Brenham, TX - murder

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The night of October 30, 2014, a passerby discovered the body of 20-year old

college student, Trey Alan Kurtz, lying on the side of the road in Brenham, Texas.

Kurtz had been killed by a single gunshot wound to the back of the head. Dixon, his

cousin, J.B. Wright, III, and Dixon’s friends, Jordan Graves and Deperrion Lott,

were later indicted and charged with capital murder in connection with Kurtz’s

shooting. All four co-defendants were teenagers at the time of the incident. J.B., who

was sixteen-years old at the time of the shooting, testified against Dixon.

J.B. testified that he met Kurtz on a local college campus about two months

before the murder. He and a friend were walking by when Kurtz, who had smelled

the odor of marijuana on J.B.’s clothes, offered him a free gram of high-grade

marijuana along with his cell phone number. J.B. saved some of the marijuana and

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shared it with Dixon. J.B. testified that he tried to contact Kurtz about two weeks

later to buy some marijuana, but he was not able to reach him.

In October 2015, according to J.B., he, Dixon, and Graves decided to steal

marijuana from another drug dealer, Colin Decuir, by going by Decuir’s home and

taking the drugs. Decuir, however, was not at home when they stopped by and their

plan fell through. J.B. testified that, about two weeks later, the group discussed

robbing someone else for marijuana and Dixon brought up the idea of robbing Kurtz.

A week before the murder, Dixon asked J.B. if he still had Kurtz’s phone number

and J.B. gave it to him. J.B. testified that he understood that Dixon was asking for

the number because he wanted to rob Kurtz.

J.B. contacted Kurtz on October 29, the night before the murder, to set up the

purported drug deal. They exchanged text messages and calls that night and into the

next day concerning the quantity and quality of marijuana. Although Kurtz originally

agreed to sell J.B. and his friends two grams of marijuana for $550, they ultimately

agreed to purchase four grams for $950. J.B. texted Kurtz that he would contact him

later to set up the purchase. J.B. testified that he and his friends did not have the

money and they had no intention to pay Kurtz for the drugs.

J.B. snuck out of his bedroom that night to meet up with Dixon, Graves, and

Lott at Dixon’s home around 8:30 p.m. According to J.B., the four of them decided

that he, Graves, and Lott would pick up Kurtz in Graves’s mother’s car and drive

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around under the pretext of getting the money. They would then pick up Dixon, and

he would get in the car on the rear passenger side and basically move Kurtz into the

middle of the backseat, between J.B. and Dixon. They would then drive Kurtz to a

secluded area, take the marijuana, and leave Kurtz there. According to J.B., the plan

was for Graves, who was driving, to signal the group that it was time to rob Kurtz

by playing a specific song on the radio. A later examination of Dixon’s phone found

internet searches for that song.

J.B. testified that when the plan was devised, there was no mention of anyone

bringing a weapon to the robbery, and no one was supposed to be killed. When they

arrived at Dixon’s home to plan the robbery, however, Graves handed Dixon a gun

and asked Dixon if he really needed it. Dixon told Graves that he was bringing the

gun with them for their protection.

J.B. testified that when Graves played the signal song, Dixon pulled out the

gun and pointed it at Kurtz’s head. Lott told Kurtz to just give them the drugs and

then started hitting Kurtz. Kurtz, who was trying to escape, managed to open J.B.’s

door and shove J.B. out of the vehicle. Kurtz also fell out of the car and landed face

down on the ground. J.B. stood up and saw Dixon standing behind him. According

to J.B., Dixon motioned him to get out of the way, and then Dixon tried to hit Kurtz

with the gun. J.B. testified that the gun discharged when Dixon struck Kurtz with it

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on the back of his head or neck. Kurtz had been trying to stand up and was facing

away from Dixon when the gun came down.

J.B. and Dixon then got back in the car and left. The group later realized that

no one had taken the marijuana from Kurtz and that J.B.’s cell phone was missing.

Graves dropped J.B. and Dixon off at Dixon’s home. The two young men then asked

Dixon’s grandfather to drive J.B. home. When they were close to the crime scene,

Dixon told his grandfather to stop because he needed to pick something up at a girl’s

house. J.B. and Dixon got out of the car and ran to where Kurtz was still laying on

the side of the road. J.B. found his phone and Dixon took the marijuana from

underneath Kurtz’s sweatshirt. J.B. testified that Kurtz was still alive when they went

back because he could hear Kurtz breathing. Dixon, J.B., Lott, and Graves split the

marijuana up between themselves the next day.

J.B. testified that the gun Dixon used was nickel plated with a wood handle.

He was shown a photograph of a gun and identified it as the gun Dixon had that

night.

On cross-examination, J.B. testified that the police had interviewed him at

school about the murder in January 2015 and at the police station in October 2015.

J.B. admitted that he lied to the police during both interviews about various aspects

of the murder. Among other things, J.B. denied knowing Kurtz during the first

interview, or ever talking to him, even though the police told him that they had phone

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records showing calls between his cell phone number and Kurtz’s number. J.B.

explained that he lied because Dixon and Dixon’s mother had told him to lie because

the police did not have any evidence. Dixon’s mother also told J.B. that she had hired

a lawyer for Dixon and “he got an alibi.” J.B. also testified that he had reason to be

scared of Dixon because he had seen Dixon pull a gun on his little brother a few

months before the murder. J.B.’s attorney arranged for him to have a second

interview at the police station in October 2015. He claimed that he wanted to talk to

the police to “get the situation behind me.” He admitted, however, that he lied during

that interview as well when he told the officers that he did not go back to the crime

scene. J.B. explained that he did not want to get Dixon’s grandfather in trouble. J.B.

denied that he had tried to mislead the police by giving them the names of people

that he said he had heard committed the crime.

Deputy Medical Examiner Dr. Vickie Willoughby conducted the autopsy.

According to Dr. Willoughby, Kurtz died from a single gunshot wound to the “right

back side of the head.” She did not see any soot or muzzle abrasions which would

have indicated that the gun was in contact with Kurtz’s scalp when the weapon

discharged. The lack of soot also indicated that the gun was at least a few inches

away from the skin when it discharged. Dr. Willoughby also observed small punctate

abrasions that were consistent with stippling. Stippling occurs when unburned

gunpowder hits the skin surface. Dr. Willoughby testified that stippling indicates

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that the gun was within two to three feet of the body at the time it was discharged

but was not in contact with the skin. She also observed several injuries on Kurtz’s

face and a small abrasion to his left hand, and she testified that these injuries were

consistent with somebody being in a fight or having fallen to the ground.

The lead investigator on the case, Detective John Snowden, testified that he

obtained a warrant to search Kurtz’s cell phone records. The records revealed that,

starting at11:44 p.m. on October 29, 2014, Kurtz’s phone sent and received several

calls from J.B.’s cell phone and received six calls from Dixon’s phone. Detective

Snowden also found a text message conversation between Kurtz and J.B. where J.B.

was attempting to buy marijuana from Kurtz. They agreed on an amount, a price,

and a location to meet.

Detective Snowden testified that he identified Dixon, J.B., Graves, and Lott

as suspects. He also obtained warrants to search Dixon’s phone and Graves’s

mother’s car and obtain hair samples from the four suspects. Detective Snowden also

discovered a photograph on Facebook of Dixon wearing a cap that appeared to be

the same cap found by Kurtz’s body at the murder scene.

Detective Snowden testified that he interviewed J.B. twice. The first time was

in January 2015 at J.B.’s high school and the second time at the police station on

October 24, 2015. The October interview came after J.B.’s attorney contacted the

District Attorney’s Office. At that point, J.B. had not been arrested or charged with

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a crime. Detective Snowden confirmed that J.B. had lied to him during both

interviews about several topics, including about whether he returned to the scene

after the shooting. Detective Snowden testified that he found much of J.B.’s

statements to be credible—despite J.B.’s lies—based on J.B.’s behavior and the fact

that he came forward and confessed to his role in the shooting before he was charged.

Detective Snowden testified that he also had additional evidence which corroborated

much of J.B.’s October statement to police. The detective testified there was

evidence that Dixon had intentionally shot Kurtz. He said that intentional evidence

outweighed the accidental evidence.

A woman who was driving by around 10:00 p.m. spotted Kurtz’s body and

called the police. Officer Andras was dispatched to the scene. Officer Andras

testified that Kurtz had a wound to the back of his head. Officer Andras found a

black beanie-style hat at the scene with a New Orleans Saints logo, but he did not

find the murder weapon or any marijuana on Kurtz’s body.

Officer Andras was later recalled to the stand during which time he testified

about a burglary of a motor vehicle call in August 2014. According to Officer

Andras, Lee Chalmers reported that a Smith & Wesson 1911 E Series, .45 caliber

had been stolen from his vehicle, a white 2016 Ford pickup. He identified the gun

from a photograph. Chalmers had a spent shell casing that was fired from this gun

that he turned over to the police. Detective Joseph Merkley, who assisted in the

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investigation of Kurtz’s murder, testified that the shell casing that Chalmers had

provided matched a shell casing found under Kurtz’s body.

Detective Ashorn testified that the police collected a spent shell casing that

they found under Kurtz’s body and a black stocking cap that was between Kurtz’s

legs. He also testified that he and Detective Snowden interviewed J.B. in January

2015 and that J.B. “pretty much” lied to them about “almost everything” they asked

him during that interview and gave them false leads. He also testified that J.B.’s

father had indicated that J.B. had told him to lie about J.B.’s whereabouts the night

of the shooting.

Joshua Wright, J.B.’s brother, testified that he saw Dixon steal the gun used

in the shooting out of a truck. He described it as a chrome gun with a brown handle.

Officer Mark Wilson testified that he performed a forensic analysis of Dixon’s

phone. He found a picture of a young man wearing a hat with a New Orleans Saints

logo and a picture of a gun. He also determined that Dixon had searched on the

internet for the signal song. A disc containing almost all the contents of Dixon’s

phone, including these photographs and files related to the internet search, was

admitted over Dixon’s objections.

Rymekia Frazier testified that Dixon called her at 4 a.m. on October 31, 2014,

and that he told her about the murder the next day. Dixon told her he shot Kurtz, but

it was an accident. Dixon described it as a drug deal gone bad. He also told her he

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was with J.B., Lott, and Graves in Graves’s mother’s car. According to Frazier,

Dixon told her that J.B. and Lott were getting beat up, and he was just trying to

protect them. He also told her that his grandfather had driven him and J.B. back to

the scene to retrieve J.B.’s cell phone. Dixon also told her that they had taken the

marijuana and divided it up amongst themselves.

Dixon, who testified in his own defense, denied that he met Kurtz before the

night of the shooting and claimed that J.B. had used his phone to contact Kurtz to

set up the drug buy. He denied that there had ever been a plan to rob Kurtz. Dixon

testified that after they picked Kurtz up, Kurtz and J.B. argued about the quality and

quantity of the marijuana and began fighting in the backseat of the car. Dixon

claimed that after he broke up the fight, J.B. pulled a gun on Kurtz and the two men

began fighting over the gun. Dixon testified that J.B. and his brother had stolen the

gun and that he did not know that J.B. had brought the gun along until J.B. pulled it

out during the fight.

According to Dixon, the rear-passenger side door opened during the fight and

both J.B. and Kurtz stumbled outside. Dixon heard the gun fall to the ground and

claimed that J.B. yelled to him for help and told him to grab the gun. After Dixon

picked up the gun, he saw Kurtz choking J.B. According to Dixon, he swung the gun

at Kurtz and “when I hit him, the gun just went off.” Dixon denied shooting Kurtz

in the back of the head and claimed that Kurtz was standing when the gun accidently

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discharged. He admitted that the cap the police found between Kurtz’s legs was his,

but he claimed that J.B. had been wearing it the night of the shooting. He admitted

that he and his friend fled the scene after the shooting and never reported the incident

to the police.

Dixon denied taking the marijuana from Kurtz or knowing what happened to

it, and he denied that his grandfather drove them back over to that scene. He also

testified that he called Frazier at 3:00 or 4:00 a.m. but he did not tell her or anyone

else that he had been involved in Kurtz’s death because he was scared. He also

denied telling J.B. not to tell anybody about the incident.

The court’s charge gave the jury the option of finding Dixon guilty of capital

murder or the lesser-included offenses of murder or manslaughter. The jury was also

instructed on Dixon’s defensive theories of self-defense and defense of a third party.

The jury returned a general verdict finding Dixon guilty of the lesser-included

offense of murder and later assessed his punishment at forty-five years’

incarceration. This appeal followed.

Sufficiency of the Evidence

In his first point of error, Dixon argues that the evidence is insufficient to

support his murder conviction because there is no credible evidence that he caused

Kurtz’s death during the commission of a robbery.

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A. Standard of Review and Applicable Law

We review an appellant’s challenge to the sufficiency of the evidence under

the standard enunciated in Jackson v. Virginia, 443 U.S. 307 (1979). See Brooks v.

State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We examine all the evidence

in the light most favorable to the jury’s verdict to determine whether “any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Jackson, 443 U.S. at 318–19; see Merritt v. State, 368 S.W.3d 516, 525 (Tex.

Crim. App. 2012). Our review includes all of the evidence introduced, whether it be

properly or improperly admitted. See Winfrey v. State, 393 S.W.3d 763, 767 (Tex.

Crim. App. 2013) (stating courts consider admissible and inadmissible evidence

presented at trial when conducting sufficiency analysis).

“The jury is the sole judge of credibility and weight to be attached to the

testimony of witnesses.” Merritt, 368 S.W.3d at 525 (citing Jackson, 443 U.S. at

319). As the sole factfinder, the jury may reasonably infer facts from the evidence

presented, credit the witnesses it chooses, disbelieve any or all of the evidence or

testimony proffered, and weigh the evidence as it sees fit. See Canfield v. State, 429

S.W.3d 54, 65 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d); see also Chambers

v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). We presume that the jury

resolved any conflicting inferences in favor of the verdict and defer to that

resolution. See Jackson, 443 U.S. at 326.

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To prove the essential elements of the lesser-included offense of murder in

this case, the State had to show that either: (1) Dixon committed or attempted to

commit robbery and, “in the course of and in furtherance of the commission or

attempt,” he committed or attempted to commit “an act clearly dangerous to human

life” that caused Kurtz’s death (felony murder), or that (2) Dixon caused Kurtz’s

death by intentionally shooting Kurtz with a gun (intentional murder). See TEX.

PENAL CODE § 19.02(b)(1), (3). These are two alternative methods of committing

the singular offense of murder, not separate offenses. Smith v. State, 436 S.W.3d

353, 378 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d).

Because the jury returned a general verdict finding Dixon guilty of murder,

we must uphold the verdict if there is sufficient evidence to support a finding under

either theory submitted in the charge. Gilbert v. State, 575 S.W.3d 848, 861 (Tex.

App.—Texarkana 2019, pet. ref’d); see also Fuller v. State, 827 S.W.2d 919, 931

(Tex. Crim. App. 1992) (en banc).

B. Analysis

Dixon acknowledges that J.B.’s testimony, if believed, is sufficient to prove

that he caused Kurtz’s death in furtherance of the commission of robbery.

1 Dixon

argues, however, that J.B.’s credibility “had been irrevocably compromised due to

1

“Appellant will stipulate that J.B.’s testimony, if taken in its entirety as being true,

would be adequate to satisfy the test for sufficiency as to the element of robbery.”

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the admitted and repeated lies he told to the State’s investigators under oath on

material issues during the course of the investigation,” and therefore, no rational jury

could have believed J.B.’s testimony that Dixon and the other co-defendants had

planned to rob Kurtz. Dixon further contends that his testimony that the group had

planned to buy marijuana from Kurtz, not rob him, is more credible than J.B.’s

testimony.

The jury heard J.B. admit that he lied to investigators on multiple occasions,

as well as his testimony as to why he lied. Specifically, J.B. testified that he did not

tell the police that he left his cell phone at the crime scene and that he and Dixon

went back to retrieve the phone and marijuana because Dixon’s grandfather had

given them a ride and he did not want to get Dixon’s grandfather into trouble. J.B.

also testified that he lied to police when he was interviewed in January 2015 because

Dixon and Dixon’s mother told him to lie. According to J.B., Dixon and Dixon’s

mother had told him that the police “had no evidence and it would be easy for me to

get off and that I wouldn’t be questioned no more.” Dixon’s mother also told J.B.

that she had hired a lawyer for Dixon and “he got an alibi.” J.B. also testified that he

had reason to be scared of Dixon because he had seen Dixon pull a gun on his little

brother a few months before the murder.

When asked about his motivation for testifying, J.B. explained that he was

testifying against Dixon because “I would want somebody to do it for me, and I

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know if [Dixon] was in the opposite of his situation, his momma would want to do

something for him, too.” J.B. testified that the State had not promised him anything

in exchange for his testimony. He also testified, however, that although he had also

been charged with capital murder in connection with Kurtz’s death and had been

certified to stand trial as an adult, he was not guilty, and he did not expect to be tried

for the offense.

Dixon’s testimony with respect to other details of the offense, including his

testimony that the gun discharged when he hit Kurtz with it and his testimony that

he did not shoot Kurtz in the back of the head, are contradicted by the autopsy report

and Dr. Willoughby’s testimony that the entrance wound was to the “right back side”

of Kurtz’s head and the gun was not in contact with Kurtz’s scalp when the weapon

fired. Frazier’s testimony also contradicts Dixon’s testimony that he did not return

to the scene with J.B. after the shooting, his grandfather did not drive him and J.B.

back to the get J.B.’s cell phone, he did not tell anyone about the murder, and he did

not know what happened to the marijuana.

The jury knew that J.B. had repeatedly lied about the murder when he was

interviewed by the police. The jury was also aware of J.B.’s explanations for his

actions, and the circumstances surrounding those voluntary interviews, including the

fact that J.B.’s attorney had requested the second interview where J.B. confessed to

his role in Kurtz’s death. As the sole factfinder, the jury was in the best position to

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evaluate J.B.’s and Dixon’s demeanor at trial, consider all of the evidence and

testimony before them, and evaluate each witness’s overall credibility. See Lancon

v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008) (stating “[t]he [factfinder] is

in the best position to judge the credibility of a witness because it is present to hear

the testimony, as opposed to an appellate court who relies on the cold record”); see

also Canfield, 429 S.W.3d at 65.

Considering the totality of the evidence, we cannot say that the jury’s decision

to credit J.B.’s testimony over Dixon’s testimony was irrational. See Braughton v.

State, 569 S.W.3d 592, 611 (Tex. Crim. App. 2018) (acknowledging that “principles

affording deference to the jury’s credibility determinations are not without limits”

because jury’s decision “must be rational in light of the totality of the record”).

Viewing the evidence in the light most favorable to the jury’s verdict, and deferring

to the jury’s decisions regarding the credibility of the witnesses and the weight of

the evidence, we cannot say that no rational factfinder could have found the essential

elements of the crime beyond a reasonable doubt in this case. Jackson, 443 U.S. at

318–19.

We overrule Dixon’s first point of error.

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Accomplice Testimony

In his second point of error, Dixon argues that the State failed to present

sufficient evidence corroborating the testimony of J.B., who was an accomplice as a

matter of law.2

A. Standard of Review and Applicable Law

Code of Criminal Procedure article 38.14 states that “[a] conviction cannot be

had upon the testimony of an accomplice unless corroborated by other evidence

tending to connect the defendant with the offense committed” and that “the

corroboration is not sufficient if it merely shows the commission of the offense.”

TEX. CODE CRIM. PROC. art. 38.14.

“When evaluating the sufficiency of corroboration evidence under the

accomplice-witness rule, we ‘eliminate the accomplice testimony itself from our

review and then examine the remaining portions of the record to see if there is any

evidence that tends to connect the accused with the commission of the crime.’”

Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008) (quoting Solomon v.

State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001)). We view corroborating evidence

in the light most favorable to the jury’s verdict. Brown v. State, 270 S.W.3d 564, 567

(Tex. Crim. App. 2008).

2

The State agrees that J.B. is an accomplice as a matter of law.

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“[T]he corroborating evidence need not prove the defendant’s guilt beyond a

reasonable doubt by itself.” Malone, 253 S.W.3d at 257. Instead, the corroborating

evidence must only link the defendant in some way to the commission of the crime

and show that “rational jurors could conclude that this evidence sufficiently tended

to connect [the accused] to the offense.” Id. (quoting Hernandez v. State, 939 S.W.2d

173, 179 (Tex. Crim. App. 1997)). Although a defendant’s mere presence at the

scene of the crime, by itself, is not sufficient to corroborate accomplice testimony,

such evidence “when coupled with other suspicious circumstances, may tend to

connect the accused to the crime so as to furnish sufficient corroboration to support

a conviction.” Id. (quoting Brown v. State, 672 S.W.2d 487, 489 (Tex. Crim. App.

1984)).

The corroborating evidence need only “connect the defendant to the crime,

not to every element of the crime.” Joubert v. State, 235 S.W.3d 729, 731 (Tex.

Crim. App. 2007); see also State v. Ambrose, 487 S.W.3d 587, 598 (Tex. Crim. App.

2016) (“The corroboration requirement in Article 38.14 does not apply separately to

each element of the offense charged or to each aspect of the accomplice’s

testimony.”).

B. Analysis

Dixon’s own testimony connects him to the crime. Dixon admitted that he,

J.B., Graves, and Lott planned to buy drugs from J.B.’s drug dealer, whom Dixon

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later learned was Kurtz. According to Dixon, he, J.B., Graves, and Lott took

Graves’s mother’s car to meet up with Kurtz and, when they arrived, Kurtz got into

the car and sat in the backseat between Dixon and J.B. Dixon testified that a fight

broke out between J.B. and Kurtz over the drugs and the fight spilled out of the

vehicle and into the street. J.B., who Dixon claims had been in possession of the gun,

dropped it on the ground during the scuffle. Dixon testified that he picked up the gun

and tried to hit Kurtz with it to keep him from choking J.B. According to Dixon, he

was pistol-whipping Kurtz and “when I hit him, the gun just went off.”

Dixon also admitted that he, J.B., and the others fled the scene after the

shooting and that the hat police found under Kurtz’s body belonged to him. Dixon’s

testimony not only places him at the scene of the murder with J.B., but it also places

the gun in Dixon’s hand. See Malone, 253 S.W.3d at 257; see also Smith, 436 S.W.3d

at 370 (holding sufficient corroboration shown by evidence of flight, connection to

weapon, and presence in accomplice’s company at or near place of crime); Brown,

270 S.W.3d at 568 (stating that “under most circumstances, an admission or

confession will be sufficient” to corroborate accomplice-witness testimony”).

The State also presented additional evidence linking Dixon to the murder and

the murder weapon. Specifically, Joshua testified that he saw Dixon steal the murder

weapon from Chalmer’s truck a few months before the murder. The police also

found a spent shell casing underneath Kurtz’s body that a forensics examination later

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determined had been fired from Chalmer’s gun. See Hernandez, 939 S.W.2d at 178

(stating proof connecting defendant to weapon like that used in offense is

circumstance to consider in determining sufficiency of corroborating evidence).

According to Kurtz’s phone records, there were six calls from Dixon’s phone to

Kurtz’s phone the night before the shooting. Frazier also testified that Dixon told her

that he shot Kurtz by accident as part of a “drug deal gone bad.” Further, a picture

of Dixon wearing a hat identical to that found at the scene of the murder was found

on Facebook.

Dixon acknowledges that the non-accomplice testimony in this case “clearly

is enough to corroborate” his connection to the drug deal and the shooting, but he

contends that this evidence is insufficient under article 38.14 because there is

nothing that corroborates J.B.’s testimony that Dixon and the others had planned to

rob Kurtz. Corroborating evidence, however, is only required to “connect the

defendant to the crime, not to every element of the crime.” Joubert, 235 S.W.3d at

731; see also Ambrose, 487 S.W.3d at 598.

After excluding J.B.’s testimony from our consideration and reviewing the

remaining evidence, we conclude that the State presented some non-accomplice

evidence that tends to connect Dixon to the charged offense of murder. See Malone,

253 S.W.3d at 257; see also Smith, 436 S.W.3d at 370. We hold that, because a

rational factfinder could have concluded that the combined force of this non-

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accomplice evidence tended to connect Dixon to the offense of murder, the State

presented sufficient evidence to corroborate J.B.’s accomplice testimony. See

Malone, 253 S.W.3d at 257.

We overrule Dixon’s second point of error.

Admission of Extraneous Offenses and Cell Phone Records

In his third and fourth points of error, Dixon argues that the trial court erred

by admitting J.B.’s testimony that Dixon had planned to rob another drug dealer

before Kurtz, and Joshua’s testimony that he saw Dixon burglarize a truck and steal

the gun used in Kurtz’s murder. Dixon contends that the admission of this evidence

violates Texas Rules of Evidence 403 and 404(b).

In his fifth point of error, Dixon argues that the trial court abused its discretion

by admitting a digital download of the contents of Dixon’s cell phone. Dixon argues

that the voluminous exhibit contained largely irrelevant content, including several

short “sex tapes” that Dixon had recorded on his phone.

A. Standard of Review

We review a trial court’s decision to admit or exclude evidence, as well as its

decision as to whether the probative value of evidence was substantially outweighed

by the danger of unfair prejudice, under an abuse of discretion standard. Martinez v.

State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). As long as the trial court’s

decision was within the zone of reasonable disagreement and was correct under any

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theory of law applicable to the case, the decision must be upheld. Winegarner v.

State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007) (citing Montgomery v. State,

810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g)). “This is so because

‘trial courts . . . are usually in the best position to make the call on whether certain

evidence should be admitted or excluded.’” Id.(quoting Guzman v. State, 955

S.W.2d 85, 89 (Tex. Crim. App. 1997)).

The erroneous admission of the challenged evidence is reversible only if it

affected the defendant’s substantial rights to a fair trial. See TEX. R. APP. P. 44.2(b).

A substantial right is affected when the error had a substantial and injurious effect

or influence in determining the jury’s verdict. Diamond v. State, 496 S.W.3d 124,

143 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d). If the improperly admitted

evidence did not influence the jury or had but a slight effect upon its deliberations,

such non-constitutional error is harmless. Id.

In assessing the likelihood that the jury’s decision was adversely affected by

the error, an appellate court considers everything in the record, including “testimony,

physical evidence, jury instructions, the State’s theories and any defensive theories,

closing arguments, and voir dire, if applicable.” Schmutz v. State, 440 S.W.3d 29, 39

(Tex. Crim. App. 2014). “Important factors include the nature of the evidence

supporting the verdict, the character of the alleged error and how it might be

considered in connection with other evidence in the case, and may include whether

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the State emphasized the error and whether overwhelming evidence of guilt was

present.” Id.

B. Applicable Law

An extraneous offense is any act of misconduct, whether resulting in

prosecution or not, which is not shown in the charging instrument and which was

shown to have been committed by the accused. Martinez v. State, 190 S.W.3d 254,

262 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). Texas Rule of Evidence

404(b) prohibits the admission of extraneous-offense evidence solely to prove a

person’s character or to show that the person acted in conformity with that character.

TEX. R. EVID. 404(b). Extraneous-offense evidence may be admissible, however, to

show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence

of mistake or accident. See id.; see also Montgomery, 810 S.W.2d at 387–88. Such

evidence may also be admissible to rebut defensive theories. Powell v. State, 63

S.W.3d 435, 438 (Tex. Crim. App. 2001) (citing Montgomery, 810 S.W.2d at

387– 88).

Extraneous-offense evidence that is admissible under Rule 404(b) may,

nevertheless, be inadmissible if the probative value of the evidence is substantially

outweighed by the danger of unfair prejudice. TEX. R. EVID. 403. A trial court is

entitled to broad discretion in ruling on a Rule 403 objection, and great deference is

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given to the trial court’s decision to admit or exclude evidence under Rule 403. See

Powell v. State, 189 S.W.3d 285, 288 (Tex. Crim. App. 2006).

When conducting a Rule 403 analysis, a court must balance the probative

force of and the State’s need for the evidence against (1) any tendency of the

evidence to suggest decision on an improper basis; (2) any tendency of the evidence

to confuse or distract the jury from the main issues; (3) 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 (4) the likelihood that presentation of the

evidence will amount to undue delay. Gigliobianco v. State, 210 S.W.3d 637, 641–

42 (Tex. Crim. App. 2006). We presume that relevant evidence is more probative

than unfairly prejudicial. Montgomery, 810 S.W.2d at 389; see generally TEX. R.

EVID. 401 (stating evidence is relevant if it has any tendency to make existence of

any fact of consequence to determination of action more or less probable than it

would be without such evidence). Exclusion of evidence under Rule 403 is required

“only when there is a ‘clear disparity between the degree of prejudice of the offered

evidence and its probative value.’” Hammer v. State, 296 S.W.3d 555, 568 (Tex.

Crim. App. 2009) (quoting Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App.

2001)).

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C. Evidence of Plan to Commit Prior Robbery

J.B. testified that he, Dixon, and Graves tried unsuccessfully to steal

marijuana from another drug dealer less than a month before they robbed Kurtz.

According to J.B., the group “just discussed and agreed” to go to Decuir’s home and

take his marijuana. Their plan, however, fell apart because Decuir was not home

when they arrived. Two weeks later, the group decided that they needed to find

someone else to rob and Dixon asked J.B. if he still had Kurtz’s cell phone number.

At that point, the group began to formulate a plan to rob Kurtz of his marijuana.

According to J.B., that plan included a signal, the playing of a particular song, to

initiate the robbery. Internet searches for that particular song were found on Dixon’s

phone.

Dixon’s participation in a failed attempt to rob a drug dealer of his marijuana

a few weeks before the murder makes it more probable that Dixon was involved in

the preparations, and intended to rob Kurtz, another marijuana dealer, of his drugs.

It is at least subject to reasonable disagreement whether this extraneous-offense

evidence was admissible for the noncharacter-conformity purposes of rebutting

Dixon’s defensive theory that he and his friends were meeting with Kurtz to buy

marijuana from him, not rob him, and that Kurtz’s death was the unfortunate result

of a “drug deal gone bad” and showing Dixon’s intent to rob Kurtz. See TEX. R.

EVID. 404(b) (admissible to prove intent); Powell, 63 S.W.3d at 438 (stating

26

extraneous-offense evidence may be admissible to rebut defensive theories).

Accordingly, we hold that the trial court did not abuse its discretion by admitting

this extraneous-offense evidence over Dixon’s Rule 404 objection. See Winegarner,

235 S.W.3d at 790 (stating trial court does not abuse its discretion if its decision was

within zone of reasonable disagreement).

With respect to Dixon’s Rule 403 objection, the record reflects that J.B.’s

testimony regarding the prior robbery attempt was very brief, and the time needed

to develop this evidence was minimal. Unlike the elaborate and detailed plan agreed

upon for Kurtz’s robbery, the group’s plan to rob Decuir was much more basic. The

plan was simply to go to Decuir’s house and take his drugs. Given the disparity

between the two events, there was no likelihood that it would confuse or distract the

jury. There is also nothing in the record indicating that the jury gave this testimony

undue weight. Accordingly, we hold that the trial court did not abuse its discretion

by concluding that the probative value of the evidence was not substantially

outweighed by the danger of unfair prejudice. See Gigliobianco, 210 S.W.3d at 641–

42.

We overrule Dixon’s third point of error.

D. Evidence Dixon Burglarized a Motor Vehicle and Stole a Firearm

Joshua testified that he saw Dixon steal the gun used in Kurtz’s murder out of

a truck a few months before the murder. The State argued that the evidence was

27

admissible to show preparation for the armed robbery and to place the murder

weapon in Dixon’s hands. It is at least subject to reasonable disagreement whether

this extraneous-offense evidence was admissible for the noncharacter-conformity

purpose of linking Dixon to the murder weapon and rebutting his testimony that J.B.

brought the gun to the crime scene. See Ransom v. State, 920 S.W.2d 288, 300–01

(Tex. Crim. App. 1994) (holding extraneous offense evidence showing defendant’s

ownership of murder weapon before murder admissible; “The fact that appellant

stole the gun links him somewhat more strongly to the gun than mere possession

would, as it implies purported ownership rather than incidental control.”).

Accordingly, we hold that the trial court did not abuse its discretion by admitting

this extraneous-offense evidence over Dixon’s Rule 404 objection. See Winegarner,

235 S.W.3d at 790 (stating trial court does not abuse its discretion if its decision was

within zone of reasonable disagreement).

With respect to Dixon’s Rule 403 objection, the record reflects that Joshua’s

testimony was very brief, and the time needed by the State to develop this evidence

was minimal. There is also nothing in the record indicating that this testimony was

likely to confuse or distract the jury or that the jury would give this testimony undue

weight. Accordingly, we hold that the trial court did not abuse its discretion by

concluding that the probative value of the evidence was not substantially outweighed

by the danger of unfair prejudice. See Gigliobianco, 210 S.W.3d at 641–42.

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We overrule Dixon’s fourth point of error.

E. Admission of the Contents of Dixon’s Cell Phone

Assuming without deciding that the trial court erred by admitting the

download of the entire contents of Dixon’s cell phone, we cannot reverse on this

basis unless the error was harmful. There is no mention in the record of any sex tapes

or similar files found on Dixon’s cell phone at any stage of the proceedings. There

is also no indication that the jury knew that the disc contained any such material.

While the State spent considerable time discussing the types of files included on the

disc and more technical matters involving the collection and organization of that

data, the only files that were specifically referenced were the pictures of the gun and

a young man wearing a hat similar to the one found at the crime scene, and the files

associated with the internet search for the trigger song. From our examination of the

record, we are assured that the error did not influence the jury or had but a slight

effect. The error, if any, was harmless. See TEX. R. APP. P. 44.2(b); see generally

Schmutz, 440 S.W.3d at 39 (stating appellate courts consider everything in record

when assessing error).

We overrule Dixon’s fifth point of error.

We affirm the trial court’s judgment.