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Date: 01-09-2018

Case Style:

Cornelius Milan Harper v. The State of Texas

Man sentenced to life in prison for 2010 murder of young couple, unborn baby in Missouri City

Case Number: 01-14-00641-CR

Judge: Harvey Brown

Court: Court of Appeals For The First District of Texas

Plaintiff's Attorney: John J. Harrity III
John F. Healey, Jr.
Jason Bennyhoff  

Defendant's Attorney: Kristen Jernigan  

Description: Leiah Jackson and her boyfriend, Yancey Daniels, lived together in the back
unit of a duplex in Missouri City. The property was owned by Leiah’s mother,
Pamela Jackson, who lived in the front unit.
One early fall morning, around 12:30 a.m., Pamela heard a loud noise at the
front of her unit, opened the front door, and found Leiah, then eight-and-a-half
months pregnant, lying on the ground, bleeding from multiple stab wounds.
Pamela called 911.
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Pamela testified that, while the two waited for the paramedics, Leiah’s eyes
began to close, and Leiah told her, “Yancey’s cousin did this and Yancey’s not
here.” Leiah was taken to a Houston hospital, where she and the baby were
pronounced dead.
When the police arrived at the duplex, they found Yancey’s SUV with blood
spattered on the inside and outside of the vehicle. The SUV had a window broken
out, but there was no broken glass on the ground, indicating the window had been
broken elsewhere. The police recovered four spent .380 caliber bullet casings from
inside the vehicle and found gunshot residue in the center console. In the front
yard, the police found a .380 caliber handgun and a trail of fresh blood between the
two duplex units.
Inside the back unit, the police found blood on light switches and doorknobs
leading to the back bedroom—where, according to Pamela, Yancey had recently
said he kept a large amount of cash. The police observed that the items in the
room’s closet appeared to be disturbed, with a container pulled out and its contents
emptied onto the floor. The police further observed that the blood trail continued
from the back bedroom out the backdoor to the backyard, where part of the fence
was down, indicating that the perpetrator had exited through the backdoor.
A neighbor, Matthew Fields, told the police that around the time of the
stabbing, he heard a woman scream and then a loud “thud,” like someone landing
4

after jumping over a fence. Matthew said he then saw a figure in the yard next to
his, directly behind the duplex, walking away from the scene. Matthew said that he
believed the figure was tall because his head was above the fence line.
Yancey’s body is found at a nearby apartment complex

Later that day, the police found Yancey’s body in the courtyard of an
apartment complex in nearby Houston. Yancey had been shot seven times at close
range, including twice in the head. The police found a fired bullet and fresh,
broken automotive glass at the scene of Yancey’s murder.
Cornelius becomes the primary suspect

As the police investigated the murders, Cornelius quickly became the
primary suspect. The police determined that Cornelius and Yancey were first
cousins and that Cornelius was the only cousin who Yancey saw on a regular
basis.2
They further determined that, on the afternoon before the murders, Cornelius
met with Yancey and Leiah at the house of Yancey’s father, Bill Daniels. Bill
testified that Cornelius had been coming to his house looking for Yancey for about
a month, and Yancey appeared to have been avoiding him. According to Bill, when
Cornelius arrived that afternoon, he seemed agitated. When Yancey, Leiah, and
Cornelius finished visiting with Bill, the three of them drove off in Yancey’s SUV. 2 Most of Yancey’s cousins lived in Abilene.

5

Later that evening, sometime after 10:30 p.m., Cornelius returned to Bill’s
house in Yancey’s SUV to pick up a car battery. Cornelius said they needed it to
jump Yancey’s other car, a Mitsubishi. Yancey did not come into Bill’s house, and
Bill never saw whether Yancey was actually with Cornelius.
At 11:36 p.m., Cornelius called his friend, Marina Honeycutt, from
Yancey’s phone. Marina testified that Cornelius told her that he was buying a
Mitsubishi from his cousin (presumably Yancey) and that he was going to come
see her that night at her apartment—which was in the same complex where
Yancey’s body was later found. Marina further testified that Cornelius never
actually visited her that night.
In the early morning following the murders, around 4:00 a.m., Bill’s
daughter and Yancey’s sister, Tarhonda Daniels, learned that Leiah had been
stabbed and that Yancey was missing. She drove to Bill’s house and told him what
had happened to Leiah.
Around 7:00 a.m., Bill and Tarhonda drove to Cornelius’s apartment,
looking for Yancey.3 When they told Cornelius that Leiah had been stabbed and
that both she and her baby were dead, Cornelius responded, “The baby is dead,
too?” Bill testified that he believed Cornelius was surprised that the baby was
dead, but not Leiah. Tarhonda testified that she believed Cornelius was feigning 3 Yancey’s body was not found until 11:00 a.m.

6

shock at hearing the news. When they asked about Yancey, Cornelius told them
that he had been dropped off by Yancey around 10:00 p.m. the night before, went
to bed, and had not heard from him since. Tarhonda testified that Cornelius did not
appear to have been sleeping when they arrived.
Later that morning, while Bill and Tarhonda were still looking for Yancey,
Cornelius drove to Bill’s house and spoke with Bill’s friend, Robbie Cooper.
Robbie told Cornelius that Bill and Tarhonda had driven to somewhere on West
Airport Boulevard, which (unbeknownst to Robbie) was the main street of the
apartment complex where Yancey’s body was later found. When Cornelius heard
this, he became visibly upset and began hitting the washing machine and dryer.
That afternoon, the police searched Cornelius’s apartment, which he shared
with his then-girlfriend, Ana Pina. The police found several spent .380 caliber
bullet casings. The police then searched the car that Cornelius had driven to Bill’s
house the day before and found more .380 caliber bullet casings.
A firearms analysis later showed that the casings found in Cornelius’s
apartment and car and the bullets recovered from Yancey’s body and found at the
apartment complex where his body was located were all fired by the handgun
found at the duplex. The analysis further showed that the handgun’s magazine
spring was broken and that it had problems extracting spent casings, causing it to
jam.
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Later that afternoon, the police interviewed Cornelius. During the interview,
the police noticed that Cornelius’s knuckles were red and swollen and that he had
scratches on his hands. Cornelius initially denied owning a handgun but later
admitted that he had owned one after the police told him they had found casings in
his apartment. Cornelius told the police that he had spent the previous evening with
Leiah and Yancey but returned home around 10:20 p.m.
The police then interviewed Ana. Ana said that Cornelius told her to tell
them that he had arrived home the previous evening at 10:20 p.m., even though she
was asleep and did not know what time he actually returned.
Cornelius is indicted, tried, and convicted
Cornelius was indicted for the capital murder of Yancey, Leiah, and their
unborn child. The State’s theory was that Cornelius first shot Yancey and then
stabbed Leiah. The State presented evidence from the duplex, the apartment
complex where Yancey’s body was found, and Cornelius’s apartment. The State
also presented testimony from multiple witnesses, including an inmate with whom
Cornelius had spent a significant amount of time while awaiting trial, Tyler Quinn,
who testified in detail that Cornelius had confessed to the murders.
The jury found Cornelius guilty, and the trial court sentenced him to
confinement for life. Cornelius appeals.
8

Legal Sufficiency
In his first issue, Cornelius contends that there is insufficient evidence that
he murdered Yancey, Leiah, or their unborn child. In his third issue, Cornelius
contends that, even if there is sufficient evidence that he murdered Yancey, Leiah,
and their unborn child, there is insufficient evidence that he committed the murders
either during the same criminal transaction or pursuant to the same scheme or
course of conduct. We will consider these two issues together.
A. Standard of review
When reviewing the sufficiency of the evidence, we view all the evidence in
the light most favorable to the verdict to determine whether any rational factfinder
could have found the essential elements of the offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); see Adames v. State, 353
S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that Jackson standard is only
standard to use when determining sufficiency of evidence). The jury is the
exclusive judge of the facts and the weight to be given to the testimony. See
Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008).
We afford almost complete deference to the jury’s credibility
determinations. Lacon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). We
may not reevaluate the weight and credibility of the evidence or substitute our
judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex.
9

Crim. App. 2007). Rather, we determine “whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Jackson,
443 U.S. at 319; Thornton v. State, 425 S.W.3d 289, 303 (Tex. Crim. App. 2014).
Circumstantial evidence is as probative as direct evidence in establishing
guilt, and circumstantial evidence alone can be sufficient to establish guilt. Sorrells
v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011); Clayton, 235 S.W.3d at
778. “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 v. State, 214 S.W.3d 9, 13 (Tex.
Crim. App. 2007). “Evidence is legally insufficient when the ‘only proper verdict’
is acquittal.” Nelson v. State, 405 S.W.3d 113, 122 (Tex. App.—Houston [1st
Dist.] 2013, pet. ref’d) (quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982)).
B. The evidence is legally sufficient to support Cornelius’s conviction
Cornelius was charged with capital murder under Section 19.03(a)(7) of the
Penal Code. Section 19.03(a)(7) provides that a person commits capital murder if
he “commits murder as defined under Section 19.02(b)(1)” and “murders more
than one person” either “during the same criminal transaction” or “during different
10

criminal transactions but . . . pursuant to the same scheme or course of
conduct . . . .”4 TEX. PENAL CODE § 19.03(a)(7).
The difference between murders that occur “during the same criminal
transaction” and murders that occur “pursuant to the same scheme or course of
conduct” is “the degree of ‘the continuity of the killing.’” Coble v. State, 871
S.W.2d 192, 198 (Tex. Crim. App. 1993) (quoting Rios v. State, 846 S.W.2d 310,
314 (Tex. Crim. App. 1992)). Murders occur “during the same criminal
transaction” when the evidence shows a “continuous and uninterrupted chain of
conduct occurring over a very short period of time . . . .” Heiselbetz v. State, 906
S.W.2d 500, 506 (Tex. Crim. App. 1995) (quoting Vuong v. State, 830 S.W.2d
929, 941 (Tex. Crim. App. 1992)); see Coble, 871 S.W.2d at 198–99 (holding that
murders occurred “during the same criminal transaction” when they “occurred in
close proximity to each other, on the same road, within a few hours of each other,
in a continuous and uninterrupted series of events”). Murders occur “pursuant to
the same scheme or course of conduct” when the evidence shows a break in
conduct but an “over-arching objective or motive . . . .” Feldman v. State, 71
S.W.3d 738, 754 (Tex. Crim. App. 2002).
4 Section 19.02(b)(1), in turn, provides that a person commits murder if he “intentionally or knowingly causes the death of an individual . . . .” TEX. PENAL CODE § 19.02(b)(1).

11

The trial court’s charge instructed the jury to find Cornelius guilty of capital
murder if it determined beyond a reasonable doubt that Cornelius murdered
Yancey, Leiah, and their unborn baby either during the same criminal transaction
or pursuant to the same scheme or course of conduct by shooting Yancey and
stabbing Leiah.
At trial, the State presented testimony from numerous witnesses, including:
 Leiah’s mother, Pamela, who testified that Yancey said he kept a large amount of cash in the back bedroom closet and that Leiah’s dying declaration was “Yancey’s cousin did this”;

 Yancey’s father, Bill, who testified that Cornelius was Yancey’s first cousin, the only cousin Yancey saw on a regular basis, and the only cousin Yancey was with the evening he and Leiah were murdered and that, in the month leading up to the murders, Cornelius had been looking for Yancey and Yancey had been avoiding Cornelius;

 Yancey’s sister, Tarhonda, who testified that Cornelius appeared to feign shock when she and Bill told him that Leiah had been stabbed and that he did not appear to have been sleeping when they arrived at his apartment that morning;

 Yancey, Leiah, and Pamela’s neighbor, Matthew, who testified that, on the evening of the stabbing, he heard a scream and a thud and then saw a tall figure in the yard directly behind the duplex, walking away from the scene;

 Cornelius’s friend, Marina, who testified that she received a call from Cornelius from Yancey’s phone the evening of the murders, and that Cornelius told her he was going to visit her at her apartment complex, which is where Yancey’s body was later found;

 Marina’s roommate, Savannah Weaver, who testified that Cornelius was known to carry a handgun and a knife, the latter of which was capable of inflicting the types of wounds received by Leiah;
12


 Cornelius’s girlfriend and roommate, Ana, who testified that Cornelius told her to tell police that he had arrived home at 10:20 p.m. on the night of the murders even though she was asleep and did not know what time he actually returned;

 Bill’s friend, Robbie, who testified that Cornelius became upset when he learned that Bill and Tarhonda had driven to the apartment complex where Yancey’s body was later found;

 the jailhouse informant, Tyler, who testified in detail about Cornelius’s confession to the murders; and

 Cornelius himself, who testified that he is tall—between 6’7” and 6’8”—and who admitted, during cross-examination, that he owned two .380 handguns, had given both guns to Yancey at various times, and lied about what happened to these guns in his statement to the police.

The State also presented numerous pieces of physical evidence recovered
from the two crime scenes and Cornelius’s apartment, which connected the
murders, reflected how and when they occurred, and indicated that Cornelius was
the perpetrator. This evidence included:
 the firearms analysis, which showed that the .380 caliber bullets recovered from Yancey’s body and the spent .380 caliber casings found in Cornelius’s apartment were all fired from the .380 caliber handgun found in the front yard of the duplex and that the gun had a broken magazine spring and problem extracting spent casings, indicating that the handgun may have jammed at some point in the night;

 the gunshot residue inside Yancey’s SUV, the SUV’s missing driver’s side window, and the fresh, broken automotive glass found at the apartment complex where Yancey’s body was found, which indicated that Yancey was shot inside the SUV while parked at the apartment complex and that the SUV was then driven to the duplex by the perpetrator, where he stabbed Leiah; and

13

 the blood trail inside the duplex, disturbed state of the back bedroom closet, and the downed part of the backyard fence, which indicated that the perpetrator reentered the duplex after stabbing Leiah, searched for something inside the back bedroom closet, and then exited through the backyard.

From this evidence, a rational factfinder could have found that, on the night
of the murders, Cornelius and Yancey drove Yancey’s SUV to the apartment
complex, where Cornelius shot Yancey and left his body. Cornelius then drove
Yancey’s SUV to the duplex, where he entered the back unit, found Leiah and
attempted to shoot her but his gun jammed. He then took out his knife and chased
her outside, where he stabbed her sixteen times. He went back inside, searched for
the cash Yancey said he kept in the backroom closet, and then exited through the
backdoor, jumped the backyard fence, and fled the scene on foot. Thus, a rational
factfinder could have found that Cornelius murdered Yancey, Leiah, and their
unborn child either during the same criminal transaction or pursuant to the same
scheme or course of conduct.
We hold that there is legally sufficient evidence to support Cornelius’s
conviction. Therefore, we overrule Cornelius’s first and third issues.
Jury Unanimity
In his second issue, Cornelius argues that he was egregiously harmed
because the charge violated the unanimity requirement by failing to require the
14

jury to agree on which complainants he murdered or the method by which he
murdered them.
A. Applicable law and standard of review
In all criminal cases, “the jury must be unanimous in finding every
constituent element of the charged offense . . . .” Saenz v. State, 451 S.W.3d 388,
390 (Tex. Crim. App. 2014) (quoting Jourdan v. State, 428 S.W.3d 86, 94 (Tex.
Crim. App. 2014)). When a defendant is charged with capital murder of multiple
persons under Section 19.03(a)(7) of the Penal Code, the unanimity requirement is
violated if the charge does not require the jury to agree on which alleged victims
the defendant murdered. See Saenz, 451 S.W.3d at 391–92 (holding that jury
instruction in capital murder prosecution arising from deaths of five victims
violated defendant’s right to unanimous jury verdict because instruction did not
specify murder of any one victim as predicate murder and did not require jury to
specify which alleged victims defendant had murdered).
We review a claim of jury charge error in two steps. Serrano v. State, 464
S.W.3d 1, 7 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d). First, we determine
whether there is error in the jury charge. Id. Second, if there is error, we determine
whether sufficient harm was caused by that error to require reversal. Id.
“The degree of harm necessary for reversal depends upon whether the error
was preserved.” Rodriguez v. State, 456 S.W.3d 271, 280 (Tex. App.—Houston
15

[1st Dist.] 2014, pet. ref’d) (quoting Hutch v. State, 922 S.W.2d 166, 171 (Tex.
Crim. App. 1996)). If error is preserved, reversal is required upon a showing of
“any harm, regardless of degree . . . .” Rodriguez, 456 S.W.3d at 280.
But if error is not preserved, then reversal is required only upon a showing
of “egregious harm.” Id. (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1984)). Egregious harm is a “high and difficult standard” to satisfy.
Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015) (quoting Reeves
v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). Charge error results in
egregious harm when “it affects the very basis of the case, deprives the defendant
of a valuable right, or vitally affects a defensive theory.” See Allen v. State, 253
S.W.3d 260, 264 (Tex. Crim. App. 2008). The appellant must show actual rather
than theoretical harm to support a finding of egregious harm. Villarreal, 453
S.W.3d at 433; Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011).
B. Failure to require unanimity as to victims was harmless
The charge instructed the jury to find Cornelius guilty of capital murder
upon finding that he committed one of four combinations of murders. Specifically,
the charge instructed the jury to find Cornelius guilty upon finding that he
murdered (1) Leiah and the baby, (2) Leiah and Yancey, (3) Yancey and the baby,
or (4) Yancey, Leiah, and the baby.
16

Cornelius argues that the charge was erroneous because it did not require the
jury to agree on which complainants he murdered. Assuming without deciding that
Cornelius is correct, we must assess the error for egregious harm because
Cornelius did not object in the trial court that the charge did not require a
unanimous verdict. In assessing whether harm was egregious, “we consider: (1) the
charge; (2) ‘the state of the evidence, including contested issues and the weight of
the probative evidence’; (3) the parties’ arguments; and (4) all other relevant
information in the record.” Cosio, 353 S.W.3d at 777 (quoting Hutch, 922 S.W.2d
at 171) (brackets omitted).
1. Charge
The charge permitted the jury to convict Cornelius for capital murder
without agreeing on which complainants he murdered. Assuming this is error, this
factor weighs in favor of finding egregious harm. See Arrington v. State, 451
S.W.3d 834, 841 (Tex. Crim. App. 2015) (jury instructions weighed in favor of
finding egregious harm because they permitted non-unanimous verdicts).
2. State of evidence
The evidence weighs against egregious harm when the defendant could not
have committed one offense without committing the other. See Jourdan, 428
S.W.3d at 96 (finding no egregious harm where unanimity error existed but
defendant could not have committed one offense without committing the other).
17

There is no evidentiary basis from which a reasonable jury could have determined
that the person who killed Leiah was different from the person who killed the baby,
and there is compelling evidence (detailed above) that the person who killed
Yancey also killed Leiah and the baby. The state of the evidence weighs strongly
against finding egregious harm.
3. Parties’ arguments
At trial, Cornelius’s defense was all-or-nothing. He did not argue that he
killed just one of the three victims. Rather, he argued that he did not kill any of
them. The jury manifestly rejected Cornelius’s all-or-nothing defense, and this
weighs against finding egregious harm. See Arrington, 451 S.W.3d at 841–44.
4. Other relevant information
There are not any other relevant issues that have a substantial bearing on our
analysis. This factor weighs neither for nor against finding egregious harm. See id.
at 844.
Thus, the charge itself is the only factor that potentially weighs in favor of
harm. The state of the evidence and the parties’ arguments weigh in favor of
finding no egregious harm, and there are no other relevant issues that have a
substantial bearing on the case. We hold that Cornelius was not egregiously
harmed by the presumed charge error. See Cosio, 353 S.W.3d at 777–78 (finding
no egregious harm where only charge error factor weighed in favor of harm);
18

Arrington, 451 S.W.3d at 845 (same); see also Saenz v. State, 479 S.W.3d 939,
953–54 (Tex. App.—San Antonio 2015, pet. ref’d) (holding error in failing to
require jurors to agree on any one specific murder that would have served as the
predicate murder necessary for capital murder conviction was not egregiously
harmful).
C. Failure to require unanimity as to method was not error
Cornelius further contends that the charge did not require the jury to agree
on the method of capital murder: some jurors could have found that the murders
were committed “during the same criminal transaction” while others could have
found that the murders were committed “pursuant to the same scheme or course of
conduct.” See TEX. PENAL CODE § 19.03(a)(7). Cornelius’s contention is correct
but irrelevant. “The unanimity requirement is not violated by instructing the jury
on alternate theories of committing the same offense . . . .” Saenz, 451 S.W.3d at
390 (quoting Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim. App. 2004)); see
Davis v. State, 313 S.W.3d 317, 342 (Tex. Crim. App. 2010) (“Nothing prohibits a
single capital murder from containing alternate underlying offenses that are the
same statutory offense but with different victims or different underlying methods
of commission, so long as the same victim is alleged with respect to the predicate
murder.”).
Therefore, we overrule Cornelius’s second issue.
19

Exclusion of Testimony and Evidence
In his fourth, fifth, and sixth issues, Cornelius contends that the trial court
violated his constitutional right to present a full and complete defense
by (1) excluding testimony from four inmates, Sean Adams, Rodney Finister,
Maikel Valdes Amaro, and Miguel Arreola; (2) excluding testimony from Tyler
Quinn’s ex-girlfriend, Jennifer Watts; and (3) excluding evidence that the lead
detective, Sgt. B. Roberts, had once been suspended by the police department.
1. Applicable law
“Erroneous evidentiary rulings rarely rise to the level of denying the
fundamental constitutional rights to present a meaningful defense.” Potier v. State,
68 S.W.3d 657, 663 (Tex. Crim. App. 2002). The Court of Criminal Appeals has
explained that “there are two distinct scenarios in which rulings excluding
evidence might rise to the level of a constitutional violation: 1) a state evidentiary
rule which categorically and arbitrarily prohibits the defendant from offering
otherwise relevant, reliable evidence which is vital to his defense; and 2) a trial
court’s clearly erroneous ruling excluding otherwise relevant, reliable evidence
which ‘forms such a vital portion of the case that exclusion effectively precludes
the defendant from presenting a defense.’” Wiley v. State, 74 S.W.3d 399, 405
(Tex. Crim. App. 2002) (quoting Potier, 68 S.W.3d at 665).
20

Cornelius contends that the trial court’s rulings fall under the second
category. “In the second category, the rule itself is appropriate, but the trial court
erroneously applies the rule to exclude admissible evidence to such an extent that it
effectively prevents the defendant from presenting his defensive theory. In other
words, the erroneous ruling goes to the heart of the defense.” Wiley, 74 S.W.3d at
405.
2. Exclusion of inmates’ testimony
Cornelius made an offer of proof in which the inmates testified that
Cornelius maintained his innocence while incarcerated in jail awaiting trial.
Cornelius contends that the inmates’ testimony was necessary to correct the
“false impression” that he had only recently denied committing the murders. But
there was plenty of other evidence available to correct any “false impression” the
State may have created, such as the recording of Cornelius’s initial interview with
the police, in which he maintained his innocence. Indeed, Cornelius himself
testified that he always claimed he was innocent.
Cornelius further contends that the inmates’ testimony was necessary to
rebut Tyler’s testimony that Cornelius did not talk to any other inmate about his
case. But again, there was other evidence he could have presented to rebut Tyler’s
testimony, such as his own testimony. And even if there was no other evidence to
rebut Tyler’s testimony that Cornelius only spoke with him about the case, the
21

exclusion of the inmates’ testimony did not effectively prevent Cornelius from
presenting his defensive theory. Id. Whether Cornelius spoke with the other
inmates is not an issue that went to the heart of his defense. Id. The central issue
concerning Tyler was whether Cornelius confessed to him that he committed the
murders. But none of the inmate testimony rebutted Tyler’s testimony regarding
Cornelius’s alleged confession. None of the inmates testified that Cornelius did not
confess the offense to Tyler; they only testified that he denied committing the
offense to them.
Cornelius has failed to show that the exclusion of the inmates’ testimony
effectively prevented him from presenting the heart of his defensive theory. See id.
We hold that the trial court’s exclusion of their testimony did not violate
Cornelius’s constitutional rights.
3. Exclusion of informant’s ex-girlfriend’s testimony
Cornelius made an offer of proof in which Jennifer testified that Tyler had
(1) lied to the jury in Cornelius’s trial about the amount of money he received from
the robbery for which he was then under indictment and (2) stolen items from her
and her mother. Cornelius contends that the trial court’s exclusion of this testimony
violated his constitutional right to present a full and complete defense. Cornelius
argues that the testimony was necessary to show that Tyler was liar. We disagree.
22

At trial, Jennifer was permitted testify that Tyler had a reputation for
dishonesty. Cornelius offered his own testimony, which also rebutted Tyler’s
testimony. And Tyler himself admitted that he hoped to receive leniency in his
aggravated robbery case for testimony against Cornelius. From all this, the jury
could have readily inferred that Tyler had an incentive to lie and did in fact lie
about Cornelius’s confession.
Like the exclusion of the inmates’ testimony, Cornelius has failed to show
that the exclusion of Jennifer’s testimony effectively prevented him from
presenting the heart of his defensive theory. See id. We hold that the exclusion of
Jennifer’s testimony did not violate Cornelius’s constitutional rights.
4. Exclusion of evidence of detective’s previous suspension
Cornelius contends that the trial court erred in excluding evidence that the
lead detective, Sgt. B. Roberts, had once been suspended by the police department
for failing to investigate other leads in previous murder cases. Cornelius contends
that the evidence was necessary to show that Sgt. Roberts failed to investigate
other leads in this case and that the trial court’s ruling violated his constitutional
right to present a full and complete defense. We disagree.
Cornelius has not shown that the trial court’s exclusion of evidence
concerning Sgt. Roberts’s suspension effectively prevented him from presenting
the heart of his defensive theory. See id. Cornelius did not require evidence of Sgt.
23

Roberts’s prior suspension to show that Sgt. Roberts did not investigate other leads
in his case; all he had to do was question Sgt. Roberts and the other detectives
about which leads they did and did not investigate. We hold that the exclusion of
evidence of Sgt. Roberts’s prior suspension did not violate Cornelius’s
constitutional rights. Therefore, we overrule Cornelius’s fourth, fifth, and sixth
issues.
Reporter’s Record
In his seventh issue, Cornelius contends that he “has been deprived of a true
and accurate record of his trial.”
Appellate Rule 34.6(f) establishes when an appellant is entitled to a new trial
due to the loss or destruction of the reporter’s record. Under Rule 34.6(f), an
appellant is entitled to a new trial:
(1) if the appellant has timely requested a reporter’s record;

(2) if, without the appellant’s fault, a significant exhibit or a significant portion of the court reporter’s notes and records has been lost or destroyed or—if the proceedings were electronically recorded—a significant portion of the recording has been lost or destroyed or is inaudible;

(3) if the lost, destroyed, or inaudible portion of the reporter’s record, or the lost or destroyed exhibit, is necessary to the appeal’s resolution; and

(4) if the lost, destroyed or inaudible portion of the reporter’s record cannot be replaced by agreement of the parties, or the lost or destroyed exhibit cannot be replaced either by agreement of the parties or with a copy determined by the trial court to
24

accurately duplicate with reasonable certainty the original exhibit.

TEX. R. APP. P. 34.6(f); see Routier v. State, 112 S.W.3d 554, 571 (Tex. Crim.
App. 2003) (explaining that “the appellant must show (1) that a significant portion
of the record was lost or destroyed, (2) through no fault of her own, (3) that the
missing portion of the record is necessary to her appeal, and (4) the parties cannot
agree on the record”).
The reporter’s record in this case is over 70 volumes and thousands of pages
long. Cornelius argues that he is entitled to a new trial because 17 pages include
discussions that are marked as inaudible instead of being fully transcribed. We
have reviewed each page cited by Cornelius.
One page is a bench conference where the trial court and lawyers discuss
whether Cornelius may cross-examine a witness about an allegedly prior
inconsistent statement. Cornelius does not explain why the untranscribed portion of
the bench conference is necessary to resolve his appeal or to identify the specific
issue to which it relates. Further, bench conferences do not have to be recorded at
trial if not specifically requested, and Cornelius has not shown that he ever
requested that bench conferences be recorded in this case.
Four pages contain discussions of the trial court’s and lawyers’ upcoming
potential scheduling conflicts and other non-substantive issues, such as whether to
25

release an alternate juror to allow her to go on vacation and whether to dismiss a
seated juror who had been sleeping.
Nine pages contain testimony from Tyler, Cornelius, and one of Cornelius’s
former fellow inmates, Eddie Morales.5 None of the testimony is obscured or
otherwise rendered unintelligible by the untranscribed portions, and most of it is
not even relevant to the issues on appeal.
Three pages contain parts of the charge conference when the trial court and
lawyers are discussing whether to include a limiting instruction concerning
evidence of a prior conviction for aggravated robbery. Again, none of the
discussion is obscured by the untranscribed portions, and the topic under
discussion is not relevant to this appeal.
We hold that Cornelius has failed to show that the untranscribed portions of
the record, presumably due to inaudible speaking, are necessary to resolve his
appeal. See TEX. R. APP. P. 34.6(f)(3); Routier, 112 S.W.3d at 571. Therefore, we
overrule Cornelius’s seventh issue.
5 Tyler’s testimony concerns the conditions of his probation and whom he lived with when he was in high school; Cornelius’s testimony concerns whether he told his girlfriend, Ana, to lie about when he returned home the night of the murder; and Eddie’s testimony concerns whether he and Cornelius ever discussed the case.

26

Competency to Stand Trial
In his eighth issue, Cornelius contends that the trial court abused its
discretion by permitting the trial proceedings to continue after he became
incompetent.
“A criminal defendant who is incompetent may not be put to trial without
violating due process.” Turner v. State, 422 S.W.3d 676, 688 (Tex. Crim. App.
2013). Under Article 46B.003 of the Code of Criminal Procedure, a defendant is
incompetent to stand trial if he does not have: (1) sufficient present ability to
consult with his lawyer with a reasonable degree of rational understanding or (2) a
rational and factual understanding of the proceedings against him. TEX. CODE
CRIM. PROC. art. 46B.003(a); see also Turner, 422 S.W.3d at 689. A defendant is
presumed competent to stand trial unless proved incompetent by a preponderance
of the evidence. TEX. CODE CRIM. PROC. art. 46B.003(b).
On suggestion that the defendant may be incompetent to stand trial, the trial
court must informally inquire whether there is some evidence from any source that
would support a finding that the defendant may be incompetent to stand trial. Id.
art. 46B.004(c); see Turner, 422 S.W.3d at 691–92 (“Under our current statutory
scheme, any ‘suggestion’ of incompetency to stand trial calls for an ‘informal
inquiry’ to determine whether evidence exists to justify a formal competency
trial.”). If after an informal inquiry, the trial court determines that evidence exists
27

to support a finding of incompetency, the trial court must appoint one or more
disinterested experts to examine the defendant. TEX. CODE CRIM. PROC. arts.
46B.005(a), .021(b). If the defendant wishes to be examined by an expert of his
own choice, the trial court, on timely request, must provide the expert with
reasonable opportunity to examine the defendant. Id. art. 46B.021(f).
The statute lists factors that the expert must consider during the examination
and in any report based upon the examination, and also sets out the required
contents of the expert’s report. Id. arts. 46B.024, .025. During the examination and
in the report, the expert must consider the capacity of the defendant during
criminal proceedings to: (A) rationally understand the charges against the
defendant and the potential consequences of the pending criminal
proceedings; (B) disclose to counsel pertinent facts, events, and states of
mind; (C) engage in a reasoned choice of legal strategies and
options; (D) understand the adversarial nature of criminal proceedings; (E) exhibit
appropriate courtroom behavior; and (F) testify. Id. art. 46B.024(1). The expert’s
report must state an opinion on a defendant’s competency or incompetency to
stand trial or explain why the expert is unable to state such an opinion. Id. art.
46B.025(a).
In the middle of trial, defense counsel raised the issue of Cornelius’s
competency. After an informal inquiry, the trial court determined that some
28

evidence existed to support a finding of incompetency and ordered an examination
of Cornelius. Id. arts. 46B.005(a), .021. The trial court appointed a psychiatrist, Dr.
Allen Axelrad, to perform the examination. Id. art. 46B.021. The trial court
permitted Cornelius’s expert of choice, another psychiatrist, Dr. George Glass, to
perform an examination as well. Id. art. 46B.021(f). The trial court then held a
hearing at which both psychiatrists testified.
Dr. Axelrad testified that he found that Cornelius had: (1) mild deficits in his
rational understanding of the charges, the potential consequences, and the pending
proceedings; (2) mild-to-moderate deficits in his capacity to disclose to counsel
pertinent facts, events, and states of mind; (3) a moderate-to-severe deficit in his
capacity to engage in a reasoned choice of legal strategies and options; (4) a mild
deficit in his understanding of the adversarial nature of the proceedings; (5) a mild
deficit in his ability to exhibit appropriate courtroom behavior; (6) a moderate-to
severe deficit in his ability to testify; and (7) a moderate deficit in his capacity to
engage with counsel.
Dr. Axelrad testified that, in his opinion, although Cornelius suffered from
certain deficits, he was nevertheless competent to stand trial because he had
sufficient “residual functional capacity.” Dr. Axelrad explained that even
defendants with serious mental disabilities can be competent to stand trial due to
29

their “residual functional capacity” and that some of Cornelius’s impairment was
due to him discontinuing his medications.
Dr. Glass testified that, in his opinion, Cornelius was incompetent. Dr. Glass
testified that Cornelius provided him a “rational explanation” of “why he was not
guilty and why he did not think he should be found guilty.” But he further testified
that Cornelius was unable to engage in a reasoned choice of legal strategies and
options. According to Dr. Glass, although Cornelius claimed he was innocent, he
would not work with his attorneys because he was convinced he was going to be
convicted and therefore wanted to make sure he received the death penalty—which
he preferred to life in prison—by testifying on his own behalf in a harmful manner.
Dr. Glass testified that, over the years, Cornelius had attempted suicide numerous
times and that he believed the trial would be an effective way to end his life. Dr.
Glass further testified that, without medication, Cornelius might “lose control”
while testifying at trial.
At the end of the hearing, the trial court ruled that Cornelius was competent
to stand trial. In making its ruling, the trial court stated it gave greater weight to the
testimony of Dr. Axelrad:
I’ve looked at the doctors’ reports. I’ve listened to their testimony. Dr. Axelrad’s assessment is clear; without any hesitation, he is—the defendant is competent in this matter. And I—I’m not going to diminish anybody, but Dr. Axelrad did all the heavy lifting in this. He administered the tests.

30

The trial court explained that its ruling was based primarily on Dr. Axelrad’s
finding that Cornelius had sufficient residual functional capacity:
But to me, the key in this is the phrase, residual functional capacity. And what Dr. Axelrad was saying that in spite of having a mental disease, a schizoaffective disorder, that this defendant has the residual functional capacity for competency which is part just due to intellect and perhaps some determination in the face of probably difficult odds, but at the same time he’s overcome. I do find him to be competent.

And the trial court noted that he took into account Cornelius’s refusal to take
medication:
He can be better performing if he takes his medications and more able to help himself, and particularly if he were to make a determination regarding testimony. . . . I do not think that the law is that we allow someone to direct the trial based upon their refusal or lack of refusal to take medication when that medication can do nothing but help; and in this case, he does not reach the level of incompetency.6

On appeal, Cornelius argues that the trial court abused its discretion by
failing to give greater weight to the testimony of Dr. Glass. But as the factfinder, it
was the trial court’s prerogative to make credibility determinations and to elect to
give greater weight to the testimony of Dr. Axelrad. We overrule Cornelius’s
eighth issue.

Outcome: We affirm the trial court’s judgment.

Plaintiff's Experts:

Defendant's Experts:

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