COURT OF APPEALS
SECOND DISTRICT OF TEXAS
KEITH DEMONT MCCUIN A/K/A
THE STATE OF TEXAS
FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
In six issues, Appellant Keith Demont McCuin a/k/a Keith McCuin appeals
his conviction for capital murder. We will affirm.
See Tex. R. App. P. 47.4.
On the night of November 22, 2008, McCuin shot and killed Rodney Ryan
at a self-service car wash located in Fort Worth.
A nearby liquor store’s
surveillance camera captured images of McCuin, his Cadillac, and his twin
brother, Kevin, on video from the night of the offense.2
After releasing the
surveillance footage to the media, investigators developed McCuin as a suspect,
arrested him, and collected a DNA sample from him. Authorities investigating the
homicide never found the $500 in cash that Ryan’s employer had given Ryan
before he was last seen or a red backpack that he ―always‖ carried, but they did
learn that DNA discovered in the front pocket of Ryan’s jeans was consistent with
McCuin’s DNA. McCuin pleaded not guilty to the offense of capital murder,3 but
a jury convicted him of that offense, and the trial court sentenced him to life
imprisonment without parole.4
The footage shows McCuin driving his Cadillac to the car wash; McCuin
then parking the Cadillac at the liquor store; McCuin exiting the Cadillac and
walking towards the car wash; Kevin exiting the passenger side of the Cadillac
and entering the driver’s side of the Cadillac; Kevin backing the Cadillac out of
the parking space and pulling forward; a patron of the liquor store turning towards
the car wash upon hearing a gunshot; the Cadillac leaving the liquor store
parking lot and driving to the car wash; and McCuin running from the car wash to
The indictment alleged in relevant part that McCuin ―did then and there
intentionally cause the death of an individual, Rodney Ryan, by shooting him with
a firearm, and the said defendant was then and there in the course of committing
or attempting to commit the offense of robbery.‖
The State did not seek the death penalty.
III. EVIDENTIARY SUFFICIENCY—INTENT TO COMMIT ROBBERY
In his first and second issues, McCuin argues that the evidence is legally
and factually insufficient to show that he committed capital murder because
―there was insufficient evidence to establish that [he] intended to rob the victim,
rather than merely to kill him.‖ McCuin thus does not challenge the sufficiency of
the evidence to show that he murdered Ryan.
The court of criminal appeals has held that there is no meaningful
distinction between the legal sufficiency standard and the factual sufficiency
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)
(overruling Clewis v. State, 922 S.W.2d 126, 131–32 (Tex. Crim. App. 1996)).
The Jackson standard is the ―only standard that a reviewing court should apply in
determining whether the evidence is sufficient to support each element of a
criminal offense that the State is required to prove beyond a reasonable doubt.‖
Therefore, we overrule McCuin’s second issue challenging the factual
sufficiency of the evidence.
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the
prosecution to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).
This standard gives full play to the
responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778.
A person commits capital murder if he commits murder in the course of
committing or attempting to commit robbery. Tex. Penal Code Ann. § 19.03(a)(2)
(West 2011). A person commits robbery ―if, in the course of committing theft . . .
and with intent to obtain or maintain control of the property, he (1) intentionally,
knowingly, or recklessly causes bodily injury to another; or (2) intentionally or
knowingly threatens or places another in fear of imminent bodily injury or death.‖
Id. § 29.02(a) (West 2011). A person commits theft if he unlawfully appropriates
property with the intent to deprive the owner of it. Id. § 31.03(a) (West 2011).
The court of criminal appeals has defined ―in the course of committing‖ an
offense as conduct occurring in an attempt to commit, during the commission of,
or in the immediate flight after the attempt or commission of the robbery.
Lincecum v. State, 736 S.W.2d 673, 680 (Tex. Crim. App. 1987), cert. denied,
486 U.S. 1061 (1988). When a person is charged with committing murder in the
course of committing a robbery, ―[e]vidence is sufficient to support a capital
murder conviction if it shows an intent to obtain or maintain control of property
which was formed before or contemporaneously with the murder.‖ Shuffield v.
State, 189 S.W.3d 782, 791 (Tex. Crim. App.), cert. denied, 549 U.S. 1056
(2006); Armstrong v. State, No. AP-75706, 2010 WL 359020, at *3 (Tex. Crim.
App. Jan. 27, 2010) (not designated for publication). The State does not have to
prove ―that the appellant completed the theft of the victim in order to establish the
underlying offense of robbery or attempted robbery.‖
Young v. State, 283
S.W.3d 854, 862 (Tex. Crim. App.), cert. denied, 130 S. Ct. 1015 (2009). Rather,
if there is evidence from which the jury rationally could conclude beyond a
reasonable doubt that the defendant formed the intent to obtain or maintain
control of the victim’s property either before or during the commission of the
murder, then the State has proven that the murder occurred in the course of
robbery. Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim. App. 1995). The
jury may infer the requisite intent to rob from circumstantial evidence, including
the conduct of the defendant. Id.; see Young, 283 S.W.3d at 862.
The evidence demonstrates that Ryan died from a gunshot wound to the
Although the car wash is located just ―next door‖ to the liquor store,
approximately ninety seconds elapsed between the time that a patron leaving the
liquor store heard a gunshot and the time that Appellant ran from the car wash to
the Cadillac, according to the surveillance footage. Both Ryan’s sister and his
employer testified that Ryan ―always‖ carried a red backpack with him, but the
backpack was not discovered at the scene or ever returned to his sister. Ryan’s
employer, Matthew Tago, testified that Ryan worked the day of the offense, that
Ryan was still at work when Tago left the office between 6:00 and 6:30 p.m., that
Ryan had said that he wanted to wash his car, and that Tago gave Ryan $500
cash, which Ryan put in his shirt pocket. Authorities did not find the $500. DNA
discovered in the front pocket of Ryan’s jeans was consistent with McCuin’s
DNA; the DNA profile excluded 99.88% of African-Americans. Medical personnel
found Ryan’s driver’s license identification card on the ground. Demarcus Penix
told police that McCuin had told him that McCuin ―tried to jack a guy and had to
knock him out.‖ Penix also told Eric Holder that McCuin had told Penix that
McCuin ―approached [Ryan] to rob him, he just wanted an easy take.‖
McCuin argues that the presence of his DNA in Ryan’s pocket could be a
result of ―many possibilities,‖ not just that he had the intent to rob Ryan. But
McCuin’s argument is unpersuasive because ―[c]ourts and juries no longer face
the difficult task of excluding every reasonable hypothesis other than the
defendant’s guilt.‖ See Laster v. State, 275 S.W.3d 512, 520–21 (Tex. Crim.
App. 2009) (explaining abolition of reasonable hypothesis test); Wilson v. State, 7
S.W.3d 136, 141 (Tex. Crim. App. 1999) (―We have rejected the reasonable
hypothesis construct as a measure of legal sufficiency.‖).
McCuin also points out that the time interval between when Ryan left work
and the time of the first 911 call at 8:38 p.m. was more than two hours and,
therefore, ―[t]his interval provided ample time for Ryan to make one or more
stops, and to dispose of his backpack and the money.‖ Notwithstanding that this
appears to be another reasonable hypothesis-type argument, Tago testified that
he ―left [Ryan] behind‖ when he left work, not that Ryan also left work between
6:00 and 6:30 p.m.
McCuin further argues that ―Penix’s unsworn statements about McCuin’s
alleged admission were denied by him under oath in court, and were of very
dubious credibility in any event.‖ But it was within the province of the jury as
factfinder to believe the portions of Penix’s testimony in which he admitted telling
authorities that McCuin had made incriminating statements and to disbelieve the
portions of Penix’s testimony in which he said that he was lying when he told
authorities about MCuin’s statements. See Sharp v. State, 707 S.W.2d 611, 614
(Tex. Crim. App. 1986), cert. denied, 488 U.S. 872 (1988).
McCuin argues that his case is ―strikingly similar‖ to Herrin v. State, 125
S.W.3d 436 (Tex. Crim. App. 2002), a case in which the victim’s wallet
disappeared after his murder and there was no evidence directly linking the
appellant to the missing wallet. Id. at 441–42. Herrin is distinguishable from the
facts of this case because in addition to the missing red backpack and $500,
McCuin’s DNA was found in Ryan’s front jeans pocket and McCuin made
admissions to Penix, which were admitted in evidence.
Viewing all of the evidence in the light most favorable to the prosecution, a
rational jury could have found beyond a reasonable doubt that McCuin murdered
Ryan in the course of committing or attempting to commit robbery. See Tex.
Penal Code Ann. § 19.03(a)(2); Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.
Accordingly, the evidence is sufficient to support McCuin’s conviction for capital
murder. We overrule McCuin’s first issue.
IV. LESSER INCLUDED OFFENSE
In his third issue, McCuin argues that the trial court erred by denying his
request to instruct the jury on murder, a lesser included offense of capital murder.
McCuin relies solely on the arguments that he asserted in his evidentiary
We use a two-step analysis to determine whether an appellant was entitled
to a lesser included offense instruction. Hall v. State, 225 S.W.3d 524, 528 (Tex.
Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666, 672B73 (Tex. Crim.
App.), cert. denied, 510 U.S. 919 (1993). First, the lesser offense must come
within article 37.09 of the code of criminal procedure. Tex. Code Crim. Proc.
Ann. art. 37.09 (West 2006); Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App.
1998). Second, some evidence must exist in the record that would permit a jury
to rationally find that if the appellant is guilty, he is guilty only of the lesser
offense. Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734, 741 (Tex.
Crim. App. 2005); Rousseau, 855 S.W.2d at 672B73.
Murder is a lesser included offense of capital murder. McKinney v. State,
207 S.W.3d 366, 370 (Tex. Crim. App. 2006). Therefore, McCuin has satisfied
the first prong of the two-step analysis. He cannot, however, satisfy the second
prong. The State presented evidence that Ryan’s red backpack and $500 were
missing, that genetic material consistent with McCuin’s DNA was discovered in
Ryan’s front jeans pocket, that McCuin confessed to Penix that he murdered and
robbed Ryan, and that McCuin did not return to his Cadillac until approximately
ninety seconds after the gunshot.
Because the jury rationally could have
concluded that McCuin had the specific intent to commit robbery, no jury could
rationally find that, under the evidence presented, McCuin was guilty of murder
but not guilty of capital murder. See Hall, 225 S.W.3d at 536; Salinas, 163
S.W.3d at 741. Accordingly, we overrule McCuin’s third issue.
V. EVIDENCE OF GANG MEMBERSHIP
In his fourth issue, McCuin argues that the trial court abused its discretion
by permitting the State to present evidence of McCuin’s membership in a violent,
criminal street gang. He contends that the evidence was inadmissible (1) under
rule of evidence 404(b) because it ―was probably very damaging to the Defense
case‖ and (2) under rule of evidence 403 because ―[n]ot only would it make the
jury more likely to believe that McCuin was capable of murder, but the jury would
also be tempted to convict McCuin in order to keep a potentially violent criminal
off the streets.‖
We review a trial court’s decision to admit or exclude evidence under an
abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.
Crim. App. 2000). A trial court does not abuse its discretion as long as the
decision to admit or exclude evidence is within the zone of reasonable
disagreement. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App.
1990) (op. on reh’g).
The general rule is that the defendant is to be tried only for the offense
charged, not for any other crimes or for being a criminal generally. Segundo v.
State, 270 S.W.3d 79, 87 (Tex. Crim. App. 2008), cert. denied, 130 S. Ct. 53
Therefore, ―[e]vidence of other crimes, wrongs or acts‖ may not be
admitted during the guilt-innocence phase of trial ―to prove the character of a
person in order to show action in conformity therewith.‖ Tex. R. Evid. 404(b).
The State called Demarcus Penix to testify.
Penix testified on direct
examination that he told police that McCuin had told him that McCuin ―tried to
jack a guy and had to knock him out.‖ Penix also testified that he told Eric Holder
that McCuin had told him that McCuin was involved in the ―robbery and killing.‖
Specifically, Penix said that McCuin told him that McCuin had ―approached
[Ryan] to rob him, he just wanted an easy take.‖ Although Penix confirmed
making these statements, he testified that he had lied about what McCuin told
him to get the authorities ―out my face.‖
On cross-examination, Penix confirmed that he signed an affidavit stating
that he had a conversation with McCuin after the offense and that McCuin said
he was not involved in the incident at the car wash. Penix also stated in the
affidavit, ―Since [McCuin] has told me that he did not commit this crime and I
have known him for as long as I have, I don’t believe [McCuin] was involved and
did not commit this murder.‖
On redirect examination, Penix testified that he, McCuin, and Kevin
(McCuin’s brother) were members of a street gang and that ―[i]t’s bad‖ to tell the
police what you know about another gang member.
It is apparent from the record that the State did not call Penix for the
purpose of eliciting testimony that McCuin was a gang member. Instead, the
State called Penix to testify about his statements to police regarding McCuin’s
comments implicating himself in the offense. It was not until after Penix testified
on cross-examination about his affidavit, in which he stated that he did not
believe that McCuin had murdered Ryan, that the State impeached Penix with
evidence that he and McCuin were in the same gang and elicited testimony that
―[i]t’s bad‖ to tell the police what you know about another gang member. This
court has previously held that evidence of gang membership bears on the
witness’s veracity and bias. See McKnight v. State, 874 S.W.2d 745, 746–47
(Tex. App.—Fort Worth 1994, no pet.) (citing United States v. Abel, 469 U.S. 45,
49, 105 S. Ct. 465, 469 (1984)).5 Accordingly, we hold that the evidence of
McCuin’s membership in the same gang as Penix was admissible to show that
Penix was biased to testify in favor of McCuin. See id.; see also Tex. R. Evid.
607 (stating that the credibility of a witness may be attacked by any party,
including the party calling the witness).
Turning to McCuin’s rule 403 argument, ―[a]lthough relevant, evidence may
be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by
In Abel, the Supreme Court reasoned,
Mills’ and respondent’s membership in the Aryan Brotherhood
supported the inference that Mills’ testimony was slanted or perhaps
fabricated in respondent’s favor. A witness’ and a party’s common
membership in an organization, even without proof that the witness
or party has personally adopted its tenets, is certainly probative of
469 U.S. at 52, 105 S. Ct. at 469.
considerations of undue delay, or needless presentation of cumulative evidence.‖
Tex. R. Evid. 403. Once a rule 403 objection is made, the trial court must weigh
the probative value of the evidence to determine if it is substantially outweighed
by its potential for unfair prejudice. Santellan v. State, 939 S.W.2d 155, 169
(Tex. Crim. App. 1997). A rule 403 balancing test includes the following factors:
(1) the inherent probative force of the proffered item of evidence along with
(2) the proponent’s need for that evidence against (3) any tendency of the
evidence to suggest decision on an improper basis, (4) any tendency of the
evidence to confuse or distract the jury from the main issues, (5) any tendency of
the evidence to be given undue weight by a jury that has not been equipped to
evaluate the probative force of the evidence, and (6) the likelihood that
presentation of the evidence will consume an inordinate amount of time or merely
repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641–
42 & n.8 (Tex. Crim. App. 2006); Dodson v. State, No. 02-08-00286-CR, 2010
WL 2889693, at *4 (Tex. App.—Fort Worth July 22, 2010, pet. ref’d) (mem. op.,
not designated for publication).
The probative value of the impeachment evidence was high because the
State wanted to show why Penix testified that he had lied to police about the
statements that McCuin had made to him.
The State mentioned the gang
affiliation at closing argument, but it was done in the context of arguing that Penix
was ―trying his best to extricate himself from this case, doing everything he can to
take back the bad things that he said about [McCuin] because they are from the
same gang.‖ McCuin argues that the evidence of his gang membership made
the jury ―more likely‖ to believe that he was capable of committing murder; but
there was other, much stronger evidence that served the same purpose—
McCuin actually told Penix that he murdered and robbed Ryan. After balancing
the rule 403 factors, we conclude that the trial court could have reasonably
determined that the probative value of the evidence that McCuin was a member
of the same gang as Penix was not substantially outweighed by the
countervailing factors specified in the rule. See Tex. R. Evid. 403. We overrule
McCuin’s fourth issue.
In his fifth issue, McCuin argues that the trial court abused its discretion by
admitting hearsay testimony regarding the venue of the offense. When the State
questioned two of its witnesses about whether the offense had occurred in
Tarrant County, McCuin asserted hearsay objections because the witnesses’
knowledge was based on road signs or on a map. But one witness testified on
voir dire that he had ―learned that Tarrant County covers different parts of Texas
and some parts of Arlington as well.‖ The other witness testified that he based
his opinion in part on his ―training.‖ The trial court therefore did not abuse its
discretion by overruling McCuin’s objections because the venue testimony was
derived from the witnesses’ personal knowledge about Tarrant County’s borders.
See Johnson v. State, No. 07-07-00327-CR, 2009 WL 102930, at *9 (Tex.
App.—Amarillo Jan. 15, 2009, pet. struck) (mem. op., not designated for
publication) (―The testimony . . . that San Jacinto Park is located in Potter County
is not hearsay.
Here, the officers were merely testifying from their personal
knowledge and that testimony was subject to cross-examination.‖). Alternatively,
the testimony was admissible as an exception to the hearsay rule. See Tex. R.
Evid. 803(20) (―Reputation in a community . . . as to boundaries of . . . lands in
the community . . . .‖); Shilling v. State, 977 S.W.2d 789, 790 (Tex. App.—Fort
Worth 1998, pet. ref’d) (holding that testimony about county’s boundary location
was admissible under rule of evidence 803(20)).
We overrule McCuin’s fifth
VII. SURVEILLANCE FOOTAGE EXHIBIT
In his sixth issue, McCuin argues that the trial court erred by denying his
motion for new trial because the jury was permitted to consider surveillance
footage that was not expressly admitted in evidence. The trial court held a ―sua
sponte hearing‖ after McCuin’s trial concluded because it came to the court’s
attention that the video of the surveillance footage from the liquor store that had
been published to the jury during trial and during the jury’s deliberations was not
the video contained on the disc that was entered in evidence as State’s Exhibit
20. As McCuin acknowledges, the video that was published to the jury, which
was transferred onto a disc marked as Court’s Exhibit C during the sua sponte
hearing, contains the same footage as State’s Exhibit 20 but has an additional
eight minutes of surveillance footage that was not included in State’s Exhibit 20.
At the sua sponte hearing, the trial court, the State, and both McCuin and his trial
attorney watched both exhibits, and the State and McCuin’s attorney agreed that
Court’s Exhibit C was the version of the surveillance footage that had been
published to the jury. On the State’s motion, the trial court supplemented the
record with Court’s Exhibit C in order to conform the record to the evidence at
An exhibit not expressly admitted in evidence may nonetheless be
considered as evidence when the parties and the judge treat the exhibit as if it
were in evidence. See Harden v. State, 417 S.W.2d 170, 174 (Tex. Crim. App.
1967); see also Amador v. State, 221 S.W.3d 666, 673–74 (Tex. Crim. App.
2007). Here, the record demonstrates that both parties treated Court’s Exhibit C
as if it had been admitted in evidence. Both parties agreed at the sua sponte
hearing that Court’s Exhibit C was the video that was published to the jury.
There is no dispute that State’s Exhibit 20 was never published to the jury. The
cases that McCuin cites are all distinguishable from the facts of this case
because the exhibits in those cases were never treated as though they had been
admitted in evidence. See, e.g., Osborne v. United States, 351 F.2d 111, 115
(8th Cir. 1965).
We hold that the trial court did not abuse its discretion by
denying McCuin’s motion for new trial. See State v. Herndon, 215 S.W.3d 901,
906–07 (Tex. Crim. App. 2007) (identifying abuse of discretion as standard to
review denial of motion for new trial). Accordingly, we overrule McCuin’s sixth
Having overruled all of McCuin’s issues, we affirm the trial court’s
PANEL: MEIER, J.; LIVINGSTON, C.J.; and GABRIEL, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 30, 2011