Zamar D. Kirven v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-23-00212-CR

ZAMAR D. KIRVEN,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 54th District Court
McLennan County, Texas
Trial Court No. 2021-910-C2

MEMORANDUM OPINION

Zamar D. Kirven appeals from his conviction for capital murder. After finding

him guilty, a jury sentenced him to life in the Texas Department of Criminal Justice—

Institutional Division, without the possibility of parole. He raises three issues on appeal,

asserting that the trial court erred by: (1) allowing the State to question a defense witness

about extraneous offenses; (2) admitting two photographs; and (3) acting as an advocate

for the State. We affirm.
Background

On the night of April 17, 2021, Jacob Ybarra and Sabion Kubitza were shot and

killed in a bedroom of a home where they, Kirven, and others resided. While no one saw

Kirven shoot the victims, witnesses saw Kirven holding his gun earlier that evening.

Additionally, Ybarra's parents, who also live in that home, saw Kirven at the residence

with a gun after the shooting. The bullets recovered from the victims came from Kirven's

gun. Additional circumstantial evidence also pointed to Kirven's guilt. In his defense,

Kirven presented testimony of his cousin, Kevin Kirven, who testified that it was he who

shot Jacob and Sabion, not Zamar Kirven. The jury found Zamar Kirven guilty of capital

murder as alleged in the indictment. The trial court sentenced him to imprisonment for

life without the possibility of parole in accordance with the jury verdict.

Extraneous Offense Evidence

In his first issue, Kirven asserts the trial court erred in allowing the State to

question defense witness Kevin Kirven about extraneous offenses. He contends the

evidence is not relevant, and the prejudicial effect of this testimony substantially

outweighed the probative value of Kevin's alleged false allegations.

STANDARD OF REVIEW AND APPLICABLE LAW

We review the trial court's decision to admit contested testimony under an abuse

of discretion standard. Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007). We

will uphold the trial court's decision if it is within the zone of reasonable disagreement.

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Id. The trial court's evidentiary ruling must be upheld if it is reasonably supported by

the record and is correct under any applicable theory of law. Johnson v. State, 490 S.W.3d

895, 908 (Tex. Crim. App. 2016).

Relevant evidence means evidence having any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence. TEX. R. EVID. 401. Relevant evidence

may be excluded if it is unfairly prejudicial. See TEX. R. EVID. 403.

Discussion

The defense offered the testimony of Kirven's cousin, Kevin Kirven, who testified

that he is currently in jail and there were charges pending against him in three different

counties. Kevin told the jury that he shot the two men Kirven is accused of murdering.

On cross-examination, Kevin admitted he has been charged with eight counts of assault

with a deadly weapon on a public servant and two counts of murder. He stated that the

penalties he is facing do not matter; he has been locked up his whole life. Kevin explained

that Kirven told him about a problem with someone at the house where Kirven stayed

and that Kirven was going to "handle" it. Kevin told him "no" and testified that he would

do whatever he could for his cousin. He explained that Kirven "was going to the NFL" if

he could "get his life right." Kevin also admitted to having previously confessed to killing

two other individuals and said he was responsible for the death of a third man, Quinton

Murray.

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The State presented several rebuttal witnesses. A Fort Worth police department

detective testified that two of Kevin's cousins were charged with the murder of Murray.

He explained that there were discrepancies between his investigation and Kevin's

statements. Kevin also told him he killed someone when he was between nine and

fourteen years old and that he killed someone in a road rage incident in Round Rock,

Texas. He was unable to verify those statements. In the detective’s opinion, Kevin does

not have the ability to tell the truth.

Similarly, a prosecutor in the Tarrant County District Attorney's office testified

that she determined Kevin's confession was not truthful. No evidence links Kevin to

Murray's homicide.

Sergeant Sam Key, with the Waco Police Department, interviewed Kevin after he

was involved in a shootout with law enforcement officers. Kevin told him he was

responsible for a double murder in Mart.

At trial, Kirven objected to the State's line of questioning of Kevin on the basis of

relevance. If the opponent of the evidence also lodges an objection based on Rule of

Evidence 403, the trial court must weigh the probative value of the evidence against the

potential for unfair prejudice. TEX. R. EVID. 403; Andrade v. State, 246 S.W.3d 217, 227 (Tex.

App.—Houston [14th Dist.] 2007, pet. ref’d). If, as here, no such objection is made, we do

not review the evidence for unfair prejudice. See TEX. R. APP. P. 33.1(a); Nelson v. State,

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864 S.W.2d 496, 499 (Tex. Crim. App. 1993). Kirven has not preserved his complaint that

the complained-of evidence is more prejudicial than probative.

The rule of optional completeness permits the introduction of otherwise

inadmissible evidence when that evidence is necessary to fully and fairly explain a matter

"opened up" by the adverse party. Walters, 247 S.W.3d at 218. Thus, if a party introduces

part of an act, declaration, conversation, writing, or recorded statement, an adverse party

may inquire into any other part on the same subject. TEX. R. EVID. 107. The rule is

designed to reduce the possibility of the jury receiving a false impression from hearing

only a part of some act, conversation, or writing. Walters, 247 S.W.3d at 218. When Kirven

presented evidence of Kevin Kirven's pending charges, he opened the door, giving the

prosecution the right to inquire about relevant extraneous offenses under the exception

to the general rule excluding extraneous offense evidence. See Creekmore v. State, 860

S.W.2d 880, 892 (Tex. App.—San Antonio 1993, pet. ref’d) (op. on reh’g, en banc).

Exposure of a witness's motivation in testifying is a proper and important function

of the right of cross-examination. Cooper v. State, 95 S.W.3d 488, 493 (Tex. App.—Houston

[1st Dist.] 2002, pet. ref'd). Although the Texas Rules of Evidence do not allow the

admission of extraneous offense evidence to prove a person's character in order to show

that on a particular occasion the person acted in accordance with the character, this

evidence may be admissible for other purposes including to prove motive. TEX. R. EVID.

404(b)(1), (2). Additionally, rebuttal of a defensive theory is an exception under Rule

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404(b). Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009). When a false picture

is presented by the defense, the prosecution may impeach the defense witness's testimony

by introduction of extraneous offenses. See Creekmore, 860 S.W.2d at 892. Evidence of

Kevin Kirven's pending charges, for which he faces significant jail time, is admissible to

show his motive for confessing to these murders. Kevin knew he was already going to

prison, and he did not want his cousin to go to prison. Showing Kevin's motive for

confessing rebuts the defense's theory that Kirven was innocent because someone else

committed the murders. The trial court did not err in allowing the State to question Kevin

about extraneous offenses. We overrule Kirven's first issue.

Admission of Photographs

In his second issue, Kirven asserts the trial court erred in admitting State's Exhibits

134 and 135, which he describes as inadmissible victim impact evidence. He also argues

that the probative value of the exhibits was outweighed by the danger of unfair prejudice.

Officer Patrick Bellringer was wearing a body camera as he walked through the

home. When he walked into the bedroom where the murder victims were, the mother of

one of the victims was sitting on the floor next to her son. Exhibits 134 and 135 are blurry

photographs of screen captures from Officer Bellringer's body camera showing that

scene.

As a prerequisite to presenting a complaint for appellate review, the record must

show, among other things, the complaint was made to the trial court by a timely request,

Kirven v. State Page 6
objection, or motion that stated the grounds for the ruling sought from the trial court with

sufficient specificity to make the trial court aware of the complaint, unless the specific

grounds were apparent from the context. TEX. R. APP. P. 33.1(a)(1)(A). The issue on

appeal must comport with the objection made at trial; otherwise, the issue has not been

preserved for our review. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).

At trial, Kirven objected to the admission of these exhibits on the basis of relevance.

His complaints on appeal are that the probative value is outweighed by unfair prejudice

and that the photos "were consistent with inadmissible impact evidence." Therefore,

Kirven has not preserved this issue for review. See id. We overrule Kirven’s second issue.

Trial Court as Adversarial Advocate

In his third issue, Kirven asserts the trial court abused its discretion when it

conducted itself as an adversarial advocate against him. He recited four instances he

claims illustrate how the trial court “coached the State.”

Due process requires a neutral and detached judge. Brumit v. State, 206 S.W.3d

639, 645 (Tex. Crim. App. 2006). To reverse a judgment on the ground of improper

conduct or comments of the trial judge, an appellate court must be presented with proof

(1) that judicial impropriety was in fact committed, and (2) of probable prejudice to the

complaining party. Johnson v. State, 452 S.W.3d 398, 405 (Tex. App.—Amarillo 2014, pet.

ref’d). We operate under a presumption that the trial court’s actions are presumed

correct, and that presumption may be overcome only by a clear showing of bias. Brumit,

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206 S.W.3d at 245. When a claim of judicial bias is raised, we review the entire record to

determine if it shows the judge’s bias or prejudice denied the defendant due process.

Tovar v. State, 619 S.W.3d 783, 792 (Tex. App.—San Antonio 2020, pet. ref’d).

A trial judge has broad discretion in maintaining control and expediting the trial.

Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001). A judge can lawfully provide

guidance and manage presentation of evidence from the bench without abandoning her

role as an independent arbiter. See TEX. R. EVID. 611(a); Strong v. State, 138 S.W.3d 546,

552 (Tex. App.—Corpus Christi—Edinburg 2004, no pet.). Remarks that are critical of the

parties may support a bias challenge if they reveal an opinion deriving from an

extrajudicial source. Gaal v. State, 332 S.W.3d 448, 454 (Tex. Crim. App. 2011). Where no

extrajudicial information was considered, predispositions formed by a judge on the basis

of facts or events occurring in the course of the proceedings cannot be characterized as

judicial bias unless the trial court’s words reveal a deep-seated favoritism or antagonism

that would make fair judgment impossible. Id.

In three of the four instances Kirven complains of to show the court acted as an

advocate for the State, the court was directing the prosecutor to refrain from asking

leading questions and instructed the prosecutor as to how to ask the questions correctly.

This is the permissible provision of guidance. See Strong, 138 S.W.3d at 552.

The fourth instance quoted by Kirven occurred in chambers, outside the presence

of the jury. While discussing the parameters of Kevin Kirven’s upcoming testimony, the

Kirven v. State Page 8
court told the prosecutor “it’s gonna work out okay for you” and “[y]ou’re going to be

alright.” The parties had both argued extensively about what Kevin would testify to and

what the State could inquire about. By these comments, the judge was indicating what

testimony she was going to allow. These comments were neither extrajudicial nor a

showing of favoritism. See Gaal, 332 S.W.3d at 454. Our review of the record reveals no

indication of bias on the part of the trial court. See Tovar, 619 S.W.3d at 792. No judicial

impropriety was committed. See Brumit, 206 S.W.3d at 645. We overrule Kirven’s third

issue.

Conclusion

Finding no merit in Kirven’s issues on appeal, we affirm the trial court’s judgment.

STEVE SMITH
Justice

Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
(Chief Justice Gray concurs)
Affirmed
Opinion delivered and filed August 15, 2024
Do not publish
[CRPM]

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