Court of Appeals of Texas, Sixth District, Texarkana
Submitted: August 19, 2019
Appeal from the 102nd District Court Bowie County, Texas
Trial Court No. 18F-0176-102
Morriss, C.J., Burgess and Stevens, JJ.
K. BURGESS JUSTICE.
County jury convicted Tyvon Gullatt of murdering Carlos
Clark. In this appeal, Gullatt argues that the trial court
erred in ruling that he had opened the door to
extraneous-offense evidence and in overruling his objection
to the timeliness of the State's disclosure of
extraneous-offense evidence. After reviewing the record and
applicable law, we find that Gullatt opened the door to the
extraneous-offense evidence and that he received sufficient
notice of that evidence. We affirm the trial court's
judgment and sentence.
Evidence and Testimony
was gambling with his friend Carl Battle late on a Friday
night in February 2018 at a place the witnesses identified as
"the Sugar Spot." The men left the Sugar Spot and
went to a convenience store located on State Line Avenue in
Texarkana. The drive-through cashier, Tamela Moore, knew the
men and recognized them as they waited in line. According to
Moore, the men were sitting in a Nissan Sentra. Battle was
driving, and Clark was sitting in the front passenger seat.
Moore saw one of the car doors open and a man enter the back
seat of the car, but she did not know who the man was.
Shortly after the man entered the car, she heard a gunshot.
testified that he and Clark knew Gullatt and that they had
seen him earlier that night at the Sugar Spot. As they were
waiting in the drive-through line, Gullatt tapped on
Battle's window and then got into the back seat. Battle
testified that he heard a gun's hammer being cocked. In
response to that sound, Battle and Clark scrambled to exit
the car. Battle got away and then heard a gunshot. When he
returned to the car, Battle observed that Clark was having
difficulty breathing. An ambulance arrived shortly thereafter,
and Clark was taken to a hospital, where he later died. Prior
to his death, Clark stated that Gullatt had shot him.
and the investigating officers reviewed the store's
security footage. The recording showed a side of the store
which was not visible from the drive-through lane. The video
depicted two men arrive in a black Dodge Charger. One man,
later identified as Gullatt,  got out of the car, walked out of
the frame, then ran back to the Charger. The Charger then
left the scene. The State however, was not able to obtain a
copy of the recording to show the jury. Nevertheless,
Sartor testified that based on his review of the surveillance
footage, there was no line of sight between Gullatt's
vehicle and Clark and Battle's vehicle in the
the shooting, Gullatt and his friend Josh Rigsby drove to the
home of Gullatt's grandfather, Richard Sanders. Sanders
was the only witness called by Gullatt in his defense.
Sanders testified that Gullatt told him there had been
"a fight, well, more or less like a fight or something
or something like that" at the convenience store.
Sanders went on to say that it was his understanding that
Gullatt had gone to the store to "purchase some
weed" from Clark and Battle. Sanders said Gullatt told
him "something occurred, and a gun went off, and
[Gullatt] was, you know, crying." Sanders testified that
Gullatt told him there was a second gun at the scene. Sanders
testified that he told Gullatt to call the police. Sanders
Because he was, you know, scared, and, you know, said that he
got into -- well, he had told me he went to a car to get some
weed from the guys, and something happened in there, and he
said that his partner had shot him or something or something
happened in there, and I told him right then, well, you need
to call the police.
The State introduced a recording of Gullatt's 9-1-1 call.
During that call, Gullatt said,
I was on State Line, North State Line, at the Chevron; and a
couple guys I know . . . called me to the car. And I was uh .
. . fixin' to uh . . . talk to 'em. Or whatever. Can
you send an officer out to my house? [Dispatch officer asks
for address]. 3902 Main Street. [Dispatch officer asks what
happened]. I got in the car and I was proceeding to talk to
these guys. But I think he was trying to rob me, and take
everything I had. And as he was turning around gun he had
went off. And he shot his homeboy . . . don't know where
he got shot at or how it happened. But they both got out of
the car and ran. I don't know where they're at now or
what, but I had left the scene cause they were trying to rob
me and I'm on 39th and Main right now. 3902
then gave the dispatcher his cell phone number and told her
he would be at the residence at the given address.
arrived at Sanders' house a few minutes later. Sanders
signed a consent to search document and then directed the
officers to a closet where they found a Springhill 9mm
automatic pistol. Through a ballistic analysis, law
enforcement concluded that the pistol found in Sanders'
closet had fired the bullet found in Clark's body,
causing his death, and that it also matched a shell casing
found at the crime scene.
medical examiner and investigating Officer Spencer Price both
testified that they found soot and gunshot residue on
Clark's jacket and shirt, and around the entrance wound
in his lower right back. These witnesses also testified that
the soot and gunshot residue indicated a contact wound,
meaning that the pistol was in contact with Clark's
clothing over his body when it was fired. Officer Price and
Investigator Sartor testified that the evidence supported
only one conclusion: that Gullatt left his vehicle, came
around the convenience store, entered Battle's vehicle,
and shot Clark at an extremely close range.
direct examination by Gullatt, Sanders said that he felt the
incident was "a drug buy gone wrong" and that
"at some point in time, the firearm went off."
Sanders said he retrieved the pistol from Rigsby, not
Gullatt, and that he put the gun in the closet under a hat
where police later found it. Gullatt explained to Sanders
that the State's indictment alleged Gullatt killed Clark
by firing a gun with intent to cause Clark serious bodily
injury. Sanders testified that he did not believe that
Gullatt was trying to intentionally harm anyone on the night
of the killing. Gullatt rested his defense after Sanders
State then argued to the trial court that Gullatt had
introduced the theory of accident into his defense. The State
argued that by interjecting that theory into the case,
Gullatt had opened the door to the admission of an extraneous
aggravated robbery Gullatt allegedly committed about four
years prior to ...