Braylon Dominique ELLIS, Appellant v. The STATE of Texas, State
NO. 02-16-00144-CR
Court of Appeals of Texas, Fort Worth.
April 20, 2017
I believe, as does the majority, that the trial court correctly concluded that the jury‘s finding of no damages for Norhill‘s breach-of-contract claim was supported by the evidence. To this portion of the majority opinion, I concur. But I further believe that the trial court rightly concluded that Norhill could not alternatively recover for MHAR based on the unchallenged finding that the parties had a valid and enforceable contract, which covered the dispute at issue. Accordingly, I would affirm the trial court‘s judgment. Because the majority does not, I respectfully dissent.
Sharen Wilson, Crim Dist Atty. Debra Windsor, Chief, Post Conviction, Steven Conder, William Vassar, Vincent Giardino, Asst. Crim. Dist. Attys., Fort Worth, TX, for State
PANEL: LIVINGSTON, C.J.; WALKER and SUDDERTH, JJ.
OPINION
BONNIE SUDDERTH, JUSTICE
In three issues, Appellant Braylon Dominique Ellis appeals his conviction for murder. See
Background
On September 7, 2013, Andrea Brown discovered the dead body of her older brother Tommy Brown in his home after she went to check on him out of concern that no one had heard from or seen him for days. An investigation revealed that Tommy had been the victim of a love triangle with Appellant and Christina Rodriguez, whom Tommy had met as a pen pal while she was serving time in a penitentiary. Tommy reportedly also had a long-time romantic relationship with a woman named Connie Moreno, who did not appear to be involved in his death in any way. From the record, it does not appear that either Moreno or Rodriguez was living with Tommy at the time of the murder.
In the days following his death, the Fort Worth Police Department (FWPD) tracked Tommy‘s cell phone and debit card to a location outside of Atlanta, Georgia, where Appellant and Rodriguez were apprehended. Although charged with capital murder, Appellant was convicted of the lesser-included offense of felony murder and sentenced to life in prison for his part in Tommy‘s death. Compare
In the afternoon or early evening of September 5, Willie Wingfield, Tommy‘s neighbor, saw a “white girl [who was] more heavy-set and just a little bit shorter than Tommy” go into Tommy‘s house while Tommy was home. Willie testified that the woman was not Moreno, a Hispanic woman whom he described as “short with long black hair” and Andrea described Moreno as approximately 5‘1” to 5‘2” and of average weight. Instead, Willie‘s general description of the woman he had observed more closely fit the description of Rodriguez at trial, as a woman who was “tall and heavyset.”
Later that evening, between 9:30 and 10:00, Willie also saw a dark-skinned young man with braided hair go into Tommy‘s house. According to Willie, Tommy was not at home at that time. Later, Willie watched as Tommy pulled his pickup into his driveway, emerged from the pickup, and walked to his front door. Willie testified that as Tommy attempted to unlock his front door, the front door opened, someone “snatched” Tommy and pulled him into the house, and then the lights went off. Willie did not call the police at that point.
The next morning, when Willie went out-side to water his yard and drink coffee—his usual morning routine—he noticed that Tommy was not partaking in his usual morning routine of sitting on his porch, smoking a cigarette, and drinking a coffee between 6:45 and 7:00. Willie also noticed that Tommy‘s pickup was no longer in his driveway, so he assumed that Tommy had gone to work early.
II. Discovery of the body and the ensuing investigation
Andrea, who had last seen Tommy alive on September 2 or 3, received a call from her aunt on the morning of September 7. Andrea‘s aunt, who lived across the street from Tommy, called Andrea at work to express her concern that she had been unable to reach Tommy for a couple of days. Andrea assured her aunt that she would call him.
At 9:26 that morning, Andrea texted Tommy, “Call me ASAP,” but she received no response, which, according to Andrea, was unusual for Tommy. Andrea grew increasingly worried as the day went on, and more so when her aunt told her that Tommy‘s car was not at his house. At approximately 3:00 that afternoon, Andrea drove to Tommy‘s home and, using a key she found in his mailbox, Andrea went inside. Andrea testified that she immediately noticed that some of his property, including his plasma TV, was missing, and when she continued through the home she discovered Tommy‘s body lying on the bathroom floor. His hands were tied behind his back and his “fingers had started turning colors.” Although she called out to him several times, Andrea testified that she knew what was wrong, she knew it was “a crime scene,” and so she immediately left the house and called 9-1-1.
FWPD Detective Thomas O‘Brien responded to the call. While he was interviewing Andrea, she received a text message from Tommy‘s phone that said, “I[‘]m driving to El Paso what u want?” Detective O‘Brien asked Andrea to respond to the text message she had received because the police could use the cell phone information to track the murderer(s) and to collect more information. On Detective O‘Brien‘s direction, Andrea texted back, “[O]k call me when u get back. Have a safe trip,” but she did not reveal that Tommy‘s dead body had been found.
Andrea was not the only person who received text messages from Tommy‘s phone after his body was discovered. On
Debra I wont b back no time soon I don‘t know if u remember I told you I was gonna b a father well my girl is in the hospital and im low in cash is there anyway I can borrow some cash I lost my wallet im in the middle of the road if you can send money to my causin his name is Braylon Ellis, do it Money gram please just deduct it from my check?
The next day, Grimes received two more text messages from Tommy‘s phone claiming that he could not call because his phone was broken and asking, “How soon can u send it to my causin do it Money Gram please.”
Cell phone records and records for Tommy‘s debit card indicated that both were taken from Fort Worth to an area outside of Atlanta, Georgia. From surveillance videos, Detective O‘Brien identified Appellant and Rodriguez as the individuals using the debit card at various places, including to pay for a prescription in Appellant‘s name at Texas Health Presbyterian in Dallas.
Appellant and Rodriguez were located and arrested on September 10 at Appellant‘s mother‘s house in Gwinnett County, Georgia. Tommy‘s cell phone and driver‘s license were found in the room where Appellant and Rodriguez were staying, and Tommy‘s debit card was found inside the vehicle—later identified as the vehicle Appellant and Rodriguez drove to Georgia—parked outside the house.
Detective O‘Brien interviewed Appellant, and a video of the interview was admitted into evidence and played for the jury. In it, Appellant changed his story multiple times. At first, he claimed he did not know Tommy, but later he claimed that Tommy had beaten Rodriguez and that Tommy was a molester. He also initially claimed that he had never been to Fort Worth, but then added he had been to Fort Worth as a child, and then finally admitted to Detective O‘Brien that he had picked up Rodriguez in Fort Worth and had stayed at a hotel near Tommy‘s house on the night Tommy was murdered. Although Appellant denied that he had been to Tommy‘s house, blood samples collected at the scene matched both Appellant‘s DNA profile and Rodriguez‘s DNA profile.
III. The trial
Additional testimony at trial revealed that Tommy died of asphyxia—he was discovered with two plastic bags tied around his head with a shoelace—blunt-force injuries to the head or neck, or a combination of both. Appellant also took the stand in his own defense.
Appellant testified that he fell in love with Rodriguez in early 2013 after meeting her while riding on a bus headed to California. By March 2013, he moved to El Paso to live with her, even though he did not know her age or that she had served time in the penitentiary. In August 2013, they decided to move to Georgia, where his mother lived.
On their way to Georgia, Appellant and Rodriguez developed a plan to stop at Tommy‘s house in Fort Worth to steal from him. By that point, Appellant was aware that Rodriguez had been in a relationship with Tommy and had previously stolen Tommy‘s wallet and credit cards several times. As part of the plan to steal from Tommy, Appellant testified that he planned to “beat him” and “kick his ass” because he believed that Tommy had beaten Rodriguez and had tried to kill her once. Appellant testified he did not intend to kill Tommy.
Appellant and Rodriguez later went to Texas Health Presbyterian hospital in Dallas to seek treatment for Appellant‘s hand. After using Tommy‘s debit card to pay for Appellant‘s prescription, the pair headed to Georgia. Appellant testified that it was Rodriguez who sent the text messages to Andrea and Grimes on their way to Georgia and that he was not aware that she was sending the text messages at the time. He did, however, admit that he had knowingly used Tommy‘s debit card on their way to Georgia.
At trial, Appellant denied tying any plastic bags over Tommy‘s head or wrapping tape or a shoelace around Tommy‘s neck. He denied any intent to kill Tommy or take his property, although he admitted that he knew Rodriguez planned to steal from Tommy. Appellant‘s only intent, he claimed, was to “kick his ass.”
Discussion
In his first issue, Appellant argues that the trial court erred by denying his motion to suppress the recorded statement made to Detective O‘Brien because Appellant did not clearly and unequivocally waive his rights. Appellant‘s second and third issues argue that the trial court erred by overruling his objections to the admission of reproduced cell phone text messages.
I. Motion to Suppress
We review a trial court‘s ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give almost total deference to a trial court‘s
Detective O‘Brien interviewed Appellant on September 11, 2013. A video recording of the interview was admitted into evidence. Detective O‘Brien read Appellant his Miranda1 rights and then asked Appellant if he knew how to read, to which Appellant responded, “Yes.” Detective O‘Brien then asked Appellant to read the following portion of the waiver form, which he did: “I have read and understand my legal rights as stated above on this document. I freely, voluntarily, and knowingly waive these legal rights and agree to be interviewed by police.” Appellant then signed the waiver form.
At trial, Appellant‘s counsel moved to suppress the video, arguing that the above did not constitute a valid waiver in accordance with article 38.22 because Detective O‘Brien did not specifically ask Appellant if he waived his rights. See
Appellant has provided us with no support for his argument that Detective O‘Brien was required to verbally ask if Appellant waived his rights.2 Under the facts here, we decline to read such a requirement into the rule and, having reviewed the video recording and Detective O‘Brien‘s testimony, find that these support the trial court‘s fact findings. See Leza v. State, 351 S.W.3d 344, 353 (Tex. Crim. App. 2011) (“[W]e have consistently held that waiver of Article 38.22 rights ‘may be inferred from actions and words of the person interrogated.’ “); Bleil v. State, 496 S.W.3d 194, 208-09 (Tex. App.--Fort Worth 2016, pet. ref‘d). We therefore overrule Appellant‘s first issue.
II. Admission of text messages
Appellant‘s second issue argues that the admission of the reproduced text messages violated the prohibition against hearsay. His third issue argues that their admission violated the best evidence rule.
We review a trial court‘s decision to admit evidence for abuse of discretion. Mai v. State, 189 S.W.3d 316, 320 (Tex. App.-Fort Worth 2006, pet. ref‘d). If the court‘s decision falls outside the “zone of reasonable disagreement,” it has abused its discretion. Id.
FWPD Sergeant Troy Lawrence testified that he analyzed Tommy‘s cell phone and had attempted to download the text messages stored on the phone, but he was
Exhibit 140 replicated the following texts between Andrea‘s and Tommy‘s phones:
[Andrea:] call me ASAP [Date stamp 9/7/2013]
[Tommy‘s phone:] Im driving to El Paso what u want? [Date stamp 9/7/2013]
[Andrea:] ok call me when u get back. Have a safe trip.
Exhibit 141 replicated texts between Grimes‘s and Tommy‘s phones:
[Grimes:] Call me [Date stamp 9/7/13]
[Tommy‘s phone:] Im driving to El Paso had a emergency [Date stamp 9/7/13]
[Grimes:] Your buildings are covered for the weekend. Call me as soon as you get back.
[Tommy‘s phone:] Thank you. So much..
[Grimes:] Is the back pack at the kennel? [Date stamp 9/7/13]
[Tommy‘s phone:] Debra I wont b back no time soon I don‘t know if u remember I told you I was gonna b a father well my girl is in the hospital and im low in cash is there anyway I can borrow some cash I lost my wallet im in the middle of the road if you can send money to my causin his name is Braylon Ellis, do it Money gram please just deduct it from my check? [Date stamp 9/9/13]
[Grimes:] I am very worried about you. I have your check from last month do you rill need [Date stamp 9/10/13]
[Grimes:] Do you still need me to send your money to Braylon Ellis. Please let me know. I hope your girl and baby are okay.
[Tommy‘s phone:] Yes don‘t b worried im fine as soon as my girl gets release im taking her and the baby back with me. I just dropp my phone its cracked I can‘t call li can only tex
[Tommy‘s phone:] How soon can u send it to my causin do it Money gram please. [Date stamp 9/10/13]
Appellant‘s counsel objected to the admission of Exhibits 140 and 141, arguing that the text messages constituted hearsay and that their admission would violate the best evidence rule. The trial court initially sustained Appellant‘s objections but later overruled the objections after Detective O‘Brien testified that the phone was recovered from the house in Georgia where Appellant and Rodriguez had been staying.
A. Hearsay objection
In response to Appellant‘s hearsay objection at trial, the State argued alternatively that (1) the text messages were not hearsay because they were not being offered for the truth of the matter asserted, see
Texas Rule of Evidence 802 provides that hearsay is generally inadmissible, but for a document or statement to meet the definition of hearsay, it must be offered to prove the truth of the matter asserted therein.
We hold the trial court did not abuse its discretion by admitting the text message conversations over Appellant‘s hearsay objection.
B. Best evidence rule
Appellant also argues that the text message conversations were inadmissible under the best evidence rule. The best evidence rule provides that an original writing, recording, or photograph is required to prove its content.
Sergeant Lawrence testified that the USB port on Tommy‘s phone would not allow him to directly download the text messages it stored. So, Sergeant Lawrence retrieved the content of the electronically stored messages by transcribing the texts and call logs—by manually typing them into an Excel spreadsheet. This information, in turn, was formatted into a “bubble” form commonly used to represent text messages. The resulting document was then peer reviewed to ensure its accuracy. Sergeant Lawrence testified that the resulting exhibits were true and accurate depictions of text message conversations as stored on Tommy‘s phone.
Even assuming, without holding, that the process Sergeant Lawrence employed to generate exhibits 140 and 141 did not meet the rule 1001(d) definition of “original“—as a “printout” or “other output“—Sergeant Lawrence‘s testimony nevertheless supports the admission of the text message conversations as “other evidence” when the original cannot be obtained. See
Thus, the trial court did not abuse its discretion by overruling Appellant‘s objection on this basis. See Ortiz v. State, 651 S.W.2d 764, 766 (Tex. Crim. App. 1983) (noting the purpose of the best evidence rule is to secure production of the “best obtainable evidence of its contents, if the document cannot as a practical matter be produced“); Howell v. Howell, No. 13-10-00687-CV, 2013 WL 784542, at *7 (Tex. App.-Corpus Christi Feb. 28, 2013, no pet.) (mem. op., not designated for publication) (holding trial court did not err by allowing witness to read text message aloud after counsel represented that a document of the text message was not obtainable).
We hold the trial court did not err by admitting the text message conversations based on the best evidence rule.
C. Any error in admitting the text messages was harmless
Even if the trial court erred by admitting the text message conversations, Appellant was not harmed by their admission. Any error in the trial court‘s admission of the text messages is nonconstitutional, see Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001), so we apply rule 44.2(b) and disregard the error if it did not affect appellant‘s substantial rights,
A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury‘s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)). Conversely, an error does not affect a substantial right if we have “fair assurance that the error did not influence the jury, or had but a slight effect.” Solomon, 49 S.W.3d at 365; Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). In making this determination, we review the record as a whole, including any testimony or physical evidence admitted for the jury‘s consideration, the nature of
In this case, perhaps most significantly, the jury had the benefit of Appellant‘s own testimony. In his testimony, Appellant admitted that he and Rodriguez went to Tommy‘s house, that Appellant laid in wait for Tommy to come home with the intention of “kick-ing his ass,” that Appellant struck Tommy‘s head with a ceramic toilet tank lid so hard that it broke on impact, that Appellant repeatedly punched Tommy until he passed out at least once, that Appellant hit Tommy up to three times with a kitchen pot, and that Appellant tied Tommy‘s hands behind his back so that he could not escape. Although Appellant denied strangling Tommy or tying the plastic bags around his head, the medical examiner testified that Tommy could have died from blunt-force trauma alone.
Considering this evidence, in addition to the evidence that Appellant‘s blood was found at the scene and that he was in possession of and had used Tommy‘s debit card on his journey to Georgia, we cannot say that any erroneous admission of the text message exhibits had a substantial or injurious effect on the jury‘s verdict. See Black v. State, 358 S.W.3d 823, 833 (Tex. App.-Fort Worth 2012, pet. ref‘d) (erroneous admission of hearsay text messages did not have a substantial or injurious effect in light of other evidence of Appellant‘s guilt). We overrule Appellant‘s second and third issues.
Conclusion
Having overruled each of Appellant‘s issues, we affirm the judgment of the trial court.