OPINION
Appellant Cornelius Lamont Jones challenges his conviction for capital murder. He takes issue with the sufficiency of the evidence, an evidentiary ruling, the trial court’s denial of his request to charge the jury on spoliation, and the trial court’s denial of jury-selection challenges. Concluding these issues afford no basis for appellate relief, we affirm.
Factual and Procedural Background
The complainant and two associates dealt in marijuana. One of the associates facilitated a prospective purchase through the associate’s friend’s brother, who knew appellant. The brother arranged for the complainant to purchase twenty-five pounds of marijuana from appellant for about $10,000. The brother told the associates and the complainant where to go to complete the transaction and the three went together to the indicated apartment complex. Appellant got into their vehicle and showed the complainant a sample of the marijuana and then asked the complainant to walk with him to complete the purchase. As he exited the vehicle, the complainant had the money in his pocket, in a Crown Royal bag. The complainant also had on his person two cell phones and a gun. Appellant told the complainant to walk ahead of him.
Two residents were hanging out on the balcony of their apartment building when they saw two males—who appeared to be friends—walking down the sidewalk. Then, suddenly the two residents heard a gunshot. Within seconds, one of the residents ran around the apartment building and saw a body. The other resident called 911.
Meanwhile, the complainant’s two associates, who had been waiting in their vehicle, started to- become nervous. Both tried calling the complainant but he did not answer the phone. When the associates saw police officers arrive, they left the apartment complex believing they had been “set up.”
Officer Mark Champaigne responded to the resident’s 911 call and discovered the dead body of a male lying face down in the stairwell in between apartments. Deputy Mark McElvany investigated the сrime
The complainant’s two associates spoke with police officers later that evening and told them about the marijuana deal. The police task force then began searching for the man (the brother of the associate’s friend) who had set up the transaction. He was not home, but the police located that man’s girlfriend. Sergeant Alanis gave her a list of nicknames of the people for whom he was searching and the girlfriend provided him -with Facebook' photographs of thоse individuals. Sergeant Alanis used those photographs to match up the nickname with appellant’s true name.
‘ Police officers then made photo spreads to show to witnesses. The complainant’s two associates identified appellant as the man who entered their vehicle and left with the complainant to complete the marijuana purchase. The resident who discovered the complainant’s body immediately after the shooting picked someone other than appellant from the photo spread. Police officers later disclosed to appellant’s defense lawyers that the witness had identified another individual, 'but they did not save the photo spread tо give to defense codnsel.
When appellant was apprehended, he waived his rights and spoke with police investigators. Appellant admitted that he shot the complainant. .He said that “something didn’t feel right” about the transaction and then the complainant pulled a gun on appellant. Appellant said that they struggled and he shot the complainant in self-defense. Appellant admitted taking the complainant’s phone and gun but said, he did not take any money.
Appellant was charged with capital murder for -killing the complainant in the course and scope of committing a robbery. Appellant pled “not guilty.”
After voir dire, appellant made a challenge under Batson v. Kentucky, to four of the State’s peremptory strikes. See
At trial, the complainant’s two associates testified that they intended to complete the deal cleanly. One testified that he would never attempt to rob someone in an unknown location and that the complainant did not have the .right physical attributes to successfully complete a robbery. (That associate touted his own background in robbery but testified that the complainant was more of a “hustler.”). Both associates testified that the.complainant had.money in a Crown Royal bag to pay for the marijuana.
The two residents testified that they heard the gunshot very shortly after one of them saw the two men walking together. Both residents testified that they would have been able to hear screaming and that they heard nеither screaming nor sounds of a scuffle, One resident noted there was not enough time for a scuffle in between the time he saw the men walking amicably and the gunshot.
At the charge conference, appellant requested a charge on spoliation of evidence due to the police department’s failure to provide him with the photo spread the police had showed to the resident who did not identify appellant. The trial court denied the request.
■ The jury found appellant guilty as charged and appellant, received an automatic sentence of life imprisonment. Appellant raises four issues in this appeal.
Issues and Analysis
A. Sufficiency of the Evidence
In evaluating a challenge to the sufficiency of the evidence supporting a criminal conviction, we view the evidence in the light most favorable to the verdict. Wesbrook v. State,
A person commits capital murder if he intentionally causes the death of an individual in the course of committing or attempting to commit robbery. See Tex. Penal Code § 19.03(a)(2); Dawkins v. State,
Proof that appellant robbed’ the ■ complainant as-an afterthought and unrelated to the murder is not sufficient to prove capital murder. See Dawkins,
Appellant admitted to police that he shot the- complainant. The -medical examiner testified that the complainant'died from a single gunshot. Appellant also admitted to police that he took the complainant’s cell рhones and gun from the body. The jury reasonably could have inferred appellant intended to take these items before he shot the complainant. The complainant’s associates testified that thé complainánt was carrying $10,000 when he left thé car to. walk .with appellant. Appellant confirmed that he. expected to receive $10,000 from the complainant in exchange for twenty-five pounds of marijuana. One of the residents testified that he saw the complainant’s body about twenty-five seconds after the shooting but did not see a Crown Royal bag or $10,000 near the complainant’s body, nor did he see anyone running away from the body. Based on evidence that the complainant was carrying $10,000, apрellant took some things from the body, and the very limited time frame in which anyone else could have stolen the $10,000, the jury reasonably could have inferred from that appellant
The complainant’s two associates testified that they expected the complainant to enter an apartment where the marijuana would be located. Appellant said the marijuana was in the apartment of a man named “Jose,” but appellant told police that he did not know any more information about Jose or where Jose lived. Since appellant claimed they were supposed to go to Jose’s unit, the jury reasonably could have inferred from appellant’s lack of knowledge that appellant made up the story about Jose and appellant never intended to complete the transaction, but instead intended to rob the complainant. See Robertson,
The record contains sufficient evidence from which the jury reasonably could have inferred that appellant intentionally caused the death of the complainant in the course of robbing him. See id.; Dawkins,
B. Appellant’s Batson Challenges
In his first issue, appellant asserts the trial court abused its discretion in denying his Batson challenges.
A prosecutor cannot use a peremptory strike against a venire member solely on account of race. Batson v. Kentucky,
During voir dire, the prosecutor asked the panel if anyone would have a problem rendering a “guilty” verdict unless the State presented a particular piece of evidence like the murder weapon. Venire member 3 stated that he did not think he would be able to convict anyone without physical evidence. Venire member 14 said he was having a hard time with the whole case and that he would have a hard time convicting anyone. The prosecutor also asked the vеnire members to rank on a scale of one to four how difficult it would be for them to convict someone if the victim had been involved in a drug deal. After the venire members gave their answers, the State challenged several for cause. The trial court denied some of the challenges and granted others. The State then made its strikes, as summarized in the following charts:
Venire Members Answering “One” or “Two”
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The trial judge then asked the prosecutor for explanations for striking venire members 6 and 49. The prosecutor gave three reasons for striking venire member 6: (1) she was young, (2) she had worked for a short amount of time, and (3) she answered “two” on the State’s scaled question. The prosecutor likewise identified three reasons for striking venire member 49: (1) she was unemployed, (2) she answered “two” on the State’s scaled question, and (3) she had to be pressed to answer the scaled question. The prosecutor added that the State struck everyone that answered “one” or “two” on the scaled question. Despite this statement, the record shows that venire member 32 answered “two” and the Stаte did not strike venire member 32. The trial court denied appellant’s challenges to venire members 6 and 49.
To succeed on a Batson challenge, the accused must demonstrate by a preponderance of the evidence that the State indulged in purposeful discrimination against a member of a constitutionally-protected class in exercising peremptory challenges. Watkins v. State,
To make a prima facie case, a defendant must show that relevant circumstances raise an inference that the State made a race-based strike. Flores v. State,
The defendant’s burden to present a prima facie case becomes moot after the State offers its race-neutral explanation for striking a particular venire member. Jones v. State,
Venire members 6 and 49
Appellant was not required to make a prima facie case for venire members 6 and 49 because the State offered its explanation for striking them and the State’s explanation mooted appellant’s burden to establish a prima facie case of purposeful racial discrimination. See Jones,
Because the State met its burden of production, we must assess whether the trial court clearly erred in concluding appellant did not prove purposeful discrimination. Appellant argues the State’s explanations were not genuine and therefore a pretext for discrimination because (1) the State’s explanations for striking venire members 6 and 49 applied equally to veni-re members of another race who were not eliminated and (2) the record contradicts the State’s reason. The appellate record does not contain the racial composition of the panel or the race of the challenged venire members. Without this cruсial information, we cannot perform the analysis to compáre whether prosecutors treated veni-re members of different races differently. See Miller-El v. Dretke,
With respect to the first argument, appellant did not provide a record upon which this court can conduct the comparative analysis necessary to gauge any disparate treatment because the record does not contain venire member 32’s race. See Tex. R. App. P. 34.5 (stating that appellant has burden to develop the record to show the nature and source of the error); Ortiz v. State,
With respect to the second argument, the record supports appéllant’s contention that the State did not strike each venire member that answered “one” or “two” to the scaled question. But, the State provided additional race-neutral reasons for striking venire members 6 and 49. See Cantu,
Venire members 3 and 14
Appellant did not establish a pri-ma facie case of discrimination for venire members 3 and 14 because counsel simply stated that they were African-American without providing any context. The record does not indicate if any of the other members of the venire panel or jury were African-American or some other cognizar ble racial group. So,' the requisite analysis cannot be done. See Hatchett,
Appellant asserts that he had no obligation to make a prima facie case because the prosecutor adopted the statements of the trial judge when the trial court denied the challenges to venire members 3 and 14. The trial judge stated that she was denying the Batson challenges of these venire members because the State had challenged them for cause. Even if we аgreed that the State had adopted the trial judge’s statements and so mooted appellant’s obligation to make a prima facie case, the trial court still would not have erred in denying appellant’s Batson challenges. The State gave a race-neutral explanation—that it struck venire members 3 and 14 because it had challenged them for cause and the trial court denied those challenges. See Cantu,
We conclude the trial court’s denial of appellant’s Batson challenges afford no basis for appellate relief; See id. We overrule appellant’s first issue.
C. Request to Charge Jury on Spoliation of Evidence
The Court of Criminal Appeals most recently addressed spoliation of evidence in a published opinion in 1898
The Watson case suggests that a jury may draw an adverse inference from spoliation of evidence—a remedy the Supreme Court of Texas has recognized for spoliation of evidence in the civil context. See Brookshire Bros., Ltd. v. Aldridge,
“Some Harm” Analysis Based On Presumed Error in Failing to Give Ad-, verse-inference Instruction
We use a two-step process to analyze appellant’s complaint of júry-charge error. First, we determine whether the trial court erred. See Ngo v. State,
As noted, we presume for the sake of argument that the trial court erred in denying the spoliation instruction. To determine whether this presumed error harmed appellant, we consider (1) the jury charge as a whole, (2) the arguments of counsel, (3) the entirety of the evidence, and (4) any other- relevant information from the record. Id.
The record reveals that the police department did not save the photo spread police showed the resident who saw appeP lant and the complainant walking to the apartments. Appellant argues that the charge error harmed him because the spoliation instruction would-have allowed the jury to determine that the individual the resident erroneously selected was actually the person who robbed the body. Although the jury charge did not contain any instruction that the jury could make an adverse inference from the State’s destruction of the photo spread, the omission of the instruction did not ham appellant because the jury heard that the resident did not identify appellant and appellant admitted he shot the complainant.
Appellant contends that the jury could have inferred that .'the individual the resident selected from the photo spread was the person who robbed the body, but the inference appellant suggests is not a logical inference from spoliation of the photo spread. First, the resident did not see anyone rob the body; he testified that he was identifying one of the twо men he saw walking in the apartment complex before he heard the gunshot. No reasonable juror could infer that the favorable result from the destroyed evidence was that the individual the resident identified from the photo spread robbed the body. Second, appellant admits that he was one of the two men the resident saw walking moments before the gunshot. A photo spread contained appellant’s photo as well as the-photos of several fillers who ostensibly resembled appellant but- who had no nexus to the offense. The' police officer who created the photo spread testified that he selected photos of individuals who looked like appellant fоr placement in the photo spread; he did not select photos of other individuals who may have had a connection- to the sscene. No reasonable juror could infer that a random individual, selected by the police because he happened to resemble appellant, robbed the body. Third, the State did not pretend the photo' spread was favorable to the State. The State admitted that the missing evidence was favorable to- appellant- through testimony that the resident did not pick appellant’s photograph out of the photo spread.
Through other witnesses’ testimony and appellant’s own statements, the jury heard overwhelming evidence that apрellant was present at the shooting. Indeed, appellant admitted that he shot and 'killed the complainant and that he took the complainant’s gun and cell phones after killing him.
Based on the jury charge, evidence, and arguments of counsel, we conclude that appellant did not suffer any harm from the trial court not giving a spoliation instruction. See Burdick,
D. Admission of Photograph into Evidence
In his third issue, appellant contends the trial court abused its discretion in admitting into evidence State’s Exhibit 57—one of the Facebook photographs the police obtained in their investigation. The photograph shows appellant and anоther male. Both are wearing white t-shirts and red baseball caps, and each is
Relevance
Under Rule 401, evidence is relevant if: “(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequenсe in determining the action.” Tex. R. Evid. 401. A court will deem evidence relevant if the evidence is material to and probative of a matter properly provable in the case. Henley,
Appellant-asserts that'the photograph (Exhibit 57) is irrelevant because the date of the photograph is unknown. Sergeant Alanis testified that he had a suspect named “Monty Jones.” The girlfriend provided him with the photograph and identified the individual in the photograph as “Monty.” Sergeant Alanis compared that photograph tо a booking photograph of appellant and was able to put together photo spreads to show the complainant’s two associates. After identifying appellant, police eventually interviewed him. The photograph is material because it relates to the investigator’s determination of those involved in the shooting for which appellant eventually was charged. The photograph is probative evidence because investigators used it to identify appellant. Because the photograph is relevant, the trial court did not abuse its discretion in admitting it into evidence. See Tex. R. Evid. 401; Henley,
Probative value Weighed Against Prejudicial Effect ....
Appellant’ asserts that the trial court abused its discretion in admitting the photograph into evidence, arguing that the photograph is unfairly prejudicial and misleading because it shows him holding, money. Appellant contends the jury might have believed that he got the money.in the photograph by robbing the complainant.
Under Rule 403, the court “may exclude relevant evidence if its-probative value is substantially outweighed by a danger of one:or'more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative’ evidence.” Tex. R. Evid. 403. In making the Rule 403 determination, a court must balance (1) the inherent probative force of the proffered item of evidence along with (2) the proponent’s,-need for that evidence against. (3) any tendency of the evidence to suggest decision on an improper, basis, (4), any tendency of the evidence to confuse or distract the jury from the main issues, .(5) -any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and,.(6) the-likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat, evidence already admitted. Gigliobianco v. State,
While the photograph arguably was cumulative of other evidence, appellant attacked the police investigation, asserting that the police had “tunnel vision.” The State was entitled to lay out the police’s investigative steps to make its case as persuasively as possible. See Alvarado v. State,
Appellant argues that the photograph— depicting him holding money—is unfairly prejudicial. We disagree. First, the jury knew only that the girlfriend printed the photograph from a social media service and the jury was not aware of when it was taken. This means the jury did not know if it were possible for the money to have belonged to the complainant. Second, the trial evidence showed appellant was a drug dealer involved in high-stakes narcotics transactions with large sums of money. In this context, the photograph of appellant with a large amount of cash most likely was viewed as a reflection of appellant’s drug dealing. The State did not argue that the money depicted in the photograph belonged to the complainant. In closing, defense counsel pointed out that there was no link between the photograph and the complainant’s shooting. Likewise, the photograph was not misleading because the jury knew how the officer got the photograph and had no reason to think the money in the photograph was related to the robbery.
Thе trial court reasonably could have concluded that the presentation of the photograph for the purposes of identification of appellant would not consume an inordinate amount of time or needlessly duplicate evidence already admitted. The State introduced the photograph to explain how the detectives identified appellant. It is not a complicated piece of evidence and the State used it only one other time—as an example of appellant’s untruthfulness with police. See Gigliobianco,
Conclusion
None of the points appellant has raised afford him appellate relief. The evidence is sufficient to support appellant’s conviction. The trial court did not err in denying appellant’s Batson challenges. Any error in failing to charge the jury on spoliation is harmless. And, the trial court did not abuse its discretion in admitting the photograph of appellant holding money (State’s Exhibit 57) into evidence. Having overruled all of appellant’s issues, we affirm the trial court’s judgment.
Notes
. Research reveals that since 1898, the Court of Criminal Appeals addressed spoliation in two unpublished opinions. See Ramirez v. State, No. AP-75167,