Gullatt v. State

          Date Submitted: August 19, 2019

          On Appeal from the 102nd District Court Bowie County, Texas Trial Court No. 18F-0176-102

          Before Morriss, C.J., Burgess and Stevens, JJ.

          OPINION

          RALPH K. BURGESS JUSTICE.

         A Bowie 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.

         I. Evidence and Testimony

         Clark 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.

         Battle testified that he and Clark knew Gullatt and that they had seen him earlier that night at the Sugar Spot.^[1] 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.^[2] 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.

         Moore 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, ^[3] 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.^[4] 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 drive-through lane.

         After 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 continued,

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 Main.^[5]

         Gullatt then gave the dispatcher his cell phone number and told her he would be at the residence at the given address.

         Officers 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.

         The 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.^[6]

         During 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 finished testifying.

         The 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 ...