Alexander v. State

DONTE JEROME ALEXANDER, Appellant v. THE STATE OF TEXAS, Appellee

NO. 14-17-00392-CR

NO. 14-17-00393-CR

State of Texas in the Fourteenth Court of Appeals

November 13, 2018

On Appeal from the 339th District Court Harris County, Texas

Trial Court Cause Nos. 1545992 & 1545993

MEMORANDUM OPINION

A jury found appellant guilty as charged of the aggravated robbery of Jessica Hurwitz¹ and the aggravated kidnapping of Russell Guajardo.² The jury sentenced appellant to confinement for fifty-five years and twenty years, respectively. Thesentences were ordered to run concurrently. Appellant timely filed a notice of appeal in both cases. He raises five issues complaining of the sufficiency of the evidence and the erroneous admission of evidence. We affirm.

FACTUAL BACKGROUND

Both offenses in this case arose from a plan to rob Oscar Cabrera-Lopez, a drug dealer.³ The plan was executed by three men. One of the men, Joshua Smith, was known to Guajardo because they were high-school classmates. The other two men were eventually identified as Jeffery Jenkins, also known as "Fifi," and appellant. During the effort to rob Cabrera-Lopez, Hurwitz's keys were taken and Guajardo was held at gunpoint. Guajardo made a pre-trial and in-court identification of appellant. Appellant's defense was misidentification. To prove the identity of appellant as the third man involved in the Cabrera-Lopez robbery, evidence of a subsequent robbery of another drug dealer, Deandre Blacklock, was admitted into evidence. Blacklock was robbed by three men and one of them, Smith, was shot and killed. The challenges on appeal pertain to the theft of Hurwitz's car keys and the admission of text messages from Smith's cell phone, the pre-trial and in-court identification of appellant by Guajardo, and the extraneous offense—the Blacklock robbery. Before considering appellant's complaints, we set forth the evidence relevant to his issues.

THE EVIDENCE

Guajardo testified that on February 4, 2013, he talked to Smith, a friend in his class at school, about procuring marijuana for Smith. The plan was for Guajardo to take Smith to the "plug," the person with the marijuana. Smith had Guajardo's phone number, which ended in 5582, and they arranged to meet after school. When theymet, Guajardo walked up to a vehicle, which he described as a small black SUV. Two males Guajardo did not know were in the front seat of the vehicle. Both men had pistols and one of them ordered Guajardo to get in the vehicle. Smith was in the backseat and did not have a gun. Guajardo entered the vehicle and sat behind the driver's seat. In court, Guajardo identified appellant as one the two men in the front seat of the vehicle.

Guajardo sent the plug, Cabrera-Lopez, a text and they drove to an apartment complex on Woodchase. Once there, Guajardo refused to tell the men where Cabrera-Lopez lived but he called Cabrera-Lopez and told him to come outside. Guajardo testified that Cabrera-Lopez came up to the vehicle that he was in and, after that, all Guajardo saw was Cabrera-Lopez running away. The vehicle then went forward a little bit and stopped. The people in the front seat got out and ran to another car. Guajardo was left alone in the car with Smith. Guajardo tried to open the door but could not and testified that he was locked in the vehicle. Guajardo hit Smith in the face but then the other two men came back; they were gone about two seconds. Guajardo was driven back to a location near where he had been picked up.

According to Guajardo, he cooperated to try and "get out of the situation" but was not part of the plan to rob Cabrera-Lopez. Guajardo testified that the men who tried to rob Cabrera-Lopez threatened to kill him and cut off his ears; stuck a gun "far down" his throat; put a gun to his head; pointed a gun at his chest; said they were going to kill him; and hit him in the head with a gun. Guajardo did not initially call the police because he did not want to "get busted" for selling marijuana. Guajardo called the police about two days later.

Jessica Hurwitz testified that she was at an apartment on Woodchase along with Cabrera-Lopez and two other females, Ashley and Nubia. The four of them left the apartment; Cabrera-Lopez was going to meet Guajardo to sell him marijuana.Hurwitz went to her car with Ashley and Nubia; Hurwitz got in the driver's seat while Ashley and Nubia got in the backseat. Cabrera-Lopez walked in the direction of a vehicle parked behind Hurwitz's car.

Hurwitz testified that Cabrera-Lopez suddenly got in the passenger seat and told her to hurry up and reverse. Hurwitz put the car in reverse but a man was standing next to her and there was a gun in her face. The man opened the door and told Hurwitz that he was a police officer and she was under arrest. When Hurwitz asked, "for what," he would not answer. The man told her to park the car and take the keys out of the ignition. He then reached across her, gun still to her head, and took the keys. The man then ordered Cabrera-Lopez out of the car. Cabrera-Lopez took off and the man ran after him. The man kept Hurwitz's car keys. Hurwitz was unable to identify the man. After Hurwitz got out of her car, she saw the other vehicle was gone. Hurwitz called the police but did not tell the officer about Cabrera-Lopez.

Cabrera-Lopez testified that Guajardo called and asked him for two ounces of marijuana. Cabrera-Lopez put the marijuana in his backpack and left the apartment with Ashley, Nubia and Hurwitz. Cabrera-Lopez approached a vehicle, which he described as a dark green SUV, in the parking lot while the others entered Hurwitz's vehicle. Cabrera-Lopez saw Guajardo in the middle of the back seat with a gun to his head. Two men exited the vehicle — one from the driver's side and one from the passenger's side. The third man remained in the backseat with Guajardo. The men told Cabrera-Lopez that he was under arrest and to get on the ground. Both men had guns and Cabrera-Lopez suspected they were not police. Cabrera-Lopez ran to Hurwitz's car, dropping the backpack as he ran, and entered the vehicle on the passenger's side. Cabrera-Lopez told Hurwitz to put the vehicle in reverse but before she could, a man was next to her door and there was a gun in her face. The man said he was a police officer, to get out of the car, and she was under arrest. The man toldHurwitz to park the car and take the keys out of the ignition. He reached across her, gun still to her head, and took the keys. The other man opened Cabrera-Lopez's car and pointed a gun at him. The men told Cabrera-Lopez to get out and get on the ground. Cabrera-Lopez looked at Hurwitz, she nodded, he got out, put his hands up, and ran. The man on Hurwitz's side of the vehicle ran after Cabrera-Lopez. Cabrera-Lopez continued running and "didn't look back." Cabrera-Lopez called the police and reported seeing "a car with some girls" and "some guys with guns pointed at them." Cabrera-Lopez did not disclose his involvement. When the police called Cabrera-Lopez three or four days after the incident, he denied there had been a drug deal. Cabrera-Lopez testified the two men were wearing hoodies and were African-American with dark complexions but he was unable to make an identification.

Officer Michael Ybanez of the Houston Police Department investigated both the aggravated kidnapping of Guajardo and the aggravated robbery of Hurwitz. Guajardo said he was there to meet Smith and Cabrera-Lopez and admitted the meeting was for a narcotics transaction. Guajardo said two other men were involved. When Ybanez showed a photospread to Guajardo, he tentatively identified appellant. In court, Guajardo positively identified appellant as the person who held him at gunpoint. A suspect for the third man was developed, Jeffery Jenkins, nicknamed Fifi. No other suspects were developed in this case.

Ybanez spoke with Smith and kept his cell phone as possible evidence. Ybanez obtained a search warrant for Smith's phone and was able to review it. Some of the text messages retrieved from Smith's phone were admitted into evidence.

EXTRANEOUS-OFFENSE EVIDENCE

Approximately seven weeks later, on March 24, 2013, another drug dealer, Deandre Blacklock, was robbed. Blacklock testified that Smith called him wanting to buy a large quantity of marijuana. Blacklock went to meet Smith in the parkinglot and saw a small black SUV. When Blacklock approached, he saw three males. The driver, Smith, said to get in the back and Blacklock got in the passenger seat behind the driver. Smith and appellant pulled out a gun. Appellant said to kill Blacklock and Smith agreed and began driving away. When Blacklock saw appellant look away for a second, Blacklock hit him and reached for the gun. They struggled for the gun. Blacklock tried to get out but the door would not open; he concluded the child-safety lock was on. The gun went off in the struggle. Appellant told Smith to stop the car and he did. Blacklock was able to open appellant's door and fell out of the vehicle, directly on the back of his head. When Blacklock was out of the car, he let go of the gun, got up, and ran around the back of the vehicle. Smith began firing at Blacklock, hitting him in the shoulder. Blacklock got away.

Blacklock was shown a photographic lineup after leaving the hospital and identified appellant. In court, Blacklock identified the man in the back seat with him as appellant. Blacklock testified that appellant had gained weight but Blacklock remembered his eyes.

Sergeant Mohamad Khan of the Houston Police Department investigated the Blacklock case. It occurred on Creekbend, within six miles of the robbery and kidnapping on Woodchase. The first suspect developed in the Blacklock case was Smith. Khan spoke with Ybanez, who had developed appellant and Jenkins as suspects in the Woodchase case. Khan identified appellant in court as one of Ybanez's suspects. Khan also was looking for two men in addition to Smith. Khan arranged for Blacklock to be shown...