Opinion
02-22-00203-CR
08-29-2024
Justin Michael Love, Appellant v. The State of Texas
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 30th District Court Wichita County, Texas Trial Court No. 56,962-A
Before Birdwell, Womack, and Wallach, JJ.
MEMORANDUM OPINION
WADE BIRDWELL, JUSTICE
The State indicted Appellant Justin Michael Love for engaging in organized criminal activity with murder as the predicate offense (EOCA-murder). See Tex. Penal Code Ann. § 71.02(a)(1). Specifically, the State alleged that Love had murdered Domanic Thrasher on June 2, 2015, while participating in a conspiracy to illegally deliver marijuana. A jury found Love guilty and assessed his punishment at life in prison. Raising five points on appeal, Love argues that (1) the trial court erred by overruling his objection to the jury charge's EOCA-murder application paragraph, (2) the evidence is legally insufficient to support his conviction because the State failed to corroborate his accomplice's inculpatory testimony, (3) the trial court erred by allowing improper cross-examination of a defense witness, (4) the trial court erred by denying Love's motion to reform the verdict and corresponding sentence to fifty years in prison, and (5) the trial court erred during the trial's punishment phase by admitting into evidence certain text messages between Love and his ex-wife. We will affirm.
As discussed further below, this was Love's second trial for this offense. He was previously convicted and sentenced to fifty years in prison. On appeal, we reversed this conviction based on structural error and remanded the case for a new trial. See generally Love v. State, 600 S.W.3d 460 (Tex. App.-Fort Worth 2020, pet. ref'd). Following remand, Love was once again convicted, but this time he was sentenced to life in prison.
I. Background
We have set forth this case's underlying facts in a prior opinion. See Love, 600 S.W.3d at 465-66. Therefore, we borrow many of the pertinent facts from it, adding additional details where appropriate. Cf. Lumsden v. State, No. 02-23-00195-CR, 2024 WL 853354, at *1 (Tex. App.-Fort Worth Feb. 29, 2024, pet. ref'd) (mem. op., not designated for publication) (borrowing relevant facts from prior opinions in the same criminal proceeding).
Love and Blayne Brooks ran a marijuana business out of Love's home, which he shared with his then-wife, Tamilyn. Whitney O'Brien and her boyfriend Haden Swagerty were "middlemen" who connected Love and Brooks to buyers and shared in the profits from the sales.
In June 2015, Love, Brooks, and O'Brien were in Love's home discussing a prospective sale of two ounces of marijuana to someone who identified himself in text messages only as "E." Tamilyn and her friend Daphnee Selser were present and heard the conversation.
The prospective sale to the unknown E left the group uneasy. Marijuana normally sold for $200 to $250 an ounce, but because O'Brien and Swagerty were late on their rent money, she quoted E an inflated price. When E made no effort to negotiate a better deal-haggling being common in drug transactions-something seemed off. So to add "muscle," Love decided to go with Brooks and O'Brien to make the sale.
At the designated rendezvous, Brooks and O'Brien realized that E was former Rider High School football star Domanic Thrasher, whom both recognized from high school. Brooks knew Thrasher to be a "jackboy"-someone who robbed drug dealers-but the three proceeded with the planned sale anyway, parking Love's Suburban and letting Thrasher get into the back seat.
It went badly. Even though Love had a gun visibly displayed as a hoped-for deterrent, Thrasher grabbed the bag of marijuana and took off. O'Brien grabbed Thrasher's shirt in an effort to keep him from running off with the marijuana, but he was able to escape her grasp by slipping out of his shirt. O'Brien testified that as Thrasher was pulling out of his shirt, Love yelled, "Shoot him, Blayne." Brooks then shot Thrasher. O'Brien retrieved the marijuana, and the three sped off towards Love's house. Shaken, O'Brien asked to be let out of the car, but Love threatened her. According to O'Brien, as Love was driving, he congratulated Brooks about the shot; he could not believe that Brooks had been able to shoot Thrasher at the angle from where Brooks had been sitting.
During the drive, Love called Tamilyn and instructed her "to get everything out of the house"; she understood "everything" to mean all of the "things [Love] wasn't supposed to have," including drugs, drug paraphernalia, and guns. With Selser's help, Tamilyn moved all of these items out of the house and into the storage shed in the backyard. Selser testified that after Love, Brooks, and O'Brien arrived back at the house, Love told her what had happened and stated "multiple times" that he had told Brooks to shoot Thrasher.
According to Tamilyn, Love was on parole at the time.
Love and Brooks devised a cover-up plan, which included concealing the gun in a paint can. Love instructed O'Brien to dye her hair and change her clothes, and he commanded Brooks to cut his hair. Love and Tamilyn then fled to Colorado, where they set up residence.
Ultimately, after being arrested in Colorado, Love was indicted in Wichita County, Texas, for EOCA-murder. Following a 2019 trial, a jury convicted Love and assessed his punishment at fifty years' confinement. But Love successfully appealed this conviction. See Love, 600 S.W.3d at 485.
In a 2022 retrial, a second jury found Love guilty of EOCA-murder and assessed his punishment at life in prison. The trial court sentenced him accordingly. This appeal followed.
II. Discussion
A. Any Error in the Jury Charge's EOCA-Murder Application Paragraph Was Harmless
In his first point, Love contends that the trial court erred by overruling his objection to the EOCA-murder application paragraph in the guilt-innocence jury charge. Specifically, he asserts that the application paragraph was erroneous because it did not "include party-liability mens rea" language-that is, language explaining that for Love to be criminally responsible for the felony murder that occurred, the evidence must show either (1) that he intended "to promote or assist" the felony murder's commission or (2) that the felony murder was committed in furtherance of the conspiracy and should have been anticipated by Love. See Tex. Penal Code Ann. § 7.02(a)(2), (b). For the reasons set forth below, we conclude that even if the trial court erred by omitting this language, such error was harmless.
1. Standard of Review and Applicable Law
We must review "all alleged jury-charge error . . . regardless of preservation in the trial court." Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). "Preservation of charge error does not become an issue until we assess harm." Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). "The degree of harm necessary for reversal depends on whether the appellant preserved the error by objection." Id. "Under Almanza [v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh'g)], jury charge error requires reversal when the defendant has properly objected to the charge and we find 'some harm' to his rights." Id. "When the defendant fails to object or states that he has no objection to the charge, we will not reverse for jury-charge error unless the record shows 'egregious harm' to the defendant." Id. at 743-44. "Thus, we review alleged charge error by considering two questions: (1) whether error existed in the charge; and (2) whether sufficient harm resulted from the error to compel reversal." Id. at 744.
2. Because Love Failed to Preserve His Charge-Error Complaint, We Apply the Egregious-Harm Standard
To preserve a complaint for appellate review, the record must show that a specific and timely objection was made to the trial judge and that the judge ruled on the objection. Tex.R.App.P. 33.1(a); Lovill v. State, 319 S.W.3d 687, 691 (Tex. Crim. App. 2009); Smith v. State, 256 S.W.3d 341, 343 (Tex. App.-San Antonio 2007, no pet.) (mem. op.). To satisfy this specificity requirement, "[t]he complaining party must have informed the trial judge what was wanted and why the party was entitled to it." Lovill, 319 S.W.3d at 691. An issue is not preserved "if the legal basis of the complaint raised on appeal varies from the complaint made at trial." Id. at 691-92; see also Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (admonishing that for error to be preserved, the appellant's "point of error on appeal must comport with the objection made at trial").
At the charge conference, Love objected to the EOCA-murder application paragraph on the grounds set forth during the following discussion:
[DEFENSE COUNSEL]: The second [objection] deals with the felony murder application paragraph, itself. The evidence in this trial establishes that the defendant, Justin Michael Love, did not commit any act clearly dangerous to human life. The act that was dangerous to human life, the shooting of the firearm, was committed by Blayne Brooks.
And, ordinarily, if it was a 19.02(b)(1) murder, or the 19.0 -- or 19.02(b)(1) and 19.02(b)(2) murder, then you could use the traditional party liability or conspiracy liability. But you can't use it in this.
You can't -- my argument is you cannot take Blayne Brooks'[s] act clearly dangerous and you cannot create a party liability for Justin Love. So I would object to the application paragraph.
THE COURT: You're talking about paragraph [sixteen]?
[DEFENSE COUNSEL]: Yes. Yes, I am. On that basis.
THE COURT: Okay. Mr. [Prosecutor].
[STATE]: I'm not aware of any authority that supports that position. [Paragraph sixteen] delineates that Mr. Love, either acting alone or as a party. So it, by its application, includes the party liability instructions in those --
THE COURT: Do you have specific authority, [Defense Counsel], for your proposition?
[DEFENSE COUNSEL]: I would use the authority that he just cited. He said there's not any requirement for any intent. And if there's not any requirement for any intent, then there's -- then it can't be party liability.
THE COURT: Mr. [Prosecutor].
[STATE]: That neither -- neither of the sections under party liability -- as the Court will remember, I went through the slides in voir dire. Co-conspirator liability, it doesn't say anything about intent. It's acting -- if they're engaging in co -- co-conspirator activity and one of the co-conspirators commits an act that can be anticipated, then all the co-conspirators step into those shoes.
It doesn't reference anything about intent. That's a very specific provision that's set out. And then aid, encourage, solicit -- just in my mind the traditional party liability language.
There is evidence that the defendant yelled, "Shoot him, Blayne." And that would be an act aiding, soliciting or encouraging the commission of the felony, the act clearly dangerous to human life, when he steps into his shoes. So I would be comfortable with the Court overruling that.
[DEFENSE COUNSEL]: But it would be a requirement that it have the intent to promote and assist. He's arguing both sides of the same issue. So you can pick one. You either have the intent or you don't have the intent.
Ordinarily, it would be party liability if it was -- if you intended to cause the death of a person. But in this case he's talking about an act clearly dangerous. Well, his intent to direct Blayne is not an act clearly dangerous to human life. The act clearly dangerous to human life was committed by Blayne Brooks. And that cannot be transferred over to Mr. Love.
[STATE]: The act alleged is shooting Domanic Thrasher.
[DEFENSE COUNSEL]: Correct.
[STATE]: The soliciting, aiding, and encouraging would be, "Shoot him, Blayne." And then he shoots him. That is directing the act clearly dangerous to human life.
THE COURT: Okay. The defense's request is denied. [Emphasis added.]
As this exchange makes clear, Love objected to the charge's EOCA-murder application paragraph on the sole ground that-in Love's view-a defendant can never be held criminally responsible for felony murder based on a party-liability theory because felony murder lacks a mens rea element. He did not complain about the manner in which party liability was presented in the application paragraph; he did not ask the trial court to strike language from or add alternative language to the charge. Rather, his objection was that the State's party-liability theory should not have been included in the charge at all.
The trial court properly overruled this objection. See Milwicz v. State, No. 02-13-00193-CR, 2014 WL 3398298, at *3-4 (Tex. App.-Fort Worth July 10, 2014, pet. ref'd) (mem. op., not designated for publication); see also Howard v. State, 527 S.W.3d 348, 352 (Tex. App.-Houston [1st Dist.] 2017, pet. ref'd) ("Because [appellant] conspired to commit state jail felony theft . . ., and [a co-conspirator] committed felony murder while acting in furtherance of the theft conspiracy, and [the co-conspirator's] felony murder should have been anticipated by [appellant] as a result of carrying out of the conspiracy, [appellant] . . . is guilty of the felony murder . . . as well."); Lee v. State, No. 01-07-00992-CR, 2009 WL 1562861, at *3 (Tex. App.- Houston [1st Dist.] June 4, 2009, pet. ref'd) (mem. op., not designated for publication) ("Under the law of parties, a defendant may be convicted of the offense of felony murder, even when the defendant does not intend to commit murder, if the murder is committed in furtherance of the unlawful purpose and should have been anticipated as a result of the carrying out of the conspiracy.").
But this does not comport with his appellate argument. On appeal, Love does not contend that the party-liability theories should have been excluded altogether; instead, he complains only about the manner in which party liability was set forth in the EOCA-murder application paragraph. He contends that mental-culpability language should have been included in the application paragraph, but at the charge conference, he never asked the trial court to add such language. Because Love's appellate complaint differs from the objection he raised in the trial court, he failed to preserve the claim of error that he advances on appeal. Therefore, we will reverse only upon a showing of egregious harm. See Bolen v. State, 478 S.W.3d 865, 868 (Tex. App.-Amarillo 2015, pet. ref'd); see also Santos-Garcia v. State, No. 08-13-00324-CR, 2017 WL 5899176, at *9 (Tex. App.-El Paso Nov. 30, 2017, no pet.) (not designated for publication) ("Because the ground of objection at trial does not comport with the ground raised on appeal, the error was not preserved; as such . . ., we will reverse only upon a showing of egregious harm." (citing Bolen, 478 S.W.3d at 868)).
Love filed a motion for new trial in which he objected to the charge's EOCA-murder application paragraph on the same grounds raised in his appellate complaint. But because this objection was not timely, it was insufficient to preserve error. See Fowler v. State, 126 S.W.3d 307, 310 n.1 (Tex. App.-Beaumont 2004, no pet.) (holding that defendant's written objections to the jury charge filed four days after the entry of judgment were insufficient to preserve charge-error complaint and that, therefore, to the extent the charge was erroneous, the court would apply the egregious-harm standard); see also Davis v. State, 177 S.W.3d 355, 363 (Tex. App.-Houston [1st Dist.] 2005, no pet.) (en banc) (explaining that to preserve error, a party "must object at the earliest possible opportunity" (citing Dixon v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998))).
3. Any Error Was Not Egregiously Harmful
The egregious-harm standard is difficult to meet and requires a showing that the appellant was deprived of a fair and impartial trial. See Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011). In making an egregious-harm determination, we must consider "the actual degree of harm . . . in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel[,] and any other relevant information revealed by the record of the trial as a whole." Almanza, 686 S.W.2d at 171. See generally Gelinas v. State, 398 S.W.3d 703, 708-10 (Tex. Crim. App. 2013) (applying Almanza). Errors that result in egregious harm are those "that affect the very basis of the case, deprive the defendant of a valuable right, vitally affect the defensive theory, or make a case for conviction clearly and significantly more persuasive." Taylor, 332 S.W.3d at 490 (citing Almanza, 686 S.W.2d at 172). "An egregious harm determination must be based on a finding of actual rather than theoretical harm." Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011) (citing Ngo, 175 S.W.3d at 750).
In the present case, even if we were to assume that the application paragraph's lack of mental-culpability language constituted charge error, the record does not show that this error caused Love egregious harm. See Ngo, 175 S.W.3d at 743-44. Indeed, in his briefing, Love fails to explain how, if at all, the complained-of error in the application paragraph-when viewed in the context of the entire record-could have caused reversible harm.
By failing to address this essential issue, Love arguably waived his first point due to inadequate briefing. See Tex. R. App. P. 38.1(i); Lucio v. State, 351 S.W.3d 878, 896 (Tex. Crim. App. 2011); see also Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) (holding that appellant had forfeited issues due to inadequate briefing by, inter alia, failing to "address the question of whether the alleged error . . . was harmless"); Thomas v. State, No. 06-21-00138-CR, 2022 WL 3048223, at *9 (Tex. App.-Texarkana Aug. 3, 2022, no pet.) (mem. op., not designated for publication) (citing Cardenas and holding appellant had not preserved alleged charge error because "he provided no harm analysis other than a conclusory statement that the harm was egregious"); Yepez v. State, No. 01-22-00049-CR, 2022 WL 18163472, at *7 (Tex. App.-Houston [1st Dist.] Jan. 10, 2022, no pet.) (holding that appellant had waived charge-error complaint "by inadequately briefing the issue of harm"). Nevertheless, in our discretion, we address the merits of Love's first point. See Zermeno v. State, No. 14-19-00789-CR, 2021 WL 4472528, at *3 n.4 (Tex. App.-Houston [14th Dist.] Sept. 30, 2021, no pet.) (mem. op., not designated for publication) (exercising discretion to address issue on the merits despite appellant's inadequate briefing but admonishing that failure to comply with briefing requirements "usually results in the waiver of an issue").
We find the court's harm analysis in Nava v. State, 415 S.W.3d 289 (Tex. Crim. App. 2013)-a case with remarkably similar facts-instructive. In Nava, the appellant had been indicted for felony murder on a party-liability theory after (1) an undercover police sting operation designed to identify and arrest individuals who had been buying and selling stolen goods had gone poorly, (2) the Spanish-speaking appellant allegedly had shouted "tírale" (which translates to "shoot him") to a co-conspirator, and (3) the co-conspirator had shot and killed a police officer. Id. at 292-93. On appeal, the appellant argued (for the first time) that the jury charge's application paragraph was ambiguous because it instructed the jury to convict him if "with the intent to promote or assist the commission of the offense, . . . [he] solicited, encouraged, directed, aided, or attempted to aid [co-defendant] . . . to commit the offense." Id. at 294. Appellant complained that this language misled the jury as to which offense-the predicate felony theft or the felony murder-"the defendant's intent had to be directed toward." Id.
The Court of Criminal Appeals agreed that this ambiguous language rendered the charge erroneous but concluded that the appellant had not suffered egregious harm because when the charge was viewed "as a whole, and from a common-sense perspective, and in the context of the . . . trial," it was evident that "the jury most likely understood the application paragraph in question in a manner consistent with the law." Id. at 294-95, 302. In reaching this conclusion, the court emphasized that (1) the abstract portions of the charge concerning party liability were correct; (2) the application paragraph did not "clearly direct the jury to deliberate in a way that is inconsistent with the law"; (3) it would defy "common sense" to believe that the jury could have convicted the appellant based solely on his intent to promote felony theft (as opposed to murder) when the "conspiracy-liability provisions required more than that"; and (4) "the jury charge contained lesser-included offenses with associated application paragraphs that instructed on the 'intent to promote or assist' theory of party liability," meaning that the jury was not likely to base its verdict on findings that "someone died and [the co-conspirator] was the killer"-facts that were undisputed. Id. at 299-301.
The Nava court also emphasized that the evidence and arguments at trial had focused the jury's attention on the correct factual basis for imposing party liability on the appellant: his shouting "tírale" to his co-conspirator. Id. at 301. Further, the court stressed that whether the appellant had actually shouted "tírale" was one of the "hotly contested issues at trial" and stated that "this fact [gave] support to a conclusion that the jury would have understood the jury instructions correctly." Id. at 296. Additionally, the court noted that both parties' closing arguments centered around whether the appellant had yelled "tírale" and that "large portions of the prosecutors' arguments would [have been] completely unnecessary" if the jurors had understood the charge's instructions to mean that they were to convict the appellant for felony murder if they found that he had intended to promote or assist the felony theft (as opposed to the murder). Id. at 301.
Evaluating the charge using the same approach employed by the Court of Criminal Appeals in Nava, we cannot conclude that Love suffered egregious harm. See id. at 302. Love asserts that because the EOCA-murder application paragraph lacked party-liability mens rea language, the charge "misdirected the jury" and "permit[ed it] to convict Love for what Brooks did," i.e., to hold Love strictly liable for Thrasher's death. See generally Fraser v. State, 583 S.W.3d 564, 588-97 (Tex. Crim. App. 2019) (Slaughter, J., dissenting) (discussing history of the felony-murder doctrine and cautioning against interpreting the felony-murder statute in a manner that would "impos[e] strict liability for all accidental deaths associated with the commission of a felony"). But when the charge is viewed as a whole and in the context of the trial, common sense suggests that the jurors would not have read the charge in this manner. See Nava, 415 S.W.3d at 300-01.
The abstract portion of the jury charge, which was incorporated by reference into the application paragraph, correctly set forth the law regarding party liability, and Love does not contend otherwise. See Tex. Penal Code Ann. § 7.02(a)(2), (b). Because the jury charge incorporated the correctly stated abstract principles into the application paragraph, it did not clearly direct the jury to deliberate in a way that was inconsistent with the law. See Nava, 415 S.W.3d at 300 & n.24. Further, the application paragraph did not-as Love suggests-permit the jury to convict Love solely for "what Brooks did" because the incorporated party-liability language required more than that. See id. at 300. Finally, the charge contained, as an alternative to EOCA-murder, felony delivery of marijuana as a lesser-included offense; this lesser offense's inclusion would not have made sense if all that the jury had to find to convict Love for EOCA-murder (beyond the marijuana delivery) was that Thrasher had died and that Brooks was the killer-facts that Love did not dispute at trial. See id. at 301.
The application paragraph directed the jurors to "bear[] in mind the foregoing instructions," meaning those contained in the charge's abstract portion.
When the charge is considered in the context of the trial, it becomes even less likely that the jury was misled. As early as voir dire, the State correctly explained party liability theories to the prospective jurors by using examples of "Fred" being criminally responsible if his co-conspirator "Barney" killed someone during a robbery and the killing was either (1) promoted or assisted by Fred or (2) was committed in furtherance of the robbery and should have been anticipated by Fred.
Significantly, the State never argued that Love could be convicted based solely on "what Brooks did." See id. Rather, the State based its intent-to-promote-or-assist theory of party liability on its contention that Love had yelled, "Shoot him, Blayne," immediately before Brooks shot Thrasher. For example, in its opening statement the State outlined its intent-to-promote-or-assist theory as follows:
Blayne Brooks is the partner that . . . shot and killed Domanic Thrasher . . . . And you're going to hear that he did so -- and this is very critical, so I want you to watch for it -- that he did so when the defendant encouraged, solicited, and directed him to do so.
. . . .
. . . [O]n June 2, 2015, the defendant, Blayne Brooks, and Whitney O'Brien went to commit a felony delivery of marijuana. And in the course of and in furtherance of that drug deal, . . . Blayne Brooks pulled the trigger. . . .
And [one of the State's prosecutors] talked to you in voir dire about party liability and the two avenues by which the defendant can be held criminally responsible for the conduct of another person.
. . . .
Ladies and gentlemen, the evidence will show, from the defendant's words and conduct, that he . . . solicited, encouraged, and directed Blayne Brooks to shoot Domanic Thrasher.
I want you to watch for and listen for that strong evidence of verbal solicitation . . . at . . . that critical moment . . . when Blayne Brooks shot Domanic Thrasher. You'll hear that he did so when this defendant told him to do so. [Emphasis added.]Similarly, during its closing argument, the State argued,
A defendant is criminally responsible for his own conduct, conduct of another for which he is criminally liable, or both. There are two ways to have party liability and we've proven both. First, you act with intent to promote or assist the commission of the offense, solicit, encourage, direct[], aid[], or attempt[] to aid the other person with the offense.
What did [Love] do that solicit[ed], encouraged, aided or attempted to aid the commission of the offense? Real easy. "Shoot him, Blayne. Shoot him, Blayne." That's when he solicited, encouraged and/or directed. He quantum leaps into Blayne's shoes and it's just like he is pulling the trigger on this defendant, under party liability.
. . . .
. . . He solicited, encouraged, aided when he yelled, "Shoot him, Blayne."
. . . .
In jury selection, each of you gave me your commitment that you could -- that you were comfortable with applying party liability. You gave me your word under oath. You said it was a good law. You believe the law. Situations like this [are] what it was made for.
You yell, "Shoot him, Blayne," and then Blayne is the 20-year-old when you're the 26-year-old that's directing everything. [Love] is just as guilty as Blayne Brooks. [Emphasis added.]
The state of the evidence also supports a determination that the jury correctly understood the law regarding the State's intent-to-promote-or-assist theory of party liability. See id. at 298 (noting that "[i]n determining whether egregious harm is shown" an appellate court must consider, inter alia, "the state of the evidence," including the contested issues). Indeed, whether Love shouted, "Shoot him, Blayne," was one of the most hotly contested issues at trial. This issue's centrality supports the conclusion that the jury would have correctly understood the application paragraph's instructions as they applied to the intent-to-promote-or-assist theory. See id. at 296.
Love acknowledges the central role that this issue played at trial in his appellate briefing, recognizing that "[t]he prosecution based [its] case on proving Love guilty solely as a party to the murder[,] primarily contending that Love directed Brooks to '[S]hoot him, Blayne," and noting that to prove its intent-to-assist-or-promote theory, the State "depended []on" O'Brien's testimony that Love had shouted, "[S]hoot him, Blayne."
Likewise, the evidence and arguments at trial show that the jury most likely correctly understood the conspiracy theory of party liability. Throughout the trial, from voir dire through closing arguments, the State correctly informed the jury that Love's party liability as a conspirator hinged on (1) his participation in a conspiracy to deliver a felony amount of marijuana; (2) the commission of felony murder by Brooks, Love's co-conspirator; (3) whether the murder was committed in furtherance of the conspiracy; and (4) whether Love should have anticipated that a murder might occur during the marijuana's delivery. Further, whether Love should have anticipated the murder's occurrence during a dangerous drug deal was a contested issue at trial, including during his own testimony. See id.
The State's evidence regarding the conspiracy theory's foreseeability element was very strong. For example, the jury heard that in a prior drug deal, Love had been robbed and had almost been "shot in the head." Further, during Love's testimony, he acknowledged that drug deliveries to unknown individuals are inherently dangerous, and he conceded that he had known that Brooks carried a gun "all the time," including to drug deliveries, and "fancied himself as a gangster."
In sum, given the jury charge as a whole, the state of the evidence, and the attorney's arguments, we cannot conclude that Love suffered egregious harm. See id. at 302. Rather, the record shows that the jury most likely correctly understood the charge's EOCA-murder application paragraph in a manner consistent with the law. See id. Accordingly, we overrule Love's first point.
B. Because O'Brien's Testimony Is Sufficiently Corroborated, the Evidence Is Sufficient to Support Love's Conviction
In his second point, Love contends that the evidence is insufficient to support his conviction because the State failed to corroborate O'Brien's accomplice-witness testimony that (1) Love directed Brooks to shoot Thrasher and (2) Brooks was armed when he accompanied O'Brien and Love to deliver marijuana to Thrasher. See Tex. Code Crim. Proc. Ann. art. 38.14. We disagree.
1. Accomplice-Witness Rule: Applicable Law and Standard of Review
"Texas law provides 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[.]'" Zamora v. State, 411 S.W.3d 504, 509 (Tex. Crim. App. 2013) (quoting Tex. Code Crim. Proc. Ann. art. 38.14). This rule, commonly referred to as the "accomplice-witness rule," reflects the legislature's recognition "that accomplice testimony implicating another person should be viewed with a measure of caution, because accomplices often have incentives to lie, such as to avoid punishment or [to] shift blame to another person." Id. (quoting Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998)).
When an appellant challenges the sufficiency of the evidence corroborating an accomplice's testimony, "the reviewing court eliminates all of the accomplice testimony from consideration and then examines 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." Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007) (citing Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001)). The sufficiency of nonaccomplice evidence is judged according to the facts and circumstances of each case. Smith v. State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011). We do not independently construe the nonaccomplice evidence but instead defer to the factfinder's resolution of it. Id.
"[T]he tends-to-connect standard does not present a high threshold." Cantelon v. State, 85 S.W.3d 457, 461 (Tex. App.-Austin 2002, no pet.) (quoting In re C.M.G., 905 S.W.2d 56, 58 (Tex. App.-Austin 1995, no writ)). To meet the rule's requirements, the corroborating evidence need not prove the defendant's guilt beyond a reasonable doubt by itself. Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008). Nor is it necessary for the corroborating evidence to directly link the accused to the commission of the offense. State v. Ambrose, 487 S.W.3d 587, 593 (Tex. Crim. App. 2016); Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999). Rather, the evidence-whether direct, circumstantial, or both-must show that rational jurors could have found that it sufficiently tended to connect the accused to the offense. Smith, 332 S.W.3d at 442; Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009).
Although the "mere presence alone of a defendant at the scene of a crime is insufficient to corroborate accomplice testimony," Malone, 253 S.W.3d at 257 (quoting Golden v. State, 851 S.W.2d 291, 294 (Tex. Crim. App. 1993)), evidence showing that the "accused was at or near the scene of the crime at or about the time of its commission . . . coupled with other suspicious circumstances, may . . . furnish sufficient corroboration to support a conviction," id. (quoting Brown v. State, 672 S.W.2d 487, 489 (Tex. Crim. App. 1984)). Circumstances that are apparently insignificant in and of themselves may nevertheless constitute sufficient evidence of corroboration. Trevino v. State, 991 S.W.2d 849, 852 (Tex. Crim. App. 1999); Simmons v. State, 205 S.W.3d 65, 73 (Tex. App.-Fort Worth 2006, no pet.).
2. The Evidence Sufficiently Corroborates O'Brien's Testimony
Love argues that because O'Brien's testimony that (1) Love directed Brooks to shoot Thrasher and (2) Brooks was armed when he accompanied O'Brien and Love on the ill-fated marijuana delivery was "corroborated only by other accomplice witnesses," including Tamilyn and Selser, "[t]here is no non-accomplice evidence corroborating Love's role as a party in the commission of this offense." See Badillo v. State, 963 S.W.2d 854, 857 (Tex. App.-San Antonio 1998, pet. ref'd) ("One accomplice witness's testimony may not corroborate the testimony of another accomplice witness." (citing Chapman v. State, 470 S.W.2d 656, 660 (Tex. Crim. App. 1971))). But because Tamilyn and Selser were not accomplices as a matter of law, Love's argument fails.
"An accomplice is someone who participates with the defendant before, during, or after the commission of a crime and acts with the required culpable mental state." Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007). To qualify as an accomplice, "the witness's participation with the defendant must have involved some affirmative act that promotes the commission of the offense with which the defendant is charged." Id. Merely knowing about an offense and failing to disclose it-or even helping to conceal it-does not make a person an accomplice. Id. Further, "complicity with an accused in the commission of another offense apart from the charged offense does not make that witness's testimony that of an accomplice witness." Id. "In short, if the witness cannot be prosecuted for the offense with which the defendant is charged, or a lesser-included offense of that charge, the witness is not an accomplice witness as a matter of law." Id.
Under these criteria, Tamilyn and Selser were not accomplices to Love's EOCA-murder offense. Although the evidence showed that Tamilyn had been at Love's house on the day of the offense, had helped conceal evidence, and had been previously arrested and placed on probation for delivering marijuana, it did not show that she had taken any affirmative action to promote the commission of the offense with which Love was charged-EOCA-murder. Similarly, the record showed that Selser had been at Love's house on the day of the offense, had heard statements about the planned drug sale, had heard Love talk about the murder after it occurred, and had spoken to police about the offense, but it did not show that she had taken any affirmative action to promote the EOCA-murder's commission. And Selser testified that she had never been charged with any crime arising from Thrasher's murder or any related events. Indeed, Detective Brad Love, who investigated Thrasher's murder, testified that he had no information that would lead him to believe that either Tamilyn or Selser was an accomplice to Thrasher's murder.
The evidence did not show any connection between Tamilyn's prior marijuana-delivery offense and Love's EOCA-murder charge. Indeed, Tamilyn testified that she never weighed or packaged marijuana for Love or Brooks and that she did not "want or intend for" Thrasher to be killed. Another witness testified that when Love conducted his drug business at his house, Tamilyn would typically "tak[e] [her children] out of the way." And Tamilyn herself testified that at Love's house, she and her children would "hang out in the bedrooms" while Love and his associates conducted business.
As Detective Love explained, "[t]here was no evidence to place [Tamilyn or Selser] at the scene of the murder" or to establish that "at the time of the murder [they] had any knowledge . . . that it was happening, or any intent, or any participation, whatsoever."
Love has not identified anything in the record showing that either Tamilyn or Selser participated in EOCA-murder (or a lesser-included offense) with the requisite mental state. Rather, in his briefing, he simply presumes-without any analysis-that Tamilyn and Selser were accomplices.
Given the lack of evidence showing that Tamilyn or Selser could be prosecuted for Love's charged offense (or a lesser-included offense), we conclude that they are not accomplices. See id.
We note that in Brooks's appeal of his EOCA-murder conviction arising from the same criminal episode, the El Paso court of appeals likewise concluded that Tamilyn was not an accomplice. See Brooks v. State, No. 08-17-00026-CR, 2018 WL 1940555, at *5-6 (Tex. App.-El Paso Apr. 25, 2018, pet. ref'd) (not designated for publication).
Because Tamilyn and Selser were not accomplices, their testimony may be used to corroborate O'Brien's accomplice-witness testimony. See Gamez v. State, 665 S.W.2d 124, 126 (Tex. App.-San Antonio 1983), aff'd, 737 S.W.2d 315 (Tex. Crim. App. 1987). And they provided ample testimony tending to connect Love to the charged offense. See Smith, 332 S.W.3d at 442; Simmons, 282 S.W.3d at 508. For example, Tamilyn testified that
• Love and Brooks had engaged in a drug business;
• Love and Brooks had "middlemen," including O'Brien;
• Brooks typically did what Love told him to do;
• Love possessed six to eight guns that he used to protect himself during drug sales;
• Love had previously been robbed and shot at during a drug deal;
• After that event, Love and Brooks started taking guns to drug deliveries;
• Brooks often flashed his gun in a "showy" way, and Love knew that Brooks carried a gun to drug deliveries;
• She overheard conversations about the planned marijuana sale to Thrasher;
• Love rode with Brooks and O'Brien on the marijuana delivery to Thrasher so that he could "add muscle" and protect them;
• After the murder, Love called her and told her to "get everything out of the house";
• She overheard conversations about how to cover up the murder and helped Love do so;
• Love fled to Colorado on the day of the murder to "put distance between himself and the . . . murder"; and
• Following Love's arrest, he instructed her to hide witnesses and dodge subpoenas.
Similarly, Selser testified, among other things, that
• Love and Brooks had been running a marijuana business out of Love's house;
• Love and Brooks both handled and carried guns;
• She had heard both Love and Brooks talk about taking guns to drug deals for protection;
• She had been at Love's house on the day of the murder and had overheard conversations about the planned sale;
• When Love, Brooks, and O'Brien returned to the house after the murder, Love was in charge and gave instructions about covering up the murder; and
• Love told her about what had happened and stated "multiple times" that he had told Brooks to shoot Thrasher.
Viewing this evidence in its totality and deferring to the jury's resolution of it, see Smith, 332 S.W.3d at 442, we hold that a rational jury could have found that it tended to connect Love to the charged EOCA-murder offense. See Tex. Code Crim. Proc. Ann. art. 38.14; Smith, 332 S.W.3d at 443; Qualls v. State, 547 S.W.3d 663, 672 (Tex. App.-Fort Worth 2018, pet. ref'd). We therefore hold that O'Brien's testimony was sufficiently corroborated and was properly considered by the jury. See Qualls, 547 S.W.3d at 672; Jones v. State, No. 14-03-00650-CR, 2005 WL 549541, at *3 (Tex. App.-Houston [14th Dist.] Mar. 10, 2005, pet. ref'd) (mem. op., not designated for publication). Further, viewing the evidence-including O'Brien's corroborated testimony-in the light most favorable to the verdict, we conclude that it is sufficient to support the jury's finding that Love committed EOCA-murder. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017).
As the State points out, the record contains additional evidence beyond Tamilyn's and Selser's testimony connecting Love with the charged EOCA-murder offense. But having concluded that Tamilyn's and Selser's testimony may be used to corroborate O'Brien's accomplice-witness testimony and having determined that their testimony is sufficient to connect Love with the charged EOCA-murder offense, we need not-and therefore do not-detail this evidence. See Tex. R. App. P. 47.1.
Because (1) Love's complaint that the evidence was insufficient to support the jury's verdict was premised on his contention that O'Brien's accomplice-witness testimony was uncorroborated, (2) we have rejected this premise, and (3) we have already detailed the most significant inculpatory evidence presented at trial, we do not recount the evidence here. See Tex. R. App. P. 47.1.
Accordingly, we overrule Love's second point.
C. Love Forfeited His Complaint Regarding the State's Purportedly Improper Cross-Examination of Sara Woody
In his third point, Love contends that the trial court abused its discretion by allowing the State to cross-examine defense witness Sara Woody regarding the details of her prior child-torture conviction. But Love failed to preserve this complaint for our review.
To preserve error regarding the admission of evidence, a party must make a timely and specific objection or motion to strike. Tex. R. Evid. 103(a)(1); see also Tex. R. App. P. 33.1(a). To be timely, an objection or motion to strike must be made "as soon as the objectionable nature of the evidence [becomes] apparent." Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). If the objection or motion to strike is made any later, error is forfeited. See Wilson, 71 S.W.3d at 349; see also Jasso v. State, 112 S.W.3d 805, 813 (Tex. App.-Houston [14th Dist.] 2003, pet. ref'd) ("The standard set by our high court for the timely assertion of objections is both demanding and unforgiving."). Further, as discussed above, for an appellate complaint to be preserved, it must comport with the objection made at trial. Lovill, 319 S.W.3d at 691-92; see also Wilson, 71 S.W.3d at 349.
Love called Woody, O'Brien's former cellmate who was currently serving a forty-five-year prison sentence for a conviction related to torturing children, as a defense witness to undermine O'Brien's credibility by informing the jury that O'Brien had stated that she "was going to get ten years and never step foot in prison" if she testified against Love. During the State's cross-examination of Woody, Love objected that evidence regarding the details of Woody's prior child-torture conviction was not "relevant," and the trial court overruled that objection. Later during the cross-examination, Love generally objected that this evidence was "not admissible," and the trial court likewise overruled that objection. Finally, after Woody had finished testifying, Love moved to strike her testimony concerning the details of her prior conviction on the grounds that it constituted improper impeachment.
Neither Love's motion to strike nor his prior objections were sufficient to preserve his appellate complaint. Love's relevance objection did not comport with his appellate argument and therefore did not preserve the complained-of error. See Hinson v. State, No. 03-01-00574-CR, 2002 WL 1987647, at *2 (Tex. App.-Austin Aug. 30, 2002, pet. ref'd) (not designated for publication) (holding that appellant had not preserved his improper-impeachment complaint for appeal because his only objection at trial "was to the relevance of the evidence"); cf. Hammer v. State, No. 10-06-00283-CR, 2007 WL 1891620, at *2 (Tex. App.-Waco June 27, 2007, no pet.) (mem. op., not designated for publication) ("An objection only on the basis of relevance does not preserve for appellate review an issue of improper impeachment with a prior felony conviction." (citing Shook v. State, 172 S.W.3d 36, 42 (Tex. App.-Waco 2005, no pet.))). Likewise, Love's general objection that the evidence concerning the details of Woody's prior conviction was "inadmissible" was not sufficiently specific to preserve error. See Tex. R. Evid. 103(a)(1)(B); Roundtree v. State, No. 14-07-00876-CR, 2009 WL 433218, at *3 (Tex. App.-Houston [14th Dist.] Feb. 19, 2009, pet. ref'd) (mem. op., not designated for publication) (holding that "appellant's objection that [witness's] testimony was 'inadmissible' was too vague and imprecise to preserve error"). Finally, Love's motion to strike-which was not made until after Woody's testimony had concluded-failed to preserve error because it was untimely. See Tex. R. Evid. 103(a)(1)(A); Gaytan v. State, 331 S.W.3d 218, 229 (Tex. App.-Austin 2011, pet. ref'd) (holding that appellant had forfeited his evidentiary complaint because he had "asked [the witness] several more questions before moving to strike her testimony"); see also Luna v. State, 268 S.W.3d 594, 604 (Tex. Crim. App. 2008) ("The appellant's objection to [the witness's] testimony was untimely because it was made after the question was asked and answered.").
Because Love failed to preserve his appellate complaint, we overrule his third point.
D. The Trial Court Properly Denied Love's Motion to Reform the Verdict
In his fourth point, Love contends that the trial court erred by denying his motion to reform the life sentence that he was assessed in his second trial to the fifty-year sentence that he received in his first trial. Specifically, he argues that because his first conviction was reversed for structural error, his sentence in his second trial should be capped at fifty years.
But Love cites no authority to support the proposition that the reversal of a defendant's conviction for structural error precludes his being sentenced to a harsher punishment on retrial. Indeed, Love's argument runs counter to the long-established constitutional doctrine that the "guarantee against double jeopardy imposes no restrictions upon the length of a sentence imposed upon reconviction." North Carolina v. Pearce, 395 U.S. 711, 719, 89 S.Ct. 2072, 2077-78 (1969), overruled in part by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201 (1989); see Bullington v. Missouri, 451 U.S. 430, 442, 101 S.Ct. 1852, 1860 (1981) ("[I]f the defendant is convicted again, he constitutionally may be subjected to whatever punishment is lawful . . . .").
In a vain attempt to find authority supporting his argument, Love asks us to "extend the resentencing restrictions" of Pearce to this case. But as Love himself recognizes, even Pearce and its progeny do not proscribe the imposition of an increased punishment after a successful appeal if-as in the present case-the sentences are assessed by different "sentencers" and there is no evidence of vindictiveness. See Webb v. State, No. 13-03-00041-CR, 2006 WL 3525427, at *5 (Tex. App.-Corpus Christi-Edinburg Dec. 7, 2006, pet. ref'd) (mem. op., not designated for publication) (first citing Texas v. McCullough, 475 U.S. 134, 140 n.3, 106 S.Ct. 976, 980 n.3 (1986); and then citing Jackson v. State, 766 S.W.2d 518, 520 (Tex. Crim. App. 1988)); see also Chaffin v. Stynchcombe, 412 U.S. 17, 25, 93 S.Ct. 1977, 1982 (1973) ("Subsequent cases have dispelled any doubt that Pearce was premised on the hazard of vindictiveness."). Thus, Pearce does not support Love's argument.
In sum, Love has cited no authority that would-absent a showing of vindictiveness on the part of the sentencer-preclude a defendant from being sentenced to a harsher punishment if he is reconvicted following a successful appeal for structural error, nor are we aware of any such authority. Accordingly, we overrule Love's fourth point.
E. Love Forfeited His Complaint Regarding the Admission of Certain Text Messages During the Trial's Punishment Phase
In his fifth point, Love contends that the trial court erred during the trial's punishment phase by admitting certain text messages that he sent to Tamilyn. However, Love failed to preserve this complaint.
As noted above, to preserve error regarding the admission of evidence, a party must make a timely and specific objection or motion to strike. Tex. R. Evid. 103(a)(1); see also Tex. R. App. P. 33.1(a). Further, a party must object each time the objectionable evidence is offered; otherwise, the error is not preserved. Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); Clay v. State, 361 S.W.3d 762, 766 (Tex. App.-Fort Worth 2012, no pet.). Similarly, "[a] party forfeits a complaint regarding the admission of an exhibit when testimony regarding the exhibit's contents is made without objection." Matthew v. State, No. 02-22-00140-CR, 2023 WL 2607750, at *7 (Tex. App.-Fort Worth Mar. 23, 2023, pet. filed) (mem. op., not designated for publication) (collecting cases); cf. Benavides v. Cushman, Inc., 189 S.W.3d 875, 885 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (holding that appellant had forfeited any error in an incident report's admission by failing to object to the admission of a witness's videotaped deposition discussing the report's contents).
Here, during the trial's punishment phase, the State offered Exhibit 327, which depicted screenshots of text messages that Love had sent to Tamilyn following a birthday celebration for one of her children in January 2021. Love raised a Rule 403 objection-which the trial court overruled-to Exhibit 327's admission, but he did not object to Tamilyn's testimony detailing the exhibit's contents. Because Love did not object to that testimony, he has forfeited any complaint regarding Exhibit 327's admission. See Matthew, 2023 WL 2607750, at *7; see also Carrillo v. State, No. 05-17-00672-CR, 2018 WL 3387364, at *2 (Tex. App.-Dallas July 12, 2018, no pet.) (mem. op., not designated for publication) (holding that any error in admitting crash-data-retrieval reports had been forfeited when the same evidence came in through the examination of the police officer without objection); Walker v. State, No. 02-16-00418-CR, 2018 WL 1096060, at *4 (Tex. App.-Fort Worth Mar. 1, 2018, no pet.) (mem. op., not designated for publication) (holding that appellant had forfeited his objections to the admission of a toxicology report because he objected only to the admission of the report and failed to object to testimony describing the contents of the report).
We overrule Love's fifth point.
In the section of his brief addressing his fifth point, Love also notes his First-Amendment objection to the constitutional validity of the electronic-harassment statute. See Tex. Penal Code Ann. § 42.07(a)(7). But as Love acknowledges, the Court of Criminal Appeals has held that this statute does not implicate the First Amendment's freedom-of-speech protections because it prohibits non-speech conduct. See Ex parte Barton, 662 S.W.3d 876, 885 (Tex. Crim. App. 2022). Bound by this precedent, we reject Love's argument regarding the electronic-harassment statute's constitutionality.
III. Conclusion
Having overruled all of Love's points, we affirm the trial court's judgment.