Aston Davonte Carrier v. the State of Texas

AFFIRMED and Opinion Filed July 23, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00143-CR

ASTON DAVONTE CARRIER, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 380th Judicial District Court
Collin County, Texas
Trial Court Cause No. 380-83349-2020

MEMORANDUM OPINION
Before Justices Reichek, Miskel, and Breedlove
Opinion by Justice Reichek
Aston Davonte Carrier appeals his conviction for murder. Asserting three

issues, appellant contends the trial court’s judgment should be reversed because

(1) the evidence is insufficient to prove his identity as the shooter, (2) the court

reporter failed to record bench conferences, and (3) the trial court failed to properly

question potential jury members to determine if they were legally qualified. For the

reasons that follow, we affirm the trial court’s judgment.
Background

On June 2, 2020, Gina Belalcazar was working from home in her apartment

in North Dallas. Belalcazar’s home office had floor to ceiling windows facing the

parking lot. After finishing a phone call around 2:15 p.m., Belalcazar stood up and

looked out the window. She saw a person in the parking lot wearing a black hoodie

and dark gloves shoot at another person who was running away. Belalcazar stated

she specifically remembered the dark gloves because she saw smoke from the gun

coming from the shooter’s left hand. When the shooter fired a second time, the

person he was chasing fell to the ground, got back up, and stumbled away toward

the parking lot exit. Belalcazar ran outside to find the man who had been shot, but

found only blood on the ground. After she heard gunshots coming from a different

area of the complex, she went back to her apartment and called the police.

When the police arrived they found a crowd surrounding a man on the ground

who was later identified as Derek Carr. Carr was lying in a pool of blood with a

blood trail leading back into the apartment complex. Carr was transported to the

hospital where he died of his wounds.

Carr resided in the same apartment complex as Belalcazar. Surveillance

video from security cameras positioned outside his front door shows two men

walking up to and around Carr’s apartment for over twelve hours before the

shooting. One of the men, later identified as Demond Jones, had dreadlocks and was

wearing white latex gloves. At several points Jones can be seen knocking on Carr’s

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door with a gun in his hand. When Belalcazar was shown a still photograph of Jones

taken from the video, she stated Jones was not the man she saw shoot Carr. The

video eventually shows the men taking the security cameras off the wall. As the

cameras are being removed, the video briefly captures an image of the second man

wearing a black hoodie and the lower portion of his face covered by a mask.

Following the shooting, Jones jumped into a truck parked by the front entrance

to the apartment complex. The truck belonged to Steve Adams, a project manager

doing construction work on the property. Jones told Adams he had been shot and

needed a ride to the hospital. As Adams began driving, Jones called someone and

talked about meeting up. Jones then asked Adams to drive around the neighborhood

to find who he was talking to instead of taking him to the hospital. Adams became

uncomfortable and took Jones to a nearby gas station and told him to get out of the

car. Jones then ordered an Uber to take him to 9048 Christopher Circle in Fort

Worth. Jones told the Uber driver that he was meeting with his girlfriend who would

take him to the hospital.

A few hours after the shooting, detective Christopher Kight was called to

Huguley Hospital in Fort Worth to investigate a man, ultimately identified as

appellant, who had come in with gunshot wounds to his hand and leg. Kight testified

appellant was uncooperative and told him he did not know who shot him or the

identity of the people who brought him to the hospital. Appellant said only that

someone shot at him from a Camaro.

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Hospital surveillance video showed appellant being dropped off by someone

driving a Camaro. From its license plate, the police were able to identify LaShante

Dorsey as the owner of the car. Dorsey lived with her two daughters at 9048

Christopher Circle, the same address where Jones was taken by Uber.

Kight went to Dorsey’s house to question her and found the Camaro from the

surveillance video. Kight stated Dorsey was evasive in her responses to his

questions, but she eventually confirmed she had driven appellant to the hospital.

Dorsey told Kight she did not know appellant, and that she helped him only because

she was asked to by a friend. Dorsey’s younger daughter later identified appellant

and Jones, stating that the men had been staying in her mother’s house. It was further

determined that Dorsey’s older daughter knew both appellant and Carr.

Forensics performed of shell casings and blood found at the apartment

complex showed two areas where shootings had occurred. Blood matching

appellant’s DNA was found where Belalcazar said she saw the man with dark gloves

shoot Carr. Cartridge casings fired from a firearm identified as belonging to Carr

were also found nearby.

After hearing the evidence, the jury found appellant guilty of murder. In the

punishment phase, the jury sentenced appellant to sixty years in prison. This appeal

followed.

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Analysis

I. Sufficiency of the Evidence

In his first issue, appellant contends the evidence is insufficient to show his

identity as the person who shot Carr. Specifically, appellant relies on the Texas

Court of Criminal Appeals opinion in Hooper v. State, 214 S.W.3d 9 (Tex. Crim.

App. 2007) to argue the State failed to eliminate the possibility that there was another

person at the apartment complex dressed like appellant who shot Carr.

When reviewing a challenge to the sufficiency of the evidence supporting a

criminal conviction, we view the evidence in the light most favorable to the verdict

and determine whether a rational trier of fact could have found the essential elements

of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319

(1979); Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011). We do not

resolve conflicts of fact, weigh evidence, or evaluate the credibility of the witnesses

as this is the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740

(Tex. Crim. App. 1999). Instead we determine whether both the explicit and implicit

findings of the trier of fact are rational by viewing all the evidence admitted at trial

in the light most favorable to the adjudication. Adelman v. State, 828 S.W.2d 418,

422 (Tex. Crim. App. 1992). Each fact need not point directly and independently to

the guilt of the appellant as long as the cumulative force of all the incriminating

circumstances is enough to warrant conviction. See Kennemur v. State, 280 S.W.3d

305, 313 (Tex. App.—Amarillo 2008, pet. ref’d). Circumstantial evidence is as

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probative as direct evidence and can be sufficient alone to establish an accused’s

guilt. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). “A court’s role

on appeal is restricted to guarding against the rare occurrence when the factfinder

does not act rationally.” Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim. App.

2018).

In Hooper, the court of criminal appeals explained the difference between a

permissible inference from the evidence and impermissible speculation not rooted

in the evidence by using the following hypothetical:

A woman is seen standing in an office holding a smoking gun. There is
a body with a gunshot wound on the floor near her. Based on these two
facts, it is reasonable to infer that the woman shot the gun (she is
holding the gun, and it is still smoking). Is it also reasonable to infer
that she shot the person on the floor? To make that determination, other
factors must be taken into consideration. If she is the only person in the
room with a smoking gun, then it is reasonable to infer that she shot the
person on the floor. But, if there are other people with smoking guns in
the room, absent other evidence of her guilt, it is not reasonable to infer
that she was the shooter. No rational juror should find beyond a
reasonable doubt that she was the shooter, rather than any of the other
people with smoking guns. To do so would require impermissible
speculation. But, what if there is also evidence that the other guns in the
room are toy guns and cannot shoot bullets? Then, it would be
reasonable to infer that no one with a toy gun was the shooter. It would
also be reasonable to infer that the woman holding the smoking gun
was the shooter. This would require multiple inferences based upon the
same set of facts, but they are reasonable inferences when looking at
the evidence.

Hooper, 214 S.W.3d at 16. Appellant concedes the evidence is sufficient to show

he was present at the location where Belalcazar saw Carr being shot. He argues that,

based on the Hooper hypothetical, the State was required to show “that there was no

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one other than Appellant and Jones present in the apartment complex who could

have committed the shooting” and “there is no evidentiary limit on the number of

people who could have participated in this criminal act.” Appellant’s reading of

Hooper is erroneous.

The analysis in Hooper addresses what the evidence shows. It does not

suggest the State has the burden to disprove possible scenarios that are unsupported

by the evidence. Where the evidence shows there are multiple possible shooters

then, absent other evidence, a jury could not conclude beyond a reasonable doubt

that a single shooter is guilty. Id. In this case, however, the evidence showed only

two possible shooters – appellant and Jones. Additional evidence eliminated Jones

as the shooter. Belalcazar testified the shooter was wearing dark gloves, and video

footage of Jones shows him wearing white gloves. In addition, Belalcazar

specifically stated Jones was not the man she saw shoot Carr. This evidence

combined with appellant’s blood being found in the area where Belalcazar witnessed

the shooting occur is sufficient to support the jury’s finding that appellant was the

person who shot Carr.

Appellant attempts to equate the entire apartment complex with the

hypothetical office full of people holding smoking guns. But there is no evidence

that anyone in the complex other than appellant and Jones was “holding a smoking

gun.” The State was not required to disprove the presence of alternative shooters

when there was no evidence that any other potential shooters existed. See Ramsey

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v. State, 473 S.W.3d 805, 811 (Tex. Crim. App. 2015); Reason v. State, No. 05-21-

00701-CR, 2022 WL 16959266, at *4 (Tex. App.—Dallas Nov. 16, 2022, no pet.).

We resolve appellant’s first issue against him.

II. Failure to Record Bench Conferences

In his second issue, appellant contends reversible error occurred when the

court reporter failed to transcribe four bench conferences after the trial court granted

his omnibus motion requesting, among other things, that all bench conferences be

transcribed. Appellant does not dispute that he failed to object to the court reporter’s

failure make a record of the conferences. See Valle v. State, 109 S.W.3d 500, 508

(Tex. Crim. App. 2003) (granting pretrial motion to record bench conferences does

not, by itself, preserve error – party must object to failure to do so); Martinez v. State,

No. 05-22-00210-CR, 2024 WL 277712, at *3 (Tex. App.—Dallas Jan. 25, 2024, no

pet.) (mem. op., not designated for publication). Instead, based on Becerra v. State

620 S.W.3d 745 (Tex. Crim. App. 2021), appellant argues he was not required to

object until he became aware of the error. Because there was no showing he was

aware of the error prior to appeal, appellant argues his complaint has not been

waived.

In Becerra, the court of criminal appeals held that the appellant preserved

error when he objected to the participation of an alternate juror in the jury

deliberations as soon as he was made aware the error had occurred. Id. at 748.

Critical to the court’s analysis was that counsel was not present in the room where

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the jury deliberations were taking place. Id. As the court stated, “[r]equiring

otherwise would compel a defense attorney, after closing arguments, to follow the

jury outside the courtroom, through doors, hallways, and perhaps other architectural

features depending on how the particular courthouse is designed, finally reaching

the jury room door for the purpose of counting the number of jurors before the jury

begins deliberations.” Id.

Unlike Becerra, defense counsel in this case was present at the bench

conferences where the alleged error occurred. Counsel could, therefore, have

determined whether the conferences were being transcribed and brought the matter

to the attention of the trial court at a time when the judge was in a position to do

something about it. Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009).

We conclude appellant failed to preserve error and we resolve his second issue

against him.

III. Juror Qualifications

In his final issue, appellant contends the trial court erred in failing to question

the venire members about their legal qualifications to serve on a jury. Under Article

35.12 of the code of criminal procedure, all prospective jurors must be asked either

by the court or under the court’s direction whether they (1) are a qualified voter, (2)

have been convicted of theft or any felony, and (3) whether they are under indictment

or legal accusation for theft or any felony. TEX. CODE CRIM. PROC. ANN. art.

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35.12(a). We presume the jury was properly impaneled unless the record

affirmatively shows otherwise. See TEX. R. APP. P. 44.2(c)(2).

The record here shows the trial court discussed with the venire members that

jurors must be legally qualified to serve. The court stated that some prospective

jurors might have been released from the central jury room because they were not

legally qualified. The court then stated that while “[a]ll of you here are presumably

qualified legally to sit as a juror,” some may still be dismissed for cause. Later, in

response to a question from the State about experience with the judicial process, a

venire member indicated she had been convicted in California for felony drug

possession. The State verified the conviction, and the venire member was dismissed.

Appellant affirmatively stated he had no objections to the jurors that were ultimately

chosen.

Appellant argues it was error for the trial judge not to specifically ask the

prospective jurors the three qualifying questions listed in Article 35.12. But in larger

judicial districts, these questions are routinely asked of the general jury pool under

the direction of the court before the venire members are sent to individual courts to

be empaneled for a specific case. See TEX. GOV’T CODE ANN. § 62.016; Roise v.

State; 7 S.W.3d 225, 244 (Tex. App.—Austin 1999, pet. ref’d). The trial court’s

statements that some prospective jurors may have already been dismissed because

they were legally disqualified indicates this procedure was followed here. Standing

alone, the fact that one venire member was not dismissed from the central jury pool

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despite being legally disqualified is not sufficient to show the Article 35.12 questions

were not asked at the court’s direction, or to overcome the presumption that the jury

was properly impaneled.

Even assuming it was error for the trial not to ask the Article 35.12 questions

(and that this error was preserved), to reverse a conviction there generally must be a

showing of harm. See TEX. R. APP. P. 44.2. When an error arises from a trial court’s

statutory violation, we determine whether the error affected the defendant’s

substantial rights. Gray v. State, 159 S.W.3d 95, 98 (Tex. Crim. App. 2005); Njogo

v. State, No. 02-18-00245-CR, 2018 WL 6844140, at *2 (Tex. App.—Fort Worth

Dec. 31, 2018, no pet.) (mem.op., not designated for publication) (failure to assess

qualifications of venire members not constitutional error). To show harm, the record

must demonstrate the error deprived appellant of a lawfully constituted jury of

qualified individuals. See Gray v. State, 233 S.W.3d 295, 301 (Tex. Crim. App.

2007). Appellant does not argue, and the record does not show, that any members

of the jury in this case were not qualified. We resolve appellant’s third issue against

him.

We affirm the trial court’s judgment.

/Amanda L. Reichek/
AMANDA L. REICHEK
Do Not Publish JUSTICE
TEX. R. APP. P. 47.2(b)
230143F.U05

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

ASTON DAVONTE CARRIER, On Appeal from the 380th Judicial
Appellant District Court, Collin County, Texas
Trial Court Cause No. 380-83349-
No. 05-23-00143-CR V. 2020.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Reichek. Justices Miskel and
Breedlove participating.

Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

Judgment entered July 23, 2024

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