DAMONNE BRAZILLE LOWERY, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed February 23, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-00899-CR
............................
DAMONNE BRAZILLE LOWERY, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F-0800686-I
.............................................................
OPINION
Before Chief Justice Wright and Justices Richter and Fillmore
Opinion By Chief Justice Wright
        Damonne Brazille Lowery appeals his conviction for murder. The jury assessed punishment at life in prison and a $10,000 fine. In eight issues, appellant generally contends: (1) the evidence is legally and factually insufficient to support his conviction; (2) the trial court erred by overruling objections to two exhibits; (3) the trial court erred by overruling hearsay objections to certain testimony; and (4) the trial court erred by overruling his objection to certain testimony as speculative. We overrule appellant's issues and affirm the trial court's judgment.
Background
 
        Cynthia Coker testified that she lived in the same apartment complex as appellant in Dallas on March 30, 2007. That evening, she was at a neighbor's apartment with her friend, Terry Gnash. Gnash left to return to Coker's apartment and Coker followed a few minutes later. While walking to her apartment, she saw appellant struggling to get a large object wrapped in a rug or blanket into the back of a Kia Sportage. Gnash helped appellant get the object into the vehicle. She jokingly asked appellant “[w]hat are you trying to do, move a body?” Appellant replied, “[n]o, I'm just moving.” She then saw appellant get into the driver's seat of the vehicle.
        Marvell Gant testified that he moved into the Forest Hill Apartments in Arlington, Texas on March 30, 2007. At approximately 2:30 a.m. on March 31, 2007, Gant gave his friend a ride home. When he returned to the Forest Hill Apartments and began to pull into the parking space next to the U-Haul truck he had rented for moving, he saw the naked body of a woman lying on the ground. The body was later identified as Doneshia Hill. Gant drove his car back to police officers he had just passed and informed them about the body.
        Melissa Greer testified that she is a training manager at PODS, Inc. Both appellant and Hill were in her training class on March 30, 2007. The two of them went out to lunch and left together after work that day. Although appellant came to work the next day, Hill did not. Greer asked appellant about Hill and he said that he would call her. On Monday, April 2, 2007, Althea Russell, Hill's mother, called PODS and left a message for appellant to call her. A detective also called PODS asking to speak with appellant. Greer gave appellant the messages. Appellant told Greer that Hill had dropped him off at his apartment around 7:00 p.m. on March 30th. She then received a phone call and left to meet someone. Appellant did not return to his job after April 2nd.
        Shunnique Traylor, another student in the PODS training class with appellant and Hill, testified that on Monday, April 2, 2007, she told appellant that Russell had been at PODS looking for him. Appellant then told Traylor that he and Hill played dominoes at his apartment on March 30th. He said Hill left his apartment after she received a phone call.         Derrick James testified that he was Hill's boyfriend at the time of her death. He and Hill were together on March 29, 2007. They had sex that evening. Hill called James on March 30th around 5:30 but they did not make any plans at that time. She called again between 7:00 and 8:00 p.m. and told James that she would come over to see him. James, however, told her that he was about to leave. James went to another woman's apartment where he spent the night. The following day, James made several calls to Hill's cell phone but she never answered. Russell called him to see if he had heard from Hill. After Hill's body had been identified, James went with Russell and Hill's stepfather to the Arlington police station and gave a statement and provided DNA samples. While driving to work about two weeks later, James discovered Hill's vehicle parked in front of a business in Carrollton. He informed the person inside the business and the police were called. James then gave a second statement to the police.
        Officer R. Madison Johnson testified that Gant told him about the body in the parking lot. Johnson followed Gant to the scene and saw Hill with a gunshot wound to her head. He secured the scene for the investigating officers.
        Dr. Nizam Peerwani, medical examiner for Tarrant County, performed an autopsy on Hill's body. She had been shot four times in the head at close range. Although Hill was intoxicated at the time of her death, no drugs were found in her system.
        Arlington Police Detective Byron Stewart investigated the crime. He testified that it appeared that Hill had been pushed out of a vehicle and dumped at the site. Through information obtained after broadcasting a description of Hill, Stewart contacted Russell who identified the body. Russell named appellant as a possible suspect.
        Stewart went to appellant's apartment in Dallas. He spoke with Kesha Watley. She informed him that she and appellant had previously lived at the Forest Hill Apartments for approximately eight months. Stewart testified it is common for criminals to return to familiar locations. Watley testified that appellant owned a small handgun.
        Appellant later turned himself in and Stewart interviewed him in jail. During the interview, appellant told Stewart that Hill drove appellant to his apartment after work on March 30th and that she intended to spend the night with him. According to appellant, Hill left to “get some weed.” She returned with a man and they were arguing as they entered the apartment. The other man then drew a gun. When appellant heard a gunshot, he ran six miles to his family's house. Appellant denied returning to the apartment.
        Stewart considered James, Gant, and Gant's friend as other possible suspects. Although his residence was not searched and he was not subjected to hand washings, James gave two statements to the police. Gant and his friend gave statements to the police. Coker and Gnash also gave statements. Coker picked appellant's photograph out of a lineup as the person she saw putting a heavy object into the back of a Kia Sportage.
        On cross-examination, Stewart testified that James's whereabouts from 11:30 p.m. on March 30th to approximately 8:30 a.m. on March 31st were unknown. Stewart did, however, believe James's alibi that he was at another girlfriend's apartment.
        Detective Lonnie Cunigan with the Dallas Police Department testified that Russell provided Cunigan with appellant's name and phone number. He had a phone conversation with appellant on April 2, 2007. He decided to record the conversation because Russell was adamant that Hill had been with appellant. Appellant told him that Hill dropped him off after work on March 30th and left after receiving a phone call. Appellant said Hill did not return to his apartment.
        Melanie White, a crime scene investigator with the Arlington Police Department, performed a search of appellant's apartment on April 4, 2007. She found a queen size bed in the living room. Indentations matching the bed posts were noted in the bedroom carpet. Under the bed she found a large stain on the carpet that appeared to have been scrubbed. She also saw stains on the carpet padding, the concrete floor, the kitchen table, and hallway wall. A fired bullet was recovered from the wall next to the bed. White also searched Hill's vehicle and found Hill's wallet with cash inside. She found numerous blood stains with a heavy concentration of blood stains on the floorboard behind the front passenger seat. White took DNA swabs from the steering wheel and gear shaft.
        Carolyn Van Winkle is senior DNA analyst and quality manager of the crime lab at the Tarrant County Medical Examiner's Office. She tested the vaginal and anal swabs from Hill. The vaginal swab showed DNA contributions from appellant, James, and Hill. The anal swab showed DNA contributions from James and Hill but was inconclusive as to appellant. The swabs taken from the kitchen table in appellant's apartment matched Hill's DNA profile. The samples from the stains in the hallway and the concrete floor under the bed in appellant's apartment tested positive for blood and they also matched Hill's DNA profile. The fired bullet obtained from the wall in appellant's apartment also contained DNA consistent with that of Hill. The carpet and carpet pad samples likewise matched Hill's DNA profile.
        Van Winkle also tested swabs taken from Hill's vehicle. The steering wheel contained a mixture of DNA consistent with both appellant and Hill. The swabs taken from the floorboard of the vehicle matched Hill's DNA profile. James was excluded as a contributor of any DNA found in the vehicle.
        Jeff Shaffer, Secret Service Special Agent, testified about cell phone activity related to the case. Hill's cell phone records showed incoming and outgoing calls made on March 30th between 7:00 p.m. and 11.31 p.m. came from a location near appellant's apartment. At 1:10 a.m. on March 31st, Hill's phone was activated and a call was attempted. The phone stopped registering with cell phone towers after that time. Records for appellant's cell phone showed that it was in the area of the Forest Hills Apartments when he received a call at 3:30 a.m. on March 31st. At 5:45 a.m. he was back in the area of his apartment. A call was placed from appellant's cell phone to Hill's cell phone around 8:00 p.m. on March 31st. Appellant did not make any further calls from his cell phone to Hill's phone.
Sufficiency of the Evidence
 
In his first two issues, appellant contends the evidence is legally and factually insufficient to support his conviction. When considering a challenge to the legal sufficiency of the evidence, we review 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 offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all evidence presented by either side. Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). In performing a legal sufficiency review, we may not reevaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Instead, we determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007).         In contrast, when considering a factual sufficiency challenge, we view all the evidence from a neutral perspective. Watson v. State, 204 S.W.3d 404, 415 (Tex. 2006). The evidence, though legally sufficient, is factually insufficient if it is so weak that the jury's verdict seems clearly wrong and manifestly unjust, or if, considering conflicting evidence, the jury's verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007). A clearly wrong and unjust verdict occurs where the jury's finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Id. Unless the record clearly reveals a different result is appropriate, we must defer to the fact finder's determination concerning what weight to be given to contradictory testimony. Lancon, 253 S.W.3d at 705. A person commits the offense of murder if he intentionally or knowingly causes the death of an individual, or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Penal Code Ann. §§ 19.02(b)(1), (2) (Vernon 2003). In this case, the jury was authorized to convict appellant if it found beyond a reasonable doubt that appellant intentionally or knowingly caused Hill's death by shooting her with a firearm. Appellant's former girlfriend, Watley, testified that she and appellant used to live at the Forest Hill Apartments where Hill's body was found. She also testified that appellant owned a handgun. The jury heard evidence that Hill drove appellant to his apartment after work on March 30th. Although Hill spoke with James by phone a couple of times that evening, she never met up with him. Cell phone records showed that at the time of each of these calls, Hill was in the area of appellant's apartment. Coker's testimony showed that appellant was moving a heavy object wrapped in a blanket into a Kia Sportage and then got into the driver's seat. Soon after Hill's body was discovered, appellant's cell phone records show that his phone was in the area near the location where the body had been dumped. The fired bullet found in the wall of appellant's apartment contained DNA matching Hill's. Blood found in appellant's apartment and on the floorboard of the backseat of Hill's Kia Sportage matched Hill's DNA profile. Appellant's DNA was on the steering wheel of the Kia. Based on this evidence, a rational jury could have found appellant murdered Hill. Thus, we conclude the evidence is legally sufficient to support appellant's conviction. We overrule appellant's first issue.
        With respect to appellant's factual sufficiency challenge, the record shows appellant gave differing accounts as to the events on the evening of March 30. Appellant told Cunigan that Hill dropped him off at his apartment and left after receiving a phone call. Appellant told Stewart that a man entered his apartment. When the man shot his gun, appellant ran six miles to his family's home and never returned to his apartment. The cell phone records, however, place appellant back at his apartment around 5:30 a.m. on March 31st. Moreover, it is somewhat incredible that a stranger entered appellant's apartment, murdered Hill, disposed of her body, then returned to clean the apartment. Stewart also testified that other individuals, including James, were investigated as possible suspects. Considering the evidence under the appropriate standard, we conclude it is factually sufficient to support appellant's conviction. We overrule appellant's second issue.
Admission of the Warrants
 
        In issues three and four, appellant contends the trial court erred in admitting exhibits 40 and 38 over his objections. Appellant objected to the admission of exhibit 40, the evidentiary search and arrest warrant, on the basis of relevance. Exhibit 38 was the evidentiary body substances search warrant. It was admitted over appellant's relevance and hearsay objections.
        Error in the admission of evidence is non-constitutional error and is, therefore, subject to a harm analysis under Rule 44.2(b) of the Texas Rules of Appellate Procedure. Tex. R. App. P. 44.2(b); Potier v. State, 68 S.W.3d 657, 666 (Tex.Crim.App.2002). Non-constitutional error must be disregarded unless it affects the substantial rights of the defendant. Tex. R. App. P. 44.2(b). Substantial rights are not affected by the erroneous admission of evidence unless the error had a substantial and injurious effect or influence in determining the jury's verdict. Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App.2002). In determining whether the jury's verdict was adversely affected by the error, the appellate court must consider the entire record. Id.
        Stewart testified that the warrants were issued authorizing the search of appellant's apartment and the collection of DNA samples from appellant. Contrary to appellant's contention, the warrants were admitted without the supporting affidavits and the hearsay statements of the affiant.   See Footnote 1  The State introduced the warrants to show their existence in line with Stewart's testimony. The State did not use any information contained in the warrants for the truth of the matter asserted. Under these circumstances, we conclude there is no likelihood that the jury's verdict was adversely affected by any error caused by the admission of the search warrants. Accordingly, we overrule appellant's third and fourth issues.        
Hearsay
 
        In appellant's fifth, sixth, and eighth issues, he contends the trial court erred in allowing hearsay testimony. Hearsay is a statement, other than one made by the declarant while testifying, offered into evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Error in the admission of evidence warrants reversal only if the erroneous admission affected the defendant's substantial rights by exerting a substantial and injurious effect or influence in determining the jury's verdict. See Tex. R. App. P. 44.2; Motilla, 78 S.W.3d at 355.
        Where there is an inescapable conclusion that a piece of evidence is being offered to prove statements made outside the courtroom, a party may not circumvent the hearsay prohibition through artful questioning designed to elicit hearsay indirectly. Schaffer v. State, 777 S.W.2d 111, 114 (Tex. Crim. App. 1989). Police officers may testify about how a defendant became a suspect in the investigation. See, e.g., Dinkins v. State, 894 S.W.2d 330, 347-48 (Tex. Crim. App. 1995) (appointment book and patient application form containing appellant's name); Jones v. State, 843 S.W.2d 487, 499 (Tex. Crim. App. 1992), overruled on other grounds, Maxwell v. State, 48 S.W.3d 196, 200 (Tex. Crim. App. 2001) (officer repeated several out-of-court statements by another witness implicating appellant that formed basis for arrest warrant); Lee v. State, 29 S.W.3d 570, 577 (Tex. App.-Dallas 2000, no pet.) (officer testified investigation of appellant resulted from interview with victim).
        In his fifth issue, appellant complains of Stewart's testimony that Russell gave him appellant's name as a possible suspect. Russell did not testify at trial. In his sixth issue, appellant complains of Stewart's testimony that Watley, who did testify at trial, told him that she and appellant used to live at the Forest Hill Apartments. In this case, the record shows Stewart testified about his conversations with Russell and Watley to show how the investigation became focused on appellant. The trial court could have reasonably concluded that Stewart's testimony did not lead to any inescapable conclusions that Russell was testifying through him. Stewart's testimony with respect to Watley showed how the investigation linked appellant to Hill's murder. Thus, we conclude Stewart's testimony was not admitted to prove the content of Russell's or Watley's testimony or its truth, but rather to explain how appellant became a suspect. As such, it was not inadmissible hearsay. See Dinkins, 894 S.W.2d at 347-48. We overrule appellant's fifth and sixth issues.
        In his eighth issue, appellant complains of alleged hearsay solicited during Greer's testimony. Greer testified that Hill did not show up for work after March 30th. When asked if she questioned appellant about Hill's whereabouts, Greer testified as follows:
 
        [Prosecutor]: Was there a later time that you did ask Damonne Lowery?
 
 
 
        [Greer]: Yes. On Monday, that following Monday, which was, I guess, the 2nd, April 2nd. Yes. Mrs. Russell, which I believe was Doneshia's mother, had called over the weekend looking for her, and she called Monday morning and left a message for Damonne to call her.
 
 
 
        And so I had her name and number written down on a Post-it and gave it to him. And I gave him the information and asked him again if he'd seen her or talked with her. And he said-
 
 
 
        [Defense Counsel]: Objection, Your Honor. It calls for hearsay.
 
 
 
        [The Court]: Overruled.
 
 
 
        [Prosecutor]: Go ahead.
 
 
 
        [Greer]: And he said that he had - that she had dropped him off Friday night at his apartment around 7:00 and that she had received a call from some guy that she was supposed to meet up with.
 
At trial, appellant objected to Greer stating what appellant told her as hearsay. On appeal, appellant complains that the State used backdoor hearsay testimony showing that the missing witness implicated appellant in the murder. Appellant did not raise this objection with the trial court. He did not complain about Russell's statement to Greer. He complained about Greer's testimony as to what appellant stated directly to her. An appellant's own statements admitted against him at trial are not hearsay. See Tex. R. Evid. 802(e)(2). Because the testimony did not constitute hearsay, the trial court did not err in overruling the objection. Accordingly, we overrule appellant's eighth issue.
 
Speculative Testimony
 
        In his seventh issue, appellant contends the trial court erred in allowing Detective Stewart to testify why a person might dump a body next to a U-Haul truck. Appellant contends the testimony was impermissible as speculative. Stewart testified that he specialized in homicide investigations with the Arlington Police Department. Stewart testified as follows:
 
        [Prosecutor]: Detective, based on your experience and training, Detective, why might an individual choose a large U-haul truck beside it [sic] to dump a body?
 
                        [Defense Counsel]: Objection, Your Honor. It calls for speculation.
 
                        [The Court]: Overruled.
 
 
        [Stewart]: Looking at the crime scene and looking at the location where the body was found, it appeared to me that when - there was a large U-haul truck next to where the victim's body was found.
 
 
 
        There was an open space, a parking space, that one can pull [sic] and be discreet and be blocked by that particular U-haul truck. Actually, push a body out of a vehicle or something like that, leave it, and then back up and not be seen, relatively not be seen.
 
The State asked Stewart to draw upon his experience and training in crime scene investigations to give his opinion about the location of the body at the crime scene. Stewart's opinion was based on what he observed at the crime scene. He also had specialized knowledge as a homicide detective. This evidence was admissible as opinion testimony by a lay witness and as expert testimony. See Tex. R. Evid. 701 & 702. Accordingly, the trial court did not err in overruling appellant's objection. We overrule appellant's seventh issue.
        We affirm the trial court's judgment.
 
 
 
                                                          
                                                          CAROLYN WRIGHT
                                                          CHIEF JUSTICE
        
Do Not Publish
Tex. R. App. P. 47 080899F.U05
 
Footnote 1 The affidavit was later admitted for record purposes only outside the presence of the jury.