Cruz-Garcia, Obel
Opinion
AP-77,025 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS No. AP-77,025 Transmitted 4/15/2015 12:03:53 PM April 15, 2015 Accepted 4/15/2015 12:37:33 PM ABEL ACOSTA In the CLERK Texas Court of Criminal Appeals At Austin
No. 1384794 In the 337th District Court Of Harris County, Texas
OBEL CRUZ-GARCIA v. THE STATE OF TEXAS
STATE’S APPELLATE BRIEF
DEVON ANDERSON District Attorney Harris County, Texas
JESSICA AKINS Assistant District Attorney Harris County, Texas
NATALIE TISE JUSTIN WOOD Assistant District Attorneys Harris County, Texas
1201 Franklin, Suite 600 Houston, Texas 77002 Telephone: 713.755.5826 Fax: 713.755.5809
Counsel for the State of Texas
Oral argument conditionally waived IDENTIFICATION OF THE PARTIES
Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all
interested parties is provided below.
Victim:
A.G. a child victim referred to as Adam, age six
Counsel for the State:
Devon Anderson, District Attorney of Harris County Jessica Akins, Assistant District Attorney on appeal Natalie Tise & Justin Wood, Assistant District Attorneys at trial 1201 Franklin, Suite 600, Houston, Texas 77002
Lisa McMinn, State Prosecuting Attorney P. O. Box 13046, Austin, Texas 78711
Appellant or criminal defendant:
Obel Cruz-Garcia
Counsel for Appellant:
R.P. Cornelius & Mario Madrid Counsel at trial Wayne T. Hill Counsel on appeal 4615 Southwest Frwy, Suite 600, Houston, Texas 77027
Trial Judge:
Honorable Renee Magee Presiding Judge TABLE OF CONTENTS
IDENTIFICATION OF THE PARTIES ................................................................................ i
INDEX OF AUTHORITIES ................................................................................................... iii
STATEMENT REGARDING ORAL ARGUMENT .......................................................... 1
STATEMENT OF THE CASE ................................................................................................. 1
STATEMENT OF FACTS ....................................................................................................... 2
SUMMARY OF THE ARGUMENT .................................................................................... 15
REPLY TO APPELLANT’S FIRST ISSUE ..........................................................................16
REPLY TO APPELLANT’S SECOND ISSUE ................................................................... 23
REPLY TO APPELLANT’S THIRD ISSUE ....................................................................... 26
REPLY TO APPELLANT’S FOURTH & FIFTH ISSUES ............................................. 33
REPLY TO APPELLANT’S SIXTH & SEVENTH ISSUES ........................................... 38
REPLY TO APPELLANT’S EIGHTH, NINTH, TENTH & ELEVENTH ISSUES .. 43
REPLY TO APPELLANT’S TWELFTH ISSUE ............................................................... 55
CONCLUSION ........................................................................................................................ 65
CERTIFICATE OF SERVICE .............................................................................................. 66
ii INDEX OF AUTHORITIES
CASES
Allen v. State, 149 S.W.3d 254 (Tex. App.— Fort Worth 2004, pet. ref’d) .............................................................................................48 Bargas v. State, 252 S.W.3d 876 (Tex. App.— Houston [14th Dist.] 2008, no pet.) ................................................................................ 30 Bigby v. State, 892 S.W.2d 864 (Tex. Crim. App. 1994).................................................................. 35, 37 Borjan v. State, 787 S.W.2d 53 (Tex. Crim. App. 1990) ........................................................................... 43 Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ........................................................................ 26 Brown v. State, 270 S.W.3d 564 (Tex. Crim. App. 2008) ....................................................................... 43 Burks v. State, 227 S.W.3d 138 (Tex. App— Houston [1st Dist.] 2006, pet. ref’d) ............................................................................... 36 Burks v. State, 876 S.W.2d 877 (Tex. Crim. App. 1994) ..................................................................35, 36 Cantrell v. State, 731 S.W.2d 84 (Tex. Crim. App. 1987) ........................................................................... 35 Carlock v. State, 8 S.W.3d 717 (Tex. App.— Waco 1999, pet. ref’d) ..........................................................................................................51 Chambers v. Mississippi, 410 U.S. 284 (1972) .............................................................................................................. 41 Clark v. State, 365 S.W.3d 333 (Tex. Crim. App. 2012).........................................................................24
iii Cockrell v. State, 933 S.W.2d 73 (Tex. Crim. App. 1996) ...........................................................................49 Cofield v. State, 891 S.W.2d 952 (Tex. Crim. App. 1994) ....................................................................... 40 Colyer v. State, 428 S.W.3d 117 (Tex. Crim. App. 2014) .................................................................. 57, 62 Curry v. State, 30 S.W.3d 394 (Tex. Crim. App. 2000) ......................................................................... 29 Darrow v. State, 504 S.W.2d 416 (Tex. Crim. App. 1974) ........................................................................ 23 Dossett v. State, 216 S.W.3d 7 (Tex. App.— San Antonio 2006, pet. ref’d) ..................................................................................... 22, 23 Druery v. State, 225 S.W.3d 491 (Tex. Crim. App. 2007) ........................................................................ 19 Foster v. State, 180 S.W.3d 248 (Tex. App.— Fort Worth 2005, pet. ref’d) ............................................................................................. 25 Fountain v. State, 401 S.W.3d 344 (Tex. App.— Houston [14th Dist.] 2013, pet. ref’d) ............................................................................. 30 Freeman v. State, 340 S.W.3d 717 (Tex. Crim. App. 2011) ............................................................ 43, 45, 46 Fuentes v. State, 991 S.W.2d 267 (Tex. Crim. App. 1999) ......................................................................... 50 Garcia v. State, 246 S.W.3d 121 (Tex. App.— San Antonio 2007, pet. ref’d) .............................................................................................51 Garcia v. State, 537 S.W.2d 930 (Tex. Crim. App. 1976)......................................................................... 23 Geeslin v. State, 630 S.W.2d 512 (Tex. App.— Fort Worth 1982, no pet.).................................................................................................. 35
iv Green v. State, No. AP-76458, 2012 WL 4673756 (Tex. Crim. App. 2012) .......................................................................................................54 Hawkins v. State, 135 S.W.3d 72 (Tex. Crim.
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AP-77,025 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS No. AP-77,025 Transmitted 4/15/2015 12:03:53 PM April 15, 2015 Accepted 4/15/2015 12:37:33 PM ABEL ACOSTA In the CLERK Texas Court of Criminal Appeals At Austin
No. 1384794 In the 337th District Court Of Harris County, Texas
OBEL CRUZ-GARCIA v. THE STATE OF TEXAS
STATE’S APPELLATE BRIEF
DEVON ANDERSON District Attorney Harris County, Texas
JESSICA AKINS Assistant District Attorney Harris County, Texas
NATALIE TISE JUSTIN WOOD Assistant District Attorneys Harris County, Texas
1201 Franklin, Suite 600 Houston, Texas 77002 Telephone: 713.755.5826 Fax: 713.755.5809
Counsel for the State of Texas
Oral argument conditionally waived IDENTIFICATION OF THE PARTIES
Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all
interested parties is provided below.
Victim:
A.G. a child victim referred to as Adam, age six
Counsel for the State:
Devon Anderson, District Attorney of Harris County Jessica Akins, Assistant District Attorney on appeal Natalie Tise & Justin Wood, Assistant District Attorneys at trial 1201 Franklin, Suite 600, Houston, Texas 77002
Lisa McMinn, State Prosecuting Attorney P. O. Box 13046, Austin, Texas 78711
Appellant or criminal defendant:
Obel Cruz-Garcia
Counsel for Appellant:
R.P. Cornelius & Mario Madrid Counsel at trial Wayne T. Hill Counsel on appeal 4615 Southwest Frwy, Suite 600, Houston, Texas 77027
Trial Judge:
Honorable Renee Magee Presiding Judge TABLE OF CONTENTS
IDENTIFICATION OF THE PARTIES ................................................................................ i
INDEX OF AUTHORITIES ................................................................................................... iii
STATEMENT REGARDING ORAL ARGUMENT .......................................................... 1
STATEMENT OF THE CASE ................................................................................................. 1
STATEMENT OF FACTS ....................................................................................................... 2
SUMMARY OF THE ARGUMENT .................................................................................... 15
REPLY TO APPELLANT’S FIRST ISSUE ..........................................................................16
REPLY TO APPELLANT’S SECOND ISSUE ................................................................... 23
REPLY TO APPELLANT’S THIRD ISSUE ....................................................................... 26
REPLY TO APPELLANT’S FOURTH & FIFTH ISSUES ............................................. 33
REPLY TO APPELLANT’S SIXTH & SEVENTH ISSUES ........................................... 38
REPLY TO APPELLANT’S EIGHTH, NINTH, TENTH & ELEVENTH ISSUES .. 43
REPLY TO APPELLANT’S TWELFTH ISSUE ............................................................... 55
CONCLUSION ........................................................................................................................ 65
CERTIFICATE OF SERVICE .............................................................................................. 66
ii INDEX OF AUTHORITIES
CASES
Allen v. State, 149 S.W.3d 254 (Tex. App.— Fort Worth 2004, pet. ref’d) .............................................................................................48 Bargas v. State, 252 S.W.3d 876 (Tex. App.— Houston [14th Dist.] 2008, no pet.) ................................................................................ 30 Bigby v. State, 892 S.W.2d 864 (Tex. Crim. App. 1994).................................................................. 35, 37 Borjan v. State, 787 S.W.2d 53 (Tex. Crim. App. 1990) ........................................................................... 43 Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ........................................................................ 26 Brown v. State, 270 S.W.3d 564 (Tex. Crim. App. 2008) ....................................................................... 43 Burks v. State, 227 S.W.3d 138 (Tex. App— Houston [1st Dist.] 2006, pet. ref’d) ............................................................................... 36 Burks v. State, 876 S.W.2d 877 (Tex. Crim. App. 1994) ..................................................................35, 36 Cantrell v. State, 731 S.W.2d 84 (Tex. Crim. App. 1987) ........................................................................... 35 Carlock v. State, 8 S.W.3d 717 (Tex. App.— Waco 1999, pet. ref’d) ..........................................................................................................51 Chambers v. Mississippi, 410 U.S. 284 (1972) .............................................................................................................. 41 Clark v. State, 365 S.W.3d 333 (Tex. Crim. App. 2012).........................................................................24
iii Cockrell v. State, 933 S.W.2d 73 (Tex. Crim. App. 1996) ...........................................................................49 Cofield v. State, 891 S.W.2d 952 (Tex. Crim. App. 1994) ....................................................................... 40 Colyer v. State, 428 S.W.3d 117 (Tex. Crim. App. 2014) .................................................................. 57, 62 Curry v. State, 30 S.W.3d 394 (Tex. Crim. App. 2000) ......................................................................... 29 Darrow v. State, 504 S.W.2d 416 (Tex. Crim. App. 1974) ........................................................................ 23 Dossett v. State, 216 S.W.3d 7 (Tex. App.— San Antonio 2006, pet. ref’d) ..................................................................................... 22, 23 Druery v. State, 225 S.W.3d 491 (Tex. Crim. App. 2007) ........................................................................ 19 Foster v. State, 180 S.W.3d 248 (Tex. App.— Fort Worth 2005, pet. ref’d) ............................................................................................. 25 Fountain v. State, 401 S.W.3d 344 (Tex. App.— Houston [14th Dist.] 2013, pet. ref’d) ............................................................................. 30 Freeman v. State, 340 S.W.3d 717 (Tex. Crim. App. 2011) ............................................................ 43, 45, 46 Fuentes v. State, 991 S.W.2d 267 (Tex. Crim. App. 1999) ......................................................................... 50 Garcia v. State, 246 S.W.3d 121 (Tex. App.— San Antonio 2007, pet. ref’d) .............................................................................................51 Garcia v. State, 537 S.W.2d 930 (Tex. Crim. App. 1976)......................................................................... 23 Geeslin v. State, 630 S.W.2d 512 (Tex. App.— Fort Worth 1982, no pet.).................................................................................................. 35
iv Green v. State, No. AP-76458, 2012 WL 4673756 (Tex. Crim. App. 2012) .......................................................................................................54 Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004) .......................................................................... 52 Hines v. State, 3 S.W.3d 618 (Tex. App.— Texarkana 1999, pet. ref’d) ................................................................................................ 63 Hines v. State, 38 S.W.3d 805 (Tex. App.— Houston [14th Dist.] 2001, no pet.) .................................................................................20 Holden v. State, 201 S.W.3d 761 (Tex. Crim. App. 2006) ......................................................................... 57 Holmes v. South Carolina, 547 U.S. 319 (2006).............................................................................................................. 41 Hyde v. State, 846 S.W.2d 503 (Tex. App.— Corpus Christi 1993, pet. ref’d) ........................................................................................ 37 In re E.A.K., 192 S.W.3d 133 (Tex. App.— Houston [14th Dist.] 2006, pet. denied) ........................................................................ 41 Irby v. State, 327 S.W.3d 138 (Tex. Crim. App. 2010) .........................................................................24 Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000) ..........................................................................20 Jackson v. Virginia, 443 U.S. 307 (1979) .............................................................................................................. 26 Johnson v. State, 698 S.W.2d 154 (Tex. Crim. App. 1985).........................................................................46 Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996) ....................................................................... 27 Kelly v. State, 24 S.W.2d 568 (Tex. Crim. App. 1992) ..........................................................................20
v Krebsbach v. State, 962 S.W.2d 728 (Tex. App.— Amarillo 1998, pet. ref’d) .................................................................................................... 32 Ladd v. State, 3 S.W.3d 547 (Tex. Crim. App. 1999) .............................................................................54 Lagrone v. State, 942 S.W.2d 602 (Tex. Crim. App. 1997) ........................................................................ 22 Lewis v. State, 815 S.W.2d 560 (Tex. Crim. App. 1991) ......................................................................... 41 Lucero v. State, 246 S.W.3d 86 (Tex. Crim. App. 2008) .........................................................................64 Maddox v. State, 682 S.W.2d 563 (Tex. Crim. App. 1985) ........................................................................ 16 Martinez v. State, 17 S.W.3d 677 (Tex. Crim. App. 2000) .................................................................... 45, 53 Martinez v. State, 178 S.W.3d 806 (Tex. Crim. App. 2005) ....................................................................... 40 McDuff v. State, 939 S.W.2d 607 (Tex. Crim. App. 1997) .........................................................................31 McFarland v. State, 845 S.W.2d 824 (Tex. Crim. App. 1992)........................................................................ 50 McGregor v. State, 394 S.W.3d 90 (Tex. App.— Houston [1st Dist.] 2012, pet. ref’d) .......................................................................... 19, 33 McKay v. State, 707 S.W.2d 23 (Tex. Crim. App. 1985) ........................................................................... 47 McQuarrie v. State, 380 S.W.3d 145 (Tex. Crim. App. 2012).............................................................57, 61, 62 Melendez–Diaz v. Massachusetts, 557 U.S. 305 (2009) .............................................................................................................24 Morris v. State, 322 S.W.2d 632 (Tex. Crim. App. 1959) .........................................................................31
vi Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998) ........................................................... 45, 47, 53 Muniz v. State, 851 S.W.2d 238 (Tex. Crim. App. 1993) ......................................................................... 27 Oliver v. Quaterman, 541 F.3d 329 (5th 2008)............................................................................................... 63, 64 Page v. State, 137 S.W.3d 75 (Tex. Crim. App. 2004) ........................................................................... 33 Penry v. State, 903 S.W.2d 715 (Tex. Crim. App. 1995) ......................................................................... 50 Ramon v. State, 159 S.W.3d 927 (Tex. Crim. App. 2004) ........................................................................ 53 Renteria v. State 206 S.W.3d 689 (Tex. Crim. App. 2006) ....................................................................... 41 Rodriguez v. State, 486 S.W.2d 355 (Tex. Crim. App. 1972) ........................................................................ 32 Romero v. State, 800 S.W.2d 539 (Tex. Crim. App. 1990) ................................................................... 16, 17 Salazar v. State, 38 S.W.3d 141 (Tex. Crim. App. 2001) ............................................................................ 56 Sharp v. State, 707 S.W.2d 611 (Tex. Crim. App. 1986) .......................................................................... 29 Smith v. State, No. AP-75793, 2010 WL 3787576 (Tex. Crim. App. 2010) .......................................................................................................42 State v. Ross, 32 S.W.3d 853 (Tex. Crim. App. 2000) .......................................................................... 16 Tate v. State, 414 S.W.3d 260 (Tex. App.— Houston [1st Dist.] 2013, no pet.) .................................................................................... 65 Torres v. State, 71 S.W.3d 758 (Tex. Crim. App. 2002) .......................................................................... 40
vii Torres v. State, 794 S.W.2d 596 (Tex. App.— Austin 1990, no pet.) ........................................................................................................... 36 Trout v. State, 702 S.W.2d 618 (Tex. Crim. App. 1985) ......................................................................... 57 Turro v. State, 950 S.W.2d 390 (Tex. App.— Fort Worth 1997, pet. ref’d) ...............................................................................................31 Wallace v. State, 106 S.W.3d 103 (Tex. Crim. App. 2003) .........................................................................64 Weatherred v. State, 15 S.W.3d 540 (Tex. Crim. App. 2000) ......................................................................... 40 Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000) .......................................................................... 47 White v. State, 225 S.W.3d 571 (Tex. Crim. App. 2007) ........................................................................ 55 Wilson v. State, 179 S.W.3d 240 (Tex. App.— Texarkana 2005, no pet.) ................................................................................................... 50 Wilson v. State, 7 S.W.3d 136 (Tex. Crim. App. 1999) .............................................................................. 27 Wilson v. State, 938 S.W.2d 57 (Tex. Crim. App. 1996)........................................................................... 47 Zarate v. State, 908 S.W.2d 544 (Tex. App.— Fort Worth 1995, pet. ref’d) ..............................................................................................48 STATUTES
TEX. CODE CRIM. PROC. ANN. art. 37.071 § 2 (a)(1) (West 2013) ..................................................................................... 38 TEX. PENAL CODE ANN. § 7.02(a)(2) (West 2013) ................................................................................................... 26 TEX. PENAL CODE ANN. § 7.02(b) (West 2013) ......................................................................................................... 26
viii TEX. PENAL CODE ANN. § 19.03(a)(2)(West 2013)...................................................................................................... 1 RULES
TEX. R. APP. P. 21.3 ............................................................................................................. 55, 65 TEX. R. APP. P. 33.1 ....................................................................................................................24 TEX. R. APP. P. 33.1(a) .............................................................................................................. 50 TEX. R. APP. P. 38.2(a)(1)(A) ..................................................................................................... i TEX. R. APP. P. 44.2(b)...................................................................................................... 45, 47 TEX. R. EVID. 401 ....................................................................................................................... 25 TEX. R. EVID. 402 ...................................................................................................................... 25 TEX. R. EVID. 403.......................................................................................................... 25, 33, 36 TEX. R. EVID. 404(b) ................................................................................................................ 33 TEX. R. EVID. 606(b)................................................................................................................. 57 TEX. R. EVID. 702 .......................................................................................................................20 TEX. R. EVID. 801(d) ................................................................................................................ 40 TEX. R. EVID. 802...................................................................................................................... 40 TEX. R. EVID. 901(a).................................................................................................................. 19
ix TO THE HONORABLE COURT OF CRIMINAL APPEALS:
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. P. 39.7, the State only requests oral argument if this
Court deems it necessary. Appellant waived argument on the front cover of his
brief and within his brief.
STATEMENT OF THE CASE
Appellant was charged by indictment with the offense of capital murder.
(CR 2-3). The indictment alleges appellant intentionally killed Adam while in the
course of committing kidnapping on September 30, 1992. (CR 2-3; RR XVII 17-18).
TEX. PENAL CODE ANN. § 19.03(a)(2)(West 2013).
After finding appellant guilty of the charged offense, the jury answered the
punishment special issues in a manner mandating the imposition of the death
penalty. (CR 506, 523-527, 530-531; RR XXIII 100-104; RR XXVII 9-11). TEX.
CODE CRIM. PROC. ANN. art. 37.071 §2(g) (West 2013). Direct appeal to this Court
is automatic. TEX. CODE CRIM. PROC. ANN. art. 37.071 §2(h) (West 2013).
STATEMENT OF FACTS
The victim in this case is six-year-old Adam, the son of Diana Garcia; he
lived with his mother and her boyfriend Arturo Rodriguez in an apartment in 1992.
(CR 2-3; RR XVIII 125, 144-145, 195-197, 205). After Arturo lost his job, he began
selling drugs out of their apartment to support the family. (RR XVIII 127-128, 197-
199). When Diana found out, she was unhappy, but ended up helping him since he
could not find work. (RR XVIII 128, 198).
Appellant supplied the drugs to Arturo and Diana; they knew him as
“Chico.” (RR XVIII 128-129, 141, 167, 172, 177, 199-201; RR XX 84, 93; State’s
Exhibit Number 83). They also knew one of his associates, Carmelo Martinez
Santana, who went by the name “Rudy.” (RR XVIII 138, 142; RR XX 85; RR XXI
39; State’s Exhibit Number 85). The family knew both of them very well, and
Diana even leased an apartment for appellant and his wife Angelita because they
had credit issues. (RR XVIII 135-138, 201-202; RR XIX 11; RR XX 93-94; State’s
Exhibit Number 42). Although they were close friends, Diana and others noted
that appellant was a strong person, the leader of the drug operation and everyone
in the group took direction from him. (RR XVIII 138-139; RR XIX 152-155; RR XX
123). Two to three weeks prior to the offense, Diana and Arturo decided to stop
selling drugs for appellant, and he was not happy about it. (RR XVIII 133-134,
203-204).
2 On the evening of September 30, 1992, shortly before midnight, the couple
was awakened to a loud noise; the front door of their apartment was kicked in.
(RR XVIII 47-48, 69, 149, 206-207; RR XIX 58; State’s Exhibit Number 11). Arturo
got out of bed and encountered a tall masked man holding a gun. (RR XVIII 149-
151, 208-209; RR XIX 34). This man gave them both instructions; he forced Diana
on the bed and tied up Arturo with the alarm clock cord. (RR XVIII 74, 77, 152-
153, 158-160, 210-212). He repeatedly kicked Arturo and hit him over the head with
the handgun until he was knocked unconscious. (RR XVIII 153-158, 212-213; RR
XIX 77).
A second gunman entered the room, tied up Diana and sexually assaulted
her. (RR XVIII 78, 157-158, 210, 212, 214). Diana testified she knew the assailant
ejaculated because she felt a substance between her legs. (RR XVIII 165). Adam
was lying on a pallet on the floor and Diana heard him crying while she was being
raped and Arturo was being assaulted. (RR XVIII 146, 155, 158). After the sexual
assault, the two men ransacked the bedroom and left the apartment. (RR XVIII
160-162; State’s Exhibit Numbers 20, 23, 24, 27 & 28). Soon after, Diana realized
Adam was no longer in the apartment and went outside; her neighbor called the
police to report the sexual assault and kidnapping. (RR XVIII 163-164).
The couple needed immediate medical attention; Arturo suffered injuries to
the back of his head and Diana went to the hospital for a sexual assault exam. (RR
3 XVIII 51-52, 89, 163, 165, 217; RR XIX 57). SANE nurse Gloria Kologinczok
performed a sexual assault examination of Diana at 3:45 a.m. on October 1, 1992 at
St. Joseph’s Hospital in Houston. (RR XIX 41-50; State’s Exhibit Number 33). At
4:25 a.m., she turned over the evidence collection kit, which included panties,
vaginal swabs, a known saliva sample and a known blood sample, to HPD Officer
Bredemeyer. (RR XIX 49-50, 58-59; State’s Exhibit Numbers 33A, 33B, 33C &
33D). Bredemeyer maintained custody of the evidence and transported it to the
HPD property room. (RR XIX 59-60). A cigar found in the apartment that did not
belong to Diana or Arturo was collected as evidence. (RR XVIII 80-82).
Diana was unable to give a description of the second man who raped her, as
she did not see his face or hear his voice. (RR XVIII 162). But she described the
first man, the tall one who assaulted her husband. (RR XVIII 98-99, 101-102). She
recalled he had a dark complexion and spoke in the Spanish language, but with a
foreign accent, not a Hispanic accent that one would hear in Mexico. (RR XVIII
99, 152). Arturo described it as a Central American accent. (RR XVIII 211).
Police learned from neighbors that Diana and Arturo had recently been
selling drugs out of their apartment. (RR XVIII 56). Believing this was crucial to
the investigation of Adam’s kidnapping, Officer Hernandez interviewed both
Diana and Arturo. (RR XIX 65-67). They initially denied being involved with
4 drugs, but later admitted their involvement and told authorities appellant was
their drug supplier. (RR XVIII 166-167, 199, 218; RR XIX 65-75).
The FBI initially suspected appellant in the abduction of Adam, but learned
he fled the country soon after the offense. (RR XIX 135-139, 144-145; XX 98-100).
When appellant’s wife Angelita learned about Adam’s abduction on the news, she
was shocked. (RR XX 96). She recalled appellant did not have an appropriate
reaction and then abruptly informed her he was going to Puerto Rico. (RR XX 96-
100, 102-103).
HPD Sergeant Swaim went to appellant’s apartment on October 6, 1992.
(RR XIX 184-185). At the apartment, Swaim encountered a Hispanic man who
identified himself as Candido Lebron. (RR XIX 185-186; State’s Exhibit Number
84). Swaim interviewed him, but doubted his identity because the man could not
provide the name of his parents that were listed on the birth certificate he
provided. (RR XIX 186). Swaim later learned the man’s true identity was Rogelio
Aviles-Barroso, appellant’s co-defendant in this case. (RR XIX 186-187; RR XX
130-131; RR XXI 88-89; State’s Exhibit Number 84).
More than a month after the abduction, on November 5, 1992, the body of a
young boy was found in Baytown. (RR XVIII 91-92, 218-219; RR XIX 191-192; RR
XXI 86). Dental records confirmed the identity as Adam and the manner of death
was ruled a homicide. (RR XVIII 92; RR XIX 205; XX 4-15, 24-25). Although his
5 remains were skeletal by that time, Adam was still wearing the Batman pajamas he
had gone to bed in on September 30, 1992. (RR XVIII 92, 168-169; RR XIX 193-194,
202-204; State’s Exhibit Numbers 48, 51 & 61).
Approximately one month after Adam’s body was found, Angelita
Rodriguez traveled to Puerto Rico. (RR XX 105). While there, she met with
appellant and told him she wanted a divorce. (RR XX 105-106). Appellant told
Angelita he would not agree to a divorce and threated to harm her family. (RR XX
106-107). Angelita asked appellant if he had anything to do with Adam’s
disappearance and appellant admitted he killed Adam. (RR XX 107).
Several years passed and the case went unsolved. In 2007, as part of a cold
case investigation, HPD Sergeant Mehl reviewed the case file and located
appellant in Puerto Rico. (RR XX 37-43, 49). A sample of appellant’s DNA was
obtained and compared to the sexual assault kit and cigar left at the crime scene;
analysis revealed appellant was the man who raped Diana in 1992. (RR XX 44-52,
55, 72-78; RR XXI 92-93, 105-107, 109, 117-120, 156-157, 160-162, 168; State’s Exhibit
Numbers 32, 33, 65, 66, 68, 76, 77 & 95).
When the case was re-opened, FBI Special Agent Eric Johnson located
Carmelo Martinez Santana in a Pennsylvania prison. (RR XX 165-166, 176-178).
At the time of this trial, Santana was serving time on two federal convictions for
drug trafficking and weapons possession. (RR XX 118-119; RR XXI 18-19, 29-30).
6 When he interviewed Santana, FBI Special Agent William Ebersole gathered
significantly more information than was previously known about Adam’s murder.
(RR XX 175-183; RR XXI 11-14, 65-77).
Santana is Angelita’s cousin and moved from the Dominican Republic to
Puerto Rico, and then to the United States in 1992 with Angelita and appellant.
(RR XX 117-120). Santana came to the U.S. with appellant to work in the drug
business with him, selling cocaine. (RR XX 120-123). He was known to the
parties in appellant’s drug ring as “Rudy.” (RR XX 116). Santana described
appellant as a violent, controlling leader; one who was protective of his drug
business and became angry when his people wanted out of the business. (RR XX
123-127). Santana testified appellant had once tied him up and threatened to kill
him when he thought Santana was taking drug clients from him. (RR XX 124).
Santana recalled on September 30, 1992, appellant wanted to go to Diana’s
apartment to look for drugs and money, so he and Aviles-Barroso accompanied
appellant. (RR XX 135-137). Santana remained in the car while appellant and
Aviles-Barroso went inside the apartment. (RR XX 137-138). Both appellant and
Aviles-Barroso were wearing ski masks and possessed weapons; Santana recalled
appellant had a gun and Aviles-Barroso had a knife. (RR XX 137-142; RR XXI 52).
Santana estimated they were in the apartment for approximately 30
minutes. (RR XX 143). When they returned, Santana was surprised to see
7 appellant holding a little boy in his arms. (RR XX 143-144). Santana immediately
asked appellant why he had taken Adam and appellant replied that the child had
seen his face and recognized him. (RR XX 144; State’s Exhibit Number 31).
Santana was unsuccessful in trying to convince appellant to take Adam back
inside to his mother. (RR XX 145-147). Appellant then admitted to Santana that
he raped Diana. (RR XX 145).
Appellant put Adam in the backseat of the vehicle and drove the group to
Baytown. (RR XX 147-149). He stopped in a secluded area and they all got out of
the vehicle; appellant stated to Aviles-Barroso, “You already know what you have
to do.” (RR XX 149-150; RR XXI 60). Santana immediately felt nauseous and
became ill; he walked away from them and defecated in the woods. (RR XX 150;
RR XXI 9). During this time, appellant followed Santana to see what he was
doing and Santana heard Adam scream and moan. (RR XX 150-151, 160). When
Santana returned to the vehicle, he saw that Adam was dead and covered in blood
throughout his torso. (RR XX 151-152; RR XXI 10).
Appellant ordered Santana and Aviles-Barroso to put the body back into the
vehicle and they obeyed. (RR XX 152). Appellant drove them to a rural area and
instructed them to throw the body in a nearby river. (RR XX 152-153). He further
instructed them to sink the child, so Santana and Aviles-Barroso gathered some
rocks and placed them on top of the body. (RR XX 153-154).
8 Afterward, when they were driving back toward Pasadena, they had several
flat tires. (RR XX 154-155). They called a friend Charlie for help with
transportation and appellant made Santana and Aviles-Barroso swear they would
never tell anyone what happened. (RR XIX 156-161, 172; RR XX 156; RR XXI 44,
61). Charlie would not come get them, so they took a taxi to Charlie’s house to
borrow a vehicle. (RR XIX 161-166; RR XX 156-157). Charlie’s girlfriend, Linda
Hernandez, recalled that Santana seemed extremely nervous. (RR XIX 163; RR
XX 157). Appellant instructed Santana to get rid of the knife and told Santana he
was leaving town because of what he did that night. (RR XX 158-159, 166).
The following day, appellant changed the tires on his vehicle, washed out
the blood and sold it. (RR XX 160-162). Appellant used the money he got from
the car sale to buy a plane ticket out of the country. (RR XX 162). Santana took
appellant to the airport and never saw him again. (RR XX 162, 164).
16 years after Adam’s death, capital murder charges were filed against
appellant and Rogelio Aviles-Barroso. (RR XX 55-56; RR XXI 91). After the jury
found appellant guilty of capital murder, they heard evidence that appellant
committed multiple other violent crimes, demonstrating he is a continuing threat
to society. (CR 506, 523).
Carmelo Martinez Santana testified during the punishment phase to shed
light on appellant’s actions prior to Adam’s murder. (RR XXV 59-89). Santana
9 described appellant’s behavior when appellant believed Santana was stealing his
money and drug customers. Appellant tied him up, threw him in a bathtub,
gagged him and threatened to kill him, until Santana gave him money and
promised never to betray him. (RR XXV 61-64).
Santana relayed another incident where appellant sought retribution
against a drug competitor, a man named Patiko. (RR XXV 65-71). In a distinctly
similar manner to the charged offense, appellant, Santana and another man broke
into Patiko’s apartment. (RR XXV 66-69). Santana waited in the car while
appellant and the other man went inside to burglarize the apartment. (RR XXV
69). When they returned 20 minutes later, they were carrying drugs and money.
(RR XXV 69-70). Appellant told Santana that he had tied up and beaten Patiko
and then raped his girlfriend. (RR XXV 70-71). Santana recalled when he spent
time with appellant, they frequently burglarized people in the drug business. (RR
XXV 71).
In July of 1989, appellant kidnapped and killed a drug associate named Saul
Flores. (RR XXV 22-33, 72-85, 99, 121; State’s Exhibit Number 122). Appellant
learned that Saul was interested in his girlfriend, Elizabeth Ramos, and became
infuriated. (RR XXV 49-50, 74-75). Appellant, Santana and a man named Robert
went over to Elizabeth’s apartment where they found Saul. (RR XXV 75-76).
10 They grabbed him, put him in their car and transported him to a drug apartment
on Winkler where they sold drugs. (RR XXV 76-77).
Appellant tied up Saul and began beating him. (RR XXV 79). Appellant
repeatedly hit Saul with a hammer and injected him with drugs. (RR XXV 80-81,
93-94). Santana saw appellant get on top of Saul and apply pressure to his neck
until he died. (RR XXV 81-82). Appellant instructed Santana to help him put
Saul’s body in the bathtub and they left the apartment. (RR XXV 82-83).
Tina Perez, a friend of Elizabeth’s, went over to the apartment on Winkler
looking to buy some drugs. (RR XXV 24-30). The door was open, but no one was
there; she went inside and saw Saul’s body in the bathtub. (RR XXV 30-33).
When appellant learned the police wanted to question Tina about Saul, he told
her to keep quiet, and tell the police she had not seen anything. (RR XXV 32-35).
Soon after, appellant returned to the apartment with his drug associates and
they carried Saul’s body to the dumpster. (RR XXV 7-19, 84-85). An autopsy
revealed Saul had suffered multiple blunt force traumas, had cocaine in his blood
and had been restrained and strangulated. (RR XXV 97-111).
In October of 2001, while in Puerto Rico, appellant attempted to kill a
restaurant business owner and kidnapped two men. (RR XXIV 14-42). Appellant
pointed a revolver at Manuel Buten and attempted to shoot him two times, but
11 luckily the gun did not fire and Buten was able to run away. (RR XXIV 23-25, 82-
83, 102).
Buten later learned appellant had kidnapped two family members who
worked at the restaurant, his brother Andres Buten and his step-son William
Martinez, who was only 16. (RR XXIV 18, 20, 26, 83-97, 99, 102-106). Appellant
called Buten and demanded a large amount of cocaine and cash in exchange for the
safe release of the two men. (RR XXIV 29-32, 47). Appellant threatened to kill
them if Buten called the police or failed to comply with his demands. (RR XXIV
31, 37). With the assistance of law enforcement, Buten negotiated with appellant
and he was apprehended. (RR XXIV 41, 48-58).
Agent Rodriguez convinced appellant to let the men go; while in custody
appellant called his wife and instructed her to release Andres and William. (RR
XXIV 58-60). Both of the men had been severely injured and were taken to the
hospital. (RR XXIV 60, 95-96, 105-111).
Andres described how appellant treated him while he was confined. (RR
XXIV 84-94). Andres was bound with wire from a coat hanger while appellant
repeatedly punched him, kicked him, hit him over the head with a shower curtain,
hit his feet with a mallet and urinated on him. (RR XXIV 86-90, 93-94).
Appellant told Andres he was going to kill him. (RR XXIV 87). William testified
appellant physically beat him as well; appellant threw him to the floor, stomped
12 on his back and spit on him. (RR XXIV 105-108). Appellant also hit William with
a revolver, tied him up with the wire from a coat hanger and held a knife to his
throat, toes and penis, threatening to cut him. (RR XXIV 109-110).
Appellant and his accomplices were charged with kidnapping and
possession of weapons. (RR XXIV 64-65). Appellant pled guilty to the charges
and was sentenced to 16 years confinement in Puerto Rico. (RR XXIV 65-67;
State’s Exhibit Number 121). While incarcerated, an inspection of appellant’s cell
revealed his plans to escape, the window pane was loose and open to the outside
and he had hidden a rope of bed sheets and a map of Puerto Rico. (RR XXIV 120-
127). A cell phone was also found on his person, which is prohibited in a
correctional facility. (RR XXIV 128).
Appellant continued to cause safety concerns while incarcerated in the
United States. (XXV 134-135, 139-140). He was booked into the Harris County
Jail on February 12, 2010 and was classified as a high-risk inmate and placed into
administrative separation, where he remained for two years. (RR XXV 145). Two
months after being moved from separation, on September 23, 2012, appellant
possessed a prohibited weapon in a penal institution, by confiscating a razor blade
and hiding it inside his bed. (XXV 126-133, 137-138, 145, 147).
13 After the presentment of punishment evidence, the jury answered the
special issues in a manner mandating the imposition of the death penalty. (CR
523-527; RR XXVIII 3-5).
In the first special issue, the jury unanimously found from the evidence
beyond a reasonable doubt there is a probability that appellant would commit acts
of violence that would constitute a continuing threat to society. (CR 523; RR
XXVIII 3).
In the second special issue, the jury unanimously found from the evidence
beyond a reasonable doubt that appellant himself actually caused the death of
Adam, on the occasion in question, or if he did not actually cause the death of
Adam, that he intended to kill Adam, or that he anticipated that a human life
would be taken. (CR 524; RR XXVIII 3-4).
In the third special issue, the jury unanimously found, after taking into
consideration all of the evidence, including the circumstances of the offense, the
defendant’s character and background, and the personal moral culpability of the
defendant, that there was not sufficient mitigating circumstances to warrant that
a sentence of life imprisonment rather than a death sentence be imposed. (CR
525-526; RR XXVIII 4).
The trial court orally sentenced appellant to death. (RR XVIII 4-5).
14 SUMMARY OF THE ARGUMENT
Appellant’s conviction for capital murder and imposition of the death
penalty should be affirmed by this Court.
Reply to appellant’s first issue — Appellant has not shown the trial court abused its discretion in denying his motion to suppress evidence, where the State established the chain of custody and there was nothing to indicate the evidence was contaminated. None of the evidence admitted into evidence was tested by the HPD crime lab.
Reply to appellant’s second issue — Appellant’s confrontation complaints are not preserved for this Court’s review because he did not make an objection at trial.
Reply to appellant’s third issue — The evidence is legally sufficient to support appellant’s conviction for capital murder. Appellant kidnapped a six-year old child and ordered his accomplice to kill him.
Reply to appellant’s fourth and fifth issues — Appellant has not shown the trial court abused its discretion in admitting extraneous evidence of his bond forfeiture and failure to appear under Rules 403 and 404(b).
Reply to appellant sixth and seventh issues — Appellant has not shown the trial court abused its discretion in excluding mitigation evidence regarding his completion of bible study or assistance to law enforcement because it constituted hearsay.
Reply to appellant’s eighth, ninth, tenth and eleventh issues — Appellant has not shown that closing argument by the prosecutor was impermissible, or that it caused him to suffer harm in this case.
Reply to appellant’s twelfth issue — Appellant has not shown the trial court erred in denying his motion for a new trial based upon jury misconduct, where he claims the act of the jury foreman referring to his Bible during deliberations was an outside influence.
15 REPLY TO APPELLANT’S FIRST ISSUE
In his first point of error, appellant challenges the trial court’s denial of his
motion to suppress. Appellant filed a written motion to suppress the results of all
DNA testing. (CR 454-456). At the pre-trial hearing, he focused on problems
with the HPD crime lab, and suggested the physical evidence in his case was
contaminated, and thus the DNA analysis was unreliable. (RR XVI 3-121). The
trial court disagreed and found the evidence and test results were relevant and
reliable, and denied appellant’s motion to suppress. (RR XVII 3-17).
Standard of Review
A trial court’s ruling on a motion to suppress evidence will not be set aside
absent a showing of abuse of discretion. Maddox v. State, 682 S.W.2d 563, 564 (Tex.
Crim. App. 1985). This Court does not engage in its own factual review. Instead,
viewing the evidence in the light most favorable to the trial court’s ruling, this
Court considers only whether the trial court improperly applied the law to the
facts. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).
At a suppression hearing, the trial court is the sole judge of the credibility of
the witnesses and the weight to be given their testimony. Id; see also State v. Ross, 32
S.W.3d 853, 855 (Tex. Crim. App. 2000) (because the trial court is the exclusive
finder of fact in a motion to suppress hearing, it may choose to believe or disbelieve
all or any part of a witness’s testimony). Therefore, if the record supports the trial
16 court’s findings, this Court should not disturb those findings. Romero, 800 S.W.2d
at 543.
Motion to Suppress Evidence
The State presented testimony from SANE nurse Gloria Kologinczok. (RR
XVI 23-25; XIX 37-50; State’s Exhibit Number 1). She was working at St. Joseph’s
Hospital in Houston on October 1, 1992 and performed a sexual assault
examination of Diana Garcia at 3:45 a.m. (RR XVI 25; RR XIX 43). Shortly after,
at 4:24 a.m., she turned over the sexual assault evidence collection kit to HPD
Officer W.T. Bredemeyer. (RR XVI 25; RR XIX 49, 59; State’s Exhibit Number
33). He maintained custody of the evidence and transported it to the HPD
property room. (RR XIX 59-60).
Police were unsuccessful in making contact with appellant during the initial
investigation of this case in 1992; appellant fled the country after the offense was
committed. (RR XVI 36). The case went unsolved and was re-opened 15 years
later. (RR XVI 28-30).
In November of 2004, a cold case squad within HPD homicide was created.
(RR XVI 28). In September 2007, HPD Sergeant Mehl located evidence in the
HPD property room that had been collected in 1992. (RR XVI 29-30). On October
2, 2007, Mehl sent some blood samples and three pieces of evidence to Orchid
Cellmark for analysis — a cigar, a sexual assault examination kit and a cutting
17 from a pair of women’s panties. (RR XVI 30-35). At that time, HPD did not
possess a DNA sample for appellant. (RR XVI 36-37).
In 2008, HPD Sergeant Stephens located appellant in a Puerto Rican prison
and obtained a court order for a sample of his DNA. (RR XVI 37-38). FBI agents
in Puerto Rico went to the prison where appellant was incarcerated and obtained
the DNA sample. (RR XVI 38). Mehl received the sample on May 23, 2008 and
then shipped it to Orchid for analysis with the previous items. (RR XVI 38-39).
The evidence was received by Matt Quartaro, a supervisor with Orchid
Cellmark. (RR XVI 48-60). Instead of relying on the DNA extractions done by
HPD, Orchid performed their own DNA extractions from the evidence. (RR XVI
51). When Orchid received appellant’s DNA sample, it was compared against the
three main pieces of evidence — the cigar, the sexual assault examination kit and a
cutting from the panties. (RR XVI 59-60).
Orchid’s report indicated: the DNA profile on the cigar left at the crime
scene was a match for appellant; the sperm fraction from the cutting of the panties
was a mixture of DNA and the major DNA profile belonged to appellant; and
appellant could not be ruled out as the contributor to the DNA mixture from the
vaginal swab. (RR XVI 39, 59-60). In terms of the statistical profile match,
Quartaro testified the probability of that DNA profile repeating in the North
American population was 1 in 71.5 quadrillion of unrelated individuals. (RR XVI
18 59-60). Once Mehl received this report, he filed capital murder charges on
appellant. (RR XVI 39).
Analysis
Appellant claims the trial court abused its discretion in admitting evidence,
the cigar, panties and sexual assault kit that included blood samples and vaginal
swabs, because the State failed to establish a proper chain of custody; this
objection was made during trial and was overruled by the trial judge. (RR XXI
120-124; State’s Exhibit Numbers 33-A, 33-B, 33-C, 33-D and 95).
The State meets the authentication requirement for admissibility of
evidence once it has shown the beginning and the end of the chain of custody,
particularly when the chain ends at a laboratory. McGregor v. State, 394 S.W.3d 90,
125 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d); see also TEX. R. EVID. 901(a).
Absent evidence of tampering or fraud, any gaps in the chain of custody do not
affect the admissibility of the evidence, but rather go to the weight that the fact-
finder should give the evidence, which may be brought out and argued by the
parties. Druery v. State, 225 S.W.3d 491, 503–504 (Tex. Crim. App. 2007).
Appellant does not make a specific claim about a gap in the chain, but instead
seems to allege that the evidence was tampered with and/or compromised due to
issues at the HPD crime lab before the evidence was tested.
19 The proponent of scientific evidence, such as the DNA test results offered by
the State in this case, must prove to the trial judge, by clear and convincing
evidence and outside the presence of the jury, that the proferred evidence is
reliable and therefore relevant. TEX. R. EVID. 702; Kelly v. State, 824 S.W.2d 568, 573
(Tex. Crim. App. 1992) (interpreting Rule 702). Any issue of contamination
would be pertinent to the trial court in deciding if the evidence was reliable. See
Jackson v. State, 17 S.W.3d 664, 670–72 (Tex. Crim. App. 2000) (analyzing whether
DNA evidence was reliable when allegations of contamination were raised); Hines
v. State, 38 S.W.3d 805, 808 (Tex. App.—Houston [14th Dist.] 2001, no pet.)
(applying the Kelly reliability analysis to claims of contaminated DNA).
The sexual assault kit of Diana Garcia was collected by a qualified SANE
nurse hours after the sexual assault. The kit included Diana’s panties, vaginal
swabs and blood samples. (RR XVII 6). The kit was sealed and stored in the HPD
property room at 1200 Travis. (RR XVII 6-7). In 1992, the evidence was processed
and analyzed by employees of the HPD crime lab and then returned to storage,
where it remained until 2007, when it was sent to Orchid Cellmark for analysis.
(RR XVII 7).
Several blood samples were collected in 1992 and also stored at the HPD
property room on Travis — those of Arturo Garcia, Candido Lebron, Bienviendo
Melo, Leonardo German and Carmelo Martinez Santana. (RR XVII 7-8). They
20 were tested by the HPD crime lab and returned to the property room in 1992. (RR
XVII 8). They were not retrieved again until December 2, 2007, when Sergeant
Mehl sent them to Orchid Cellmark. (RR XVII 8). The results from the HPD
crime lab were not admitted in this trial; only the results from Orchid Cellmark
were admitted. (RR XVII 8).
The cigar taken from the crime scene was stored at the HPD property room
on Goliad from October 1992 to October 2007. (RR XVII 6). The cigar was
located in a larger container of evidence and there was nothing to indicate it had
been tampered with during that time. (RR XVII 6). Although it may have been
sent to the HPD crime lab with other evidence, there is nothing to indicate it was
ever tested by the lab. (RR XVI 112-113). The package appeared unopened when it
was sent to Orchid Cellmark for DNA testing on October 2, 2007. (RR XVII 6, 8).
In 2008, a sample of appellant’s DNA sample was obtained and shipped
directly to Orchid for analysis. (RR XVI 37-39; RR XVII 10). It was never stored
or tested by the HPD crime lab. This known sample was compared against the
profiles found in the sexual assault kit evidence and cigar. (RR XVII 10).
In support of his contention that the evidence was tainted, appellant
provided the trial court with the Bromwich Report, which detailed issues in the
HPD crime lab. (Defense Exhibits 2-7). The report was initiated in 2003 upon the
closing of the HPD crime lab and discussed errors that were made by the lab, as
21 well as deficiency in documentation and allegations of misconduct. (RR XVII 12-
13). The trial court noted the report made specific recommendations to the
address the issues, all of which were followed by HPD. (RR XVII 13-14).
Appellant’s contamination argument fails for two reasons. First, the State
did not present any evidence in this case that was tested by the old HPD crime
lab.1 Every piece of evidence he complains about was tested by Orchid Cellmark.
Second, although the evidence was stored at two of the HPD property rooms,
there was no evidence of contamination or tampering.
A time delay in the collection and testing of evidence does not render the
evidence unreliable when there is no evidence of contamination or tampering. See
Dossett v. State, 216 S.W.3d 7, 21-22 (Tex. App.—San Antonio 2006, pet. ref’d) (State
sufficiently established chain of custody of victim’s sexual assault kit to admit
expert testimony about results on DNA testing on samples contained in kit, even
though 20–year period existed between collection of kit and DNA testing).
Similarly, the fact that the evidence was previously tested by the HPD crime
lab and then returned to HPD storage does not render the evidence unreliable. See
Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997) (absent affirmative
evidence of tampering, no reason to exclude evidence merely because it was kept
1 A known DNA sample of appellant was tested by the new HPD crime lab in 2010. The trial court found this evidence was admissible since there were no longer concerns with the lab at that time. And this evidence just corroborated the earlier findings from Orchid Cellmark in 2008. (RR XVII 11-12).
22 in evidence room for extended period of time and had undergone prior forensic
testing).
The State has no burden to disprove tampering; rather, appellant has the
burden to present affirmative evidence of tampering. Garcia v. State, 537 S.W.2d
930, 934 (Tex. Crim. App. 1976). A showing of the possibility of tampering is not
sufficient to bar admission of the evidence, and goes only to the weight of the
evidence. See Darrow v. State, 504 S.W.2d 416, 417 (Tex. Crim. App. 1974) (evidence
that marihuana was stored in officer’s locker for two weeks in room to which
others had access, but no key to locker, showed only the possibility of tampering,
and did not prohibit admission); see also Dossett, 216 S.W.3d at 21 (defendant only
showed there was a possibility of tampering or contamination, which was
insufficient to exclude the evidence).
Appellant has not shown the trial court abused its discretion in denying his
motion to suppress. See Romero, 800 S.W.2d at 543. Therefore, appellant’s first
point of error should be overruled.
REPLY TO APPELLANT’S SECOND ISSUE
In his second issue, appellant claims the trial court violated his right to
confrontation, by not allowing him to cross-examine witnesses and present an
investigative report to support his defense during his motion to suppress and at
trial. The constitutional right of confrontation includes the right to cross-examine
23 the witnesses at trial and the opportunity to show that a witness is biased or that
his testimony is exaggerated or unbelievable. Irby v. State, 327 S.W.3d 138, 145 (Tex.
Crim. App. 2010).
Appellant complains he was unable to cross-examine three of the State’s
witnesses, Sergeant Mehl, Agent Guzman and Courtney Head, regarding
contamination issues at the HPD crime lab during trial. (Appellant’s brief 71-72).
But this issue is not preserved for this Court’s review. Appellant did not lodge an
objection at the hearing or trial on this basis. (RR XVI 108-110; RR XX 56-66; 77;
RR XXI 155, 157). A defendant waives his constitutional right to confront
witnesses if he does not object at trial. Melendez–Diaz v. Massachusetts, 557 U.S. 305,
314 n. 3 (2009); Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). Because
appellant did not object on confrontation grounds, he has waived appellate review
of his second point of error. See TEX. R. APP. P. 33.1.
Further, the subject of appellant’s attempted cross-examination was
previous contamination problems in the HPD crime lab outlined in a report
authored by Michael Bromwich. As discussed in more detail in the State’s reply to
appellant’s first issue, none of the evidence admitted in this case was tested at the
HPD crime lab during the time frame of contamination concern, making the
evidence irrelevant to the issues in this case.
24 During the motion to suppress, the trial court determined the report and
areas of cross-examination regarding it were not relevant, and thus not admissible
under Rules 401 and 402. (RR XVII 12-14). See TEX. R. EVID. 401 (evidence is
relevant if it tends to make the existence of any fact of consequence tot eh
determination of the action more probable or less probable than it would be
without the evidence); TEX. R. EVID. 402 (only relevant evidence is admissible).
The trial court also found that any potential probative value of the evidence was
outweighed by the danger of unfair prejudice, finding it would cause confusion of
the DNA issues and mislead the jury. (RR XVII 13-14). See TEX. R. EVID. 403.
Because the evidence was not relevant, the trial court did not err in limiting
appellant’s cross-examination on the subject of contamination. See Foster v. State,
180 S.W.3d 248, 251 (Tex. App.—Fort Worth 2005, pet. ref’d) (trial court did not
abuse its discretion or violate defendant’s right to confrontation when it limited
his cross-examination; defendant sought to ask a question that was irrelevant and
calculated to confuse the jury because it injected new facts into the case regarding
a situation that was not before the jury).
Appellant did not offer any additional argument on why the evidence should
be admitted at trial. His second point of error should be overruled.
25 REPLY TO APPELLANT’S THIRD ISSUE
In his third issue on appeal, appellant challenges the legal sufficiency of the
evidence supporting his conviction for capital murder.
Appellant was charged with the offense of capital murder, that on or about
September 30, 1992, while in the course of committing or attempting to commit
the kidnapping of Adam, he intentionally caused the death of Adam by stabbing
him with a deadly weapon, namely, a sharp instrument or by some unknown
manner and means. (CR 2-3; RR XXIII 4, 31). The jury was charged they could
find him guilty as a principal or party to the offense. (CR 487-488). TEX. PENAL
CODE ANN. § 7.02(a)(2) (West 2013); TEX. PENAL CODE ANN. § 7.02(b) (West
2013).
In reviewing the legal sufficiency of the evidence to support a conviction,
the appellate court views the evidence in the light most favorable to the verdict
when determining whether any rational trier of fact could have found the elements
of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19
(1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (the Jackson
standard is the only standard a reviewing court should apply in determining
whether the evidence is sufficient to support a conviction).
The jury, as the sole judge of the facts, is entitled to resolve any conflicts in
the evidence, to evaluate the credibility of witnesses, and to determine the weight
26 given to any particular piece of evidence. Jones v. State, 944 S.W.2d 642, 647 (Tex.
Crim. App. 1996). When conducting a legal sufficiency review, this Court does
not engage in a second evaluation of the weight and credibility of the evidence, but
only ensures the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238,
246 (Tex. Crim. App. 1993).
Appellant lists several reasons why the evidence is insufficient to support
his conviction. He challenges his identification as the culprit, the credibility of
four witnesses, as well as the strength of the evidence regarding Diana’s sexual
assault and Adam’s death. Appellant also claims there was no evidence of his
motive to commit this crime. (Appellant’s brief 76-85).
Appellant challenges the evidence identifying him, focusing on the incorrect
descriptions of the suspects as black men by police early in the investigation.
Diana and Arturo had described the men as having dark complexions, speaking
with Spanish accents. Nothing about the police’s initial report renders the
evidence of appellant’s identity insufficient, especially in the light of the DNA
evidence revealing he was the man who sexually assaulted Diana. Although
appellant has challenged the admissibility of the DNA evidence, even improperly
admitted evidence may be considered when reviewing the legal sufficiency of the
evidence. Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999). The evidence of
appellant’s identity as the perpetrator is sufficient.
27 Appellant complains that several of the State’s key witnesses posed
credibility problems and provided testimony that was inconsistent. Diana Garcia
and Arturo Rodriguez testified regarding what happened to them at the apartment
on September 30, 1992, establishing the sexual assault of Diana, the beating of
Arturo and kidnapping of Adam. Appellant complains their testimony was not
credible because the couple initially lied to police about their involvement in
selling drugs. Diana admitted they lied to police the first night, because they were
afraid, but told the truth the following day. (RR XVIII 166-167).
Carmelo Santana provided evidence about the kidnapping and murder of
Adam, as he had been with appellant on that night. He established that appellant
took Adam from the apartment and ordered Aviles-Barrosso to kill him. Appellant
complains Santana’s testimony is not credible because he was serving a federal
sentence at the time of trial, he had a motive to distance himself from the crime
and some of his testimony contradicted his earlier statements.
Angelita Rodriguez was appellant’s wife at the time of this offense. She
provided evidence about appellant’s drug dealing, his immediate flight from the
country and testified appellant admitted to her that he killed Adam. Appellant
complains she was not a credible witness because she had a motive to see
appellant punished, because he had been unfaithful and left her in the U.S.
28 The concerns appellant has articulated with regard to these witnesses were
all presented and argued to the jury during trial. The jury was free to accept one
version of the facts and reject another, and they could reject any part of a witness’s
testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). None of these
matters render the evidence insufficient. See Curry v. State, 30 S.W.3d 394, 406
(Tex. Crim. App. 2000) (any inconsistencies in the evidence are viewed in favor of
the verdict).
Appellant complains there was insufficient evidence to show he sexually
assaulted Diana. He claims the lack of physical evidence, coupled with the DNA
evidence, merely shows sexual contact with Diana, not sexual assault. During
closing argument, defense counsel suggested Diana and appellant had a consensual
sexual relationship. (RR XXIII 44-45).
But this is contrary to Diana’s testimony. She gave very specific details
about being blindfolded and sexually assaulted that night. Diana recalled that the
perpetrator ejaculated, which was consistent with her physical exam, where DNA
evidence was left behind. SANE nurse Kologinczok testified she did not observe
any signs of physical injury during Diana’s sexual assault exam, but noted that in
most exams, she did not find physical injuries. (RR XIX 48-49). Appellant
admitted to Santana that he sexually assaulted Diana. (RR XX 145).
29 Although there was no physical injuries tending to show sexual assault,
Diana’s testimony and the DNA results were more than sufficient to show
appellant was the man who sexually assaulted her. See Bargas v. State, 252 S.W.3d
876, 889 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (it is well-settled that a
victim’s uncorroborated testimony is sufficient on its own to support a conviction
for sexual assault and the lack of physical evidence will not render the evidence
insufficient). Although the sexual assault evidence was important to show
appellant’s presence and participation in the kidnapping and murder of Adam, the
jury did not have to find the elements of sexual assault beyond a reasonable doubt.
Appellant was not charged with the sexual assault of Diana; the underlying felony
in the capital murder indictment was kidnapping. (CR 2-3).
Appellant complains the evidence is insufficient to prove he killed Adam as
alleged in the indictment because the State, through Dr. Wolf, was unable to
provide conclusive evidence regarding Adam’s cause of death. But direct evidence
is not required. Expert opinion testimony is not required to prove cause of death,
and cause of death may be proven solely by circumstantial evidence. See Fountain v.
State, 401 S.W.3d 344, 356-357 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d).
Dr. Wolf testified Adam’s manner of death was homicide. (RR XX 10-12;
State’s Exhibit Number 55). He opined that Adam may have been stabbed, but he
was unable to provide an opinion on the cause of death due to Adam’s
30 decomposition. (RR XX 8-9, 12). Adam’s body was found over a month after his
kidnapping and had been submerged in water, so Dr. Wolf was unable to assess
his skin surfaces and organs. (RR XX 8). He also stated that any blood from
Adam’s pajamas would have washed away during the time he was in the water.
(RR XX 14-15).
Both DNA evidence and the testimony of Santana placed appellant at the
apartment when Adam was kidnapped. Santana explained how appellant directed
Aviles-Barrosso, who was carrying a knife, to kill Adam. Santana saw Adam’s
torso covered in blood and helped sink the body, where it was located a month
later, decomposed. Appellant later admitted to his wife that he killed Adam. This
evidence establishes Adam’s cause of death. See Morris v. State, 322 S.W.2d 632, 634
(Tex. Crim. App. 1959) (where the State did not present expert medical testimony
regarding victim’s cause of death, testimony regarding the victim being stabbed by
the defendant was sufficient to establish the cause of death); see also McDuff v. State,
939 S.W.2d 607, 614 (Tex. Crim. App. 1997) (the State’s inability to produce or
identify the body or remains does not preclude a murder conviction).
The evidence is sufficient to support that Adam was stabbed with a deadly
weapon, a sharp instrument, or by some unknown manner and means. See Turro v.
State, 950 S.W.2d 390, 397 (Tex. App.—Fort Worth 1997, pet. ref’d) (although
medical examiner conceded his opinions on the time and cause of death were not
31 absolute and that he could not entirely eliminate the possibility that the victim
died from accidental drowning, the evidence was sufficient to support defendant’s
conviction for murder because proof beyond a reasonable doubt need not be proof
beyond all doubt).
Motive is not an element of the offense and thus does not need to be proved
in order to establish the commission of capital murder. See Rodriguez v. State, 486
S.W.2d 355, 358 (Tex. Crim. App. 1972). While the State need not have proved
motive, evidence of motive for the offense was presented, that motive being
appellant’s revenge for Diana and Arturo leaving the drug trade. Krebsbach v. State,
962 S.W.2d 728, 732 (Tex. App.—Amarillo 1998, pet. ref’d). Santana testified they
went to the apartment that night to look for drugs and money. When Santana
opposed the kidnapping of Adam, appellant explained he took him because Adam
saw his face, and arguably could identify him. This evidence could have been
considered by the jury in determining appellant’s guilt.
Viewing the evidence in the light most favorable to the verdict, the jury
could have found the essential elements of capital murder — that appellant
murdered Adam in the course of committing kidnapping — beyond a reasonable
doubt. Appellant’s third point of error should be overruled.
32 REPLY TO APPELLANT’S FOURTH & FIFTH ISSUES
In two points of error, appellant complains the trial court erred by
admitting extraneous evidence that appellant failed to appear for a court
appearance on October 8, 1992 relating to a criminal offense. Appellant’s fourth
point of error appears to challenge the admission of evidence under Rule 404(b),
and his fifth point of error contests the trial court’s ruling with regard to Rule 403.
This Court reviews a trial court’s decision to admit evidence concerning an
extraneous offense for an abuse of discretion. Page v. State, 137 S.W.3d 75, 78 (Tex.
Crim. App. 2004). As long as the trial court’s ruling is within the “zone of
reasonable disagreement,” the trial court does not abuse its discretion, and this
Court should uphold the ruling. McGregor v. State, 394 S.W.3d 90, 117 (Tex. App.—
Houston [1st Dist.] 2012, pet. ref’d).
Rule 404(b) prohibits the admission of an extraneous offense at trial to
prove a defendant’s character or to show that the defendant acted in conformity
with that character unless admitted for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident. TEX. R. EVID. 404(b). Relevant evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice. TEX.
R. EVID. 403.
33 The State offered testimony from FBI Special Agent Eric Johnson. (RR XIX
131-145). He joined the kidnapping investigation on October 1, 1992 and his
primary suspect was appellant. (RR XIX 135-139). Agent Johnson learned that
appellant missed a court appearance on October 8, 1992 for a criminal case in
Harris County and his bond was forfeited. (RR XIX 140-142; RR XX 103-104;
State’s Exhibit Number 36). This was one week after Adam’s kidnapping. (RR
XIX 142). After speaking with appellant’s wife, Agent Johnson began looking for
appellant in Puerto Rico. (RR XIX 144-145).
Prior to the presentment of this bond forfeiture evidence, the parties had a
lengthy discussion about the admissibility of this evidence. (RR XIX 105-130).
The trial court limited its ruling to the fact that appellant had failed to appear for a
court appearance and his bond was forfeited. (RR XIX 113-115). The trial judge
did not allow Agent Johnson to reveal that the offense was for drug possession or
that it was a pending felony offense, finding this information would be too
prejudicial. (RR XIX 121). The judge also ordered that the bond forfeiture
paperwork be redacted, to delete any references to the offense being a felony or for
drug possession.2 (RR XIX 123-124, 127; State’s Exhibit Number 36).
2 FBI Special Agent Johnson explained to the trial judge that he had filed an unlawful flight to avoid prosecution case against appellant after he bond forfeited; he explained he obtained the warrant so he could legally search for appellant throughout the United States. (RR XIX 111-112). But the trial court did not allow evidence of this federal charge to be heard by the jury. (RR XIX 113-115).
34 Evidence of bond forfeiture may be admissible to show flight under Rule
404(b). Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994); Geeslin v. State,
630 S.W.2d 512, 513 (Tex. App.—Fort Worth 1982, no pet.). The evidence of flight
is admissible as a circumstance from which guilt may be inferred, even though it
may show the commission of an extraneous offense. Bigby, 892 S.W.2d at 883.
This evidence is also relevant to show efforts made to locate or apprehend a
defendant, his pursuit and capture, circumstances of his arrest including his
resistance. Cantrell v. State, 731 S.W.2d 84, 92-93 (Tex. Crim. App. 1987).
To exclude evidence of flight after relevancy has been established, the
defendant has the burden to affirmatively show that the flight was unrelated to
the charged offense. Burks v. State, 876 S.W.2d 877, 903 (Tex. Crim. App. 1994).
Appellant acknowledges the authority upon which the trial court admitted the
evidence, but attempts to distinguish it from his case. Cantrell, 731 S.W.2d at 92-
93. (RR XIX 125-126). Appellant argues because he bond forfeited on a criminal
charge that was not the one he was on trial for, i.e. the drug possession case, it was
error for the trial court to admit the evidence.
But the timing of appellant’s flight from the United States demonstrates it
was related to the capital murder. The day after Adam’s kidnapping and murder,
appellant told his wife and Santana that he was leaving the country and traveling
to Puerto Rico. (RR XX 99, 158-159). It was not a planned trip. (RR XX 100, 158-
35 159). Appellant immediately sold his car, used the money to purchase a plane
ticket and had Santana take him to the airport. (RR XX 162, 164). When his wife
visited him two months later, appellant admitted he had killed Adam. (RR XX
107). See Burks v. State, 227 S.W.3d 138, 148–49 (Tex. App—Houston [1st Dist.]
2006, pet. ref’d) (evidence is relevant to show defendant’s consciousness of guilt).
Appellant did not present any evidence to show his failure to appear for
court was anything but flight from prosecution for this capital murder. Therefore,
he has failed to meet his burden to exclude evidence of flight. See Burks, 876 S.W.2d
at 904 (flight evidence was relevant and admissible where defendant made no
showing that flight was related to a circumstances unrelated to the offense).
Similarly, appellant has not established the prejudicial effect of this evidence
outweighs the probative value. TEX. R. EVID. 403. The bond forfeiture evidence in
this case was evidence of flight, relevant to show appellant’s consciousness of
guilt. Torres v. State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990, no pet.)
(consciousness of guilt is perhaps one of the strongest kinds of evidence of guilt).
The evidence was significant in that it demonstrated the timing and context
of appellant’s departure from the United States. Court records indicated appellant
had been present for every court appearance on his pending drug case in 1992, at
least 14 settings over the span of 15 months, prior to his missed appearance on
October 8, 1992. (State’s Exhibit Number 36). The documents also reveal
36 appellant forfeited a $5,000 bond for failing to appear in court. (State’s Exhibit
Number 36). This evidence established appellant had been diligent about his
court appearances until the murder occurred and forfeited a large amount of
money when he left the country, making the evidence more probative than
prejudicial. See Hyde v. State, 846 S.W.2d 503, 505 (Tex. App.—Corpus Christi
1993, pet. ref’d) (a defendant’s failure to appear is not the type of misconduct that
has a great unfair prejudicial danger).
Appellant has not shown the trial court abused its discretion in admitting
evidence of his bond forfeiture under Rule 404(b) or Rule 403. See Bigby, 892
S.W.2d at 883-884 (evidence of defendant’s flight was admissible under both Rule
404(b) and Rule 403 as relevant evidence of defendant’s guilt of the charged crime
of capital murder where the State sought the death penalty); Hyde, 846 S.W.2d at
505 (evidence of defendant’s failure to appear at first scheduled trial and his
forfeiture of bond was properly admissible to show flight, and trial court did not
abuse its discretion in determining that danger of unfair prejudice did not
outweigh probative value of flight evidence under Rule 403).
Appellant’s fourth and fifth issues should be overruled.
37 REPLY TO APPELLANT’S SIXTH & SEVENTH ISSUES
In two points of error, appellant complains the trial court erred in
preventing him from presenting evidence during the punishment phase of trial,
relevant to the mitigation special issue outlined in Article 37.071. See TEX. CODE
CRIM. PROC. ANN. art. 37.071 § 2 (a)(1) (West 2013).
In his sixth issue, appellant complains the trial court erred in excluding
bible study certificates. Appellant attempted to offer Defense Exhibit Numbers
48-55, which are bible study certificates appellant claimed he earned while in
prison in Puerto Rico, through his brother, punishment witness Joel Cruz-Garcia.
(RR XXVI 56-58). The defense claimed the basis for offering them was that
appellant had talked to the witness about these things, “Not that the witness took
the courses with him, but he’s talked to him about it.” Joel Cruz-Garcia testified
he went to church with appellant on one occasion, but he did not indicate he
possessed any personal knowledge about appellant’s participation in bible study.
(RR XXVI 41-42, 54).
The State objected on the basis of hearsay and defense counsel admitted the
certificates were hearsay. (RR XXVI 57-58). He did not argue that any exception
to the hearsay rule applied. (RR XXVI 57-58). The trial court inquired whether
appellant had gotten a business record affidavit for the certificates. (RR XXVI 58).
Defense counsel replied no and that he was not inclined to put appellant on the
38 stand just to get them into evidence. (RR XXVI 58). The trial judge ruled that
while the certificates may be relevant, they were hearsay if admitted through that
particular witness. (RR XXVI 58).
In his seventh issue, appellant claims the trial court prevented him from
introducing evidence that he was an informant for the FBI, DEA or INS. Agent
Juan DeJesus Rodriguez, who works with the police in Puerto Rico, testified he
investigated the kidnappings of Andres Buten and William Martinez. (RR XXIV
43-61). During cross-examination, defense counsel wanted to inquire whether
Rodriguez had learned during his investigation that appellant was a corroborating
witness for the FBI, DEA or INS. (RR XXIV69-70).
The jury was taken out and defense counsel asked the witness on voir dire
whether he could verify this information. (RR XXIV 70-73). Rodriguez stated he
was told orally that appellant had cooperated with law enforcement in the past,
but he never got confirmation in writing. (RR XXIV 72-73). There was no
evidence appellant was cooperating with law enforcement in regard to the
kidnapping cases in Puerto Rico. (RR XXIV 73). And Rodriguez did not provide
the source of this information; thus the State objected on hearsay grounds. (RR
XXIV 72-74). Defense counsel again did not argue that any hearsay exceptions
applied. The judge ruled it was inadmissible hearsay at this juncture, but
instructed defense counsel if he could present a witness who had personal
39 knowledge that appellant had previously cooperated with law enforcement, she
would admit the evidence, as being relevant to mitigation. (RR XXIV 74).
The decision to admit or exclude evidence is within the discretion of the
trial court. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). Unless
the trial judge’s decision was outside the “zone of reasonable disagreement,” an
appellate court should uphold the ruling. Torres v. State, 71 S.W.3d 758, 760 (Tex.
Crim. App. 2002).
Hearsay is a statement, other than one made by the declarant while
testifying at trial or hearing, offered in evidence to prove the truth of the matter
asserted. TEX. R. EVID. 801(d). As a general rule, hearsay evidence is inadmissible
unless it falls within one of the many exceptions. TEX. R. EVID. 802. It is well-
settled if the testimony fits an exception to the hearsay rule (or if the evidence was
not being offered for the truth of the matter asserted) appellant, as the proponent
of the evidence, had the burden of demonstrating the applicability of that
exemption or exception. Martinez v. State, 178 S.W.3d 806, 815 (Tex. Crim. App.
2005); see also Cofield v. State, 891 S.W.2d 952, 954 (Tex. Crim. App. 1994)
(proponent of hearsay has the burden of showing that the testimony fits within an
exception to the general rule prohibiting the admission of hearsay evidence).
Appellant did not provide any avenue for admissibility regarding the evidence he
complains should have been admitted. See In re E.A.K., 192 S.W.3d 133, 145 (Tex.
40 App.—Houston [14th Dist.] 2006, pet. denied) (trial court erred in admitting
hearsay evidence where party failed to lay proper predicate for admission).
Relying heavily on cases from the United States Supreme Court, appellant
argues that this mitigation evidence should have been admitted, despite his failure
to adhere to the rules of evidence, because it is violative of his Sixth and
Fourteenth Amendment’s due process right to present a defense. See Holmes v. South
Carolina, 547 U.S. 319 (2006) (exclusion of defense evidence of third-party guilt
denied the defendant a fair trial); Chambers v. Mississippi, 410 U.S. 284 (1972) (same).
But this Court has reviewed the scenario appellant presents and ruled
against him. This Court held that the United States Constitution does not require
admission of mitigating evidence when it is inadmissible under state law, even
when the evidence meets the test of constitutional relevancy. See Renteria v. State
206 S.W.3d 689, 697 (Tex. Crim. App. 2006).
Although both the United States Supreme Court and this Court have
recognized that no person shall be executed without the opportunity to bring all
evidence of mitigating circumstances, the United States Constitution does not
require the admission of evidence if it is in a form that is objectionable. Id.; see also
Lewis v. State, 815 S.W.2d 560, 568 (Tex. Crim. App. 1991).
The bottom line — relevant evidence must be presented in a form that is
acceptable to the laws of evidence of the State in order to be received over
41 objection. Id. And this principle was re-affirmed in 2010 by this Court. See Smith v.
State, No. AP-75793, 2010 WL 3787576 *19-23 (Tex. Crim. App. 2010) (not
designated for publication).
In Smith, this Court evaluated a defense claim that mitigating evidence
should have been admitted, despite the hearsay nature of the evidence. See Smith,
2010 WL 3787576 at *19-23. The trial court excluded appellant’s school records
and a videotape because they did not comply with the rules of evidence pertaining
to business records and hearsay. Id. Appellant did not argue that any exception to
the hearsay rule applied. Id. at *22.
This Court determined the trial judge did not abuse its discretion in
excluding the evidence over the State’s well-founded hearsay objection, holding
the defendant could not rely on the fundamental protections of due process to cure
the preventable error. Smith, 2010 WL 3787576 at *21. And the Court further
opined that the United State Supreme Court’s decisions in Chambers and Holmes do
not alter this principle. Id. at *20.
This Court should similarly overrule appellant’s suggestion that his
constitutional right to present mitigation evidence trumps the rules of evidence.
Appellant’s sixth and seventh points of error should be overruled.
42 REPLY TO APPELLANT’S EIGHTH, NINTH, TENTH & ELEVENTH ISSUES
In four points of error, appellant complains the trial court erred by allowing
the prosecutor to present improper closing argument during both phases of trial.
The eighth and ninth points of error address closing argument during the guilt
phase; the tenth and eleventh points of error address closing argument during the
punishment phase.
The Court of Criminal Appeals has determined that proper jury argument
generally falls within one of four areas: 1) summation of the evidence, 2) reasonable
deduction from the evidence, 3) answer to an argument of opposing counsel, and
4) plea for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App.
2008). A prosecutor may not use closing arguments to present evidence that is
outside the record. Freeman v. State, 340 S.W.3d 717, 728 (Tex. Crim. App. 2011).
Improper references to facts that are neither in evidence nor inferable from the
evidence are generally designed to arouse the passion and prejudice of the jury and,
as such, are inappropriate. Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim. App. 1990).
Eighth & Ninth Points of Error
In his eighth issue, appellant complains the prosecutor engaged in improper
argument when she injected facts outside the record during the guilt phase of trial.
Appellant specifically complains of this passage:
PROSECUTOR: Let me give you another example, another example of half the story. The SANE nurse. She came here and she said: Well,
43 there were no injuries. Wow, that must mean Obel Cruz-Garcia is guilty — is not guilty of capital murder according to the defense attorneys. No. Let’s talk about what else the SANE nurse said. And I want to say she said 95 percent — it was a very high percentage — of rape cases that she does SANE nurse examinations on —
DEFENSE ATTORNEY: Objection. Outside the record.
PROSECUTOR: — do not have any injuries.
THE COURT: Overruled. But I will remind the jury that you recall the testimony from the witness stand and that is — that will be your guide in your deliberations. Arguments of counsel is not evidence. (sic) (RR XXIII 80).
SANE nurse Gloria Kologinczok testified she performed several hundred
sexual assault exams during her tenure at St. Joseph’s Hospital. (RR XIX 40). She
performed the sexual assault exam of Diana on October 1, 1992. (RR XIX 48). She
did not see any signs of physical injury or trauma during this exam. (RR XIX 48).
Kologinczok testified that in most of the sexual assault exams she has performed,
she did not find physical injuries. (RR XIX 48-49).
Appellant is correct that the prosecutor mischaracterized the testimony
provided by the SANE nurse. There is nothing in the record to indicate
Kologinczok quantified her testimony with a statistic regarding the lack of
physical injuries in her examinations. Although the prosecutor’s use of the high
percentage could be inferable from Kologinczok’s testimony that “in most cases,”
she sees no physical injury. (RR XIX 48-49).
44 Regardless, error during closing argument is non-constitutional in nature,
and a non-constitutional error that does not affect substantial rights must be
disregarded. TEX. R. APP. P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692–93 (Tex.
Crim. App. 2000). To determine whether appellant’s substantial rights were
affected, this Court should balance the severity of the misconduct (i.e., the
prejudicial effect), any curative measures, and the certainty of conviction absent
the misconduct. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).
Viewing the State’s closing argument as a whole, this comment does not
appear to be a willful and calculated effort to deprive appellant of a fair and
impartial trial. The prosecutor’s comment was a very small portion of her entire
closing argument at the guilt phase. (RR XXIII 80). She did not emphasize the
comment and immediately moved on after the objection. (RR XXIII 81). Further,
viewing the record as a whole, appellant does not appear to have been prejudiced
by the comment, as the SANE nurse did testify she rarely sees physical injuries.
While the trial court did sua sponte remind the jury that closing arguments
were not evidence, there was no curative instruction. See Freeman, 340 S.W.3d at
728-729 (although not a curative instruction, court’s reminder to jury that
argument was not evidence weighed in favor of harmless error). The evidence
presented during the guilt phase demonstrated appellant was man who raped
Diana, kidnapped Adam and ordered his death. Given the brevity of the
45 prosecutor’s comment, the lack of prejudice, and the strength of the evidence
supporting appellant’s conviction, any error associated with this comment was
harmless. Freeman, 340 S.W.3d at 728-729. Appellant’s eighth issue should be
overruled.
In his ninth issue, appellant complains the prosecutor improperly injected
her personal beliefs regarding appellant’s guilt as a party during closing argument
in the guilt phase of trial. Appellant specifically complains about a comment the
prosecutor made after going through the party language in the charge:
PROSECUTOR: We ask you to find him guilty as a party because what we believed happened is the defendant directed and encouraged—
DEFENSE ATTORNEY: Objection to putting beliefs into the argument, Your Honor. It’s improper.
THE COURT: That will be overruled.
PROSECUTOR: What the evidence supports is that the defendant directed and encouraged Roger to kill the little boy. (RR XXIII 92).
Appellant complains the State’s argument went outside the record and
invited the jury to consider the prosecutor’s opinion. A prosecutor may not inject
her personal opinion in statements to the jury or imply a special expertise about a
contested factual matter. Johnson v. State, 698 S.W.2d 154, 167 (Tex. Crim. App.
1985). But it is well settled that the prosecutor may argue her opinion concerning
issues in the case so long as the opinion is based on the evidence in the record and
46 does not constitute unsworn testimony. McKay v. State, 707 S.W.2d 23, 37 (Tex.
Crim. App. 1985). And a prosecutor has some leeway to respond to particular
points made in defense counsel’s closing. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.
Crim. App. 2000).
Prior to this comment, defense counsel in closing argument stated, “And I
have to tell you, I don’t know what happened. I wasn’t there. The State wasn’t
there. You weren’t there. It’s a tough decision to try to reconstruct beyond a
reasonable doubt what happened.” (RR XXIII 63). The prosecutor’s comment
was clearly a response to this argument and was the prosecutor’s opinion of the
evidence presented in the trial. The prosecutor did not claim to possess any
special expertise of knowledge outside of the record. Therefore, the trial court did
not err in overruling appellant’s objection. See McKay, 707 S.W.2d at 37
(prosecutor’s opinion of the evidence was not improper since the prosecutor
didn’t argue possession of any special expertise constituting unsworn testimony);
see also Wilson v. State, 938 S.W.2d 57, 60 (Tex. Crim. App. 1996) (the invited
argument rule permits prosecutorial argument outside the record in response to
defense argument which goes outside the record).
Even assuming the comment was error, it was harmless because it did not
affect appellant’s substantial rights. TEX. R. APP. P. 44.2(b); Mosley, 983 S.W.2d at
259 (factors to consider include the severity of the misconduct, any curative
47 measures and the certainty of conviction absent the misconduct). When the
prosecutor stated what she thought happened that night, she was in essence
telling the jury the State’s theory of the case with regard to party liability.3
Although there was no curative instruction, the prosecutor immediately re-
phrased her argument, “What the evidence supports is that the defendant directed
and encouraged Roger to kill the little boy.” (RR XXIII 92). See Zarate v. State, 908
S.W.2d 544, 549-550 (Tex. App.—Fort Worth 1995, pet. ref’d) (prosecutor’s
references in closing argument regarding her personal opinion were harmless
because she immediately abandoned the line of reasoning when an objection was
made).
It is unlikely the use of the words “we believe” in this isolated instance
influenced the jury in such a manner to question appellant’s conviction, based
upon the wealth of evidence supporting his guilt. See Allen v. State, 149 S.W.3d 254,
261 (Tex. App.—Fort Worth 2004, pet. ref’d) (prosecutor’s improper act of
injecting his personal opinion during closing argument was harmless where
evidence of defendant’s guilt was ample).
Appellant’s ninth issue should be overruled.
3 It is common for practitioners to use terms like “I believe, we believe” and inadvertently provide their opinion when they are really just summarizing the evidence. Defense counsel did it twice during closing argument at the punishment phase. (RR XXVI 116, 130).
48 Tenth & Eleventh Points of Error
In his tenth issue, appellant similarly complains the prosecutor went
outside the record and injected her personal belief during her closing argument in
the punishment phase. The prosecutor summarized the evidence demonstrating
appellant ordered Aviles-Barroso (Roger) to kill Adam:
PROSECUTOR: Who is orchestrating this deal? Who is orchestrating all the criminal conduct that he’s involved in from all of the evidence that you’ve heard? Him. He is the boss. And that’s why when he told Roger to stab that little boy, he did. And Roger will pay the price for that when his turn comes, but don’t take the blame off of the man who told him to do it. Don’t excuse him. Because I will tell you right now, if it were up to Roger alone, Angelo would still be alive. (RR XXVI 163-164) (emphasis added).
Defense counsel objected the last line of that passage was outside of
the record. (RR XXVI 164-165). The trial court overruled his objection but
instructed the prosecutor to clear up her argument. (RR XXVI 165). The
prosecutor complied:
PROSECUTOR: What I’m saying to you is, is that the defendant was the boss. The defendant told Roger to kill the little boy… And without hesitation, he got out of the car and opened the door and he told Roger in Spanish: You know what you have to do. And guess what? Roger did it. (RR XXVI 165-166).
Appellant’s tenth point of error is waived. To complain on appeal about
improper jury argument, appellant must “show that he objected and pursued his
objection to an adverse ruling.” Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App.
1996). Prior to the passage appellant complains of in his tenth point of error, the
49 other prosecutor made virtually the same argument during closing argument and
appellant failed to object.
PROSECUTOR: You can answer based on what you know in the facts and evidence that Obel Cruz-Garcia is responsible for Angelo’s death. But for Obel Cruz-Garcia, don’t you know that Angelo Garcia, Jr. would be alive. Baby Angelo would be here but for Obel Cruz-Garcia. (RR XXVI 153) (emphasis added).
Appellant has waived this argument because he failed to object to all the
alleged objectionable arguments. TEX. R. APP. P. 33.1(a); Fuentes v. State, 991 S.W.2d
267, 273 (Tex. Crim. App. 1999) (a defendant must object each time the
impermissible argument is made, or the complaint is waived); Wilson v. State, 179
S.W.3d 240, 249 (Tex. App.—Texarkana 2005, no pet.) (same).
Even assuming the issue was preserved, the argument was proper as a
reasonable deduction from the evidence. Counsel is allowed wide latitude in
drawing inferences from evidence so long as they are reasonable, fair, legitimate
and offered in good faith. McFarland v. State, 845 S.W.2d 824, 840 (Tex. Crim. App.
1992). Further, even if the prosecutor’s statements could be construed as stating
her opinion, a prosecutor may argue her opinions concerning issues in the case so
long as the opinions are based on the evidence in the record and do not constitute
unsworn testimony. Penry v. State, 903 S.W.2d 715, 756 (Tex. Crim. App. 1995).
The jury learned from Santana, Diana and Linda Hernandez that appellant
was the leader of the drug operation and everyone took direction from him.
50 Evidence at trial demonstrated that appellant physically carried Adam out of the
apartment that night. Santana tried to convince appellant to take Adam back
inside, but he would not. There was absolutely no evidence that Santana or
Aviles-Barroso wanted to kidnap or kill Adam.
Appellant choose the location for Adam’s death and burial. He drove his co-
conspirators and Adam to Baytown and once in a secluded area, gave the order for
Aviles-Barroso to kill Adam. Appellant directed Santana and Aviles-Barroso to put
Adam’s body back in the car, and he drove to another rural area and instructed
them to submerge Adam’s body in the river.
The evidence revealed not only was appellant the leader of the drug ring, he
orchestrated the burglary, as well as Adam’s kidnapping and murder. The
prosecutor’s argument — that appellant is the reason Adam is dead — whether a
reasonable deduction of the evidence or the prosecutor’s opinion of the evidence,
was not improper. See Garcia v. State, 246 S.W.3d 121, 145 (Tex. App.—San Antonio
2007, pet. ref’d) (prosecutor’s statement regarding personal belief of guilt was
based upon the evidence and thus, not improper); Carlock v. State, 8 S.W.3d 717, 725-
726 (Tex. App.—Waco 1999, pet. ref’d) (prosecution’s arguments were properly
based on reasonable deductions from evidence and did not improperly invite jury
to speculate). Appellant’s tenth point of error should be overruled.
51 In his eleventh issue, appellant complains the trial court erred by denying
his motion for mistrial based upon improper jury argument during the punishment
phase.
PROSECUTOR: What else? They want to minimize the escape attempt. Justin talked to you about that. What do you think happened after he attempted to escape? You think he might have wound up in administrative segregation. I bet he did. (RR XXVI 171).
The defense attorney objected this was outside the record and the trial court
agreed. (RR XXVI 171-172). The trial judge sustained the objection and instructed
the jury to disregard the last statement made by the prosecutor. (RR XXVI 171-
172). Appellant moved for a mistrial which was denied. (RR XXVI 172).
A mistrial is the trial court’s remedy for improper conduct that is “so
prejudicial that expenditure of further time and expense would be wasteful and
futile.” Hawkins v. State, 135 S.W.3d 72, 76 (Tex. Crim. App. 2004). Only in extreme
circumstances, where the prejudice is incurable, will a mistrial be required. Id. at
77. When the trial court sustains an objection and grants an instruction to
disregard, but denies the motion for mistrial, the proper issue to address is
whether the refusal to grant the mistrial was an abuse of discretion on the part of
the trial court. Id. at 76-77. The question of whether a mistrial for improper
argument should have been granted involves most, if not all, of the same
considerations that attend a harm analysis. Id. at 77.
52 In determining whether improper jury argument warrants a mistrial, three
factors should be evaluated: 1) severity of the misconduct (the magnitude of the
prejudicial effect of the prosecutor’s remarks); 2) measures adopted to cure the
misconduct (the efficacy of any cautionary instruction by the judge); and 3) the
certainty of conviction absent the misconduct (the strength of the evidence
supporting the conviction). Ramon v. State, 159 S.W.3d 927, 929 (Tex. Crim. App.
2004), citing Mosley, 983 S.W.2d at 259. Since the argument occurred at
punishment, this Court analyzes the third factor with regard to the certainty of
the punishment assessed. Martinez, 17 S.W.3d at 693.
An officer from the Department of Corrections and Correctional Institution
of Guayama, Puerto Rico testified about appellant’s escape attempt while he was
incarcerated on October 10, 2003. (RR XXIV 118-128). He mentioned that
afterward, during the investigation of the escape attempt, appellant was
interviewed, and after he provided no information, the classification committee
determined his punishment would be another type of custody. (RR XXIV 128).
When appellant was booked into the Harris County Jail on February 12, 2010, he
was place into administrative segregation, as a high-risk inmate. (RR XXV 145).
The complained-of passage was a small part of the prosecutor’s closing
argument. The comment likely had little or no prejudicial effect. The jury was
aware of appellant’s escape attempt and inmate classification. The only possible
53 new fact was whether he had been punished for the escape attempt. With regard
to curative measures, the trial judge sustained appellant’s objection and gave a
prompt curative instruction telling the jury to disregard the State’s remark. See
Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999) (the appellate court should
presume the jury followed the instruction to disregard).
In support of special issue number 1 — whether appellant would commit
criminal acts of violence that would constitute a continuing threat to society —
the State presented evidence that appellant committed several other violent
crimes, including the murder of Saul Flores, the attempted murder of Manuel
Buten, the aggravated kidnapping of Andres Buten, the aggravated kidnapping of
William Martinez, the burglary and assault of Patiko as well as the sexual assault
of his girlfriend. In light of this powerful evidence, it is unlikely a comment
regarding appellant’s punishment for an escape attempt affected the jury’s
certainty on the punishment of death.
Given the brevity of the prosecutor’s comment, the lack of prejudice, the
curative measures, and the strength of the evidence supporting appellant’s
sentence, appellant has not shown the trial court abuse its discretion in denying
his motion for mistrial. See Green v. State, No. AP-76458, 2012 WL 4673756 *33
(Tex. Crim. App. 2012) (not designated for publication) (trial court did not abuse
its discretion in denying defendant’s motion for mistrial based on the prosecutor’s
54 improper remarks during closing argument regarding the defendant’s prison
disciplinary problems that were outside the record in the punishment phase of a
capital murder death case, noting the trial court sustained defense counsel’s
objection to the testimony and instructed the jury to disregard the testimony).
Appellant’s eleventh point of error should be overruled.
REPLY TO APPELLANT’S TWELFTH ISSUE
In his final point of error, appellant argues the trial court erred in denying
his motion for new trial. (CR 569-577).
Appellant contends his motion for new trial should have been granted due
to jury misconduct, specifically evidence of an outside influence during the
punishment deliberations. See TEX. R. APP. P. 21.3; White v. State, 225 S.W.3d 571
(Tex. Crim. App. 2007) (setting out three grounds for jury misconduct that can
potentially get a defendant a new trial: 1) deciding a verdict unfairly; 2) receiving
other evidence, unauthorized conversation, or being intoxicated while
deliberating; or 3) depriving the defendant of a fair trial).
Appellant complained of jury misconduct, in that one juror, Angela
Bowman, felt undue pressure to return her verdict, and the jury foreman, Matthew
Clinger, read Bible scriptures in the jury room, which constituted an outside
55 influence. (RR XXIX 4, 12, 22-26). In support of his allegations, appellant offered
three affidavits: one from his trial attorney Mario Madrid, defense investigator J.J.
Gradoni, and jury member Angela Bowman. (CR 569-577; RR XXXV 28-36;
Defense Exhibit Numbers 1, 2 & 3).
The State responded the affidavits were not admissible under Rule 606(b),
and even if they were, they did not demonstrate any conversation about the Bible
unduly influenced the jury, and the State offered affidavits in response to that
issue. (RR XXIX 11-18; RR XXXV 3-9; State’s Exhibit Numbers 1 & 2).
After review of appellant’s motion and the affidavits, the trial court denied
appellant’s motion for new trial. (RR XXIX 28). The court admitted appellant’s
three affidavits into evidence, as well as two provided by the State, but noted:
“And I find obviously by making those — by finding those affidavits are admissible that there is enough question as to whether this Bible production or Bible reading, whatever occurred, may be an outside influence. I’m not of the opinion that it was based on everything that’s been provided to me in the case law, but we’re going to send it up and see if the Court of Appeals — Court of Criminal Appeals agrees with us on that.
And so, based on that I’m not granting the Motion For New Trial.” (RR XXIX 28).
This Court reviews a trial court’s denial of a motion for new trial for an
abuse of discretion. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). In
conducting this review, this Court may not substitute its judgment for that of the
trial court; rather, it should decide only whether the trial court’s decision was
56 arbitrary or unreasonable. Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App.
2006). A trial court abuses its discretion in denying a motion for new trial only
when no reasonable view of the record could support the trial court’s ruling. Id.
A motion for new trial alleging jury misconduct must be supported by the
affidavit of a juror or other person who is in a position to know the facts. Trout v.
State, 702 S.W.2d 618, 620 (Tex. Crim. App. 1985). Texas Rule of Evidence 606(b)
prohibits post-verdict testimony about events or statements that occurred during
jury deliberations, the jurors’ mental processes, or how an improper influence
affected the jurors. TEX. R. EVID. 606(b); Colyer v. State, 428 S.W.3d 117, 123 (Tex.
Crim. App. 2014). It also prohibits such evidence by affidavit. Id. at 124. An
outside influence about which a juror may testify includes a discussion originating
from a source outside of the jury room and other than from the jurors themselves.
McQuarrie v. State, 380 S.W.3d 145, 154 (Tex. Crim. App. 2012).
Motion For New Trial Evidence
On July 19, 2013, the jury was in the second day of punishment deliberations.
(RR XXVI 176-178; RR XXVII 3-14). At approximately 3:20 p.m., jury member
Angela Bowman sent a note asking to speak to the trial judge. (CR 512). The trial
judge allowed this jury member to speak to her in the privacy of her chambers,
within the presence of the court reporter. (RR XXVII 3-4).
57 When the trial judge asked Bowman what she needed to relay to the court,
Bowman replied that she could not agree with other jurors on the special issues
and felt pressured. (RR XXVII 4-5). Bowman urged the judge to allow an
alternate to take her place. (RR XXVII 5). The judge educated Bowman on the
law in this regard, and Bowman replied that the jury was never going to come to
an agreement. (RR XXVII 6). Bowman also stated that she did not want to have
to stay another night. (RR XXVII 8). The judge instructed her to resume her
deliberations with the jury until otherwise directed by the court. (RR XXVII 6-8).
Bowman returned to the jury room and the jury returned its punishment verdict
on all three special issues at approximately 4:30 p.m. (CR 523-527).
One of appellant’s trial attorneys, Mario Madrid, provided an affidavit
where he summarized a conversation he had with Bowman later that night.
(Defense Exhibit Number 1). He stated Bowman was distraught over the
punishment deliberations and claimed she was pressured into changing her
decision. Id. She explained her decision was complicated by the fact that her
daughter was ill and she was unable to attend to her due to sequestration. Id.
Bowman also stated the jury foreman quoted from his Bible during the
deliberations, and she felt it influenced other jurors. Id.
Angela Bowman provided an affidavit as well and expanded on what she
initially told the trial judge and Mario Madrid. (Defense Exhibit Number 3).
58 Bowman claimed she received a phone call from her daughter’s camp counselor on
the first day of deliberations, July 18, 2013. Id. In her affidavit, she claims her
daughter had a fever and stated, “If it had not been for my concern over my
daughter’s health condition, I would have remained committed to voting for life in
prison.” Id. She also noted that the jury foreman took out his Bible when another
juror, Casey Guillotte, sought spiritual guidance to make her decision. Id.
Bowman did not claim the act of referencing the Bible caused her to change her
decision, she was clear, “I changed my verdict so I could go home and take care of
my child.” Id.
The defense also submitted an affidavit from their investigator, J.J. Gradoni.
(Defense Exhibit Number 2). His statement substantiates much of what was
included in the affidavits provided by Mario Madrid and Angela Bowman. Id. He
also added that he interviewed the jury foreman, Matthew Clinger, who admitted
he pulled out his personal Bible during deliberations and read from it. Id. Clinger
shared the fact that he looked to his Bible for spiritual guidance with Casey
Guillotte. Id.
The State presented two affidavits in its response to appellant’s motion for
new trial, in the alternative, if the trial court ruled the affidavits were admissible
under Rule 609(b). (RR XXIX 11).
59 The first was from Casey Guillotte. (States’ Exhibit Number 1). She stated
the jury came back on the first two special issues unanimously, then turned to the
third special issue—whether there was sufficient mitigation evidence to warrant
life in prison rather than the death penalty. Id. She said at this point, she asked the
entire jury about how each of them would come to terms with the verdict, from an
emotional standpoint. Id. Guillotte stated in response to her question, Clinger
retrieved his personal Bible from his belongings and read a passage to himself. Id.
He told her he found comfort with his decision because of a verse in the book of
Romans. Id. She stated Clinger did not read the Bible to the jury or direct any of
them to a particular passage, and it not influence her decision. Id.
The State also presented an affidavit from Matthew Clinger, the jury
foreman. (State’s Exhibit Number 2). He recalled when deciding the three special
issues, the jury agreed to focus their discussions on the facts and not emotions. Id.
Clinger remembered that Casey Guillotte, while staying true to this intention,
wondered aloud how they would all deal with the aftermath of their verdict. Id.
Several of the jurors shared how they dealt with their emotions and he told
Guillotte he found comfort in the Bible. Id. Although he pulled out his Bible for
himself, he did not read from it aloud, nor did Guillotte read it. Id. He
characterized the conversation as sharing advice for coping with the emotional
ramifications of their decision. Id.
60 Analysis
The record reveals the trial court admitted the affidavits in an abundance of
caution, but held the belief the affidavits were not admissible under Rule 606(b).
The judge specifically stated that she did not think a Bible production or Bible
reading (which ever occurred) constituted an “outside influence.” (RR XXIX 28).
This is legally correct based on the facts of this case.
This Court has considered the term “outside influence” when evaluating
whether evidence from jurors is admissible in a motion for new trial under Rule
606(b). In 2012, this Court decided McQuarrie v. State; the defendant in that case
was charged with sexual assault and he maintained it was consensual sex,
although the victim claimed she was drugged. McQuarrie, 380 S.W.3d at 147-148,
150-155. After one day of deliberating, the jury was unable to reach a unanimous
verdict, so they resumed deliberations the following day. Id. at 148. The next day,
one of the jurors shared information with the rest of the jury concerning internet
research he performed the night before, on the effects of date rape drugs, pertinent
to the case. Id. In holding the internet research qualified as an outside influence
for which the defendant should have been permitted to conduct a post-trial
inquiry, this Court stated, “A Rule 606(b) inquiry is limited to that which occurs
outside the jury room and outside of the juror’s personal knowledge and
experience.” Id. at 153.
61 In 2014, this Court clarified that personal pressures—such as fear of
inclement weather or concern about a child’s illness—are not “outside influences
under Rule 606(b). See Colyer, 428 S.W.3d at 119. Juror testimony on these subjects
is not admissible to show jury misconduct. Id. at 127-128 (rejecting defense
contention that weather and a call from child’s doctor constitute information
outside the jury room, since these are influences unrelated to the trial issues);
compare McQuarrie, 380 S.W.3d at 154-155.
A collective reading of this authority demonstrates why the affidavits in this
case are not admissible to show an “outside influence” under Rule 606(b). (CR
12). First, Bowman never asserted the bible reading affected her decision. She
claimed the stress over her daughter’s illness caused her to change her vote. This
falls squarely within the holding of Colyer and her affidavit should not be
admissible in support of appellant’s new trial. See Colyer, 428 S.W.3d at 127-128
(rejecting defendant’s interpretation of “outside influence,” which could include a
juror that has second thoughts about his vote and then retroactively claim that a
personal pressure, such as his job, marriage, or children, made him apprehensive
and eager to conclude the deliberations).
And the religious conversation in the jury room was characterized as one of
comfort, from one jury member to another, on dealing with the emotions of
participating in this trial and assessing a difficult punishment. The foreman did
62 not read the Bible out loud to the jury, but to himself. It was not a source of new
evidence pertaining to the issues in this case, as in McQuarrie. It was the foreman’s
personal belief that he shared during deliberations, which is not a permissible
challenge to the verdict. See Hines v. State, 3 S.W.3d 618, 623 (Tex. App.—Texarkana
1999, pet. ref’d) (a juror’s injection of his own personal experiences, knowledge, or
expertise is not considered an “outside influence,” because those representations
emanate from inside the jury). And even assuming the record demonstrated the
foreman was using his religious beliefs to coerce other jurors, it does not
constitute an “outside influence.” Id. (coercive influence of one juror on the rest of
the panel does not constitute an “outside influence”).
Therefore, the defense affidavits relating to this incident are not admissible
under Rule 606(b) to support his motion for new trial. Compare Oliver v. Quaterman,
541 F.3d 329, 340 (5th 2008) (jury’s Bible consultation as a group constituted an
external influence on deliberations where the jury did not simply discuss their
own understanding of religious law and morality or merely quote the Bible, but
instead compared the facts of their case to a specific passage in the Bible that
taught capital punishment was appropriate for murder).
Even assuming the affidavits are admissible in this case, appellant has not
shown the trial court abused its discretion in denying his motion for new trial. In
2008, this Court decided Lucero v. State; the defendant in that case was charged
63 with capital murder and claimed on appeal he was entitled to a new trial because
the jury foreman read scripture from the Bible during punishment deliberations.
Lucero v. State, 246 S.W.3d 86 (Tex. Crim. App. 2008). Evidence in that case
revealed that the jury foreman read a passage from the Bible that lasted
approximately 2-3 minutes during the hours-long deliberations. Id. at 92. This
Court declined to decide whether the jury foreman’s reading of the Bible was an
“outside influence,” and denied the defendant’s motion for new trial because the
affidavits were devoid of any evidence that the scripture reading affected the jury’s
punishment verdict of death. Id. at 95.
The affidavits in this case similarly contain no evidence that references to
the Bible affected any juror’s punishment decision.4 (State’s Exhibit Number 1;
Defense Exhibit Number 3). Thus, appellant has not shown he should have been
granted a new trial, even when considering this evidence. See Oliver, 541 F.3d at
341-344 (jury’s decision to impose the death penalty, despite the fact they
consulted an external influence, was harmless due to evidence from the jurors that
it did not prejudice their decision). 4 Appellant also claims the trial court erred by not having a hearing on his motion. (Appellant’s brief 114-115). The defense was asked specifically about any other evidence that would show a juror was influenced by the bible reference, and he acknowledged there was nothing more than the affidavits presented. (RR XXIX 24). Lucero is instructive on this issue, finding the lack of evidence from any juror showing the bible reading affected their verdict supported the trial court’s decision not to hold a hearing. Lucero, 246 S.W.3d at 94-95; see also Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003) (defendant is entitled to an evidentiary hearing on his motion for new trial if the motion and accompanying affidavits raise matters not determinable from the record, upon which the accused would be entitled to relief).
64 Appellant’s twelfth point of error should be overruled. See TEX. R. APP. P.
21.3; Tate v. State, 414 S.W.3d 260, 264 (Tex. App.—Houston [1st Dist.] 2013, no
pet.) (mere showing of outside influence, by jury’s foreman research of defendant’s
criminal history, was insufficient to establish juror misconduct, where the record
contained no evidence that this knowledge affected the jury’s decision).
CONCLUSION
It is respectfully submitted that this Court affirm appellant’s conviction and
sentence.
/s/ Jessica Akins JESSICA AKINS Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 755-5826 TBC No. 24029415 akins_jessica@dao.hctx.net
65 CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument has been mailed to
the following address:
Wayne T. Hill Lisa McMinn Attorney at Law State Prosecuting Attorney 4615 Southwest Frwy, Suite 600 P.O. Box 13046 Houston, Texas 77027 Austin, Texas 78711 wthlaw@aol.com Lisa.McMinn@SPA.texas.gov
/s/ Jessica Akins JESSICA AKINS Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 755-5826 TBC No. 24029415 akins_jessica@dao.hctx.net
CERTIFICATE OF COMPLIANCE
This is to certify that this computer-generated document has a word count of 16,843 words, based upon the representation provided by the word processing program that was used to create the document.
/s/ Jessica Akins JESSICA AKINS Assistant District Attorney Harris County, Texas
Date: 4/15/2015
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