CourtListener 9494933•Quest Al'Javaughn Jones v. the State of Texas
Full text
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
On February 1, 2024, we issued an opinion, concurring opinion, and judgment in
this cause. We grant Appellant’s motion for rehearing. We vacate and withdraw our
opinion and the concurring opinion, and withdraw our judgment, dated February 1, 2024.
We issue this opinion and accompanying judgment in its place.
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 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
Jones v. State Page 2
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.
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
Jones v. State Page 3
to a material, non-propensity issue.” Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App.
2011).
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.
Jones v. State Page 4
See TEX. R. EVID. 404(b). Because the complained-of extraneous-offense evidence was
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
Jones v. State Page 5
time needed to develop the evidence; and (4) the proponent’s need for the evidence.
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. 1997).
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.
Jones v. State Page 6
State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)). We cannot say that there is a “clear
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.
On appeal, Jones asserts that this testimony should have been excluded because it
is violative of Texas Rule of Evidence 404(b). See TEX. R. EVID. 404(b). In our original
opinion, we held that Jones failed to preserve his Rule 404(b) claim for our review because
he made a relevancy objection – not a Rule 404(b) objection – at trial. See TEX. R. APP. P.
33.1(a)(1); Medina v. State, 7 S.W.3d 633, 643 (Tex. Crim. App. 1999) (explaining that a
relevancy objection at trial “does not preserve error concerning a Rule 404 extraneous
offense claim.”). Jones filed his Motion for Rehearing on this issue, pointing to the trial
court’s sua sponte Rule 404(b) limiting instruction that accompanied its ruling on the
admissibility of the gang evidence. He claims that the trial court’s limiting instruction is
Jones v. State Page 7
proof that the trial court understood his objection as a Rule 404(b) objection, thus
preserving the claim for appellate review.
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.” The following relevant exchange occurred regarding the gang testimony:
[Defense Counsel]: Judge, at this time, I would object to that testimony as
far as being relevant…
The Court: …What’s your objection?
[Defense Counsel]: Judge, I would object to the relevance of that type of
information.
[The State]: Judge, it’s in our notice under 404(b) of his gang affiliation.
[Defense Counsel]: Judge, whether something is in a notice, doesn’t
automatically make anything true. Nor does it make it relevant. Nor does
it make it admissible. Those predicates have to be laid, Judge. They were
not. It is not relevant to this case. There’s no basis for that type of testimony
at this point.
[The State]: Judge, I think it is relevant. It goes to why Mr. Busby did not
like this relationship. It goes to what he knew about it, and the - - the way
that this relationship was going before the death.
[Defense Counsel]: Any type of gang affiliation, if any, has nothing to do
with the relationship. That hasn’t been laid. That hasn’t been tied together.
That would be external, at best, from the relationship. If we’re talking about
relationship testimony, if we’re talking about state of mind or plan or these
other things that the State may offer, things with respect to the relationship,
that’s different than what just came out.
[The State]: I think it goes directly to state of mind.
Jones v. State Page 8
[Defense Counsel]: There’s nothing to do with the state of mind of - - of the
participants in that relationship, Judge.
The Court: What relationship are we talking about?
[The State]: Talking about the relationship between [Jones] and [Carter] and
how Mr. Busby describes it and why he didn’t like it.
[Defense Counsel]: Then describe the relationship. This does not go to the
relationship.
The Court: Overruled. 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.
It is unclear whether those involved in this discussion had the same understanding
of exactly what objection was made by defense counsel. See TEX. CODE CRIM. PRO. ANN.
art. 38.36(a) (permitting testimony of relevant facts and circumstances surrounding the
relationship between the accused and the deceased in a murder prosecution, including
the condition of the mind of the accused at the time of the offense); See TEX. R. EVID. 404(b)
(regarding admission of evidence of extraneous offenses, wrongs, and other bad acts for
purposes other than character conformity). Regardless, even if we construe Jones’s
objection to the gang testimony as a Rule 404(b) objection, and assuming without
deciding that the admission of the evidence was error, we find that Jones was not harmed
by the admission of the testimony about his alleged involvement in gangs.
The erroneous admission of evidence is generally non-constitutional error
governed by Texas Rule of Appellate Procedure 44.2(b). See Gonzales v. State, 544 S.W.3d
Jones v. State Page 9
363, 373 (Tex. Crim. App. 2018); TEX. R. APP. P. 44.2(b). Under Rule 44.2(b), we disregard
all non-constitutional errors that do not have a substantial and injurious effect or
influence in determining the jury’s verdict. See Id.; Johnson v. State, 43 S.W.3d 1, 4 (Tex.
Crim. App. 2001); Rich v. State, 160 S.W.3d 575, 577 (Tex. Crim. App. 2005). In conducting
our harm analysis, we consider everything in the record, including any testimony or
physical evidence admitted for the jury’s consideration, the nature of the evidence
supporting the verdict, the character of the alleged error and how it might be considered
in connection with other evidence in the case, the jury instructions, the State’s theory and
any defensive theories, closing arguments, voir dire, and whether the State emphasized
the error. Id. at 577-78.
Busby did not elaborate on his testimony that Jones was allegedly involved in
gangs. His brief statement was the sole testimony about Jones’s potential gang
involvement. The State did not mention gang affiliation in voir dire or in its closing
arguments, and the guilt-innocence jury charge contained a Rule 404(b) limiting
instruction.
The State’s theory of the case centered around how Jones continually adapted his
version of what occurred the night of the murder to account for new evidence that
conflicted with his prior statements. The State summarized its position in closing
argument that Jones’s “[s]tories don’t match the scene.” For example, blood and gunshot
residue were found on Jones’s grey jacket, which he admitted he was wearing the night
Jones v. State Page 10
of the murder and was found underneath a fallen television in the room where Carter
was killed. The State argued that the locations of the blood and gunshot residue on the
jacket contradicted Jones’s statements that he had not been in the room when the shots
were fired or entered the room where Carter was murdered. Jones also had gunshot
residue on his hands. More gunshot residue was found on a welcome mat where Jones
wiped his bloody hands the night of the murder. He told law enforcement that he had
not fired a gun the night of the murder. When Jones was reminded about the test that
was done on his hands to detect gunshot residue, Jones then explained its presence by
claiming that he had held a gun the night before the murder when he was with his
cousins.
Additionally, the jury heard evidence that Jones had threatened Carter with
violence on prior occasions and that Carter was in the process of ending her relationship
with Jones when she was killed. Jackson had stopped accepting Jones’s jail phone calls
and distanced herself from their relationship when Jones made his threatening phone call
to her, in which he indicated Jackson would suffer a fate similar to Carter’s. Jones’s
former coworker testified that Jones tried to hire him to murder Carter just months before
Carter’s death. Additional evidence emphasized by the State included: the fact that Jones
did not call 9-1-1 even though there were multiple cell phones located on the property;
deleted phone calls and text messages on the night of the murder from a phone linked to
Jones; Jones’s inability to describe the gun allegedly pointed at him by an unknown
Jones v. State Page 11
intruder in the hallway after Carter was murdered, even though he could recall other
details such as the specific brand of clothing the intruder wore; the fact that none of
Jones’s three children, who were present in the home at the time of the murder,
corroborated Jones’s story that an intruder was in the home that night; location data from
Jones’s cell phone records that was inconsistent with his statements to law enforcement;
and, Jones’s bloody fingerprint and shoe prints in the room where Carter was killed.
Considering the record as a whole, we conclude that even if the trial court erred
by admitting the evidence of Jones’s possible affiliation with a gang, such error was
harmless. Accordingly, we overrule Jones’s second issue.
Court-Appointed Investigator Fees
In his third issue, Jones complains that $3,000 of fees for a court-appointed
investigator are improperly assessed against him in the judgment as court costs.
Here, the investigator fees are not assessed against Jones in the judgment at all –
those fees are included in a bill of costs generated by the district clerk’s office. Therefore,
if there is any error with regard to the assessment of the investigator fees, the error is not
with the trial court’s judgment; rather it is solely due to the district clerk’s actions. At the
appropriate time, Jones can address with the trial court any attempt by an entity to collect
what is not owed as determined by the trial court’s judgment due to the clerk’s actions.
If the trial court fails to fix the errors of the clerk, then Jones can appeal that trial court
error to this Court in a proper manner, on a proper record, and at the proper time.
Jones v. State Page 12
Because the investigator’s fees are not assessed as court costs in the trial court’s judgment,
we overrule Jones’s third issue on appeal.
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
Affirmed
Opinion delivered and filed April 18, 2024
Publish
[CR25]
Jones v. State Page 13
Continue your research in ChatGPT or Claude
Connect Omnilex to search the legal corpus from your AI assistant.