John Farrow Jr. v. The State of Texas Appeal from 211th District Court of Denton County (memorandum opinion)

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NUMBER 13-22-00197-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG JOHN FARROW JR., Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 211th District Court of Denton County, Texas. MEMORANDUM OPINION Before Chief Justice Contreras and Justices Benavides and Tijerina Memorandum Opinion by Justice Benavides Appellant John Farrow Jr. was convicted of burglary of a habitation, a first-degree felony, and sentenced to twenty years’ confinement. See TEX. PENAL CODE ANN. § 30.02(d). By two issues that we have reorganized, 1 Farrow argues that: (1) the 1 We reorder the issues presented according to which issue, if sustained, would provide Farrow the greatest relief. See Chaney v. State, 314 S.W.3d 561, 565 (Tex. App.—Amarillo 2010, pet. ref’d). evidence is insufficient to support his conviction; and (2) he suffered egregious harm when the trial court failed to include an accomplice-witness instruction in the jury charge. We affirm. I. BACKGROUND2 At trial, Sydney Gould testified that in January of 2019, she and Farrow had their first date. That same month, Gould gave Farrow a key to her apartment so he could care for her cat and rabbit while she was out of town. Upon returning from her trip, Gould learned that Farrow had lived in her apartment while caring for her pets. Farrow continued living with Gould for approximately three more months, though only Gould’s name was on the apartment lease. Gould articulated that she was “uncomfortable” with the living situation “because [she] did not know [Farrow] that well,” but she found it “hard to get out of that situation while maintaining [their] relationship.” Gould first attempted to end her relationship with Farrow “towards the end of February” and by March, the two “were arguing almost every day.” On March 11 or 12, Gould told Farrow that “[she] wanted [her] key back, and [she] wanted his things out of [her] apartment.” But when she got home that day, “[a]ll of his things were still there.” Gould’s friend came over to help her pack Farrow’s belongings. Gould placed Farrow’s belongings in the apartment hallway and texted him that he could either pick his things up or have someone else pick them up. Farrow replied that he was out of town and could not pick up his things, but Gould did not believe this because she saw his car in the 2 This appeal was transferred to this Court from the Second Court of Appeals in Fort Worth by order of the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (granting the supreme court the authority to transfer cases from one court of appeals to another at any time that there is “good cause” for the transfer). 2 apartment parking lot. Gould testified that she left her apartment to look for Farrow and found “him hiding at the end of the hallway.” Gould told Farrow that she wanted him to collect his belongings, and she re-entered her apartment. Farrow knocked on the door and asked to speak with her. When Gould stepped out, Farrow accused Gould “of cheating on him and never loving him.” He also indicated that Gould “only wanted him there to pay for things.” However, Gould represented that Farrow “did not help . . . with bills, and [Gould] brought that up. And his excuse for that was that it was [Gould’s] apartment, and he shouldn’t have to help [her] with bills if it was not his.” To convince Farrow to leave, Gould acquiesced and told Farrow that she “was cheating on him,” she “did not love him,” and that she “was using him,” “even though it was not the truth.” Farrow returned Gould’s key, collected his belongings, and left. Gould “believe[d] that that was the end of it.” But then Farrow began communicating with Gould again. He sent her “videos of conversations” he was having with another woman, whom Gould identified as Amber Flowers. According to Gould, Farrow told her that Flowers “was a real woman and [Gould] needed to learn to act more like her.” Farrow also sent Gould’s friends and family members messages denigrating Gould. Eventually, Gould began to feel “as though [she] was being watched.” On March 20, 2019, she met with a maintenance person outside her apartment to rekey her locks. However, when Gould opened the door to her apartment, she discovered there was standing water on the floor. The—the kitchen sink was running, and the bathroom sink and the bathtub had been turned on and were 3 running as well. The makeup that I kept on the counter in—in my bathroom had been thrown into the bathtub, as well as the bath mat that I used in the bathroom. My TV was missing, and my Xbox and the games that came with it were missing. When I walked into my bedroom, the mattress was gone. There was a pile of clothes on the floor, and the rest of the clothes that had been hanging up in the morning were missing. I later learned that there was toilet bowl cleaner sprayed around the apartment, and onto the lock of the door, that had damaged a lot of my belongings. .... My MacBook, my iPad. I had a camera bag that was missing as well. Those, along with the TV and the Xbox. The puppy that we had gotten together was gone. There were bags of cereal and bags of dog food that were missing. Gould later discovered some of her belongings in the dumpster outside her apartment. Gould also testified that the spare keys to her car and her mailbox were missing. Because of the water damage to her unit and neighboring units, Gould was required to pay her apartment complex $2,700 for repairs. Photos of Gould’s apartment from this day were admitted into evidence. Two photographs depict a whiteboard displaying the following message: “Thanks for inviting me over last night.” Gould acknowledged that a coworker “had come over originally to spend the night and make sure that [she] was safe” the evening prior. However, she explained that when her coworker left, she walked him to the door, and he did not write anything on the whiteboard on his way out. Gould testified that she recognized the handwriting on the whiteboard as Farrow’s. Gould and Farrow communicated via text messaging following the break-in. A text message from Farrow to Gould was admitted into evidence and reads, in part, “I don’t 4 have none of yo[ur] [s]hit[. ]You invite [men] to yo[ur] crib as [s]oon [as] you[’re] [s]ingle then blame the only [man] that ever care about you without sex[. ]Stop inviting everyone to yo[ur] crib then you want [sic] be having issues like this . . . .” He also wrote, “I can’t get in yo[ur] appt without a [k]ey.” Amber Flowers, Farrow’s former girlfriend, testified that she met Farrow in 2016 and the two had a dating relationship “[f]or a solid year before it became an off-and-on pattern.” Flowers explained that around December of 2018, she and Farrow broke up, and Farrow moved out of her apartment. During “spring break” of March of 2019, Farrow started messaging Flowers again, “trying to move back in” with her. Flowers allowed Farrow to move back in, and he brought “[a] dog, a TV, an Xbox . . .[, and] an iPad” as property. A video exhibit was admitted into evidence, showing Farrow bringing a small black dog into her living room and Flowers gasping in response. Flowers testified that Farrow represented these belongings were his property. Flowers could not afford the pet fee her apartment complex charged, and so Farrow sold the dog. Flowers helped Farrow sell the television and the Xbox at a nearby “pawnshop.” Flowers relayed that, at some point in March, Farrow was arrested. A jail call between Farrow and Flowers was admitted into evidence. During the call, Farrow and Flowers discussed Gould, and Farrow provided Flowers with instructions to locate and retrieve his car. Flowers repeatedly reminded Farrow that their call was being recorded. Despite this, Farrow informed Flowers of the location of a key in his car and asked Flowers to dispose of it. 5 Flowers testified that Farrow admitted he “flooded” Gould’s apartment. Flowers acknowledged that she had previously messaged Gould to tell her to leave Farrow alone, and that she agreed to testify as the State’s witness in exchange for transactional immunity for her role in these events. However, Flowers denied ever visiting the apartment complex where Gould resided. Detective Roy Winter of the Frisco Police Department testified about his investigation into the burglary. According to Detective Winter, an online database called “Leads Online” compiles information pertaining to recent transactions made in pawn shops, “GameStop, Best Buy, and ecoATM.” By using this online database, Detective Winter learned that “a few days after the burglary, [Flowers] had sold many similar items at a GameStop in Plano, similar to the items that had been taken.” Specifically, Detective Winter learned that Flowers sold “an Xbox of the same capacity and the same color” as Gould’s missing Xbox and “video games that were uniquely described by Ms. Gould as being taken during the burglary.” Detective Winter noted that these items were taken to GameStop on March 27, 2019, which was the same day that Farrow was released from jail. Additionally, Detective Winter testified that Gould had activated “the Find Your iPhone app” to locate her iPad following the break-in and kept him apprised of any updates to the iPad’s location. According to Detective Winter, “on the night of the burglary, it pinged to the area of E.J. Wills Gastropub.” This location was significant to Detective Winter because he “had been told that it was Mr. Farrow’s nighttime job.” The iPad later “pinged” near a McDonald’s in Plano, “then the next morning, it located to a Jack in the 6 Box near the victim’s address, and then it located right near the victim’s address.” Gould testified that she was not at her apartment when the iPad “pinged” near it. She met with police officers outside, and they searched her apartment together. According to Detective Winter, Gould “noticed a purple backpack that she did not recognize, and that’s where [they] located the iPad.” 3 In addition to the iPad, the backpack contained “the computer, along with its charger, and then there was also an envelope.” Photos of the envelope were admitted into evidence. Written on one side of the envelope was, “Stop inviting different guys to you[r] appt [sic] then you would know who broke in.” On the other side was written “password to Ipad 3333” and “stop inviting different guys to yo[ur] appt [sic] then you would k [sic].” 4 Gould testified that she recognized the handwriting as Farrow’s. Detective Winter also discussed metadata that was extracted from Farrow’s cell phone. On the day of the burglary, Farrow’s cell phone connected to the “My Spectrum” Wi-Fi associated with Gould’s apartment at around “12:47,” which was “within th[e] window” of when the burglary reportedly occurred. Later, both the missing iPad and Farrow’s cell phone were associated with the Jack in the Box “around 8:00 in the morning.” When the iPad subsequently pinged near Gould’s address, Farrow’s phone “reconnected to a My Spectrum personal Wi-Fi network that’s believed to be Ms. Gould’s.” However, Detective Winter acknowledged that the location data extracted from the 3 Gould acknowledged that, after the break-in, she left the apartment “unlocked for about a day and a half” so that maintenance could perform repairs. 4 Detective Winter testified that the writer appeared to have run out of room on this side of the envelope. 7 cell phone was “[n]ot 100 percent accurate” because there were some unreliable locations with which Farrow’s phone was associated. For instance, Farrow’s phone “pinged” near Beaumont, Texas at one point, but Detective Winter did not believe that Farrow was actually in Beaumont at that time. According to Detective Winter, a photo was also captured by Farrow’s phone on March 19, 2019, at 3:38 p.m. This photo depicted “carpeting in the background, as well as [a] white object in the top left corner, with a little bit of orange just past it.” Detective Winter explained that he compared this image with the crime scene images in this case “and noted that Ms. Gould’s bed had a white footboard that looked very similar to what was taken in the photo. Her sheets were also that same color, orange, and the carpet appeared to be the same as well.” Detective Winter testified that this image was noteworthy as it was taken “the day before the burglary,” but after the date Gould broke up with Farrow and secured the return of her key from him. The jury found Farrow guilty of burglary of a habitation and sentenced him to twenty years’ imprisonment. This appeal followed. II. SUFFICIENCY OF THE EVIDENCE Farrow challenges the sufficiency of the evidence to support his conviction for burglary of a habitation. Specifically, Farrow disputes that the evidence was sufficient to establish that he committed the burglary, rather than some other third party. A. Standard of Review & Applicable Law In conducting a sufficiency review, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential 8 elements of the crime beyond a reasonable doubt. Zuniga v. State, 551 S.W.3d 729, 732 (Tex. Crim. App. 2018). We assume that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences from the evidence in favor of the verdict. Id. “We may not re-weigh the evidence or substitute our judgment for that of the factfinder.” Id. We consider all the evidence in the record, including evidence that was properly and improperly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Direct evidence and circumstantial evidence are equally probative, and circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We measure the sufficiency of the evidence against “the elements of the offense as defined by the hypothetically correct jury charge for the case.” Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or restrict its theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. “Identity may be proven by direct evidence, circumstantial evidence, or by reasonable inferences from the evidence.” Ingerson v. State, 559 S.W.3d 501, 509 (Tex. Crim. App. 2018). “Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.” Hooper, 214 S.W.3d at 13. “Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.” Id. 9 B. Analysis Farrow disputes that the evidence was sufficient to establish that he was responsible for the burglary. Because it will assist us in our analysis of the next issue, we first summarize the evidence that supported Farrow’s conviction, sans Flowers’s testimony. Gould testified that she recognized Farrow’s handwriting on the whiteboard in her apartment and on the envelope that accompanied her returned iPad. Additionally, the message displayed on the whiteboard (“Thanks for inviting me over last night”) was similar to the language in: (1) Farrow’s text message to Gould (“Stop inviting everyone to yo[ur] crib then you want [sic] be having issues like this”) and; (2) the message written on the envelope that accompanied Gould’s returned iPad (“Stop inviting different guys to you[r] appt [sic] then you would know who broke in”). Additionally, the message on the envelope and the text message Farrow sent to Gould both contained the same abbreviation of the term apartment: “appt.” This evidence, along with the evidence that Farrow sent derogatory messages to Gould’s friends and family indicate that, as a jilted ex-boyfriend, he had a motive to harm Gould. See Stobaugh v. State, 421 S.W.3d 787, 865 (Tex. App.—Fort Worth 2014, pet. ref’d) (“Evidence of motive helps link a defendant to wrongful conduct or is supportive of other evidence of such conduct.”). In the jail call between Farrow and Flowers, Farrow instructed Flowers to dispose of a key found in his car. See Miller v. State, 177 S.W.3d 177, 194 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (concluding that appellant’s “attempts to hide evidence constitute circumstantial evidence of his guilt”). A video was admitted into evidence 10 demonstrating Farrow entering Flowers’s apartment with a black dog with white spots, and a photo of Gould with a similarly sized black dog with white spots was also admitted into evidence. See Poncio v. State, 185 S.W.3d 904, 905 (Tex. Crim. App. 2006) (“[A] defendant’s unexplained possession of property recently stolen in a burglary permits an inference that the defendant is the one who committed the burglary.”). Finally, relevant location data indicated that Farrow was at Gould’s apartment on the date of the burglary and on the date that Gould’s missing iPad was returned. That some of the location data was unreliable does not mean that the jury was required to disregard the location data entirely. See Day v. State, 614 S.W.3d 121, 127 (Tex. Crim. App. 2020) (“[T]he jury can believe all, some, or none of a witness’s testimony.”); Zill v. State, 355 S.W.3d 778, 787 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (“It is the province of the jury to decide conflicts in the evidence, and, in a sufficiency of the evidence review, we will not re-evaluate the weight and credibility of the evidence or substitute our judgment for that of the jury.”). Further, in addition to this data, Detective Winter identified that there was a photo taken on Farrow’s phone the day before the burglary that appeared to depict Gould’s bedroom. In addition to all of this evidence, Flowers also testified that Farrow confessed to “flooding” Gould’s apartment. See Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013) (explaining that we consider both properly and improperly admitted evidence when conducting a legal sufficiency review). In viewing this evidence in the light most favorable to the jury’s verdict, we conclude that the evidence was sufficient to prove that Farrow committed the burglary. We therefore overrule Farrow’s first issue. 11 III. JURY CHARGE ERROR By his second issue, Farrow contends that the failure to include a jury instruction on the accomplice-witness rule was error and caused egregious harm. A. Standard of Review & Applicable Law “Texas law requires that, before a conviction may rest upon an accomplice witness’s testimony, that testimony must be corroborated by independent evidence tending to connect the accused with the crime.” Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007); see TEX. CODE CRIM. PROC. ANN. art. 38.14 (accomplice-witness rule). “An accomplice is an individual who participates with a defendant before, during, or after the commission of the crime and acts with the requisite culpable mental state.” Cocke v. State, 201 S.W.3d 744, 748 (Tex. Crim. App. 2006). “Depending on the circumstances, an accomplice-witness instruction may direct the jury that an accomplice is one as a matter of law or one as a matter of fact for the jury’s determination.” State v. Ambrose, 487 S.W.3d 587, 593–94 (Tex. Crim. App. 2016). “The trial court is under no duty to instruct the jury [that a witness is an accomplice as a matter of law] unless there exists no doubt or the evidence clearly shows that a witness is an accomplice witness as a matter of law.” Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004). “If the evidence presented by the parties is conflicting and it is not clear whether the witness is an accomplice, then the trial court must leave to the jury the question of whether the inculpatory witness is an accomplice witness as a matter of fact under instructions defining the term ‘accomplice.’” Id. 12 We review an alleged jury charge error for an abuse of discretion. Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000). If we find error, we then analyze that error for harm. Id. The degree of harm necessary for reversal depends on whether the error was preserved. Jordan v. State, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)). “Where, as here, the defendant did not raise a timely objection to the jury instructions, reversal is required only if the error was fundamental in the sense that it was so egregious and created such harm that the defendant was deprived of a fair and impartial trial.” Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015). “Jurycharge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.” Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016). “Egregious harm is a ‘high and difficult standard’ to meet and such a determination must be ‘borne out by the trial record.’” Villarreal, 453 S.W.3d at 433 (quoting Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013)). “Under the egregious harm standard, the omission of an accomplice witness instruction is generally harmless unless the corroborating (non-accomplice) evidence is ‘so unconvincing in fact as to render the State’s overall case for conviction clearly and significantly less persuasive.’” Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002) (quoting Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991)). B. Analysis We will assume without deciding that Flowers was an accomplice, Farrow was entitled to a jury instruction on the accomplice-witness rule, and the omission of such an 13 instruction constituted error. Because Farrow did not request such an instruction, we will analyze the record for egregious harm. See Villarreal, 453 S.W.3d at 433. The accomplice-witness instruction “merely informs the jury that it cannot use the accomplice witness testimony unless there is also some non-accomplice evidence connecting the defendant to the offense.” Herron, 86 S.W.3d at 632. But once the factfinder determines “that such non-accomplice evidence exists, the purpose of the instruction is fulfilled, and the instruction plays no further role in the factfinder’s decisionmaking.” Id. “Therefore, non-accomplice evidence can render harmless a failure to submit an accomplice witness instruction by fulfilling the purpose an accomplice witness instruction is designed to serve.” Id. We measure the strength of non-accomplice evidence by examining “(1) its reliability or believability and (2) the strength of its tendency to connect the defendant to the crime.” Id. “[T]he reliability inquiry may be satisfied if: (1) there is non-accomplice evidence, and (2) there is no rational and articulable basis for disregarding the nonaccomplice evidence or finding that it fails to connect the defendant to the offense.” Id. at 633. In other words, if there are no “persuasive innocent” explanations for the corroborating non-accomplice evidence, that evidence is more likely to be reliable and believable. Id. at 633–34. Here, the corroborating non-accomplice evidence consisted of: (1) the jail call, in which Farrow asked Flowers to dispose of a key found in his car; (2) the cell phone and iPad location information, which showed that Farrow was in Gould’s apartment on the date of the burglary and that he was in the same place as Gould’s missing iPad—and 14 near her apartment—on the date the iPad was returned; (3) the video in which Farrow carries a small black dog into Flowers’s apartment that matches the small black dog that Gould reported missing after the burglary; and (4) the handwriting on the whiteboard and on the envelope that Gould identified as Farrow’s. We have already concluded that these pieces of evidence all tend to connect Farrow with the burglary, thus we next look to their reliability. See id. at 633. While Farrow provided explanations for most of the corroborating evidence, he did not provide any countervailing explanation for why he instructed Flowers to dispose of a key following his arrest. There being no rational and articulable basis for disregarding this evidence, we conclude that it strongly corroborates Flowers’s testimony. See id. Farrow argued that all of the relevant location data was unreliable as it contained some inexplicable datapoints. Detective Winter conceded that at least one datapoint was likely inaccurate. But there were other datapoints that Farrow could not discredit, such as those that placed Farrow at his place of employment during his work hours. Corroborating evidence tending to connect a defendant with a crime “does not need to be in itself sufficient to establish guilt beyond a reasonable doubt.” Patterson v. State, 204 S.W.3d 852, 859 (Tex. App.—Corpus Christi–Edinburg 2006, pet. ref’d) (plurality op.) (op. on reh’g). Although this may be an “innocent” explanation, it is not a “persuasive” one. Therefore, we conclude this evidence also strongly corroborates Flowers’s testimony. See Herron, 86 S.W.3d at 633. Defense counsel argued that Gould was young and an inexperienced pet owner, and it was possible that the dog simply ran away. Gould admitted on cross-examination 15 that she would sometimes let the dog outside to play in the grass near her apartment, and she secured the dog with “a leash that [Gould] would put on the back door.” The defense also suggested that Farrow may have bought a similar dog or that he even purchased a dog from the same litter, arguing that there are “lots of black-and-white dogs.” While certainly possible, it seems unlikely that Gould’s dog would run away on the same day of the burglary and that Farrow would then come into possession of a strikingly similarly looking dog around that same time. Again, we conclude this evidence strongly corroborates Flowers’s testimony. See id. Gould identified the handwriting on the whiteboard and the envelope as Farrow’s. The defense did not discredit Gould’s handwriting identification, and provided no explanation for why Farrow would write on Gould’s whiteboard on the same day as the burglary or why he would write on an envelope that accompanied Gould’s missing iPad. Therefore, this evidence also strongly corroborates Flowers’s testimony. See id. Lastly, the State identified in its closing argument certain reasons the jury might discount Flowers’s testimony, stating, “[Y]ou might say, Well, she’s an ex-girlfriend. The State said they wouldn’t prosecute her if she testified.” But the State then pointed to items of evidence that it believed corroborated her testimony. For instance, Flowers testified that Farrow brought a dog with him to her apartment, and the State referenced the video exhibit “of him showing up with the dog and her being so excited about the dog.” The State also asked the jury, “Why would [Farrow] call Amber Flowers to tell her to get rid of the evidence if it was her and not him? You can listen to that jail call again, and you can hear in her voice the uncertainty, her confusion in there.” In other words, the State 16 acknowledged the importance of corroborating evidence when evaluating the weight assigned to Flowers’s testimony. See TEX. CODE CRIM. PROC. ANN. art. 38.14 (accomplicewitness rule); Ambrose, 487 S.W.3d at 599 (Tex. Crim. App. 2016) (encouraging courts to look to the “totality of the record” to determine whether the lack of an accomplicewitness instruction constituted egregious harm). Because there was strong corroborative evidence tending to connect Farrow to the burglary, the totality of the record fails to show that he was egregiously harmed by the omission of an accomplice-witness instruction. See Ambrose, 487 S.W.3d at 599. We overrule Farrow’s second issue. IV. CONCLUSION We affirm the trial court’s judgment. GINA M. BENAVIDES Justice Do not publish. TEX. R. APP. P 47.2(b). Delivered and filed on the 18th day of January, 2024. 17

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