant when they approached him. He 

further testified, “I remember the important, big things that happened. And it was 

two years ago, so I don’t remember every single detail.” Finally, he stated that he 

told the law enforcement officer some details that he could “no longer remember” 

because it had “been so long” since the shooting. 
13

In the recorded statement played at trial, Ramos gave Sergeant Clopton

general background information regarding the complainant and his family, 

including that his parents were deaf and the complainant was planning to marry. 

Specific to the offense, Ramos stated several times that he heard one of the two 

men who approached the complainant say, “Hold still,” before he heard any 

gunshots. Ramos also stated that he saw the complainant pull the gun from his 

waistband and point it at the two men. However, at trial, he testified that he only 

saw the complainant stand up and he did not see the complainant pull the gun.

Although some of Ramos’s recorded statement contained similar 

information to that he related at trial, his testimony and the statement indicate that 

he was not able to remember all of the details regarding the incident. Accordingly, 

the trial court could have reasonably concluded that Ramos was not able to testify 

“fully” and “accurately” at trial. See, e.g., Spearman v. State, 307 S.W.3d 463, 470 

(Tex. App.—Beaumont 2010, pet. ref’d) (holding trial court could have reasonably 

concluded witness, who could not remember everything, could not testify fully and 

accurately, although he testified “to some recollection” of incident in question); 

Brown v. State, 333 S.W.3d 606, 613 (Tex. App.—Dallas 2009, no pet.) (holding

witness’s prior grand jury statement admissible under rule 803(5), although witness 

testified to some details at trial, where witness testified that he did not remember 

some details and recorded statement conflicted with some of his testimony).
14

Appellant also argues that because Ramos’s “live testimony was essentially 

the same as his recorded statement,” it “constituted improper bolstering.” 

“Bolstering” is “any evidence the sole purpose of which is to convince the 

factfinder that a particular witness or source of evidence is worthy of credit, 

without substantively contributing to make the existence of a fact that is of 

consequence to the determination of the action more or less probable than it would 

be without the evidence.” Cohn v. State, 849 S.W.2d 817, 819–20 (Tex. Crim. 

App. 1993) (emphasis in original) (citations omitted). Here, however, the State 

presented Ramos’s recorded statement because, in the statement, he told Sergeant 

Clopton that the men who approached the complainant told him to “hold still,”

which conflicted with appellant’s claim of self-defense.

Finally, appellant argues that the recorded statement was irrelevant and 

prejudicial because Ramos gave Sergeant Clopton a “description of [the 

complainant’s] life history.” See TEX. R. EVID. 402, 403. However, at trial, 

appellant objected to the statement only as “improper bolstering” and as

inadmissible under rule 803(5). Thus, appellant has not preserved these complaints 

for appellate review. See TEX. R. APP. P. 33.1(a); Geuder v. State, 115 S.W.3d 11, 

13 (Tex. Crim. App. 2003). 

Accordingly, we hold that the trial court did not abuse its discretion in 

publishing to the jury Ramos’s previous statement as a recorded recollection.
15

We overrule appellant’s second issue.

Irrelevant and Prejudicial Evidence

In his third issue, appellant argues that the trial court erred in allowing the 

complainant’s mother to testify because “[n]one of her testimony was relevant to 

the issues at trial” and the sole purpose of her testimony was “to inflame the jury 

with an emotional display.” In his fourth issue, appellant argues that the trial court 

erred in admitting into evidence pages from his “MySpace” internet account 

because they had “very little, if any, probative force” and “cast [him] in the light of 

a vulgar hooligan.”

All relevant evidence is admissible unless otherwise excepted by the 

Constitution, statute, or other rules. TEX. R. EVID. 402. Evidence is relevant if it 

has any tendency to make more probable or less probable the existence of a 

consequential fact. See TEX. R. EVID. 401; Moses v. State, 105 S.W.3d 622, 626

(Tex. Crim. App. 2003).

Relevant evidence “may be excluded if its probative value is substantially 

outweighed by the danger of unfair prejudice.” TEX. R. EVID. 403. The opponent 

of the evidence must demonstrate that the negative attributes of the evidence 

substantially outweigh any probative value. Montgomery v. State, 810 S.W.2d 

372, 377 (Tex. Crim. App. 1990). The relevant criteria in a rule 403 analysis 

include, but are not limited to, (1) the probative value of the evidence; (2) the 
16

potential to impress the jury in some irrational yet indelible way; (3) the time 

needed to develop the evidence; and (4) the proponent’s need for the evidence. 

State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005); Manning v. State,

114 S.W.3d 922, 927–28 (Tex. Crim. App. 2003).

Mother’s Testimony

Prior to the testimony of the complainant’s mother, Sandra Ramos, 

appellant’s counsel stated that he “fail[ed] to see the relevance” of the testimony 

and requested that the trial court first hear her testimony outside the presence of the 

jury. After the trial court denied the request, she testified that she recognized the 

complainant’s photograph in the State’s autopsy report. She also testified that the 

complainant was “intelligent” and “funny,” had learned sign language, had a job 

interview the day of the shooting, and had a child. When the State asked Ms. 

Ramos to describe the relationship between the complainant and Gregory Ramos, 

appellant stated that “this is going outside of the preview of the questions.” 

Although appellant’s counsel generally stated that he “fail[ed] to see the 

relevance” of Ms. Ramos’s testimony, he did not object to it or obtain a ruling 

from the trial court; he only requested a hearing from the trial court to determine 

the relevance of her testimony. To preserve error regarding the admission of 

evidence, a defendant must object each time that the inadmissible evidence is 

offered, or make a running objection, and obtain a ruling. See Lane v. State, 151 
17

S.W.3d 188, 193 (Tex. Crim. App. 2004). And, even assuming that appellant’s 

statement that Ms. Ramos’s testimony regarding the relationship of the

complainant and Gregory Ramos was “outside of the preview of the questions” 

constituted an objection, we note that such evidence had already been presented to 

the jury. Gregory had already testified, without objection, that he and the 

complainant were “[c]lose” and were together “[a]ll the time.” Accordingly, we 

hold that appellant has not preserved this complaint for appellate review.

We overrule appellant’s third issue.

MySpace Records

The State offered into evidence exhibit 210, a list of messages that appellant 

had received on his MySpace internet account, and exhibit 211, the front page of 

his MySpace webpage. Appellant objected to their admission in the following 

exchange:

[APPELLANT]: Judge, my position on the documents themselves, I 

fail to see the relevance under 403 or 404(b). I fail 

to see any relevance to these documents. I don’t 

think there is an issue of him being in Atlanta. 

They had a police officer testify that he arrested 

him in Atlanta. So, I think the purpose of these 

documents is only to further inflame the jury with 

prejudicial statements from Myspace. Even 

though he has redacted portions of it, Judge, if a 

jury reads that in conte[x]t, they may put together 

words that are not here under their own 

imagination and we think it’s prejudicial under 403 

and 404(b) and we think it’s irrelevant and it has 
18

no bearing whatsoever on this case. We would 

object to it coming in, Your Honor.

[STATE]: And 210 . . . is relevant because there are three 

specific references that we’ll show the jury that tell 

their communications to this defendant saying 

things along the lines of: Mommy said you need to 

get offline or delete all them pic because they look 

on Myspace. And then there’s another reference 

that says: I love you, too, baby. Be careful on this 

Myspace page. You can’t communicate with 

people you know.

And just, you know, the fact that they would be 

communicating that with him just further shows 

that he’s in hiding. It’s another sign of guilt, just 

like fleeing to Atlanta. There is actually no 

reference to Atlanta within these documents. We 

do have other documents from Myspace that do 

have that reference. We’re not offering that at this 

time.

And then the purpose of 211 is just to show that 

the pictures, which actually are referred to in some 

of the comments, show that it is, in fact, him that 

set up this account, Baby Cash Free, and, you 

know, just to tie up that these communications are, 

in fact, to [appellant].

[COURT]: Okay. Well, I agree with the State in that I think 

they are relevant. And I don’t see anything 

prejudicial about them, nothing. I think they’re 

rather benign. So, I’m going to allow them in.

HPD Officer C. Pool then testified that he obtained a search warrant to seize

appellant’s MySpace records and read aloud from exhibit 210 the following three 

messages:

• Mommy said you need to get offline or delete all of them pics 

because they look on Myspace, Fo.
19

• Hey, how are you doing? I heard what happened. I tried to call 

you, but you didn’t answer.

• I love you, too, baby. Be careful on Myspace page. You 

cannot communicate with people you know too. So, how you 

like the job.

All three messages were left in June 2009, approximately one to two weeks after 

the shooting of the complainant. 

The State argues that the MySpace records are relevant as evidence of 

appellant’s flight from authorities. Evidence of flight or attempts to cover up guilt

are relevant to show a defendant’s consciousness of guilt. Bigby v. State, 892 

S.W.2d 864, 884 (Tex. Crim. App. 1994); Cantrell v. State, 731 S.W.2d 84, 92 

(Tex. Crim. App. 1987). Here, however, each of the MySpace records is a 

comment made by appellant’s friends or family members, not appellant himself. 

However, even assuming that the trial court erred in admitting into evidence the 

MySpace records, we conclude that any such error was harmless. 

Error in the admission of evidence constitutes non-constitutional error that is 

subject to a harm analysis under Texas Rule of Appellate Procedure 44.2(b). Johnson,

967 S.W.2d at 417. Under rule 44.2(b), any non-constitutional error that does not affect 

substantial rights must be disregarded. Barshaw v. State, 342 S.W.3d 91, 93 (Tex. 

Crim. App. 2011). “A substantial right is affected when the error had a substantial 

and injurious effect or influence in determining the jury’s verdict.” King, 953 

S.W.2d at 271. A conviction should not be overturned for such error if this Court, 
20

after examining the record as a whole, has fair assurance that the error did not 

influence the jury, or had but a slight effect. Cobb v. State, 85 S.W.3d 258, 272 

(Tex. Crim. App. 2002).

Here, as noted by the trial court, the vast majority of the messages admitted 

were “rather benign.” Appellant asserts that the records were prejudicial largely 

due to “vulgarity,” but the State and trial court agreed to redact any vulgar 

language from the records. And the evidence took very little time for the State to 

develop. Most of Officer Pool’s testimony concerned other aspects of his 

investigation, and the majority of the questioning was done by appellant in crossexamination. Accordingly, we have fair assurance that any error of the trial court 

in admitting the MySpace records and photos of appellant did not influence the 

jury, or had but a slight affect. See id.

We overrule appellant’s fourth issue.

Extraneous Offense

In his fifth issue, appellant argues that the trial court erred in admitting 

evidence of an “unadjudicated extraneous robbery” because he did not open the 

door to its admission and the robbery was not substantially similar to the instant 

offense.

Evidence of extraneous offenses is not admissible to prove the character of a 

person in order to show that he acted in conformity therewith. TEX. R. EVID.
21

404(b); Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). However, 

such evidence may be admissible for other purposes, such as proof of motive, 

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake 

or accident. TEX. R. EVID. 404(b). 

Extraneous-offense evidence is admissible to rebut a defensive theory as 

when raised in an opening statement or through the cross-examination of the 

State’s witnesses. See Ransom v. State, 920 S.W.2d 288, 301 (Tex. Crim. App. 

1994) (concluding trial court did not err in admitting evidence to rebut defensive 

theory raised on cross-examination of State’s witnesses). However, the fact that a 

State’s witness was cross-examined does not, in and of itself, authorize the 

introduction of extraneous-offense evidence. Caldwell v. State, 477 S.W.2d 877, 

879 (Tex. Crim. App. 1972). The responses elicited from a State’s witness on 

cross-examination must be sufficient to construct a defensive theory before the 

State may introduce extraneous-offense evidence in rebuttal. See Walker v. State, 

588 S.W.2d 920, 922–23 (Tex. Crim. App. 1979). To raise a defensive theory 

sufficient to open the door to the introduction of extraneous-offense evidence, the 

cross-examination responses must undermine the State’s testimony and effectively 

place in controversy a fact that testimony was offered to prove. See Clark v. State, 

726 S.W.2d 120, 122 (Tex. Crim. App. 1986). 
22

Evidence of an extraneous offense is admissible if it is relevant to show 

intent. TEX. R. EVID. 404(b); Santellan v. State, 939 S.W.2d 155, 168–69 (Tex. 

Crim. App. 1997). Intent can be characterized as a contested issue for purposes of 

justifying the admission of extraneous offense evidence if the required intent for 

the primary offense cannot be inferred from the act itself or if the defendant

presents evidence to rebut the inference that the required intent existed. Caro v. 

State, 771 S.W.2d 610, 617 (Tex. App.—Dallas 1989, no pet.); McGee v. State,

725 S.W.2d 362, 364 (Tex. App.—Houston [14th Dist.] 1987, no pet.). Intent is 

most clearly in issue when the defendant argues that the charged offense was 

unintentional or the result of an accident. Keller v. State, 818 S.W.2d 425, 428–29

(Tex. App.—Houston [1st Dist.] 1991, pet. ref’d).

Here, the indictment alleged that appellant committed the murder of the 

complainant in the course of committing a robbery. And specific intent is an 

essential element of capital murder. TEX. PENAL CODE ANN. § 19.03 (Vernon 

Supp. 2013); Johnson v. State, 932 S.W.2d 296, 301 (Tex. App.—Austin 1996, 

pet. ref’d). In his opening statement, appellant directly refuted that he shot the 

complainant in the course of committing a robbery, arguing,

The prosecutor just told you a few moments ago you are going to have 

to put the puzzle together. He left something out. He just told you a 

few moments ago that [appellant] went to the location to rob – to take 

a vehicle, but he goes and runs away with a gun. We don’t deny that 

[appellant] was at that location. . . . That was the car he was supposed 
23

to be going to steal, as opposed to – according to the prosecutor’s 

story. . . .

Yeah, [appellant] was at that location and he wasn’t doing something 

honorable, but he wasn’t robbing anybody. . . . 

I want you to look at that exhibit, that photograph because the vehicle 

that [appellant] was supposed to steal was still there. Not only was his 

vehicle there, but his wallet was on it. It was no robbery, folks. Can 

you tell me if I am going to go there and rob you, I don’t take the 

vehicle, I don’t take your wallet, I don’t take anything. . . . 

If it was such a robbery, why didn’t they take something? Shoot a 

man, he’s down. I’m there to take his car, I don’t take the car. I don’t 

go to his wallet. I don’t take anything from him of value. Why?

Appellant also cross-examined witnesses as to whether the scene reflected 

whether a robbery had been committed. He asked Ned White whether the 

complainant’s car was still at the scene and whether the complainant’s pockets 

“were pulled out as though someone had gone and ruffled through his pockets.” 

Appellant also asked Gregory Ramos, “Did you ever [hear] the black males say: 

I’ve got a gun on you, we’re going to rob you, take your car? You ever hear that?” 

And appellant engaged in the following line of questioning with Ramos:

[APPELLANT]: You do know that after the shooting your brother 

was laying down on the ground; is that correct?

[RAMOS]: Yes.

[APPELLANT]: You do know – was the car door still opened?

[RAMOS]: Yes.

[APPELLANT]: The CD was still playing?

[RAMOS]: Yes.

[APPELLANT]: So, someone would know that the keys are still in 

the car?
24

[RAMOS]: Yes.

[APPELLANT]: You do know that after shooting the gentlemen 

who were walking never ran towards the car and 

jumped in and took the car and left; is that correct?

[RAMOS]: Yes, they never jumped in and took the car and 

left.

[APPELLANT]: Did you ever hear at any time any of those 

gentlemen, black gentlemen say: This is a robbery, 

give me your car?

[RAMOS]: No, they did not say this is a robbery, give me your 

car.

The State then sought to introduce evidence regarding the robbery of Glenn 

Bowie, which occurred seventeen days before the shooting of the complainant. In 

support of its admission, the State asserted that “the issue of their intent to rob this 

individual has been put at issue.” The trial court concluded,

I see the State’s point of it. And I agree with you that there has been 

an impression made by you asking the same question often. And did 

anybody come up and say this to you? Did they say, give me your car 

and give me your keys? I’m going to take your car. This is an 

aggravated robbery. If they have one substantially like that out there, 

I think you’re opening the door.

Appellant asserts that he did not “undermine the State’s testimony” or 

establish a “defensive theory” justifying the admission of the extraneous robbery 

under rule 404(b). However, the record reveals that appellant repeatedly asserted

during his opening statement that there was no indication that the shooting took 

place during a robbery. And appellant cross-examined two witnesses as to whether 

appellant and Jackson acted in a manner consistent with a robbery. Both these 
25

points were directed at appellant’s intent in shooting the complainant, an essential 

element of the State’s case, in which it alleged that appellant committed the 

shooting intentionally in the course of committing a robbery. Thus, the trial court 

could have reasonably concluded that appellant had opened the door to the 

admission of the evidence concerning the robbery of Bowie. See Powell, 63 

S.W.3d at 439–40 (concluding trial court did not err in admitting evidence to rebut 

defensive theory raised in opening statement); see also Ransom, 920 S.W.2d at 

301. 

Appellant also asserts that the two offenses were not substantially similar. 

However, when extraneous evidence is offered on the issue of intent, Texas courts 

have held that there is less need to show significant similarity between the facts of 

the other incidents and those of the case being tried. Johnson, 932 S.W.2d at 302. 

The degree of similarity simply need not be as great if offered to prove the issue of 

intent. See Bishop v. State, 869 S.W.2d 342, 346 (Tex. Crim. App. 1993); Morrow 

v. State, 735 S.W.2d 907, 909–10 (Tex. App.—Houston [14th Dist.] 1987, pet. 

ref’d). Here, Bowie was not shot; he was punched and his wallet was stolen. 

However, both incidents involved Jackson and appellant committing an offense

together and involved the two approaching an unsuspecting person in a parking lot. 

Moreover, the robbery of Bowie took place only seventeen days before the 

shooting of the complainant. Under these circumstances, the trial court could have 
26

reasonably concluded that the robbery of Bowie was substantially similar to the 

offense for which appellant was being tried. Accordingly, we hold that the trial 

court did not err in admitting evidence of the robbery of Bowie.

We overrule appellant’s fifth issue.

Punishment Evidence

In his sixth issue, appellant argues that the trial court, during the punishment 

phase of trial, erred in admitting into evidence disciplinary records from the Harris 

County Jail, the Harris County Probation Department, and the Texas Youth 

Commission because the offense reports constituted hearsay and were not 

admissible under the business records exception to the hearsay rule. See TEX. R.

EVID. 803(6). Appellant asserts that the admission of these records into evidence 

violated his United States Constitution Sixth Amendment right to confront the 

witnesses against him. 

Waiver

The State first argues that appellant waived his complaint regarding the 

admission of his disciplinary records because although appellant “objected to 

voluminous records with the jail, juvenile probation, and [Texas Youth 

Commission],” he “failed to specifically refer to material deemed objectionable in 

those records.” And the State asserts that “[m]uch of those records were relevant 

and admissible.”
27

“[F]ailure to object in a timely and specific manner during trial forfeits 

complaints about the admissibility of evidence. This is true even though the error 

may concern a constitutional right of the defendant.” Saldano v. State, 70 S.W.3d 

873, 889 (Tex. Crim. App. 2002) (footnote omitted); see Briggs v. State, 789

S.W.2d 918, 923 (Tex. Crim. App. 1990) (noting constitutional error may be 

waived). General rules of preservation must be followed to preserve error on 

Confrontation Clause grounds. See Paredes v. State, 129 S.W.3d 530, 535 (Tex. 

Crim. App. 2004) (holding Confrontation Clause argument not preserved because 

of failure to object on that ground in trial court); see also Reyna v. State, 168 

S.W.3d 173, 176–77 (Tex. Crim. App. 2005) (applying error preservation 

requirement with regard to Confrontation Clause argument). 

When an exhibit contains both admissible and inadmissible material, the 

objection must specifically refer to the material deemed objectionable. See Brown 

v. State, 692 S.W.2d 497, 501 (Tex. Crim. App. 1985); Maynard v. State, 685 

S.W.2d 60, 64–65 (Tex. Crim. App. 1985); Wintters v. State, 616 S.W.2d 197, 202 

(Tex. Crim. App. 1981); Hernandez v. State, 599 S.W.2d 614, 617 (Tex. Crim. 

App. 1980).

Here, at the punishment hearing, the State first sought to admit into evidence 

Exhibit 228, appellant’s disciplinary records from his time in jail. Appellant 

objected,
28

Your Honor, for the record Exhibit 228 has statements about 

incidents, events that happened from other people, hearsay. Unless 

they are going to bring those witnesses in and I have the opportunity 

to cross-examine[] them, I would object to any document that contains 

hearsay, what someone else said. It denies me confrontational—

hearsay confrontational objection. So, anything that has to do with 

what anyone else says in the file, any statements made by someone 

else, or conclusions made by someone else, I would object to its 

admission.

The State responded, “These are all business records that are kept by the jail. 

They’re an exception to hearsay for that purpose.” The State asserted,

In those incidents the officers are not referring to a detailed narrative 

of the actual facts that happened. If they break up a fight, they are not 

detailing what actually happened in the fight. They are just detailing 

the witnesses that were involved and the fact that there was an 

infraction. And furthermore, the statements made by the police 

officers in the reports are not made for the purpose of anticipated 

testimony or litigation which would be kind of at the heart of any 

confrontation clause issues. They are simply made just to document a 

disciplinary infraction by this inmate at the Harris County Jail. These 

are not things that—you know, statements given in anticipation of any 

kind of testimony to be given.

You know, we can call every single officer from every single incident, 

but we are going to be here until some time next week if we do that for 

the jail and for TYC and for juvenile probation. And I think that’s at 

the heart of why these records come in as a business records 

exception, and, you know, why jail records and parole records, 

disciplinary records, come in as an exception to hearsay.

(Emphasis added.) The trial court overruled appellant’s objection, stating, “These 

are business records and they have been on file for more than 10 days before trial. 

And they are held and recorded through regular business.”
29

Although appellant was required to make a timely and specific objection in 

order to preserve his Confrontation Clause issue, no specific language is necessary 

to preserve a complaint for appellate review. Layton v. State, 280 S.W.3d 235, 239 

(Tex. Crim. App. 2009). All a party must do to preserve a complaint is to “let the 

trial judge know what he wants, why he thinks he is entitled to it, and to do so 

clearly enough for the judge to understand him at a time when the trial court is in a 

proper position to do something about it.” Id. (quoting Lankston v. State, 827 

S.W.2d 907, 909 (Tex. Crim. App. 1992)).

Here, although appellant did not specifically object to certain page numbers 

of the complained-of documents, it is clear from the record that both the State and 

the trial court understood the nature of his objection. The State’s response to his 

objection was specifically directed at the testimonial statements of officers and 

witnesses in the disciplinary records that described appellant’s infractions in detail. 

And the State specifically argued that appellant was not entitled to confront those 

witnesses because of the “time” it would take to call each of them to testify. 

Moreover, the trial court, in overruling appellant’s objection, clearly agreed with 

the State. Accordingly, we hold that appellant has preserved his Confrontation 

Clause complaint for review in regard to Exhibit 228.

The State later offered into evidence Exhibits 234 through 238, appellant’s 

probation records. Appellant again objected on “hearsay, confrontational” 
30

grounds, and the trial court overruled his objection. And the State offered into 

evidence Exhibit 240, appellant’s records from the Texas Youth Commission. 

Appellant objected, stating, “The objection I had made previously, we feel it’s 

hearsay, the confrontational issue.” The trial court overruled the objection and 

admitted the exhibit into evidence, stating, “These are business records.” Thus, in 

regard to Exhibits 234 through 238 and Exhibit 240, the trial court understood 

appellant’s confrontation objection to be based on his previous argument as well. 

Accordingly, we hold that appellant has preserved his Confrontation Clause 

complaint for review in regard to Exhibits 234 through 238 and Exhibit 240.

Testimonial Statements

The Confrontation Clause of the Sixth Amendment bars the admission of 

testimonial statements of a witness who does not appear at trial unless the witness 

is unavailable and the defendant had a prior opportunity to cross-examine the 

witness. Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369 (2004); 

Russeau v. State, 171 S.W.3d 871, 880 (Tex. Crim. App. 2005). Generally 

speaking, a statement is “testimonial” if it is a solemn declaration made for the 

purpose of establishing some fact. Crawford, 541 U.S. at 51, 124 S. Ct. at 1364; 

Russeau, 171 S.W.3d at 880.

In Russeau, the State introduced into evidence at the defendant’s punishment 

hearing “incident reports” from the Smith County Jail and “disciplinary reports” 
31

from the Texas Department of Criminal Justice. 171 S.W.3d at 880. The reports 

contained “statements which appeared to have been written by corrections officers 

and which purported to document, in the most detailed and graphic of terms, 

numerous and repeated disciplinary offenses” by the defendant when he was 

incarcerated. Id. The corrections officers also “relied upon their own observations 

or, in several instances, the observations of others.” Id. Several of the written 

reports were read aloud to the jury during the punishment phase. Id.

The Texas Court of Criminal Appeals held that the reports contained 

inadmissible statements under the Confrontation Clause because they contained 

“testimonial statements” from corrections officers whom the defendant did not 

have the opportunity to cross-examine. Id. at 880–81. The court noted that the 

statements in the reports “amounted to unsworn, ex parte affidavits of government 

employees and were the very type of evidence the [Confrontation] Clause was 

intended to prohibit.” Id. at 881 (citing Crawford, 541 U.S. at 50, 124 S. Ct. at 

1363).

In contrast, in Ford v. State, the State sought to introduce into evidence at a 

punishment hearing “inmate disciplinary grievance records from the Harris County 

Jail.” 179 S.W.3d 203, 208 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). 

The records were read into evidence as follows:

February 5th, 2004, the defendant was charged fighting. Seven days 

loss of privileges, found guilty. October 15, 2003, extortion. June the 
32

11th, 2003, extortion, ten days loss of privileges. April the 21st, 2003, 

assault on an inmate. April 21st, 2003, horseplaying, altercation, five 

days’ loss of privileges. February the 24th, 1998, 25 days loss of 

privileges for fighting. February the 18th, 1998, fighting. February 

the 18th, 1998, fighting. And again February the 18th, fighting.

Id. The court contrasted the records with those at issue in Russeau, describing 

them as “sterile recitations of appellant’s offenses and the punishments he received 

for those offenses.” Id. Thus, the court concluded, the disciplinary records did not 

contain statements that could be considered testimonial in nature. Id.

Here, the documents contain several testimonial statements similar to those 

at issue in Russeau. For example, appellant’s disciplinary records from the Harris 

County Sherriff’s Office contained the following passage from Detention Officer 

M. Nguyen:

I observed an unidentified inmate standing in the shower of cellblock 

5D1 looking directly at me and appeared to be holding his penis. 

Deputy Gilbert and I ordered the inmate to get out of the shower and 

participate with the inmate count. At approximately 09:05 hours, 

while conducting another visual security check, I observed the inmate 

standing in the shower with his issued county T-shirt off and half of 

his issued county pants off looking directly at me while holding and 

stroking his penis.

Appellant’s disciplinary records from the Texas Youth Commission contain similar 

testimonial statements. For example, one incident report contained a statement 

from Anita Hyman that reads as follows:

[Appellant] was disrupting in Ms. Richmond’s class. He was sent out 

to security. Youth refused to go. Student was counseled by staff and 

refused to comply. Mr. Henderson tried counseling with [appellant]. 
33

He refused all counseling. Youth then moved away from staff trying 

to run. I grabbed [appellant] to place him in a standing PRT. 

[Appellant] balled his fists up and swung at staff. Mr. Henderson took 

[appellant] and placed him into a part. At this time Mr. Spearman . . . 

came to assist. I then went down and secured his legs.

This statement, along with several others from the Texas Youth Commission 

documents, was read aloud at the punishment hearing. Unlike the statements at 

issue in Ford, these statements contained subjective observations from witnesses 

who did not testify at trial. Accordingly, we hold that the trial court abused its 

discretion in admitting the reports into evidence over appellant’s hearsay and

Confrontation Clause objections. See Russeau, 171 S.W.3d at 880–81; Grant v. 

State, 218 S.W.3d 225, 231 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) 

(stating that “presence or absence of a subjective narration of events related to [the 

defendant’s] guilt or innocence” establishes difference between testimonial and 

non-testimonial statements).

Although the trial court erred in admitting this evidence, we nevertheless 

will affirm if we determine beyond a reasonable doubt that the harm from the error 

did not contribute to the defendant’s punishment. Russeau, 171 S.W.3d at 881. In 

determining whether error in admitting testimonial statements in violation of 

Crawford is harmless beyond a reasonable doubt, we consider: (1) the importance 

of the testimonial statements to the State’s case; (2) whether the statements were 

cumulative of other evidence; (3) the presence or absence of evidence 
34

corroborating or contradicting the statements on material points; and (4) the overall 

strength of the State’s case. Davis v. State, 203 S.W.3d 845, 852 (Tex. Crim. App.

2006) (citing Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438 

(1986)); Grant, 218 S.W.3d at 233. The error does not require reversal unless 

there is “a reasonable possibility that the Crawford error, within the context of the 

entire trial, ‘moved the jury from a state of non-persuasion to one of persuasion’ on 

a particular issue.” Davis, 203 S.W.3d at 852–53 (quoting Wesbrook v. State, 29

S.W.3d 103, 119 (Tex. Crim. App. 2000)).

Here, as in Russeau, the State spent a substantial amount of time at the 

punishment hearing introducing appellant’s disciplinary records. With the 

exception of one witness, Officer T. Vaughn, who testified that appellant had

threatened him during his incarceration, none of the many testimonial statements 

were cumulative of the State’s other witnesses. Also as in Russeau, the State had a 

sponsoring witness read several of the testimonial statements off the records from 

the Texas Youth Commission. And, as in Russeau, the State made several 

references to appellant’s disciplinary records during its closing argument. For 

example, at one point, the State argued,

Even in a disciplined, supervised facility, this man could not in any 

form or fashion play by the rules, could not possibly keep himself 

together, keep himself in order . . . . And he couldn’t control himself 

at the Texas Youth Commission.
35

Although the State did admit other evidence during the punishment phase, we 

cannot conclude beyond a reasonable doubt that the trial court’s error did not 

contribute to appellant’s punishment. See Russeau, 171 S.W.3d at 881. 

Accordingly, we hold that appellant did suffer harm from the trial court’s error in 

admitting the complained-of disciplinary records.

We sustain appellant’s sixth issue.

Conclusion

We affirm the judgment of the trial court as to appellant’s conviction, 

reverse the judgment of the trial court as to appellant’s punishment, and remand 

this cause for a new punishment hearing.

Terry Jennings

Justice 

Panel consists of Justices Jennings, Bland, and Massengale.

Publish. TEX. R. APP. P. 47.2(b).