Nos CR & CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS WOODROW RAYMOND GLOVER,II APPELLANT,

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1 Nos CR & CR 5th Court of Appeals FILED: 3/24/11 14:00 Lisa Matz, Clerk IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS WOODROW RAYMOND GLOVER,II APPELLANT, V. THE STATE OF TEXAS, APPELLEE FILED IN Court of Appeals MAR Lisa Matz Clerk, 5th District BRIEF FOR APPELLANT On appeal from Cause Numbers F W AND F W in the 363R 0 District Court of Dallas County, Texas Honorable Tracy F. Holmes, Judge Presiding JOHN TATUM 990 SOUTH SHERMAN STREET RICHARDSON, TEXAS (972) BAR NO ATTORNEY FOR APPELLANT

2 IDENTITIES OF PARTIES AND COUNSEL 1. The Honorable Tracy F. Holmes, Judge Presiding of the 363rd District Court of Dallas County presided over the jury trial. 2. The State of Texas, represented by Assistant Criminal District Attorneys: Elaine Evans, Monique Ward Frank Crowley Courts Building 133 N. Industrial Blvd. LB 19 Dallas, Texas SBOT# Defendant, Woodrow Raymond Glover, II, represented by: Kenneth Weatherspoon(Trial Counsel) SBOT No North St. Paul Street, Suite 2475 Dallas, Texas John Tatum (Appellate Counsel) SBOT NO S. Sherman St. Richardson, Texas 75081

3 TABLE OF CONTENTS PAGE IDENTITIES OF PARTIES AND COUNSEL INDEX OF AUTHORITIES... iii-vi PRELIMINARY STATEMENT... 1 STATEMENT OF FACTS SUMMARY OF ARGUMENT APPELLANT'S ISSUE NO. 1 THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT THE CONVICTION FOR THE OFFENSE OF CAPITAL MURDER APPELLANT'S ISSUE NO. 2 THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE CONVICTION FOR THE OFFENSE OF AGGRAVATED ROBBERY APPELLANT'S ISSUE NO. 3 THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S OBJECTION TO THE HEARSAY TESTIMONY PROFFERED BY THE STATE THROUGH THE WITNESS, REV. MIKE PHILLIPS ARGUMENT IN SUPPORT OF ISSUE NO ARGUMENT IN SUPPORT OF ISSUE NO ARGUMENT IN SUPPORT OF ISSUE NO PRAYER CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE

4 FEDERAL CASES: INDEX OF AUTHORITIES Cody v. Harris 409 F.3d 853, 860 (7th Cir.2005) Crawford v. Washington 541 U.S. 36, 61-62, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)... 38,44 Davis v. Washington, 547 U.S. 813, , 126 S.Ct. 2266, , 165 L.Ed.2d 224 (2006) Hallums v. United States 841 A.2d 1270, 1277 (D.C.2004) Jackson v. Virginia 443 U.S.307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) United States v. Brewer 36 F.3d 266,272 (2d Cir.1994) United States v. DesAnges 921 F.Supp. 349, 359 n. 8 (W.D.Va.1996) United States v. Guevara 277 F.3d 111, 127 (2d Cir.2001) United States v. Hamilton 948 F.Supp. 635, 639 (W.D.Ky.1996) United States v. Manfre 368 F.3d 832, 840 (8th Cir.2004) United States v. Mitchell 145 F.3d 572, 576 (3d Cir.1998) United States v. Peacock 654 F.2d 339, 350 (5th Cir.1981) STATE CASES: Anderson v. State 15 S.W.3d 177, (Tex.App.-Texarkana 2000, no pet.)

5 Ardovina v. State 143 Tex. Grim. 43, 156 S.W.2d 983, 984(1941) Beauchamp v. State 870 S.W.2d 649, 652 (Tex.App.-EI Paso 1994, pet. refd) Brandlev v. State 691 S.W.2d 699, 703(Tex. Grim. App. 1985))... 30,32 Brooks v. State 132 S.W.3d 702, 707 (Tex.App.-Dallas 2004, pet. refd)... 38,44 Butler v. State 769 S.W.2d 234, 239 (Tex. Grim. App. 1989)... 30,32 Coe v. State 683 S.W.2d 431, 438 (Tex.Grim.App.1984)... 30,32 Commonwealth v. Farquharson 467 Pa. 50, 354 A.2d 545, 554 (1976) Commonwealth v. Coleman 458 Pa. 112, 326 A.2d 387, 389 (1974) Fischer v. State of Texas 252 S.W.3d 375 (Tex. Crim.App. 2008) Garrett v. State 851 S.W.2d 853, 856 (Tex. Grim,.App. 1993) Houston v. State 663 S.W.2d 455, 456 (Tex. Grim. App.1984)... 30,32 Illinois Central R.R. Co. v. Lowerv 184 Ala. 443, 63 So. 952, 953 (1913) Johnson v. State 673 S.W.2d 190, 197 (Tex. Grim.App.1984)... 30,32 McGinn v. State 961 S.W.2d 161,168 (Tex. Grim. App. 1998)... 31,33 Perkins v. State 32 Tex. 109, 112(1869)... 30,32 IV

6 Rabbani v. State 847 S.W.2d 555, 560 (Tex.Crim.App.1992) Reeves v. State 806 S.W.2d 540, 543 (Tex. Crim.App.1990), cert. denied, -U.S.-, 111 S.Ct. 641, 113 L.Ed.2d 736 (1991 ) ,32 Santellan v. State 939 S.W.2d 155, 160 (Tex. Grim. App.1997)... 31,33 Williams v. State 692 S.W.2d 671, 676(Tex.Crim.App.1984) STATUTES, RULES, OTHER: TEX.CODE GRIM. PROC. ANN. Art (Vernon Supp. 1991) Sec (a)(2) of the Texas Penal Code... 27,31,32 Sec V.T.P.C Texas Rules of Evidence Rule Texas Rules of Evidence Rule Texas Rules of Evidence Rule ,40 Texas Rules of Evidence Rule Olin G. Wellborn Ill, The Definition of Hearsay in the Federal Rules of Evidence, 61 TEX. L.REV. 49, (1982) Edmund M. Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 HARV. L.REV.. 177, (1948) Laurence H. Tribe, Triangulating Hearsay, 87 HARV. L.REV.. 957, (1974)... Charles E. Moylan, Jr., Res Gestae, Or Why Is that Event Speaking and What Is It Doing in this Courtroom?, 63 A.B.A.J. 968 (1977) A ROY R. RAY, TEXAS PRACTICE: TEXAS LAW OF EVIDENCE CIVIL AND CRIMINAL 911, at (3d ed.1980)... 39,40 v

7 G.T. Banks, Comment, Res Gestae in the Texas Court of Criminal Appeals: A Method to Their Madness?, 50 TEX. L.REV. 119, 119 (1971) Michael E. Bornhouser, Comment, Res Gestae: A Synonym for Confusion, 20 BAYLOR L.REV. 229, 229 (1968) See 5 JOHN H. WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW , at (Chadbourn rev.1974) Vl

8 Nos CR & CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS WOODROW RAYMOND GLOVER, II Appellant vs. THE STATE OF TEXAS Appellee STATEMENT OF THE CASE On July 20 1 h, 2010 the Defendant entered a plea of not guilty to the charge of Capital Murder in Cause No. F W and not guilty to the charge of Aggravated Robbery in Cause No. F W before the Honorable Tracy F. Holmes, Judge presiding of the 363rd Judicial District Court. (RR: Vol. 3 p. 8-9) The jury found the Defendant guilty of aggravated robbery and capital murder. (RR: Vol. 5 p. 27) In the capital murder cause, the trial court sentenced the Defendant to imprisonment in the Institutional Division of the Texas Department of Criminal Justice for life without the possibility of parole. (RR: Vol. 5 p. 29) The trial court sentenced the Defendant to fifteen years confinement in the Institutional Division of the Texas Department of Criminal Justice in the aggravated robbery case. (RR: Vol. 5 p. 30) 1

9 STATEMENT OF FACTS Rochelle Manning testified that Russell Brooks was her brother and he was fifty seven years old at the time of his death. (RR: Vol. 3 p. 18) She said he had been living in East Dallas on Virginia Street, in the same area where they had grown up. (RR: Vol. 3 p. 18) She said his nickname was Po' Back because his back was slumped over. (RR: Vol. 3 p. 19) She said at the time of his death, he had tuberculosis and diabetes. (RR: Vol. 3 p. 19) She knew he used drugs and that he was involved in drug dealing. (RR: Vol. 3 p. 19) On cross examination the witness testified that her brother used crack. (RR: Vol. 3 p. 24) She said he received disability or government assistance. (RR: Vol. 3 p. 24) Dibon Massey testified that he goes by the name of 'Chris' and was currently incarcerated in the Dallas County Jail on felony charges in Collin and Denton counties. (RR: Vol. 3 p. 28) He stated that he was not promised any benefit for his testimony. (RR: Vol. 3 p. 28) On February 10, 2009 he was operating a drug house with some friends on Sycamore street in east Dallas. (RR: Vol. 3 p. 31) He knew the deceased by the name of Broke Back and he had known him for approximately two weeks before his death. (RR: Vol. 3 p. 32) He said Broke Back let him sell drugs out of his apartment on Virginia Street. (RR: Vol. 3 p ) He said Broke Back also sold crack cocaine with him. (RR: Vol. 3 p. 34) He said Broke Back was a nice person that everyone liked. (RR: Vol. 3 p. 34) 2

10 The witness testified that they would sit in Broke Back's apartment living room which had a bed and a couple of chairs. (RR: Vol. 3 p. 35) He said the bed was on the floor and Broke Back would stay in the bed while people came in and out. (RR: Vol. 3 p. 35) He said Broke Back would keep the drugs and money under his pillow. (RR: Vol. 3 p. 36) He said he met a young woman, Katie, through Broke Back and knew she lived a couple of blocks away. (RR: Vol. 3 p. 36) On February 10th, 2010, they were hanging out, selling and smoking crack out of Broke Back's apartment with Katie. (RR: Vol. 3 p. 37) He said there were people in and out of the apartment, buying and selling crack, including the Defendant. (RR: Vol. 3 p. 38) The witness identified the Defendant in court. (RR: Vol. 3 p. 38) He said the Defendant bought ten and twenty dollar pieces of crack from Broke Back, spending a lot of money. (RR: Vol. 3 p. 40) He said he saw the Defendant twice that night. (RR: Vol. 3 p. 40) He said he saw the Defendant a couple of nights before February 10th, when he bought crack from him in Broke Back's apartment. (RR: Vol. 3 p. 41) He said the Defendant stayed around to smoke the crack and on one occasion took Katie, who was a prostitute, with him when he left. (RR: Vol. 3 p. 43) He said Katie came back to Broke Back's apartment and they eventually left, went to his apartment, came back to Broke Back's apartment and then went to the Defendant's apartment. (RR: Vol. 3 p. 45) He said the Defendant lived three to five blocks from Broke Back. (RR: Vol. 3 p. 45) He said he and Katie went to his apartment to sell him some drugs. (RR: Vol. 3 p. 46) He said Broke Back couldn't physically walk to the Defendant's apartment. (RR: Vol. 3 p. 47) He said when he arrived at the 3

11 apartment, the Defendant's wife was laying on a bed. (RR: Vol. 3 p. 47) He said he didn't sell her any drugs but the Defendant bought some from him. (RR: Vol. 3 p. 47) He said when Katie took him to the Defendant's apartment it was between 3:00 a.m. and 4:00 a.m. (RR: Vol. 3 p. 48) The witness testified that he and Katie went back to Broke Back's apartment and then went to his apartment. (RR: Vol. 3 p. 49) He said he wanted to sleep, but Katie wanted to get more dope and go back to Broke Back's apartment because business had been good. (RR: Vol. 3 p. 49) At 6:00a.m. they started back towards Broke Back's apartment and then split up. (RR: Vol. 3 p. 51) He said he walked around, looking for a place to buy some donuts, didn't find any at the Chevron, so he went to the Valero which opened at 7:00 or 8:00a.m. (RR: Vol. 3 p. 52) He said he stopped back at his houses and then made his way to Broke Back's apartment. (RR: Vol. 3 p. 53) He said no one answered the door at Broke Back's so he went to Katie's house and wanted for her to return from her "date." (RR: Vol. 3 p. 53) He said she was going to buy some more dope from him. (RR: Vol. 3 p. 54) He said he knocked on Broke Back's door at 8:00 or 8:30a.m. (RR: Vol. 3 p. 54) He said Katie's mother was at her house and while they were sitting there, Katie's mother looked out the window and noticed there were police and an ambulance at Broke Back's apartment. (RR: Vol. 3 p. 54) He left and found Katie outside who told him that Broke Back was dead. (RR: Vol. 3 p. 55) The witness testified that he went to the apartment and spoke with the police who then took him and Katie to the police station. (RR: Vol. 3 p. 52) He said they 4

12 questioned him, and took samples from under his fingernails. (RR: Vol. 3 p. 57) The police showed him a photo lineup and he identified a photograph of the Defendant. (RR: Vol. 3 p. 58) He told the police that he had dealings with the Defendant. (RR: Vol. 3 p. 58) He stated that he had no idea of who had murdered Broke Back. (RR: Vol. 3 p. 58) He said the police swabbed his hands and clothes. (RR: Vol. 3 p. 59) On cross examination the witness testified that he brought his business to East Dallas from Oak Cliff through a friend to make more money. (RR: Vol. 3 p. 62) He said he also knew the deceased as "Pops" and Po' Back. (RR: Vol. 3 p. 63) He said he gave Pops some crack to try and gave it to other people as well to get them to come to his "spot." (RR: Vol. 3 p. 64) He said he didn't get his drugs from the same source as Pops. (RR: Vol. 3 p. 65) He said he got his drugs from nameless friends located in Oak Cliff. (RR: Vol. 3 p. 65) He said the number of customers he had depended on the night. (RR: Vol. 3 p. 67) He said he sold out of Pops apartment only a couple of night so he could get out of his house for awhile. (RR: Vol. 3 p. 67) He said while he was selling dope at Pop's house, someone was selling dope at his house. (RR: Vol. 3 p. 67) He said Katie was a customer. (RR: Vol. 3 p. 68) The witness testified that on the night of the murder, he and Katie played cards, had drinks and smoked dope at Pop's house. (RR: Vol. 3 p. 68) He said there was a lot of traffic that night. (RR: Vol. 3 p. 69) He didn't know if Broke Back had a weapon and he stated that he didn't carry a weapon. (RR: Vol. 3 p. 69) He said Broke Back usually sold dime quantities of crack. (RR: Vol. 3 p. 70) He said that he would see 5

13 the same customers three or four times in one night. (RR: Vol. 3 p. 70) He said Broke Back kept the door locked at all times. (RR: Vol. 3 p. 70) He said he first saw the Defendant that afternoon at Broke Back's house. (RR: Vol. 3 p. 71) He said he never saw any signs of animosity between Broke Back and the Defendant. (RR: Vol. 3 p. 72) He said it would be unusual for Broke Back to go to bed if someone was at his house. (RR: Vol. 3 p. 72) He said that after he and Katie went over to the Defendant's house, he did not see him anymore that day. (RR: Vol. 3 p. 73) He said he left the Defendant's house at 4:00 or 5:00 in the morning.(rr: Vol. 3 p. 74) Karen Pitts testified that she had five children and the Defendant was her fiance. (RR: Vol. 3 p. 82) She said she had known him for a year before the night of the incident. (RR: Vol. 3 p. 82) She said he moved in with her and her children at 1728 North Fitzhugh Apartment 205 in December, (RR: Vol. 3 p. 83) She said the apartment was located at the intersection of Fitzhugh and Ross. (RR: Vol. 3 p. 85) The witness testified that on February 10 1 h, 2009 she received $1,500 from her children's father and after buying some things, $500 to $600 remained. (RR: Vol. 3 p ) She said she asked the Defendant to hold it for her so she wouldn't spend it. (RR: Vol. 3 p ) She was a recovering meth addict and didn't want to blow the money on drugs. (RR: Vol. 3 p. 89) She said that day they barbequed, had a couple of drinks and smoked some marijuana with friends and neighbors. (RR: Vol. 3 p. 91) She said Woodrow was with them and was drinking beer. (RR: Vol. 3 p. 92) She said that evening they watched 6

14 television with the children and then put them to bed. (RR: Vol. 3 p. 93) She said she asked Woodrow to go out and get her some cigarettes. (RR: Vol. 3 p. 94) She said he was acting fine when he returned and she didn't notice anything about him that would indicate he was under the influence. (RR: Vol. 3 p. 94) She said he left the apartment another time and returned with a white lady named Katie. (RR: Vol. 3 p. 95) She said sometime after 10:00 p.m. the woman and her had sexual intercourse with the Defendant. (RR: Vol. 3 p. 96) She said no one was taking drugs during this time. (RR: Vol. 3 p. 96) She said Katie then left and the Defendant stayed there to have more sex with her. (RR: Vol. 3 p. 97) She said the Defendant went outside to smoke a cigarette and she fell asleep. (RR: Vol. 3 p. 98) She said the Defendant woke her up by calling her phone and asking her to open the door. (RR: Vol. 3 p. 98) She said when she opened the door for him, he appeared to be nervous. (RR: Vol. 3 p. 99) She said he returned some time before 7:30a.m. because the children were still asleep. (RR: Vol. 3 p. 99) She said he told her that he might have stabbed a man and he had to go. (RR: Vol. 3 p. 100) She said she learned the man was dead when she spoke with the police. (RR: Vol. 3 p. 100) She said he changed his shirt and left the apartment. (RR: Vol. 3 p. 100) She said he put the dirty shirt on her bed. (RR: Vol. 3 p. 100) The witness testified that after she and Katie had sex with the Defendant, Katie left but later returned with a man she didn't know. (RR: Vol. 3 p. 101) She said Katie brought the man back to her bedroom and he talked to the Defendant. (RR: Vol. 3 p. 102) She asked him if he was spending her money and he told her that he wasn't. (RR: Vol. 3 p. 102) She thought they were talking about buying drugs. (RR: Vol. 3 p. 7

15 103) She thought Katie brought the man over at 5:00a.m. (RR: Vol. 3 p. 104) She said about forty minutes to an hour, the Defendant went outside to smoke a cigarette. (RR: Vol. 3 p. 104) She said that after he returned and told her he had stabbed someone, he threw some money on the bed but she pushed it back at him because it had blood on it. (RR: Vol. 3 p. 105) She said he put the money in his pocket and left the apartment. (RR: Vol. 3 p. 106) She said that before he left the apartment, he lit up a crack pipe and then walked out the door. (RR: Vol. 3 p. 108) The witness testified that after the Defendant left, she called her pastor, Michael B. Phillips. (RR: Vol. 3 p. 108) The pastor came over and she told him what Woodrow had told her. (RR: Vol.3 p. 109) She said the pastor looked at the shirt and found two blood spots on it. (RR: Vol. 3 p. 11 0) She said she called Woodrow's phone and an officer answered the phone. (RR: Vol. 3 p. 11 0) She said the pastor called a detective he knew and officers came to her apartment. (RR: Vol. 3 p. 111) She said she had picked up the shirt, folded it up and put it in the closet with the Defendant's clothes. (RR: Vol. 3 p. 112) She said the detectives took the shirt and she went to the police station with her pastor. (RR: Vol. 3 p. 112) She gave the police a statement but did not recall telling the police the Defendant told her it was the perfect opportunity when the man fell asleep to kill him. (RR: Vol. 3 p. 113) She said the Defendant told her that he needed to get the money back to her. (RR: Vol. 3 p. 115) The witness testified that she was still engaged to the Defendant and still communicated with him. (RR: Vol. 3 p. 1276) 8

16 On cross examination the witness testified that she and the Defendant were to be married the week the incident took place. (RR: Vol. 3 p. 129) She stated that she did not see the Defendant ever smoke crack while they lived together. (RR: Vol. 3 p. 130) She said on February 9 1 h, 2008 at approximately 1:00 p.m. she started drinking Boone's Farm wine while they barbequed and had friends over. (RR: Vol. 3 p. 130) She said they drank at least four bottles of the wine and smoked two blunts. (RR: Vol. 3 p. 132) She said she was very intoxicated. (RR: Vol. 3 p. 13) She said the next morning she received a phone call from Katie who wanted to know the whereabouts of Woodrow. (RR: Vol. 3 p. 136) She told her that she didn't know where Woodrow was at the time. (RR: Vol. 3 p. 137) She then called Woodrow but he didn't answer his phone. (RR: Vol. 3 p. 138) She said she had been with Woodrow from midnight until the sun started coming up. (RR: Vol. 3 p. 139) She said when Woodrow came home, he was intoxicated, was ranting and raving and out of controi.(rr: Vol. 3 p. 139) She did not see him with a weapon. (RR: Vol. 3 p. 139) Reverend Mike Phillips testified that he was a reverend with the Holy Communion Baptist Church and also a firefighter with the Dallas Fire Department. (RR: Vol. 3 p ) He stated that he knew Karen Pitts and the Defendant through the church. (RR: Vol. 3 p. 144) He said the Defendant was a member of the church and also in the rehabilitation program for men that he runs. (RR: Vol. 3 p. 144) He said he had known the Defendant for six months before the incident.(rr: Vol. 3 p. 145) On February 10 1 h, 2009 he received a phone call from Karen Pitts who was crying and very disturbed. (RR: Vol. 3 p. 145) He said she told him that she was 9

17 upset because Woodrow told her that he had possibly murdered someone. (RR: Vol. 3 p. 146) He said she told him that some money was stolen from her, that Woodrow was trying to replace the money and stole the money from a drug dealer. (RR: Vol. 3 p. 147) He said she told him that Woodrow threw bloody money on the bed. (RR: Vol. 3 p. 147) She also told him that she had a shirt with blood on it. (RR: Vol. 3 p. 147) He testified that he went over to the apartment within an hour of Karen's telephone call. (RR: Vol. 3 p. 148) When he arrived, Karen was calmer and showed him the T-shirt on which he noticed were several spots of blood. (RR: Vol. 3 p ) He said he called Detective Lyon, a detective he knew from a previous case, and a detective came and picked up the shirt and hour or two later. (RR: Vol. 3 p ) He said Karen did not appear to be under the influence of drugs or alcohol. (RR: Vol. 3 p. 151) He said the police took Karen in for questioning but he never gave them a statement. (RR: Vol. 3 p. 153) On cross examination the witness testified that Karen told her ha Woodrow had stolen some money from her. (RR: Vol. 3 p. 154) He did not speak to Woodrow that morning. (RR: Vol. 3 p. 154) Karim Jiwani testified through an interpreter that he was from Pakistan and was currently working at Andy's Food Mart located at 2403 North Fitzhugh in Dallas, Texas. (RR: Vol. 3 p. 159) He said the market opens at 6:00a.m. and closes at midnight. (RR: Vol. 3 p. 160) He said the store was located at Fitzhugh and Capitol. (RR: Vol. 3 p. 162) He said he worked behind the counter as a cashier in the store. (RR: Vol. 3 p. 163) He said in February 10 1 h, 2009 he arrived at work at 6:00 a.m. and 10

18 about 8:00a.m. a man came in and bought a beer and a knife from him. (RR: Vol. 3 p. 164) He said the man asked him if the tacos were good and he went towards the tacos. (RR: Vol. 3 p. 165) He said there was a small gap in the counter between the tacos and where he stood. (RR: Vol. 3 p. 165) He said he was taking care of a customer when the man came between the cash register and the tacos and hit him in the head with the beer he had bought from him. (RR: Vol. 3 p ) He said the beer bottle was a 40 ounce bottle, the largest they sell. (RR: Vol. 3 p. 166) He said after the man hit him, he asked him for the money in the register. (RR: Vol. 3 p. 167) He said he gave the man the money. (RR: Vol. 3 p. 167) He said the man held the two inch knife he had bought from him open in his hand. (RR: Vol. 3 p. 167) He said when the man hit him with the bottle, the bottle slipped out of his hands. (RR: Vol. 3 p. 167) He said the man told him, motherfucker, give me the money. (RR: Vol. 3 p. 168) He said he opened the cash register and moved back. (RR: Vol. 3 p. 168) He said that when he came into the store that morning, there was $600 to $700 in the register. (RR: Vol. 3 p. 168) He said he dropped some money so there was between $400 and $500 in the register. (RR: Vol. 3 p. 169) He said the man took the money and told him Motherfucker, call the cops, I don't care, and he left the store. (RR: Vol. 3 p. 169) He said the man walked toward Capitol. (RR: Vol. 3 p. 169) A minute later he called the police who came to the store. (RR: Vol. 3 p. 169) The witness testified that one of his customers was standing outside so he asked him to follow the man, call the police and let them know where the man went. (RR: Vol. 3 p. 170) He said Isidro Ayallo followed the man. (RR: Vol. 3 p. 170) He said 11

19 the police took photographs of his injuries and the store. (RR: Vol. 3 p ) He said the bottle he was hit with cut his head. (RR: Vol. 3 p. 174) A few weeks later the police showed him photographs and he identified the photograph of the assailant. (RR: Vol. 3 p. 175) Isidro Ayala testified that on February 10th, 2009 he was getting out of his car outside Andy's Food Mart at 8:00 a.m. when he saw a person coming out of the store with money in his hands. (RR: Vol. 3 p. 185) He said the man that works at the store came out and he saw that his head was bloody. (RR: Vol. 3 p. 185) He asked the clerk what had happened and was told that he had just been robbed. (RR: Vol. 3 p. 185) He saw the man walking on Capitol so he grabbed his phone and called the police. (RR: Vol. 3 p. 186) He said he followed the man but when he told the police, the police told him not to follow the man because he may be dangerous. (RR: Vol. 3 p. 187) He said he then followed him in his car, passed him and then parked his car and watched him. (RR: Vol. 3 p. 187) He said he told the police where the man was located. (RR: Vol. 3 p. 187) He said when the man went by a school, the man went up to some girls and they gave him a sweater. (RR: Vol. 3 p. 188) He said the man took off his shirt, threw it down on the ground in front of the school. (RR: Vol. 3 p. 188) He said the man took out a telephone and at that point the police arrested him. (RR: Vol. 3 p. 189) Ignacio Delgado testified that he was a customer and standing outside at Andy's Food Mart on February 1oth, 2009 when he heard a bottle hit the door. (RR: Vol. 3 p. 193) He said a black man came out of the store and said that that the store was being robbed. (RR: Vol. 3 p. 194) He said the robber then came out through the other 12

20 door and he saw him putting money in his pockets. (RR: Vol. 3 p. 194) He said the man had a small knife in his hand. (RR: Vol. 3 p. 195) He said Karim, the cashier, was bleeding. (RR: Vol. 3 p. 1945) On cross examination the witness said someone threw the bottle against the door but he did not see who threw it. (RR: Vol. 3 p ) He said he saw the bottle on the floor when he went inside. (RR: Vol. 3 p. 197) He said there were two black men at the store that morning. (RR: Vol. 3 p. 198) He gave the police a statement but they never showed him any photographs. (RR: Vol. 3 p. 198) Jay Angelino, an officer with the Dallas Police Department, testified that on February 1oth, 2009 he was working patrol by himself when he heard a robbery call to 2403 Fitzhugh. (RR: Vol. 3 p. 202) He said he never made it to the offense scene because the dispatcher got on the radio and said the suspect was last seen at Capitol and North Carroll, his location. (RR: Vol. 3 p. 203) He started looking for the suspect and saw him walking down Capitol, wearing a blue shirt and talking on a phone. (RR: Vol. 3 p. 204) He radioed that he had the suspect in sight and Officer Watts arrived to assist. (RR: Vol. 3 p. 205) He said they both got, drew out their weapons and told the suspect to raise his hands. (RR: Vol. 3 p. 206) He said the suspect kept walking and wouldn't answer him. (RR: Vol. 3 p. 206) He said Officer Watts was also yelling at the suspect and when the suspect turned and looked at Officer Watts, he was able to get behind him and push him into a fence. (RR: Vol. 3 p. 207) He said when he handcuffed the suspect, the suspect told him that he might have robbed that place but he didn't kill the old man. (RR: Vol. 3 p. 208) He said the suspect told him that the old man on 13

21 Virginia, Pops, had a knife in his chest and he was already dead when he got there. (RR: Vol. 3 p. 211) The witness testified that he knew "Pops" and knew where he lived. (RR: Vol. 3 p. 210) He told dispatch to send someone over to the apartments on Virginia and check on a guy named "Pops." (RR: Vol. 3 p. 21 0) He identified the Defendant in court as the man he arrested that day. (RR: Vol. 3 p. 211) He said he never went to the apartment. (RR: Vol. 3 p. 212) On cross examination the officer testified that he had answered calls on Pops at that apartment complex on several occasions. (RR: Vol. 3 p. 212) He said Pops would have people in his apartment and would want them out. (RR: Vol. 3 p. 213) He said Pops would have arguments with neighbors or his music would be too loud. (RR: Vol. 3 p. 213) He said he never went there for drugs. (RR: Vol. 3 p. 213) The Officer stated that when he arrested the Defendant, he was intoxicated and he didn't question him. (RR: Vol. 3 p. 214) He said the Defendant did not say anything about money to him but did deny killing Pops. (RR: Vol. 3 p. 214) Raymond Watts, an officer with the Dallas Police Department, testified that he received a robbery call, heard Officer Angelino, and told dispatch that he would cover him on the call. (RR: Vol. 3 p. 218) When he arrived, Officer Angelino was out of his vehicle with his gun drawn on the Defendant. (RR: Vol. 3 p. 218) He got out of his vehicle, drew his gun on the Defendant. (RR: Vol. 3 p. 219) He said they closed in on the Defendant and when he saw he didn't have a gun, he told Officer Angelino to go in and they both brought him down. (RR: Vol. 3 p. 221) He said the Defendant told them 14

22 that he was just on the phone with the police. (RR: Vol. 3 p. 221) He said the Defendant told them that he had been doing drugs all night with an old man. (RR: Vol. 3 p. 222) The Defendant told them that the money didn't belong to him. (RR: Vol. 3 p. 222) He said the Defendant told them that he had just robbed a store and didn't kill that man on Virginia. (RR: Vol. 3 p ) He said the Defendant told him that he woke up and saw a knife in the old man's chest. (RR: Vol. 3 p. 223) The Defendant told him that he tried to pull it out and he was going to resuscitate him. (RR: Vol. 3 p. 223) He said the Defendant stated that he left the knife there and left the apartment unlocked. (RR: Vol. 3 p. 223) He said the Defendant said $150 belonged to his girlfriend and he had stole it from her. (RR: Vol. 3 p. 224) He said the Defendant's phone rang and the 911 operator was on the line. (RR: Vol. 3 p. 227) The witness testified that he knew the Defendant had been on drugs because he was very sweaty and his statements were erratic. (RR: Vol. 3 p. 227) On cross examination the witness testified that the Defendant also told them where to find his knife and shirt. (RR: Vol. 3 p. 228) He said the Defendant told him he had been involved in a robbery. (RR: Vol. 3 p. 228) Mike Eppie, a detective in the physical evidence section with the Dallas Police Department, testified that he went to Andy's Food Mart and photographed the scene. (RR: Vol. 3 p. 232) He said a 40 ounce beer bottle was in the trash can. (RR: Vol. 3 p. 232) He said a plastic jar containing folding knives was fingerprinted and the Defendant's left thumb print was found on it. (RR: Vol. 3 p. 233) He said an open folding knife was recovered three or four houses down from the business. (RR: Vol. 3 15

23 p. 234) He recovered some money and a shirt from Officer Angelino. (RR: Vol. 3 p. 234) He said he swabbed the beer bottle in an attempt to get a DNA sample.(rr: Vol. 3 p. 12) Michael Shaw, a Dallas Police Officer, testified that on February 10 1 h, 2009 he went with his partner, Officer Jenny Nance, to 4806 Virginia Avenue Apartment 107 where they found the door ajar. (RR: Vol. 4 p ) When they walked inside, they found Mr. Brooks laying on a mattress with his throat cut open and a large kitchen knife sticking out of his chest. (RR: Vol. 4 p. 19) They preserved the crime scene and called for an ambulance. (RR: Vol.4 p. 19) He said they found a handle to another knife with the blade located in the bedding with Mr. Brooks. (RR: Vol. 4 p. 22) Patricia Middleton testified she worked as a 911 operator at the time of the offense and identified State's Exhibit No. 75 as a recording of a call she took on February 10 1 h, (RR: Vol. 4 p. 28) The tape was played for the jury. (RR: Vol. 4 p. 29) She said the caller identified himself as Woodrow Raymond Glover. (RR: Vol. 4 p. 30) After the Defendant ended the call, she called back and a police officer answered and told her everything was alright. (RR: Vol. 4 p ) Joshua Forner, a Dallas Police Officer, testified that he responded to Andy's Food Mart and when he arrived he saw that two officers had the suspect in custody. (RR: Vol. 4 p. 35) Because he had a cage in his vehicle, the suspect was put into his vehicle and he transported him to jail. (RR: Vol. 4 p. 35) He said the Defendant told him that he did the robbery, but he didn't kill the guy in the apartment. (RR: Vol. 4 p 36) The Defendant told him where he took off his shirt and he retrieved it. (RR: Vol. 4 16

24 p. 36) He said the shirt was found near a school. (RR: Vol. 4 p. 37) He said the Defendant told him where he had tossed the knife and other officers retrieved the knife. (RR: Vol. 4 p. 39) The witness testified that the Defendant had cash, cigarette boxes containing four baggies containing crack cocaine. (RR: Vol. 4 p. 40) Detective Donald Whitsitt testified that he is assigned to the Physical Evidence Section and responded to the apartment at 4806 Virginia. (RR: Vol. 4 p. 45) He said the Complainant was laying in a makeshift bed with a knife in his chest and pieces of a knife in the bedding. (RR: Vol. 4 p. 45) He found a blood stain on the outside lower half of the door near the handle. (RR: Vol. 4 p. 48) He said the deceased was partially covered by blankets and had an unsmoked cigarette and cigarette packaging next him. (RR: Vol. 4 p. 52) He said the television was on when he arrived with the body facing it. (RR: Vol. 4 p. 53) He found a half smoked cigarette on top of the deceased. (RR: Vol. 4 p. 54) He said after the body was removed, he took possession of a broken knife with a black handle and a one inch of blade which was recovered from the top of the comforter. (RR: Vol. 4 p. 56) The knife that was in the chest remained there for the medical examiner. (RR: Vol. 4 p. 57) When the comforter was shaken, a four inch serrated metal blade fell out. (RR: Vol. 4 p. 58) The witness testified that he later went to an apartment on Fitzhugh where he collected a shirt which had some red/brown stains on it. (RR: Vol. 4 p ) He said one of the stains appeared to be small drops of blood and the other stain appeared to be a transfer stain. (RR: Vol. 4 p. 64) 17

25 Mike Epple was recalled and identified State's Exhibits Nos as photographs he took of the money found on the Defendant. (RR: Vol. 4 p. 72) He said there was $ and change on the Defendant. (RR: Vol. 4 p. 73) He said there were blood stains on a twenty dollar bill and a five dollar bill which were placed into evidence. (RR: Vol. 4 p ) He said he gave the remaining money back to the store after speaking to Detective Maudlin. (RR: Vol. 4 p. 75) Detective Bruce Chamberlain testified that he obtained a search warrant to obtain DNA from the Defendant. (RR: Vol. 4 p. 80) Detective Javier Gonzalez testified that on February 10 1 h, 2009 he went to CAPERS and took a buccal swab from the Defendant. (RR: Vol. 4 p. 84) He said the swab was then taken to SWIFS for analysis. (RR: Vol. 4 p. 86) Detective Dineen Cordon testified that on February 10 1 h, 2009 she was asked by Detective Chamberlain to collect fingernail scrapings, DNA handwashing and a buccal swab from Katie McDonald. (RR: Vol. 4 p ) She said she examined a black leather jacket which did not test positive for blood. (RR: Vol. 4 p. 96) The witness testified that she also collected fingernail scrapings and buccal swab from Dibon Massey. (RR: Vol. 4 p ) She conducted another presumptive test for blood on some of his clothing which was negative. (RR: Vol. 4 p. 99) She took fingernail scrapings and DNA handwashings from the Defendant. (RR: Vol. 4 p ) She said she collected his clothing and stated that the exterior of the right pocket of the sweat pants and both front pant legs on the jeans appeared to have blood stains. (RR: Vol. 4 p. 105) She said there were no areas of blood on his jacket or 18

26 shoes. (RR: Vol. 4 p ) She said the evidence was packaged and sent to SWIFS. (RR: Vol. 4 p. 109) Charles Rebstock, an investigator with the Dallas County District Attorney's Office, testified that he took a buccal swab of Karen Pitts because a t-shirt had been recovered from her apartment. (RR: Vol. 4 p. 114) An analyst at SWIFS had an unknown female contributor and needed to know identify them. (RR: Vol. 4 p. 115) Amanda Lehrmann, a forensic biologist at SWIFS, testified that she conducted the serology testing involving the deceased, Russell Brooks. (RR: Vol. 4 p. 121) She tested a knife, set of fingernail scrapings, some swabs, a pair of shoes, sweat pants, jeans, a belt, a jacket, a piece of a knife, a piece of a knife blade, a t-shirt, a pocketknife a $5 bill and a $20 bill for blood. (RR: Vol. 4 p. 122) She said no blood was detected when she performed serological analysis for Katie Me Donald or Dibon Massey. (RR: Vol. 4 p. 125) She said a knife, sweatpants, jeans, jacket and swab of the right middle finger of Woodrow Glover was tested for DNA. (RR: Vol. 4 p. 126) She said she found blood in the swab of the palm of the right hand of Woodrow Glover. (RR: Vol. 4 p. 126) She found traces of blood on the shoes belonging to the Defendant. (RR: Vol. 4 p. 127) The shirt collected from Apartment 205 tested positive for blood as did the $5 and $20 bills. (RR: Vol. 4 p. 127) She did not conduct the DNA testing in this case. (RR: Vol. 4 p. 128) The witness testified that State's Exhibit 153, the testing done on the $5 and $20 bills were done by Angela Thomas, co-worker. (RR: Vol.4 p. 128) She said 19

27 she signed off Ms. Thomas' report after a technical review of the report because the report met all the guidelines. (RR: Vol. 4 p. 133) Courtney Ferreira, a forensic biologist at SWIFS, testified that she performed DNA testing in this case. (RR: Vol. 4 p. 139) She said she had the known standards of the deceased, Russell Brooks, Woodrow Glover, Karen Pitts, Katie McDonald and Dibon Massey. (RR: Vol. 4 p. 140) She said the profile from the handle of the knife was of at least two people, with the deceased and the Defendant as contributors. (RR: Vol. 4 p. 141) She could not determine who was the major and minor contributor. (RR: Vol. 4 p. 141) She excluded Karen Pitts, Katie McDonald and Dibon Massey as contributors of DNA on the knife. (RR: Vol. 4 p. 144) She said that on the handle of the knife, there were additional genetic markers detected that couldn't be attributed to either Russell Brooks or Woodrow Glover. (RR: Vol. 4 p. 144) She said the stain on the knife blade contained the DNA profile of the deceased. (RR: Vol. 4 p. 145) She said the swab from the right middle finger of the Defendant contained the DNA profile of Karen Pitts. (RR: Vol. 4 p. 146) The swab from the Defendant's right palm contained the DNA of Russell Brooks, the Defendant and Karen Pitts. (RR: Vol. 4 p. 147) She said the swabs taken labeled top right, Sample 50 showed the DNA profile of the Defendant and Karen Pitts. (RR: Vol. 4 p. 147) The profile of the deceased was not detected in this sample. (RR: Vol. 4 p. 147) She said there was a genetic marker that could not be contributed to the deceased, the Defendant or Karen Pitts. (RR: Vol. 4 p. 148) She said the right shoe showed the Defendant and Karen Pitts as contributor to the DNA on them. (RR: Vol. 4 p. 148) The DNA of the deceased was not detected on 20

28 the shoes. (RR: Vol. 4 p. 148) She said there was a genetic marker on the shoes from an unknown contributor. (RR: Vol. 4 p. 149) She said the deceased was the major contributor to the DNA on the Defendant's sweatpants with the Defendant being a minor contributor. (RR: Vol. 4 p. 149) She said there was a genetic marker that corresponded to Karen Pitts on the sweatpants. (RR: Vol. 4 p. 149) The DNA profiles obtained from the stain from the jeans showed the Russell Brooks as the major contributor and the Defendant as a minor contributor. (RR: Vol. 4 p. 150) The Defendant's belt and jacket contained the DNA markers of the Defendant and Karen Pitts but none from the deceased. (RR: Vol. 4 p.151) She said the DNA profile from the piece of a knife was that of the deceased. (RR: Vol. 4 p ) The swabbing of the t-shirt contained the DNA profile of the Defendant and Karen Pitts but not the deceased. (RR: Vol. 4 p. 152) She said the blood stain from the t-shirt was a mixture of three contributors with the major contributor being Russell Brooks and the minor contributor being the Defendant. (RR: Vol. 4 p. 153) There were also markers detected in the DNA profile of Karen Pitts on the t-shirt. (RR: Vol. 4 p. 153) She said the DNA from the stains on the $5 and $20 bills matched the DNA profile of Russell Brooks with trace levels of the marker of the Defendant. (RR: Vol. 4 p. 157) On cross examination the witness testified that because there were additional markers on the knife handle that could not be attributed to the deceased or to the Defendant, someone else handled the knife. (RR: Vol. 4 p. 163) She said the unknown genetic markers found on the knife handle and the unknown genetic markers 21

29 found on the t-shirt were not compared. (RR: Vol. 4 p ) She said the additional genetic markers on the right shoe was also not compared. (RR: Vol. 4 p. 167) Jill Urban, a medical examiner for Dallas County, testified that the autopsy on Russell Brooks was performed on February 11 1 h, 2009 by Dr. Danny Lingamfelter. (RR: Vol. 4 p. 174) She said he was doing a fellowship and she supervised him during the autopsy. (RR: Vol. 4 p. 175) She stated that she later singed off on his findings as to the cause and manner of death. (RR: Vol. 4 p. 175) She said a knife had been in the body but had become dislodged during transport. (RR: Vol. 4 p.178) She said there was a cluster of injuries on the left side of the chest that consisted of two incised wounds and four stab wounds. (RR: Vol. 4 p. 180) The deepest stab wound was six inches and the knife was seven inches long. (RR: Vol. 4 p ) She said there was a cut at the front of the neck that went horizontally across but was not deep enough to go into any of the underlying vessels in the neck. (RR: Vol. 4 p. 184) She said the stab wounds went through the wall of his chest, through his left lung, through his heart and through his aorta. (RR: Vol. 4 p. 187) She said he had two liter of blood in his left chest cavity. (RR: Vol. 4 p.187) She said he would have survived several minutes with this injury. (RR: Vol. 4 p. 187) She said there was no evidence of a struggle. (RR: Vol. 4 p. 189) he cause of death was multiple sharp force injuries. (RR: Vol. 4 p. 190) She said the drug screen of the deceased was negative for alcohol or marijuana but positive for cocaine. (RR: Vol. 4 p. 191) Zelda Mack testified that she was the older sister of the Defendant and lived in Texarkana. (RR: Vol.4 p. 198) She said that they had spent a lot of time 22

30 together and he was not a violent person. (RR: Vol. 4 p ) She stated that she has never seen her brother with a weapon. (RR: Vol. 4 p. 201) The Defendant, Woodrow Glover, testified that he was thirty-three years old and was originally from Atlanta, Georgia. (RR: Vol. 4 p. 203) He said he received his GED in Georgia. (RR: Vol. 4 p. 204) He testified that he first came to Texas to live with his sister in Texarkana after he was convicted of marijuana possession in Fulton County, Georgia. (RR: Vol. 4 p. 204) He said he was sentenced to two years but served seven months with time off for good behavior. (RR: Vol. 4 p. 205) He said he also lived in Ohio where he was placed on two years probation for domestic violence. (RR: Vol. 4 p. 205) He said he never hit his girlfriend but they did argue and the police would be called. (RR: Vol. 4 p. 205) He came to Dallas in 2008 and first lived at the Dallas Life Foundation where he met Karen Pitts. (RR: Vol. 4 p. 206) They began dating and he eventually moved in with her after four months in the New Life Program. (RR: Vol. 4 p ) The Defendant testified that on the night in question, Karen had given him $150 to spend and $500 to hold for her. (RR: Vol. 4 p. 208) He said he put the $500 inside a book but took the $150, went to the drugstore and bought minutes for his phone. (RR: Vol. 4 p. 208) He said on the way back home, he gave into the urge to find some crack. (RR: Vol. 4 p. 208) He saw traffic coming and going from an apartment so he asked someone about it. (RR: Vol. 4 p. 208) He said before this day he did not know Pops, Katie or Mr. Massey. (RR: Vol. 4 p. 208) 23

31 He said he went into the apartment, bought some crack and took it home and smoked it in the back of the house. (RR: Vol. 4 p. 209) He said he started smoking at 4:00 or 5:00p.m. and ran out at 8:00 or 9:00p.m. (RR: Vol. 4 p. 21 0) He said after he ran out of crack, he grabbed a hundred dollars of Karen's money and went back to Pops' apartment and bought $100 more. (RR: Vol. 4 p.21 0) He said that most of the time he was the only other person in the apartment with Pops. (RR: Vol. 4 p. 211) He said he returned the apartment for crack three or four times and each time he spent 50- to $100. (RR: Vol. 4 p. 211) He said he spent $350 of Karen's money. (RR: Vol. 4 p. 211) He said the third time he went to Pops' apartment, he met Katie and asked her if she wanted to go back with him to his apartment. (RR: Vol. 4 p ) He said she would give him sexual favors in order to smoke some of his crack. (RR: Vol. 4 p. 212) He said they left Pops and went to his apartment where Karen was okay with the sexual encounter. (RR: Vol. 4 p. 212) He said Katie left the apartment and he and Karen had more sex. (RR: Vol. 4 p. 212) He said he was very wired up and tried to calm down. (RR: Vol. 4 p ) He hadn't smoked crack since sometime in (RR: Vol. 4 p. 213) He said he started smoking crack in 2003 while he lived in Ohio. (RR: Vol. 4 p. 213) The Defendant testified that he and Karen were laying in bed when Katie and Dibon Massey knocked on the door, wanting to sell him crack. (RR: Vol. 4 p ) He said he bought some crack from Mr. Massey so he would leave. (RR: Vol. 4 p. 214) He said he smoked some more which made him high. (RR: Vol. 4 p. 214) He said 24

32 Karen asked him if he was spending her money but wasn't angry at him. (RR: Vol. 4 p.214) At approximately 6:30 a.m.,just before Karen needed to get the children ready for school, he stepped outside the apartment to smoke a cigarette. (RR: Vol. 4 p. 215) He said he had $150 in his pocket and knew that Karen would be angry with him. (RR: Vol. 4 p. 215) He thought since he would be in trouble anyway, he decided to go buy some more crack from Pops. (RR: Vol. 4 p. 215) He said Pops was alone and didn't have very much dope, only a couple of dimes, and told him that he would have more crack later on. (RR: Vol. 4 p. 215) Pops told him that he needed to come back by the apartment later. (RR: Vol. 4 p. 215) He said Pops threw a couple of dime bags at him and he smoked them in the apartment. (RR: Vol. 4 p.215) The Defendant testified that he doesn't know if he fell asleep or passed out, but knew there was a period that he didn't remember. (RR: Vol. 4 p. 217) He said he never took any money from Pops. (RR: Vol. 4 p. 217) He said the money he threw on the bed at Karen was the same amount he had left with earlier. (RR: Vol. 4 p. 217) He said after he left the apartment, he called Karen and asked her to open the door for him. (RR: Vol. 4 p. 217) When he got inside the apartment he told Karen he thought he had stabbed someone and he needed to leave. (RR: Vol. 4 p. 218) He told her that he didn't understand what was happening to him. (RR: Vol. 4 p. 218) He said he put on another shirt, left the apartment and started walking. (RR: Vol. 4 p.218) He said he stopped at the store, bought a beer and while he was checking out, picked up a small pocketknife. (RR: Vol. 4 p.218) He said he was in a self destruct mode and wanted someone to kill him. (RR: Vol. 4 p. 218) He said he went behind the cash register and 25

33 hit the man with the bottle to scare him. (RR: Vol. 4 p. 219) He said he grabbed the money and walked out of the store. (RR: Vol. 4 p. 219) He said he knew enough people saw him so he called 911 to turn himself into the police. (RR: Vol. 4 p. 219) He said when he saw the police, he kept walking and pretended he had a gun so the police would shoot him.(rr: Vol. 4 p. 220) He told the police that he had robbed the store. (RR: Vol. 4 p.220) He said he knew he didn't have any intention of killing anyone. (RR: Vol. 4 p.220) On cross examination the Defendant testified that the crack made him paranoid and he thought people were attacking him while he was at Pops' apartment. (RR: Vol. 4 p.239) He said he had never had crack affect him like that before. (RR: Vol. 4 p. 240) The jury found the Defendant guilty of aggravated robbery and capital murder. (RR: Vol. 5 p. 27) In the capital murder cause, the trial court sentenced the Defendant to imprisonment in the Institutional Division of the Texas Department of Criminal Justice for life without the possibility of parole. (RR: Vol. 5 p. 29) The trial court sentenced the Defendant to fifteen years confinement in the Institutional Division of the Texas Department of Criminal Justice in the aggravated robbery case. (RR: Vol. 5 p. 30) SUMMARY OF ARGUMENT Appellant argues in the first two issues that the evidence presented at trial was insufficient to support the conviction for capital murder and aggravated robbery. Appellant argued in the third issue that the trial court erred in allowing hearsay 26

34 testimony. Appellant submits that this hearsay testimony was used by the State to fill in the gaps of the circumstantial evidence. APPELLANT'S ISSUE NO. 1 THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT THE CONVICTION FOR THE OFFENSE OF CAPITAL MURDER Appellant submits that the evidence presented at trial was not sufficient to support the conviction for capital murder in cause no. F W. A killing and unrelated taking of property do not constitute capital murder under felony-murder section; state must prove nexus between murder and theft, i.e., that murder occurred in order to facilitate taking of property. V.T. C. A., Penal Code 19.03(a)(2). Appellant argues that the State failed to show the nexus between the murder and the alleged theft; that the murder occurred in order for Appellant to take Complainant's money. There is nothing in the record which indicates that Appellant went to the apartment with the intention of murdering the Complainant. There is nothing in the record to indicate that Appellant went to the house to murder the Complainant in order to rob him or that a robbery occurred. Appellant went to the Complainant's apartment to buy crack from him. Dibon Massey, a drug dealer, testified that on the night before the body was discovered, he was present in the Complainant's apartment when Appellant bought and smoked crack there. (RR: Vol. 3 p. 38) Mr. Massey testified that he and a prostitute, Katie, took drugs to Appellant's apartment in order to sell more to him. (RR: Vol. 3 p. 45; 47) 27