Gittens v. State, 04-17-00230-CR

• Decision Date: 31 July 2018
• Docket Number: No. 04-17-00230-CR,04-17-00230-CR
• Citation: 560 S.W.3d 725
• Parties: Kerry GITTENS, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

560 S.W.3d 725

Kerry GITTENS, Appellant

v.The STATE of Texas, Appellee

No. 04-17-00230-CR

Court of Appeals of Texas, San Antonio.

Delivered and Filed: July 31, 2018

APPELLANT ATTORNEY: William T. Reece, Law Offices of William T. Reece Jr., 3030 Nacogdoches Rd., Suite 220, San Antonio, TX 78217.

APPELLEE ATTORNEY: Mary Beth Welsh, Assistant Criminal District Attorney, Paul Elizondo Tower, 101 W. Nueva, 7th Floor, San Antonio, TX 78205.

Sitting: Patricia O. Alvarez, Justice, Luz Elena D. Chapa, Justice, Irene Rios, Justice

OPINION

Opinion by: Patricia O. Alvarez, Justice

Appellant Kerry Gittens was charged by indictment with the murder of Antwan Jones. On August 26, 2016, after several days of trial, the State rested its case-in-chief and defense counsel announced the defense was prepared to rest. When Gittens did not appear after a court recess, the trial court found Gittens voluntarily and knowingly absented himself and proceeded to charge the jury in his absence. The jury found Gittens guilty of the charged offense.

On September 28, 2016, the trial court sentenced Gittens, in absentia, to fifty-years' confinement in the Institutional Division of the Texas Department of Criminal Justice. On March 10, 2017, Gittens appeared before the trial court and the trial court pronounced sentence in accordance with the sentence handed down on September 28, 2016.

Gittens raises four issues on appeal: (1) the trial court erred in admitting extraneous offense evidence; (2) the evidence was insufficient to support the jury’s verdict; (3) the trial court erred in proceeding in absentia; and (4) he received ineffective assistance of counsel. We affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A. November 15, 2014: Antwan’s Death

On November 15, 2014, at approximately 8:30 p.m., David O'Neal, his brother Antwan Jones, their cousin Denzel Ross, and Antwan’s three-year-old daughter were at their aunt’s house, Lula McFadden. Lula’s son, Odell McFadden was also at the house. Antwan, Denzel, Odell, Lula, and Antwan’s daughter were in the living room watching television and freestyling, or rapping, when the front doorbell rang.

David came from the back room and answered the door. Tyree Byrd, known as "Ace" or "Flocka," and Gittens, known as "Slim," followed David to the back room where the three men were playing video games. David testified, "I turned my back. And then I turned around, and both of them had guns." David remembered Byrd saying something akin to, "You know what it is. Give it up." When asked by the prosecutor, David explained that he understood that to mean, "I'm trying to rob you, like, you know what’s going on, like, don't play stupid. You know what it is. Don't play stupid.’ That’s what it means."

David testified that Gittens was pointing a gun at him and both men started asking for money. Byrd attempted to restrain David with zip ties, while Gittens held a gun to David’s face. When David resisted, David testified that Gittens hit him in the eye with the gun, "hard enough to cut the skin." That was when Byrd left the room and started down the hallway.

Denzel testified that Antwan suddenly told them to be quiet and Denzel heard glass break. Antwan stood up and walked to the hallway door and the next thing Denzel knew, "I heard a shot.... [W]hen I had looked up at Antwan, he was on the floor." He saw Byrd run out the front door and Gittens come running from the back.

David testified that he was in the bathroom checking his eye when he heard two gunshots. He ran toward the front of the house. Gittens was in the hallway holding a gun to David’s head when David saw his brother Antwan slide down the wall and blood smearing along the wall. David testified that was when he realized that Antwan had been shot.

Lula testified that she was in the kitchen when she heard the shot. She grabbed Antwan’s daughter and hid behind a trash can in the kitchen. Lula saw the "one that shot Antwan" leave through the front door, and "then here comes the other one [Gittens] from the back of the house with two guns up in—swinging them around and everything. And—and we was behind the trash can, and they left the door open." Lula testified she knew Gittens; he had been in her home before and played dominoes with David.

When David ran outside, he saw both men in a white truck with Gittens in the driver’s seat. David testified that he tried to follow them, but he could not find them. He went to Gittens’s house, but the white truck was not there.

B. Cell Phone Records

The State presented the AT&T business records for Gittens’s cellphone. The corporate security manager testified the cellphone records provide which side of the cellphone tower was communicating with the cellphone, the location of the tower, and the date and time of the call. Federal Bureau of Investigations Agent Mark Sedwick testified that he conducted cellular analysis on Gittens’s cellphone records.

Agent Sedwick testified that between 8:27 p.m. and 8:41 p.m., on November 15, 2014, Gittens was in "a coverage area that includes the homicide location of 329 Vine Street." The murder was estimated to have occurred at 8:35 p.m. Agent Sedwick continued that at "8:52 p.m. and 8:57 p.m., there were two more calls, and the phone has now moved northeast from the homicide location." The agent explained the cellphone records proved that Gittens’s cellphone was moving toward the McFadden residence before the murder and away from the McFadden residence after the murder. Agent McFadden further testified Gittens’s cellphone remained in the San Antonio area until November 19, 2014. On November 19, 2014, at approximately 12:16 a.m., the cellphone was in the Austin area. The cellphone eventually traveled to Houston and then to New Orleans.

C. August 20, 2015: Gittens’s Arrest

On August 20, 2015, more than nine months after Antwan’s death, Sergeant Lennie Wayne Rasberry, with the Gulf Coast Violent Offenders Task Force, received information that Gittens was staying at a motel near Katy, Texas on Interstate Highway 10. Sergeant Rasberry initiated a traffic stop of Gittens and observed narcotics in the console of Gittens’s vehicle. Gittens was arrested and taken back to the parking lot of the motel where he was interviewed.

Gittens denied additional narcotics were in the vehicle, but acknowledged there were narcotics in his motel room. Gittens consented to Sergeant Rasberry’s request to sign a consent to search. The officers entered the motel room and observed narcotics in plain view and several safes. Sergeant Rasberry obtained a search warrant to open the safes. The officers recovered two semiautomatic handguns, ammunition, narcotics, and cash.

D. Trial

Gittens was indicted by a Bexar County grand jury for Antwan Jones’s murder. Prior to trial, Gittens filed a motion to suppress evidence seized as a result of Gittens' arrest at the Houston motel. In the motion to suppress, Gittens sought to suppress "any items seized from him at the time of his arrest, including but not limited to any firearm, any ammunition, any identification cards in other persons names, any alleged marijuana, and any other alleged drug or controlled substance, any amount of United States currency, any safes, and any testimony regarding any of the foregoing items." The trial court denied the motion to suppress.

The case was called to trial on August 23, 2016. After several days of testimony, the State rested. During the break, defense counsel announced the defense was also prepared to rest and the court prepared the court’s jury charge. When the matter was recalled, the defendant was not present. Defense counsel was unable to contact Gittens and his pretrial supervision officer reported his ankle monitor had been cut off. The trial court issued a warrant, made an affirmative finding that Gittens voluntarily and knowingly absented himself from the proceedings, and continued the trial in his absence. The trial court read the court’s jury charge and the attorneys presented closing arguments. On August 26, 2016, the jury returned a guilty verdict in Gittens’s absence. The matter was reset for sentencing before the trial court.

On September 28, 2016, Gittens was sentenced, in absentia, to fifty-years' confinement in the Institutional Division of the Texas Department of Criminal Justice. Almost six months later, after Gittens was arrested and remanded to Bexar County, the trial court pronounced judgment in accordance with the sentence announced on September 28, 2016.

We turn to Gittens’s first issue, the testimony surrounding his arrest and the evidence seized by the officers.

EXTRANEOUS OFFENSE EVIDENCE

A. Arguments of the Parties

In his first issue on appeal, Gittens contends the trial court erred in allowing Sergeant Lennie Rasberry to testify to inadmissible extraneous evidence—that in the course of arresting Gittens, the officers received consent to search his motel room and seized three safes containing among other things drugs, marijuana, money, two firearms, and ammunition. See TEX. R. EVID. 404(b).

The State counters the evidence was probative of Gittens’s motive to commit the robbery and integral in the State’s efforts to prove that Gittens was the individual identified by the witnesses.

B. Standard of Review

An appellate court reviews a trial court’s decision to admit or exclude evidence under an abuse of discretion standard. Williams v. State , 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) ; Prible v. State , 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). "As long as the trial court’s ruling was within the ‘zone of reasonable disagreement,’ there is no abuse of discretion, and the trial court’s ruling will be upheld." Prible , 175 S.W.3d at 731 (quoting Santellan v. State , 939 S.W.2d 155, 169 (Tex. Crim. App. 1997) ); accord Devoe v. State , 354 S.W.3d 457, 469 (Tex. Crim. App. 2011) (concluding that discretion is not abused if the decision falls within the zone of reasonable disagreement). "[I]f the trial court’s evidentiary ruling is...