OPINION
A jury found Appellant Christopher Ryan Robinson guilty of capital murder.
See
Tex. Penal Code Ann. § 19.03(a)(7)(A) (West 2011). The trial court sentenced Robinson to life imprisonment. On appeal, Robinson claims that (1) the evidence was legally insufficient to support the finding that he was the primary actor in these murders; (2) the trial court erred in denying his motion to suppress evidence obtained pursuant to search warrants for his home, SUV, and blood; (3) the court erred in denying his motion to exclude various expert testimony; and (4) the court erred in denying his motion to exclude testimony
BACKGROUND
On January 8, 2009, Jesus Nieto and Mikayas “Mickey” Mekonen were packaging marijuana in the living room of Nieto’s home in Austin. 1 Nieto’s wife, who was in the bedroom, heard gunshots and hid in the closet with her son. When she eventually entered the living room, she found Nieto and Mekonen on the floor. Both Nieto and Mekonen had been shot several times. Nieto’s wife called 911, and Travis County Sheriffs deputies arrived on the scene within minutes. Nieto died at the scene and Mekonen was pronounced dead at the hospital.
Investigation
Investigators with the Travis County Sheriffs Office arrived shortly after the scene was secured by the responding deputies. They collected the victims’ cell phones, along with bullets, samples of the victims’ blood, and what remained of the packaged marijuana. During this initial investigation, Nieto’s neighbor told investigators that she saw a small, black SUV parked in front of Nieto’s home near the time of the shooting. The lead investigator’s initial impression was that the shooting was a drug deal “that had gone bad.”
Subsequent investigation of the victims’ cell phones revealed that, on the morning of the shooting, Mekonen had received four calls from a Waco-area phone number. After subpoenaing records for the Waco-area phone number, investigators identified the number as Robinson’s cell phone. Investigators were also able to use the phone records to track Robinson’s location on the day of the shooting. This tracking revealed that he drove from Waco to Austin on the morning of the shooting, was in the vicinity of the crime scene within hours of the shooting, and drove back to Waco after the shooting.
Investigators contacted Waco-area police officers, at which point they learned that Robinson was living with his girlfriend in Waco and that his girlfriend owned a black Mercedes SUV. They also learned that during a previous interaction between Robinson and Waco police officers, Robinson admitted to keeping a .38 caliber revolver in his home, the same caliber as the bullets recovered from the crime scene. Based on this information, investigators obtained search warrants for Robinson’s home and SUV.
On February 3, 2009, sheriffs officers executed the search warrants for the SUV and home. Officers stopped Robinson’s girlfriend while she was driving the SUV and seized the vehicle pursuant to the warrant. While officers detained Robinson’s girlfriend at the police station, a SWAT team surrounded Robinson’s home. After confirming with Robinson’s girlfriend that Robinson was home, an investigator called Robinson from the girlfriend’s cell phone. When Robinson answered, the investigator told him that police had surrounded his home and that he needed to come outside. Robinson initially did not leave the house; first he claimed that he was not home, then he attempted to leave out of the back screen door, and ultimately he started his car and tried to open the garage door. The SWAT team prevented these attempts, and Robinson eventually surrendered and exited the front door.
Investigators entered the house pursuant to the search warrant. They found a burning bag on the back porch, which they
Trial
Robinson’s trial began on April 12, 2010, and lasted six days. At trial, the lead investigator testified about the course of his investigation as outlined above. Prior to his testimony concerning the search of Robinson’s home and SUV, the court held a hearing outside the presence of the jury on Robinson’s motion to suppress evidence obtained pursuant to the search warrants. At this hearing, Robinson argued that the search warrants were not supported by probable cause, and thus the evidence obtained pursuant to the search warrants must be excluded at trial. The trial court overruled Robinson’s motion, and the investigator concluded his testimony.
The State also called Cierra Williams, Nieto’s neighbor, as a fact witness. Williams testified that she saw a black SUV outside the crime scene on the day of the shooting. She also identified a picture of a Mercedes SUV that she claimed was the same model as the SUV outside Nie-to’s home. 2 After cross-examination, Robinson objected to Williams’s competency to testify and moved to strike her testimony. The trial court overruled the objection. The State called several experts to testify about the forensic evidence recovered in the course of the investigation. One expert for the State testified that his examination of Robinson’s SUV revealed gunshot residue and the presumptive presence of blood in the passenger seat and along the inside of the passenger door, though this blood was never tested against any of the DNA samples in this case. A ballistics expert testified that the revolver recovered from Robinson’s home was the firearm used to shoot Nieto and Mekonen. Two other experts for the State testified that the clothing recovered from the burning bag had traces of gunshot residue as well as Nieto’s and Robinson’s DNA. 3 Robinson’s girlfriend identified some of the recovered clothing as Robinson’s and testified that the rest was the same brand that he usually wore.
Sheriffs Deputy Ben Wright testified for the State about the method that he used to track Robinson’s cell phone activity on the day of the shooting. During direct examination, Robinson objected to Deputy Wright’s qualifications as an expert; the trial court overruled this objection. Deputy Wright explained that Robinson’s phone activity showed that, on the morning of the shooting, Robinson called Mekonen four times while driving from Waco to Austin. Deputy Wright further stated that Robinson arrived near the vicinity of Nieto’s home prior to the murders and remained in the area of the crime scene until after the shooting. Finally, Deputy Wright stated that Robinson’s phone calls showed him leaving Austin af
The State also called Melissa Valdez, a trace evidence analyst with the Department of Public Safety. Prior to her testimony, Robinson objected to the reliability of Valdez’s testing as well as the relevancy of her testimony. The trial court overruled these objections and allowed Valdez’s expert testimony. Valdez then testified about the tan, brown, and teal duct tape recovered from both the crime scene and Robinson’s home. She stated that, based on a side-by-side visual comparison, the tapes were similar in color, width, thread count, and adhesive backing such that they “could share a common source.” However, Valdez admitted that she could not say that it was “more likely than not” that the tapes were from the same source unless the torn ends of the tapes could be pieced back together.
Throughout the State’s case, Robinson alluded to the possibility that Ernest Blan-co was the actual shooter in these murders. 4 Investigators testified that they contacted Blanco, who voluntarily cooperated with the investigation and provided a DNA sample. Investigators further stated that Blanco’s DNA did not match any of the DNA recovered in this case, and thus they excluded Blanco as a suspect. The State called Blanco as a witness, who testified that he was in Waco visiting his newborn son on the day of the murder. Blan-co further stated that he had not been to Austin in several months. Blanco’s alibi and credibility were thoroughly scrutinized by Robinson during cross-examination. At the conclusion of the State’s case-in-chief, Robinson recalled the lead investigator and questioned him about his investigation of Blanco as a suspect. Robinson did not call any other witnesses and did not testify. After the close of evidence, the jury found Robinson guilty of capital murder. The State did not seek the death penalty, and the trial court sentenced Robinson to life imprisonment. This appeal followed.
DISCUSSION
Robinson effectively raises four issues on appeal. 5 First, he contends that the evidence was insufficient to support the jury’s finding that he was the primary actor in these murders. Second, he claims that the trial court erred in denying his motion to suppress evidence obtained pursuant to search warrants because the warrants were not supported by probable cause. Third, Robinson argues that the trial court erred in admitting the expert testimony of Deputy Wright and Valdez. Finally, Robinson challenges the trial court’s finding that Williams was competent to testify.
Sufficiency of the evidence
In his first point of error, Robinson claims that the evidence produced at trial is legally insufficient to sustain his conviction. The trial court denied the State’s request to instruct the jury on the law of parties.
See
Tex. Penal Code Ann. § 7.02(b) (West 2011) (statutory authority to hold conspirators guilty of felonies committed by co-conspirators). Therefore, Robinson could only be convicted of capital murder if the jury found that he shot
Standard of Review
In reviewing the sufficiency of the evidence to support a conviction, we determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt.
Brooks v. State,
Analysis
A person commits the offense of capital murder if he murders more than one person during the same criminal transaction. Tex. Penal Code Ann. § 19.03(a)(7)(A). Murders are committed in the same criminal transaction if they occur over a “ ‘continuous and uninterrupted chain of conduct occurring over a very short period of time ... in a rapid sequence of events.’ ”
Jackson v. State,
At trial, the State presented evidence that (1) Robinson was in possession of the murder weapon, (2) his clothes contained gunshot residue as well as his and Nieto’s DNA, (3) Robinson attempted to destroy this physical evidence and flee when investigators came to search his home, (4) Robinson called Mekonen four times while driving from Waco to Austin on the morning of the shooting, (5) Robinson was in the vicinity of Nieto’s home for the few hours leading up to the murders, (6) Robinson’s SUV matches the description of a vehicle at the crime scene, and (7) Robinson’s SUV tested positive for gunshot residue and the presumptive presence of blood. From this evidence, the jury could reasonably have inferred that Robinson drove in his SUV from Waco to meet Nieto and Mekonen, shot them both, and then attempted to destroy the evidence of his crime when he learned that investigators were closing in. See
Jackson,
This case is distinguishable from Pesina because there is substantial evidence that Robinson was the primary actor in these murders. See id. at 381-82 (noting no evidence defendant acted alone or as primary actor). Unlike in Pesina, the evidence against Robinson is not limited to weapons or clothing from the crime scene being found in Robinson’s home. The evidence also shows that Robinson used his cell phone, of which he was in possession at the time of his arrest, to call the victim four times as he drove from Waco to Austin the morning before these murders. Robinson’s cell phone calls also place him in the vicinity of the crime scene for several hours leading up to the shootings and then returning to Waco after the murders. Further, an eye witness places a vehicle matching Robinson’s SUV in front of the crime scene prior to the shooting. Investigators found the murder weapon, bloody clothes, and other physical evidence relating to the shooting in Robinson’s Waco home, and Robinson’s SUV tested positive for gunshot residue as well as the presumptive presence of blood. From this evidence, the jury could reasonably infer Robinson’s participation in the actual shooting from more than his mere subsequent possession of incriminating evidence.
Furthermore, the Texas Court of Criminal Appeals has recognized that inference stacking, i.e., the drawing of a series of multiple reasonable inferences based on direct or circumstantial evidence, can be a proper reasoning process.
Hooper,
Evidence obtained pursuant to search warrants
In his second, third, and fourth points of error, Robinson claims that the trial court erred in denying his motions to suppress evidence obtained pursuant to search warrants for his home, SUV, and DNA, respectively. Robinson claims that the affidavits supporting the search warrants for his home and SUV did not establish probable cause to believe that evidence of the shooting would be found at either location. Furthermore, Robinson argues that the affidavit supporting the search warrant for his DNA relied on evidence obtained pur
Standard of review
Ordinarily, a trial court’s ruling on a motion to suppress is reviewed under a bifurcated standard, giving almost total deference to the trial court’s findings of fact but reviewing conclusions of law de novo.
State v. McLain,
Reviewing courts must determine whether the magistrate had a substantial basis for concluding that probable cause existed.
State v. Jordan,
Analysis
Robinson claims that the affidavits supporting the search warrants for his home and SUV failed to establish probable cause that evidence related to the shooting would be found at either location. Given the totality of the circumstances set forth in the affidavit, we cannot agree that the magistrate lacked a substantial basis for concluding that evidence related to the murders would be found in Robinson’s home and SUV.
See Jordan,
The affidavits supporting the warrants give a detailed account of the investigation leading up to the issuance of the warrants, including the cell phone tracking information placing Robinson in the vicinity of the crime. In particular, with regard to Robinson’s home and SUV, the affidavits state the following: (1) “a neighbor saw a black SUV drive away very fast” after the shooting; (2) Robinson’s girlfriend “owns a small, black, SUV”; (3) an officer previously noted that Robinson kept a .38 caliber revolver in his home; (4) the bullets that were recovered from the crime scene were consistent with that of a .38 or .357 caliber revolver; and (5) the affiant’s experience in criminal investigations leads him to “believe that items capable of collecting saturated blood [and other evidence], including but not limited to clothing, vehicle uphol
Considering the totality of the affidavit, the magistrate could reasonably infer that Robinson was involved in the shooting of Nieto and Mekonen. Additionally, the magistrate could reasonably have believed that evidence relating to the shooting would be found in Robinson’s SUV given that it could have been used to flee the crime scene. Finally, the magistrate could have reasonably inferred that evidence relating to the shooting would be found in Robinson’s home given that he had previously kept a .38 caliber revolver at his home, and common sense suggests that clothing and other items capable of carrying forensic evidence would be kept in the home.
See Rodriguez,
Furthermore, we find that the magistrate had a substantial basis for issuing the search warrant for Robinson’s DNA samples. The affidavit supporting this search warrant listed all of the evidence recovered from the previous searches, including the revolver and clothes from the burning bag as well as Robinson’s statements while in custody. Given that the searches of Robinson’s home and SUV were valid, the affidavit for Robinson’s DNA could properly include information obtained during those searches. Furthermore, the affidavit was sufficient to establish probable cause for the seizure of Robinson’s DNA given the affidavit’s explanation of the physical evidence and Robinson’s statement that the clothes he attempted to destroy belonged to another suspect. Because the affidavit provided a substantial basis for the magistrate to conclude that probable cause existed for the seizure of Robinson’s DNA samples, we conclude that the trial court did not err in denying Robinson’s motion to suppress. Robinson’s fourth point of error is overruled.
Admissibility of expert testimony
In points of error five through eight, Robinson argues that the trial court erred in admitting the testimony of two of the State’s expert witnesses. See Tex.R. Evid. 702. Specifically, Robinson claims that Deputy Wright did not qualify as an expert with regard to the method of tracking cell phone activity. Furthermore, Robinson claims that Valdez’s testimony about the similarity of physical evidence recovered from the crime scene and Robinson’s home should have been excluded because her method of analysis was unreliable. Robinson also argues that Valdez’s testimony was irrelevant and overly confusing. See id. 401, 403.
Standard, of review
There are three separate conditions for the admissibility of expert testimony: “(1) the witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the fact-finder in deciding the case.”
Rodgers v. State,
Qualification of Deputy Wright as an expert
Robinson argues that, based on the qualifications presented, the trial court abused its discretion in allowing Deputy Wright to testify as an expert in tracking cell phone activity.
Rodgers,
At trial, Deputy Wright testified that he had completed three years of college course work in criminal justice. Though he did not complete his degree, he testified that he had worked for the Travis County Sheriffs Office for fourteen years, the last four of which he worked as a special deputy in the criminal intelligence unit assigned to the United States Marshals’ Violent Fugitive Task Force. Deputy Wright explained that his intelligence unit used “cell phones, MySpace pages, and any kind of computers” or technology to track the location of fugitives or persons under investigation and that “[w]ith cell phones we are able to locate where people are based off cell tower readings and other techniques.” Deputy Wright also testified that he had completed a three-day training course in reading cell phone records, identifying cell phone tower locations, and plotting and tracking cell phone activity. As a result of this training, Deputy Wright was certified to read cell phone records. 6
In addition, Deputy Wright testified that while cell phone technology had advanced since his training, the type of data used to track phone activity had remained the same. He stated that when cell phones place or receive calls, they “reach out” to connect to the nearest cell tower, which must be within a two-mile radius of the phone’s location in order for the phone to receive a signal. He further stated that the phone records that the Sheriffs office
Robinson argues that because the State failed to show how often Deputy Wright had actually tracked suspects using their past cell phone activity, Deputy Wright should not have been qualified as an expert. Given Deputy Wright’s training and experience with the criminal intelligence unit, we disagree.
In reviewing the trial court’s ruling on Deputy Wright’s qualification, we first consider whether the field of expertise on which his testimony is based is complex.
See Rodgers,
With respect to the second and third prongs, we find that Deputy Wright’s testimony was not conclusive nor dispositive.
See Vela,
Reliability of Valdez’s analysis
Robinson claims that Valdez’s expert testimony should have been excluded because the methodology Valdez employed is unreliable.
See Vela,
(1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such community can be ascertained, (2) the existence of literature supporting or rejecting the underlying scientific theory and technique, (3) the clarity with which the underlying scientific theory and technique can be explained to the court, (4) the potential rate of error of the technique, (5) the availability of other experts to test and evaluate the technique, (6) the qualifications of the expert(s) testifying, and (7) the experience and skill of the person(s) who applied the technique on the occasion in question.
Id.
at 100 (citing
Kelly,
Valdez stated that she performed a side-by-side visual comparison of the physical characteristics of the tapes recovered from the crime scene and Robinson’s home. Valdez testified that the method she used to compare the duct tapes was “based on research that had been presented both in the forensic field ... [and] specific forensic research that has been formed, as well as the training that [she] received.” She stated that the “analysis that [she] performed in the laboratory is not necessarily new or novel” and that it had been the accepted forensic practice for many years. The technique and underlying scientific theory for comparing the tapes was clear and is consistent with the commonsense understanding that tapes with similar physical characteristics are more likely to be from a common source than those that have different characteristics.
See Vela,
Relevancy of Valdez’s testimony
Robinson also argues that Valdez’s testimony should have been excluded as irrelevant and overly confusing.
See
Tex.R. Evid. 401, 403;
see also Jackson,
In this case, the tapes from the crime scene and Robinson’s home were offered to show that because the tapes were similar, it is more likely that they came from a common source, and if they came from a common source, it is more likely that the tape in Robinson’s home came from the packaging for the marijuana in Nieto’s home. If true, this evidence would tend to prove that Robinson took the marijuana from Nieto’s home, which would place Robinson at the crime scene and explain his motive for shooting Nieto and Mekonen, i.e., the theft of the narcotics. These are facts of consequence in this case, and thus the similarity of the tapes is relevant.
See Layton,
Relevant evidence is generally admissible unless its probative value is substantially outweighed by some other concern, such as misleading the jury.
See
Tex.R. Evid. 402, 403;
see also Gigliobianco v. State,
Even if the trial court had abused its discretion in admitting Valdez’s testimony, we conclude that the error would be harmless. Incorrect evidentiary rulings do not generally rise to the level of violating the constitution.
See Potier v. State,
Williams’s competency to testify
In his final issue on appeal, Robinson claims that the trial court erred in admitting the testimony of Williams, Nie-to’s neighbor. Specifically, Robinson argues that Williams was incompetent to testify about her observations on the day of the shooting given her admission that she “wasn’t really paying attention” and her inability to recollect conversations with investigators.
See
Tex.R. Evid. 601. Robinson objected to Williams’s competency and moved to strike her testimony after cross-examination.
7
The trial court overruled
There is a presumption that every witness is competent to testify.
See
Tex.R. Evid. 601(a);
Davis v. State,
Robinson claims that Williams fails to satisfy the second element of competency, i.e., a capacity to recollect. Williams testified that she could not remember speaking with investigators on the day of the shooting and admitted that she “wasn’t really paying attention” to the cars parked in Nieto’s driveway. However, she testified that she saw a small black SUV parked on the street in front of Nieto’s home on the day of the shooting. Furthermore, she identified a picture of a Mercedes SUV as being the same model as the vehicle she observed. Overall, Williams’s testimony reflects an ability to recollect relevant events. Any inconsistencies or inabilities to recall certain facts do not render Williams incompetent to testify, but go to the credibility of her testimony — an issue for the jury.
See Rodriguez v. State,
CONCLUSION
Having overruled all of Robinson’s issues on appeal, we affirm the judgment of conviction.
Notes
. Unless otherwise indicated, the facts recited herein are taken from the testimony and exhibits admitted at trial.
. Investigators confirmed that the picture that Williams identified was the same model as Robinson's SUV.
. Only some of the DNA samples could positively be identified as Nieto’s, while others matched Nieto to the extent that the odds of matching another Latin-American were one in 889.7 trillion. Similarly, other samples matched Robinson only to the extent that the odds of matching another African-American were one in 11.05 billion.
. During interrogation, Robinson told investigators that Blanco shot Nieto and Mekonen and then forced Robinson to keep the gun and other evidence under threat of violence. While Robinson’s statements during his interrogation were not admitted at trial, Robinson's accusation that Blanco was the shooter was admitted to explain the subsequent investigation of Blanco as a potential suspect.
. Robinson raises these issues in nine separate points of error. However, for convenience, we have grouped the points of error into four legal issues.
. Deputy Wright stated that the United States Marshals Service operated the training course, but he could not recall "who back[ed]” his certification.
. The State argues that Robinson’s objection to Williams's competency was not timely and thus not preserved for appeal.
See
Tex. R.App. P. 33.1(a);
Lagrone v. State,