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Ellis v. State

Court of Appeals of Texas, Second District, Fort Worth

April 20, 2017






         In three issues, Appellant Braylon Dominique Ellis appeals his conviction for murder. See Tex. Penal Code Ann. § 19.02 (West 2011). We affirm.


         On September 7, 2013, Andrea Brown discovered the dead body of her older brother Tommy Brown in his home after she went to check on him out of concern that no one had heard from or seen him for days. An investigation revealed that Tommy had been the victim of a love triangle with Appellant and Christina Rodriguez, whom Tommy had met as a pen pal while she was serving time in a penitentiary. Tommy reportedly also had a long-time romantic relationship with a woman named Connie Moreno, who did not appear to be involved in his death in any way. From the record, it does not appear that either Moreno or Rodriguez was living with Tommy at the time of the murder.

         In the days following his death, the Fort Worth Police Department (FWPD) tracked Tommy's cell phone and debit card to a location outside of Atlanta, Georgia, where Appellant and Rodriguez were apprehended. Although charged with capital murder, Appellant was convicted of the lesser-included offense of felony murder and sentenced to life in prison for his part in Tommy's death. Compare id. § 19.03 (West Supp. 2016) (providing elements of capital murder), with id. § 19.02 (providing elements of felony murder).

         I. The day of the murder

         In the afternoon or early evening of September 5, Willie Wingfield, Tommy's neighbor, saw a "white girl [who was] more heavy-set and just a little bit shorter than Tommy" go into Tommy's house while Tommy was home. Willie testified that the woman was not Moreno, a Hispanic woman whom he described as "short with long black hair" and Andrea described Moreno as approximately 5'1" to 5'2" and of average weight. Instead, Willie's general description of the woman he had observed more closely fit the description of Rodriguez at trial, as a woman who was "tall and heavyset."

         Later that evening, between 9:30 and 10:00, Willie also saw a dark-skinned young man with braided hair go into Tommy's house. According to Willie, Tommy was not at home at that time. Later, Willie watched as Tommy pulled his pickup into his driveway, emerged from the pickup, and walked to his front door. Willie testified that as Tommy attempted to unlock his front door, the front door opened, someone "snatched" Tommy and pulled him into the house, and then the lights went off. Willie did not call the police at that point.

         The next morning, when Willie went outside to water his yard and drink coffee-his usual morning routine-he noticed that Tommy was not partaking in his usual morning routine of sitting on his porch, smoking a cigarette, and drinking a coffee between 6:45 and 7:00. Willie also noticed that Tommy's pickup was no longer in his driveway, so he assumed that Tommy had gone to work early.

         II. Discovery of the body and the ensuing investigation

         Andrea, who had last seen Tommy alive on September 2 or 3, received a call from her aunt on the morning of September 7. Andrea's aunt, who lived across the street from Tommy, called Andrea at work to express her concern that she had been unable to reach Tommy for a couple of days. Andrea assured her aunt that she would call him.

         At 9:26 that morning, Andrea texted Tommy, "Call me ASAP, " but she received no response, which, according to Andrea, was unusual for Tommy. Andrea grew increasingly worried as the day went on, and more so when her aunt told her that Tommy's car was not at his house. At approximately 3:00 that afternoon, Andrea drove to Tommy's home and, using a key she found in his mailbox, Andrea went inside. Andrea testified that she immediately noticed that some of his property, including his plasma TV, was missing, and when she continued through the home she discovered Tommy's body lying on the bathroom floor. His hands were tied behind his back and his "fingers had started turning colors." Although she called out to him several times, Andrea testified that she knew what was wrong, she knew it was "a crime scene, " and so she immediately left the house and called 9-1-1.

         FWPD Detective Thomas O'Brien responded to the call. While he was interviewing Andrea, she received a text message from Tommy's phone that said, "I[']m driving to El Paso what u want?" Detective O'Brien asked Andrea to respond to the text message she had received because the police could use the cell phone information to track the murderer(s) and to collect more information. On Detective O'Brien's direction, Andrea texted back, "[O]k call me when u get back. Have a safe trip, " but she did not reveal that Tommy's dead body had been found.

         Andrea was not the only person who received text messages from Tommy's phone after his body was discovered. On September 7, after becoming concerned when Tommy uncharacteristically missed a janitorial job, his coworker, Deborah Grimes, tried to reach him by phone. She received a text back from "him" two days later, on September 9, that said:

Debra I wont b back no time soon I don't know if u remember I told you I was gonna b a father well my girl is in the hospital and im low in cash is there anyway I can borrow some cash I lost my wallet im in the middle of the road if you can send money to my causin his name is Braylon Ellis, do it Money gram please just deduct it from my check?

         The next day, Grimes received two more text messages from Tommy's phone claiming that he could not call because his phone was broken and asking, "How soon can u send it to my causin do it Money Gram please."

         Cell phone records and records for Tommy's debit card indicated that both were taken from Fort Worth to an area outside of Atlanta, Georgia. From surveillance videos, Detective O'Brien identified Appellant and Rodriguez as the individuals using the debit card at various places, including to pay for a prescription in Appellant's name at Texas Health Presbyterian in Dallas.

         Appellant and Rodriguez were located and arrested on September 10 at Appellant's mother's house in Gwinnett County, Georgia. Tommy's cell phone and driver's license were found in the room where Appellant and Rodriguez were staying, and Tommy's debit card was found inside the vehicle-later identified as the vehicle Appellant and Rodriguez drove to Georgia-parked outside the house.

         Detective O'Brien interviewed Appellant, and a video of the interview was admitted into evidence and played for the jury. In it, Appellant changed his story multiple times. At first, he claimed he did not know Tommy, but later he claimed that Tommy had beaten Rodriguez and that Tommy was a molester. He also initially claimed that he had never been to Fort Worth, but then added he had been to Fort Worth as a child, and then finally admitted to Detective O'Brien that he had picked up Rodriguez in Fort Worth and had stayed at a hotel near Tommy's house on the night Tommy was murdered. Although ...

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