Opinion
NO. 01-18-00948-CR
08-27-2020
MICHAEL DIXON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 21st District Court Washington County, Texas
Trial Court Case No. 17487
MEMORANDUM OPINION
A jury convicted appellant Michael Dixon of murder and assessed his punishment at 45 years' imprisonment. In five points of error, Dixon argues that: (1) there is insufficient evidence supporting the lesser-included offense of (Felony) Murder; (2) there is insufficient evidence corroborating the accomplice's testimony; (3) the trial court erred by admitting evidence of an alleged plan to commit an extraneous robbery offense; (4) the trial court erred by allowing the State to admit into evidence an alleged extraneous offense of burglary of a vehicle, and resulting theft of the firearm, used in connection with this incident; and (5) the trial court erred by admitting an unredacted download of the contents of his cell phone.
We affirm the trial court's judgment.
Background
The night of October 30, 2014, a passerby discovered the body of 20-year old college student, Trey Alan Kurtz, lying on the side of the road in Brenham, Texas. Kurtz had been killed by a single gunshot wound to the back of the head. Dixon, his cousin, J.B. Wright, III, and Dixon's friends, Jordan Graves and Deperrion Lott, were later indicted and charged with capital murder in connection with Kurtz's shooting. All four co-defendants were teenagers at the time of the incident. J.B., who was sixteen-years old at the time of the shooting, testified against Dixon.
J.B. testified that he met Kurtz on a local college campus about two months before the murder. He and a friend were walking by when Kurtz, who had smelled the odor of marijuana on J.B.'s clothes, offered him a free gram of high-grade marijuana along with his cell phone number. J.B. saved some of the marijuana and shared it with Dixon. J.B. testified that he tried to contact Kurtz about two weeks later to buy some marijuana, but he was not able to reach him.
In October 2015, according to J.B., he, Dixon, and Graves decided to steal marijuana from another drug dealer, Colin Decuir, by going by Decuir's home and taking the drugs. Decuir, however, was not at home when they stopped by and their plan fell through. J.B. testified that, about two weeks later, the group discussed robbing someone else for marijuana and Dixon brought up the idea of robbing Kurtz. A week before the murder, Dixon asked J.B. if he still had Kurtz's phone number and J.B. gave it to him. J.B. testified that he understood that Dixon was asking for the number because he wanted to rob Kurtz.
J.B. contacted Kurtz on October 29, the night before the murder, to set up the purported drug deal. They exchanged text messages and calls that night and into the next day concerning the quantity and quality of marijuana. Although Kurtz originally agreed to sell J.B. and his friends two grams of marijuana for $550, they ultimately agreed to purchase four grams for $950. J.B. texted Kurtz that he would contact him later to set up the purchase. J.B. testified that he and his friends did not have the money and they had no intention to pay Kurtz for the drugs.
J.B. snuck out of his bedroom that night to meet up with Dixon, Graves, and Lott at Dixon's home around 8:30 p.m. According to J.B., the four of them decided that he, Graves, and Lott would pick up Kurtz in Graves's mother's car and drive around under the pretext of getting the money. They would then pick up Dixon, and he would get in the car on the rear passenger side and basically move Kurtz into the middle of the backseat, between J.B. and Dixon. They would then drive Kurtz to a secluded area, take the marijuana, and leave Kurtz there. According to J.B., the plan was for Graves, who was driving, to signal the group that it was time to rob Kurtz by playing a specific song on the radio. A later examination of Dixon's phone found internet searches for that song.
J.B. testified that when the plan was devised, there was no mention of anyone bringing a weapon to the robbery, and no one was supposed to be killed. When they arrived at Dixon's home to plan the robbery, however, Graves handed Dixon a gun and asked Dixon if he really needed it. Dixon told Graves that he was bringing the gun with them for their protection.
J.B. testified that when Graves played the signal song, Dixon pulled out the gun and pointed it at Kurtz's head. Lott told Kurtz to just give them the drugs and then started hitting Kurtz. Kurtz, who was trying to escape, managed to open J.B.'s door and shove J.B. out of the vehicle. Kurtz also fell out of the car and landed face down on the ground. J.B. stood up and saw Dixon standing behind him. According to J.B., Dixon motioned him to get out of the way, and then Dixon tried to hit Kurtz with the gun. J.B. testified that the gun discharged when Dixon struck Kurtz with it on the back of his head or neck. Kurtz had been trying to stand up and was facing away from Dixon when the gun came down.
J.B. and Dixon then got back in the car and left. The group later realized that no one had taken the marijuana from Kurtz and that J.B.'s cell phone was missing. Graves dropped J.B. and Dixon off at Dixon's home. The two young men then asked Dixon's grandfather to drive J.B. home. When they were close to the crime scene, Dixon told his grandfather to stop because he needed to pick something up at a girl's house. J.B. and Dixon got out of the car and ran to where Kurtz was still laying on the side of the road. J.B. found his phone and Dixon took the marijuana from underneath Kurtz's sweatshirt. J.B. testified that Kurtz was still alive when they went back because he could hear Kurtz breathing. Dixon, J.B., Lott, and Graves split the marijuana up between themselves the next day.
J.B. testified that the gun Dixon used was nickel plated with a wood handle. He was shown a photograph of a gun and identified it as the gun Dixon had that night.
On cross-examination, J.B. testified that the police had interviewed him at school about the murder in January 2015 and at the police station in October 2015. J.B. admitted that he lied to the police during both interviews about various aspects of the murder. Among other things, J.B. denied knowing Kurtz during the first interview, or ever talking to him, even though the police told him that they had phone records showing calls between his cell phone number and Kurtz's number. J.B. explained that he lied because Dixon and Dixon's mother had told him to lie because the police did not have any evidence. Dixon's mother also told J.B. that she had hired a lawyer for Dixon and "he got an alibi." J.B. also testified that he had reason to be scared of Dixon because he had seen Dixon pull a gun on his little brother a few months before the murder. J.B.'s attorney arranged for him to have a second interview at the police station in October 2015. He claimed that he wanted to talk to the police to "get the situation behind me." He admitted, however, that he lied during that interview as well when he told the officers that he did not go back to the crime scene. J.B. explained that he did not want to get Dixon's grandfather in trouble. J.B. denied that he had tried to mislead the police by giving them the names of people that he said he had heard committed the crime.
Deputy Medical Examiner Dr. Vickie Willoughby conducted the autopsy. According to Dr. Willoughby, Kurtz died from a single gunshot wound to the "right back side of the head." She did not see any soot or muzzle abrasions which would have indicated that the gun was in contact with Kurtz's scalp when the weapon discharged. The lack of soot also indicated that the gun was at least a few inches away from the skin when it discharged. Dr. Willoughby also observed small punctate abrasions that were consistent with stippling. Stippling occurs when unburned gunpowder hits the skin surface. Dr. Willoughby testified that stippling indicates that the gun was within two to three feet of the body at the time it was discharged but was not in contact with the skin. She also observed several injuries on Kurtz's face and a small abrasion to his left hand, and she testified that these injuries were consistent with somebody being in a fight or having fallen to the ground.
The lead investigator on the case, Detective John Snowden, testified that he obtained a warrant to search Kurtz's cell phone records. The records revealed that, starting at11:44 p.m. on October 29, 2014, Kurtz's phone sent and received several calls from J.B.'s cell phone and received six calls from Dixon's phone. Detective Snowden also found a text message conversation between Kurtz and J.B. where J.B. was attempting to buy marijuana from Kurtz. They agreed on an amount, a price, and a location to meet.
Detective Snowden testified that he identified Dixon, J.B., Graves, and Lott as suspects. He also obtained warrants to search Dixon's phone and Graves's mother's car and obtain hair samples from the four suspects. Detective Snowden also discovered a photograph on Facebook of Dixon wearing a cap that appeared to be the same cap found by Kurtz's body at the murder scene.
Detective Snowden testified that he interviewed J.B. twice. The first time was in January 2015 at J.B.'s high school and the second time at the police station on October 24, 2015. The October interview came after J.B.'s attorney contacted the District Attorney's Office. At that point, J.B. had not been arrested or charged with a crime. Detective Snowden confirmed that J.B. had lied to him during both interviews about several topics, including about whether he returned to the scene after the shooting. Detective Snowden testified that he found much of J.B.'s statements to be credible—despite J.B.'s lies—based on J.B.'s behavior and the fact that he came forward and confessed to his role in the shooting before he was charged. Detective Snowden testified that he also had additional evidence which corroborated much of J.B.'s October statement to police. The detective testified there was evidence that Dixon had intentionally shot Kurtz. He said that intentional evidence outweighed the accidental evidence.
A woman who was driving by around 10:00 p.m. spotted Kurtz's body and called the police. Officer Andras was dispatched to the scene. Officer Andras testified that Kurtz had a wound to the back of his head. Officer Andras found a black beanie-style hat at the scene with a New Orleans Saints logo, but he did not find the murder weapon or any marijuana on Kurtz's body.
Officer Andras was later recalled to the stand during which time he testified about a burglary of a motor vehicle call in August 2014. According to Officer Andras, Lee Chalmers reported that a Smith & Wesson 1911 E Series, .45 caliber had been stolen from his vehicle, a white 2016 Ford pickup. He identified the gun from a photograph. Chalmers had a spent shell casing that was fired from this gun that he turned over to the police. Detective Joseph Merkley, who assisted in the investigation of Kurtz's murder, testified that the shell casing that Chalmers had provided matched a shell casing found under Kurtz's body.
Detective Ashorn testified that the police collected a spent shell casing that they found under Kurtz's body and a black stocking cap that was between Kurtz's legs. He also testified that he and Detective Snowden interviewed J.B. in January 2015 and that J.B. "pretty much" lied to them about "almost everything" they asked him during that interview and gave them false leads. He also testified that J.B.'s father had indicated that J.B. had told him to lie about J.B.'s whereabouts the night of the shooting.
Joshua Wright, J.B.'s brother, testified that he saw Dixon steal the gun used in the shooting out of a truck. He described it as a chrome gun with a brown handle.
Officer Mark Wilson testified that he performed a forensic analysis of Dixon's phone. He found a picture of a young man wearing a hat with a New Orleans Saints logo and a picture of a gun. He also determined that Dixon had searched on the internet for the signal song. A disc containing almost all the contents of Dixon's phone, including these photographs and files related to the internet search, was admitted over Dixon's objections.
Rymekia Frazier testified that Dixon called her at 4 a.m. on October 31, 2014, and that he told her about the murder the next day. Dixon told her he shot Kurtz, but it was an accident. Dixon described it as a drug deal gone bad. He also told her he was with J.B., Lott, and Graves in Graves's mother's car. According to Frazier, Dixon told her that J.B. and Lott were getting beat up, and he was just trying to protect them. He also told her that his grandfather had driven him and J.B. back to the scene to retrieve J.B.'s cell phone. Dixon also told her that they had taken the marijuana and divided it up amongst themselves.
Dixon, who testified in his own defense, denied that he met Kurtz before the night of the shooting and claimed that J.B. had used his phone to contact Kurtz to set up the drug buy. He denied that there had ever been a plan to rob Kurtz. Dixon testified that after they picked Kurtz up, Kurtz and J.B. argued about the quality and quantity of the marijuana and began fighting in the backseat of the car. Dixon claimed that after he broke up the fight, J.B. pulled a gun on Kurtz and the two men began fighting over the gun. Dixon testified that J.B. and his brother had stolen the gun and that he did not know that J.B. had brought the gun along until J.B. pulled it out during the fight.
According to Dixon, the rear-passenger side door opened during the fight and both J.B. and Kurtz stumbled outside. Dixon heard the gun fall to the ground and claimed that J.B. yelled to him for help and told him to grab the gun. After Dixon picked up the gun, he saw Kurtz choking J.B. According to Dixon, he swung the gun at Kurtz and "when I hit him, the gun just went off." Dixon denied shooting Kurtz in the back of the head and claimed that Kurtz was standing when the gun accidently discharged. He admitted that the cap the police found between Kurtz's legs was his, but he claimed that J.B. had been wearing it the night of the shooting. He admitted that he and his friend fled the scene after the shooting and never reported the incident to the police.
Dixon denied taking the marijuana from Kurtz or knowing what happened to it, and he denied that his grandfather drove them back over to that scene. He also testified that he called Frazier at 3:00 or 4:00 a.m. but he did not tell her or anyone else that he had been involved in Kurtz's death because he was scared. He also denied telling J.B. not to tell anybody about the incident.
The court's charge gave the jury the option of finding Dixon guilty of capital murder or the lesser-included offenses of murder or manslaughter. The jury was also instructed on Dixon's defensive theories of self-defense and defense of a third party.
The jury returned a general verdict finding Dixon guilty of the lesser-included offense of murder and later assessed his punishment at forty-five years' incarceration. This appeal followed.
Sufficiency of the Evidence
In his first point of error, Dixon argues that the evidence is insufficient to support his murder conviction because there is no credible evidence that he caused Kurtz's death during the commission of a robbery.
A. Standard of Review and Applicable Law
We review an appellant's challenge to the sufficiency of the evidence under the standard enunciated in Jackson v. Virginia, 443 U.S. 307 (1979). See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We examine all the evidence in the light most favorable to the jury's verdict to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 318-19; see Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). Our review includes all of the evidence introduced, whether it be properly or improperly admitted. See Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013) (stating courts consider admissible and inadmissible evidence presented at trial when conducting sufficiency analysis).
"The jury is the sole judge of credibility and weight to be attached to the testimony of witnesses." Merritt, 368 S.W.3d at 525 (citing Jackson, 443 U.S. at 319). As the sole factfinder, the jury may reasonably infer facts from the evidence presented, credit the witnesses it chooses, disbelieve any or all of the evidence or testimony proffered, and weigh the evidence as it sees fit. See Canfield v. State, 429 S.W.3d 54, 65 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd); see also Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). We presume that the jury resolved any conflicting inferences in favor of the verdict and defer to that resolution. See Jackson, 443 U.S. at 326.
To prove the essential elements of the lesser-included offense of murder in this case, the State had to show that either: (1) Dixon committed or attempted to commit robbery and, "in the course of and in furtherance of the commission or attempt," he committed or attempted to commit "an act clearly dangerous to human life" that caused Kurtz's death (felony murder), or that (2) Dixon caused Kurtz's death by intentionally shooting Kurtz with a gun (intentional murder). See TEX. PENAL CODE § 19.02(b)(1), (3). These are two alternative methods of committing the singular offense of murder, not separate offenses. Smith v. State, 436 S.W.3d 353, 378 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd).
Because the jury returned a general verdict finding Dixon guilty of murder, we must uphold the verdict if there is sufficient evidence to support a finding under either theory submitted in the charge. Gilbert v. State, 575 S.W.3d 848, 861 (Tex. App.—Texarkana 2019, pet. ref'd); see also Fuller v. State, 827 S.W.2d 919, 931 (Tex. Crim. App. 1992) (en banc).
B. Analysis
Dixon acknowledges that J.B.'s testimony, if believed, is sufficient to prove that he caused Kurtz's death in furtherance of the commission of robbery. Dixon argues, however, that J.B.'s credibility "had been irrevocably compromised due to the admitted and repeated lies he told to the State's investigators under oath on material issues during the course of the investigation," and therefore, no rational jury could have believed J.B.'s testimony that Dixon and the other co-defendants had planned to rob Kurtz. Dixon further contends that his testimony that the group had planned to buy marijuana from Kurtz, not rob him, is more credible than J.B.'s testimony.
"Appellant will stipulate that J.B.'s testimony, if taken in its entirety as being true, would be adequate to satisfy the test for sufficiency as to the element of robbery."
The jury heard J.B. admit that he lied to investigators on multiple occasions, as well as his testimony as to why he lied. Specifically, J.B. testified that he did not tell the police that he left his cell phone at the crime scene and that he and Dixon went back to retrieve the phone and marijuana because Dixon's grandfather had given them a ride and he did not want to get Dixon's grandfather into trouble. J.B. also testified that he lied to police when he was interviewed in January 2015 because Dixon and Dixon's mother told him to lie. According to J.B., Dixon and Dixon's mother had told him that the police "had no evidence and it would be easy for me to get off and that I wouldn't be questioned no more." Dixon's mother also told J.B. that she had hired a lawyer for Dixon and "he got an alibi." J.B. also testified that he had reason to be scared of Dixon because he had seen Dixon pull a gun on his little brother a few months before the murder.
When asked about his motivation for testifying, J.B. explained that he was testifying against Dixon because "I would want somebody to do it for me, and I know if [Dixon] was in the opposite of his situation, his momma would want to do something for him, too." J.B. testified that the State had not promised him anything in exchange for his testimony. He also testified, however, that although he had also been charged with capital murder in connection with Kurtz's death and had been certified to stand trial as an adult, he was not guilty, and he did not expect to be tried for the offense.
Dixon's testimony with respect to other details of the offense, including his testimony that the gun discharged when he hit Kurtz with it and his testimony that he did not shoot Kurtz in the back of the head, are contradicted by the autopsy report and Dr. Willoughby's testimony that the entrance wound was to the "right back side" of Kurtz's head and the gun was not in contact with Kurtz's scalp when the weapon fired. Frazier's testimony also contradicts Dixon's testimony that he did not return to the scene with J.B. after the shooting, his grandfather did not drive him and J.B. back to the get J.B.'s cell phone, he did not tell anyone about the murder, and he did not know what happened to the marijuana.
The jury knew that J.B. had repeatedly lied about the murder when he was interviewed by the police. The jury was also aware of J.B.'s explanations for his actions, and the circumstances surrounding those voluntary interviews, including the fact that J.B.'s attorney had requested the second interview where J.B. confessed to his role in Kurtz's death. As the sole factfinder, the jury was in the best position to evaluate J.B.'s and Dixon's demeanor at trial, consider all of the evidence and testimony before them, and evaluate each witness's overall credibility. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008) (stating "[t]he [factfinder] is in the best position to judge the credibility of a witness because it is present to hear the testimony, as opposed to an appellate court who relies on the cold record"); see also Canfield, 429 S.W.3d at 65.
Considering the totality of the evidence, we cannot say that the jury's decision to credit J.B.'s testimony over Dixon's testimony was irrational. See Braughton v. State, 569 S.W.3d 592, 611 (Tex. Crim. App. 2018) (acknowledging that "principles affording deference to the jury's credibility determinations are not without limits" because jury's decision "must be rational in light of the totality of the record"). Viewing the evidence in the light most favorable to the jury's verdict, and deferring to the jury's decisions regarding the credibility of the witnesses and the weight of the evidence, we cannot say that no rational factfinder could have found the essential elements of the crime beyond a reasonable doubt in this case. Jackson, 443 U.S. at 318-19.
We overrule Dixon's first point of error.
Accomplice Testimony
In his second point of error, Dixon argues that the State failed to present sufficient evidence corroborating the testimony of J.B., who was an accomplice as a matter of law.
The State agrees that J.B. is an accomplice as a matter of law.
A. Standard of Review and Applicable Law
Code of Criminal Procedure article 38.14 states that "[a] conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed" and that "the corroboration is not sufficient if it merely shows the commission of the offense." TEX. CODE CRIM. PROC. art. 38.14.
"When evaluating the sufficiency of corroboration evidence under the accomplice-witness rule, we 'eliminate the accomplice testimony itself from our review and then examine the remaining portions of the record to see if there is any evidence that tends to connect the accused with the commission of the crime.'" Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008) (quoting Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001)). We view corroborating evidence in the light most favorable to the jury's verdict. Brown v. State, 270 S.W.3d 564, 567 (Tex. Crim. App. 2008).
"[T]he corroborating evidence need not prove the defendant's guilt beyond a reasonable doubt by itself." Malone, 253 S.W.3d at 257. Instead, the corroborating evidence must only link the defendant in some way to the commission of the crime and show that "rational jurors could conclude that this evidence sufficiently tended to connect [the accused] to the offense." Id. (quoting Hernandez v. State, 939 S.W.2d 173, 179 (Tex. Crim. App. 1997)). Although a defendant's mere presence at the scene of the crime, by itself, is not sufficient to corroborate accomplice testimony, such evidence "when coupled with other suspicious circumstances, may tend to connect the accused to the crime so as to furnish sufficient corroboration to support a conviction." Id. (quoting Brown v. State, 672 S.W.2d 487, 489 (Tex. Crim. App. 1984)).
The corroborating evidence need only "connect the defendant to the crime, not to every element of the crime." Joubert v. State, 235 S.W.3d 729, 731 (Tex. Crim. App. 2007); see also State v. Ambrose, 487 S.W.3d 587, 598 (Tex. Crim. App. 2016) ("The corroboration requirement in Article 38.14 does not apply separately to each element of the offense charged or to each aspect of the accomplice's testimony.").
B. Analysis
Dixon's own testimony connects him to the crime. Dixon admitted that he, J.B., Graves, and Lott planned to buy drugs from J.B.'s drug dealer, whom Dixon later learned was Kurtz. According to Dixon, he, J.B., Graves, and Lott took Graves's mother's car to meet up with Kurtz and, when they arrived, Kurtz got into the car and sat in the backseat between Dixon and J.B. Dixon testified that a fight broke out between J.B. and Kurtz over the drugs and the fight spilled out of the vehicle and into the street. J.B., who Dixon claims had been in possession of the gun, dropped it on the ground during the scuffle. Dixon testified that he picked up the gun and tried to hit Kurtz with it to keep him from choking J.B. According to Dixon, he was pistol-whipping Kurtz and "when I hit him, the gun just went off."
Dixon also admitted that he, J.B., and the others fled the scene after the shooting and that the hat police found under Kurtz's body belonged to him. Dixon's testimony not only places him at the scene of the murder with J.B., but it also places the gun in Dixon's hand. See Malone, 253 S.W.3d at 257; see also Smith, 436 S.W.3d at 370 (holding sufficient corroboration shown by evidence of flight, connection to weapon, and presence in accomplice's company at or near place of crime); Brown, 270 S.W.3d at 568 (stating that "under most circumstances, an admission or confession will be sufficient" to corroborate accomplice-witness testimony").
The State also presented additional evidence linking Dixon to the murder and the murder weapon. Specifically, Joshua testified that he saw Dixon steal the murder weapon from Chalmer's truck a few months before the murder. The police also found a spent shell casing underneath Kurtz's body that a forensics examination later determined had been fired from Chalmer's gun. See Hernandez, 939 S.W.2d at 178 (stating proof connecting defendant to weapon like that used in offense is circumstance to consider in determining sufficiency of corroborating evidence). According to Kurtz's phone records, there were six calls from Dixon's phone to Kurtz's phone the night before the shooting. Frazier also testified that Dixon told her that he shot Kurtz by accident as part of a "drug deal gone bad." Further, a picture of Dixon wearing a hat identical to that found at the scene of the murder was found on Facebook.
Dixon acknowledges that the non-accomplice testimony in this case "clearly is enough to corroborate" his connection to the drug deal and the shooting, but he contends that this evidence is insufficient under article 38.14 because there is nothing that corroborates J.B.'s testimony that Dixon and the others had planned to rob Kurtz. Corroborating evidence, however, is only required to "connect the defendant to the crime, not to every element of the crime." Joubert, 235 S.W.3d at 731; see also Ambrose, 487 S.W.3d at 598.
After excluding J.B.'s testimony from our consideration and reviewing the remaining evidence, we conclude that the State presented some non-accomplice evidence that tends to connect Dixon to the charged offense of murder. See Malone, 253 S.W.3d at 257; see also Smith, 436 S.W.3d at 370. We hold that, because a rational factfinder could have concluded that the combined force of this non- accomplice evidence tended to connect Dixon to the offense of murder, the State presented sufficient evidence to corroborate J.B.'s accomplice testimony. See Malone, 253 S.W.3d at 257.
We overrule Dixon's second point of error.
Admission of Extraneous Offenses and Cell Phone Records
In his third and fourth points of error, Dixon argues that the trial court erred by admitting J.B.'s testimony that Dixon had planned to rob another drug dealer before Kurtz, and Joshua's testimony that he saw Dixon burglarize a truck and steal the gun used in Kurtz's murder. Dixon contends that the admission of this evidence violates Texas Rules of Evidence 403 and 404(b).
In his fifth point of error, Dixon argues that the trial court abused its discretion by admitting a digital download of the contents of Dixon's cell phone. Dixon argues that the voluminous exhibit contained largely irrelevant content, including several short "sex tapes" that Dixon had recorded on his phone.
A. Standard of Review
We review a trial court's decision to admit or exclude evidence, as well as its decision as to whether the probative value of evidence was substantially outweighed by the danger of unfair prejudice, under an abuse of discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). As long as the trial court's decision was within the zone of reasonable disagreement and was correct under any theory of law applicable to the case, the decision must be upheld. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g)). "This is so because 'trial courts . . . are usually in the best position to make the call on whether certain evidence should be admitted or excluded.'" Id.(quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).
The erroneous admission of the challenged evidence is reversible only if it affected the defendant's substantial rights to a fair trial. See TEX. R. APP. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. Diamond v. State, 496 S.W.3d 124, 143 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd). If the improperly admitted evidence did not influence the jury or had but a slight effect upon its deliberations, such non-constitutional error is harmless. Id.
In assessing the likelihood that the jury's decision was adversely affected by the error, an appellate court considers everything in the record, including "testimony, physical evidence, jury instructions, the State's theories and any defensive theories, closing arguments, and voir dire, if applicable." Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014). "Important factors include the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case, and may include whether the State emphasized the error and whether overwhelming evidence of guilt was present." Id.
B. Applicable Law
An extraneous offense is any act of misconduct, whether resulting in prosecution or not, which is not shown in the charging instrument and which was shown to have been committed by the accused. Martinez v. State, 190 S.W.3d 254, 262 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd). Texas Rule of Evidence 404(b) prohibits the admission of extraneous-offense evidence solely to prove a person's character or to show that the person acted in conformity with that character. TEX. R. EVID. 404(b). Extraneous-offense evidence may be admissible, however, to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. See id.; see also Montgomery, 810 S.W.2d at 387-88. Such evidence may also be admissible to rebut defensive theories. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001) (citing Montgomery, 810 S.W.2d at 387- 88).
Extraneous-offense evidence that is admissible under Rule 404(b) may, nevertheless, be inadmissible if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 403. A trial court is entitled to broad discretion in ruling on a Rule 403 objection, and great deference is given to the trial court's decision to admit or exclude evidence under Rule 403. See Powell v. State, 189 S.W.3d 285, 288 (Tex. Crim. App. 2006).
When conducting a Rule 403 analysis, a court must balance the probative force of and the State's need for the evidence against (1) any tendency of the evidence to suggest decision on an improper basis; (2) any tendency of the evidence to confuse or distract the jury from the main issues; (3) 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 (4) the likelihood that presentation of the evidence will amount to undue delay. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006). We presume that relevant evidence is more probative than unfairly prejudicial. Montgomery, 810 S.W.2d at 389; see generally TEX. R. EVID. 401 (stating evidence is relevant if it has any tendency to make existence of any fact of consequence to determination of action more or less probable than it would be without such evidence). Exclusion of evidence under Rule 403 is required "only when there is a 'clear disparity between the degree of prejudice of the offered evidence and its probative value.'" Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (quoting Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)).
C. Evidence of Plan to Commit Prior Robbery
J.B. testified that he, Dixon, and Graves tried unsuccessfully to steal marijuana from another drug dealer less than a month before they robbed Kurtz. According to J.B., the group "just discussed and agreed" to go to Decuir's home and take his marijuana. Their plan, however, fell apart because Decuir was not home when they arrived. Two weeks later, the group decided that they needed to find someone else to rob and Dixon asked J.B. if he still had Kurtz's cell phone number. At that point, the group began to formulate a plan to rob Kurtz of his marijuana. According to J.B., that plan included a signal, the playing of a particular song, to initiate the robbery. Internet searches for that particular song were found on Dixon's phone.
Dixon's participation in a failed attempt to rob a drug dealer of his marijuana a few weeks before the murder makes it more probable that Dixon was involved in the preparations, and intended to rob Kurtz, another marijuana dealer, of his drugs. It is at least subject to reasonable disagreement whether this extraneous-offense evidence was admissible for the noncharacter-conformity purposes of rebutting Dixon's defensive theory that he and his friends were meeting with Kurtz to buy marijuana from him, not rob him, and that Kurtz's death was the unfortunate result of a "drug deal gone bad" and showing Dixon's intent to rob Kurtz. See TEX. R. EVID. 404(b) (admissible to prove intent); Powell, 63 S.W.3d at 438 (stating extraneous-offense evidence may be admissible to rebut defensive theories). Accordingly, we hold that the trial court did not abuse its discretion by admitting this extraneous-offense evidence over Dixon's Rule 404 objection. See Winegarner, 235 S.W.3d at 790 (stating trial court does not abuse its discretion if its decision was within zone of reasonable disagreement).
With respect to Dixon's Rule 403 objection, the record reflects that J.B.'s testimony regarding the prior robbery attempt was very brief, and the time needed to develop this evidence was minimal. Unlike the elaborate and detailed plan agreed upon for Kurtz's robbery, the group's plan to rob Decuir was much more basic. The plan was simply to go to Decuir's house and take his drugs. Given the disparity between the two events, there was no likelihood that it would confuse or distract the jury. There is also nothing in the record indicating that the jury gave this testimony undue weight. Accordingly, we hold that the trial court did not abuse its discretion by concluding that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. See Gigliobianco, 210 S.W.3d at 641-42.
We overrule Dixon's third point of error.
D. Evidence Dixon Burglarized a Motor Vehicle and Stole a Firearm
Joshua testified that he saw Dixon steal the gun used in Kurtz's murder out of a truck a few months before the murder. The State argued that the evidence was admissible to show preparation for the armed robbery and to place the murder weapon in Dixon's hands. It is at least subject to reasonable disagreement whether this extraneous-offense evidence was admissible for the noncharacter-conformity purpose of linking Dixon to the murder weapon and rebutting his testimony that J.B. brought the gun to the crime scene. See Ransom v. State, 920 S.W.2d 288, 300-01 (Tex. Crim. App. 1994) (holding extraneous offense evidence showing defendant's ownership of murder weapon before murder admissible; "The fact that appellant stole the gun links him somewhat more strongly to the gun than mere possession would, as it implies purported ownership rather than incidental control."). Accordingly, we hold that the trial court did not abuse its discretion by admitting this extraneous-offense evidence over Dixon's Rule 404 objection. See Winegarner, 235 S.W.3d at 790 (stating trial court does not abuse its discretion if its decision was within zone of reasonable disagreement).
With respect to Dixon's Rule 403 objection, the record reflects that Joshua's testimony was very brief, and the time needed by the State to develop this evidence was minimal. There is also nothing in the record indicating that this testimony was likely to confuse or distract the jury or that the jury would give this testimony undue weight. Accordingly, we hold that the trial court did not abuse its discretion by concluding that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. See Gigliobianco, 210 S.W.3d at 641-42.
We overrule Dixon's fourth point of error.
E. Admission of the Contents of Dixon's Cell Phone
Assuming without deciding that the trial court erred by admitting the download of the entire contents of Dixon's cell phone, we cannot reverse on this basis unless the error was harmful. There is no mention in the record of any sex tapes or similar files found on Dixon's cell phone at any stage of the proceedings. There is also no indication that the jury knew that the disc contained any such material. While the State spent considerable time discussing the types of files included on the disc and more technical matters involving the collection and organization of that data, the only files that were specifically referenced were the pictures of the gun and a young man wearing a hat similar to the one found at the crime scene, and the files associated with the internet search for the trigger song. From our examination of the record, we are assured that the error did not influence the jury or had but a slight effect. The error, if any, was harmless. See TEX. R. APP. P. 44.2(b); see generally Schmutz, 440 S.W.3d at 39 (stating appellate courts consider everything in record when assessing error).
We overrule Dixon's fifth point of error.
Conclusion
We affirm the trial court's judgment.
Russell Lloyd
Justice Panel consists of Chief Justice Radack and Justices Lloyd, and Countiss.
Do not publish. TEX. R. APP. PROC. 47.2(b).