Appeal from the 42nd District Court Callahan County, Texas
Trial Court Cause No. 7137
consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J.
M. BAILEY CHIEF JUSTICE
conclusion of a joint trial, the jury convicted Appellant,
Violet Maree Walter, and her husband, Phillip Jay Walter,
Jr., of murder, robbery, and theft of a
firearm. See Tex. Penal Code Ann.
§§ 19.02, 29.02, 31.03 (West 2019). The trial court
assessed Appellant's punishment at confinement in the
Institutional Division of the Texas Department of Criminal
Justice for forty years for the murder conviction and for
twenty years for the robbery conviction. The trial court also
assessed Appellant's punishment at confinement in the
State Jail Division of the Texas Department of Criminal
Justice for a term of two years for the conviction for theft
of a firearm. Additionally, the trial court ordered that the
sentences are to run concurrently. Appellant challenges her
convictions in seven issues on appeal. We affirm.
Allen, a police officer with the Abilene Police Department,
was found dead at his home in Clyde on August 31, 2015.
Approximately one week before his death, Allen placed an
advertisement on Craigslist seeking an unconventional sexual
encounter. Appellant responded to Allen's post on August
29, 2015, writing: "Still looking? Sexy couple in their
20s. . . . Down for anything." For the next couple of
days, Appellant and Allen e-mailed each other about the
prospect of a sexual encounter between Appellant, Allen, and
Walter. Eventually, Allen invited Appellant and Walter to his
home in Clyde on the afternoon of August 31.
evening, Allen's fiancée found Allen dead in their
bedroom, lying facedown on the floor. Allen was wearing only
a T-shirt and socks; he was otherwise naked. His hands and
ankles had been bound by USB cords, with his hands tied
behind his back. Another USB cord, along with Allen's
shorts, was loosely wrapped around Allen's face and neck.
There was no evidence of forced entry or a struggle inside
Allen's neighbors told investigators that he saw a male
and a female arrive at Allen's home that afternoon.
Another one of Allen's neighbors saw a vehicle near
Allen's home. The neighbor provided the police with the
vehicle's make, color, and model. Investigators
discovered that Walter owned a vehicle similar to the vehicle
seen near Allen's home.
surveillance from a pawn shop in Abilene showed Walter,
accompanied by Appellant, pawning four video games and a
woman's bracelet on the evening of August 31. The same
four video games had been recently played on Allen's
video game console, and Allen's fiancée identified
the pawned bracelet as her bracelet. Investigators also
identified Walter's fingerprint on a water bottle at
and Walter were subsequently arrested. Police officers
searched their apartment pursuant to a search warrant. In the
apartment, the police found an Abilene Police Department
badge, a Taser, handcuffs, and an ASP case that had been
issued to Allen as an Abilene Police Officer. Allen's
firearm was returned to police by a confidential informant,
and Allen's police radio was found on the side of a
highway, two miles east of Clyde.
the search of the apartment, the police also found
Appellant's and Walter's cell phones. The police
searched the phones pursuant to additional search warrants.
Appellant's text messages to Walter revealed that they
were experiencing financial difficulties at the time and were
in the process of being evicted from their apartment.
Appellant sent Walter several text messages on the day of
Allen's death, urging Walter to do something to remedy
their dire financial situation. For example, she sent Walter
the following text messages on August 31: "Go f--k
someone else and restore our s--t," "Hurry up and
fix this," "DO SOMETHING NOW," and "You
NEED to do this. Your fear of a police report versus LOSING
us should be bigger. Your need to feed and house your
CHILDREN should be bigger tha[n] ANYTHING."
Appellant set up the meeting with Allen at Allen's home
in Clyde, Appellant texted Walter that "[w]e have that
Clyde lick," "[w]e MUST do it and do it hard,"
and "[t]he lick is waiting." The State presented
evidence that a "lick" refers to robbery or
closing argument, Appellant and Walter argued that Allen
consented to being choked and that he died during
"high-risk sex." To support this theory, the
defense stressed the state in which Allen's body was
found and the lack of any evidence indicating a struggle or
resistance to the USB cables around his wrists or ankles.
challenges her convictions in seven issues on appeal.
Specifically, she asserts that (1) the trial court abused its
discretion by admitting text messages from her cell phone
over her objections that the evidence was irrelevant,
unfairly prejudicial, and inadmissible character evidence;
(2) the trial court erred by admitting three deleted text
messages over her authenticity objection; (3) the trial court
abused its discretion by admitting text messages over her
Confrontation Clause objection; (4) the trial court abused
its discretion by denying her motion for continuance; (5) the
trial court abused its discretion by denying her second
motion for continuance; (6) the State's evidence was
insufficient to convict her of murder and robbery; and (7)
the trial court erred by submitting a jury instruction on the
law of parties.
of the Evidence
sixth issue, Appellant contends that the State's evidence
was insufficient to convict her of murder and robbery. We
review a challenge to the sufficiency of the evidence,
regardless of whether it is denominated as a legal or factual
sufficiency challenge, under the standard of review set forth
in Jackson v. Virginia, 443 U.S. 307 (1979).
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010); Polk v. State, 337 S.W.3d 286, 288-89
(Tex. App.-Eastland 2010, pet. ref'd). Under the
Jackson standard, we review all of the evidence in
the light most favorable to the verdict and determine whether
any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319; Isassi v. State,
330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
conducting a sufficiency review, we consider all the evidence
admitted at trial, including pieces of evidence that may have
been improperly admitted. Winfrey v. State, 393
S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We
defer to the factfinder's role as the sole judge of the
witnesses' credibility and the weight their testimony is
to be afforded. Brooks, 323 S.W.3d at 899. This
standard accounts for the factfinder's duty to resolve
conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate
facts. Jackson, 443 U.S. at 319; Clayton,
235 S.W.3d at 778. When the record supports conflicting
inferences, we presume that the factfinder resolved the
conflicts in favor of the verdict, and we defer to that
determination. Jackson, 443 U.S. at 326;
Clayton, 235 S.W.3d at 778.
determine whether the State has met its burden under
Jackson to prove a defendant's guilt beyond a
reasonable doubt, we compare the elements of the crime as
defined by the hypothetically correct jury charge to the
evidence adduced at trial. Thomas v. State, 444
S.W.3d 4, 8 (Tex. Crim. App. 2014) (citing Malik v.
State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such
a charge is one that accurately sets out the law, is
authorized by the indictment, does not unnecessarily increase
the State's burden of proof or restrict the State's
theories of liability, and adequately describes the
particular offense for which the defendant was tried.
Id. The law as authorized by the indictment means
the statutory elements of the charged offense as modified by
the factual details and legal theories contained in the
charging instrument. See id. When, as here, the
court's charge authorized the jury to convict the
defendant on more than one theory, the verdict of guilt will
be upheld if the evidence is sufficient on any theory
authorized by the charge. See Guevara v. State, 152
S.W.3d 45, 49 (Tex. Crim. App. 2004) (citing Rabbani v.
State, 847 S.W.2d 555, 558 (Tex. Crim. App. 1992)).
indictment charged Appellant with murder under all three
statutorily defined ways to commit the offense. See
Penal § 19.02(b)(1)-(3). Under these statutory
provisions, a person commits the offense of murder if he (1)
"intentionally or knowingly causes the death of an
individual," (2) "intends to cause serious bodily
injury and commits an act clearly dangerous to human life
that causes the death of an individual," or (3)
"commits or attempts to commit a felony, other than
manslaughter, and in the course of and in furtherance of the
commission or attempt, or in immediate flight from the
commission or attempt, he commits or attempts to commit an
act clearly dangerous to human life that causes the death of
an individual." Id. These three methods of
committing murder are not separate offenses but, rather, are
alternative methods of committing the same offense. Smith
v. State, 436 S.W.3d 353, 378 (Tex. App.-Houston [14th
Dist.] 2014, pet. ref'd).
Section 19.02(b)(1), the indictment alleged that Appellant
intentionally or knowingly caused Allen's death by
asphyxiation by choking, strangling, or otherwise impeding
his breathing. Under Section 19.02(b)(2), the indictment
alleged that Appellant committed an act clearly dangerous to
human life by choking, strangling, or otherwise impeding
Allen's breathing with the intent to cause serious bodily
injury. Under Section 19.02(b)(3), the indictment alleged
that Appellant committed or attempted to commit robbery or
felony theft and that, in the course of and in furtherance of
the commission or attempt, she committed an act clearly
dangerous to human life by choking, strangling, or otherwise
impeding Allen's breathing. See Penal §
29.02 (robbery statute); Penal § 31.03(e)(4)(C) (theft
of a firearm is a state jail felony). When an indictment
alleges multiple felonies in a prosecution under Section
19.02(b)(3), the specifically named felonies are not elements
about which the jury must be unanimous. White v.
State, 208 S.W.3d 467, 469 (Tex. Crim. App. 2006).
addition to charging Appellant under multiple theories of
murder, the court's charge allowed the jury to convict
Appellant either as a primary actor or as a party with
Walter. Under Section 7.01 of the Penal Code, "[a]
person is criminally responsible as a party to an offense if
the offense is committed by his own conduct, by the conduct
of another for which he is criminally responsible, or by
both." Penal § 7.01(a) (West 2011); see Adames
v. State, 353 S.W.3d 854, 862 (Tex. Crim. App. 2011).
The court's charge permitted the jury to find that
Appellant was criminally responsible for the conduct of
Walter under Section 7.02(a)(2) of the Penal Code.
See Penal § 7.02(a)(2). This statute provides
that "[a] person is criminally responsible for an
offense committed by the conduct of another if: . . . acting
with intent to promote or assist the commission of the
offense, he solicits, encourages, directs, aids, or attempts
to aid the other person to commit the offense."
Id.; see Adames, 353 S.W.3d at 862.
asserts that the evidence is insufficient to support a
conviction for murder because the evidence offered at trial
established that Allen's death was accidental in nature.
Appellant asserts that Allen's death was accidental
because Allen engaged in "consensual asphyxia." In
presenting these arguments, Appellant is making a
"collective" argument in the sense that she has not
differentiated her alleged conduct from that of Walter's
alleged conduct. Appellant is essentially asserting that
neither she nor Walter could be convicted of murder based
upon her contention of Allen's alleged consensual conduct
leading to an accidental result. We disagree.
commentators have noted that consent is irrelevant in a
murder prosecution in Texas. See George E. Dix &
John M. Schmolesky, 43 Texas Practice Series: Criminal
Practice & Procedure § 43.46 (3d ed. 2019)
("Consent is a criminal law chameleon. It is irrelevant
in some crimes, like murder . . . ."). Section 22.06 of
the Texas Penal Code provides a limited defense of consent to
assaultive conduct-but only to the offenses of assault,
aggravated assault, and deadly conduct. Penal § 22.06;
see Dix & Schmolesky, § 43.46. The express
language of Section 22.06 precludes consent as a defense if
the conduct inflicts serious bodily injury. Penal §
22.06; see Miller v. State, 312 S.W.3d 209, 213
(Tex. App.- Houston [14th Dist.] 2010, pet. ref'd)
("The defense of consent is not available when the
defendant threatens or inflicts 'serious bodily
injury.'") (citing Penal § 22.06(a)(1)); Dix
& Schmolesky, § 43.46. Furthermore, Professor LaFave
notes that a "rough sex" defense to a murder
prosecution has generally not prevailed. Wayne R. LaFave, 1
Substantive Criminal Law § 6.5(a) n.13 (3d ed.
2018) (referencing "inducement of erotic
asphyxiation" and citing Cheryl Hanna, Sex is Not a
Sport: Consent and Violence in Criminal Law, 42 B.C. L.
Rev. 239 (2001), and George E. Buzash, The "Rough
Sex" Defense, 80 J. Crim. L. & Criminology 557,
563-68 (1989)). Thus, Appellant's assertion that Allen
consented to being asphyxiated is irrelevant to our analysis.
the Texas Penal Code does not provide a defensive theory of
"accident." See Rogers v. State, 105
S.W.3d 630, 637 (Tex. Crim. App. 2003) (citing Williams
v. State, 630 S.W.2d 640, 644 (Tex. Crim. App. 1982)).
As noted in Williams, "[t]here is no law and
defense of accident in the present penal code, and the bench
and bar would be well advised to avoid the term
'accident' in connection with offenses defined by the
present penal code." 630 S.W.2d at 644.
appears to be asserting that Allen's death was an
accident because it was an unintended or unexpected result.
As such, Appellant's contention that Allen's death
was an accident is a challenge to the mens rea
required for her murder conviction. See Rogers, 105
S.W.3d at 637-39; Williams, 630 S.W.2d at 644
(noting that, under the former Penal Code,
"accident" described multiple defenses, including
an unintended result). Appellant contends that the
State's evidence does not show that she had the requisite
mens rea to commit the offense of murder because the
evidence shows that Allen's death was accidental and
resulted from his participation in consensual erotic
noted previously, Appellant was charged with murder under all
three statutorily defined ways to commit the offense. Under
each of these provisions, the statutory focus, and,
therefore, the gravamen of the offense, is causing the death
of an individual. Fraser v. State, 523 S.W.3d 320,
328 (Tex. App.-Amarillo 2017, appellant's pet. ref'd,
State's pet. granted). Thus, murder is a result-oriented
offense-meaning that the proscribed conduct must have caused
the death of the victim. Id.; see Martin v.
State, 570 S.W.3d 426, 434 (Tex. App.-Eastland 2019,
the three ways to commit murder share a common gravamen, they
proscribe different forms of conduct. Furthermore, each
statutory method for committing murder has a different
mens rea component. Under Section 19.02(b)(1), the
mens rea element requires that the accused must have
intentionally or knowingly caused the death of the victim.
See Cook v. State, 884 S.W.2d 485, 490 (Tex. Crim.
App. 1994). Thus, a conviction under Section 19.02(b)(1)
requires an intent to cause death. As such, Appellant's
contention that Allen's death was an accident would be
relevant to a conviction under Section 19.02(b)(1) to the
extent that it was an unintended result.
Section 19.02(b)(2), the mens rea element requires
only that the accused must have intended to cause serious
bodily injury to an individual. See Cavazos v.
State, 382 S.W.3d 377, 384 (Tex. Crim. App. 2012)
(citing Lugo-Lugo v. State, 650 S.W.2d 72, 81-82
(Tex. Crim. App. 1983)). Thus, Appellant's contention that
Allen's death was an accident would not be relevant to a
conviction under Section 19.02(b)(2) if there was a showing
that Appellant intended to cause serious bodily injury to
under Section 19.02(b)(3) is known as "felony
murder." See Rodriguez v. State, 454 S.W.3d
503, 507 (Tex. Crim. App. 2014). Felony murder is the
commission of a killing while in the course of committing
another felony, coupled with committing or attempting to
commit an act "clearly dangerous to human life."
Penal § 19.02(b)(3). Felony murder is an unintentional
murder committed in the course of committing a felony.
Threadgill v. State, 146 S.W.3d 654, 665 (Tex. Crim.
App. 2004). The State must prove the elements of the
underlying felony, including the culpable mental state for
that felony, but no culpable mental state is required for the
murder committed. Lomax v. State, 233 S.W.3d 302,
306-07 (Tex. Crim. App. 2007). Thus, the plain language of
the felony murder statute requires proof of the underlying
felony, but it does not require any proof of an accompanying
mental state with regard to either causing the death of
another or committing an act clearly dangerous to human life.
See id. at 307 & n.16. Thus, Appellant could
have been convicted of felony murder under Section
19.02(b)(3) without a showing that she intended to kill
also asserts that the evidence is insufficient to show that
she and Walter caused Allen's death. In a murder
prosecution, the State must prove beyond a reasonable doubt
that the injuries inflicted by the defendant caused the death
of the decedent. Reeves v. State, 101 S.W.2d 245,
246 (Tex. 1937); Martin, 570 S.W.3d at 434;
Hutcherson v. State, 373 S.W.3d 179, 187 (Tex.
App.-Amarillo 2012, pet. ref'd). Appellant appears to be
asserting that Allen's consensual participation in risky
behavior constituted a concurring cause that precluded her
criminal responsibility for his death.
person is criminally responsible if the result would not have
occurred but for his conduct, operating either alone or
concurrently with another cause, unless the concurrent cause
was clearly sufficient to produce the result and the conduct
of the actor clearly insufficient." Penal §
6.04(a). Under Section 6.04, a "but for" causal
connection must exist between the defendant's conduct and
the resulting harm to find the defendant criminally
responsible. Pena v. State, 522 S.W.3d 617, 624
(Tex. App.-Houston [14th Dist.] 2017, pet. ref'd). If a
concurrent cause is present, two possible combinations exist
to satisfy Section 6.04's "but for"
requirement: (1) the defendant's conduct may be
sufficient by itself to have caused the harm, regardless of
the existence of a concurrent cause, or (2) the
defendant's conduct and a current cause together may be
sufficient to have caused the harm. Id. (citing
Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim.
App. 1986)). However, a defendant cannot be convicted if the
concurrent cause is clearly sufficient, by itself, to produce
the result and the defendant's conduct, by itself, is
clearly insufficient. Id. Thus, if the injuries
caused by the defendant contributed to the death of the
deceased, he is responsible even though other contributing
causes existed. Wright v. State, 388 S.W.2d 703, 706
(Tex. Crim. App. 1965); Martin, 570 S.W.3d at 434.
these legal principles in mind, we first direct our attention
to the offense of murder under Section 19.02(b)(2). With
respect to the mens rea element, a conviction under
Section 19.02(b)(2) requires a showing that the defendant
acted with the conscious objective or desire to create a
substantial risk of death, serious permanent disfigurement,
or protracted loss or impairment of any bodily member or
organ. Lugo-Lugo, 650 S.W.2d at 81; see
Penal § 1.07(a)(46) (West Supp. 2018) (defining
"serious bodily injury"), § 6.03(a) (West
2011) (defining when a person acts
"intentionally"). Additionally, the State must show
that the defendant committed an act clearly dangerous to
human life that caused the death of the ...