Date: 02-19-2017

Case Style:

Case Number: 02-15-00377-CR

Judge: Bill Meier

Court: COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

Plaintiff's Attorney:

Mark Kratovil
Debra A. Windsor

Defendant's Attorney:

Leigh W. Davis

Description: Antonio Briones was on his way to work on the morning of Saturday,
October 26, 2013, when he stopped at a nearby gas station to purchase coffee,
cigarettes, and fuel for his car. Because he had been paid the day before,
Briones was carrying approximately $500 cash in his wallet. As Briones was
pumping gasoline into his car, Jacquet approached him from behind and placed
a hand on his back. In response, Briones turned around and saw Jacquet
holding a knife. Jacquet then began to attack and stab Briones. According to
Briones, while this attack occurred, Jacquet dug through Briones’s pockets and
grabbed everything he could. As the two continued to struggle, Briones’s wallet
fell out of his front pocket, and Jacquet grabbed it off of the ground and fled.
Officer Justin Tullis of the Fort Worth Police Department testified that he
was patrolling the area near the gas station at the time, when several people
flagged him down. Immediately upon pulling into the station, Tullis said that he
could see Briones was covered in blood and that several people around him
were pointing to the west side of the station, indicating to Tullis that he needed to
go behind the gas station. As he proceeded toward the side of the gas station,
Tullis encountered a man walking on the sidewalk who pointed towards a car
parked on the side of the street. Looking towards the parked car, Tullis saw that
someone was lying back in the front seat but that the person’s head was still
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visible. With his gun drawn, Tullis gave a verbal command for the person to exit
the vehicle, but the vehicle was quickly driven away. With his partner driving
their patrol car, Tullis began a high-speed pursuit. The driver of the vehicle,
however, was able to get away, and Tullis returned to the gas station to
investigate what had occurred, while other officers continued to look for the
vehicle.
Following up on a tip received from a citizen informant, Police Officer
Gregory Stanley of the Fort Worth Police Department testified that he was able to
locate Jacquet’s abandoned vehicle. The vehicle had apparently been run up
onto a curb, the driver’s airbag had been deployed, and the car had sustained
some mild damage. On the floorboard of the car, Stanley found a black-handled
folding knife that had blood on it. Stanley also saw blood on the inside and the
outside of the car. According to Stanley, there was a small bundle of cash just
outside of the vehicle.
As Stanley continued to catalog evidence in and around Jacquet’s
abandoned vehicle, the police received a report that a person matching Jacquet’s
description had been seen running in a direction that indicated he was running
away from the abandoned vehicle and toward where police knew Jacquet lived.
Other officers pursued Jacquet, and after a struggle that eventually included
officers using a Taser to subdue him, police placed Jacquet under arrest.
Later, Briones was transported to John Peter Smith Hospital, where he
remained for the next four days. Briones’s injuries included a punctured lung,
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which required surgery to repair. During his stay at the hospital, law enforcement
presented Briones with a photo lineup and Briones identified Jacquet as the man
who had attacked him.
Because police had Tasered Jacquet, he also had been transported to
John Peter Smith Hospital. While he was receiving treatment, Detective Edward
Brian Raynsford of the Fort Worth Police Department interviewed him. This
interview was recorded. During the interview, Jacquet claimed that Briones had
swung a fist at him and that he had produced a knife to defend himself. Further,
Jacquet claimed that Briones had handed over his money willingly.
A DNA sample was obtained from Briones by Raynsford. Later, forensic
analysis of blood stains on the knife found in Jacquet’s car showed that Briones’s
DNA was present on the blade of the knife.
During trial, the defense presented two witnesses at the guilt-innocence
phase: Roy Molett and Jacquet. During direct examination, Molett averred that
he knew Jacquet “from [his] neighborhood.” He also averred that he knew
Briones as a person who purchased drugs in his neighborhood from both himself
and Jacquet. Defense counsel further introduced evidence that Molett had a
2010 conviction for aggravated robbery. Defense counsel also asked and
received a limiting instruction that evidence of Molett’s aggravated robbery
conviction was being submitted only for the jury’s ability to make its own
credibility determination regarding Molett.
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During the State’s cross-examination, and outside the presence of the jury
but while Molett was still on the stand, the State asked the court to be allowed to
question Molett about the fact that Jacquet was Molett’s codefendant in the 2010
aggravated-robbery conviction. The State argued that its right to question Molett
regarding this matter would be done for the purpose of showing that Molett had a
bias in Jacquet’s favor. The State specifically said that it would not go into the
facts of that case.
In the presence of the jury, the State elicited testimony from Molett that
Jacquet was his codefendant in the 2010 aggravated-robbery conviction and that
Jacquet’s brother, whom Molett had testified was someone whom Molett referred
to as a “brother,” visited Molett in jail on multiple occasions.
Jacquet testified that on the day of the assault, Molett had referred Briones
to him to purchase $20 worth of cocaine, which, according to Jacquet, he
supplied to Briones on credit with a promise of payment in the next few hours.
By Jacquet’s account, early the next morning as he was leaving his apartments,
Jacquet saw Briones at the gas station. Jacquet said that he confronted Briones
in an attempt to collect the $20. Jacquet averred that during the confrontation,
Briones made a “sudden move” that caused Jacquet to pull out his knife and a
struggle ensued. Jacquet said that once the struggle was over, he grabbed
Briones’s wallet and fled.
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The jury found Jacquet guilty of aggravated robbery with a deadly weapon,
and the trial court assessed punishment at forty-two years’ incarceration. The
trial court rendered judgment accordingly, and this appeal followed.

III. DISCUSSION
A. Jacquet’s Attempt to Introduce His Recorded Statement
In his first issue, Jacquet argues that the trial court abused its discretion by
not allowing him to introduce the entire recorded statement that he made to the
investigating detective. According to Jacquet, the State “opened the door” to the
introduction of the statement when Raynsford testified on direct that he had
considered all the evidence he had gathered when deciding whose DNA to test.
We review a trial court’s ruling to admit or exclude evidence under an
abuse of discretion standard. De La Paz v. State, 279 S.W.3d 336, 343 (Tex.
Crim. App. 2009). A trial court does not abuse its discretion if its evidentiary
ruling falls within the “zone of reasonable disagreement” and was correct under
any legal theory applicable to the case. Winegarner v. State, 235 S.W.3d 787,
790 (Tex. Crim. App. 2007). Because the trial court is usually in the best position
to decide whether evidence should be admitted or excluded, we must uphold its
ruling unless its determination was so clearly wrong as to lie outside the zone
within which reasonable persons might disagree. See id. (quoting Guzman v.
State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).
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As a general proposition, when a party introduces matters into evidence,
he invites the other side to reply to that evidence. Kincaid v. State, 534 S.W.2d
340, 342 (Tex. Crim. App. 1976). To this end, evidence that is otherwise
inadmissible may be admitted to correct a false impression left by the questioning
of a witness. See Wheeler v. State, 67 S.W.3d 879, 885 (Tex. Crim. App. 2002);
Jensen v. State, 66 S.W.3d 528, 538 (Tex. App.—Houston [14th Dist.] 2002, pet.
ref’d). But evidence is not admissible to correct a false impression created by
“prompting or maneuvering” by the proponent of the inadmissible evidence.
Lopez v. State, 928 S.W.2d 528, 532 (Tex. Crim. App. 1996); see Crenshaw v.
State, 125 S.W.3d 651, 656 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d)
(holding that false-impression exception does not “apply to permit opposing
counsel to rely on his own interrogation during cross-examination to contradict
the witness and then admit evidence of collateral matters which would otherwise
be inadmissible”).
Here, Jacquet argues that Raynsford’s testimony that he had considered
all the evidence he had gathered when deciding what evidence should be tested
for DNA and whose DNA should be tested somehow opened the door to allowing
him to introduce his recorded interview with the detective. Jacquet does not
articulate what false impression may have been left upon the jury, and we cannot
see how this general statement that all evidence was considered when
determining what to test for somehow left such an impression with the jury
regarding his interview with Raynsford. See Curtis v. State, 205 S.W.3d 656,
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660 (Tex. App.—Fort Worth 2006, pet. ref’d) (“We cannot see how the State’s
general questions about various DNA-test methodologies left the jury with a false
impression of anything.”). But more than that, the only indication in the record
that the jury had regarding whether Raynsford had interviewed Jacquet and
whether the interview had been recorded was elicited by Jacquet during cross
examination.2 And a party may not prompt or maneuver its way into the
introduction of inadmissible evidence. See Willich v. State, No. 05-02-01390-CR,
2003 WL 21860789, at *2 (Tex. App.—Dallas Aug. 8, 2003, no pet.) (“However,
because the alleged false impression was elicited by appellant, she was not
permitted to offer otherwise inadmissible extrinsic evidence to then correct it.”)
(not designated for publication). Thus, the trial court’s ruling excluding the
recorded interview was not so clearly wrong as to lie outside the zone within
which reasonable persons might disagree, and the trial court did not abuse its
discretion by not allowing Jacquet to introduce the recording. We overrule
Jacquet’s first issue.
B. Testimony Regarding Jacquet’s Prior Conviction
In his second issue, Jacquet argues that the trial court abused its
discretion by allowing the State to question Molett about the fact that Jacquet
was his codefendant in the 2010 aggravated-robbery conviction. Jacquet argues 2During its rebuttal, the State introduced portions of the interview. Jacquet does not complain about the admission of these portions of the interview, nor does he explain or discuss what portions of the interview were not later admitted at trial.
9
that this evidence was admissible under neither rule 613(b) nor rule 403 of the
rules of evidence. See Tex. R. Evid. 403, 613(b).
As discussed above, we review a trial court’s ruling to admit or exclude
evidence under an abuse of discretion standard. De La Paz, 279 S.W.3d at 343.
Rule 613(b) permits a witness to be cross-examined on specific instances
of conduct when those instances of conduct are used to establish a specific bias,
self-interest, or motive for testifying in a particular fashion. Tex. R. Evid. 613(b);
Hammer v. State, 296 S.W.3d 555, 563 (Tex. Crim. App. 2009). Under Rule
613(b), “[p]arties are allowed great latitude to show ‘any fact which would or
might tend to establish ill feeling, bias, motive and animus on the part of the
witness.’” Carpenter v. State, 979 S.W.2d 633, 634 (Tex. Crim. App. 1998)
(quoting London v. State, 739 S.W.2d 842, 846 (Tex. Crim. App. 1987)); see
Smith v. State, 236 S.W.3d 282, 292 (Tex. App.—Houston [1st Dist.] 2007, pet.
ref’d). The rule encompasses all facts and circumstances, which when tested by
human experience, tend to show that a witness may shade his testimony for the
purpose of helping to establish one side of the cause only. Carroll v. State, 916
S.W.2d 494, 497–98 (Tex. Crim. App. 1996) (citing Jackson v. State, 482 S.W.2d
864, 868 (Tex. Crim. App. 1972)). Among such facts and circumstances is the
witness’s familial or personal relationship with a party. E.g., Hanner v. State, 572
S.W.2d 702, 707 n.4 (Tex. Crim. App. 1978), cert. denied, 440 U.S. 961 (1979);
Vaughn v. State, 888 S.W.2d 62, 74–75 (Tex. App.—Houston [1st Dist.] 1994),
aff’d, 931 S.W.2d 564 (Tex. Crim. App. 1996).
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Here, evidence that Molett and Jacquet had previously been codefendants
in a prior conviction would have tended to show that Molett might be inclined to
shade his testimony for the purposes of establishing Jacquet’s presentation of
this case. See Ricondo v. State, 657 S.W.2d 439, 445 (Tex. App.—San Antonio
1983, no pet.) (“Evidence that the witness had been involved with the appellant in
prior narcotic activities would certainly be useful to the jurors in assessing any
bias, interest or motive the witness might have had to testify favorably for the
appellant.”).
Jacquet tacitly argues that the State “never told M[o]llet of the
circumstance or statements tending” to show his bias. But the record
demonstrates that Molett was fully aware that the State intended to ask him
about the fact that Jacquet was his codefendant in the 2010 conviction. Indeed,
the record demonstrates that Molett was on the stand for much of the discussion
between the State, defense counsel, and the trial court regarding the State’s
seeking to question Molett on the matter. The record also demonstrates that
Molett was represented by his own counsel during his time on the stand. It was
not until after a lengthy discussion in Molett’s presence that the State asked that
Molett be excused while the parties and the trial court discussed the limited
parameters under which the State would be allowed to question him regarding
Jacquet’s involvement in the 2010 conviction. And all of this occurred after
defense counsel had already impeached Molett with the 2010 aggravated-assault
conviction in an effort to preempt the State’s questioning Molett about it. It
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strains credulity to conclude that Molett did not know of the circumstances that
the State intended to question him about. Furthermore, defense counsel never
objected at trial that the State had not informed Molett regarding what it intended
to question him about.3
Jacquet also argues that even if the trial court did not abuse its discretion
by allowing the State to question Molett about Jacquet’s being his codefendant in
the 2010 conviction to show bias, the trial court nonetheless abused its discretion
because, according to Jacquet, the prejudicial effect of this evidence outweighed
its probative value. See Tex. R. Evid. 403.
The trial court is given wide latitude to admit or exclude evidence of
extraneous offenses. See Montgomery v. State, 810 S.W.2d 372, 390 (Tex.
Crim. App. 1990) (op. on reh’g); Poole v. State, 974 S.W.2d 892, 897 (Tex.
App.—Austin 1998, pet ref’d). A reviewing court must therefore recognize that
the trial court is in a superior position to gauge the impact of the relevant
evidence and not reverse a trial court’s ruling if it is within the “zone of
reasonable disagreement.” Mozon v. State, 991 S.W.2d 841, 844 (Tex. Crim.
App. 1999); Montgomery, 810 S.W.2d at 391. In balancing probative value and
unfair prejudice under rule 403, an appellate court presumes that the probative
value will outweigh any prejudicial effect. Montgomery, 810 S.W.2d at 389. It is 3We note that the foundation requirements for a prior “statement” under rule 613(b)(1) do not apply in this case. Tex. R. Evid. 613(b)(1). The State did not question Molett about a prior statement in an attempt to demonstrate his potential bias.
12
therefore the objecting party’s burden to demonstrate that the probative value is
substantially outweighed by the danger of unfair prejudice. Hinojosa v. State,
995 S.W.2d 955, 958 (Tex. App.—Houston [14th Dist.] 1999, no pet.); Poole, 974
S.W.2d at 897.
An appellate court must measure the trial court’s balancing determination
against the relevant criteria by which a rule 403 decision is made. See Mozon,
991 S.W.2d at 847; see also Sanders v. State, 255 S.W.3d 754, 760 (Tex.
App.—Fort Worth 2008, pet. ref’d). The relevant criteria in determining whether
the prejudice of an extraneous offense substantially outweighs its probative value
include (1) how compellingly the extraneous offense evidence serves to make a
fact of consequence more or less probable—a factor which is related to the
strength of the evidence presented by the proponent to show the defendant in
fact committed the extraneous offense; (2) the potential the other offense
evidence has to impress the jury “in some irrational but nevertheless indelible
way”; (3) the time the proponent will need to develop the evidence, during which
the jury will be distracted from consideration of the indicted offense; and (4) the
force of the proponent’s need for this evidence to prove a fact of consequence,
that is, does the proponent have other probative evidence available to him to
help establish this fact, and is this fact related to an issue in dispute. Sanders,
255 S.W.3d at 760.
Here, applying the rule 403 balancing factors, we first examine how
compellingly the extraneous act that Jacquet was Molett’s codefendant in a 2010
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aggravated robbery shows that Jacquet committed the charged offense in this
case. Evidence that Jacquet has previously committed aggravated robbery
makes it more likely—but probably not compellingly likely—that he committed the
present aggravated robbery.
Next, under the second and third factors, we examine the potential of the
evidence to impress the jury in some irrational but nevertheless indelible way and
the amount of time the State used in developing the evidence. Molett’s
testimony, which consisted of merely acknowledging that Jacquet was his
codefendant in an aggravated robbery several years prior to the current charges,
may have potentially inflamed the jury, but Molett’s brief testimony paled in
comparison to the evidence the State put on regarding how Jacquet approached
Briones, stabbed him and punctured his lung, took his wallet, and then fled the
area, ultimately getting in a high-speed chase with police officers, all the while
leaving him bleeding and injured on the pavement outside the gas station from
which he was ultimately taken away in an ambulance. Indeed, in this nearly
eight-volume record, Molett’s testimony regarding Jacquet as his codefendant
makes up less than two pages. Additionally, Molett’s testimony was
accompanied by a limiting instruction by the trial court that it was not to be
considered for any other purpose than to demonstrate that Molett may have had
a bias or interest in favor of the defense.
Looking to the fourth factor, we determine the force of the State’s need for
Molett’s testimony. See id. The State possessed evidence and testimony
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concerning Jacquet’s direct acts against Briones. The State’s need for Molett’s
testimony was thus only slight. Beginning with the presumption that Molett’s
testimony about Jacquet’s being his codefendant was more probative than
prejudicial and evaluating it under the rule 403 factors, however, we cannot say
that Jacquet was unfairly prejudiced by Molett's testimony. See id. We therefore
hold that the trial court did not abuse its discretion by allowing Molett to testify
that Jacquet was his codefendant in the 2010 aggravated robbery conviction.
See Mozon, 991 S.W.2d at 847. We overrule Jacquet’s second issue.

Outcome: