Quest Al'Javaughn Jones v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-23-00146-CR

QUEST AL'JAVAUGHN JONES,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 19th District Court
McLennan County, Texas
Trial Court No. 2019-516-C1

OPINION

Appellant, Quest Al’Javaughn Jones, was convicted of murdering Sherrell Carter

and received a sixty-year prison sentence. See TEX. PENAL CODE ANN. § 19.02. In three

issues on appeal, Jones contends that: (1) the trial court abused its discretion by admitting

testimony about a telephone call made by Jones while he was in jail; (2) the trial court

abused its discretion by permitting testimony during the guilt-innocence phase of trial
that Jones was in a gang; and (3) the trial court erred by assessing $3,000 for court-

appointed investigator fees in the bill of costs and judgment. We affirm.

The Jail Telephone Call

In his first issue, Jones asserts that the trial court abused its discretion by admitting

testimony about a telephone call Jones made while incarcerated in the McLennan County

Jail, which contained a threat that the same thing that happened to Carter, the victim in

this case, would happen to Lacreshia Jackson, the mother of Jones’s two oldest children.

STANDARD OF REVIEW

We review the trial court’s admission of extraneous-offense evidence for an abuse

of discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). If the trial

court’s ruling is within the zone of reasonable disagreement, there is no abuse of

discretion. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). A trial court’s

ruling on the admissibility of an extraneous offense is generally within this zone if the

evidence shows that: (1) an extraneous transaction is relevant to a material, non-

propensity issue; and (2) the probative value of the evidence is not substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the

jury. De La Paz, 279 S.W.3d at 344. “Furthermore, if the trial court’s evidentiary ruling is

correct on any theory of law applicable to that ruling, it will not be disturbed even if the

trial judge gave the wrong reason for his right ruling.” Id.

Jones v. State Page 2
TEXAS RULE OF EVIDENCE 404(B)

Texas Rule of Evidence 404(b) expressly provides that evidence of other crimes,

wrongs, or acts is not admissible to prove the character of the defendant in order to show

he acted in conformity therewith. TEX. R. EVID. 404(b). This rule codifies the common-

law principles that a defendant should be tried only for the offense for which he is

charged and not for being a criminal generally. See Rogers v. State, 853 S.W.2d 32, n.3 (Tex.

Crim. App. 1993); see also Segundo v. State, 270 S.W.3d 79, 87 (Tex. Crim. App. 2008)

(explaining that a defendant is generally to be tried only for the offense charged, not for

any other crimes).

Extraneous-offense evidence, however, may be admissible for other purposes,

such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident. TEX. R. EVID. 404(b). The list of examples in Rule 404(b)

is not exhaustive. See Prible, 175 S.W.3d at 731. “Whether extraneous[-]offense evidence

has relevance apart from character conformity, as required by Rule 404(b), is a question

for the trial court.” Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). The trial

court’s Rule 404(b) ruling admitting evidence is generally within the zone of reasonable

disagreement “if there is evidence supporting that an extraneous transaction is relevant

to a material, non-propensity issue.” Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App.

2011).

Jones v. State Page 3
Here, Jones’s defensive theory was that he did not kill Carter, but rather an

intruder broke into the house and shot Carter and attempted to shoot him. In other

words, Jones put identity at issue. To rebut Jones’s defensive theory, the State called

Jackson to testify about her prior relationship with Jones, as well as a telephone call she

received from Jones after Jones had been arrested for this offense. Jackson described the

telephone call, and the State presented a recording of the telephone call for admission

into evidence. Jones objected to Jackson’s testimony and the admission of the recording

of the telephone call under Texas Rules of Evidence 403 and 404(b). The trial court

overruled Jones’s objections and admitted the testimony and the recording of the

telephone call into evidence. The recording of the telephone call, which contained a

threat made by Jones to Jackson that the same thing that happened to Carter would

happen to Jackson was played for the jury.

An extraneous offense may be admissible to show identity when identity is at issue

in the case, or when the defense cross examines witnesses or alleges that someone else

committed the crime. See Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006); Lane

v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996). The threat made in the telephone

call demonstrated Jones’s knowledge about what had happened to Carter and served as

some evidence rebutting Jones’s defensive theory that someone else murdered Carter.

See TEX. R. EVID. 404(b). Because the complained-of extraneous-offense evidence was

Jones v. State Page 4
admissible for multiple proper purposes, we conclude that the evidence was relevant for

more than just character conformity. See id.

TEXAS RULE OF EVIDENCE 403

Next, we address Jones’s Rule 403 argument. Evidence, though relevant, can

nonetheless be excluded when its probative value is substantially outweighed by the

danger of unfair prejudice. See id. at R. 403. Once a trial court determines that extraneous-

offense evidence is admissible under Rule 404(b), the trial court must, on proper objection

by the opponent of the evidence, weigh the probative value of the evidence against its

potential for unfair prejudice. Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App.

1991); see TEX. R. EVID. 403. Rule 403 favors admitting relevant evidence, and the

presumption is that relevant evidence will be more probative than unfairly prejudicial.

Montgomery, 810 S.W.2d at 389. Unfair prejudice does not mean the evidence injures the

opponent’s case—“the central point of offering evidence.” Rogers v. State, 991 S.W.2d 263,

266 (Tex. Crim. App. 1999). “Rather[,] it refers to ‘an undue tendency to suggest a

decision on an improper basis, commonly, though not necessarily, an emotional one.’”

Id. (quoting Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993)).

Although not limited to the following enumerated factors, courts should balance

the following under a Rule 403 analysis: (1) the probative value of the evidence; (2) the

potential for the evidence to impress the jury in some irrational, yet indelible way; (3) the

time needed to develop the evidence; and (4) the proponent’s need for the evidence.

Jones v. State Page 5
Prible, 175 S.W.3d at 733. The trial court is presumed to have conducted a proper

balancing test if it overrules a Rule 403 objection, regardless of whether it conducted the

test on the record. See Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1995).

As stated earlier, Jones challenged the identity element of the charged offense. The

State needed the complained-of extraneous-offense evidence because it was probative on

the issue of identity, and because it rebutted Jones’s defensive theory. See Moses, 105

S.W.3d at 626 (noting that rebuttal of a defensive theory is one of the permissible purposes

for which extraneous-offense evidence may be admitted); see also Daggett v. State, 187

S.W.3d 444, 453-54 (Tex. Crim. App. 2005) (stating that extraneous offenses are admissible

to rebut theories raised by testimony of a defense witness during direct examination or a

State’s witness during cross-examination). This is especially true considering there was

no eyewitness to the shooting other than Jones. The record shows that very little time

was spent on developing the complained-of extraneous-offense evidence, and there is

nothing in the record demonstrating that this evidence impressed the jury in some

irrational, yet indelible, way. Thus, we cannot say that the extraneous-offense evidence

confused, distracted, or caused the jury to give the evidence undue weight.

Rule 403 “envisions exclusion of [relevant] evidence only when there is a ‘clear

disparity between the degree of prejudice of the offered evidence and its probative

value.’” Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (quoting Conner v.

State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)). We cannot say that there is a “clear

Jones v. State Page 6
disparity” between the danger of unfair prejudice posed by the complained-of

extraneous-offense evidence and its probative value. See id.; see also Conner, 67 S.W.3d at

202. Accordingly, we cannot conclude that the trial court abused its discretion by

admitting this evidence over Jones’s Rule 403 and 404(b) objections. See TEX. R. EVID. 403,

404(b); see also De La Paz, 279 S.W.3d at 343; Prible, 175 S.W.3d at 731. We overrule Jones’s

first issue.

Gang Testimony

In his second issue, Jones argues that the trial court abused its discretion by

allowing Tydrick Busby, Carter’s cousin, to testify that Jones was in a gang.

At trial, Busby was asked to describe the relationship between Jones and Carter.

Busby responded that he “didn’t like it.” When asked why he did not like the

relationship, Busby noted, “Because he was doing too much. He was in gangs, very

hostile.” This response elicited an objection from Jones that the testimony was not

relevant and that there was “no basis for that type of testimony at this point.” The State

countered that the statement about Jones’s purported gang membership described why

Busby did not like the relationship and “the way that this relationship was going before

the death.” The State further argued that the testimony “goes directly to state of mind,”

although the State did not articulate whose state of mind. The trial court overruled

Jones’s objection and, without a request from Jones, issued the following instruction to

the jury:

Jones v. State Page 7
Ladies and gentlemen, any information that’s being elicited in this line of
questioning is for—can be used for proof of motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of mistake or lack of
accident.

On appeal, Jones asserts that this testimony should have been excluded because it

is violative of Texas Rule of Evidence 404(b). To preserve error for appellate review, a

complaining party must make a timely and specific objection. See TEX. R. APP. P.

33.1(a)(1); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Texas courts have

held that points of error must correspond or comport with objections and arguments

made at trial. Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998); see Wright v. State,

154 S.W.3d 235, 241 (Tex. App.—Texarkana 2005, pet. ref’d). “Where a trial objection

does not comport with the issue raised on appeal, the appellant has preserved nothing

for review.” Wright, 154 S.W.3d at 241; see Resendiz v. State, 112 S.W.3d 541, 547 (Tex.

Crim. App. 2003) (holding that an issue was not preserved for appellate review because

appellant’s trial objection did not comport with the issue he raised on appeal). Because

Jones’s relevance objection made in the trial court does not comport with his Rule 404(b)

objection on appeal, we cannot say that he has preserved this complaint for appellate

review. See TEX. R. APP. P. 33.1(a)(1); Resendiz, 112 S.W.3d at 547; Dixon, 2 S.W.3d at 273;

Wright, 154 S.W.3d at 241; see also Ukwuachu v. State, No. 10-15-00376-CR, 2022 Tex. App.

LEXIS 7284, at *3 (Tex. App.—Waco Sept. 28, 2022, no pet.) (mem. op., not designated for

publication) (“Ukwuachu’s trial objection was based solely on relevance and did not

Jones v. State Page 8
preserve a Rule 403 or 404(b) objection for our review.”). Accordingly, we overrule

Jones’s second issue.

Court-Appointed Investigator Fees

In his third issue, Jones complains that the trial court improperly assessed $3,000

for court-appointed investigator fees in the bill of costs and judgment.

Here, Jones was determined to be indigent, and as such, the trial court granted

several requests for funds to secure the services of investigators. In particular, on May 3,

2023, the trial court signed a second order granting payment of interim requisition and

allotment of additional funds for an investigator in the amount of $3,000. In the bill of

costs, there is a line item in the section “Mandatory Reimbursement” indicating a charge

for $3,000 in court-appointed investigator fees. However, the same line item also shows

that the $3,000 in court-appointed investigator fees has been paid, leaving a $0 balance.

Because the complaint in this issue is purely monetary, the voluntary payment of the

investigator’s fees rendered the issue moot. See Rios v. State, No. 10-21-00266-CR, ___

S.W.3d ___, 2023 Tex. App. LEXIS 9344, at *4 (Tex. App.—Waco Dec. 14, 2023, no pet. h.)

(mem. op., not designated for publication) (concluding that the voluntary payment of a

fine and court costs rendered the issue moot) (citing Dulin v. State, 620 S.W.3d 129, 131

(Tex. Crim. App. 2021)). We therefore overrule Jones’s third issue.

Jones v. State Page 9
Conclusion

Having overruled all of Jones’s issues on appeal, we affirm the judgment of the

trial court.

STEVE SMITH
Justice

Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
(Chief Justice Gray concurring)
Affirmed
Opinion delivered and filed February 1, 2024
Publish
[CR25]

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