Yovahnis Fabain Roque v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________
NO. 09-21-00273-CR
________________

YOVAHNIS FABAIN ROQUE, Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________________________

On Appeal from the 128th District Court
Orange County, Texas
Trial Cause No. A190150-R
________________________________________________________________________

MEMORANDUM OPINION

Appellant Yovahnis Roque was convicted of capital murder and sentenced to

life imprisonment in the Institutional Division of the Texas Department of Criminal

Justice. Tex. Penal Code Ann. §§ 12.31(a)(2), 19.03(a)(8). In two appellate issues,

he challenges the admissibility of evidence suggesting that he was voluntarily

intoxicated at the time of the offense, evidence that Roque suggests would preclude

a jury finding him insane. Tex. Penal Code Ann. §§ 8.01(a), 8.04(a); See Davis v.

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State, 313 S.W.3d 317, 329-30 (Tex. Crim. App. 2010) (discussing voluntary

intoxication). Finding no reversible error, we affirm the judgment of the trial court.

I. Background

Appellant killed his two-year-old daughter Sophia by beating her with a

hammer. 1 Appellant did not dispute that he did so, but pleaded “not guilty by reason

of insanity[,]” meaning that at the time of the offense, he suffered from a “severe

mental disease or defect[]” that prevented him from “know[ing] that his conduct was

wrong.” Tex. Penal Code Ann. § 8.01(a).

Because “[v]oluntary intoxication does not constitute a defense to the

commission of a crime[,]” the State offered the challenged evidence of intoxication.

See Tex. Penal Code Ann. § 8.04(a); Sakil v. State, 287 S.W.3d 23, 26-28 (Tex.

Crim. App. 2009). The trial court admitted the evidence over Appellant’s objection.

Appellant argues that the voluntary intoxication evidence was inadmissible,

prejudiced the jury, and without the admission of this evidence the jury would have

found him not guilty by reason of insanity. We disagree. We summarize the relevant

testimony below.

1
We use pseudonyms to refer to the victim and her grandmother to conceal
their identities. See Tex. Const. art. I, § 30 (granting crime victims “the right to be
treated with fairness and with respect for the victim’s dignity and privacy throughout
the criminal justice process[.]” See Smith v. State, No. 09-17-00081-CR, 2018 WL
1321410, at *1, n. 1 (Tex. App.—Beaumont Mar. 14, 2018, no pet.) (mem. op., not
designated for publication).
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1. The First Responders’ Testimony

The jury heard testimony from four of the law enforcement officers who

responded to the scene of Sophia’s death. Chase Alexander was a patrol sergeant

with the Orange County Sheriff’s Office; Logan Holland was a sergeant with the

Orange Police Department; Isaac Henry also was employed by the City of Orange

Police Department; and Jesse Romero was the Assistant Chief of Police with the

City of West Orange. Each of these witnesses testified that he was a certified peace

officer in the State of Texas and outlined his respective duties and experience in law

enforcement.

On the date of Sophia’s death, Alexander was one of the first officers at the

scene. When he arrived, he saw Appellant at the doorway of the house, naked and

covered with blood and brain matter. He therefore ordered Appellant at gunpoint to

lie on the ground and crawl toward him; Appellant complied, and Holland placed

Appellant in handcuffs. Once Appellant was detained, Alexander and Romero

performed a protective sweep of the house to check for other potential threats. They

found no threats but observed that one of the bedrooms was in disarray and was

covered with blood. Holland later discovered Sophia’s body in the closet of that

bedroom.

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While Appellant was restrained in front of the house, Henry read Appellant

his rights. 2 Although Appellant did not then articulate an understanding of his rights,

he did state that he had killed his daughter. Henry also assisted with the search of

the house, which yielded Appellant’s cell phone, possible marijuana, and pills later

determined to be methamphetamine.

2. The Interviewers’ Testimony

Detective John Dee Taylor and Major Sparky Robinson, employees of the

Orange Police Department, interviewed Appellant at the police station. They

testified to Appellant’s statements and actions during the interview, noting that

Appellant seemed aware of the situation, and made both coherent and nonsensical

statements. Specifically, their testimony shows that Appellant stated he had

discovered a foreign substance in Sophia’s brain, denied killing her, yet admitted

hitting her in the head with a hammer. The detectives stated that in his interview the

Appellant indicated he had no recollection of Sophia’s death, told them that he was

“going mad[,]” and admitted that he sometimes blacked out while using drugs. The

Appellant also told the detectives he was sober when he was interviewed. Taylor

testified that Roque was not tested for drug use before he was interviewed because

Taylor believed probable cause did not exist to justify that type of test.

2
See Miranda v. Arizona, 384 U.S. 436 (1966).
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When the detectives asked Roque whether it would have been wrong to kill

Sophia, he acknowledged it would be wrong.

3. Dr. John Ralston’s Testimony

Ralston is the forensic pathologist who performed Sophia’s autopsy. He

described his educational and professional qualifications and outlined the purpose

and general procedure for conducting an autopsy. With specific reference to

Sophia’s autopsy, he noted that she was nude and that her body was covered in blood

and brain matter. Sophia had suffered multiple severe injuries, including “a massive

gaping skull fracture[]” and other injuries consistent with the claws from a claw

hammer. Ralston further noted that “[a] great deal of brain tissue was missing from

her skull[,]” and that her brain weighed “less than half what you’d expect for a child

that age.” In Ralston’s opinion, Sophia died as the result of multiple blunt force

injuries consistent with the use of a hammer.

4. Marie Abshire’s Testimony

Abshire is Appellant’s mother. She outlined Appellant’s history of mental

health issues, beginning with his becoming “paranoid” after being assaulted in

school when he was about twelve years old. Thereafter, Appellant had ongoing

problems, including depression. When Sophia was three weeks old, Appellant and

Sophia’s mother were struck by an intoxicated driver. Sophia’s mother was killed in

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the collision, and Appellant sustained a severe head injury. Following that accident,

Appellant and Sophia resided with Abshire.

During the two days preceding Sophia’s death, Appellant did not sleep and

ate very little. He was “acting upset” and behaving oddly, and he apparently was

hallucinating. Abshire therefore obtained an order to have Appellant committed, but

when she returned home after doing so, she saw what had happened to her

granddaughter.

5. Dr. Edward Gripon’s Testimony

Gripon, a psychiatrist, outlined his education, training, and experience in the

medical field. The trial court appointed Gripon to evaluate Appellant’s competency

to stand trial, as well as Appellant’s sanity the day Sophia’s murder occurred. After

determining that Appellant was competent to stand trial, Gripon reviewed

Appellant’s “extensive” mental health records to assess Appellant’s sanity on the

day Sophia died. Dr. Gripon noted that Appellant not only had a personal mental

health history that went “back quite some time[,]” but that Appellant had a family

history of mental health issues. Gripon testified that Appellant had a genetic

predisposition to suffer from certain mental health conditions. Gripon specifically

mentioned that Appellant sustained a severe head injury and was diagnosed with

post-traumatic stress disorder following an accident that resulted in the death of

Sophia’s mother. He also noted that Appellant has had “a history of mental health

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difficulties since he was a teenager[]” and that Appellant has a history of depression,

anxiety, panic attacks, hallucinations, a mood disorder, and multiple suicide

attempts. He further stated that Appellant exhibited “occasional psychotic

symptoms[,]” such as hallucinations. Gripon testified that, to cope with these

problems, Appellant reported using and abusing several prescription and illegal

drugs, including Xanax and marijuana, drugs that Dr. Gripon indicated tend to calm

the user.

Gripon testified that, during the time frame immediately preceding Sophia’s

death, Appellant became increasingly delusional. Appellant reported to Gripon that

Appellant believed that “the world was coming to an end[,]” and he was digging a

hole in his yard to save his family. Appellant told Gripon that on the morning of

Sophia’s death, Appellant believed that Sophia had a microchip implanted in her and

“[t]hought all of these terrible things were happening.” In Gripon’s opinion,

Appellant’s ability to recall his thoughts from that time was consistent with

psychosis, not intoxication. The recordings of Appellant’s irrational statements at

the time of his initial interviews reinforced this opinion. When Dr. Gripon evaluated

Appellant, Appellant was taking five different medications, including anti-psychotic

medications, to address his mental health according to Dr. Gripon. Dr. Gripon

believed these medications had improved Appellant’s mental status.

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Gripon testified that, at the time of Sophia’s death, Appellant was suffering

from a severe mental disease or disorder and that Appellant’s psychotic episode

would have rendered him unable to distinguish between right and wrong. He based

this opinion on the lack of a rational reason for Appellant’s actions. When asked

about the relationship between an episode and an intoxicant, Gripon stated that a

drug would not cause a psychotic episode unless the individual had an “underlying

propensity for the mental illness itself.” In contrast, however, he noted that “[w]here

you commonly may see psychosis is in methamphetamine abuse” and in the use of

synthetic marijuana. Gripon stated that it is not possible to separate the effects of a

drug from the effects of an underlying mental illness. Even though it is impossible

to separate the two, Gripon noted that illegal drug use will exacerbate psychosis, as

will sleep deprivation. Moreover, use of methamphetamine, a stimulant, will cause

sleep deprivation. Appellant acknowledged to Gripon his use of methamphetamine

but contended that he had not used it recently.

6. Detective Theodore Hilyar’s Testimony

Hilyar, a detective sergeant with the Orange Police Department, testified to

the content of the cell phone found in Appellant’s bedroom. Hilyar generally works

as a narcotics investigator. Hilyar coordinated the content of Appellant’s phone with

corresponding content in a phone seized from another individual in an unrelated

investigation. Appellant objected to this evidence on three grounds: (1) that it was

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hearsay, (2) that it constituted inadmissible prior bad acts, and (3) that Hilyar lacked

the ability to interpret the text messages. The trial court overruled these objections

and permitted Hilyar to testify that several days before Sophia’s death, Appellant

was buying prescription and illegal drugs from a known drug dealer named

Caldwell. Hilyar testified that, because Appellant did not provide a blood sample at

the time of his arrest, it could not be determined whether he was intoxicated on the

day the murder occurred.

7. Dallas Moreau’s Testimony

The State called Moreau, a licensed professional counselor, as a rebuttal

witness. He described his education, training, and experience, and explained his

professional practice, which includes performing suicide evaluations on inmates at

the Orange County jail. Moreau’s experience also includes work in substance abuse

treatment.

Moreau evaluated Appellant’s suicide potential on the day after Sophia’s

death. Moreau described Appellant as “very upset, very distraught,” in the initial

visit, but he said Roque responded accurately when asked his name, age, and about

his surroundings. Appellant also told Moreau that he had killed Sophia and was

“very remorseful[]” over Sophia’s death. Although Moreau was not permitted to

express an opinion about Appellant’s sanity, Moreau testified that he had no doubt

that when he evaluated Roque, Roque understood that killing Sophia was wrong.

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Moreau said he couldn’t recall whether Appellant’s mental health history

included violent outbursts or major psychotic breaks. The absence of a history of

violence, Moreau explained, led him to suspect substance abuse. Moreau testified

that he asked Appellant about his drug use. According to Moreau, Roque told him

that he had smoked marijuana and that his mother had given him a pill that “kept

him awake for four days.” Moreau noted that abuse of amphetamines or other

stimulants can cause prolonged wakefulness, and that an extended lack of sleep may

cause a break with reality. Moreau testified that “[m]ost drugs clear the system in

about three to maybe five days[,]” So, Moreau said that he directed the jail staff to

observe Appellant during that period to see if Appellant’s mental status improved.

Moreau reported that Appellant’s situation improved after he was jailed, and Rogue

regained some lucidity. Moreau acknowledged, however, that he had no concrete

evidence, such as a drug test, to demonstrate that Rogue was under the influence of

drugs when he was arrested or when the murder occurred.

II. Standard of Review

“We review a trial court’s decision regarding the admissibility of evidence

under an abuse of discretion standard.” Cameron v. State, 241 S.W.3d 15, 19 (Tex.

Crim. App. 2007) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.

App. 1991)). Trial courts are in the best position to resolve questions of

admissibility, therefore appellate courts will uphold a trial court’s decision on

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admissibility as long as the decision is not outside the “zone of reasonable

disagreement.” Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App.

2006); Montgomery, 810 S.W.2d at 391.

III. Analysis

1. Device Data Reports/Detective Hilyar’s Testimony

Appellant argues that the trial court erred in admitting State’s exhibits 79 and

80, the records of Appellant’s text messages, because the texts were inadmissible as

hearsay and admitting them violated Rule 404(b) of the Texas Rules of Evidence.

See Tex. R. Evid. 404(b), 802. Exhibit 79 reflects text message exchanges retrieved

from Appellant’s phone. Exhibit 80 shows substantially the same text message

exchanges retrieved from the phone of a known drug dealer. As noted above, these

messages show that during the days preceding Sophia’s death, Appellant was buying

and attempting to buy various prescription and illicit drugs. Therefore, the evidence

was relevant to the issues at trial. See Tex. R. Evid. 401.

a. Hearsay Objection

Evidence of the content of text messages on a cell phone may be inadmissible

hearsay if there is no evidence that the declarant sent the messages. See Black v.

State, 358 S.W.3d 823, 832 (Tex. App.—Fort Worth 2012, pet. ref’d). Appellant did

not, however, make this particular objection to the trial court, and therefore has failed

to preserve error regarding this argument. See Tex. R. App. P. 33.1(a)(1); Golliday

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v. State, 560 S.W.3d 664, 668-71 (Tex. Crim. App. 2018) (discussing proper

preservation of error and holding that the appellate complaint was not properly

preserved). Even had Appellant made a timely objection challenging the lack of

authentication of these text messages, such an objection would have been resolved

in the State’s favor. Text messages may be authenticated in multiple ways, including

by circumstantial evidence. See Tienda v. State, 358 S.W.3d 633, 639-40 (Tex. Crim.

App. 2012). Evidence before the trial court included circumstances that Appellant’s

cell phone was found in his bedroom, in a house he shared with only his mother and

his two-year-old daughter. There is no indication in the record that the phone or the

messages it contained belonged to either of the other occupants of the house. We

conclude the trial court had ample evidence to show that the text messages were

communicated by Roque.

Appellant’s own text messages are not hearsay, as they are admissions by a

party opponent. See Tex. R. Evid. 801(e)(2)(A); Trevino v. State, 991 S.W.2d 849,

852-53 (Tex. Crim. App. 1999) (holding that a defendant’s own statements are not

hearsay).

As to Caldwell’s text messages to Appellant, they are hearsay. Tex. R. Evid.

801(d). Because these text messages reference Caldwell’s own participation in

illegal drug transactions, however, they tend to expose Caldwell to criminal liability.

These statements also are supported by corroborating circumstances that indicate

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their trustworthiness. Consequently, Caldwell’s text messages fall within an

exception to the rule that generally prohibits the admission of evidence that qualifies

as hearsay. See Woods v. State, 152 S.W.3d 105, 112-13 (Tex. Crim. App. 2004);

Tex. R. Evid. 803(24). Because Appellant’s and Caldwell’s text message statements

constitute a hearsay exclusion and a hearsay exception, respectively, the trial court

did not abuse its discretion by admitting State’s exhibits 79 and 80.

b. Appellant’s Rule 404(b) Objection

The evidence of Appellant’s drug transactions would have been inadmissible

if it were “offered solely for proving bad character and conduct in conformity with

that bad character.” Dabney v. State, 492 S.W.3d 309, 317 (Tex. Crim. App. 2016)

(emphasis added); Tex. R. Civ. P. 404(b)(1). This evidence was not, however,

offered solely for that purpose. Instead, it was offered to rebut Roque’s defensive

theory, his defense of insanity, and for that reason we conclude that the evidence of

the drug transactions at issue was admissible. See Dabney, 492 S.W.3d at 317; Tex.

R. Evid. 404(b)(2).

Appellant has argued that because he did not offer evidence specific to

intoxication, he did not open the door to this evidence simply by pleading insanity.

We disagree. Appellant offered Dr. Gripon’s testimony to support his insanity

defense. This evidence of Appellant’s alleged insanity therefore opened the door to

the admissibility of extraneous evidence tending to rebut insanity, including

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evidence of voluntary intoxication. See Villanueva v. State, No. 01-20-00303-CR,

2021 WL 2832974, at *11 (Tex. App.—Houston [1st Dist.] July 8, 2021 (no pet.)

(mem. op.) (not designated for publication) (discussing the admissibility of evidence

of voluntary intoxication to rebut an insanity defense under analogous facts).

We overrule Appellant’s first issue.

2. Dallas Moreau’s Testimony

At trial, Appellant objected to Moreau’s testimony on the basis that Moreau

was not qualified to testify regarding Appellant’s sanity because Moreau’s

professional qualifications did not meet the statutory requirements set forth in article

46C.102 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art

46C.102(a)(1). Appellant also objected that Moreau was not a qualified expert under

the Texas Rules of Evidence. Tex. R. Evid. 702. Appellant further contended that

because Moreau could not render an opinion as to Appellant’s sanity at the time of

the offense, his testimony was irrelevant to any fact of consequence in the case.

Therefore, Appellant argues, Moreau’s testimony should have been disallowed in its

entirety pursuant to Rules 401 and 402 of the Texas Rules of Evidence. Tex. R. Evid

401, 402.

In addressing the initial objection, the trial court relied on Pham v. State to

decide that the cited portion of the Code of Criminal Procedure applies only to court-

appointed experts. See Pham v. State, 463 S.W.3d 660, 670 (Tex. App.—Amarillo

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2015, pet. ref’d); Tex. Code Crim. Proc. Ann. art. 46C.102(a). In Pham, a court-

appointed neuropsychiatrist testified that the appellant was insane at the time of the

offense. Pham, 463 S.W.3d at 665-66. To rebut that evidence, the State retained an

expert who testified that the appellant was sane at the relevant point in time. Id. The

appellant contended that the trial court erred in admitting the testimony of the State’s

retained expert because that expert’s qualifications did not meet the statutory criteria.

Id. at 667. In rejecting this argument, the Pham court noted that “the plain language

of Article 46C.102 itself suggests that it applies only to court-appointed experts[.]”

Id. at 669. Because Moreau was not a court-appointed expert, we conclude, as did

our sister court, that the strict statutory criteria did not apply to Moreau’s testimony.

See Tex. Code Crim. Proc. Ann. art. 46C.102(a).

After implicitly overruling Appellant’s initial objection to Moreau’s

qualifications, the trial court conducted a hearing outside the jury’s presence to

determine Moreau’s expert qualifications pursuant to Rule 702 of the Texas Rules

of Evidence. See Tex. R. Evid. 702. During this hearing, Moreau provided detailed

testimony regarding his educational background, training, and clinical and forensic

experience. In particular, he stated that he has both a bachelor’s and a master’s

degree in clinical psychology, approximately forty years of clinical experience, and

roughly ten years of experience doing substance abuse counseling for Jefferson and

Orange Counties. Moreau also teaches psychology at a local college, and has

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testified as a mental health expert on multiple occasions. Based on that information,

the trial court determined that Moreau met the Rule 702 standard to testify as an

expert. Tex. R. Evid. 702. Because Moreau’s testimony enabled the trial court to

find that Moreau was qualified “by knowledge, skill, experience, training, [and]

education[,]” and that his “specialized knowledge [would] help the trier of fact to

. . . determine a fact in issue[,]” the trial court did not abuse its discretion in

permitting Moreau to testify as an expert. Tex. R. Evid. 702; see Moreno v. State,

619 S.W.3d 754, 760-61 (Tex. App.—San Antonio 2020, no pet.) (holding that a

licensed professional counselor was a qualified expert witness under Rule 702).

Although the trial court precluded Moreau from testifying that Appellant was

or was not legally sane at the time of Sophia’s death, this evidentiary ruling does not

render Moreau’s testimony irrelevant. Moreau testified about Appellant’s

admissions and state of mind as of the day after Sophia’s death. The jury was

permitted to consider this evidence in weighing Appellant’s insanity defense. See

Otis v. State, No. 09-09-00140-CR, 2010 WL 1794932, at *3 (Tex. App.—

Beaumont May 5, 2010, no pet.) (mem. op) (not designated for publication) (noting

that a “jury may consider circumstantial evidence, including: the defendant’s

demeanor before and after the crime; . . . [and] the defendant’s expressions of regret

or fear, of the consequences of his actions; and any other possible explanations for

the defendant’s behavior.”) (citing Torres v. State, 976 S.W.2d 345, 347-48 (Tex.

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App.—Corpus Christi 1998, no pet.)). According to the rationale of Otis, Moreau’s

testimony was relevant because it included Appellant’s demeanor after the crime and

his expressions of regret at having killed Sophia. Id. The trial court did not err in

admitting this evidence and we overrule Appellant’s second point of error.

3. Harmless Error

Contrary to Appellant’s implicit argument, the jury’s verdict does not

necessarily depend on the suggestion that Appellant was voluntarily intoxicated at

the time of the offense. Instead, the jury, as fact finder, was empowered to reject

Appellant’s insanity defense regardless of evidence of sanity or voluntary

intoxication. See Villanueva, 2021 WL 2832974, at *13 (addressing a jury’s ability

to reject an insanity defense). The burden of proving insanity fell to Appellant and

the jury was authorized to determine whether Appellant had met his burden of proof

by believing or disbelieving the evidence of insanity regardless of other evidence.

See Dashield v. State, 110 S.W.3d 111, 115-16 (Tex. App.—Houston [1st Dist.]

2003, pet. ref’d) (addressing a jury’s authority to disbelieve even uncontroverted

evidence of insanity).

The record contains evidence that within mere hours of Sophia’s death,

Appellant was capable of stating that he had hit her with a hammer and that it would

have been wrong to kill her. From this evidence, the jury could have inferred that,

notwithstanding expert testimony to the contrary, Appellant knew at the time of the

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offense that his conduct was wrong. Id.; see also Bartel v. State, No. 02-16-00020-

CR, 2017 WL 1089689, at *4 (Tex. App.—Fort Worth Mar. 23, 2017, no pet.) (mem.

op) (not designated for publication) (holding that evidence of sanity was sufficient

to enable the jury to reject the insanity defense). Therefore, although we conclude

the trial court did not abuse its discretion in admitting any evidence, any error that

may have occurred in admitting evidence of voluntary intoxication was harmless

given the testimony that Appellant knew when the murder occurred that what he was

doing was wrong. See Tex. R. App. P. 44.2(b).

IV. Conclusion

Because the arguments Rogue relies on to support his issues lack merit, the

trial court’s judgment is affirmed.

AFFIRMED.

JAY WRIGHT
Justice

Submitted on January 26, 2023
Opinion Delivered November 29, 2023
Do Not Publish

Before Golemon, C.J., Horton and Wright, JJ.

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