CHAVEZ, FACUNDO v. the State of Texas

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. AP–77,117

FACUNDO CHAVEZ, Appellant v.

THE STATE OF TEXAS

ON DIRECT APPEAL FROM CAUSE NO. 20190D03091-DCR1-1 IN THE CRIMINAL DISTRICT NUMBER ONE EL PASO COUNTY

PARKER, J., delivered the opinion of the Court in which SCHENCK, P.J., and RICHARDSON, NEWELL, KEEL, WALKER, MCCLURE, and FINLEY, JJ., joined. YEARY, J. joined all except part I.D.

OPINION

Appellant was convicted in August 2023 of capital murder.1 Pursuant to the jury’s answers to the special issues set forth in Texas Code of Criminal Procedure

1 TEX. PENAL CODE § 19.03(a).

Article 37.071, Sections 2(b) and 2(e), the trial judge sentenced appellant to death.2 Direct appeal to this Court is automatic.3 Appellant raises 16 points of error. We affirm.

THE SHOOTING

On March 22, 2019, Deputy Peter Herrera was patrolling on a two-way road.

Around 1:49 a.m., he made a traffic stop after a vehicle driving towards him flashed its high beams at him. Deputy Herrera’s dashcam video depicted the events that followed:

Deputy Herrera saw two people inside the car. A female passenger, later identified as Pina, opened the passenger door and began gathering her belongings. Deputy Herrera approached the car and told Pina to get back inside the vehicle. Deputy Herrera then ordered the driver, Appellant, to show his hands and asked if anything illegal was in the vehicle. Appellant denied having anything illegal in the vehicle and put his hands outside the window. Deputy Herrera told Appellant that he stopped him for flashing his high beams at him. Deputy Herrera asked for Appellant’s driver’s license and insurance and asked where he was coming from.

2 See TEX. CODE CRIM. PROC. art. 37.071 §§ 2(b), (e), (g).

3 Id. art. 37.071 § 2(h).

As Appellant answered, Deputy Herrera shined his light in the car. He asked Appellant to step out of the car and whether he had any weapons on him. Appellant stepped out of the car with his hand raised, wielding a handgun, and rapidly shot at Deputy Herrera.

Deputy Herrera put his hands up and moved away from Appellant as Appellant continued to fire upon Deputy Herrera. Appellant followed Deputy Herrera as he ran out of the dashcam’s field of view. The sound of the shots continued, but when they stopped, Appellant can be heard hitting Deputy Herrera while shouting “motherfucker” and “fuck the police.” Appellant and Pina attempted to flee the scene, but their vehicle stalled out in an intersection. The two fled the scene on foot.

I. GUILT

A. Jury Selection In his first three points of error,4 Appellant claims that the trial court erred by deviating from the statutory procedure requiring that peremptory strikes in capital murder cases be exercised after the questioning of each individual

4 In these points of error, Appellant argues that the trial court erred by deviating from TEX.

CODE CRIM. PROC. art. 35.13; that this deprived him of his statutorily allotted 15 peremptory challenges, violating his state constitutional right to a trial by a fair and impartial jury; and that this violated his federal constitutional rights to a fair trial and due process.

venireperson.5 1. Relevant Facts Preliminary discussion about jury selection started on August 1, 2022.

There, the prosecutor informed the trial court of the State’s preference that the parties immediately make their challenges for cause upon passing each juror on individual voir dire but that they refrain from exercising peremptory strikes until the appropriate number of jurors were qualified:

[THE STATE]: There was one other thing I think we all wanted to address is - I think it’s the State’s preference that we do for causes - each side can choose to do for cause immediately after the witness [sic], but we wait on peremptories until we have 48 or 49 that we need.

[DEFENSE COUNSEL]: That was my understanding, that we would challenge for cause now. And then if the person was not challenged, they get put onto the pool.

And once we get to 48, that's when we would - that group we would exercise our -

[THE STATE]: 15 peremptories.

[DEFENSE COUNSEL]: Yeah.

[THE COURT]: So I don’t think that I had ruled. You made the request early on. But I don’t have a problem with waiting with the peremptories until we have the –– and it would be 48, wouldn’t it? With two alternates?

5 TEX. CODE CRIM. PROC. art. 35.13.

[THE STATE]: Yeah.

[DEFENSE COUNSEL]: Yes, ma’am.

[THE COURT]: Okay. So I don’t have a problem with doing that. We can do the challenges for cause after each juror and then the peremptories after we have the 48 that we believe is necessary so that we can have two alternatives.

During voir dire, the trial court took challenges for cause from the parties after they questioned each venireperson but deferred the exercise of peremptory challenges until a panel of 48 venirepersons were qualified. After individual voir dire, and after qualifying the 48 venirepersons, the trial court listed the qualified jurors from which the parties would exercise their peremptory strikes. The trial judge told the parties that “your 15 strikes are up to Juror 32 in the fourth panel.” The judge asked the parties to “do it by email . . . tell me what your strikes are.” Both parties indicated their peremptory challenges on the clerk’s list of qualified venirepersons and submitted their “strike sheets” to the court by email. On July 12, 2023, the strike sheets reflected that both parties exercised a peremptory strike—the state’s eighth peremptory strike and the defense’s seventh—against Juror 34 from the second panel. The parties also double-struck a prospective alternate juror with their alternate juror strikes. No additional peremptory strikes were granted to the defense, nor were they asked for.

2. Procedural Default Article 35.13 states that “[a] juror in a capital case in which the state has made it known it will seek the death penalty, held to be qualified, shall be passed for acceptance or challenge first to the state and then to the defendant. Challenges to jurors are either peremptory or for cause.”6 In non-capital cases and capital cases in which the State does not seek the death penalty, the parties exercise their peremptory strikes at the end of voir dire, without knowing what venirepersons the other side intends to strike.7 In Busby v. State, a capital murder case where peremptory strikes were also postponed until after individual voir dire, we noted that “[w]e have previously held that the retroactive exercise of peremptory strikes by the State is subject to procedural default (i.e. error is defaulted absent objection).”8 In another case where a trial judge deviated from the statutory voir dire procedure, we held that “the appellant failed to object to the procedure

6 Id.

7 TEX. CODE CRIM. PROC. art. 35.25.

8 Busby v. State, 990 S.W.2d 263, 268 (Tex. Crim. App. 1999) (citing Fearance v. State, 771 S.W.2d 486, 496 n. 3 (Tex. Crim. App. 1988)).

utilized and waived the error, if any.”9 The parties essentially followed the procedure for non-capital cases under Article 35.25.10 Appellant did not object to this procedure. Hence, Appellant forfeited his claim. Indeed, because defense counsel aided the State in explaining to the trial judge how the parties preferred to exercise their peremptory strikes, he arguably “waived any error by requesting the procedure followed in the present case.”11 In oral argument, Appellant’s attorney claimed that they were not aware that the trial court would not tabulate the State’s strikes before Appellant’s. The requirement for preserving error applies only when the grounds for objection have become apparent.12 But Appellant knew that he was blindly submitting his strike list to the trial court without knowing what the State’s strikes were. Appellant’s first three points of error are overruled.

B. Pretrial Proceedings Claims In his fourth and fifth issues, Appellant claims that the trial court erred by

9 See Bridge v. State, 726 S.W.2d 558, 564 (Tex. Crim. App. 1986).

10 See supra at n.7.

11 Busby, 990 S.W.2d at 268 (emphasis added).

12 Pena v. State, 353 S.W.3d 797, 807-08 (Tex. Crim. App. 2011).

conducting pretrial proceedings in Appellant’s absence, in violation of Articles 28.01 and 33.03 of the Texas Code of Criminal Procedure and Appellant’s rights under the Fifth, Sixth, and Fourteenth Amendments.

1. Relevant Facts On July 10, 2019, Appellant was not present for a “status hearing.” This hearing was prompted by a letter that Appellant’s mother sent to the trial judge. The judge asked for input from the parties about what to do with the letter. The parties agreed that it was an improper ex parte communication, and the judge gave the letter to Appellant’s counsel.

On March 12, 2020, the court conducted another hearing that the judge called a “status hearing and a motion hearing” in which defense counsel clarified that the parties agreed that a motion hearing would be unnecessary because they were able to “get something worked out” related to the defense’s request for disclosure of items from Appellant’s cell phone. Defense counsel also told the judge that the parties were working on a proposed jury questionnaire and that the defense’s second mitigation expert was almost half-way done with his assessment. The parties then discussed setting a date for voir dire and the effect that COVID- 19 would have on the proceedings.

At a March 22, 2021 status hearing, the State informed the court that its proposed jury questionnaire was not complete, and defense counsel told the court that he was also working on the proposed jury questionnaire and that their mitigation expert would soon be meeting with Appellant.

On April 5, 2021, at another status hearing, the State told the judge that the proposed jury questionnaire would be finished within the next few days, and defense counsel informed the judge that the defense’s mitigation expert would visit Appellant within the next few weeks. Defense counsel also informed the judge that their DNA expert completed his report, and that the Defense had a proposed jury questionnaire that it would provide to the State. Further, the parties discussed a COVID-19 questionnaire that had been used in the past and whether a similar questionnaire should be used in this case. The hearing concluded with more discussion of COVID-19 procedures.

On May 3, 2021, the prosecutor requested a meeting with the attorneys representing Appellant and his codefendant, Pina, so that they could discuss whose case to try first. Defense counsel agreed but insisted that all attorneys, including Pina’s, be involved in the discussion. The judge agreed to set a date for the meeting.

On October 25, 2021, newly-appointed defense counsel informed the trial court that the Defense was gathering all the information they needed to review. The trial court told the Defense that it would continue its monthly status hearings. The prosecutor, not pleased with the delay caused by the replacement of Appellant’s attorneys, requested that Appellant appear at future hearings to avoid complaints similar to those made by Appellant against his prior attorneys about his absence from the status hearings. Defense counsel agreed, and the judge said she would do her best, due to COVID-19, to try to make it possible for Appellant to appear via zoom.

On January 31, 2022, defense counsel expressed concern with obtaining a computer belonging to Appellant from prior counsel. Appellant was present at this hearing. After confirming that Appellant was available for a remote status hearing on February 11, 2022, the trial court set a hearing on that date.

On February 11, 2022, Appellant was not present. The judge informed the parties that she received an email from Appellant’s prior attorney, indicating that the computer had been returned to Appellant’s mother. Defense counsel told the court that he would confirm this with Appellant’s mother, and the parties concluded with discussion of the jury questionnaire.

On October 24, 2022, at the last status hearing, the State informed the court that the agreed-upon jury questionnaire had been submitted to the trial court and that the parties would meet to discuss any last-minute matters. The Defense had nothing to report to the court. The judge told the parties that the parties would meet to address the first jury panel on November 16, 2022.

2. “Proceedings”

Appellant argues that the hearings at issue constituted “proceedings” under Article 28.01 because the trial court made conclusions and substantive matters were discussed.13 Under Article 28.01, the “defendant must be present at the arraignment, and his presence is required during any pre-trial proceeding.”14 In Riggall v. State, this Court held that an order overruling the appellant’s motion to dismiss for failure to prosecute was a proceeding because“[t]he order itself contains four paragraphs which are labeled by the trial court as findings of fact and conclusions of law. These recitations indicate there was at least some proceeding from which the trial court made its conclusions.”15 In Malcom v. State, the defendant argued that the trial court violated Article

13 See Adanandus v. State, 866 S.W.2d 210, 218 (Tex. Crim. App. 1993).

14 TEX. CODE CRIM. PROC. art. 28.01 (emphasis added).

15 590 S.W.2d 460, 461 (Tex. Crim. App. 1979) (emphasis added).

28.01 when it overruled his motion for dismissal of counsel when neither he nor his attorney were present.16 There was no order in that case but “just a notation on a docket sheet saying that the motion was overruled.”17 We held that the trial court’s “action in overruling” the defendant’s motion was not a proceeding.18 These two cases contained some ambiguity about the Court’s focus: on whether any meeting took place or on whether any meeting was substantive. This Court would later suggest that these cases recognized a substantive component to the meaning of the word “proceeding.” In Adanandus v. State, this Court discussed both Riggall and Malcom.19 Ultimately, Adanandus held that an in- chambers meeting was a pretrial proceeding within the meaning of Article 28.01 because “[t]he meeting entailed a motion by the defense which was overruled, a request by the defense to make a Bill of Exceptions, which was granted, instructions by the trial court regarding jury shuffle procedures and the use of strikes and some general discussion regarding [trial] publicity.”20 By negative

16 628 S.W.2d 790, 792 (Tex. Crim. App. 1982).

17 Id.

18 Id.

19 866 S.W.2d at 218-19.

20 Id. at 219.

implication, this holding suggested that a meeting would not constitute a proceeding if no order affecting the case issued and nothing substantive was litigated. What was implied, we now take the opportunity to explicitly so hold.

Here, the status hearings at issue were not adversarial, nor did the trial judge make any rulings. The purpose of the hearings was to keep the court up-to-date on the parties’ preparation for trial. Indeed, rather than being adversarial in nature, the parties worked together to craft proposed jury questionnaires, organize additional meetings with Appellant’s codefendant’s attorneys, and return a laptop to Appellant when his previous counsel failed to. Nothing about these meetings begged for Appellant’s presence, and nothing about them indicated a proceeding as contemplated by Article 28.01. Thus, Article 28.01 was not violated.

3. Non-Constitutional Harm Even assuming Article 28.01 was violated, we “conclude that the alleged error did not affect a substantial right” of Appellant.21 “A substantial right is affected when the error had a substantial and injurious effect or influence in

21 See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing TEX. R. APP. P.

44.2(b)).

determining the jury’s verdict.”22 Conversely, a substantial right is not affected if “after examining the record as a whole,” the appellate court “has fair assurance that the error did not influence the jury, or had but a slight effect.”23 For the same reasons we found that the status hearings were not proceedings, we hold that Appellant was not harmed by his absence from them. Nothing substantive was litigated at these meetings and the trial court issued no orders or rulings. We can confidently say that Appellant’s absence from the status hearings had no affect on the outcome of his case. Appellant’s fourth point of error is overruled.

4. Due Process Citing the Fifth, Sixth, and Fourteenth Amendments, Appellant also argues that his absence from these hearings violated his right to due process. While the constitutional right to due process plays a role in protecting a defendant’s right to be present at various stages of his prosecution, “the presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.”24 The United States Supreme

22 Id.

23 King v. State, 666 S.W.3d 581, 585 (Tex. Crim. App. 2023).

24 Snyder v. Massachusetts, 291 U.S. 97, 108 (1934); see also U.S. v. Gagnon, 470 U.S. 522, 526 (1985) (explaining that a defendant’s right to be present is largely rooted in the Confrontation Clause (continued...)

Court has explained that “the defendant has the privilege under the Fourteenth Amendment to be present in his own person whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.”25 The hearings at issue largely addressed housekeeping matters to ensure the trial would remain on schedule and to address the implications of COVID-19.26 None of the hearings bore a reasonably substantial relationship to Appellant’s ability to defend against the charge. The only hearing that even remotely implicated his defense was on February 11, where the parties discussed the computer that Appellant’s previous attorney returned. However, Appellant was at the hearing immediately preceding this, and he heard that his current attorney was in the process of obtaining the computer. Nothing that occurred in these hearings

24 (...continued)

but recognizing that the Fifth and Fourteenth Amendment Due Process clauses protect a defendant even when Confrontation is not an issue); King, supra.

25 Snyder, supra at 105-06.

26 Appellant claims that these hearings violated his Sixth Amendment rights as well as his Fifth and Fourteenth Amendment rights. These hearings took place before the guilt stage of trial—thus not implicating any Confrontation Clause concerns—and Appellant does not adequately brief its applicability to these hearings.

impacted Appellant’s case in any way.27 Appellant’s fourth and fifth points of error are overruled.

C. Appellant’s Testimony About Pina’s Statements In his sixth, seventh, and eighth points of error, Appellant argues that the trial court erred in excluding his testimony about Pina’s statements to him immediately before the shooting.

1. Relevant Facts Appellant took the stand in his own defense. During his testimony, defense counsel played the dashcam video of the traffic stop, and asked Appellant to describe what was happening in his car. Appellant testified that Deputy Herrera pulled him over for what he thought would be a normal traffic stop. When asked to describe what was happening in his car when Pina is seen looking back at Deputy Herrera’s vehicle, Appellant said that Pina told him, “It’s–It’s the same fucking deputy that’s been—.” The State objected on hearsay grounds, and Appellant’s counsel argued that Pina’s statements fell under the excited-utterance exception to the hearsay rule. The trial court sustained the objection because the proper predicate had not been laid.

27 See Adanandus, 866 S.W.2d at 220 (“Appellant’s assistance was not needed in order to further his defense on the issues discussed.”).

Defense counsel then elicited statements from Appellant that Pina was “nervous, jumpy, looking around, scared.” Without objection, Appellant said that Pina stated, “Oh my god, babe. It’s the same deputy that’s been fucking harassing me. There’s something I haven’t told you.” Appellant also explained that he knew that a law enforcement officer spoke to Pina in the past, but he did not know who specifically. Defense counsel asked Appellant whether, based on his conversations with Pina, his impression of the officer Pina told him about was positive or negative. The State objected on hearsay grounds, and Appellant said he was not offering the evidence for the truth of the matter asserted. The judge told the prosecutor that Appellant answered the last question and told Appellant not to answer if an objection is lodged. Appellant then said that Pina pulled the gun out of her purse and told Appellant that Deputy Herrera forced himself on her and that he said he would kill Appellant if she did not have sex with him. This answer prompted the following:

[THE STATE]: You know, I’ve objected and objected and objected. I’ve asked you to tell him not to do this, and he does it and does it. And he’s got this willing person here, putting this forward. Now, I’m going to ask you to tell the jury to disregard the last hearsay statement of this witness, and ask him again not to elicit hearsay from this witness.

[THE DEFENSE]: Your Honor, at this time, I’ve already laid the predicate for [Pina] being excited. I’ve offered this excited utterance. This whole conversation is part of an ongoing conversation while she’s excited. [The prosecutor] didn’t object when I asked him what she told him after she looked back. We’re talking about seconds between—what—this conversation. So I’m not talking about a conversation that’s going on or, “Hey, she told me this ten minutes later after she was calm.” This is an ongoing conversation. And it’s also critical to his understanding and his impressions about what is going to happen or what is happening to him right there.

[THE COURT]: All right. The objection for hearsay is sustained. I’m going to ask the jury to disregard the last statement that the defendant has made. Do not elicit any more hearsay, Mr. Lopez—

[THE DEFENSE]: Yes, your Honor.

Appellant testified about Pina’s nervousness and said she acted different from other traffic stops he saw her in. The parties engaged in a sidebar where the judge heard each side’s argument as to whether the statements should be allowed in. Defense counsel also voir dired Appellant outside the presence of the jury, but the judge sustained the State’s objections. Defense counsel asked, “And so we’ve not laid the proper predicate for an excited utterance?” The trial judge noted the following:

No. And I do want to put it on the record that I am basing it on my review of the video. When she gets out of the car, it’s my impression, I don’t see her high-pitched. I don’t see her upset. I don’t see any of those things, so I’m basing it on the evidence that’s been introduced, which is the video that’s happening right after you’re saying that these things happened.

The dashcam video shows Appellant and Pina looking back at Deputy Herrera’s patrol vehicle shortly after he pulled them over. Soon after, Pina slowly opened the passenger door and stepped out of the vehicle. As Deputy Herrera approached the vehicle, she appeared to gather some belongings in her arms before getting back into the car and shutting the door. Deputy Herrera told Pina to get back in the car and to show him her hands. Pina looked at Deputy Herrera without appearing distressed, and she did not protest.

In the presence of the jury, Appellant described how Pina handed him the gun and how he hid it. Appellant described Pina’s “weird” behavior of getting out of the car and gathering her belongings. Appellant said he was scared and confused because of this. At this point, defense counsel approached the bench to re-urge admitting Pina’s statements so he could show Appellant’s impression of those statements that he was not involved in a normal traffic stop. Defense counsel argued to the judge that the statements were not introduced to prove that Deputy Herrera actually harassed Pina, or to prove that he actually threatened to kill

Appellant but to show that Appellant believed the statements and was agitated by them. The State argued that the statements were irrelevant and highly prejudicial because Appellant’s belief that Deputy Herrera was not lawfully discharging his duties was not relevant in determining whether he committed capital murder. Defense counsel argued that this would prevent Appellant from putting on a defense of his belief that Deputy Herrera was not lawfully discharging his duties. The judge explained that she did not believe her rulings would prevent Appellant from putting on a defense; they merely prevented him from introducing hearsay statements.

Lastly, the jury viewed a video of Appellant’s interview with two detectives where he discussed what happened in the car before the shooting. Appellant stated that Pina grabbed him as soon as she saw Deputy Herrera and said, “It’s him. He’s the one that’s been harassing me.” Appellant claimed to have not known how she felt about Deputy Herrera until this point. Appellant told the detectives that he “understands that [Deputy Herrera] was doing his job . . . but for her to fear him and be scared of him and him to be doing this job, that’s what triggered [him].”

2. Excited-Utterance Hearsay statements are generally inadmissible unless the statement falls under an exception to the hearsay rule.28 One exception to the hearsay rule is the excited utterance exception. “An excited utterance is ‘[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.’”29 To determine whether a statement falls under the excited utterance exception, “the critical determination is ‘whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event or condition when the statement is made.’”30 Further, because we review a trial court’s decision to admit or not admit evidence over objection under an abuse-of-discretion standard, we “will not reverse that decision absent a clear abuse of discretion.”31 A trial court abuses its discretion when the decision lies outside the zone of reasonable disagreement.32 Because the record supports the trial judge’s ruling that Pina’s statements were not made under the stress of excitement caused by some event or condition,

28 TEX. R. EVID. 802.

29 Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005) (quoting TEX. R. EVID.

803(2)).

30 Zuliani v. State, 97 S.W.3d 589, 596 (Tex. Crim. App. 2003) (citing McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992)).

31 McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008).

32 Id. (citing Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992)).

“we cannot say that it abused its discretion in so finding.”33 The video of the traffic stop supports the trial judge’s ruling that Pina did not appear to be under the stress of excitement caused by the stop—she willingly got out of the car and calmly gathered her belongings, and she readily obeyed Deputy Herrera’s later command to get back in the vehicle.

3. Effect on the Listener In his seventh point of error, Appellant argues that Pina’s statements should have also been admitted to show the effect of the statements on Appellant’s state of mind just before the shooting.

“Finding a piece of evidence to be ‘relevant’ is the first step in a trial court’s determination of whether the evidence should be admitted. . . . Evidence which is not relevant is not admissible.’”34 “Evidence is relevant if it has any tendency to make any fact of consequence more or less probable than it would be without the evidence.”35 In deciding whether evidence is relevant, a trial judge should ask whether a reasonable person would find that particular piece of evidence helpful in

33 Zuliani, 97 S.W.3d at 596.

34 Montgomery v. State, 810 S.W.2d 372, 375 (Tex. Crim. App. 1990) (citing TEX. R. EVID.

402).

35 Bluntson v. State, 728 S.W.3d 87, 109 (Tex. Crim. App. 2025); see TEX. R. EVID. 401.

determining the truth or falsity of any fact that is of consequence.36 Appellant’s subjective perception that Deputy Herrera did not act in the lawful discharge of his duties had no bearing on a capital murder inquiry. To prove capital murder, the State had to show that Deputy Herrera was “‘acting in the lawful discharge of an official duty,’ but the defendant need not know that specific fact.”37 Similar to assault on a peace officer, “while the State must still prove the defendant knew or had been informed that he was assaulting a peace officer, proof that he also knew the officer was ‘lawfully discharging an official duty’ is unnecessary.”38 In Hall v. State, we explained that “this Court has held that as long as the officer was acting within his capacity as a peace officer, he was acting within the lawful discharge of his official duties.”39 In assessing whether an officer “lawfully discharged” his official duties, “we have looked at the details of the encounter, such as whether the police officer was in uniform, on duty, and whether he was on regular patrol at the time of the assault.”40

36 Montgomery, 810 S.W.2d at 376.

37 Mays. State, 318 S.W.3d 368, 383 (Tex. Crim. App. 2010).

38 Salazar v. State, 643 S.W.2d 953, 956 (Tex. Crim. App. 1983).

39 158 S.W.3d 470, 474 (Tex. Crim. App. 2005) (citations omitted).

40 Id.

Deputy Herrera pulled Appellant over because Appellant flashed his high beams at him which is clearly seen on the dashcam video.41 The State demonstrated that Deputy Herrera acted in the lawful discharge of his duties, and Appellant’s perception of Deputy Herrera’s intentions “would not negate the required culpability for capital murder.”42 Thus Appellant’s perception of Deputy Herrera’s conduct was irrelevant because it did not have any tendency to make more or less probable any fact of consequence in his capital murder prosecution.

4. Non-Constitutional Harm Even assuming the trial court erred in sustaining the State’s hearsay objection, Appellant was not harmed by these rulings.43 Appellant’s videotaped statement was played for the jury in which he explained Pina’s statements and their effect on him. The jury heard Appellant’s theory that the officer had previously harassed Pina through his videotaped statement, and his guilt of shooting the officer was not in doubt. Any potential error in excluding Appellant’s testimony had no substantial or injurious effect on the jury’s ultimate decision. Accordingly,

41 Appellant does not contest the fact that Deputy Herrera was on shift at the time of the shooting, nor does he argue that Deputy Herrera had no basis to effectuate the stop.

42 Mays, 318 S.W.3d at 384.

43 See supra n. 21.

Appellant’s sixth and seventh points of error are overruled.

5. Right to Present a Defense In his eighth issue, Appellant claims that excluding his testimony about Pina’s statements deprived him of his constitutional right to present a complete defense. In support of this, Appellant argues that the Supreme Court of the United States has recognized that the Constitution guarantees a defendant’s right to a complete defense.44 But the right to present a defense is impacted only if the evidence is relevant. Our above discussion suggests that the evidence was not in fact relevant for any purpose. But even assuming it was, Appellant was not deprived of his constitutional right to present a defense.

Appellant argues that the exclusion of Pina’s statements was devastating to his planned defense. He claims his defense hinged on the fact that this was not a “random traffic stop.”Appellant likens his situation to Chambers v. Mississippi, where a defendant on trial for murder called a witness who previously confessed to the murder.45 When the witness in Chambers renounced his previous confession, Mississippi’s voucher rule prevented the defense from impeaching its own

44 See Crane v. Kentucky, 476 U.S. 683, 690 (1986).

45 410 U.S. 284 (1973).

witness.46 But in Potier v. State, we addressed Chambers and explained that “the exclusion of a defendant’s evidence will be constitutional error only if the evidence forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense.”47 Unlike the defendant in Chambers, Appellant was able to advance his claimed defense that the traffic stop was out-of- the-ordinary—or he thought it was—through his videotaped statement. That his proposed testimony might have better made this claim does not mean that he was deprived of presenting any defense. Accordingly, Appellant’s eighth point of error is overruled.

D. Lesser-Included Offense Instruction In his tenth point of error, Appellant argues that the trial court’s refusal to give the jury a lesser-included offense instruction for murder violated his Eighth and Fourteenth Amendment right to lesser-included offense instructions in a capital case under Beck v. Alabama.48 1. Relevant Facts

46 Id.

47 68 S.W.3d 657, 665 (Tex. Crim. App. 2002).

48 447 U.S. 625 (1980).

During the charge conference, Appellant requested that the jury be instructed on the lesser-included offense of murder because there was some evidence that would allow the jury to convict Appellant of the lesser offense. Appellant argued that Pina’s prior contact with Deputy Herrera was evidence that Deputy Herrera acted beyond the scope of his lawful duties. At the charge conference, the State argued that Hall v. State’s holding meant that it does not matter whether Deputy Herrera exceeded his authority because he was acting within his capacity as a peace officer.49 The trial court denied Appellant’s requested instruction.

2. Lawful Discharge of Official Duty As the earlier discussion shows, the State proved beyond any reasonable dispute that Deputy Herrera was lawfully discharging his duties.50 And as explained earlier, whether Appellant thought Deputy Herrera was not acting within the scope of his duty is inconsequential.51 Because there was no evidence that

49 158 S.W.3d 470 (Tex. Crim. App. 2005).

50 See supra at part I.C.1 & 3; Montoya v. State, 744 S.W.2d 15, 29 (Tex. Crim. App. 1987)

(holding that whether an officer was making a lawful arrest is not relevant in determining if he was acting in the lawful discharge of his official duties); Gonzalez v. State, 574 S.W.2d 135, 137 (Tex. Crim. App. 1978) (In the resisting arrest context, an officer is lawfully discharging his duty whether the arrest was lawful or unlawful.).

51 See supra at part I.C.3.

Deputy Herrera was not lawfully discharging his duties, Appellant’s tenth point of error is overruled.

II. PUNISHMENT

A. Denise Reyes’s Testimony Issues In his eleventh and twelfth points of error, Appellant argues that the trial court applied an erroneously restrictive standard of relevance to limit the penalty phase testimony of Denise Reyes, Appellant’s sister.

1. Relevant Facts In the penalty phase of trial, Reyes identified six photos of Appellant and his siblings. She testified that Appellant’s father was violent and beat their mother often. She also said that if her mother sought medical attention, Appellant’s father would take it out on Appellant and his siblings. After expounding on how Appellant’s father used to treat the family, Reyes testified that she was close to Appellant, and he confided in her about Pina. When defense counsel asked Reyes her opinion of Pina, the State objected on relevancy grounds. Defense counsel said that it was relevant to shed light on Appellant’s circumstances and background and would show the jury how the family felt about Pina. The trial court sustained the objection, and Reyes testified that Appellant changed when he was around Pina;

his drug use went up, and he would miss or arrive late to family functions. Pina never attended the family functions, opting to stay in the car.52 Further, Reyes testified about how difficult it was to visit Appellant in jail.

She recounted that she was not able to see Appellant for about a year-and-a-half because her “verification” kept getting “rejected,” which prevented her name from appearing on the visitation list. When asked what she meant by “verification,” the State objected on relevancy and hearsay grounds. Defense counsel argued that it was relevant to Appellant’s inability to see his family and to counter the State’s evidence regarding the conditions that Appellant could face in prison. The trial court sustained the State’s objection.

The trial court also sustained objections to questions concerning the effect that Appellant’s arrest had on Reyes’s occupation53 and how long it took her to find a new job. Defense counsel further asked, without objection, about Appellant’s knowledge of the effect his arrest had on Reyes. She said that Appellant appeared sad to hear about her situation.

2. Irrelevant Evidence

52 Reyes described an instance where she went out to Pina’s car to try to meet her, but Pina refused to get out and got upset with Appellant.

53 Reyes said that her employer fired her in retaliation for her brother’s arrest.

Especially at the punishment stage, “[q]uestions of relevance should be left largely to the trial court, and will not be reversed absent an abuse of discretion.”54 Appellant claims that the trial court abused its discretion when it found Reyes’s testimony about Appellant’s relationship with Pina, the effect his arrest had on her, and her difficulty with visitation irrelevant. As we have previously explained, evidence is relevant if it has any tendency to make any fact of consequence more or less probable than it would be without the evidence.55 First, Reyes did discuss Appellant’s relationship with Pina without objection when she discussed Appellant’s change in behavior and drug use after starting the relationship, and she discussed their relationship further when she described Pina’s resistance to meeting Appellant’s family. Any error in excluding similar evidence would be harmless after the jury heard testimony of the same substance.56 With respect to visitation, Reyes also described her difficulty without objection. Her testimony was not stopped until defense counsel asked Reyes to

54 Ford v. State, 919 S.W.2d 107, 115(Tex. Crim. App. 1996) (quoting Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993)).

55 See supra at n.35 (citing Bluntson and Rule 401).

56 Stoker v. State, 788 S.W.2d 1, 12 (Tex. Crim. App. 1989) (“It is well established that when a defendant offers the same testimony as that objected to, or the same evidence is introduced from another source, without objection, the defendant is not in position to complain on appeal.” (Citing Womble v. State, 618 S.W.2d 59 (Tex. Crim. App. 1981)).

describe what she meant by “verification”—which had no bearing on Appellant’s future dangerousness or on whether a mitigating circumstance existed that would call for giving him a life sentence.57 Finally, the trial court did not abuse its discretion in sustaining the State’s objection to defense counsel’s question regarding how long Reyes was without a job. An answer to this question also would have no bearing on punishment special issues. Because Appellant fails to show that the trial court abused its discretion in sustaining the State’s objections, his eleventh point of error is overruled.

3. Eighth Amendment Issue In his twelfth point of error, Appellant argues that Reyes’s excluded testimony violated his Eighth Amendment right to individualized sentencing.58 As stated supra, the trial court did not abuse its discretion in holding portions of Reyes’s testimony irrelevant, and the “the Supreme Court has never held that a state court must admit any and all proffered mitigating evidence no matter how irrelevant, unreliable, or cumulative.”59 Accordingly, Appellant’s twelfth point of

57 See TEX. CODE CRIM. PROC. art. 37.071 §2(b)(1) & (e).

58 In response to the State’s objection, Appellant cited Skipper v. South Carolina to argue that Reyes’s testimony about the retaliation she suffered at work was relevant. 476 U.S. 1 (1986).

59 Wells v. State, 611 S.W.3d 396, 409 (Tex. Crim. App. 2020).

error is overruled.

B. Deliberations Issues In his thirteenth and fourteenth issues, Appellant argues that the trial court erred in failing to discharge the jury and sentence Appellant to life without parole after the foreperson indicated that the jury could not reach a verdict on Special Issue 2.60 1. Relevant Facts During the penalty phase charge conference, defense counsel requested the following language in the jury charge:

If there is any special issue on which the vote of the jurors should not reach the appropriate concurrence, comma[sic], agreement; and, therefore, should be unable to reach a verdict as instructed, then there should be no answer for that special issue. And the foreman should not sign any answer on that special issue.

The State objected to giving any instruction not contemplated by article 37.071 and suggested that the requested instruction was unnecessary because if the jury was unable to reach a consensus, they would send out a note to the judge saying just that. The trial judge denied the instruction, saying that the verdict forms were

60 See TEX. CODE CRIM. PROC. art 37.071(b)-(e) (Special Issue 1 indicates future dangerousness while Special Issue 2 deals with mitigation.).

“very clear” that a consensus was required for an answer. The judge said she could not see a situation where, if the jury could not answer the questions in the verdict form, it would not send out a note saying they could not reach a verdict. The judge said that, if that happened, she believed she would excuse the jury and sentence Appellant.

The jury began deliberations on August 8, 2023. That afternoon, the jury sent out three notes. The first, sent out at 3:14 p.m., asked to review evidence. At 4:27 p.m., another note said that they voted twice but were a 6-6 vote. At 4:43, the third note indicated a 9-3 (yes) vote and a request to view the video of Appellant’s confession. On the record, the trial court indicated her intent to sequester the jury and hear argument from the parties about “whether an Allen charge would be appropriate or not” the following morning. The judge said that if an Allen charge was not proper, she would “go forward with what I have to do in this case.”

The next morning, the judge said she would allow the jury to continue to deliberate and would address the issue of whether an additional charge would be necessary if any further notes were sent out. At 9:15 a.m., the jury reached a unanimous “Yes” verdict on Special Issue 1. At 11:49 a.m., the jury sent out another note: “Can’t decide on Special Issue Number 2. Deadlocked at 9 No’s, 1 undecided, 2 Yes’s very firm.” After this, the State requested that the trial court issue an Allen charge similar to the one used in Howard v. State.61 The defense took the position that the jury was “locked on [special issue] two [a]nd they’ve stated that they’re very firm . . . if the jury says they’re firm, I think that’s where we are.” The judge sent out a supplemental instruction tracking the State’s proposed instruction:

You have heard many days of testimony in this cause.

Careful consideration of all such evidence might take quite a bit of your time. It is your duty to consult with one another, to consider each other’s views and to discuss the evidence with the objective of reaching a just verdict if you can do so without violence to individual judgment.

Each of you must decide the case for yourself but only after discussion and impartial consideration of the evidence with your fellow jurors.

Do not hesitate to re-examine your own views and to change your opinion if you are wrong, but do not surrender your honest belief as to the weight and effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.

With these additional instructions you are requested to deliberate in an effort to arrive at a verdict that is acceptable to all members of the jury if you can do so without doing violence to your conscience. Do not violate your conscience but continue to deliberate.

61 941 S.W.2d 102 (Tex. Crim. App. 1996).

Please let us know if you need more information on how to proceed.

After receiving the supplemental instruction, the jury sent out another note:

“Vote is 10-2 for the death penalty. Two life in prison votes are firm.” The State asked the trial court to allow the jury to continue deliberations because this note did not indicate a “deadlock.” Pointing to the last note, the State argued that the vote changed, indicating that the jury made progress. Defense counsel did not want to have to wait for the jury to say a magic word when the note still indicated that the jury could not come to a verdict. Defense counsel also opposed any further instruction because it would coerce the jury to arrive at a decision.

The trial court noted that the jury did not use the word “deadlocked” after previously using it in another note. Thus, the jury knew how to “use the word deadlocked.” The trial judge said she would take the matter under advisement and decide the issue after the jury returned from a break. However, the record does not reflect that the trial court announced its decision; the next time the parties met on the record, the judge announced that the jury sent a note indicating that it reached a decision at 4:04 p.m.

2. Jury Deliberations If a jury is unable to agree on a special issue in a capital murder case, the judge is compelled to sentence the defendant to life without parole.62 The “length of time the jury deliberates rests in the sound discretion of the trial court, and absent an abuse of discretion there is no error.”63 The Texas Code of Criminal Procedure says the following:

After the cause is submitted to the jury, it may be discharged when it cannot agree and both parties consent to its discharge; or the court may in its discretion discharge it where it has been kept together for such time as to render it altogether improbable that it can agree.64

It is also “well settled that the exercise of discretion in declaring a mistrial will be judged by the amount of time the jury deliberates in light of the nature of the case and the evidence.”65 This Court, in Green v. State, had a similar issue in a capital murder case.66 This Court noted, “on punishment, the jury had approximately five days full of evidence to review and reflect upon involving the testimony of about twenty-six

62 See Montoya v. State, 810 S.W.2d 160, 166 (Tex. Crim. App. 1989) (citing TEX. CODE CRIM.

PROC art. 37.071(e)).

63 DeLuna v. State, 711 S.W.2d 44, 48 (Tex. Crim. App. 1986) (citing Garcia v. State, 522 S.W.2d 203, 208 (Tex. Crim. App. 1975)).

64 TEX. CODE CRIM. PROC art. 36.31 (emphasis added).

65 Muniz v. State, 573 S.W.2d 792, 794 (Tex. Crim. App. 1978) (citing Beeman v. State, 533 S.W.2d 799 (Tex. Crim App. 1976)).

66 840 S.W.2d 394, 407 (Tex. Crim. App. 1992).

witnesses.”67 In light of these circumstances, this Court found that the trial judge did not abuse his discretion in allowing the jury to deliberate for “only six and one- half hours. In fact, given the nature of the potential sentence involved in this case, it is unlikely that there would have been such an abuse even after thirteen hours.”68 Green also compared its facts to Burnett v. State, where a jury sent out a note indicating it was “deadlocked approximately eleven hours after it had begun deliberating and the trial court instructed the jury to continue its deliberations.”69 Turning to this case, the jury sat through a 10-day trial and listened to 33 witnesses testify. The jury deliberated for approximately nine hours total. The jury spent about two hours deliberating the first day. The second day, the jury deliberated for about seven hours before coming to its final verdict. Given the facts of this case and the gravity of the sentence, this Court’s holding in Green is instructive. This jury sat through a 10 day trial as opposed to a five day trial, and it only deliberated for an additional three-and-a-half hours. Further, the note the jury sent out after receiving the Allen-type charge from the judge does indicate that

67

Id.

68

Id.

69

Id. (citing Burnett v. State, 754 S.W.2d 437, 447-48 (Tex. App.–San Antonio 1988, pet.

ref’d)).

progress had been made. The jury did not use the word “deadlock” as it had in the past, indicating that it knew that word connotes a stronger sense of an impasse. Also, that note had a different vote tally. The “deadlock” note contained nine yes votes, one undecided vote, and two no votes. The note after this was a 10-2 vote. Clearly, discussion was getting somewhere, and the judge noticed. For these reasons, the trial judge did not abuse her discretion in allowing the jury to continue deliberating, and Appellant’s thirteenth point of error is overruled.

3. Right to an Individualized Sentence In his fourteenth point of error, Appellant asserts that the trial court violated his right to an individualized sentence when it failed to discharge the jury and sentence Appellant to life without parole after the foreperson indicated that the jury could not reach a verdict on special issue two. Appellant argues that “[t]he Eighth Amendment right to individualized determination of sentence when the State seeks the death penalty is fundamental—a defendant may not waive it.”70 Thus, Appellant avers that he did not forfeit his individualized sentence claim when he failed to object on that basis at trial. However, Appellant’s argument is premised on authority that does not apply to him. In Garza, this Court held that

70 Appellant’s Brief at 155-54 (citing Woodson v. North Carolina, 428 U.S. 280, 304-05 (1976)).

the Eighth Amendment right to an individualized sentence is not forfeitable where a juvenile has been sentenced.71 This was based on Miller v. Alabama, where the Supreme Court held that the Eighth Amendment forbids mandatory life without parole sentences for juveniles.72 This Court declined to extend Garza in Compton where we stated that “[o]ur analysis in Garza makes clear that it was directed at the particular type of claim at issue there and does not broadly apply to all Eighth Amendment ‘individualized sentencing’ claims.”73 Appellant did not object on individualized sentencing grounds at trial,74 and he does not explain why his individualized sentencing claim need not be preserved when a defendant is not a juvenile being sentenced in violation of Miller. Appellant’s fourteenth point of error is overruled.

C. Motion for Mistrial In his ninth point of error, Appellant argues that the trial court erred in denying his motion for mistrial due to members of the victim’s family exiting the

71 See Garza v. State, 435 S.W.3d 258 (Tex. Crim. App. 2014).

72 567 U.S. 460, 479 (2012).

73 Compton v. State, 666 S.W.3d 685, 728-29 (Tex. Crim. App. 2023); see also Garza, 435 S.W.3d 258.

74 See Lankston v. State, 827 S.W.2d 907, 909 (“[W]hen it seems from context that a party failed effectively to communicate his desire, then reviewing courts should not hesitate to hold that appellate complaints arising from the event have been lost.”); TEX. R. APP. P. Rule 33.1.

courtroom during the State’s penalty-phase closing argument.

1. Relevant Facts During the State’s punishment phase closing argument, it played a video showing Deputy Herrera’s injuries after the shooting. While the video was playing, about 10 members of the gallery, including Deputy Herrera’s family, got up from their seats and walked out of the courtroom, visibly upset. It appears that six jurors looked over at the family and saw them exiting the gallery. According to Appellant, the trial judge admonished the State to prepare Deputy Herrera’s family for the graphic videos, and it failed to do so. The State maintained at trial that it had told the deputy’s family that, if they could not watch the video, they should not be present for it.

Defense counsel indicated that the State played a role in causing the deputy’s family to leave the gallery. However, once the State explained that it did admonish the family on the use of the video, the trial judge did not appear to believe that the State “orchestrated” the situation. The court replied: “All right . . . I’m just saying that that looks completely unprofessional and it looks bad for the jury which is why I stopped the video when I stopped it.”75

75 Emphasis added.

The trial judge stated that those who left the courtroom would not be allowed in the gallery when the verdict was read, and the State said that the ruling should apply to both sides. The judge noted that Appellant’s sister and members of Deputy Herrera’s family were among those who exited the courtroom during the video and said that the ruling would apply to both sides. Defense counsel moved for a mistrial, which was denied. He did not ask for a curative instruction for the jury to not consider Deputy Herrera’s family leaving the gallery in reaching its verdict.

2. Abuse of Discretion “We have long held that spectator conduct or expression which impeded normal trial proceedings would not result in reversible error unless an appellant showed a reasonable probability that the conduct or expression interfered with the jury’s verdict.”76 Reviewing courts should consider whether the person who made the outburst was a witness or a bystander and whether the outburst was verbal or non-verbal.77 Here, Appellant indicates that the prosecution caused the “commotion” in

76 Howard v. State, 941 S.W.2d 102, 117 (Tex. Crim. App. 1996), overruled on other grounds by Easley v. State, 424 S.W.3d 535 (Tex. Crim. App. 2014) (citing Landry v. State, 706 S.W.2d 105, 112 (Tex. Crim. App. 1985); Ashley v. State, 362 S.W.2d 847 (Tex. Crim. App. 1962)).

77 See Stahl v. State, 749 S.W.2d 826, 829 (Tex. Crim. App. 1998).

the gallery by not preparing the members of the victim’s family. The State maintained that it admonished the family members that the video would be played, and it noted that it was not just the victim’s family who left, but also a member of Appellant’s family. In support of his argument, Appellant cites Stahl v. State, where the “conduct of the prosecutor could have served no other purpose than to deprive the appellant of a fair trial.”78 While the trial judge said that it “looked bad”—as if the State failed to tell the members of the victim’s family that the video would be played—the judge appeared to accept the prosecutor’s explanation and did not indicate that she thought the State orchestrated the situation.

Further, the present case is distinguishable from the emotional outburst at issue in Stahl. In Stahl, the victim’s mother was so overwhelmed by the picture of her son, she exclaimed “Oh, my God. My baby. My God.” and “May he rest in hell. May he burn in hell. Oh, my baby.”79 Here, the members of the gallery, from both the victim’s and Appellant’s family, quietly rose from their seats and exited the courtroom. No evidence suggests that there was any verbal outburst by any

78 Id. at 832. (In Stahl, the prosecutor had the mother of a murder victim identify her son through a full-face morgue photograph.).

79 Id. at 828.

members of the gallery.

Moreover, defense counsel never asked for a curative instruction. Counsel could have asked the judge to admonish the jury that it could not consider Deputy Herrera’s family’s leaving the courtroom in coming to a verdict. We presume that any curative instruction would have cured any error,80 and “if a curative instruction would have sufficed” then the trial court did not abuse its discretion in denying a mistrial.81 Appellant’s ninth point of error is overruled.

D. Mitigation Evidence In his fifteenth point of error, Appellant argues that Article 37.071’s definition of “mitigating evidence” improperly narrows the Eighth Amendment concept of “mitigation” to factors rendering a capital defendant less morally “blameworthy” for his crime.

Appellant avers that the defense presented evidence that emphasized his good relationship with his family, lack of prior violence, and rehabilitation he experienced through his four years of incarceration awaiting trial. However,

80 See Archie v. State, 340 S.W.3d 734, 741 (Tex. Crim. App. 2011) (“The law generally presumes that instructions to disregard and other cautionary instructions will be duly obeyed by the jury.”).

81 Lee v. State, 549 S.W.3d 138, 145 (Tex. Crim. App. 2018).

according to Appellant, the jury was instructed to only consider evidence that could “[reduce] the defendant’s moral blameworthiness.”82 Appellant claims that, because “moral blameworthiness” is not defined, it is likely that the jury construed it to limit their consideration of Appellant’s penalty phase evidence to only that which reduced his moral culpability for the offense. Appellant argues that this violates Lockett v. Ohio’s principle of freeing the jury to “give independent mitigating weight to aspects of the defendant’s character and record and to circumstances of the offense proffered in mitigation.”83 This Court has held that “[t]he mitigation special issue does not send ‘mixed signals’ because it permits a capital sentencing jury to give effect to mitigating evidence in every conceivable manner in which the evidence might be relevant.”84 Indeed, this Court has directly addressed this issue of “moral blameworthiness” in Hall v. State where we reiterated our holding in Perry.85

82 TEX. CODE CRIM. PROC. art. 37.071 § 2(f)(4).

83 438 U.S. 586, 605 (1978).

84 Perry v. State, 158 S.W.3d 438, 448-49 (Tex. Crim. App. 2004) (citing Johnson v. Texas, 509 U.S. 350, 367-69 (1993); Cockrell v. State, 933 S.W.2d 73, 93 (Tex. Crim. App. 1996) cert. denied, 520 U.S. 1173 (1997)).

85 663 S.W.3d 15, 44 (Tex. Crim. App. 2021) (“The statute itself ‘does not unconstitutionally narrow the jury’s discretion to factors concerning only moral blameworthiness.’” (citing Perry, 158 S.W.3d at 449)).

Because this Court has refused to hold Article 37.071 unconstitutional, and we see no reason to do so now, Appellant’s fifteenth point of error is overruled.

E. Motion for New Trial In his sixteenth point of error, Appellant argues that the trial court abused its discretion by failing to grant a hearing on his motion for new trial.86 1. Relevant Facts On August 10, 2023, the trial court sentenced Appellant to death. On September 11, 2023, Appellant filed a motion for new trial. The court did not hold a hearing, and the motion was deemed denied by operation of law on October 24, 2023.87 2. Presentment This Court has held that “a reviewing court does not reach the question of whether a trial court abused its discretion in failing to hold a hearing if no request

86 In his motion for new trial, Appellant raised three grounds: (1) the trial court improperly closed the courtroom during the penalty-phase charge conference; (2) the State exerted an improper influence on the jury by playing graphic body-cam footage during its penalty phase closing argument, causing the “mass exodus” of numerous members of the victim’s family; and (3) improper jury deliberations.

87 TEX. R. APP. P. 21.8(a), (c) (A motion for new trial not ruled on within 75 days is deemed denied.).

for a hearing was presented to it.”88 To present a motion for new trial, “the defendant must give the trial court actual notice that he timely filed a motion for new trial,” including “actual notice of the desire to have a hearing.”89 In determining actual notice, we have also held that “[b]oilerplate language in the prayer is not sufficient to put the court on notice that the appellant wants a hearing.”90 Here, the record of devoid of any effort from Appellant, beyond boilerplate language in the motion for new trial, to present the motion to the trial court and ask for a hearing. Even in the motion for new trial itself, Appellant equivocates when he asks the court to “either grant him a new trial or hold a hearing.” Because the “record contains no evidence that [Appellant] or his attorney took steps to obtain a setting or attempted to get a ruling on a request for a hearing,”91 we overrule Appellant’s sixteenth point of error.

88 Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005).

89 Id.

90 Perez v. State, 429 S.W.3d 639, 644 (Tex. Crim. App. 2014) (“The appellant’s attorney submitted an affidavit stating that he presented the motion for new trial and that the judge said he would ‘take a look’ at the motion. The affidavit is not corroborated, nor does it say that counsel requested any type of hearing. The record contains no evidence that the appellant or his attorney took steps to obtain a setting or attempted to get a ruling on a request for a hearing. Given these facts, we agree with the Court of Appeals that the appellant did not preserve error.”).

91 Id.

CONCLUSION

Having overruled all of Appellant’s points of error, we affirm the trial court’s judgment. Delivered: August 20, 2026 Publish