NO. PD-0733-15

COURT OF CRIMINAL APPEALS

TEXAS RULES OF APPELLATE PROCEDURE, RULE 68.4

 

JUSTIN McGEE

v.

THE STATE OF TEXAS

 

On Petition for Discretionary Review

from the Fourteenth Court of Appeals in

No. 14-14-00067-CR Affirming the

Conviction in No. 1387993 from the

262nd Judicial District Court

of Harris County, Texas

 

APPELLANT’S PETITION FOR

DISCRETIONARY REVIEW

 

ALLEN C. ISBELL

2016 Main St., Suite 110

Houston, Texas 77002

713-236-1000

Fax No. 713-236-1809

STATE BAR NO. 10431500

Email: allenisbell@sbcglobal.net

COUNSEL ON APPEAL

PD-0733-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 7/23/2015 1:45:58 PM

Accepted 7/24/2015 11:03:09 AM

ABEL ACOSTA

CLERK
NAMES AND ADDRESSES OF ALL PARTIES

AT THE TRIAL COURT’S FINAL JUDGMENT

Trial Judge

Honorable Terry Flenniken, Visiting Judge Presiding

262nd District Court

1201 Franklin, 15th Fl., Houston, Texas 77002

Appellant/Defendant

Mr. Justin McGee

#1902890

Robertson Unit, 12071 FM 3522, Abilene, Texas 79601

Appellant’s Counsel

Mr. Allen C. Isbell - Counsel on Appeal

2016 Main St., Suite 110, Houston, Texas 77002

Mr. R. P. “Skip” Cornelius - Counsel Attorney at Trial

2028 Buffalo Terrace, Houston, Texas 77019

Attorneys for the State of Texas

Ms. Kelli Johnson - Assistant District Attorney at Trial

1201 Franklin, 6th Fl., Houston, Texas 77002

Mr. Hans T. Nielsen - Assistant District Attorney at Trial

1201 Franklin, 6th Fl., Houston, Texas 77002

Mr. Alan Curry - Assistant District Attorney on Appeal

1201 Franklin, Ste. 600, Houston, Texas 77002

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TABLE OF CONTENTS

PAGE

Names and Addresses of All Parties at the Trial Court’s Final Judgment

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . iv

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of Procedural History ............................1

Ground for Review Number One

Whether extraneous offense evidence offered to prove motive is

automatically admissible under Texas Rules of Evidence, Rule

404(b), even when motive is not a contested issue. ..........1

Ground for Review Number Two

Whether the court of appeals is correct in concluding that the trial

court does not abuse its discretion by admitting evidence of an

extraneous drug transaction between the parties to prove motive

when the State has direct evidence to show motive. ..........2

Reason for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Brief Statement of Pertinent Facts ..........................2

Brief Argument .........................................4

Conclusion and Prayer ...................................5

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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INDEX OF AUTHORITIES

CASES PAGE

Lane v. State, 933 S.W.2d 505 (Tex.Crim.App. 1996) ................5

Morgan v. State, 692 S.W.2d 877, 880 (Tex.Crim.App. 1985) .........5

Pavlacka v. State, 892 S.W.2d. 897 (Tex.Crim.App. 1994) ............5

Prior v. State, 647 S.W.2d 956, 959 (Tex.Crim.App. 1983) ............5

Rankin v. State, 974 S.W.2d 707 (Tex.Crim.App. 1996) . . . . . . . . . . 2, 4-5

STATUTES

Texas Rules of Appellate Procedure, Rule 66.3(b) and (c) ............2

Texas Rules of Evidence, Rule 404(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 1-4

STATEMENT REGARDING ORAL ARGUMENT

Oral argument is waived.

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TO THE HONORABLE COURT OF CRIMINAL APPEALS:

COMES NOW JUSTIN McGEE, appellant in the above entitled and

numbered cause, by and through his appointed counsel, ALLEN C. ISBELL,

and petitions the Court of Criminal Appeals to review the opinion by the

Fourteenth Court of Appeals, and respectfully shows this Court the following

in support of his petition.

Statement of the Case

This appeal is from a conviction for Capital Murder arising out of the

262nd District Court of Harris County, Texas, the Honorable Terry Flenniken,

Visiting Judge Presiding. The jury found appellant guilty. The judge assessed

punishment at LIFE imprisonment in the Texas Department of Criminal

Justice, Institutional Division.

Statement of Procedural History

The Fourteenth Court of Appeals handed down an opinion affirming the

conviction on May 28, 2015. Appellant filed a Motion for Extension of Time

to file the petition. This petition is filed within the time allowed by law.

Ground for Review Number One

Whether extraneous offense evidence offered to prove motive is

automatically admissible under Texas Rules of Evidence, Rule 404(b),

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even when motive is not a contested issue. 

Ground for Review Number Two

Whether the court of appeals is correct in concluding that the trial court

does not abuse its discretion by admitting evidence of an extraneous

drug transaction between the parties to prove motive when the State has

direct evidence to show motive.

Reason for Review

The Court of Appeals has rendered an opinion interpreting Texas Rules

of Evidence, Rule 404(b) that conflicts with the rationale of this Court in

Rankin v. State, 974 S.W.2d 707 (Tex.Crim.App. 1996). The specific question

is whether extraneous offense evidence offered to show motive pursuant to

Texas Rules of Evidence, Rule 404(b) is admissible when there is no

contested fact of consequence to which it is relevant, or when there is direct

evidence to prove motive. This is an important question of State law that has

not been, but should be, settled by this court. Texas Rules of Appellate

Procedure, Rule 66.3(b) and (c).

Brief Statement of Pertinent Facts

Appellant was charged with the offense of capital murder either by

committing the murder of Cameron Dansby during the course of a kidnaping

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or during the course of a robbery (C.R. I, 5). Before introducing the testimony

of co-defendant Richard Bartholomew, who testified for the prosecution, the

State introduced evidence of an extraneous drug transaction that occurred

two weeks prior to the alleged offense . Appellant objected that the evidence

was not relevant in this case and was unduly prejudicial (R.R. 4, 31). 

At trial and on appeal, the State took the position that such extraneous

offense evidence is relevant to show motive, and it is always admissible under

Texas Rules of Evidence, Rule 404(b)(R.R. 4, 126)(State’s Brief, pp. 9-10). 

 Before overruling appellant’s objection, the trial court did not ask whether the

State had direct evidence to show motive, nor did it make any other inquiries

to determine relevancy and admissibility (R.R. 4, 131-132). The Fourteenth

Court of Appeals noted that the State spent more than a minimal amount of

time developing this evidence through the testimony of many witnesses

(Memorandum Opinion, p. 8). 

The State called co-defendant Bartholomew who gave direct evidence

regarding the motive for the capital murder. He testified that they planned to

rob Cameron Dansby and his friends of drugs. Dansby was kidnaped to find

out where the stash of drugs was kept (R.R. 5, 195). Dansby was killed

because he did not give them that information. Also, Bartholomew testified

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that Dansby was killed because appellant feared that Dansby’s friends would

come after them, if Dansby told them about the planned robbery (R.R. 5, 193,

202-203, 209-210). Even if motive were a contested issue, the State knew it

had an accomplice witness who was going to explain the motive for the capital

murder of Cameron Dansby.

Brief Argument

 The second sentence in Texas Rules of Evidence, Rule 404(b) allows

for the introduction of evidence of other crimes, wrongs or acts for purposes

other than showing character conformity, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or fact. 

Motive is not a required element of any criminal offense, but it may aid

in establishing proof of an alleged offense. In Rankin v. State, 974 S.W.2d

707, 709-710 (Tex.Crim.App. 1996) the Court of Criminal Appeals explained

that the mere fact that a party offers such evidence for a purpose other than

character conformity does not, in itself, make that evidence admissible. 

Admissibility of Rule 404(b) evidence hinges on the relevancy of that 

evidence to a “fact of consequence.” A “fact of consequence” is either an

elemental fact or an evidentiary fact from which an elemental fact can be

inferred. 

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In Rankin, the Court of Criminal Appeals followed the rationale in

Morgan v. State, 692 S.W.2d 877, 880 (Tex.Crim.App. 1985); Prior v. State,

647 S.W.2d 956, 959 (Tex.Crim.App. 1983); Lane v. State, 933 S.W.2d 505

(Tex.Crim.App. 1996); and Pavlacka v. State, 892 S.W.2d. 897

(Tex.Crim.App. 1994), holding that when the State’s direct evidence shows

the elemental fact of intent or identity, and that evidence is not contradicted

or undermined, the offer of other crimes is unjustified due to lack of relevancy.

The opinion in the instant case merely examined how the extraneous

offense evidence explained the co-defendant’s direct testimony concerning

motive, and showed that appellant was acting in accordance with his criminal

propensities. There was no contested fact of consequence to which the

extraneous offense evidence was relevant. The focus of the appellate court

should have been on how the evidence was relevant to show a contested fact

of consequence in the case, not simply on how the evidence tended to show

a common plan or scheme. 

Conclusion and Prayer

Appellant prays that this Court grant his Petition for Discretionary

Review. Following the grant of review, Appellant prays that this Court reverse

the judgment of the Court of Appeals.

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Respectfully submitted,

/s/ Allen C. Isbell 

ALLEN C. ISBELL

2016 Main St., Suite 110

Houston, Texas 77002

713-236-1000

Fax No. 713-236-1809

STATE BAR NO. 10431500

Email: allenisbell@sbcglobal.net

COUNSEL ON APPEAL

Certificate of Service

I hereby certify that on this 23rd day of July, 2015, a true and correct

copy of the foregoing was sent to the District Attorney’s Office, Appellate

Division, to the State Prosecuting Attorney and to Mr. Justin McGee,

appellant.

/s/ Allen C. Isbell 

ALLEN C. ISBELL

Certificate of Compliance

The undersigned attorney on appeal certifies this petition is computer

generated and consists of 1,153 words. Counsel is relying on the word count

provided by the Word Perfect computer software used to prepare the petitoin.

/s/ Allen C. Isbell 

 ALLEN C. ISBELL

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Affirmed and Memorandum Opinion filed May 28, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00067-CR

JUSTIN MCGEE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 1387993

MEMORANDUM OPINION

In this capital-murder case we address whether the trial court abused its 

discretion in admitting into evidence testimony regarding a previous drug 

transaction between the complainant and the defendant. We also assess the harm, 

if any, resulting from the trial court’s refusal to charge the jury on accomplicewitness testimony. We affirm.
2

I. FACTUAL AND PROCEDURAL BACKGROUND

Cameron Dansby, the complainant, and Dominick Sean McDonald sold 

marijuana to appellant Justin McGee and appellant’s associate, Anthony Avalos. 

The complainant met appellant and Avalos in the parking lot of the Chesterfield 

apartment complex, where McDonald kept an apartment. The complainant 

delivered the drugs to appellant and Avalos in July 2011 (hereinafter “the July 

transaction.”). Upon delivery of the drugs, appellant and Avalos claimed they 

already had paid another associate of the complainant and McDonald. Believing 

appellant and Avalos, the complainant returned to McDonald’s apartment without

payment for the drugs. After McDonald and the complainant realized appellant 

and Avalos had not paid anyone, the complainant and McDonald chased appellant 

and Avalos. The complainant and McDonald followed appellant and Avalos to 

Avalos’s home. Once there, the complainant and McDonald drew weapons and

confronted appellant and Avalos. Appellant and Avalos paid for the drugs and the 

complainant and McDonald left.

A few weeks later, appellant, Avalos, and associates Arthur McSwain, 

Marquis Cook, Bryant Carter, and Richard Bartholomew (hereinafter “the 

Associates”) returned to the Chesterfield apartment complex and kidnapped the 

complainant as he was walking toward McDonald’s apartment. Appellant, Avalos, 

and the Associates drove the complainant to a remote location at the back of 

another apartment complex, where appellant, Avalos, and McSwain shot the

complainant dead.

A resident at the Chesterfield complex heard the kidnapping in progress and 

went to investigate. The resident heard voices saying “get him, grab him.” The 

resident walked outside and saw the complainant laying face-down on the ground 

while three or four other individuals, who were pointing guns at the complainant,
3

kicked the complainant and harassed him as they forced him toward the parking 

lot. Appellant put a gun into the resident’s stomach and asked the resident if the 

resident wanted to live. The resident replied that he did and appellant told the 

resident to return to his home. 

The same night, the resident saw some of the Associates return to the 

Chesterfield apartment complex. A female (Brittany Watts) was with them. The 

female walked up the stairs to McDonald’s apartment, spoke briefly with someone 

at the door, and then ran back down the stairs. As she ran, the individuals fled the 

premises. Police found the complainant’s body the following morning. 

The resident informed police about what he had seen. The resident was able 

to give the police descriptions of the individuals involved in the kidnapping and

descriptions of suspicious vehicles he saw at the apartment complex at the time of 

the kidnapping. McDonald told police about the July transaction with appellant 

and Avalos and directed the police to Avalos’s residence, where the police 

identified cars matching descriptions given by McDonald and the resident. 

Appellant was charged with the offense of capital murder. At appellant’s 

jury trial, the resident identified appellant as the man who had pressed a gun into

his stomach. A friend of appellant’s, Francisco Segovia, testified that he gave 

appellant a ride to Avalos’s home and then to the Chesterfield apartment complex 

on the night the complainant was murdered. Segovia testified that he waited 

outside the complex after dropping off appellant and then followed Avalos’s car

when he saw Avalos leave. Segovia stated that he followed Avalos’s vehicle to 

another apartment complex and, again, waited outside. This time, Segovia heard 

gunshots, saw Avalos’s car leave, and then followed the car back to Avalos’s 

home. At Avalos’s home, Segovia heard Avalos complain that the others had 

forced the complainant into Avalos’s car, which Avalos said was a mistake. 
4

According to Segovia, Avalos then asked Segovia and Watts, who was then living 

in Avalos’s home, to return to the Chesterfield apartment complex to knock on a 

door to see if they could get some marijuana. Segovia saw Watts go up the steps 

and knock on the door, but, according to Segovia, nobody answered the door. 

Richard Bartholomew testified that he was present during the complainant’s

murder, having accompanied appellant, Avalos and the other Associates to the 

Chesterfield apartment complex, where he and the others waited for the 

complainant. Bartholomew testified that when the complainant got out of his car

they all ran up and grabbed him. According to Bartholemew, they kept asking the

complainant, “Where is the door,”1 “Where is the dope?” The complainant denied 

having any knowledge. Bartholomew confirmed the resident’s testimony that 

while these events were unfolding, the resident left his porch and appellant pointed 

a gun at the resident, telling the resident to go back to his home. 

Bartholomew testified that they all drove with the complainant and 

continued to ask him about “the door” while advising the complainant that they

wanted bricks of cocaine. According to Bartholomew, the group pulled into the 

Forum Park apartment complex, and appellant, Avalos and McSwain took the 

complainant out of the car and again asked the complainant location of “the door.” 

After the complainant failed to give them the door’s location, appellant, Avalos, 

and McSwain shot the complainant dead. Bartholomew learned from the 

conversation on the way back to Avalos’s home that the complainant had known 

the others socially and through the July transaction. Bartholomew testified that he 

suggested to Avalos that the group could have accomplished its goals without 

killing the complainant, but Avalos rejected the notion, commenting that the 

 1 The record does not explain what “the door” is. The State argued that “the door” was 

the door to the apartment where McDonald stored drugs.
5

complainant knew who they were and where they lived. Avalos projected that had 

they not done what they did, the complainant would have retaliated. 

The jury found appellant guilty as charged and the trial court sentenced 

appellant to life without the possibility of parole.

II. ANALYSIS

A. Admitting Evidence of the Extraneous Marijuana Transaction

In his first three issues, appellant asserts the trial court erred in admitting 

into evidence testimony regarding the July transaction because the evidence was 

irrelevant, more prejudicial than probative, and prohibited under Texas Rule of 

Evidence 404(b). Appellate courts review a trial court’s ruling on the admissibility 

of evidence under an abuse-of-discretion standard. See Coble v. State, 330 S.W.3d 

253, 272 (Tex. Crim. App. 2010); Mayreis v. State, —S.W.3d—, 2015 WL 

1346045, at *6 (Tex. App.—Houston [14th Dist.] 2015, no pet.) Article 38.36 of 

the Texas Code of Criminal Procedure, which applies in prosecutions for murder,

provides in relevant part:

In all prosecutions for murder, the state or the defendant shall be 

permitted to offer testimony as to all relevant facts and circumstances 

surrounding the killing and the previous relationship existing between 

the accused and the deceased, together with all relevant facts and 

circumstances going to show the condition of the mind of the accused 

at the time of the offense.

Tex. Code Crim Proc. art. 38.36(a) (West, Westlaw through 2013 3d C.S.). 

Evidence admissible under Article 38.36 still must meet the requirements of the 

rules of evidence. Smith v. State, 5 S.W.3d 673, 679 (Tex. Crim. App. 1999).

1. Relevance

Appellant argues that the trial court abused its discretion in admitting 

testimony regarding the July transaction because that testimony is irrelevant. 
6

Evidence is relevant if it tends to make the existence of any consequential fact 

more or less probable than it is without the evidence. Tex. R. Evid. 401; Moralez 

v. State, 450 S.W.3d 553, 569 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d). 

Extraneous-offense evidence is relevant if it logically makes elemental facts, such 

as intent or knowledge more or less probable, or if it makes the defense’s evidence 

attempting to undermine these elemental facts more or less probable. Montgomery

v. State, 810 S.W.2d 372, 387–88 (Tex. Crim. App. 1991) (op. on reh’g).

Appellant argues the July transaction is irrelevant because it does not make any 

elemental facts more or less probable. 

The trial court did not abuse its discretion by implicitly concluding that the 

July transaction is relevant for several reasons. First, the July transaction gives 

some context to the relationship between appellant and the complainant. Second, it 

explains Bartholomew’s testimony that appellant and his associates were asking 

the complainant to inform them of the location of “the door,” as well as 

Bartholomew’s testimony that Avalos said the complainant knew appellant, 

Avalos, and the Associates and knew where they lived. Third, the July transaction 

demonstrates appellant’s and Avalos’s willingness and interest in using dishonest 

tactics to get drugs for free. All of these facts make the existence of consequential 

facts more likely than they would be without the evidence of the July transaction. 

The trial court did not err in determining that evidence of the July transaction is 

relevant to the charged offense. See Hernandez v. State, 171 S.W.3d 347, 360–61 

(Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). 

2. Potential for Prejudice

Appellant argues the trial court abused its discretion in admitting evidence of 

the July transaction because the probative value of the evidence was substantially 

outweighed by its potential prejudice under Texas Rule of Evidence 403. We 
7

presume for the sake of argument that appellant preserved error on this complaint 

in the trial court. Texas Rule of Evidence 403, entitled “Exclusion of Relevant 

Evidence on Special Grounds,” states:

Although relevant, evidence may be excluded if its probative value is 

substantially outweighed by the danger of unfair prejudice, confusion 

of the issues, or misleading the jury, or by considerations of undue 

delay, or needless presentation of cumulative evidence.

Tex.R. Evid. 403. Rule 403 favors the admission of relevant evidence and carries 

a presumption that relevant evidence will be more probative than prejudicial.

Montgomery, 810 S.W.2d at 389; Moralez, 450 S.W.3d at 569. A proper Rule 403 

analysis by either the trial court or a reviewing court includes, but is not limited to, 

the following factors: (1) the probative value of the evidence; (2) the 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. De La Paz v. 

State, 279 S.W.3d 336, 349 (Tex. Crim. App. 2009); Erazo v. State, 144 S.W.3d 

487, 489 (Tex. Crim. App. 2004). 

Appellant asserts the evidence regarding the July transaction prejudiced the 

jury because it showed the jury that appellant had a “corrupt nature” and that he is 

a drug dealer or drug user. Appellant’s participation in the July transaction evinces 

both his willingness to engage in dishonest tactics and his interest in obtaining 

drugs. The evidence of the extraneous offense is probative because it compels one 

to conclude that several facts of consequence are more probable. See Wyatt v. 

State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000). And, there is substantial 

evidence that appellant committed the extraneous offense. See id. (holding that the 

first factor is related to the strength of the evidence that appellant in fact committed 

the extraneous offense). Several witnesses confirmed that the event occurred and 

that appellant was a participant. The July transaction demonstrates appellant’s 
8

relationship to the complainant and shows that appellant had tried to take drugs 

from the appellant before without paying for them, but that appellant did not have 

all the information necessary to commit a robbery. It therefore explains why 

appellant and his associates were asking the complainant the location of the

“door.” This explanation makes Bartholomew’s testimony that appellant was 

involved in kidnapping appellant more probable. The information also makes 

Bartholomew’s testimony that Avalos concluded it was necessary to kill appellant 

more probable because it explains how the complainant knew Avalos and 

appellant, and it shows the complainant’s willingness to retaliate against Avalos 

and appellant. The first factor weighs heavily in favor of finding that the probative 

value of the evidence is not substantially outweighed by its potential to cause 

prejudice. 

The second and third factors weigh in favor of finding the evidence 

prejudicial. The evidence that appellant is involved in buying drugs has the 

potential to impress the jury in an irrational way. And, the State spent more than a 

minimal amount of time developing the evidence through the testimony of many 

witnesses. 

Under the fourth factor, the State’s need to develop evidence of the July 

transaction was significant. The defense hammered on the lack of physical 

evidence connecting appellant to the crime. Still, the testimony regarding the July 

transaction was probative; it provided context necessary to explain the testimony of 

other witnesses. The testimony established appellant’s familiarity with the 

complainant’s drug-selling business and its potential monetary value, as well as 

appellant’s familiarity with the complainant’s apartment complex. It also 

explained appellant’s motivation to kidnap and then murder appellant, either to

retaliate against the complainant or to rob the complainant and McDonald. The 
9

evidence was thus important to explaining the relationship among the parties and 

to laying out the State’s theory of the case, particularly to provide motive — to 

account for why appellant was driven to commit the murder. We conclude that a 

balance of the factors shows that the trial court did not abuse its discretion in 

concluding that the potential for prejudice did not substantially outweigh the 

probative value of the evidence. See Tex. R. Evid. 403, Hernandez, 171 S.W.3d at 

361.

3. Rule 404(b)

Appellant argues the trial court erred in admitting evidence of the July 

transaction because the evidence was prohibited under Texas Rule of Evidence 

404(b). Under Rule 404(b), evidence of an extraneous offense may be admitted if 

it has relevance apart from its tendency to prove the character of a person in order 

to show that the person acted in conformity therewith. See Tex. R. Evid. 404(b); 

Hernandez, 171 S.W.3d at 360. Evidence has relevance apart from this characterconformity purpose when the evidence tends to establish some elemental fact, such 

as proof of motive, intent, plan, or absence of mistake or accident. See Tex. R. 

Evid. 404(b); Hernandez, 171 S.W.3d at 360. 

Appellant argues the State violated Rule 404(b) by using the evidence of the 

July transaction to show that appellant was a criminal and therefore in murdering 

the complainant appellant was acting in conformity with his criminal character. 

We conclude evidence of the July transaction is relevant for other purposes. It 

supported the State’s argument that appellant had a plan, intent, and motive to 

murder the complainant. Appellant’s plan to kidnap made sense only in light of 

the evidence that appellant was familiar with the complainant’s business but 

needed more information to steal the complainant’s drugs. Appellant’s intent to 

kill the complainant made sense in light of the July transaction and Bartholomew’s 
10

testimony regarding Avalos’s summation of the complainant’s likely retaliation if 

the complainant survived the kidnapping. The evidence was admissible under 

Rule 404(b) because it tended to establish appellant’s intent and motivation. 

Appellant makes much of the fact that several other witnesses testified that 

appellant was motivated to rob the complainant and argues the trial court should 

query the State regarding what direct evidence the State’s other witnesses might 

present regarding the defendant’s motive to commit any particular crime. 

Appellant suggests that the State should not have been allowed to admit this 

evidence because the State presented direct evidence of appellant’s motive. We 

need not entertain this argument in this appeal, however, because the evidence of 

the July transaction is necessary to explain the State’s direct evidence of 

appellant’s intent and motive. Appellant contends that Bartholomew provided 

direct evidence of appellant’s motive for the kidnapping and murder and that the 

motive was to force the complainant to disclose the location of cocaine. But, this 

direct evidence of appellant’s immediate reasoning for kidnapping the complainant 

makes sense only in light of the information about the July transaction. Moreover, 

although Bartholomew testified that the motivation for the kidnapping was to force 

the complainant to disclose the location of the cocaine, Bartholomew’s testimony 

regarding the motivation for the murder was different. Bartholomew explained 

that Avalos was motivated by the fear that the complainant would retaliate if they 

did not kill him. This statement makes sense only in light of the evidence of the 

July transaction.

We conclude the evidence of the July transaction was admissible for 

permissible purposes. See Tex. R. Evid. 404(b); Hernandez, 171 S.W.3d at 361 

(holding that evidence of prior drug transaction was permissible under 404(b) 

because evidence was necessary to establish relationship in order to prove intent). 
11

The trial court did not abuse its discretion in admitting the testimony regarding the 

July transaction into evidence under Rule 404(b). See Tex. R. Evid. 404(b);

Hernandez, 171 S.W.3d at 361.

Having rejected all of appellant’s contentions regarding the admission of the 

evidence of the July transaction, we overrule issues one, two, and three.

B. Failing to Give Accomplice-Witness Instruction to the Jury

In appellant’s fourth issue, appellant asserts the trial court erred in refusing 

to charge the jury on Watts as a potential accomplice witness. A conviction cannot 

be secured upon the testimony of an accomplice unless corroborated by other 

evidence tending to connect the defendant to the offense. Tex. Code Crim. Proc. 

Art. 38.14; Cocke v. State, 201 S.W.3d 744, 747 (Tex. Crim. App. 2006). The 

purpose of the accomplice-witness instruction is to remind the jury that it cannot 

use the accomplice’s testimony to convict the defendant unless there also exists 

some non-accomplice testimony tying the defendant to the offense. Id. An 

accomplice-witness instruction is required if the witness participated with a 

defendant before, during, or after the commission of a crime, acting with the 

required culpable mental state or if the witness is liable under a party-conspiracy 

theory. Zamora v. State, 411 S.W.3d 504, 512 (Tex. Crim. App. 2013); Paredes v. 

State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004). 

Presuming for the sake of argument that the trial court erred in failing to 

charge the jury, this court may reverse the conviction only if appellant suffered 

harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985); Lewis v. 

State, 448 S.W.3d 138, 143 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d). 

The degree of harm required for reversal depends on whether an objection to the 

error was made at trial. Id. If no objection was made, we reverse only if the error 

resulted in “egregious harm” such that appellant was denied a “fair and impartial 
12

trial.” Almanza, 686 S.W.2d at 171; Lewis, 448 S.W.3d at 143. If an objection 

was made at trial, as in this case, we reverse only if appellant demonstrates “some” 

harm from the error. Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005); 

Lewis, 448 S.W.3d at 143. Whether analyzing the record for some harm or 

egregious harm, the reviewing court should consider the entire jury charge, the 

state of the evidence, the arguments of counsel, and any other relevant information 

revealed by the record of the trial as a whole. Sanchez v. State, 376 S.W.3d 767, 

774 (Tex. Crim. App. 2012). The harm must be actual, not merely theoretical. 

Almanza, 686 S.W.2d at 174.

To measure the sufficiency of the corroborating evidence, we eliminate the 

accomplice evidence from the record and determine whether the remaining 

inculpatory evidence tends to connect the defendant to the offense. Malone v. 

State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008). This evidence may be direct 

or circumstantial. Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993). 

The corroborating evidence need not prove the defendant’s guilt beyond a 

reasonable doubt. Malone v. State, 253 S.W.3d at 257. Rather, the corroborating 

evidence need only link the defendant in some way to the commission of the crime. 

Id.

We conclude the record contains sufficient non-accomplice evidence to 

connect appellant to the commission of the crime. McDonald testified about the 

July transaction. He knew that appellant was involved in the July transaction and 

he followed appellant and Avalos back to Avalos’s home after the July transaction. 

The resident identified suspicious vehicles in the apartment complex during the 

kidnapping, including a champagne-colored Cadillac. The Cadillac belonged to 

Segovia. Segovia’s phone records showed he was in frequent communication with 

appellant. 
13

The resident specifically identified appellant in court, and to a police officer, 

as the individual who pressed a gun into his stomach during the kidnapping. 

Appellant argues that the resident’s identification was impeached because 

appellant did not identify appellant in a prior police lineup, but the resident 

described several of appellant’s identifying features to the police immediately after 

the incident, including that appellant wore dreadlocks with lighter tips. The 

resident testified that he was “100%” positive appellant was the person who 

commanded him at gunpoint to return to his residence. Appellant argued that the 

resident’s identification was not credible because the resident said he could 

identify appellant based on appellant’s tattoo, but the resident explained that the 

reason he did not pick appellant’s picture out of a police lineup was because the 

tattoo was too prominent in that photo. The resident explained, though, that he 

remembered the tattoo, but when he was interacting with appellant, appellant’s 

forehead was wrinkled and those wrinkles made the tattoo look less prominent. 

The resident later saw photos where the tattoo was less prominent and in his 

review of those photos he identified appellant. 

The State also admitted into evidence a note sent to Bartholomew in jail. 

The handwriting in the note matches handwriting in notes confirmed to have been 

written by appellant; Bartholomew also testified that the note came from appellant. 

In the note, appellant asks Bartholomew not to testify and explains that the State’s 

case depends on all of them “sink[ing]” each other. Appellant wrote that he 

understood that Bartholomew wanted to try to testify against him to get out of jail 

earlier, but appellant reminded Bartholomew that jail is what comes with being 

involved in the streets. 

Non-accomplice evidence included an eye-witness identification, evidence 

of a prior relationship between appellant and the complainant and evidence of a 
14

motivation for appellant to murder the complainant as well as a note from appellant 

in which appellant demonstrated an intimate familiarity with the details 

surrounding the murder. This evidence tends to connect appellant with the 

commission of the offense. Given the strength of this evidence, we hold that the 

jury would not have disregarded the accomplice-witness testimony. See Herron, 

86 S.W.3d at 634. Appellant failed to show that he suffered “some” harm by the 

failure to include the accomplice-witness instruction. See Malone, 253 S.W.3d at 

259. Because we conclude that any error by the trial court in failing to charge the 

jury on the accomplice-witness rule was harmless, we overrule appellant’s fourth 

issue. See id.

III. CONCLUSION

The trial court did not abuse its discretion in admitting into evidence 

testimony regarding the July transaction. Any error in the trial court’s failure to 

charge the jury on Watts’ status as a potential accomplice witness was harmless. 

The trial court’s judgment is affirmed.

/s/ Kem Thompson Frost

Chief Justice

Panel consists of Chief Justice Frost and Justices Boyce and McCally.

Do Not Publish — TEX. R. APP. P. 47.2(b).