Damion McKinney v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-25-00030-CR
___________________________

DAMION MCKINNEY, Appellant

V.

THE STATE OF TEXAS

On Appeal from Criminal District Court No. 2
Tarrant County, Texas
Trial Court No. 1779711

Before Birdwell, Wallach, and Walker, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION

I. Introduction

The State presented evidence that on May 6, 2023, a black male wearing glasses

and driving a blue car with license plate SCT 1387 robbed Ricky Sims outside of a

used car lot. Sims testified that the bespectacled robber was armed and accompanied

in that vehicle by an armed black female with a masculine appearance and by an

armed “light-skinned” black male in the used red Corvette that Sims had sought to

purchase. Sims identified Appellant Damion McKinney at trial as the blue car’s driver.

The State’s evidence also included gas station surveillance video of the blue car

and its driver eight minutes from the scene just before the offense occurred and body

camera footage of a traffic stop three days after the robbery, showing McKinney as

the blue car’s driver. The officer who conducted the traffic stop identified McKinney

at trial and testified that the blue car’s passenger was a black female with a masculine

appearance. The crime scene officer who subsequently searched the blue car pursuant

to a warrant testified that she located McKinney’s driver’s license in a wallet in the

driver’s side door, and her photo of his driver’s license was admitted into evidence

and published to the jury.

McKinney, in an interview that occurred before his arrest, admitted to the

investigating detective that he was the blue car’s driver and had been at the robbery

scene, but he did not admit to any involvement in the robbery. After this interview,

the detective put McKinney’s photo into a photo lineup from which Sims identified

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McKinney as one of the robbers with “a hundred percent” certainty. During Sims’s

cross-examination, McKinney’s counsel offered, and the trial court admitted, the

photo lineup, which showed McKinney as the only suspect wearing glasses. The

detective did not write the robbery arrest warrant for McKinney until after (1) Sims

picked him from the lineup, (2) McKinney admitted having been at the scene, and

(3) the gas station surveillance video confirmed McKinney’s presence near the scene

that day. The detective also testified that when he interviewed McKinney after his

arrest, McKinney asked him about “making a barter” in the case.

Despite his “not-guilty” plea, a jury found McKinney guilty of aggravated

robbery with a deadly weapon, a first-degree felony. See Tex. Penal Code Ann. § 29.03.

McKinney also pled “not true” to the enhancement allegations of two prior and

sequential final felony convictions, but the trial court found the allegations true and

then sentenced him to 35 years’ confinement. See id. § 12.42(d).

In four issues, McKinney complains that the trial court erred by (1) denying

him due process when it allowed Sims to identify him in court after an impermissibly

suggestive photo lineup; (2) admitting the gas station surveillance video based on

improper authentication; (3) admitting his statements made during a custodial

interrogation without a voluntariness finding; and (4) failing to grant a mistrial after

the detective made “prejudicial statements regarding [his] being in custody.” In an

unnumbered issue, he also argues that the above cumulatively violated his right to a

fair trial.

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Because the record reflects no preservation of McKinney’s first and fourth

issues, no abuse of discretion in his second and third issues, and thus no error to

accumulate in his unnumbered issue, we affirm the trial court’s judgment.

II. Identification

In his first issue, McKinney argues that allowing Sims to make an in-person

identification of him at trial violated his right to due process because Sims admitted

that he had a limited time to view his robbers and described one of them as “a person

with glasses and dark skin” and Fort Worth Police Detective Kenyon Willingham

presented him with a lineup with McKinney as the only person wearing glasses.

The State responds that because the trial court never ruled on this issue, it is

not preserved for our review. The State points out that McKinney did not file a

written pretrial motion to suppress; that, when McKinney orally moved to suppress

the in-court identification at trial, the trial court denied it as untimely; that McKinney

does not complain about that ruling in this appeal; and that McKinney did not object

to Sims’s in-court identification of him. See Ethington v. State, 819 S.W.2d 854, 858

(Tex. Crim. App. 1991) (stating that an error in the admission of evidence is cured

when the same evidence comes in elsewhere without objection); see also Tex. R. App.

P. 33.1 (setting out how to preserve error); Holmes v. State, 248 S.W.3d 194, 199 (Tex.

Crim. App. 2008) (noting that a defendant can challenge evidence’s admissibility

either by objecting to its admission when it is offered at trial and requesting a hearing

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outside the jury’s presence or by filing a pretrial motion to suppress and having it

heard and ruled upon before trial).

Even assuming, for argument’s sake, that McKinney had preserved this

complaint for our review,1 the trial court admitted the following unobjected-to

evidence at trial that proved McKinney’s identity as one of Sims’s robbers:

• Sims testified that he was robbed at gunpoint on May 6, 2023, between 4:21 p.m.
(the time his Uber arrived at the used car lot) and 4:25 p.m. (the time of his first
911 call). In the 911 call, Sims gave the blue car’s license plate number and
described its driver as a black guy “with some glasses on.”

• McKinney was not wearing glasses at trial. The prosecutor asked Sims, “Even
though he’s not wearing glasses, do you still recognize him as the driver of that
blue car?” Sims replied, “He could put a wig, makeup on, I could recognize him.”

• During Sims’s cross-examination, McKinney’s counsel offered, and the trial court
admitted, the photo lineup containing McKinney,2 allowing the jury to compare
his lineup appearance to his trial appearance.

1
After voir dire but before opening statements, McKinney’s counsel orally
moved to suppress Sims’s in-court identification of him based on “an impermissibly
suggesti[ve] lineup.” The State objected that the motion was untimely, and the trial
court sustained that objection. The State later offered for the record a copy of court
procedures and the pretrial waiver. The court procedures require bringing any pretrial
matters that will require a hearing to the trial court’s attention “immediately upon
receipt of the setting notice,” and the pretrial waiver states, “We hereby agree that
there are no pre-trial matters that require testimony or pre-trial motions that are
potentially case dispositive that need to be addressed with the Court regarding the
above referenced matter,” and it was signed by the prosecutor and defense counsel in
August 2024. Trial began on January 27, 2025.
2
McKinney’s counsel attempted to turn the lineup into part of his trial strategy.
During his opening statement, he informed the jury that the evidence would show an
impermissibly suggestive lineup because “only Mr. McKinney was wearing glasses”
and advised the jury, “It’s easy enough to generate a lineup with similar features and
similar characteristics like everybody wearing glasses, but that’s not what they did.”

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• Body camera video of the traffic stop three days after the robbery showed that
McKinney was the driver of the blue car with license plate SCT 1387. The video
allowed the jurors to compare Sims’s testimony, in-court identification, and 911-
call description to McKinney’s appearance three days after the offense and to
compare for themselves this evidence with McKinney’s appearance at trial.

• McKinney’s driver’s license—showing him without glasses—was found with him
in the blue car during the traffic stop three days after the robbery, again allowing
the jurors to compare his appearance to the above description.

• Gas station surveillance video showed McKinney and the blue car with license
plate SCT 1387 immediately before the robbery and near the scene, again allowing
the jury to compare his appearance to the other evidence presented at trial.

• Detective Willingham testified that McKinney had admitted to him that he had
driven the blue car and had been at the robbery scene on May 6, 2023, and he
stated that he did not include McKinney in the photo lineup until after he both
spoke with McKinney and confirmed McKinney’s whereabouts that day at the gas
station near the crime scene before the robbery.

In light of the above, even if McKinney had preserved this complaint, see Tex. R. App.

P. 33.1, any error from the photo lineup would be harmless,3 and we overrule his first

issue.

During Sims’s cross-examination, McKinney’s counsel asked Sims, “Do you know
why they wouldn’t show you six photos with . . . kind of like-appearing guys with
glasses,” and Sims replied, “You got to ask them. I described to the T.” The
investigating detective acknowledged during cross-examination that the risk of
preparing a lineup in which only one person has a distinguishing characteristic could
result in a misidentification. During closing arguments, McKinney’s counsel argued
that the lineup was “completely suggestive.”
Suggestive line-ups or in-court identifications after such lineups are reviewed
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to determine whether they give rise to a very substantial likelihood of
misidentification based on the totality of the circumstances. See Neil v. Biggers, 409 U.S.
188, 196–98, 93 S. Ct. 375, 380–82 (1972) (citing Stovall v. Denno, 388 U.S. 293, 301–

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III. Authentication

In his second issue, McKinney complains that the trial court abused its

discretion by admitting State’s Exhibit 17, the gas station surveillance video, because it

was not properly authenticated when the State “failed to produce a witness to testify

to the authenticity of the video . . . or that [it] had not in any way been altered or

edited,” in violation of Rule of Evidence 901. The State responds that the trial court

did not abuse its discretion by admitting the video after sufficient evidence was

offered to support its authenticity when Detective Willingham testified that he

obtained the security footage from the gas station and did not alter it and when

McKinney “can be seen in the footage driving the same car used for the robbery.”

A. Background

Detective Willingham testified that he tracked the blue vehicle to a QuikTrip

(QT) gas station and requested video from QT for the offense date of May 6, 2023.

When the prosecutor asked him if State’s Exhibit 17 was a fair and accurate copy of

the video he received from QT from that date, Detective Willingham replied, “Yes,

sir,” and when the prosecutor asked him if it had been altered or changed in any way

since he received it, he replied, “No, sir.” Defense counsel objected to the video’s

admission, stating, “There’s no testimony that this is a fair and accurate depiction of

02, 87 S. Ct. 1967, 1972 (1967), and Simmons v. United States, 390 U.S. 377, 384, 88 S.
Ct. 967, 971 (1968)). The central question is whether an identification is reliable
despite a suggestive confrontation procedure. Id. at 199, 93 S. Ct. at 382. The record
here, containing ample corroborative evidence, reflects the reliability of McKinney’s
pretrial and in-court identifications by Sims as one of the robbers.

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the events that are recorded on that date. We would require somebody from QT to

authenticate the video . . . .” The prosecutor responded that the detective had received

the video directly from QT and did not need to be present at the location to

authenticate that it was what it appeared to be. The trial court overruled McKinney’s

objection and admitted the video.

B. Applicable law

Under Rule of Evidence 104(a), whether to admit evidence is a preliminary

question for the trial court, and Rule of Evidence 901(a) defines authentication as an

admissibility “condition precedent” that requires the proponent to make a threshold

showing that would be “sufficient to support a finding that the matter in question is

what its proponent claims.” Tienda v. State, 358 S.W.3d 633, 637–38 (Tex. Crim. App.

2012) (citing Tex. R. Evid. 104(a), 901(a)). In performing its Rule 104 gate-keeping

function in a jury trial, the trial court must be persuaded that the evidence’s proponent

has supplied facts sufficient to support a reasonable jury’s determination that the

evidence is authentic. Id. at 638. “Evidence may be authenticated in a number of ways,

including by direct testimony from a witness with personal knowledge, by comparison

with other authenticated evidence, or by circumstantial evidence.” Id. “Testimony of a

witness with knowledge” is “[t]estimony that an item is what it is claimed to be.” Tex.

R. Evid. 901(b)(1).

The Court of Criminal Appeals has been asked to determine whether a video’s

proponent may sufficiently prove its authenticity “without the testimony of someone

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who either witnessed what the video depicts or is familiar with the functioning of the

recording device,” and has concluded that, “yes, it is possible.” Fowler v. State, 544

S.W.3d 844, 848 (Tex. Crim. App. 2018). In Fowler, police found a Family Dollar store

receipt near a burglarized building; the receipt was date- and time-stamped and listed

some of the equipment used in the burglary. Id. at 846. They went to the store and

requested surveillance footage from the receipt’s date and time. Id. The store’s

manager retrieved a video stamped with the same date and time as the receipt. Id.

As here, at trial, defense counsel objected that “[t]hey need somebody from the

Family Dollar store” to support the video’s admissibility. Id. However, after the

sponsoring officer testified that the video had the same date and time that was on the

receipt, the trial court admitted it, and then the officer testified that the customer on

the video was the defendant, who was holding in his hand some cutters—one of the

items on the receipt. Id. at 847–48.

The court noted, “even though the most common way to authenticate a video

is through the testimony of a witness with personal knowledge who observed the

scene, that is not the only way.” Id. at 849. Evidence can also be authenticated by the

appearance, contents, substance, internal patterns, or other distinctive characteristics

of the item, taken together with all the circumstances. Id. Because video recordings

without audio are treated as photographs and are properly authenticated when it can

be proved that the images accurately represent the scene in question and are relevant

to the disputed issue, the trial court did not abuse its discretion when the State

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authenticated the video with (1) the officer’s in-person request of the store manager

to pull the surveillance video on a certain date at a certain time; (2) the distinctive

characteristic that there is a date and time stamp on the video; (3) the fact that the

video’s date and time correspond to the date and time on the receipt found near the

crime scene; and (4) the fact that the video pulled by the store manager reveals the

defendant at the store on that date at that time purchasing the items listed on the

receipt. Id. at 849–50 (holding that trial court’s determination that the officer supplied

facts sufficient to support a reasonable jury determination that the video was

authentic was a decision within the zone of reasonable disagreement and thus no

abuse of discretion).

C. Analysis

Based on Detective Willingham’s testimony and the QT video’s contents,

which showed the blue car with license plate SCT 1387 and its driver, a black male

wearing glasses, near the robbery scene between 3:43 p.m. and 3:48 p.m., the trial

court could have reasonably determined that the QT video was sufficiently authentic

to admit it to the jury and thus did not abuse its discretion. See id. We overrule

McKinney’s second issue.

IV. Custodial statements

In his third issue, McKinney argues that the trial court erred by allowing

Detective Willingham to testify about his statements in custodial interrogation in

violation of his right to counsel, rendering his statements involuntary. He asserts that

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there is “no evidence that [he] made an intelligent, voluntary[,] and knowing waiver of

his right to counsel when the Detective met with him in jail in the absence of his

counsel.” The State responds that the evidence at the trial court’s Article 38.22

hearing showed that McKinney knowingly and intelligently waived his right to have

counsel present during questioning and that he spoke with the detective willingly

when Detective Willingham met with him after McKinney asked to speak to the

detective and clearly waived his rights.

A. Background

Detective Willingham testified that when he spoke with McKinney for the

second time, McKinney had been under arrest for the aggravated robbery and had

asked to speak with him. After a defense objection to this testimony, the trial court

held a hearing under Code of Criminal Procedure Article 38.22 outside the jury’s

presence at defense counsel’s request.

During the Article 38.22 hearing, Detective Willingham testified that McKinney

had been in custody before the second interview, that he had read to McKinney his

Miranda rights, that this was recorded on the detective’s body camera in State’s

Exhibit 44, and that McKinney had answered that he understood the warnings and

voluntarily waived them. The prosecutor then advised the trial court that the State did

not intend to play the body camera video or to introduce it but rather to ask Detective

Willingham about the questioning and McKinney’s request to barter in the case.

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Defense counsel objected that there had been no affirmative waiver of

McKinney’s rights to proceed with the interview and that the detective had known

that McKinney was represented by counsel, making it an improper contact with a

represented defendant and thus inadmissible. The prosecutor replied that McKinney

had asked to speak with the detective and “very clearly waived his rights, and the

detective made him answer verbally yes to every single waiver.” The trial court

reviewed that portion of the video and overruled the admissibility objection, finding

orally that Article 38.22, Section 3 had been complied with and allowing the

prosecutor to go into some of the questioning “since the State is not going to actually

play the video.” The trial court also granted to McKinney a running objection.

Before the jury, Detective Willingham testified that McKinney had asked to

speak with him, that he had read the Miranda warnings to McKinney, that McKinney

had waived his rights, and that McKinney—in his own words—had asked about

“making a barter” in the case, which the detective understood meant that McKinney

had information about the offense and was showing his consciousness of guilt.

B. Applicable law

The Sixth Amendment right to counsel applies in all state criminal prosecutions

in which the defendant is accused of a felony, and once the adversarial judicial process

has been initiated, the Sixth Amendment right to counsel guarantees the accused the

right to have counsel present at all “critical” stages of the criminal proceeding. Hughen

v. State, 297 S.W.3d 330, 334 (Tex. Crim. App. 2009). Interrogation by police after

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charges have been brought is such a critical stage. Id. But the Sixth Amendment right

to have counsel present during interrogation, once the adversarial judicial process has

been initiated, may be waived, as long as the waiver is voluntary, knowing, and

intelligent. Id. at 334–35. And when an accused is read his Miranda rights, which

include the right to have counsel present during interrogation, and he agrees to waive

those rights, that typically suffices to validly waive the Sixth Amendment right to have

counsel present during interrogation. Id. at 335. Further, to show a Sixth Amendment

violation, the defendant must demonstrate that the police took some action, beyond

mere listening, that was designed to deliberately elicit incriminating remarks. State v.

Maldonado, 259 S.W.3d 184, 191 (Tex. Crim. App. 2008) (stating that when the

defendant initiated the communication with the officer, he was “in a position to

unilaterally waive his Sixth Amendment right to counsel”).

Article 38.22 sets out rules governing the admissibility of an accused’s

statements that are the product of custodial interrogation. Oursbourn v. State, 259

S.W.3d 159, 171 (Tex. Crim. App. 2008). Section 3 of Article 38.22 applies to an

accused’s custodial-interrogation statements and provides that only “warned and

waived” statements may be admitted. Id. That is, an accused’s custodial-interrogation

statement is not admissible unless, before making the statement, he “received the

warnings provided in Article 15.17 or Article 38.22, [Section] 2(a) or [Section] 3(a)

(which incorporate the requirements of Miranda), and he knowingly, intelligently, and

voluntarily waived those rights.” Id. at 171–72; see also Tex. Code Crim. Proc. Ann. art.

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38.21 (“A statement of an accused may be used in evidence against him if it appears

that the same was freely and voluntarily made without compulsion or persuasion.”).

C. Analysis

We have reviewed State’s Exhibit 44, body camera video that shows that

Detective Willingham gave McKinney his Miranda warnings and that McKinney

acknowledged that he understood each of those warnings before the detective asked

him what McKinney wanted to talk with him about. Because the trial court could have

reasonably found from viewing the video that McKinney had made a knowing,

intelligent, and voluntary waiver of his rights by opting to speak with Detective

Willingham after he received his Miranda warnings, there was no Sixth Amendment or

Article 38.22 violation when Detective Willingham subsequently testified about

McKinney’s statements. 4 We overrule McKinney’s third issue.

V. Mistrial

In his fourth issue, McKinney complains that the trial court erred by failing to

grant a mistrial after Detective Willingham’s testimony that he was in custody in the

county jail, violating his right to the presumption of innocence. He asserts, “In the

instant case, the universe of inferences that a jury could draw from the admission of

4
Further, considering the overwhelming evidence of McKinney’s identity as one
of the robbers, the fact issue for the jury was whether McKinney had committed armed
robbery, as charged in the indictment and testified by Sims, or robbery without guns, as
testified by another witness and included as a lesser-included offense in the jury
charge.

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testimony that [he] was being detained in the county jail is limited to [his being]

dangerous[] or . . . culpable for this charge or another charge.”

The State responds that the trial court did not abuse its discretion when

Detective Willingham had already testified, without objection, that the interview took

place after McKinney’s arrest, making McKinney’s location in county jail after his

arrest redundant and any added prejudice de minimis, particularly when the jury is

presumed to have followed the trial court’s instruction to disregard.

During Detective Willingham’s direct testimony, the following dialogue ensued:

Q. [Prosecutor:] And after the Defendant was arrested for this offense, did
you later speak with him again?

A. Yes, sir.

Q. And was that conversation a little bit different than your first
one?

A. Yes, sir.

Q. How so?

A. This time, we were -- he was in County at the time, and I went to
talk to him.

[Defense counsel]: Judge, I object to the witness referring to my
client as being in County.

THE COURT: Sustained.

[Defense counsel]: Ask that the jury disregard.

THE COURT: The jury will disregard the last answer.

[Defense counsel]: And we’ll request a mistrial.

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THE COURT: Overruled. [Emphases added.]

A mistrial is the trial court’s remedy for improper conduct that is “so

prejudicial that expenditure of further time and expense would be wasteful and futile.”

Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). However, here, in

addition to Detective Willingham’s unobjected-to testimony that the interview

occurred after McKinney’s arrest, the record also reflects that during Detective

Willingham’s cross-examination by McKinney’s defense counsel, the “county”

reference occurred again with no objection, request for an instruction to disregard, or

motion for mistrial:

Q. [Defense counsel:] Okay. And at that time, Mr. Sims had not
made any sort of identification. I think you testified to that earlier. That
came after your interview with Mr. McKinney, correct?

A. Which time? Okay. So which interview are you referring to,
because I --

Q. The first one.

A. -- interviewed him a couple times.

Q. The first one.

A. After -- so the first time, no, he had not identified him yet.

Q. Right. And you told Mr. McKinney that someone was putting
his name in something, correct?

A. Correct.

Q. And that wasn’t true, right?

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A. Are you referencing when he was in County when I was interviewing him?

Q. No.

A. Is that the interview you’re talking about?

Q. No. I’m talking about the first time that you interviewed him.

A. Okay. Yes, sir. [Emphasis added.]

Because the record reflects that the same information was admitted without

objection, see Ethington, 819 S.W.2d at 858, we overrule McKinney’s fourth issue.

VI. Cumulative error

In a cumulative-error analysis, we consider only errors that were preserved for

appeal and that were actually errors. Schmidt v. State, 612 S.W.3d 359, 372 (Tex. App.—

Houston [1st Dist.] 2019, pet. ref’d); see Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.

Crim. App. 1999) (stating that the doctrine does not apply to non-errors). As set out

above, McKinney failed to preserve some of his complaints and the rest showed no

abuse of discretion. Accordingly, we overrule McKinney’s unnumbered remaining issue.

VII. Conclusion

Having overruled all of McKinney’s issues, we affirm the trial court’s judgment.

/s/ Wade Birdwell

Wade Birdwell
Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: January 15, 2026

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