Suniga, Brian

• Court: Court of Criminal Appeals of Texas
• Decided: February 1, 2017
• Docket: AP-77,041
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-77,041

BRIAN SUNIGA, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL FROM CAUSE NO. 2012-434109 IN THE 140 TH DISTRICT COURT LUBBOCK COUNTY

Y EARY , J., delivered the opinion of the Court in which K EASLER, H ERVEY, A LCALA, R ICHARDSON, N EWELL, K EEL, and W ALKER, JJ., joined. K ELLER, P.J., concurred in the disposition of point of error number 2 and otherwise joined.

OPINION

In May of 2014, a jury convicted Appellant of capital murder. T EX. P ENAL C ODE

§ 19.03(a)(2). Pursuant to the jury’s answers to the special issues set forth in the Texas Code

of Criminal Procedure, Article 37.071, sections 2(b) and 2(e), the trial judge sentenced Suniga — 2

Appellant to death. T EX. C ODE C RIM. P ROC. art. 37.071, § 2(g).1 Direct appeal to this Court

is automatic. Art. 37.071, § 2(h). After reviewing Appellant’s seventeen points of error, we

find them to be without merit. Consequently, we affirm the trial court’s judgment.

STATEMENT OF FACTS

Appellant was charged with intentionally causing the death of David Rowser while

“in the course of committing or attempting to commit the offense of robbery of Jonathan

Rowser” on December 26, 2011.2 The record reflects that David and his younger brother,

Jonathan, both worked at a pizza restaurant in Lubbock. At around 10:00 p.m. on the date

of the offense, they were preparing to close the restaurant. David was cleaning the

bathrooms, while Jonathan was manning the cash register. The last three customers were

sitting at a table. Their server was refilling their drinks at a soda fountain near the cash

register. Other servers were cleaning the restaurant or talking with Jonathan as they waited

for the customers to leave.

Two men entered the restaurant through the front door and approached Jonathan at

the cash register. Jonathan and other witnesses believed that the men were there to place a

last-minute take-out order until both men pointed guns at Jonathan and shouted at him,

demanding money from the cash register. One man was Hispanic, had tattoos on his arms

1 Unless otherwise indicated, all references to Articles refer to the Code of Criminal Procedure. 2 Subsequent references to the victims will be by first name because they share the same last name. Suniga — 3

and neck, and was wearing “whiteout” contact lenses that blocked out all the color of his

irises. The other man was also Hispanic and had some facial hair as well as a star-shaped

tattoo on his face. He was shorter, heavier-set, and darker-complected than the first man.

Both men wore “hoodies” and baggy pants.

When Jonathan did not immediately open the cash register, one of the men grabbed

the tip jar that was sitting on the counter near the register and both of them headed toward

the door. David then emerged from cleaning the men’s bathroom. The man wearing the

whiteout contacts yelled, “That’s what you get,” as he shot David three times. David fell to

the floor.

Jonathan ran to David, who was bleeding profusely and coughing up blood. David

asked Jonathan to help him. Jonathan applied pressure to two gunshot wounds on David’s

chest. He yelled at David, trying to keep him awake, but David soon lost consciousness.

Jonathan kept David’s head and torso elevated, trying to help him breathe until first

responders arrived. Paramedics loaded David into an ambulance and took him to University

Medical Center. In the ambulance, they suctioned blood from David’s lungs and inserted an

endotracheal tube to keep his airway open. They placed David on a cardiac monitor,

performed chest compressions, and “started an IV.” However, David had no breath, pulse,

or heart activity. He was pronounced dead in the hospital’s trauma care center.

The Lubbock Police Department published descriptions of the suspects based on

witness interviews. On the morning of December 27, a woman who worked at the front desk Suniga — 4

of a motel where Appellant and his accomplice, Sesilio Lopez Jr., had been staying, heard

a news story about the robbery-murder. Based on the suspects’ descriptions, she believed

that Appellant and Lopez were the culprits. She called the motel manager, who then called

the “Crime Line” number and provided police with Appellant’s and Lopez’s names and a

description of their vehicle.

Based on this information and details provided in other calls to the “Crime Line,” the

Lubbock Police Department released a statewide “attempt to locate” bulletin describing the

suspects and their vehicle and identifying Appellant and Lopez by name. About twenty-four

hours after the offense, Taylor County sheriff’s deputies stopped Appellant and Lopez

because their vehicle matched the details provided in the bulletin. Upon confirming their

identities and the capital murder warrants from Lubbock County, deputies arrested them and

seized the vehicle.

PRE-TRIAL MATTERS

In point of error one, Appellant asserts that the trial court violated the Sixth and

Fourteenth Amendments to the United States Constitution “when it failed to prevent [him]

from being represented by counsel laboring under a conflict of interest.” He states that, once

he brought a potential conflict of interest to the trial court’s attention, the court was obligated

to inquire into whether a conflict of interest existed. He argues that the trial court did not

“make a meaningful inquiry” into his concerns or take adequate steps to ascertain whether

the risk of a conflict of interest merited the appointment of new counsel. Suniga — 5

Appellant further complains that, even after the trial judge was informed that

Appellant had filed a grievance against the entire Office of the Regional Public Defender for

Capital Cases (“Public Defender’s Office”) and had expressed dissatisfaction with

“everyone” representing him, the judge stated that there was “no need to worry about it” and

again failed to conduct an adequate inquiry. Appellant also urges that, if the trial court’s

failure to conduct an adequate inquiry resulted in a record that contains insufficient evidence

of a conflict, then this Court should not resolve this issue without first abating the appeal and

remanding for the trial court to make a proper inquiry. Additionally, Appellant asserts that

the error requires automatic reversal because it is impossible to determine the degree of

prejudice arising from representation by counsel who had a conflict of interest.

The record reflects that the trial court held a pre-trial hearing on January 29, 2014, a

few days after defense counsel informed the judge that Appellant had contacted the director

of the Public Defender’s Office to say that he wanted another attorney to represent him. The

judged asked Appellant if he wanted to say anything to the court, and Appellant answered:

Like [defense counsel] said, I’m here trying to seek new representation. I have a couple of issues with one of my defense members. I feel like his best interest is more probably with the State than with mine. We’ve talked on a couple of occasions, and he’s told me things that aren’t true. He’s also told me that he feels that I could be guilty; therefore, I don’t feel like his interests are -- his best interests are with me, I feel they might be with the State, your Honor.

The trial judge asked Appellant, “What other conflicts do you have other than what you just

stated?” Appellant responded: Suniga — 6

Well, your Honor, I mean, I just -- I don’t feel comfortable going into the courtroom with somebody who might think that I’m guilty, or has been telling me things that aren’t true. That’s -- I mean, we’re talking about life and death here in my situation.

The trial judge denied the request, stating that Appellant wanted to replace defense counsel

with an attorney who was not qualified to be on the list of attorneys eligible for capital

murder case appointments. Defense counsel and Appellant both clarified that counsel, and

not Appellant, had suggested the names of substitute counsel. The judge again denied

Appellant’s request. At the end of this hearing, the judge and parties confirmed that they

were scheduled to begin “general voir dire of the jury pool” on March 13, 2014.

On April 16, during individual voir dire, defense counsel made an ex parte record,

“out of an abundance of caution because of some of the confidentiality rules,” that the Public

Defender’s Office had received a letter from the Office of Disciplinary Counsel. The letter

stated that Appellant had filed a grievance against defense counsel, the substance of which

named all the attorneys on Appellant’s defense team and the director of the Public

Defender’s Office, and that the grievance had been summarily dismissed. Counsel stated that

if the judge thought the matter should be addressed in front of the State, he was willing to

repeat this information. The judge stated, “I don’t think there’s any need to worry about it.”

Voir dire then continued.

Once a possible conflict of interest is brought to the trial court’s attention by either

a pre-trial motion or trial objection, the court has a constitutional obligation to take adequate

steps to ascertain whether the risk of the conflict of interest is too remote to warrant remedial Suniga — 7

action. Dunn v. State, 819 S.W.2d 510, 519 (Tex. Crim. App. 1991) (citing Holloway v.

Arkansas, 435 U.S. 475, 484 (1978)). “[I]n evaluating Sixth Amendment claims, ‘the

appropriate inquiry focuses on the adversarial process, not on the accused’s relationship with

his lawyer as such.’” Wheat v. United States, 486 U.S. 153, 159 (1988). “[T]he essential aim

of the Amendment is to guarantee an effective advocate for each criminal defendant rather

than to ensure that a defendant will inexorably be represented by the lawyer whom he

prefers.” Id. A trial court has no duty to search for counsel agreeable to the defendant. King

v. State, 29 S.W.3d 556, 565-66 (Tex. Crim. App. 2000). Further, a defendant cannot

manipulate his constitutional right to counsel in a manner that throws the trial process into

disarray. Id.

In this case, Appellant has not provided a record cite to a pre-trial motion to withdraw

or a trial objection, and we have not located such a motion or objection in our independent

review of the record. Rather, it appears that, as the result of an off-the-record communication

between defense counsel and the trial court, the trial court held a hearing to ask Appellant

about any potential conflict. Assuming without deciding that this off-the-record

communication was sufficient to trigger the trial court’s obligation to inquire and to preserve

this matter for appeal, we hold that the trial court made an adequate inquiry.

Whether the trial court’s inquiry into an alleged conflict is adequate depends on the

circumstances. It is not always necessary for the trial court to hold a hearing concerning an

alleged conflict when the defense does not request one, or when a motion to withdraw does Suniga — 8

not advance a valid basis for the asserted conflict. See, e.g., Malcom v. State, 628 S.W.2d

790, 791-92 (Tex. Crim. App. 1982) (stating that the trial court was not required to hold a

hearing on a motion to withdraw where the defendant did not request one); see also Calloway

v. State, 699 S.W.2d 824, 830-31 (Tex. Crim. App. 1985) (declining to find that the trial

court neglected its duty to hold a hearing when the motion to withdraw did not advance a

valid basis for the asserted conflict). Although no formal motion to withdraw was filed in

this case, given that defense counsel suggested the names of replacement counsel, we will

look to case law addressing motions to withdraw as instructive.

Generally, when a motion to withdraw merits further inquiry, the trial court’s inquiry

is adequate if it provides the movant with an opportunity to explain the perceived conflict and

his reasons for requesting new counsel. See, e.g., King, 29 S.W.3d at 565-66 (concluding

that, when the hearing on the motion to withdraw gave the defendant the opportunity to

expand on his reasons for dissatisfaction with counsel, but he failed to do so, the trial court

did not abuse its discretion in refusing the motion); Viges v. State, 508 S.W.2d 76, 76-77

(Tex. Crim. App. 1974) (concluding that, when the trial court held a conference with the

defendant and defense counsel, but the only reasons urged for withdrawal were the

defendant’s refusal to cooperate and his desire not to be represented by that attorney, the

court did not err in denying the motion).

In this case, the trial court made an adequate inquiry by holding a hearing that

provided Appellant with an opportunity to express his reasons for his dissatisfaction with Suniga — 9

counsel. Appellant asserted only that defense counsel had told Appellant “things that aren’t

true” and “that he feels I could be guilty.” When the trial court asked Appellant if he had any

additional conflicts, Appellant rephrased his prior assertions. Notably, defense counsel did

not ask to withdraw or state that a conflict of interest might impair his representation of

Appellant. See Cuyler v. Sullivan, 446 U.S. 335, 347 (1980) (“[T]rial courts necessarily rely

in large measure upon the good faith and good judgment of defense counsel.”).

Appellant’s stated concerns at the hearing – that defense counsel had expressed the

view that Appellant might be guilty and had told him unspecified “things that aren’t true” –

were not valid grounds for removal. See, e.g., King, 29 S.W.3d at 566 (concluding that the

defendant’s assertion that defense counsel “is in disagreement of my innocence, and on

several occasions, has acknowledged that he plans to do no more in my defense than try to

ensure that I do not receive a death sentence,” was not a valid ground for withdrawal). Under

the circumstances, the trial court was not required to take any additional steps to ascertain

the extent of the alleged conflict.

Further, the trial court did not abuse its discretion in refusing to order defense

counsel’s removal. The trial court has discretion to determine whether defense counsel

should be allowed to withdraw from a case. King, 29 S.W.3d at 566; see also Solis v. State,

792 S.W.2d 95, 100 (Tex. Crim. App. 1990). Personality conflicts and disagreements

concerning trial strategy are typically not valid grounds for withdrawal. King, 29 S.W.3d at

565-66. Neither are a defendant’s statements to the effect that he is dissatisfied with, and no Suniga — 10

longer wants to be represented by, counsel. Viges, 508 S.W.2d at 76-77; Rogers v. State, 488

S.W.2d 833, 834 (Tex. Crim. App. 1973). Further, a criminal defendant’s filing of a civil

action against his court appointed attorney is not a per se conflict of interest which warrants

the attorney’s disqualification. Dunn, 819 S.W.2d at 519.

The trial court may also consider the timing of a motion to withdraw based on an

alleged conflict in determining whether to grant it. See, e.g., King, 29 S.W.3d at 566

(concluding that the trial court did not abuse its discretion in refusing a motion alleging only

personality conflicts and disagreements over strategy, when counsel had worked on the case

for several months and had made significant preparations for trial, such that granting the

motion could have delayed the trial); Green v. State, 840 S.W.2d 394, 408 (Tex. Crim. App.

1992) (holding that the court did not abuse its discretion in denying a motion filed “just over

one month” before jury selection, when the case had already been reset once to accommodate

defense counsel, and counsel’s opinion concerning his inability to contact the defendant was

“speculative at best”); Gonzales v. State, 532 S.W.2d 343, 345 (Tex. Crim. App. 1976)

(concluding that the trial court did not err in refusing the defendant’s request for another

attorney when he expressed dissatisfaction with defense counsel immediately before jury

selection and did not specify how counsel’s representation was inadequate).

In this case, as discussed above, the concerns stated by Appellant during the hearing

were not valid grounds for removal. Further, defense counsel did not allege a conflict or

express support for Appellant’s request for new representation. Also, Appellant raised the Suniga — 11

alleged conflict approximately six weeks before general jury voir dire was scheduled to

begin, although he had been represented by the same attorneys for almost two years. Under

the circumstances, the trial court did not abuse its discretion by refusing Appellant’s request

for new representation.

Appellant also complains that the trial court should have removed defense counsel

upon learning that Appellant had filed a grievance with the Office of Disciplinary Counsel.

However, defense counsel did not move to withdraw at that time, and the grievance had

already been summarily dismissed. Moreover, individual voir dire was well underway. Cf.

Perry v. State, 464 S.W.2d 660, 664 (Tex. Crim. App. 1971) (finding no error when the trial

court declined to appoint new counsel after the defendant filed a civil suit against defense

counsel, reasoning that, “if [the defendant’s] contention were upheld, a defendant could

effectively delay or prevent an appeal (or trial)” by suing defense counsel). We conclude that

the trial court did not abuse its discretion by denying Appellant’s request for new

representation after the initial inquiry or by failing to sua sponte remove counsel during

individual voir dire. Point of error one is overruled.

In point of error two, Appellant complains that the trial court violated his right to be

“personally present at the trial” under Article 33.033 when it conversed with Peggy White,

3 Article 33.03 provides, in relevant part:

In all prosecutions for felonies, the defendant must be personally present at the trial, . . . provided, however, that . . . , when the defendant voluntarily absents himself . . . after the jury has been selected when trial is before a jury, the trial may proceed to (continued...) Suniga — 12

a seated juror, in his absence.4 He also contends that the trial court violated his rights under

the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution

because White was biased against criminal defendants.5 At trial, Appellant challenged White

for cause because (1) the trial court conducted an ex parte inquiry with her in violation of

Article 33.03, and (2) her comments during the inquiry demonstrated that she was “bias[ed]

against criminal defendants,” so that her service on the jury would violate the Fifth, Eighth,

and Fourteenth Amendments to the United States Constitution. Appellant contends on appeal

that the trial court erred when it denied his challenge for cause on these bases. This point of

error raises more than one ground for relief, and therefore it is multifarious. See Rule T EX.

R. A PP. P. 38.1; Jenkins v. State, 493 S.W.3d 583, 605 n.50 (Tex. Crim. App. 2016).

However, we will address it in the interest of justice.

The record reflects that White was seated on the jury on April 15, 2014. During her

voir dire, White indicated that she understood the presumption of innocence and would

(...continued) its conclusion. When the record in the appellate court shows that the defendant was present at the commencement, or any portion of the trial, it shall be presumed in the absence of all evidence in the record to the contrary that he was present during the whole trial. 4 We will not consider Appellant’s assertion, made for the first time in his reply brief, that the trial court’s inquiry violated Article 28.01. See TEX . R. APP . P. Rule 33.1 (hereafter “Rule 33.1”)(stating that error is not preserved unless the record shows that appellant made the complaint to the trial court). Unless otherwise specified, all references to Rules refer to the Texas Rules of Appellate Procedure. 5 We will not consider Appellant’s assertion, made for the first time on appeal, that the trial court’s denial of his challenge for cause based on White’s alleged bias violated the Sixth Amendment. See Rule 33.1. Suniga — 13

afford this presumption to Appellant. She stated that she had four sons and that “if anything

happened I would want people to give them the benefit of the doubt before judging them.”

White also indicated that she worked in the courthouse as a clerk for “Justice of the Peace

Precinct Four.” She also revealed that, ten or fifteen years earlier, she had ministered inside

a prison with her church group. She described the experience of entering the prison as “real

sad when you got past the second gate,” and stated that the group “had to be very careful and

cautious” while they were there.

When the prosecutor asked White if she recalled seeing a sign that said, “Hostages

will not be allowed,” as she passed the second gate, defense counsel objected. After White

stepped out of the courtroom, defense counsel asserted that the prosecutor’s reference to a

sign about hostage-taking played on White’s fears and was an attempt “to heighten some idea

that prison . . . is a dangerous place.” The trial court sustained the objection “as far as talking

about hostage taking,” but added that the prosecutor could question White about “her

thoughts” concerning her experience inside the prison.

When White returned, and before anyone asked her a question, White related that she

had also been inside a county jail with a ministry led by a friend of hers who was a former

convict. The prosecutor then returned to the topic of White’s experience of ministering

inside the prison and asked her if “[a]nything about that situation would have an influence

on the way [she would] decide these issues in this case.” White answered, “No.” Suniga — 14

At the end of questioning, White stepped out of the courtroom. Defense counsel

challenged her for cause, alleging that the prosecutor had made an improper reference to the

prison sign about hostage-taking. Counsel argued that this reference created “the possibility

that [the] juror has some bias in her mind about the [applicable] law . . . . related to her own

personal experience in the TDC[J]6 unit.” The trial court denied the challenge for cause.

Defense counsel declined to use a peremptory strike against White. The judge then called

White into the courtroom and informed her that she had been selected as a juror. He advised

her that the trial would probably start in a few weeks and reminded her not to read or listen

to anything about the case.

On April 28, White was sworn in as a juror when the trial court called the first nine

jurors to swear them in and discuss whether they had viewed recent media coverage of the

case. Around that time, the trial court received information about White that it deemed to

warrant further inquiry.7 On April 30, 2014, the judge told the parties, “With regard to Mrs.

White, I’ll check on something and let y’all know.” Then, on the morning of May 1, 2014,

the judge spoke with White in the courtroom:

THE COURT: The reason I wanted to talk to you is they indicated to me that you had seen the Defendant in the basement.

JUROR WHITE: No, I have not seen the Defendant in the basement.

6 We surmise that “TDC” refers to the Texas Department of Criminal Justice (“TDCJ”), which was formerly named the Texas Department of Corrections (“TDC”). 7 The record does not reflect the exact source, timing, or content of the communications that led to the further inquiry. Suniga — 15

THE COURT: Anywhere?

JUROR WHITE: Anywhere.

JUROR WHITE: I have not ever seen the Defendant. I’ve never seen anyone in real clothes in the basement. Only in the -- like the jumpsuit --

THE COURT: Uniform?

JUROR WHITE: -- stuff and the shackles. I’ve never seen anyone in real clothes.

THE COURT: Okay.

JUROR WHITE: Did they -- have they seen me?

THE COURT: I don’t know. The deputies -- I thought they had said that you had said you had seen him.

JUROR WHITE: I have not.

JUROR WHITE: Now, I asked them if he had ever been there. I asked Sharon if he had ever been there. And she said, “Yes, he’s -- he comes every day.”

And I said, “Oh, my goodness. I didn’t know that.” But I haven’t been to the basement but a couple of times in the last few weeks.

JUROR WHITE: And I have never seen anyone in regular clothes. But, now, when I’m in the -- my room, we close the door when anyone is going by. And if anyone -- if I should be caught in the hallway, I usually move back against the wall and put my head down, because I don’t want to make eye contact with any of those people, because I don’t want them to -- you know, it’s kind of scary -- it’s scary enough to have to work down there knowing they’re there. But, no, I’ve never seen him.

THE COURT: Okay. That’s all I need to know then. Suniga — 16

JUROR WHITE: Okay.

THE COURT: Everything else okay?

JUROR WHITE: Yeah.

THE COURT: I suspect we’re going to have a jury within the next few days, I’m hoping. So --

JUROR WHITE: All right. No. No, I’ve not had any --

JUROR WHITE: No. That would scare me to death. I’m sorry.

THE COURT: Well, we don’t want to do that.

(JUROR WHITE OUT)

THE COURT: Are y’all ready?

[DEFENSE COUNSEL]: No, sir.

(BRIEF RECESS)

Immediately following this inquiry and recess, the parties resumed individual voir dire

of prospective jurors. The remaining jurors were seated that afternoon. The trial court

denied Appellant’s challenge for cause to the twelfth juror. Appellant, having exhausted his

peremptory strikes, requested an additional strike. The trial court denied this request and

seated the twelfth juror, whom Appellant identified as objectionable.

One of Appellant’s defense attorneys, who had not been present during the trial

court’s conversation with White, then requested a transcript of that inquiry: Suniga — 17

[DEFENSE COUNSEL 2]: Your Honor, I have one issue I’d like to put on the record if I could with regard to Juror White. It’s my understanding that things were put on the record about this juror at some point concerning potential issues she may have had for service -- service on the jury. And at this point, your Honor, even if it’s just a rough draft copy that Defense would request a copy of those matters that were put on the record with regard to juror Peggy White.

THE COURT: I have no objection to that being furnished to you.

[DEFENSE COUNSEL 2]: And given that, your Honor, I all [of] the sudden cannot identify what juror number she was.

THE COURT: I think she’s 58.

[PROSECUTOR]: Yes, sir.

[DEFENSE COUNSEL 2]: Given that she was by my records, your Honor, she was the sixth seated juror.

THE COURT: That’s correct.

[DEFENSE COUNSEL 2]: I would ask the Court to allow me to come back and revisit this issue of peremptory strikes after I’m able to review the rough draft of the transcript.

[DEFENSE COUNSEL 2]: I don’t have any objection to proceeding, but I would like the right to come back and address that.

THE COURT: That’s fine.

[DEFENSE COUNSEL 2]: Thank you, your Honor.

On May 2, 2014, having reviewed the transcript of the court’s conversation with

White, defense counsel challenged White for cause: Suniga — 18

[DEFENSE COUNSEL 2]: Your Honor, with regard to the seated juror -- I believe it was the sixth seated juror, Ms. White. This morning, after review of the transcript that’s part of the record in this case . . . , we’re going to challenge that juror, Ms. White, for cause. She’s a seated juror at this point. We’re going to challenge her for cause in that we believe the Court’s inquiry with her ex parte is a violation of 33.03 of the Code of Criminal Procedure requiring the Defendant to be present at trial.

Additionally, your Honor, in the transcript, she indicates -- there is a discussion-- the record will speak for itself, but there is a discussion about her passing, or being in the hallway -- apparently, in the basement of this building with inmates from the jail. And toward the end of that -- of that discussion with the Court, she . . . says, “All right. No. No. I’ve not had any.” The Court replied, “Okay.” She said, “No. And that would scare me to death.” The implication of the juror’s statements to the Court are that being around a defendant scares her to death, and -- or being -- or passing folks in the basement hallway would scare her to death. A juror who expresses that view, your Honor, cannot afford a defendant the presumption of innocence if she’s scared to death of them.

Further, she would not be able to assess the credibility of the Defendant that she’s scared to death of who might take the stand and testify. And we believe that that establishes bias against criminal defendants in this juror’s mind. And based upon that record -- I believe in the last sentence she has to be making reference to my client, your Honor. And so she has a specific bias against [Appellant] that’s impermissible under Texas law. A bias cannot be collateral. It would also violate [Appellant’s] rights under the 5th Amendment, the 8th Amendment and 14th Amendment, your Honor. Particularly due process under the 5th Amendment.

And so we would ask to challenge the juror at this point on those two bases. That would be -- that would be the first thing, your Honor, is to challenge the juror on that basis.

THE COURT: The Court was of the opinion that she was making reference to the fact that the deputies tell the employees on any floor where any defendants are being taken to stand aside, and not be in the hallway where they may have more than one defendant who is being transferred from one place to another. Suniga — 19

[DEFENSE COUNSEL 2]: That’s the -- that’s the only challenge for cause I have against the juror, are those two bases, your Honor.

THE COURT: The Court will deny your challenge.

[DEFENSE COUNSEL 2]: And for purposes of the record, Judge, I would also ask -- the Defense at this point is out of peremptory strikes. I would ask for a peremptory strike, specifically, to exercise against seated Juror White, Juror No. 52 --

THE COURT: 58.

[DEFENSE COUNSEL 2]: 58? We would request an additional peremptory to exercise against that juror.

THE COURT: Any response, [prosecutor]?

[PROSECUTOR]: Judge, I probably need to consult with the lead counsel on this before I put anything on the record with regards to this. If you could give me five minutes, I may have a response.

After consulting with the lead prosecuting attorney, the prosecutor responded:

[PROSECUTOR]: And, your Honor, the State would oppose and would object to the Court giving the Defense an additional peremptory for Ms. White. This is a big -- in our opinion, a big to[-]do about nothing. In that this allegation that the Court went and talked to Ms. White about was based on false information from the beginning, and I’m not sure that that’s ever been put on the record. But based on --

THE COURT: I would say that’s probably true.

[PROSECUTOR]: And that’s what the Court had told [defense counsel] and I a couple of days ago, that it was based on false information. She never in that transcript told the Court that she is scared of this Defendant.

[Defense counsel] is insinuating that from her comments, but that’s not what she said. In addition, the Defense had peremptories available both at the time that Ms. White was taken on voir dire, as well as when this information came to light they still had peremptories available, and they chose to use them Suniga — 20

on other jurors. And, specifically, they used strikes -- their extra strikes on Juror[s] 102 and 104. And so we would object to the Court allowing an additional peremptory strike for her.

THE COURT: The Court is going to deny your motion at this time to -- for a peremptory to strike Ms. White. The Court will deny your challenge to cause as to Ms. White.

[DEFENSE COUNSEL 2]: Yes, your Honor. For purposes of the record, the Defense would identify Juror White as an objectionable juror, in addition to Juror 105, Mr. Hanfeld.

Under Article 33.03, an accused’s right to be present at his trial is unwaivable until

such a time as the jury “has been selected.” Miller v. State, 692 S.W.2d 88, 91, 93 (Tex.

Crim. App. 1985). A defendant must be present and may not voluntarily absent himself until

after voir dire. Adanandus v. State, 866 S.W.2d 210, 217-20 (Tex. Crim. App. 1993).

Article 33.03 specifies that, when the record in the appellate court shows that the defendant

was present at the commencement, or any portion of the trial, it shall be presumed “in the

absence of all evidence in the record to the contrary” that he was present during the whole

trial. We have not discussed the meaning of this phrase, “absence of all evidence . . . to the

contrary,” but a plain reading of this phrase is that the presumption applies only if there is

no record evidence to the contrary.

Appellant asserts on appeal that neither he nor defense counsel was present for the

trial court’s conversation with White on May 1. Appellant asserts that the record contains

evidence that he was absent, in that “defense counsel asserted the issue of [Appellant’s]

absence from the court’s colloquy with Ms. White, without contradiction from the Court or Suniga — 21

State.” Presumably, Appellant is referring to defense counsel’s assertion, as part of his

challenge for cause, that the court’s inquiry of White violated Article 33.03 which requires

the defendant’s presence at trial.

Contrary to Appellant’s assertions, the record contains evidence that at least one of

his defense attorneys was present during the trial court’s conversation with White, inasmuch

as defense counsel responded negatively when the judge asked the parties if they were ready

to resume voir dire. However, the State did not challenge defense counsel’s later assertion

that the trial court’s conversation with White was conducted in Appellant’s absence, and the

trial court did not expressly address that assertion. This may be sufficient to overcome the

presumption that Appellant was present, even though it does not conclusively prove that

Appellant was actually absent. See Thieleman v. State, 187 S.W.3d 455, 457 (Tex. Crim.

App. 2005) (noting that a trial counsel’s statement, “when made in open court without being

contradicted or disputed by either opposing counsel or the trial court, provides some evidence

of the fact of occurrence that is being asserted”) (emphasis in original); but cf. Bridge v.

State, 726 S.W.2d 558, 572-73 (Tex. Crim. App. 1986) (declining to infer a defendant’s

absence from a hearing on jury excuses from defense counsel’s suggestion that the appellant

need not be present, when the record on appeal did not reflect whether the hearing was held

and whether the defendant was present for it).

In addition to it being unclear whether Appellant was absent during the trial court’s

conversation with White, it is also unclear whether this inquiry constituted voir dire Suniga — 22

proceedings within the meaning of Article 33.03. See, e.g., Lawton v. State, 913 S.W.2d 542,

548-50 (Tex. Crim. App. 1995) (holding that Article 33.03 does not necessarily apply to

every pre-trial hearing that concerns a prospective juror). In Lawton, the trial judge initiated

an in camera hearing after a prospective juror reported to the bailiff that she had received a

telephone call from the jail. We held that the in camera hearing did not constitute voir dire

proceedings within the meaning of Article 33.03. Id. We observed that the meeting lacked

the traditional adversarial elements of a voir dire proceeding. Id. We noted that the

prospective juror was dismissed at the request of both parties, and, although she briefly

described the incident at issue, she was not instructed or examined in the traditional sense of

a voir dire examination. Id. We concluded that Article 33.03 was not intended to govern the

peculiar situation presented in Lawton, and, therefore, the in camera meeting did not violate

Article 33.03. Id.

The proceeding at issue in this case bears some similarities to the proceeding in

Lawton. Both the prosecutor and defense counsel were present, but neither party requested

an opportunity to question White during the inquiry. Further, immediately after White

testified, the parties resumed individual voir dire without commenting on the inquiry.

Unlike the prospective juror in Lawton, however, White did not personally report an

out-of-court incident to an agent of the trial court; instead, she was called into the courtroom

to address concerns raised by a third party. In addition, even though the parties did not adopt

adversarial stances while the trial court questioned White, they did so later (in Appellant’s Suniga — 23

presence), when defense counsel challenged White for cause and requested an additional

peremptory strike. The State opposed both the challenge and the additional strike, and the

trial court denied both.

Even if we assume that the trial court’s conversation with White violated Article

33.03, Appellant has not shown that the trial court erred by declining to grant Appellant’s

challenge for cause on this basis. Article 33.03 does not provide, and we have not held, that

the only appropriate remedy for an Article 33.03 violation is to disqualify the venire person

who was questioned in the defendant’s absence. Cf. Maldonado v. State, 998 S.W.2d 239,

248 (Tex. Crim. App. 1999) (“A trial court does not abuse its discretion for failing to grant

a challenge for cause on the basis of a reason not expressly enumerated in Article 35.16.”).

Thus, it is not at all clear that the trial court erred by denying Appellant’s Article 33.03-based

challenge for cause.

Further, assuming arguendo that the trial court’s conversation with White violated

Article 33.03, the record does not show that Appellant was harmed. We have not squarely

addressed the harm standard applicable to an Article 33.03 violation since Rule 44.2 replaced

Rule 81(b)(2) in 1997.8 Observing that Article 33.03 is more protective of a defendant’s

right to be present than the Sixth Amendment is, several intermediate appellate courts have

8 Rule 81(b)(2) provided that, if the appellate record revealed error in the proceedings below, the reviewing court would reverse the judgment unless the court determined beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment. See VanNortrick v. State, 227 S.W.3d 706, 709-10 (Tex. Crim. App. 2007). That standard corresponds to the current standard for constitutional error, Rule 44.2(a), but differs from Rule 44.2(b)’s “substantial rights” standard applicable to non-constitutional error. Id. See TEX . R. APP . P. Rule 44.2. Suniga — 24

determined whether an Article 33.03 violation is constitutional error by focusing on whether

a defendant’s absence from voir dire proceedings was voluntary. See, e.g., Tracy v. State,

14 S.W.3d 820, 826-27 (Tex. App.—Dallas 2000, pet. ref’d) (explaining that a defendant’s

voluntary absence during jury voir dire did not constitute a Sixth Amendment violation but

did constitute a violation of Article 33.03, such that Rule 44.2(b)’s standard of harm for non-

constitutional error applied). If the record did not reflect that the defendant’s absence was

voluntary, then courts employed the harm standard applicable to constitutional violations.

See, e.g., Sumrell v. State, 326 S.W.3d 621, 624 (Tex. App.—Dallas 2009, pet. dism’d)

(declining to presume that the defendant’s absence was voluntary when the record showed

that he was in custody and so his presence or absence was not within his control); Bledsoe

v. State, 936 S.W.2d 350, 351 n.2 (Tex. App.—El Paso 1996, no pet.) (declining to presume

voluntariness from a silent record).

Here, we cannot determine whether Appellant was actually absent during the trial

court’s conversation with White, much less whether his alleged absence was voluntary. In

any event, the record does not reflect that Appellant was harmed under the standard

applicable to constitutional error. See, e.g., Jasper v. State, 61 S.W.3d 413, 423 (Tex. Crim.

App. 2001) (when faced with non-constitutional and constitutional error, we will apply the

standard of harm for constitutional error). The “presence of a defendant is a condition of due

process to the extent that a fair and just hearing would be thwarted by his absence, and to that

extent only.” Routier v. State, 112 S.W.3d 554, 577 (Tex. Crim. App. 2003) (quoting Snyder Suniga — 25

v. Massachusetts, 291 U.S. 97, 107-08 (1934)). When a defendant’s constitutional right to

be present during the trial has been violated, we consider whether the defendant’s presence

bears a reasonably substantial relationship to his opportunity to defend himself. See

Adanandus, 866 S.W.2d at 219 (citing Snyder, 291 U.S. at 105-08); Cooper v. State, 631

S.W.2d 508, 512 (Tex. Crim. App. 1982). If it does not, then any error is harmless.

Adanandus, 866 S.W.2d at 219.

The defendant’s right to be present ensures that he is able to “give advice or

suggestion” to defense counsel and to exercise control over the conduct of the trial. See, e.g.,

Snyder, 291 U.S. at 106; see also Bledsoe, 936 S.W.2d at 352. A defendant’s presence

during jury voir dire can bear a reasonably substantial relationship to his opportunity to

defend himself in several ways. See Sumrell, 326 S.W.3d at 625. Voir dire provides

prospective jurors with an opportunity to view a defendant and discover whether they know

him. Id. It also provides a defendant with an opportunity to view the prospective jurors and

determine whether he knows any of them and whether they are biased for or against him. Id.

Also, a defendant may assist defense counsel by watching prospective jurors’ reactions to

counsel’s questions. Id.; see also Tracy, 14 S.W.3d at 827 (stating that the effect of the

defendant’s right to be present during voir dire is the ability to assist defense counsel in the

exercise of peremptory challenges).

In this case, Appellant was present during White’s voir dire. Therefore, by the time

of the later inquiry, he and White had already had the opportunity to view each other and Suniga — 26

determine whether they were acquainted. During the later inquiry, the parties did not seek

to question White, and the trial court made no rulings. In addition, the trial court provided

the defense with a transcript of the trial court’s conversation with White, giving Appellant

some opportunity to learn what had transpired. See, e.g., Adanandus, 866 S.W.2d at 217

(holding that, after eight venire members were examined in voir dire proceedings by the

prosecutor and defense counsel in the defendant’s absence, his absence was “essentially

‘undone’” and Article 33.03 was satisfied when the trial court and parties repeated those

examinations in the defendant’s presence).

Further, Appellant does not assert, and the record does not demonstrate, that he had

any information, not available to his attorneys or the court, that would have affected the

court’s inquiry. Cf. Jasper, 61 S.W.3d at 424 (concluding that no harm resulted from the

defendant’s absence while the trial court heard jury excuses because, even if he had been

present and objected to the excuses, the trial court would have been well within its discretion

in overruling the objections). Nor does Appellant describe any way in which his absence

from the trial court’s conversation with White affected his trial strategy or contributed to his

conviction. See also Adanandus, 866 S.W.2d at 217 & n.3 (noting that the defendant did not

argue that his absence during voir dire or the re-examination in his presence of venire

members who had previously been questioned in his absence disrupted his trial strategy); see

also Lawton, 913 S.W.2d at 550 & n.4 (concluding that the defendant’s absence from an in

camera meeting with a prospective juror “made no contribution to his conviction or Suniga — 27

punishment”). In addition, even assuming that Appellant was not present during the trial

court’s conversation with White, he was present when defense counsel challenged White for

cause and requested an additional strike. We are persuaded beyond a reasonable doubt that

Appellant’s absence from the trial court’s conversation with White did not affect his

opportunity to defend himself and did not contribute to his conviction or punishment.

Next, we consider Appellant’s assertion that the trial court erroneously denied his

challenge for cause on the ground that White was biased, in violation of the Fifth, Eighth,

and Fourteenth Amendments to the United States Constitution. To demonstrate White’s bias,

Appellant points to her answers during the trial court’s May 1st inquiry. Specifically,

Appellant complains that White stated that working near the holding cell, and particularly

encountering detainees in the basement hallway, was “scary.” She indicated that “That” –

perhaps referring to the possibility of encountering Appellant in the basement hallway –

would “scare [her] to death.” Defense counsel challenged White on the grounds that her

responses indicated that she was biased against Appellant and against criminal defendants

generally, such that she would not be able to presume Appellant innocent or find Appellant

credible if he testified.9

9 Appellant adds on appeal that White’s responses demonstrated that she had prejudged Appellant’s future dangerousness. We will not consider this last allegation because Appellant did not raise it before the trial court. See Rule 33.1; see also Layton v. State, 280 S.W.3d 235, 239 (Tex. Crim. App. 2009) (“A specific objection is necessary to inform the trial judge of the issue and basis of the objection[.]”). Suniga — 28

At the time of the inquiry, White had been seated as a juror. By the time Appellant

challenged White for cause based on bias, all twelve jurors had been selected and many of

them, including White, had been sworn in. See Granados v. State, 85 S.W.3d 217, 236 (Tex.

Crim. App. 2002); Quinn v. State, 958 S.W.2d 395, 403 (Tex. Crim. App. 1997). However,

the jury had not yet been impaneled, and voir dire to select an alternate juror was ongoing.

Based on this peculiar sequence of events, we will assume without deciding that it was

permissible for Appellant to bring a challenge for cause at this time.

Where a party wishes to challenge a potential juror for bias, that party must

demonstrate, through questioning, that the potential juror lacks impartiality. Buntion v. State,

482 S.W.3d 58, 84 (Tex. Crim. App. 2016). (citing Wainwright v. Witt, 469 U.S. 412, 423

(1985)). The proponent of the challenge for cause must show that the prospective juror

understood the requirements of the law and could not overcome her prejudice well enough

to follow the law. Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim. App. 2010). Before a

prospective juror may be excused for cause on the basis of bias or prejudice, the law must

be explained to her and she must be asked whether she can follow that law regardless of her

personal views. Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002).

On appeal, in determining whether a trial court abused its discretion when it overruled

a challenge for cause during voir dire, we examine the voir dire of the venire member as a

whole and decide whether the record shows that her convictions would interfere with her

ability to serve as a juror and uphold her oath. Buntion, 482 S.W.3d at 84. We review a trial Suniga — 29

court’s ruling on a challenge for cause with considerable deference because the trial court

is in the best position to evaluate the venire member’s demeanor and responses. Newbury

v. State, 135 S.W.3d 22, 32 (Tex. Crim. App. 2004). We will reverse a trial court’s ruling

on a challenge for cause “only if a clear abuse of discretion is evident.” Colburn v. State,

966 S.W.2d 511, 517 (Tex. Crim. App. 1998).

In this case, White did not directly express bias against Appellant. Rather, her

statements during voir dire indicated that she understood the presumption of innocence and

would afford this presumption to Appellant. Her statements during the later inquiry

expressed a generalized fear of encountering pre-trial detainees, perhaps including Appellant,

in the courthouse basement.

As the party challenging White for cause, Appellant had the burden of proving by a

preponderance of the evidence that White lacked impartiality. However, Appellant never

requested, during the trial court’s conversation with White or the subsequent hearing when

defense counsel challenged her for cause, an opportunity to question White about whether

she could overcome her prejudice well enough to follow the law. Without more, White’s

generalized fear of encountering detainees in the basement did not disqualify her. See Ladd

v. State, 3 S.W.3d 547, 560 (Tex. Crim. App. 1999) (finding no abuse of discretion or

violation of due process when the trial court denied a challenge for cause against a venire

member who stated that he “leaned” in the direction of believing that the defendant was

guilty because the defendant had been arrested and indicted, but who also stated that he could Suniga — 30

follow the law, hold the State to its burden of proof, and presume the defendant innocent);

Jones v. State, 982 S.W.2d 386, 389 (Tex. Crim. App. 1998) (stating that jurors must not

have extreme or absolute positions regarding the credibility of any witness, but “complete

impartiality cannot be realized as long as human beings are called upon to be jurors”); see

also Bell v. State, 724 S.W.2d 780, 797 (Tex. Crim. App. 1986) (quoting Irwin v. Dowd, 366

U.S. 717, 722 (1961)) (“To hold that the mere existence of any preconceived notion as to the

guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a

prospective juror’s impartiality would be to establish an impossible standard.”).

The trial court did not abuse its discretion in concluding that White’s responses during

the inquiry did not demonstrate that she could not afford Appellant the presumption of

innocence or impartially judge his credibility if he chose to testify. Point of error two is

overruled.

In his third point of error, Appellant asserts that the trial court’s erroneous denial of

his motion to change the venue of his trial in light of prejudicial pre-trial publicity violated

the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. He

complains that extensive pre-trial media coverage projected a “particular view of the

evidence” that prejudiced the community against him. Therefore, he contends, it was highly

improbable that an impartial jury could be selected.

The record shows that individual jury voir dire commenced on March 31, 2014. By

the time court recessed for the day on April 23rd, nine jurors had been selected. At a hearing Suniga — 31

on the morning of April 24th, defense counsel stated that he intended to file a motion to

transfer venue. Counsel explained that he had seen a news article the previous evening on

the web site for KCBD, the NBC affiliate in Lubbock. Counsel also stated that he had

recorded KCBD’s 10:00 p.m. television news, which featured a similar story. The trial judge

stated that he had not seen the article but he had seen the television news story, and he noted

that it featured photographs of Appellant and his co-defendant. Defense counsel expressed

concern that the online article purported to be about gangs, but that most of it was actually

about Appellant and the instant case. He noted that the article included the content of

witness statements in the case and details about the aftermath of the shooting. Counsel

asserted that some of this information could only have come from law enforcement officers

associated with the case.

Defense counsel asked the court to enter a “gag order” specifically instructing the

parties, the Lubbock Police Department, and the Lubbock County Sheriff’s Office not to

discuss the case. The trial court agreed to enter a “gag order.” The judge added that

“Rhonda,” who we surmise was the court coordinator, would contact the people who had

already been selected for the jury and tell them not to “read anything regarding that story.”

He noted that, although he had instructed each selected juror not to read or watch any news

accounts about the instant case, the story at issue was not about this particular offense but

rather was a report about a gang that included a discussion of this offense. The judge

requested that the prosecutor instruct the Sheriff, the Chief of Police, and the Lubbock-area Suniga — 32

Department of Public Safety (“DPS”) Director that their employees were not to communicate

with the media about the instant case, and the prosecutor advised that he would send them

an e-mail that day.

That afternoon, the trial court entered a “News Media Communication Gag Order.”

In relevant part, the order recited that, due to information the Court had received about the

April 23rd news stories, the Court ordered persons involved in the investigation and

prosecution of this case to refrain from further communication with all news media regarding

this case or the defendants. The order applied to “all members of the Lubbock Police

Department, Lubbock County Sheriff’s Department, Department of Public Safety for the

State of Texas, the Lubbock County District Attorney’s office, and the attorneys/investigators

for the defendant.” The prosecutor informed the court and defense that the Lubbock Chief

of Police had acknowledged receipt of his e-mail and had indicated that he would instruct all

of his officers concerning the gag order, but the prosecutor had not yet received a response

from the Sheriff or the DPS Director.

Appellant filed his first motion for change of venue on April 25, 2014, citing Article

31.03;10 his due process right to be tried by a fair and impartial jury under the Fifth, Sixth,

10 Article 31.03 provides, in relevant part, that a change of venue may be granted on the written motion of the defendant for either of the following causes:

1. That there exists in the county where the prosecution is commenced so great a prejudice against him that he cannot obtain a fair and impartial trial; and

2. That there is a dangerous combination against him instigated by influential (continued...) Suniga — 33

Seventh, and Fourteenth Amendments; his right to effective assistance of counsel under the

Sixth Amendment; and the prohibition against cruel and unusual punishment under the

Eighth and Fourteenth Amendments. He reiterated in this motion that a news article had

appeared on KCBD’s web site on the evening of April 23, 2014, titled, “New DPS report

highlights gang activity in Lubbock.” He explained that the article included photographs of

Appellant and his co-defendant and discussed the prevalence of the Tango Blast gang and

its dangerous activities in Lubbock. Appellant asserted that, although the article purported

to be a news story about gang activity, its second sentence began a discussion of the instant

case, including crime scene evidence and witness statements to police. Appellant argued that

the article went on to state that Appellant and his co-defendant, who were awaiting trial on

charges of capital murder in this case, were both believed to be associated with Tango Blast.

Appellant also explained in this motion that a story on KCBD’s 10:00 p.m. television

news had discussed the same subject of gang activity in Lubbock. That story made no overt

reference to the instant case, but it featured photographs of Appellant and his co-defendant.

Additional versions of that story appeared online and in later broadcasts. One such version

included video footage from the crime scene, photos of the victim, and photos of Appellant

and his co-defendant. The Texas Tech University newspaper also published a version of this

story on its website.

(...continued) persons, by reason of which he cannot expect a fair trial. Suniga — 34

Appellant noted in the motion that, as of the April 25th filing date, “individual

sequestered voir dire is in progress and nine jurors have been selected.” He moved the court

to dismiss those nine jurors and the remainder of the venire and to change venue to a county

outside the coverage area of the Lubbock County news media. Alternatively, he moved the

court to inquire whether the nine selected jurors had seen any media coverage concerning this

case since March 13, 2014 (the date these jurors completed their questionnaires), and to give

counsel an opportunity to question them regarding any effect that the media coverage had had

on them.

Appellant attached two affidavits from Lubbock County residents to the motion. The

affiants recited that there existed in Lubbock County “so great a prejudice against . . . the

said[] defendant[] that he cannot obtain a fair and impartial trial of said cause in Lubbock

County.” Appellant also attached print-outs of two of the online articles, as well as DVDs

of KCBD’s 10:00 p.m. television news story and another television news story. In response,

the State filed three affidavits from Lubbock County residents which recited that, in each

affiant’s opinion, “there is not so great a prejudice that prevents [Appellant] from receiving

a fair trial in Lubbock,” and Appellant “can receive a fair trial in Lubbock County.”

At a hearing on April 28, 2014, the trial judge explained to the parties that he would

swear in the nine selected jurors and ask them as a group whether anyone had heard or read

anything in the news during the preceding week. If any of them responded affirmatively, he Suniga — 35

would question those jurors individually. The parties assented to this procedure and the

jurors entered the courtroom.

The judge then swore in the nine jurors and explained to them that a prospective juror

had seen a recent news story and, based on that story, had formed an opinion concerning

Appellant’s guilt or innocence. The judge repeated his admonition to the jurors that they

should not view any media coverage about the case. He then stated that, “with regard to the

news coverage,” he could either sequester the jury until the case was complete or grant a

change of venue. He noted that there had been little news coverage of the case before jury

selection began, but that the coverage from the previous week might “change things.” He

expressed the hope that he would not need to order a change of venue. The judge then asked

the jurors as a group if anyone had seen anything on the news the previous week. No one

responded affirmatively. He reminded them again to avoid media coverage of the case.

After the jurors left the courtroom, a member of the defense team testified that he had

discussed the motion for change of venue with Appellant on April 25th and that Appellant

had signed it. Defense counsel then argued that the recent media coverage had prejudiced

Appellant by linking him to a dangerous gang and by discussing the crime scene and witness

statements. Defense counsel asserted that it was also apparent that law enforcement officials

had been providing information about the case to the media. The prosecutor responded that

she believed that a fair and impartial jury could still be selected. The trial court denied the

motion for change of venue, but stated that, if it became apparent “that more than just one Suniga — 36

person on the venire panel has viewed or read any of this, the Court will reconsider its

ruling.” The judge reiterated that “Rhonda” was contacting prospective jurors and reminding

them “not to read or view anything in the news.”

On May 1st, the twelfth juror was selected and sworn, and voir dire of prospective

alternate jurors commenced. At a hearing on May 2nd, defense counsel stated that he was

renewing the motion to transfer venue and that he intended to file a supplemental motion due

to additional media coverage. He noted that the May 2nd edition of the Lubbock Avalanche

Journal featured a front-page article about gang tattoos and paraphernalia. He pointed out

that a Lubbock police officer who had been designated by the State as an expert witness in

this case was quoted in the article, discussing the Tango Blast gang and gang tattoos.

Counsel acknowledged that the news article did not refer to Appellant but noted that it

referred to Tango Blast, which had been connected to Appellant in previous news coverage.

Counsel also noted that KCBD, the same news outlet that had run the previous online and

television news stories, had run a story on the 6:00 p.m. television news that “rehashed” the

trial court’s denial of his motion for change of venue and featured video footage of Appellant

being escorted by police officers while handcuffed and wearing an orange jumpsuit. The

prosecutor asserted that the Lubbock Avalanche Journal story about gang tattoos was not tied

to the instant case and, therefore, the officer’s comments that appeared in it did not

necessarily violate the trial court’s gag order. The trial judge stated that he would take up

the matter when Appellant filed his supplemental motion for change of venue. Suniga — 37

On May 5, 2014, Appellant filed a second motion for change of venue.11 In it, he re-

urged his previous motion and described two subsequent news stories, which included

comments provided by law enforcement officers, one of whom was designated as an expert

witness in the instant case. Appellant asserted that the officers’ comments violated the gag

order. He reiterated in the motion that a KCBD television news story discussed the denial

of the first motion to change venue and featured video footage of Appellant being escorted

by officers while handcuffed12 and wearing an orange jumpsuit. Appellant asserted that these

news stories and the officers’ comments further prejudiced his ability to receive a fair trial.

Appellant requested that the court dismiss all twelve seated jurors and the remainder of the

venire and change venue to a county outside the coverage area of the Lubbock County news

media. Alternatively, Appellant requested that the court continue the case until a later time

when the impact of the prejudicial media coverage would be diminished.

This second motion was accompanied by affidavits of two Lubbock County residents

that were substantively the same as the affidavits Appellant had attached to his first motion.

11 Due to concerns about media coverage during voir dire, defense counsel began “bench- filing” pleadings directly with the judge, rather than filing them with the clerk’s office, at around the same time counsel requested the “gag order.” In his reply brief, Appellant acknowledges that the second motion for change of venue was “bench filed” on May 5, although it was not file-stamped until May 12. 12 Although defense counsel used the term, “handcuffed” during the hearing, he used the term, “shackled,” in his written second motion. Broadly speaking, a handcuff may be a type of shackle, but to the extent that counsel intended to convey in his written motion that Appellant was visibly restrained by something in addition to handcuffs, our independent review of the video confirms that Appellant was handcuffed, with his hands in front of him. A belly chain connected the handcuffs to his waist. Appellant was not otherwise visibly restrained. Suniga — 38

Appellant also provided a DVD of the KCBD television news story. That story primarily

concerned the trial court’s gag order and Appellant’s motion for change of venue. It

displayed some of the same photographs that had been featured in the earlier stories, as well

as a brief, silent video of Appellant in an orange jumpsuit, handcuffed, being escorted from

a police vehicle by two police officers.

Appellant also provided photocopies and a print-out of the Lubbock Avalanche

Journal news article, titled, “Lubbock/Local expert says face tattoos growing trend among

gangs.” That article quoted a Lubbock police officer, Lieutenant Billy Koontz, who stated

that prison members of the West Texas gang, which was part of the Tango Blast network,

sometimes used Texas Tech’s Double T logo, or a five-pointed star, as a face tattoo denoting

their gang affiliation. The article stated that Koontz had “on many occasions” testified as an

expert in gang tattoo identification for the District Attorney’s office. As an expert witness,

Koontz would tell the jury what a defendant’s tattoos “stand for.” Koontz noted that not all

inmates who obtained gang tattoos were gang members or hardened criminals. On the other

hand, Koontz stated, a defendant’s gang tattoos did not “help when facing a jury,” and

prosecutors would use a defendant’s gang involvement against him at punishment. The

article also quoted the Lubbock County Detention Center’s chief deputy, Cody Scott, who

stated that an inmate’s tattoos would be catalogued at the jail and used for identification.13

13 Neither Koontz nor Scott testified at Appellant’s trial. Suniga — 39

An alternate juror was selected and sworn on May 5th. At a hearing on May 6th, the

trial court denied Appellant’s second motion for change of venue, noting that the court had

reviewed all of the evidence and that nothing in the Lubbock Avalanche Journal story was

connected to Appellant or his co-defendant. Voir dire for alternate jurors then continued, but

at the end of the day, the parties agreed to go to trial with only one alternate juror. The guilt-

innocence phase began on May 13th. That day, before the jury entered the courtroom,

defense counsel re-urged both motions to transfer venue, and the trial court again denied

them.

A proceeding may be transferred to a different district at the defendant’s request if

extraordinary local prejudice will prevent a fair trial. See Skilling v. United States, 561 U.S.

358, 378 (2010). A trial court may grant a change of venue if the defendant establishes that

“there exists in the county where the prosecution is commenced so great a prejudice against

him that he cannot obtain a fair and impartial trial,” or that “there is a dangerous combination

against him instigated by influential persons, by reason of which he cannot expect a fair

trial.” Art. 31.03(a); see Gonzalez v. State, 222 S.W.3d 446, 449 (Tex. Crim. App. 2007).

We review a trial court’s ruling on a motion for change of venue for an abuse of discretion.

Freeman v. State, 340 S.W.3d 717, 724 (Tex. Crim. App. 2011). If the trial court’s decision

falls within the zone of reasonable disagreement, it will be upheld. Buntion, 482 S.W.3d at

71. Suniga — 40

To justify a change of venue based upon media attention, a defendant must show that

the publicity was pervasive, prejudicial, and inflammatory. Salazar v. State, 38 S.W.3d 141,

150 (Tex. Crim. App. 2001). Widespread publicity alone is not inherently prejudicial.

Gonzalez, 222 S.W.3d at 450; see also Renteria v. State, 206 S.W.3d 689, 709 (Tex. Crim.

App. 2006). “Prominence does not necessarily produce prejudice, and juror impartiality, we

have reiterated, does not require ignorance.” Skilling, 561 U.S. at 381 (emphasis in original).

Extensive knowledge of the case or defendant in the community as a result of pre-trial

publicity is not sufficient without some showing of prejudicial or inflammatory coverage.

Gonzalez, 222 S.W.3d at 450; Faulder v. State, 745 S.W.2d 327, 338-39 (Tex. Crim. App.

1987). “A defendant must demonstrate an ‘actual, identifiable prejudice attributable to

pretrial publicity on the part of the community from which members of the jury will come.’”

Renteria, 206 S.W.3d at 709 (quoting DeBlanc v. State, 799 S.W.2d 701, 704 (Tex. Crim.

App. 1990)). We generally consider news stories that are accurate and objective in their

coverage not to be prejudicial or inflammatory. Gonzalez, 222 S.W.3d at 451.

In examining whether pre-trial publicity is prejudicial and inflammatory, a trial court

may take three matters into consideration: 1) the nature of the publicity; 2) any evidence

presented at a change of venue hearing; and 3) testimony received from venire members at

voir dire. Id. We afford great deference to the trial judge, who heard the responses of the

jurors during voir dire, because he was in a better position than we are to resolve issues Suniga — 41

involving testimony and other questions of fact by observing the demeanor of witnesses and

scrutinizing their veracity face-to-face. See id. at 452.

The record reflects that the main subject of the April 23rd news stories was a recently-

released DPS report about gang violence in Texas. The KCBD online story described the

Tango Blast gang as “one of the most predominant and dangerous gangs in Texas,” and

quoted a DPS sergeant who stated that the gang had been active in Lubbock for some time.

The story mentioned that Appellant and his co-defendant, who were charged with capital

murder following a restaurant robbery, were believed to be members of Tango Blast. The

story briefly summarized the facts of the offense and featured photographs of Appellant and

his co-defendant. One KCBD television news story repeated the content of this online story

and featured additional photographs of Appellant, his co-defendant, and the victim. Another

television news story concerning the DPS report did not expressly discuss the offense or

Appellant, but the accompanying graphics included Appellant’s and his co-defendant’s

photographs and names. These news stories are the type of accurate and objective coverage

that we generally consider not to be prejudicial or inflammatory. See Gonzalez, 222 S.W.3d

at 451.

The May 2nd Lubbock Avalanche Journal story did not refer to Appellant or this case,

but generally discussed gangs and gang tattoos in an informative manner. Cf. Salazar, 38

S.W.3d at 150 (holding that the trial court did not abuse its discretion by denying a change

of venue when most of the complained-of publicity did not mention the Appellant’s case Suniga — 42

specifically and was informative rather than prejudicial). Additionally, the May 2nd KCBD

news story reported the denial of Appellant’s motion to transfer venue in an informative

manner. The brief video of Appellant was not prejudicial or inflammatory. See, e.g., Bell,

938 S.W.2d at 46 (noting that the fact that many people in the community knew appellant had

received two death sentences which had been overturned did not merit a change of venue

because such knowledge did not amount to per se prejudice).

Appellant identifies a number of venire members who acknowledged during voir dire

that they had heard news reports about this case. However, Appellant identifies only three

venire members who stated that, as a result of these news reports, they had formed opinions

about Appellant’s guilt. None of the three was selected for the jury. On April 28, 2014, the

trial judge asked the nine members of the jury who had already been selected and

admonished not to view news coverage of the case whether they had seen “anything on the

news” during the previous week. None of them responded affirmatively. The trial court

again admonished them not to view any news coverage, and Rhonda contacted the remaining

venire members to instruct them not to view news coverage of the case. The twelfth juror

was selected on May 1st, and, like the jurors who had been selected before him, he was

admonished to avoid news coverage of the case. There is no evidence in the record that any

juror was aware of the May 2nd news coverage.

Appellant nevertheless asserts that he was entitled to a change of venue as a matter

of law because the State did not file affidavits controverting his second motion for change Suniga — 43

of venue and the trial court did not, he alleges, have a hearing on the second motion. See,

e.g., McManus v. State, 591 S.W.2d 505, 516 (Tex. Crim. App. 1979) (explaining that a

defendant would be entitled to a change of venue as a matter of law if no controverting

affidavit was filed by the State because, absent controverting evidence, there would be no

issue of fact to resolve). However, as discussed above, by the time Appellant filed his second

motion, the parties had already presented controverting evidence and the trial court had

already held a hearing on Appellant’s first motion. The State’s failure to re-file county

resident affidavits responding to the evidence that Appellant presented in support of his

second motion did not render Appellant’s newly-presented evidence “uncontroverted.” Cf.

id.

Further, the record reflects that the trial court heard Appellant’s second motion for

change of venue and his arguments, although the “hearing” was somewhat informal. See id.

(noting that, where the State failed to file controverting affidavits, a defendant may waive

his right to a change of venue as a matter of law if he proceeds to a hearing without objecting

that there is no issue of fact to be tried). The trial court concluded that the Lubbock

Avalanche Journal story was not connected to Appellant. The trial judge did not expressly

address Appellant’s argument concerning the KCBD television news story that contained

video footage of him in an orange jumpsuit and handcuffs, but the judge stated that he had

considered “all of the evidence” before he denied the second motion. Suniga — 44

Appellant also argues that the news coverage in this case was prejudicial and

inflammatory because the headlines concerning Texas gang activity did not announce that

the news stories that followed would discuss him or this case. Therefore, he asserts, even

well-intentioned venire members and jurors might have begun viewing those news stories

before discovering that the stories concerned this case. It is true that the two KCBD news

stories that prompted Appellant’s first motion for change of venue followed a pattern of

discussing the Texas DPS gang report – the main focus of the story – and then pivoting to

Appellant’s and other Lubbock-area criminal cases that might be gang-related. This pattern

could have operated to expose Appellant’s alleged gang affiliation contemporaneously with

the revelation that the story concerned Appellant, so that the viewer would not discover that

the story concerned Appellant until some information about him had already been conveyed.

However, the news stories were accurate and objective in their coverage, and the information

that they conveyed – that Appellant was believed or alleged to belong to a dangerous gang

– was not itself prejudicial and inflammatory. See Gonzalez, 222 S.W.3d at 451. Moreover,

because evidence of Appellant’s gang affiliation was presented at trial, we do not hold that

publishing this information was by itself prejudicial and inflammatory. See id.

Additionally, Appellant alleges that law enforcement officials disclosed details about

the offense to the media and later violated the gag order by discussing gang tattoos. Relying

on Henley, Appellant points to the connection of government officials with the release of pre-

trial publicity as a factor we should consider in reviewing the trial court’s ruling on his Suniga — 45

motions for change of venue. See Henley v. State, 576 S.W.2d 66, 71-72 (Tex. Crim. App.

1978). However, Henley concerned the trial court’s refusal to hold a hearing or admit

evidence concerning a defendant’s motion for a change of venue, and it is therefore not

instructive. See Gonzalez, 222 S.W.3d at 451 (concluding that Henley was not instructive

because we resolved that case based on the trial court’s failure to hold a hearing or allow the

introduction of evidence on pre-trial publicity; the Henley opinion listed, but did not actually

apply, some factors relevant to a trial court’s venue decision).

In this case, the trial judge expressed his displeasure with the Sheriff’s Office, which

did not acknowledge the court’s “gag order” or circulate the court’s instructions to its

employees until after the court contacted the Sheriff directly. However, the court did not find

that any law enforcement officers had released confidential or otherwise prejudicial

information to the media. The court further noted that law enforcement officials’

communications with the media that occurred after the issuance of the gag order did not

concern Appellant or this case. Thus, the trial court did not abuse its discretion by declining

to find that any government officials’ conduct merited a change of venue.

To summarize, Appellant received hearings and presented evidence on his motions

to change venue. The trial court reviewed affidavits from county residents as well as the

content of the media coverage. In addition, the trial court heard from selected jurors and

venire members concerning their exposure to the media coverage. We conclude that the trial

court could reasonably find that Appellant’s affidavits from county residents were Suniga — 46

unpersuasive, the news coverage was not inherently prejudicial and inflammatory, and jurors’

and venire members’ credible statements during voir dire indicated that the pre-trial publicity

had not impeded Appellant’s ability to select a fair and impartial jury. The trial court did not

abuse its discretion by denying Appellant’s motions for change of venue. Point of error three

is overruled.

EVIDENTIARY RULINGS

In his fourth point of error, Appellant asserts that the trial court erred in excluding,

during the punishment phase of trial, mitigating evidence concerning intrafamilial sexual

abuse, violence, and alcohol abuse, in violation of the Eighth and Fourteenth Amendments

to the United States Constitution. Appellant complains specifically that the court excluded:

(1) his brother Michael’s testimony concerning sexual abuse within the family; (2) his

maternal aunt Delores’s testimony concerning her father’s physical and verbal abuse of her

mother and the sexual abuse of her sister Alma; and (3) his mother Rosalinda’s testimony

“concerning the problems that alcohol had wrought in the lives of” Appellant’s brothers,

Michael and Eric.14

The record reflects that Appellant’s brother Eric testified before the jury that he was

the eldest of three brothers. Eric stated that he was about three years older than Appellant’s

brother Michael and about eight years older than Appellant. Eric recalled that Appellant was

14 Except for Appellant’s co-defendant, Sesilio Lopez Jr., who we refer to as “Lopez,” we will refer to Appellant’s family members by their first names because many of them share the same last name. Suniga — 47

a happy-go-lucky child. Their parents divorced when Appellant was about three years old,

and the boys subsequently lived with their mother, Rosalinda. She remarried when Appellant

was five or six. The boys’ stepfather, Albert, was a good father figure to them. Eric recalled

that Albert would take Eric to play golf and he encouraged him to do well in school. Eric

stated that his experience with Albert had motivated him to complete high school and attend

college. However, Albert was in the boys’ lives for only about four years before he separated

from their mother. They saw him very rarely after that. Eric noted that Appellant, who was

much younger than Eric, would not have experienced the same positive influence from the

boys’ time with Albert.

Eric testified that, after Albert moved away, the boys continued living with Rosalinda.

She left them generally unsupervised while she worked long hours and attended GED

classes. Appellant became more introverted around this time. Eric was completing high

school by then, and he did not pay much attention to his younger brothers. Around the time

Eric graduated from high school, his aunt’s husband, Sesilio Lopez Sr., left his aunt and

moved into Rosalinda’s house. Sesilio had issues with drugs and alcohol. Eric’s

understanding was that Sesilio made a living “primarily [by] narcotics trafficking.” Eric

explained that one of Sesilio’s sons (Sesilio Lopez Jr.) was Appellant’s co-defendant in this

case.

Eric stated that he had not seen Appellant much since finishing high school. Eric

testified that, after he graduated from high school, he moved out of Rosalinda’s house and Suniga — 48

attended college for two and one-half years. He then served in the Navy for four years before

finishing college. Eric stated that he still saw his mother and brothers on holidays, when

their main activities were cooking and drinking alcohol.

Eric also testified that the boys’ father, Augustine, was a “chronic alcoholic.” Eric

denied being an alcoholic but acknowledged that he liked to drink, saying that he would have

a drink before going to bed. Eric stated that several of his maternal aunts and uncles had

been to the penitentiary; among his uncles, only the youngest, Larry, had avoided prison.

Eric recalled that most of his family members’ offenses were narcotics-related. Eric also

testified that his brother Michael had issues with drugs and alcohol. At the time of trial,

Michael was in a correctional facility for a “parole violation because of alcohol.”

During cross-examination, Eric stated that he had been married and that he had a little

girl for whom he helped provide. Eric stated that Appellant had seven children. When the

prosecutor asked Eric if Appellant “[took] care of and provide[d] for” those children, Eric

stated that he did not know specifically, “but [he] would doubt it.” Eric also acknowledged

that his mother had modeled a good work ethic for her sons.

Appellant’s mother, Rosalinda, testified that her parents moved around a lot in West

Texas when she was a child. Her mother was a homemaker and her father was a farm

worker. Rosalinda was one of ten children. All of the children worked on the farms with

their father. Rosalinda recalled that she married Augustine when she was nineteen and he

was twenty. Augustine was in the Air Force at the time. He stayed in the service for twelve Suniga — 49

years, but when he got out, he became an alcoholic and “didn’t work anymore.” Alcohol

took over his life. Augustine was already an alcoholic when Appellant was born. Rosalinda

recalled that Augustine was not a “mean drunk,” but he liked to argue. They divorced in

1983, when Appellant was three or four years old.

Rosalinda further testified that Appellant had seven children. She stated that she spent

a lot of time with some of them, but she never saw others. Appellant’s oldest child, Aaron,

was autistic and had birth defects. Rosalinda acknowledged that Appellant neither provided

for his children nor fulfilled the role of a father for them. She stated that he was a good

father when he spent time with his children, but he spent very little time with them.

Rosalinda testified that she considered Eric to be an alcoholic because he drank every

day. When defense counsel asked her if alcohol had “interfered with some parts of Eric’s

life,” the prosecutor objected on the basis of relevance. The trial court sustained the

objection. Rosalinda went on to testify that Eric lived with her periodically, most recently

from 2009 to 2011.

Rosalinda also testified that Michael was in prison at the time of trial because of

DWIs and a probation revocation. When defense counsel asked Rosalinda to “tell the jury

about alcohol in Michael’s life,” the prosecutor objected to relevance. The trial court

instructed counsel to “rephrase.” Counsel then asked Rosalinda if alcohol had “caused

criminal problems for Michael in his life,” and she responded, “Yes.” She stated that alcohol Suniga — 50

had caused Michael to get into trouble, such as “[j]ail, prison, accidents.” Michael had also

been convicted of drug offenses.

Rosalinda testified that her father also had issues with alcohol while she was growing

up. She described him as “a weekend drinker.” Every Friday when he finished working, her

father and the family would drive to Lubbock to get beer. They would bring it home and her

father would drink all weekend. When Rosalinda was a young woman, her father was killed

in a card game. Rosalinda testified that all of her siblings “drank,” but she was not sure if

they had “problems” with alcohol because she did not see them very often. She

acknowledged that many of them had been to prison. Her brothers had gone to prison for

drug offenses, and her sister Alma had gone to prison for shoplifting.

Rosalinda testified that she met her second husband, Albert, when they worked for the

same company in Austin. She recalled that he was “a great father to” her children. They

married in 1986. Albert joined the military, and when he was transferred to Massachusetts,

the family moved there with him. Later, when Albert was transferred to California,

Rosalinda and Albert separated. Rosalinda moved with her sons to Copperas Cove, Texas.

Appellant was in the fifth grade then. Appellant began skipping school because Rosalinda

was “working nights” and not around to supervise him. He stopped going to school

altogether when he was fifteen. Rosalinda and Albert finally divorced in the late 1990s. Suniga — 51

Rosalinda acknowledged that Sesilio was a drug dealer who had been married to her

sister when he and Rosalinda began having a romantic relationship. At the time of trial,

Sesilio was in prison for drug dealing.

On cross-examination, Rosalinda stated that Appellant had issues with alcohol and

drugs. She stated that he had had a good relationship with his father, Augustine. She and

Augustine taught Appellant right from wrong. The prosecutor elicited Rosalinda’s

acknowledgment that even though all three of her sons had alcohol problems, only Appellant

had killed someone. When the prosecutor asked Rosalinda if she took better care of

Appellant’s children than Appellant did, she acknowledged that that was true.

Outside the jury’s presence, defense counsel made a “bill of review” 15 with Rosalinda.

First, counsel asked her about the problems that alcohol had caused for Eric. Rosalinda

testified that there was a time when Eric had difficulty maintaining stable employment.

When he lived with her from 2009 to 2011, he was up all hours “and he drank.” Rosalinda

stated that Eric’s alcohol use had caused problems in both of his marriages.

Rosalinda also testified that, in her opinion, Michael was an alcoholic. Michael was

in prison at the time of trial because his probation on his third DWI had been revoked.

Rosalinda testified that alcohol had caused problems for Michael, in that he was unable to

“hold legitimate jobs” and had trouble in his family relationships. The trial judge opined that

15 See TEX . R. EVID . 103(a)(2) (concerning offers of proof); Rule TEX . R. APP . P. 33.2 (prescribing bills of exception); Reyna v. State, 168 S.W.3d 173, 176 & n.8 (Tex. Crim. App. 2005) (“We have held, and the Rules of Evidence make clear, that to preserve error in the exclusion of evidence, the proponent is required to make an offer of proof and obtain a ruling.”). Suniga — 52

Rosalinda’s testimony for the bill of review largely duplicated Eric’s testimony except for

revealing a second marriage. The court again sustained the prosecutor’s objection to the

relevance of the proposed testimony.

Back in the jury’s presence, Appellant’s maternal aunt Delores testified that when she

was growing up, she and her siblings worked in the fields with their father. Her father

treated “the boys and the girls” differently. Delores, who was younger than Rosalinda, stated

that Delores took on the role of protector because her father got violent when he drank. At

that point, the prosecutor asked to approach the bench and the trial court excused the jury.

The prosecutor argued that Delores’s childhood was not relevant to Appellant. Defense

counsel responded that his “obligation [was] to bring forward generations of family history

to establish Appellant’s upbringing and character.” Counsel asserted that a family history

of violence and alcohol abuse was relevant to that. The court sustained the prosecutor’s

objection to testimony concerning Appellant’s grandfather’s behavior unless Appellant had

personal knowledge of it. Defense counsel asked to make a bill.

Outside of the jury’s presence, Delores testified on a “bill of review” that her father

became physically and verbally abusive of their mother when he was drunk, and he also

abused the children. Once when their mother had gone to San Antonio for surgery, he

sexually abused Delores’s older sister, Alma, and Delores had to “step forward and put a stop

to it.” Delores acknowledged that Rosalinda did not learn of that incident until Delores told

her about it, after Appellant was charged with this offense. Delores did not recall if the other Suniga — 53

children suffered any abuse from their father. Delores recalled that many of her brothers

went to prison for drug and DWI offenses. Her father was murdered in 1984. At the end of

Delores’s bill, the trial court denied defense counsel’s request to present her testimony to the

jury.

Back in the jury’s presence, Delores identified her siblings in a photograph that

defense counsel showed her. She stated that four of her brothers had been to the penitentiary

for drug offenses or DWIs. Her sister Alma also had been to prison, but Delores and her

other sisters had not. Sesilio had been married to Delores’s sister Mary at one time and later

had lived with Rosalinda. Delores recalled that Rosalinda divorced Augustine over his

alcohol abuse. After Rosalinda separated from her second husband, Albert, she worked very

hard and did not spend time with her sons. She had little free time, and she spent any free

time that she did have “partying.” Rosalinda sent Michael to live with Delores in Fort Worth

because he was getting into fights at school. He lived with Delores for a year while he

finished high school, and then he “went back to living with Rosa” after Rosalinda and

Appellant moved to Fort Worth.

Before Appellant’s brother Michael testified, the prosecutor stated at the bench that

he believed Michael would testify that he was sexually abused as a child by one of his uncles.

The prosecutor noted that the State had a jail visitation video in which Appellant told his

mother that he was never sexually abused. The prosecutor objected to the relevance of

Michael’s testimony concerning his own sexual abuse. Defense counsel requested that the Suniga — 54

parties approach the bench and address the matter if it came up during Michael’s testimony,

and the trial court agreed.

Michael then testified before the jury that he was serving a prison sentence for his

fourth DWI, having had his probation revoked. He had also served time for a federal charge

of conspiracy to possess marijuana with intent to deliver. He recalled that his parents

divorced when he was about six years old. He testified that his stepfather, Albert, was a good

provider and a good man, but he was “hands-off” as a father figure; he did not play games

with the boys and he left their discipline up to their mother. The boys did not see Albert after

they moved with their mother to Copperas Cove. Michael recalled that they did not have

much contact with their father Augustine because he “was suffering from his own addiction

with alcoholism.” Michael recalled seeing their father at Eric’s high school graduation but

could not remember seeing him at other times.

Michael testified that Rosalinda worked a lot and was not around much when they

lived in Copperas Cove. Eric and Michael were old enough to get themselves to and from

school, and they were responsible for taking care of Appellant. Then Eric graduated from

high school and left home. Michael started spending time with guys who were skipping

school and partying on the weekends. He also “loved women,” and his interactions with

them led to him getting into fights with other men. Appellant witnessed a lot of the conflict

between Michael and guys who were mad at him. One time, a group of guys who were mad

at Michael threatened the whole family. They showed up outside the house, and one of them Suniga — 55

threw a manhole cover through Appellant’s bedroom window. Appellant was at home when

that happened.

Michael testified that, as a result of that incident, Rosalinda sent Michael to live with

Delores in Fort Worth. He graduated from high school in Fort Worth and then joined the

Army. Nine months later, he was discharged because of his drinking and fraternizing with

enlisted women. By then, Rosalinda was living in Fort Worth, and Michael moved into her

house. Appellant still lived with Rosalinda. Sesilio was also spending time there. Michael

lived there for several months while he looked for work. Eventually, he moved to Eldorado

and worked “out there” for a while.

Michael further testified that he returned to Fort Worth after he left that job, and he

supported himself by selling marijuana. He worked for Sesilio, selling methamphetamine,

cocaine, or acid. Michael stated that he has “always been an alcoholic,” and his memory is

sketchy as a result. He started drinking in high school and was an alcoholic by the time he

was fifteen or sixteen. Michael testified that his father, uncles, and cousins were also

alcoholics. He recalled that alcohol was the center of family get-togethers. Michael also

recalled that Appellant used drugs, including methamphetamine, from around the time

Appellant was sixteen years old. Michael, his cousins, and his uncles were all involved in

drug dealing, and they had been to prison for drug offenses. Only Michael’s uncle Larry had

not gone to prison. Suniga — 56

Michael testified that, while his mother and Sesilio were living together, one of

Sesilio’s sons, Jonathan, shot and wounded a family friend who owed Jonathan money.

Jonathan left the area, but Michael feared for Rosalinda’s safety because “everyone”

associated Rosalinda’s house with Jonathan, making it a likely target for retaliation. Michael

told Rosalinda to leave town for the weekend, and she did. Michael was living in his own

apartment by then, but he and Appellant armed themselves with guns and spent the night at

Rosalinda’s house to guard it.

Michael testified that while he and Appellant were drinking in the living room that

night, their dog growled and they heard gunshots. Michael saw “a big ball of flame coming

through the hallway enveloping the living room.” The gunshots kept coming, the windows

were shattering, and it sounded like someone was kicking in the front door. “It sounded like

a war.” Michael and Appellant fled to the kitchen and then they moved into the garage.

They were planning to escape through the garage, but when they opened the garage door, no

one was there. They surveyed the damage and called 9-1-1. The police investigation

revealed that gasoline had been poured on the front of the house. “[T]he gunshot patterns”

indicated that there had been five shooters, with “[t]hree firing 12 gauge shotgun,” and

“[t]wo firing 9mm. There was [sic] 60 rounds expended from the 9mm.” Michael testified

that, after that incident, Appellant became “much more apprehensive, much more vigilant.

Maybe didn’t trust people as much.” Suniga — 57

At the bench, defense counsel renewed his proffer of Michael’s sexual abuse

evidence, and the prosecutor objected that Appellant was not aware of that abuse when he

was a child and had expressed shock when he learned of it while in jail awaiting trial. The

trial court sustained the objection and stated that defense counsel could make a bill at the end

of Michael’s testimony.

Before the jury, the State cross-examined Michael about prison conditions and his

experiences with other inmates. Michael stated that he had been housed in sixty-man

dormitories and that prison is a very violent place. He affirmed that prison inmates are not

generally aware of other inmates’ offenses of conviction. At the time of trial, Michael was

housed in an in-prison therapeutic community designed to modify negative behaviors and

help him address his “issues.”

Outside the jury’s presence, defense counsel made a “bill of review.” Michael

testified that Larry, who was his only uncle who had avoided prison, had “[s]exually abused”

him around the time Michael’s parents divorced. Michael testified that he had been trying

to deal with that experience through the prison “rehab” program. He acknowledged that

Appellant was not aware of that abuse until Michael told him about it later. Defense counsel

asked the trial court to admit Michael’s testimony before the jury, “to establish the character

background of the family . . . in which [Appellant] was raised, and that influenced his

background, character.” Suniga — 58

The prosecutor then cross-examined Michael, who stated that he had told Appellant

about the sexual abuse on several occasions. Michael was surprised to learn that, when

Rosalinda told Appellant about the sexual abuse in a jail conversation, Appellant acted like

he had not known about it before. Michael recalled that he had told Appellant about it some

years ago. The trial court denied defense counsel’s request to elicit this testimony before the

On appeal, we review a trial judge’s evidentiary rulings under an abuse-of-discretion

standard. Bowley v. State, 310 S.W.3d 431, 434 (Tex. Crim. App. 2010). If the trial court’s

decision was within the bounds of reasonable disagreement, the appellate court should not

disturb it. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006). We will sustain

the trial court’s decision if it was correct on any applicable theory of law. Prystash v. State,

3 S.W.3d 522, 527 (Tex. Crim. App. 1999). This is true even if the judge failed to give a

reason or gave the wrong reason for the ruling. Bowley, 310 S.W.3d at 434.

Relevant evidence is admissible unless otherwise provided by the state or federal

constitution, a statute, the rules of evidence, or other rules prescribed under statutory

authority. T EX. R. E VID. 402. Irrelevant evidence is inadmissible. Id. At the punishment

phase of a capital trial, “evidence may be presented by the state and the defendant or the

defendant’s counsel as to any matter that the court deems relevant to sentence, including

evidence of the defendant’s background or character or the circumstances of the offense that

mitigates against the imposition of the death penalty.” Article 37.071, § 2(a)(1). Suniga — 59

Relevant mitigating evidence is evidence which tends logically to prove or disprove

some fact or circumstance which a fact-finder could reasonably deem to have mitigating

value. Tennard v. Dretke, 542 U.S. 274, 284-85 (2004); see also T EX. R. E VID. 401. To be

relevant, the evidence need not by itself prove or disprove a particular fact of consequence;

evidence is relevant if it provides a small nudge toward proving or disproving a fact of

consequence. Ex parte Smith, 309 S.W.3d 53, 61 (Tex. Crim. App. 2010). Thus, the trial

court should admit evidence that a juror could reasonably find warrants a sentence less than

death. Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012) (citing Tennard,

542 U.S. at 284). Except as otherwise provided by a statute or rule, a jury is entitled to have

before it “all possible relevant information about the individual defendant whose fate it must

determine.” Shuffield, 189 S.W.3d at 793 (quoting Sells v. State, 121 S.W.3d 748, 766 (Tex.

Crim. App. 2003)).

In this case, the record reflects that Michael’s proffered testimony was that his uncle,

Larry, had sexually abused Michael around the time that Michael’s parents divorced. The

prosecutor objected to the relevance of Michael’s testimony concerning his own sexual

abuse, noting that Appellant was not aware of that abuse until many years later. The trial

court properly sustained the objection. “The fact that others in the appellant’s family were

abused does not by itself make the appellant more or less morally culpable for the crime for

which he was on trial.” Shuffield, 189 S.W.3d at 793. Nor does it make a jury’s finding of

mitigation any more or less probable than it would be without the evidence. Id. Appellant Suniga — 60

did not offer evidence that he, personally, had been sexually abused or had witnessed

Michael’s abuse. See id.

Appellant asserts that this Court has implicitly recognized that sexual abuse of a

defendant’s sibling may be mitigating. See Ex parte Gonzales, 204 S.W.3d 391, 399 (Tex.

Crim. App. 2006). However, our opinion in Gonzales did not concern the trial court’s

evidentiary rulings; rather, our opinion concerned whether trial counsel’s failure to discover

mitigating evidence before trial constituted ineffective assistance of counsel. Id. We did not

state that evidence concerning the sexual abuse of Gonzales’s sister was, by itself, admissible

mitigating evidence as to Gonzales. Cf. Shuffield, 189 S.W.3d at 793. Rather, we concluded

that the evidence and arguments at the punishment phase of the trial would have been

significantly different if trial counsel had discovered and presented the mitigating evidence

adduced at the habeas hearing. Gonzales, 204 S.W.3d at 399.

In Gonzales, the newly discovered evidence included evidence that Gonzales’s father

had repeatedly sexually abused Gonzales and threatened to kill him and his mother if

Gonzales ever reported the abuse, as well as evidence that Gonzales’s father had sexually

molested Gonzales’s older sister numerous times. Id. Thus, although we listed the sexual

abuse of Gonzales’s sister among the items of mitigating evidence that counsel failed to

discover, we did so in the context of describing the circumstances of Gonzales’s own

childhood. Suniga — 61

Further, Gonzales is distinguishable from this case on its facts. In that case, the

evidence was that Gonzales and his sister lived with their abusive father until their parents

divorced when Gonzales was fourteen years old. See id. at 399. It was Gonzales’s sister’s

outcry to their mother that prompted the divorce. Id. at 395. In the instant case, only two

pieces of evidence concerned Larry: (1) he was the only one of Rosalinda’s brothers who

had not gone to prison; and (2) on one occasion, he had sexually abused Appellant’s then-

nine-year-old brother Michael. Appellant, who would have been three or four years old at

the time of that incident, did not know about the abuse until many years later. None of the

punishment evidence indicated the extent, if any, of Larry’s involvement in or influence on

Appellant’s childhood. Without more, the trial court could reasonably have concluded that

the proffered testimony concerning Larry’s sexual abuse of Michael did not provide relevant

information about Appellant. The trial court did not abuse its discretion by sustaining the

prosecutor’s objection to Michael’s testimony.

For similar reasons, the trial court did not abuse its discretion by excluding

Appellant’s aunt Delores’s testimony concerning her father’s physical and verbal abuse of

her mother when he was drunk. We will assume for the sake of argument that evidence that

Rosalinda witnessed such abuse might have affected her ability to parent Appellant and,

therefore, might have been relevant in mitigation. When Delores testified, Rosalinda had

already testified that her father had issues with alcohol and that he would drink all weekend.

However, Rosalinda did not testify that her father had physically and verbally abused her Suniga — 62

mother. Appellant has not explained how, under these circumstances, testimony that

Rosalinda’s sister Delores witnessed such abuse would provide relevant information about

Appellant.

Additionally, the trial court did not abuse its discretion by excluding Delores’s

testimony concerning her father’s sexual abuse of her older sister, Alma. Delores testified

that Rosalinda did not know about that incident until Appellant was in jail awaiting trial for

the instant offense. Cf. Shuffield, 189 S.W.3d at 793 (finding that the trial court’s decision

to exclude the defendant’s uncle’s testimony that the uncle had been sexually abused by a

great-uncle was within the bounds of reasonable disagreement). Delores also stated that she

did not know whether her father had abused any of her siblings other than Alma. Thus,

without more, Delores’s proffered testimony concerning her father’s sexual abuse of Alma

did not provide relevant information about Appellant.

Further, the trial court did not abuse its discretion by excluding Rosalinda’s testimony

“concerning the problems that alcohol had wrought in the lives of” Appellant’s brothers, Eric

and Michael. Before Rosalinda testified, Eric testified that he was eight years older than

Appellant. Eric stated that he did not pay much attention to his brothers while he was in high

school, and Eric had not seen Appellant very much since finishing high school. Eric stated

that he was not an alcoholic but he acknowledged that he liked to drink and would have a

drink before going to bed. Rosalinda testified before the jury that she considered Eric to be

an alcoholic because he drank every day. When defense counsel asked Rosalinda if alcohol Suniga — 63

had “interfered with some parts of Eric’s life,” the prosecutor objected on the basis of

relevance, and the trial court sustained the objection. Rosalinda went on to testify before the

jury that Eric lived with her periodically, most recently from 2009 to 2011.

The trial court’s decision to exclude Rosalinda’s testimony concerning the effects of

alcohol on Eric’s life fell within the zone of reasonable disagreement. Eric’s testimony

established that he did not interact with Appellant very much after Eric finished high school.

Therefore, the trial court could reasonably conclude that whatever alcohol-related problems

Eric had later in life were not relevant to Appellant.

Rosalinda testified before the jury that Michael was in prison because of DWIs and

a probation revocation. When defense counsel asked Rosalinda to “[t]ell the jury about

alcohol in Michael’s life,” the prosecutor objected to relevance, and the trial court instructed

counsel to “rephrase.” Counsel then asked Rosalinda if alcohol had “caused criminal

problems for Michael in his life,” and Rosalinda responded, “Yes.” She stated that alcohol

had caused Michael to get into trouble, such as, “[j]ail, prison, accidents.” Michael had also

Although the State objected on relevance grounds when Appellant asked Rosalinda

to “[t]ell the jury about alcohol in Michael’s life,” the trial court instructed Appellant to

“rephrase.” It is not clear that this instruction was a ruling that sustained the State’s

relevance objection. See T EX. R. E VID. 611(a) (providing that the trial court should exercise

reasonable control over the mode and order of examining witnesses so as to make those Suniga — 64

procedures effective for determining the truth and avoid needless consumption of time); cf.

Brewer v. State, 367 S.W.3d 251, 253 (Tex. Crim. App. 2012) (concluding that the trial

court’s instruction to “move on” was not a ruling). However, even assuming arguendo that

this instruction did sustain the State’s objection, and that the ruling was erroneous, we

conclude that any potential error was harmless. See, e.g., Hernandez, 390 S.W.3d at 327

(Keller, P.J., concurring) (concluding beyond a reasonable doubt that the trial court’s

erroneous exclusion of mitigating evidence made no contribution to the jury’s answers to the

punishment special issues in light of the remaining punishment evidence). After the

instruction to “rephrase,” defense counsel asked more specific questions and elicited

Rosalinda’s testimony concerning the “criminal problems” that alcohol had caused for

Michael. Further, Michael himself later testified in detail about the problems he had

experienced as a result of his alcohol use. Therefore, the jury heard essentially the same

information that would have been elicited when counsel asked Rosalinda to “tell the jury

about alcohol in Michael’s life.”

We conclude that the trial court did not abuse its discretion by excluding: Michael’s

testimony concerning his sexual abuse by his uncle Larry; Delores’s testimony concerning

her father’s physical and verbal abuse of her mother and the sexual abuse of her sister Alma;

and Rosalinda’s testimony concerning the problems that alcohol had caused for Eric. We are

not persuaded that the trial court’s instruction to “rephrase” was a ruling that excluded

Rosalinda’s testimony concerning the problems that alcohol had caused for Michael. Cf. Suniga — 65

Brewer, 367 S.W.3d at 253. But even if the instruction was such a ruling, we hold that any

error was harmless in light of the remaining punishment evidence concerning Michael’s

alcoholism. Point of error four is overruled.

In point of error five, Appellant asserts that the trial court erred in admitting autopsy

evidence that violated the Confrontation Clause of the Sixth Amendment of the United States

Constitution. Specifically, Appellant states that the medical examiner who performed the

victim’s autopsy was not the medical examiner who testified at trial concerning the results

of the autopsy. Appellant relies upon Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309-10

(2009), and Bullcoming v. New Mexico, 564 U.S. 647, 657-62 (2011), for the principle that

a testimonial out-of-court statement may not be introduced against the accused at trial unless

the witness who made the statement is unavailable and the accused had a prior opportunity

to confront that witness. See Bullcoming, 564 U.S. at 657.

The record shows that Dr. Sridhar Natarajan, the Chief Medical Examiner for

Lubbock County, testified at trial that Dr. Masahiko Kobayashi, a deputy medical examiner,

had performed the victim’s autopsy. Defense counsel objected that Natarajan’s testimony

violated the Confrontation Clause because Natarajan had not performed the autopsy. The

trial court overruled the objection.

Natarajan testified that Kobayashi had moved to Hawaii before the trial. Natarajan

stated that he “had oversight” over all of Kobayashi’s work. Natarajan also testified that he

actually reviewed all parts of this case “prior to having the case actually officially signed out Suniga — 66

as an autopsy report.” Specifically, Natarajan oversaw the performance of the autopsy, the

analysis, the final conclusions, and the generation of the final report. He examined the

autopsy report and signed off on it before it was released.

Natarajan described general autopsy procedures and stated that the goal of an autopsy

would be to determine a manner and cause of death. He noted that the manner of death

determination is a “medical legal opinion” in which the examiner classifies the death as

either natural, accidental, suicide, undetermined, or homicide. He described the cause of

death as “an injury/disease process combination,” in other words, the reason why an

individual actually died. Natarajan stated that, in a typical autopsy, forensic toxicology tests

would be performed on the individual’s bodily fluids to test whether drugs might have

contributed to the death. The medical examiner also would examine the person’s organs for

damage that might have contributed to the death.

Natarajan testified that, in this case, he had looked at the victim’s medical reports. As

the individual overseeing Kobayashi’s work, Natarajan was aware of all of the victim’s

internal and external injuries before the autopsy report was finalized. The prosecutor

introduced six photographs depicting the injuries on the outside of the victim’s body. These

photographs were marked as State’s Exhibits 42, 659, 660, 661, 662, and 663. Natarajan

testified that he recognized the photographs. Suniga — 67

Natarajan stated that he had helped the prosecutor prepare a visual presentation to

describe and illustrate the victim’s injuries for the jury.16 He testified that the first image in

the presentation contained an “illustration of where an injury is present on the outside of the

body,” next to two autopsy photographs of that injury.17 Natarajan testified that, based on

his knowledge of the circumstances of this case as well as his knowledge of the internal

examination, the injury depicted in the first image was a gunshot wound to the back of the

victim’s neck. He identified the injury as an entrance gunshot wound, characterized by a

“round oval” and “an abrasion bed” or “abrasion band” where the projectile scraped the skin

as it entered the body. When the prosecutor asked Natarajan about the projectile’s trajectory,

defense counsel stated, “I’m going to renew my objection, your Honor, to the -- now the

contents of the report based on the bases I stated earlier.” The court overruled the objection.

Natarajan then testified that the projectile “enter[ed] along the back of the neck right

at the midline,” traveling from right to left, as well as from back to front and slightly

downward. He stated that most of the damage was “within the bottom of . . . the [sixth]

cervical spine, the seventh cervical spine, and the top of the thoracic spine which would be

the first thoracic vertebral bone.” The projectile stopped as it struck the first thoracic

16 This visual presentation is not in the record before us, so our discussion of it relies upon Natarajan’s verbal descriptions as well as our independent review of State’s Exhibits 42 and 659 through 663. 17 State’s Exhibits 659 and 660 are two autopsy photographs of that injury. We surmise from Natarajan’s description as well as our independent review of the State’s exhibits that the image before the jury consisted of State’s Exhibits 659 and 660 and an illustration showing the location of the injury. Suniga — 68

vertebral bone. Natarajan showed the jury the projectile recovered from that wound, which

had been previously admitted as State’s Exhibit 647, and described it as “a small caliber

deformed projectile.”

Natarajan described the next image in the presentation as “an illustration of the front

of a male, right arm, chest area,” with “a portion of the left arm and shoulder,” “to help

provide some orientation.” An accompanying photograph revealed two gunshot wounds as

well as a “significant cut” across the victim’s chest.18 Natarajan explained that the cut was

a “thoracotomy,” which was performed when the victim entered the hospital, as part of

emergency procedures to try to control the bleeding and “continue to have the heart pump.”

The location of one gunshot entrance wound was in the middle of the “bony area that

you could just feel on yourself that goes both sides.” Natarajan testified that a shot fired

from an indeterminate distance caused this entrance wound “along the midchest.” The

projectile’s trajectory was right to left, front to back, and slightly downward. The projectile

entered the center of the chest, penetrated the sternum, and injured the heart. It struck the

right atrium of the heart as well as the superior vena cava, which “is the main drainage that’s

coming from the region of the head and the upper extremities.” Natarajan showed the jury

the projectile that made this wound. It had been previously admitted as State’s Exhibit 645.

He described that projectile as being less deformed than the projectile that had lodged in the

victim’s vertebrae.

18 Natarajan’s description and our independent review of the State’s Exhibits reveal that this photograph was State’s Exhibit 661. Suniga — 69

Natarajan identified another entrance wound on the upper left chest area, near a tattoo

of playing cards and dice. A photograph provided a closer view of that wound.19 Natarajan

testified that the wound’s visible characteristics indicated that the firing distance was “not

close,” but he could not determine a precise firing distance. The trajectory of the projectile

that entered the upper left chest area was right to left, front to back, and downward.

Natarajan testified that this projectile perforated portions of the right lung before

lodging in “the soft tissues of the body towards the back.” Natarajan stated that this

projectile also created a hole in the chest that caused the lung to collapse. This damage

caused hemorrhaging inside the lung, so that blood filled the chest cavity and left the body.

This wound accounted for the significant amount of blood around the victim’s body at the

crime scene and was consistent with witnesses’ testimony describing a considerable amount

of blood coming from the victim’s nose and mouth. This wound would have interfered with

the victim’s ability to take in air and, hence, would have resulted in decreased oxygenation

of the blood as well as significant blood loss. The projectile that made this wound had

previously been admitted as State’s Exhibit 646. Natarajan showed this projectile to the jury

and noted that it was less deformed than the projectile that had lodged in the victim’s

vertebrae because it had passed through soft tissues.

19 Natarajan’s description and our independent review of the State’s Exhibits indicate that this photograph was State’s Exhibit 662. Suniga — 70

Natarajan testified that the toxicology test results were negative for drugs, illicit

substances, and alcohol. The cause of death was multiple gunshot wounds and the manner

of death was homicide.

As an initial matter, we note that the autopsy report was not admitted into evidence.

Therefore, the cases upon which Appellant relies, which concern the admission of an

unavailable witness’s testimonial out-of-court statement, are not directly on point. Rather,

the record reflects that Natarajan testified about his own opinions and conclusions based on

his review of the autopsy report along with other evidence, including autopsy photographs

and x-rays. This testimony was not inadmissible on the basis that it might have been

incidentally based, to some degree, on hearsay. See T EX . R. E VID. 703 (providing that an

expert may base an opinion on facts or data that are not admissible in evidence, provided that

they are of a type reasonably relied on by experts in the field); see also Martinez v. State, 22

S.W.3d 504, 508 (Tex. Crim. App. 2000) (“Since the trial court implicitly found [a witness]

qualified as an expert, the State had no burden to invoke an exception to the hearsay rule.”).

In addition, several courts have held that photographs are non-testimonial in nature. See

United States v. Sanabria, 645 F.3d 505, 518 (1st Cir. 2011) (explaining that “surveillance

photographs of an individual” were “non-testimonial evidence”); United States v. Dougall,

919 F.2d 932, 935 (explaining that photographs “are real and physical evidence, non-

testimonial in nature”); Herrera v. State, 367 S.W.3d 762, 773 (Tex. App.—Houston [14th

Dist.] 2012, no pet.) (stating that an autopsy photograph is not a testimonial statement); Suniga — 71

Wood, 299 S.W.3d 200, at 214-15 (Tex. App.—Austin 2000, pet. ref’d) (same).

Consequently, we are persuaded that Natarajan’s descriptions of the autopsy photographs,

and their presentation to the jury, did not violate the Confrontation Clause.

Further, Natarajan testified that he oversaw Kobayashi’s performance of the autopsy,

the analysis, the conclusions, and the generation of the final report, and he examined the

report and signed off on it before it was released. Therefore, Natarajan had some personal

knowledge of the relevant facts and conclusions that were memorialized in the autopsy

report. See, e.g., Grim v. Fisher, 816 F.3d 296, 309-10 (5th Cir. 2016) (holding that

Bullcoming did not clearly establish as federal law that the State could not introduce a

forensic lab report containing the testimonial certification of an analyst through the testimony

of a technical reviewer who verified the analyst’s findings, agreed with a reasonable degree

of scientific certainty with the analyst’s examinations and results, and signed the

certification).20

To the extent that Appellant intends to complain about any specific part of Natarajan’s

testimony, we note that, with one exception, defense counsel did not object to any specific

part of that testimony. Therefore, Appellant largely failed to preserve error. Rule 33.1; see,

e.g., Martinez v. State, 311 S.W.3d 104, 111-12 (Tex. App.—Amarillo 2010, pet. ref’d)

(concluding that an objection to a witness testifying about an autopsy report, while sufficient

20 In Bullcoming, the Supreme Court held that the State could not introduce into evidence a lab report containing a testimonial certification through the in-court testimony of a lab analyst who was familiar with the lab’s procedures but “who did not sign the certification or perform or observe the test reported in the certification.” Bullcoming, 564 U.S. at 657-58. Suniga — 72

to preserve error regarding the contents and conclusions contained in the report, did not

notify the trial court of any error in the admission of autopsy photographs); see also, e.g.,

Roberts v. State, 220 S.W.3d 521, 532 (Tex. Crim. App. 2007) (stating that the defendant’s

attack on victim impact testimony in general, advanced before any testimony was heard, did

not place the trial court on notice that the defendant would find particular testimony

objectionable).

The only instance in which defense counsel objected to a specific part of Natarajan’s

testimony was after the prosecutor asked Natarajan about the trajectory of the projectile that

struck the victim’s neck. At that point, defense counsel renewed his general objection to

testimony about the contents of the autopsy report. To the extent that Appellant preserved

error as to Natarajan’s testimony concerning that trajectory, we conclude that any arguable

error in admitting that testimony was harmless beyond a reasonable doubt because it did not

contribute to the conviction or punishment. See T EX. R. A PP. P. 44.2(a); see also, e.g., Lee

v. State, 418 S.W.3d 892, 900-01 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (stating

that an expert witness’s minimal repetition of statements from an autopsy report prepared by

another did not materially affect the jury’s deliberations); cf. Martinez, 311 S.W.3d at 113

(finding no harm where a testifying expert’s conclusion regarding the cause of death was

cumulative of autopsy photographs and the opinion expressed in the autopsy report).

Finally, because the autopsy report is not in the record, the record on appeal does not

contain sufficient information for us to assess whether specific parts of Natarajan’s testimony Suniga — 73

might have violated the Confrontation Clause. See T EX. R. A PP. P. Rule 33.2 (prescribing

bills of exception); see also Amador v. State, 221 S.W.3d 666, 675 (Tex. Crim. App. 2007)

(“[R]eviewing courts cannot ‘assume’ or speculate about the contents of exhibits or other

materials that are not contained in the appellate record.”). We will not speculate as to

whether some fraction of Natarajan’s testimony might not have been based on his personal

knowledge of the case.

The trial court did not abuse its discretion by overruling Appellant’s general objection

that Dr. Natarajan’s testimony violated the Confrontation Clause. Point of error five is

In point of error six, Appellant asserts that the trial court erred in admitting hearsay

evidence and evidence that violated the Confrontation Clause of the United States

Constitution. This point of error raises more than one legal theory and is therefore

multifarious. See Rule T EX . R. A PP. P. 38.1; see also Jenkins, 493 S.W.3d at 614 n.85.

However, we will address it in the interest of justice. Specifically, Appellant complains that

the punishment-phase testimony of a police officer who responded to a 2008 domestic

violence incident, describing statements the domestic violence victim’s mother made to the

officer at the scene, was hearsay that was not admissible under the excited utterance

exception. Appellant also complains that Child Protective Services (“CPS”) records

concerning the same incident, which were admitted as State’s Exhibit 712, were hearsay and

that their admission violated the Confrontation Clause. Suniga — 74

Defense counsel requested that the State proffer, outside the jury’s presence, the

testimony of Fort Worth Police Officer Leticia Villarreal concerning an extraneous bad act

because counsel anticipated making objections to the testimony that he “want[ed] the Court

to decide outside the presence of the jury.” The trial court granted defense counsel’s request.

Therefore, outside the jury’s presence, Villarreal testified that she responded to a domestic

violence call in 2008. According to Villarreal, “The call details had stated that there was a

husband and wife arguing outside, and the husband hit his wife.” When Villarreal arrived

at the scene, she saw the victim and her mother and brother outside, “all talking very loudly.”

The victim was identified as Megan Suniga. Villarreal attempted to speak with Megan,

whose face was “pretty much covered in blood.” Her nose was “swollen and bleeding, and

her upper lip was very swollen.” It appeared to Villarreal that Megan’s nose might have been

broken. Megan was very argumentative, angry, and uncooperative. She was upset that her

family had called the police, and she did not want to identify her assailant. Megan’s mother,

Leslie Erwin, was also upset and angry. Erwin told Villarreal that Megan had called her,

asking to be picked up from the apartment. Erwin stated that Megan’s husband, Appellant,

had assaulted Megan. Erwin also indicated that Megan was afraid of Appellant. Megan

refused to provide Villarreal with details of the incident, complete a written statement, let

Villarreal photograph her injuries, or accept a copy of a victims’ rights handbook. Villarreal

learned that Megan and Appellant had been in a relationship for about six years and had two

children. They were not living together at the time of the assault. Suniga — 75

On cross-examination, Villarreal confirmed that she did not witness the assault. She

stated that Erwin told her that, when Erwin arrived to pick up Megan, Appellant and Megan

were outside. Erwin saw Appellant push Megan twice, and she saw Megan fall to the

ground, but Erwin did not witness the initial assault that caused Megan’s visible injuries.

Defense counsel then objected to Villarreal testifying to anything beyond what she had

observed, particularly her testimony concerning Erwin’s statements, on the ground that those

statements were hearsay. The State responded that any hearsay contained in Villarreal’s

testimony was admissible under the “excited utterance” exception. The trial court overruled

Appellant’s objection and granted a running objection.

Before the jury, Officer Villarreal repeated the testimony that she had provided during

the proffer. She again acknowledged on cross-examination that she had not witnessed any

part of the assault.

“The admissibility of an out-of-court statement under the exceptions to the general

hearsay exclusion rule is within the trial court’s discretion.” Lawton, 913 S.W.2d at 553.

“An abuse of discretion occurs ‘only when the trial judge’s decision was so clearly wrong

as to lie outside that zone within which reasonable persons might disagree.’” Id. (quoting

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

For hearsay to be admissible, it must fit into an exception provided by a statute or the

Rules of Evidence. T EX. R. E VID. 802. Rule 803(2) sets forth the excited utterance

exception to the general hearsay exclusion rule. See T EX. R. E VID. 803(2); Zuliani v. State, Suniga — 76

97 S.W.3d 589, 595 (Tex. Crim. App. 2003). “An excited utterance is a statement that relates

to a startling event or condition, and it is made when the declarant is still under the stress of

excitement caused by the event or condition.” Coble v. State, 330 S.W.3d 253, 294 (Tex.

Crim. App. 2010). “The basis for the excited utterance exception is ‘a psychological one,

namely, the fact that when a man is in the instant grip of violent emotion, excitement or pain,

he ordinarily loses the capacity for reflection necessary to the fabrication of a falsehood and

the ‘truth will come out.’’” Zuliani, 97 S.W.3d at 595 (quoting Evans v. State, 480 S.W.2d

387, 389 (Tex. Crim. App. 1972)).

In determining whether a hearsay statement is admissible as an excited utterance, the

court may consider the time elapsed between the startling event and the statement and

whether the statement was a response to a question. Id. “However, it is not dispositive that

the statement is an answer to a question or that it was separated by a period of time from the

startling event; these are simply factors to consider in determining whether the statement is

admissible under the excited utterance hearsay exception.” Id. at 596. “The critical

determination is whether the declarant was still dominated by the emotions, excitement, fear,

or pain of the event or condition at the time of the statement.” Id. (internal quotations

omitted).

Here, the evidence at the time of the ruling showed that Megan had called her mother,

asking to be picked up from her apartment. When Erwin arrived, she saw Appellant push

Megan twice, and she saw Megan fall to the ground. Erwin called the police. When Officer Suniga — 77

Villarreal arrived, Appellant was gone. Megan and Erwin were arguing and “talking real

loudly.” They were both upset and angry. This record supports the trial court’s

determination that Erwin was still dominated by the emotions, fear, or pain of the event when

she communicated with Villarreal. Thus, the trial court did not abuse its discretion by

overruling Appellant’s hearsay objection and admitting Erwin’s statements to Villarreal as

an excited utterance.

The second part of Appellant’s complaint concerns the punishment-phase testimony

of Heather Darder, a CPS supervisor for Tarrant County, and the admission of CPS records,

State’s Exhibit 712, regarding a CPS investigation that was connected to the 2008 domestic

violence incident.

Darder testified before the jury that the CPS records were kept in the regular course

of business by someone who had a duty to make them, and they were made at or near the

time of the events recorded. Defense counsel objected “to that portion of State’s 712 that

contains hearsay matters within these documents that contains the conclusions of other

people who are not before the Court testifying,” based upon “hearsay for those things, and

also under the confrontation clause of the U.S. Constitution.” The Court overruled the

objection and admitted State’s Exhibit 712 into evidence.

Darder testified that her office received an “intake” from law enforcement regarding

Appellant because of “concern that a domestic violence dispute was taking place” that

involved two children, ages one and three. Law enforcement reported to CPS that Megan Suniga — 78

had sustained “obvious injuries.” A CPS caseworker went to the home “to interview and

make sure the children were okay.” The caseworker also interviewed Megan. At this point

in Darder’s testimony, defense counsel requested and received “a running objection to my

previous.”

Darder then testified that Megan was willing to speak to the caseworker, but she

would not explain how she had been injured or who had injured her.21 It was Megan’s

mother who told the caseworker that Appellant had injured Megan. Although Megan told

the caseworker that she did not know where Appellant lived or how to contact him, Appellant

showed up at the apartment during the interview. Contrary to the information that Megan

had provided, Appellant informed the caseworker that he lived in the apartment with Megan

and their two children. He told the caseworker that he had six children.

Appellant admitted to the caseworker that he had made a living selling

methamphetamine. When the caseworker asked him about his drug use, he acknowledged

that he had used marijuana and methamphetamine three or four years previously. He

reported that he drank alcohol socially. When questioned about the domestic violence

incident, Appellant stated that he and Megan had argued, but he denied touching or pushing

her.

21 On appeal, Appellant asserts for the first time that Darder’s testimony that domestic violence victims are not always truthful was inadmissible because it was testimony that a class of persons behaves in a particular way. See, e.g., Yount v. State, 872 S.W.2d 706, 711-12 (Tex. Crim. App. 1993). At trial, defense counsel objected that this testimony was “speculation.” Appellant’s trial objection does not comport with his complaint on appeal, and so he failed to preserve his current complaint. See Rule 33.1; see also Sorto v. State, 173 S.W.3d 469, 476 (Tex. Crim. App. 2005). Suniga — 79

The State then asked Darder if Appellant had admitted to going to court for a previous

domestic violence charge involving a different victim. Defense counsel objected that this

questioning was “beyond the scope of the proffer.”22 Counsel also objected under the

Confrontation Clause that this testimony would contain statements of witnesses who were

not before the court. The trial court overruled the objection. Darder then testified that

Appellant acknowledged that he had gone to court over another domestic violence case

involving a different victim.

Darder testified that, as a result of the CPS investigation into the incident involving

Megan, CPS implemented a “safety plan.” This “plan” was an agreement between the

parents and CPS that the parents would cooperate and receive CPS services “through our

safety based service unit,” and that the parents would “not engage in any type of domestic

violence.” Based on the totality of the information that CPS received, including Megan’s

visible injuries, CPS concluded that domestic violence had occurred. On cross-examination,

Darder stated that she had been the CPS caseworker’s supervisor in this matter, but she

acknowledged that she had not been “on the scene.”

To preserve error for appellate review, the record must show that Appellant made the

complaint to the trial court by a timely request, objection, or motion that stated the grounds

for the ruling he sought with sufficient specificity to make the trial court aware of the

22 In our independent review, we have not located any place in the record where the State made a proffer of the content of Darder’s testimony or the CPS records before calling Darder to testify before the jury. Suniga — 80

complaint, unless the specific grounds were apparent from the context, and the trial court

ruled or refused over objection to rule on the request, objection, or motion. Rule 33.1(a).

In the face of a global hearsay objection to an exhibit, the trial court is not required to search

through the exhibit and segregate the admissible from the inadmissible. Ladd, 3 S.W.3d at

572. Similarly, a general objection to testimony, advanced before any testimony is heard,

does not place the trial court on notice that an appellant will find particular unforeseeable

testimony to be objectionable. See Roberts, 220 S.W.3d at 532.

Darder testified that the CPS records contained in State’s Exhibit 712 were kept in the

regular course of business by someone who had a duty to make them, and they were made

at or near the time of the events recorded. See T EX. R. E VID. 803(6). Appellant objected at

trial that an unspecified portion of State’s Exhibit 712 contained “the conclusions of other

people who are not before the Court testifying.” Appellant did not locate or identify any

specific part of State’s Exhibit 712 that was objectionable on that basis. Without more, this

objection did not provide the trial court with adequate notice of the particular material

Appellant found objectionable. See Ladd, 3 S.W.3d at 572. Thus, the trial court did not err

by overruling Appellant’s non-specific objection to Exhibit 712.23

To the extent that Appellant complains on appeal that Darder’s testimony was hearsay

and that it violated the Confrontation Clause because she testified about the content of a

23 If Appellant intends to complain that allowing Darder rather than the CPS caseworker to testify about the contents of State’s Exhibit 712 violated the Confrontation Clause, this complaint does not comport with his objection at trial. See Jenkins, 493 S.W.3d at 612. Thus, Appellant failed to preserve this claim. See Lucio v. State, 351 S.W.3d 878, 902 (Tex. Crim. App. 2011). Suniga — 81

report prepared by another person, we note that defense counsel’s request during her

testimony for “a running objection to my previous” did not alert the trial court to this

particular complaint. See Layton v. State, 280 S.W.3d 235, 239 (Tex. Crim. App. 2009) (“A

specific objection is necessary to inform the trial judge of the issue and basis of the

objection[.]”). Appellant did not preserve this complaint for appeal. See Rule 33.1; see also

Reyna, 168 S.W.3d at 179 (explaining that an objection on hearsay grounds does not preserve

error on Confrontation Clause grounds).24

When the prosecutor asked Darder if Appellant had admitted to going to court for a

previous domestic violence charge involving a different victim, defense counsel objected

under the Confrontation Clause that this testimony would contain statements of witnesses

who were not before the court. The trial court overruled the objection. Darder then testified

that Appellant acknowledged that he had gone to court over another domestic violence case

involving a different victim. The prosecutor’s questioning then returned to the incident

involving Megan.

This part of Appellant’s complaint concerns a statement that Appellant, personally,

made to the CPS caseworker concerning a different domestic violence case. Assuming

arguendo that the admission of that statement was erroneous, its admission was harmless

24 Moreover, to the extent that Appellant may now be understood to challenge not just the admission of State’s Exhibit 712, or Darder’s testimony as she may have gleaned it from that exhibit, but also the admission of Darder’s testimony in which she related what Appellant may have told the CPS caseworker that the CPS caseworker may then have orally related to Darder, no objection to Darder’s testimony as hearsay within hearsay was ever leveled at trial. No such objection was made or ruled upon at the trial court level, and therefore, no such error was preserved. Rule 33.1. Suniga — 82

because a copy of the judgment of conviction for that prior incident had already been

admitted into evidence without objection as State’s Exhibit 709, and a portion of it had been

read into the record. See Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998)

(stating that the improper admission of evidence does not constitute reversible error if the

same facts are shown by other evidence that was not challenged). As read into the record,

the judgment recited that Appellant was “guilty of assault bodily injury of a family member,

committed on October 12, of 2000, a Class A misdemeanor where the Defendant

intentionally or knowingly caused bodily injury to Christy Bretts, a member of the

Defendant’s family or household[,] by hitting her with his hand.”

In sum, the trial court did not abuse its discretion by ruling that Erwin’s statements

to Villarreal were admissible as an excited utterance, or by admitting State’s Exhibit 712 over

Appellant’s objection that an unspecified part of it contained the conclusions of people who

were not before the Court testifying. Further, any arguable error in admitting Appellant’s

statement concerning a previous domestic violence case was harmless. Point of error six is

In point of error seven, Appellant asserts that the trial court erred in denying a Fourth

Amendment motion to suppress evidence based on the search of the vehicle in which he was

riding at the time of his arrest. Specifically, Appellant complains that police searched the

vehicle without a valid warrant and that no exception to the warrant requirement applied. Suniga — 83

The record shows that Appellant filed a pre-trial motion to suppress evidence seized

following the execution of a search warrant on December 28, 2011, in Taylor County. In his

motion, Appellant asserted that the warrant provided only for the seizure of the vehicle and

not for a search of its contents. Therefore, he argued, the evidence obtained during the

vehicle search had to be suppressed because it was not seized pursuant to a valid search

warrant.

At the pre-trial hearing on this motion, defense counsel argued that Appellant was a

passenger in a vehicle that law enforcement stopped when there was no warrant for his or his

co-defendant’s arrest. He asserted that, after the arrest, a Taylor County magistrate signed

a search warrant which provided only for seizing the vehicle; it did not authorize a search of

the vehicle’s contents. Defense counsel argued that Appellant, as a passenger in the vehicle,

had standing to challenge the vehicle search under Brendlin v. California, 551 U.S. 249, 263

(2007), which states that both the driver and the passenger are seized within the meaning of

the Fourth Amendment when a police officer makes a traffic stop. Counsel clarified that he

was not challenging the constitutionality of the stop.

Defense counsel asserted that the police officer who prepared the affidavit for the

search warrant had requested authority to transport, remove, or take any property or evidence

seized pursuant to the warrant to any location deemed necessary for the purpose of

safekeeping and completion of the investigation. Thus, counsel argued, once the vehicle was

in police safekeeping, no warrant provided authority to search the vehicle and no exception Suniga — 84

to the warrant requirement existed. According to counsel, when Lubbock police officers

searched the vehicle without obtaining a search warrant, that search was illegal.

The prosecutor argued that Appellant did not have standing to challenge the search

because Brendlin enabled a passenger to challenge only a vehicle stop, not a vehicle search.

As the passenger, Appellant had no reasonable expectation of privacy in the vehicle. The

prosecutor also asserted that some of the items seized from the vehicle were recovered during

a search incident to arrest while the vehicle was stopped on the side of the road and a

narcotics dog had alerted to the presence of drugs, and so the automobile exception also

applied to the roadside search. The prosecutor further cited United States v. Johns, 469 U.S.

478, 484 (1985), for the principle that there is no requirement that a warrantless vehicle

search occur contemporaneously with the vehicle’s lawful seizure if there is probable cause

to believe that the vehicle contains contraband.

Concerning the search that officers conducted after transporting the vehicle to the

Lubbock Police Department, the prosecutor argued that the vehicle exception applied to

authorize the search even if the search warrant did not. The prosecutor argued that, under

Adkins v. State, 764 S.W.2d 782, 784 (Tex. Crim. App. 1988), when a warrant is found

invalid, the search should be treated as if it proceeded without a warrant, such that the trial

court should consider whether the search can be upheld under an exception to the warrant

requirement. Suniga — 85

The trial court found that Appellant did not have standing to challenge the searches.

Alternatively, the court denied the motion to suppress because the searches were lawful. The

court granted defense counsel’s request for a running objection to any testimony concerning

“anything that was taken at any time from the vehicle.”

On June 3, 2015,25 the trial court entered written findings of fact and conclusions of

law regarding the motion to suppress. The court found that a Taylor County Sheriff’s Deputy

stopped the vehicle after receiving a bulletin to be on the lookout for “a tan or champagne

colored SUV with two male subjects that were wanted for a murder that had taken place in

Lubbock County.” The bulletin advised that one of the men had tattoos on his head. Shortly

thereafter, the deputy saw a vehicle matching that description and initiated a traffic stop.

During the stop, he saw that the passenger had tattoos on his head. He determined that the

driver was Lopez and the passenger was Appellant. They were both arrested “based on

outstanding homicide warrants.”

The court also found that a narcotics dog “was run around the vehicle” and alerted to

the presence of drugs in the vehicle. At that time, the deputy conducted a roadside search

and found items that were later turned over to Lubbock Police Department detectives. The

vehicle was taken to a police holding facility in Abilene and then released to Lubbock

detectives after a Taylor County magistrate signed a search warrant that authorized law

25 June 15, 2015, is the file-stamped date, but June 3rd is the date the judge signed and entered the findings and conclusions. These findings and conclusions were entered following this Court’s May 20, 2015, order abating the appeal and directing the trial court to supplement the record. Suniga — 86

enforcement to seize the vehicle. The vehicle, which belonged to Lopez’s mother, was

searched at the Lubbock Police Department’s processing facility. During that search,

additional items of evidence were recovered.

The trial court concluded that Appellant lacked standing to challenge the vehicle

searches because he failed to prove that he had a reasonable expectation of privacy in the

vehicle or its contents. Alternatively, even if the warrant did not authorize the second search,

the searches were proper under the automobile exception because law enforcement had

probable cause to believe the vehicle contained evidence of a crime, and there was no

requirement that the search be contemporaneous with the vehicle’s seizure.

When a trial judge enters findings of fact after denying a motion to suppress, an

appellate court reviewing that denial must first determine whether the evidence, viewed in

the light most favorable to the trial court’s ruling, supports those findings. Keehn v. State,

279 S.W.3d 330, 334 (Tex. Crim. App. 2009). The appellate court reviews de novo the trial

court’s resolution of purely legal questions. Gonzales v. State, 369 S.W.3d 851, 854 (Tex.

Crim. App. 2012).

In this case, the circumstances of the vehicle searches were largely undisputed.

Further, the trial court’s determination that Appellant did not have standing to challenge the

vehicle search was a purely legal question. Thus, we review that determination de novo.

See, e.g., Matthews v. State, 431 S.W.3d 596, 607 (Tex. Crim. App. 2014) (“Although we

defer to the trial judge’s factual findings, we review the legal issue of standing de novo.”). Suniga — 87

The rights protected by the Fourth Amendment to the United States Constitution are

personal. Id. at 606 (citing Rakas v. Illinois, 439 U.S. 128, 133-34 (1978)). As such, an

accused must show that the challenged search violated his own, rather than a third party’s,

legitimate expectation of privacy in the place invaded. State v. Betts, 397 S.W.3d 198, 203

(Tex. Crim. App. 2013). A defendant alleging an unconstitutional search has the burden of

proving facts demonstrating that he, personally, exhibited an actual subjective expectation

of privacy in the place invaded, and that his expectation of privacy is one that society is

prepared to recognize as objectively reasonable. Id.; see also Minnesota v. Carter, 525 U.S.

83, 87-88 (1998). The United States Supreme Court has held that automobile passengers

cannot assert the protection of the Fourth Amendment against the seizure of incriminating

evidence from a vehicle where they owned neither the vehicle nor the evidence. Rakas, 439

U.S. at 139-40.26

As the passenger in a vehicle that he did not own, Appellant had standing to challenge

the constitutionality of the traffic stop, see Brendlin, 551 U.S. at 251, but he did not have

26 On appeal, Appellant asserts for the first time that he has standing because his personal property was in the vehicle and the evidence recovered during the searches was “plainly in proximity to him.” He relies on a footnote from this Court’s opinion in Goodwin v. State, 799 S.W.2d 719, 725 n.2 (Tex. Crim. App. 1990), where we indicated that a passenger-defendant’s motion to suppress, which made a specific claim to ownership of “certain luggage” that was seized from the vehicle during the search, established standing to challenge the search. However, that footnote was dicta because we presumed for other reasons that the defendant had standing. Id. at 725. In any event, Appellant made no claim of ownership during proceedings before the trial court. We will not consider this argument for the first time on appeal. Rule 33.1; see also Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003) (“As a general rule, an appellate court reviewing a trial court’s ruling on the admission or exclusion of evidence must do so in light of the arguments, information, and evidence that was available to the trial court at the time it ruled.”). Suniga — 88

standing to challenge the constitutionality of the vehicle searches that followed, see Rakas,

439 U.S. at 139-40. Whatever subjective expectation of privacy Appellant may have had in

the vehicle, it was not one that society is prepared to recognize as objectively reasonable.

Because Appellant did not have standing to challenge the vehicle searches, we need not

address the trial court’s alternative determination, that the searches were lawful under the

automobile exception. Point of error seven is overruled.

JURY INSTRUCTIONS

In point of error eight, Appellant asserts that the trial court erred by denying his

proposed jury charge concerning the consideration of eyewitness testimony, in violation of

the Due Process Clause of the United States Constitution. Appellant’s proposed jury charge,

which comprised approximately four double-spaced pages, would have instructed the jury

that: the State carried the burden of proving identity beyond a reasonable doubt; the State’s

six eyewitnesses did not identify Appellant in court as the perpetrator of the offense; and, the

jurors had to determine whether the eyewitnesses’ identifications of the defendant were

reliable and believable.27

27 Specifically, the relevant portion of the proposed charge stated:

The State has presented the testimony of six witnesses who described Defendant. You will recall that these witnesses did not identify the defendant in court as the person who committed this offense. According to the witnesses, their identification of the defendant was based upon the observations and perceptions that they made of the perpetrator at the time the offense was being committed. It is your function to determine whether the witnesses’ identification of the defendant is reliable and believable, or whether it is based on a mistake or for any reason is not worthy of (continued...) Suniga — 89

The proposed charge also discussed research showing that human memory is not

foolproof and outlined circumstances that might affect the reliability of eyewitness

identification testimony.28 The charge instructed jurors to consider a witness’s opportunity

to view the perpetrator and a witness’s degree of attention to the perpetrator at the time of

the offense, including factors such as a witness’s stress level, the duration of viewing time,

and the distance between a witness and the perpetrator, as well as “any other factor” that the

jurors considered relevant to determining whether a witness’s identification was reliable.

The charge concluded by instructing the jurors that they had to find Appellant not guilty if

they determined that the State had not proven beyond a reasonable doubt that Appellant was

the person who committed the offense, and that they had to further consider whether the State

had proven “each and every element of the offense charged beyond a reasonable doubt” if

they determined that the State had proven that Appellant was “correctly identified.”

(...continued) belief. You must decide whether it is evidence beyond a reasonable doubt that this defendant is the person who committed the offense charged. 28 Specifically, this section of the charge stated:

Eyewitness identification evidence must be scrutinized carefully. Human beings have the ability to recognize other people from past experiences and to identify them at a later time, but research has shown that there are risks of making mistaken identifications. That research has focused on the nature of memory and the factors that affect the reliability of eyewitness identifications.

Human memory is not foolproof. Research has revealed that human memory is not like a video recording that a witness need only replay to remember what happened. Memory is far more complex. The process of remembering consists of three stages . . . At each of these stages, memory can be affected by a variety of factors. Suniga — 90

The jury is the exclusive judge of the facts proved and of the weight to be given to the

testimony. Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008). The trial court

must give the jury a written charge “setting forth the law applicable to the case; not

expressing any opinion as to the weight of the evidence, not summing up the testimony,

discussing the facts or using any argument in his charge calculated to arouse the sympathy

or excite the passions of the jury.” Article 36.14; see also Celis v. State, 416 S.W.3d 419,

433 (Tex. Crim. App. 2013) (plurality op.). “The jury are bound to take the law from the

court, and when the charge is made to embrace the rules of law and philosophic dissertations

upon the nature of evidence, the jury are not always capable of distinguishing the one from

the other.” Bartlett, 270 S.W.3d at 150 n.6 (quoting Brown v. The State, 23 Tex. 195, 201-02

(1859)). Therefore, a charge that extends beyond a plain statement of the law of the case

may invade the province of the jury. Id. Accordingly, “Texas courts are forbidden from

instructing the jury on any presumption or evidentiary sufficiency rule that does not have a

statutory basis.” Brown v. State, 122 S.W.3d 794, 799 (Tex. Crim. App. 2003).

There are three specific circumstances under which a trial court may single out a

particular item of evidence in the jury instruction without signaling to the jury an

impermissible view of the weight (or lack thereof) of that evidence. Bartlett, 270 S.W.3d at

151; see also Art. 38.04. First, the trial court may specifically instruct the jury when the law

directs the jury to attach a certain degree of weight, or only a particular or limited

significance, to a specific category or item of evidence. Bartlett, 270 S.W.3d at 151. Suniga — 91

Second, the Legislature has expressly required the trial court to call particular attention to

specific evidence in the jury charge when the law specifically identifies it as a predicate fact

from which a jury may presume the existence of an ultimate or elemental fact. Id. Third, the

trial court may instruct the jury with respect to evidence that is admissible contingent upon

certain predicate facts that the jury must decide. Id.

Outside of these statutorily recognized exceptions, a trial court should avoid any

allusion in the jury charge to a particular fact in evidence, as the jury might construe this as

a judicial endorsement or imprimatur. Id. at 150. Similarly, the trial court should not give

an instruction that “singles out a specific type of evidence” and invites the jury to pay

particular attention to it. See Brown, 122 S.W.3d at 800. Such a charge risks impinging

upon the independence of the jury in its role as the trier of fact. Bartlett, 270 S.W.3d at 151-

52; see also Kirsch v. State, 357 S.W.3d 645, 652 (Tex. Crim. App. 2012) (“An instruction,

albeit facially neutral and legally accurate, may nevertheless constitute an improper comment

on the weight of the evidence.”).

In this case, the six eyewitnesses who testified that they were present during the

offense did not identify Appellant at trial as the perpetrator. Therefore, Appellant’s proposed

eyewitness identification jury instruction was not relevant. See Brown, 122 S.W.3d at 801

(“On this near end of the ‘improper-judicial comment’ spectrum is an instruction that is

simply unnecessary and fails to clarify the law for the jury.”). Also, the instruction was

effectively a comment on the weight of the eyewitnesses’ testimony. In addition, the Suniga — 92

language of the proposed instruction was internally inconsistent; the instruction stated that

the eyewitnesses had not identified Appellant, but then instructed the jury to assess the

reliability and believability of the eyewitnesses’ identifications of Appellant. Further, the

charge described the results of unspecified “research,” which was not in evidence,

concerning the fallibility of human memory and the risks of mistaken eyewitness

identification. See id. at 797 (stating that the advocates, rather than the judge, have the task

of producing the evidence, arguing its significance, and pointing out the logical inferences

that flow from it). In any event, Appellant’s proposed jury instruction fell outside of the

statutorily recognized exceptions for jury charges that single out particular evidence or types

of evidence. See Bartlett, 270 S.W.3d at 150. Thus, the trial court properly refused to

provide it.

Appellant points to a “growing awareness” that eyewitness testimony may be

unreliable. See, e.g., Tillman v. State, 345 S.W.3d 425, 436 (Tex. Crim. App. 2011). He also

notes the United States Supreme Court’s observation that eyewitness-specific jury

instructions are one type of safeguard against jurors’ placing undue weight on eyewitness

testimony of questionable reliability. See Perry v. New Hampshire, 565 U.S. 228, 245-47

(2012). However, neither Tillman nor Perry requires a trial court to instruct a jury on the

reliability of eyewitness identifications. Further, Perry does not suggest that due process

requires such an instruction. Because Appellant’s proposed jury instruction was not relevant

to the facts of the case, and because it fell outside of the recognized exceptions for jury Suniga — 93

charges that single out particular evidence or types of evidence, the trial court did not err by

refusing to provide it. Point of error eight is overruled.

JURY VOIR DIRE

In point of error nine, Appellant asserts that the trial court erred in denying his

challenges for cause to ten unqualified venire members, in violation of the Fifth, Sixth,

Eighth, and Fourteenth Amendments. Specifically, Appellant identifies Monica Castillo,

Mark Hayden, Cynthia Hill, Robert Jetter, Jason Hicks, Mason West, Kasey Hampton,

Mirabeau Lamar, Richard Timmons, and Randy Hanfeld, as unqualified venire members

against whom he was forced to exercise peremptory strikes.

When the trial judge denies a defendant’s valid challenge for cause, forcing him to use

a peremptory strike on a venire member who should have been removed, the defendant is

harmed if he would have used that peremptory strike on another objectionable juror.

Comeaux v. State, 445 S.W.3d 745, 750 (Tex. Crim. App. 2014). To establish harm arising

from the trial court’s erroneous denial of his challenge for cause, the defendant must show

on the record that: (1) he asserted a clear and specific challenge for cause; (2) he used a

peremptory strike on the complained-of venire member; (3) his peremptory strikes were

exhausted; (4) his request for additional strikes was denied; and (5) an objectionable juror

sat on the jury. Daniel v. State, 485 S.W.3d 24, 33 (Tex. Crim. App. 2016).

Article 35.15(a) provides that, in capital cases in which the State seeks the death

penalty, the defendant is entitled to fifteen peremptory strikes. Id. at 34 n.4. In this case, Suniga — 94

Appellant exhausted his fifteen peremptory strikes and received two additional strikes. After

he exhausted those strikes, Appellant challenged Hanfeld for cause, asserting that Hanfeld

was mitigation-impaired and therefore biased against the law upon which Appellant was

entitled to rely. The trial court denied this challenge. Appellant then requested an additional

strike to use against Hanfeld, which the trial court denied. Appellant next identified Hanfeld

as an objectionable juror who would not have sat on the jury, but for the denial of an

additional strike.29 Because Appellant received two additional peremptory strikes, he was

harmed only if the record reflects that the trial court erroneously denied his challenges for

cause to at least three venire members, so that he was forced to use peremptory strikes

against them. See Buntion, 482 S.W.3d at 83.

On appeal, we review a trial court’s ruling on a challenge for cause with considerable

deference because the trial court is in the best position to evaluate the venire member’s

demeanor and responses. Newbury, 135 S.W.3d at 32. We will reverse a trial court’s ruling

on a challenge for cause “only if a clear abuse of discretion is evident.” Colburn, 966

S.W.2d at 517.

Hayden

Appellant challenged Hayden on the grounds that: he was friends with the prosecutor;

he was mitigation-impaired as a result of the State’s use of an improper hypothetical; his

29 Appellant points out that he also identified White as an objectionable juror after the trial court’s inquiry discussed in point of error two, above. Given the timing of the alleged error concerning White, and our disposition of point of error two, this fact does not affect our analysis of this point of error. Suniga — 95

girlfriend worked for TDCJ and he was concerned for her safety; he improperly shifted the

burden to Appellant to disprove the future dangerousness special issue; he would favor the

credibility of police officers as witnesses; and he misunderstood the term “probability” as

used in the future dangerousness special issue.30

Article 35.16(c)(1) provides that the defense may challenge for cause a venire member

who is “related within the third degree of consanguinity or affinity, as determined under

Chapter 573, Government Code, to the person injured by the commission of the offense, or

to any prosecutor in the case.” Without more, a venire member’s friendship or acquaintance

with the prosecutor does not disqualify him. In this case, Hayden expressly and repeatedly

stated that his acquaintance with the prosecutor would not affect his ability to make a

decision solely on the evidence presented and to find the defendant not guilty if the evidence

did not persuade him of the defendant’s guilt beyond a reasonable doubt. Thus, the trial

court did not abuse its discretion in denying Appellant’s challenge for cause on this basis.

The use of a hypothetical fact situation during voir dire is permissible if the

hypothetical scenario is used to explain the application of the law. Atkins v. State, 951

S.W.2d 787, 789 (Tex. Crim. App. 1997). However, it is improper to inquire how a venire

member would respond to particular circumstances as presented in a hypothetical question.

Id. at 789-90. A party may use a hypothetical to ascertain venire members’ views on issues

30 We will not address other grounds for challenging Hayden that Appellant arguably raised during voir dire but does not raise on appeal. Suniga — 96

pertinent to a fair determination of the case, but not to commit them to a particular set of

facts or circumstances. Id.

In this case, while questioning Hayden about the anti-parties special issue,31 the

prosecutor presented a hypothetical scenario in which two people planned a restaurant

robbery, armed themselves, committed the robbery, and then, as they were leaving the scene

of the robbery, one of them shot and killed a customer who ran after them. The prosecutor

asked Hayden who would be guilty of capital murder in that scenario, and Hayden identified

both the gunman and the accomplice. Defense counsel objected that the prosecutor’s

hypothetical scenario was too similar to the facts of this case, and the trial court sustained the

objection. Defense counsel did not seek further relief.

The prosecutor then continued questioning Hayden about the anti-parties special issue,

but without referring to the hypothetical scenario. The prosecutor explained that the anti-

parties question was easy to answer if a defendant actually took someone’s life, but was

harder to answer “when you’re dealing with somebody that may not be actually responsible.”

The prosecutor stated that the jury would have to rely on the evidence and that the prosecutor

would have to prove the anti-parties special issue beyond a reasonable doubt before jurors

31 Article 37.071, section 2(b)(2), provides that, at the punishment stage of a case in which the jury was permitted at the guilt or innocence stage to find the defendant guilty as a party, the trial court is required to submit to the jury the issue of “whether the defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken.” See Ladd, 3 S.W.3d at 573. Suniga — 97

could answer the question affirmatively. Hayden confirmed his understanding that the

punishment would be a life sentence if the prosecutor did not prove the anti-parties issue.

Later, defense counsel referred back to the prosecutor’s hypothetical scenario, and

Hayden agreed with counsel that the evidence might not show that the gunman’s accomplice

anticipated that a life would be taken. Hayden affirmed that, in answering the special issues,

he would require the State to prove to him that the defendant anticipated that a human life

would be taken.

This record indicates that, although the prosecutor used a hypothetical scenario that

closely resembled the facts of this case, he did not commit Hayden to a particular set of facts

or circumstances. After the prosecutor presented the hypothetical scenario and Hayden

expressed his understanding that both accomplices would be guilty of capital murder, the trial

court sustained defense counsel’s objection, and the prosecutor made no further reference to

the hypothetical. Thus, the prosecutor never actually questioned Hayden about his response

to those particular circumstances in the context of the anti-parties special issue. Therefore,

the prosecutor did not commit Hayden to the specific facts of the case. Further, defense

counsel referred to the prosecutor’s hypothetical scenario to emphasize the point that the

evidence might not prove the anti-parties issue, and Hayden agreed that he would have to rely

on the evidence and require the State to prove the issue. Appellant has not shown a valid

ground for a challenge for cause. See Art. 35.16. The trial court did not abuse its discretion

by denying Appellant’s challenge for cause on this basis. Suniga — 98

Further, the fact that Hayden’s girlfriend worked for TDCJ in a prison unit was not

a valid basis for a challenge for cause. See Saldano v. State, 232 S.W.3d 77, 93-94 (Tex.

Crim. App. 2007) (concluding that the trial court properly denied a challenge for cause to a

prospective juror whose father was a police officer, when the juror stated that this fact would

not prevent him from following the law as it had been explained to him during voir dire).

Hayden acknowledged that his girlfriend had told him about some scary situations that she

had faced while working in prison, but he stated that her job would not affect his decision

in this case. The trial court did not abuse its discretion by denying a challenge for cause on

this basis.

We next turn to Appellant’s argument that Hayden improperly shifted the burden to

Appellant to disprove future dangerousness. Article 37.071, section 2(c), requires the State

to prove the future dangerousness special issue beyond a reasonable doubt. Ladd, 3 S.W.3d

at 558. Therefore, any venire member who would automatically answer this special issue in

the affirmative, or who would place the burden of proof on the defense, is challengeable for

cause under Article 35.16(c)(2) as having a bias or prejudice against a law applicable to the

case upon which the defense is entitled to rely. Davis, 329 S.W.3d at 808. However, the trial

court does not abuse its discretion in denying a challenge for cause to a venire member who

states that he would be “inclined” to answer the special issues in such a way that the death

penalty would be assessed after finding a defendant guilty of capital murder, but who also

states that he would follow the law, hold the State to its burden of proof on the special issues, Suniga — 99

and answer the special issues based solely on the evidence. Ladd, 3 S.W.3d at 559-59, 561;

see also, e.g., Saldano, 232 S.W.3d at 94-96 (finding no abuse of discretion when trial court

denied challenges for cause to two venire members who acknowledged that they would have

a predisposition or “leaning” toward answering the future dangerousness issue affirmatively

after convicting a defendant of capital murder, but who also stated that they could set aside

their biases and make the State prove future dangerousness beyond a reasonable doubt).

The record reflects that Hayden expressed his understanding and agreement when the

prosecutor explained that the State had to prove the future dangerousness special issue

beyond a reasonable doubt. Similarly, Hayden told defense counsel that he would require

the State to present evidence showing that a defendant would be a continuing threat.

However, when counsel asked Hayden about his personal views, Hayden admitted that, after

finding someone guilty of capital murder, he would view that person “in [his] mind” or “gut”

as a continuing threat, and he would want the defendant to “bring something” to show that

he would not be a continuing threat. The prosecutor then elicited Hayden’s confirmation that

he understood that the law envisioned times when a person convicted of capital murder

would not be a continuing threat.

When a venire member’s answers are vacillating, unclear, or contradictory, we accord

particular deference to the trial court’s decision. Hernandez, 390 S.W.3d at 317. In this

case, defense counsel inquired into Hayden’s personal views, and Hayden acknowledged that

his views were inconsistent with the law. However, defense counsel did not inquire into Suniga — 100

Hayden’s ability to set aside his personal views and follow the law, and Hayden never

expressed an inability to do so. We defer to the decision of the trial judge, who was in the

best position to ascertain whether Hayden’s opinions would interfere with his ability to serve

as a juror. See Davis, 329 S.W.3d at 807 (“We review a trial court’s ruling on a challenge

for cause with considerable deference because the trial judge is in the best position to

evaluate a venire member’s demeanor and responses.”); see also Gardner v. State, 306

S.W.3d 274, 297 (Tex. Crim. App. 2009) (noting that, when a venire member’s answers

during voir dire contain ambiguities and contradictions, we give great deference to the trial

judge’s assessment of the venire member’s meaning based on demeanor, tone, and the totality

of the questioning). The trial court did not abuse its discretion by denying a challenge for

cause on this basis.

The trial court also did not abuse its discretion by denying the challenge for cause

based on Hayden’s statements about witness credibility. A venire member is challengeable

for cause under Article 35.16(a)(9) if he cannot impartially judge the credibility of witnesses.

Feldman, 71 S.W.3d at 745. However, this means only that jurors must be open-minded and

persuadable, with no extreme or absolute positions regarding the credibility of any witness.

See Jones, 982 S.W.2d at 389. A venire member is not challengeable for cause simply

because he would give certain classes of witnesses a slight edge in terms of credibility,

because “complete impartiality cannot be realized as long as human beings are called upon

to be jurors.” Id. at 390. Thus, a juror is not challengeable simply because he would tend Suniga — 101

to believe police officers and doctors slightly more than other witnesses. Ladd, 3 S.W.3d at

560 (citing Smith v. State, 907 S.W.2d 522, 531 (Tex. Crim. App. 1995)).

In this case, Hayden stated that he would decide whether to believe a witness based

on the witness’s testimony. He affirmed that he could apply his “own common sense” to the

evidence and decide whether a witness was credible. He stated that he could apply the same

standard to assess the credibility of a police officer witness and the credibility of a testifying

defendant. However, Hayden also admitted he might “lean a little bit toward a police officer

versus a Defendant,” and that he generally holds police officers to a higher moral standard

than other people. The prosecutor then elicited Hayden’s affirmation that he would treat all

witnesses the same before they testified. The trial court did not abuse its discretion by

denying Appellant’s challenge for cause on this ground. See Ladd, 3 S.W.3d at 560; Jones,

982 S.W.2d at 389-90.

Finally, we turn to Appellant’s argument regarding Hayden’s understanding of the

term “probability.” We have held that the term “probability” as used in the future

dangerousness special issue need not be defined, but we have also held that the term means

more than a “mere possibility” or “bare chance” of future violence. See Murphy v. State, 112

S.W.3d 592, 600 (Tex. Crim. App. 2003); Smith v. State, 779 S.W.2d 417, 421 (Tex. Crim.

App. 1989). If a venire member’s understanding or definition of the term “probability” is

inconsistent with this distinction, then “it must be explained to the venire member that the

law requires him to see and accept” this distinction. Murphy, 112 S.W.3d at 600; see also Suniga — 102

Feldman, 71 S.W.3d at 744. After the law has been explained, if the venire member

continues to insist upon a definition or understanding of the term “probability” that is

inconsistent with this distinction, then he may be challengeable for cause. Murphy, 112

S.W.3d at 600. On the other hand, if the law was not carefully or adequately explained to

the venire member, then the trial court does not abuse its discretion by denying a challenge

for cause. See id.

When the prosecutor asked Hayden how he would define the term “probability,”

Hayden responded, “The chance of something happening.” The prosecutor then stated that

probability was “more than a possibility but less than a certainty, but there’s no definition,

it’s up to” each juror. Defense counsel also stated that the term “probability” was undefined

and that jurors could have their own definitions. Defense counsel did not explain the law to

Hayden and inquire into his ability to follow it. Thus, the trial court did not abuse its

discretion by denying Appellant’s challenge for cause to Hayden on this basis.

Hill

Appellant challenged Hill on the grounds that she improperly shifted the burden to the

defendant to disprove his guilt and future dangerousness, and that she would require the

defendant to present evidence.

The record reflects that, in responding to a general question about her ability to be fair,

Hill initially indicated that she would consider “different sides” to the story. However, she

also stated that the presumption of innocence, which placed the burden of proof on the State, Suniga — 103

was fair. When the prosecutor explained that the State had to prove a defendant’s guilt and

future dangerousness beyond a reasonable doubt, Hill did not express any difficulty in

understanding and applying that requirement. Similarly, when questioned by defense

counsel, Hill indicated that she understood that the State had the burden to prove a

defendant’s guilt and the future dangerousness special issue beyond a reasonable doubt. She

reiterated that “each side has a story to tell,” and she opined that defense counsel would be

a poor advocate if he did nothing on the defendant’s behalf. However, she also stated that

she would not hold defense counsel’s failings against the defendant and that, if the defense

did nothing, it would not affect her verdict.

Defense counsel continued this line of inquiry:

Q. Okay. Do you think -- do you believe there’s any burden on us to prove that the State’s wrong?

A. According to everything I’ve heard you have no burden to produce anything.

Q. Do you think that’s fair?

A. I think that’s fair. That’s the way the law is written.

Q. Okay. One of your roles as a juror is obviously you have to hear all the evidence, but what -- after you hear the evidence, what do you have to do with it?

A. You have to -- you have to go through it and decide whether it’s -- whether it meets the requirements of the case.

Q. Okay. You have to process all that stuff, don’t you?

A. Yes, sir. Suniga — 104

Q. Okay. And where do you think 99.9 percent of that evidence is going to come from?

A. The State.

This record does not support Appellant’s assertions that Hill would improperly shift

the burden to the defendant to disprove his guilt and future dangerousness, or that Hill would

require the defendant to present evidence. To the extent that Hill’s answers were vacillating

or unclear, we defer to the trial court’s decision. See Hernandez, 390 S.W.3d at 317. The

trial court did not abuse its discretion by denying Appellant’s challenge for cause to Hill.

Jetter

Appellant challenged Jetter on grounds that he: (1) was “an automatic yes” on the

future dangerousness issue, in that the defendant “would always be a future danger,” 32 and

therefore was biased against a law upon which Appellant was entitled to rely; (2) improperly

shifted the burden of proof to the defendant; and (3) favored the credibility of police officers

as witnesses.

When questioned by the prosecution, Jetter indicated that he understood that the State

had the burden to prove the future dangerousness issue beyond a reasonable doubt. When

questioned by the defense, Jetter indicated that, after finding a defendant guilty, he would not

automatically think that the death penalty was the appropriate punishment. Jetter did not

32 On appeal, Appellant focuses on Jetter’s broad understanding of the phrase, “criminal acts of violence.” We will not consider this argument because defense counsel’s challenge for cause during voir dire did not give the trial court notice of this particular complaint. See Rule 33.1; see also Layton, 280 S.W.3d at 239. Suniga — 105

state that, after finding a defendant guilty of capital murder, he would always answer the

future dangerousness issue affirmatively. Further, neither party asked Jetter whether he

would be able to answer the future dangerousness question negatively. See Feldman, 71

S.W.3d at 744 (explaining that, before a prospective juror may be excused for cause on the

basis of bias or prejudice, the law must be explained to him and he must be asked whether

he can follow that law regardless of his personal views). As the proponent of the challenge

for cause, Appellant had to show that Jetter understood the requirements of the law and could

not overcome his prejudice well enough to follow it. See Davis, 329 S.W.3d at 807.

Appellant did not make this showing. Thus, the trial court did not abuse its discretion by

denying Appellant’s challenge for cause on this ground.

When the prosecutor explained the State’s burden of proof, Jetter indicated that he

understood and would hold the State to its burden of proving the defendant’s guilt and future

dangerousness beyond a reasonable doubt. Jetter stated that placing the burden of proof on

the State was fair and that the State should have that responsibility. When defense counsel

asked Jetter what the role of the defense should be, Jetter stated that he felt that the defense

was “there to argue what has been shown by the other side and prove that the other side was

wrong.” Defense counsel asked Jetter if he expected the defense to bring him evidence, and

he responded, “I feel that the State has the burden of proof, but then the Defense has a burden

to prove that some of what -- some or all of what was said by the State is incorrect.”

However, Jetter also stated that he would not hold it against the defendant if the State Suniga — 106

presented fifteen witnesses and the defendant did not present any. He added, “even though

the Defense hasn’t proven anything or sent anybody to disprove the other side does not mean

that he’s not correct. Does that make any sense?” Jetter then affirmed that he could find the

defendant not guilty even if the defense presented no witnesses; he could rely solely on the

State’s evidence to find the defendant not guilty.

As the proponent of the challenge for cause, Appellant had to show that Jetter

understood the requirements of the law and could not overcome his prejudice well enough

to follow it. See Davis, 329 S.W.3d at 807. Appellant’s questions concerning Jetter’s views

about the role of the defense did not accomplish this. Cf. Ladd, 3 S.W.3d at 561 (finding no

abuse of discretion in denying challenge for cause to venire member who stated that he

would expect the defendant to present evidence of his innocence but who also stated that he

would follow the law and hold the State to its burden of proof). Further, to the extent that

Jetter’s answers were unclear or vacillating, we defer to the trial court’s decision. See

Hernandez, 390 S.W.3d at 317. The trial court did not abuse its discretion by denying

Appellant’s challenge on this basis.

Jetter stated that he would not automatically believe that a police officer witness

would tell the truth. When defense counsel asked Jetter where he would “put” a “police

officer on the credibility scale” when the officer took the stand, Jetter responded, “Higher

than midway, but at the same time a police officer is just a regular person like everyone else.”

Jetter stated that he had known police officers to lie. When asked where he would place a Suniga — 107

testifying defendant on the credibility scale, Jetter responded that he would “start out” a

testifying defendant “midway,” in that the defendant “doesn’t have anything against him or

anything for him at the beginning.” Jetter’s responses indicated that, although he might give

a “slight edge” to police officer witnesses, he was open-minded and persuadable, with no

extreme or absolute positions regarding the credibility of any witness. See Jones, 982

S.W.2d at 389-90. The trial court did not abuse its discretion by denying Appellant’s

challenge for cause to Jetter.

Hicks

Appellant challenged Hicks on the ground that he defined the phrase, “criminal acts

of violence,” as used in the future dangerousness issue, too broadly, based on “his belief that

any violation of the law or rule is a criminal act of violence.”

The Legislature has not defined the phrase “criminal act of violence.” Jones v. State,

119 S.W.3d 766, 788 (Tex. Crim. App. 2003). Therefore, a juror is presumed and permitted

to attach a reasonable, common meaning or understanding to the phrase. Id. Thus, the trial

court acts within its discretion by denying a challenge for cause to a juror who attaches such

a meaning. See id. There is no “bright line rule” stating that certain types of offenses or bad

acts are not criminal acts of violence. See id. at 788-79 (declining to categorically exclude

threats of violence and property crimes from the scope of the phrase “criminal acts of

violence”); see also Burks v. State, 876 S.W.2d 877, 894 (Tex. Crim. App. 1994) (explaining Suniga — 108

that crimes against property can be crimes of violence, depending upon the facts and

circumstances of each case).

In this case, the prosecutor asked Hicks an open-ended question, “What do you think

criminal acts of violence are?” Hicks responded, “Anything that wouldn’t fall into the

normal structure of wherever you are -- I don’t know how to explain it.” The prosecutor

suggested that the phrase could encompass “anything from another murder all the way down

to a threat,” but added that the phrase was not defined and that each juror could decide what

he thought was a criminal act of violence. Later, defense counsel asked Hicks, “[W]hat is

your view of what criminal acts of violence are?” Hicks expressed his understanding that

the phrase included any violation of a law or rule. Defense counsel did not inquire further

into Hicks’s understanding of this phrase but instead asked Hicks about his understanding

of another phrase, “continuing threat,” which Hicks described as something that “would

happen over and over again.”

The fact that the phrase, “criminal acts of violence,” is not legally defined did not

prevent defense counsel from exploring Hicks’s ability to attach a common meaning to it.

Assuming arguendo that Hicks’s responses concerning the phrase “criminal acts of violence”

indicated that Hicks did not attach to it a reasonable, commonly accepted meaning, defense

counsel was nevertheless required to question Hicks further to establish that he was biased

against a phase of the law upon which Appellant was entitled to rely. See Feldman, 71

S.W.3d at 744. “A potential juror’s initial disagreement with any phase of the law relevant Suniga — 109

to a case does not merit a per se excusal for cause.” Cockrum v. State, 758 S.W.2d 577, 586

(Tex. Crim. App. 1988). “Instead, further examination may reveal misapprehension of

relevant substantive law, trial procedure, or even the meaning of counsel[’s] questions.” Id.

In this case, defense counsel could have asked Hicks if he perceived any difference

between the phrases “criminal acts” and “criminal acts of violence.” Similarly, counsel could

have inquired into Hicks’s understanding of the word “violence” and the phrase “acts of

violence.” Instead, defense counsel accepted Hicks’s initial answer to his open-ended

question and pivoted to another subject. Having made no effort during voir dire to clarify

Hicks’s understanding or establish that Hicks was biased against a phase of the law upon

which Appellant was entitled to rely, Appellant has not shown that the trial court abused its

discretion by denying Appellant’s challenge for cause to Hicks.

West

Appellant challenged West on the grounds that he: improperly shifted the burden of

proof to the defendant; had an erroneous understanding of the term “probability” as used in

the future dangerousness special issue; and favored the credibility of police officers as

witnesses.

When the prosecutor explained the State’s burden of proof, West agreed that the State

had to prove its case beyond a reasonable doubt. He expressed his understanding that a

defendant was presumed innocent until the State proved otherwise, and he stated that he

would find the defendant innocent if the State did not prove its case. Similarly, West stated Suniga — 110

that he would hold the State to its burden of proof on the future dangerousness special issue.

West also stated that he would not require the defendant to present evidence.

Defense counsel asked West whether, if the State had not proved its case beyond a

reasonable doubt, he would consider the defendant’s failure to present evidence as a reason

to find him guilty. West responded that he would not. Counsel then asked West whether he

thought it was “fair” that the defense attorneys did not have to present any evidence for the

defense during the trial. West replied that it did not “seem fair.” He explained that he

thought defense counsel “would want to produce evidence for your client, or the person,

individual, in their favor.” He responded affirmatively when counsel asked West if he would

expect a defendant to bring forth evidence that the defendant did not commit a crime.

Defense counsel asked West whether he would “take that into consideration” when making

a decision “beyond a reasonable doubt,” and West responded affirmatively.

Defense counsel asked West if he thought that defense counsel “need[ed] to prove the

State’s theory is not true,” and West responded, “Yes, I think it would be in your favor to

prove that the State’s not right.” Counsel then asked, “If I fail to do that and bring you any

evidence, are you going to calculate that into your decision making?” West responded

affirmatively.

Defense counsel then reminded West that “the law says” that the defendant does not

have to bring forth any evidence of any kind or show that the State is wrong. West again

indicated that he understood the law. Counsel continued, “What I heard you say is that [in] Suniga — 111

your heart of hearts, is you really expect the Defendant to say something and for him to prove

he’s innocent, and he’s to prove the State’s wrong.” West responded, “Yes. Or -- and it

might help him get a lesser sentence.” Counsel again asked, “[I]in your heart of hearts that’s

what you expect us to do?” West again answered affirmatively.

The prosecutor then asked West whether he could promise to follow the law, hold the

State to its burden of proof, and not hold it against the defendant if the defense did not

present evidence. West affirmed that he could do that.

This record reflects that West understood that the State had the burden to prove the

defendant’s guilt and future dangerousness beyond a reasonable doubt. Notwithstanding his

personal views, West stated that he would not consider the defendant’s failure to present

evidence as a reason to find the defendant guilty. Defense counsel did not inquire into

West’s ability to set aside his personal views and follow the law, and West never expressed

an inability to do so. Cf. Ladd, 3 S.W.3d at 561. We defer to the decision of the trial judge,

who was in the best position to ascertain whether West’s opinions would interfere with his

ability to serve as a juror. See Davis, 329 S.W.3d at 807.

When the prosecutor initially asked West for his understanding of the term

“probability,” West stated that the term meant “might” and “there’s a chance of doing it

again.” The prosecutor then indicated that “probability” meant something more than a

possibility, illustrating the point with an example: “[I]t’s possible that it could snow in April Suniga — 112

in Lubbock, but is it probable? Something more than a possibility. Something more than just

a mere chance.” West expressed his agreement with that definition.

Defense counsel also asked West about the term, “probability.” West recalled that he

had told the prosecutor that “probability” meant “[t]hey might do something again, or there’s

a chance it could happen again,” but he stated that the prosecutor had provided a better

definition than he could. On further questioning, West responded that “probability” meant

more than a bare chance; it meant “more than likely.”

Although West initially may not have understood that the term “probability” meant

“more than a ‘mere possibility’ or ‘bare chance’,” West understood and accepted this

distinction once it had been explained to him. See Murphy, 112 S.W.3d at 600. Therefore,

he was not challengeable for cause on this basis.

The prosecutor asked West whether he thought that all police officers told the truth

all the time. West responded negatively, adding, “there’s bad eggs in everything.” West

affirmed that he could start every witness “on a level playing field” and assess witnesses’

credibility based on their testimony.

When defense counsel questioned West about this subject, West reiterated that he did

not believe that a police officer would be a more credible witness than another person.

Defense counsel then asked West whether an eyewitness would be a “better witness than

anybody else.” West stated that he did not believe so, but added that he would find an

eyewitness to be “very credible.” West explained that he would give more credit to the Suniga — 113

testimony of someone who “was there, they saw it first hand.” West then acknowledged that

he would credit an eyewitness more than a testifying defendant. He also stated that he would

probably “start” a testifying police officer “higher on the scale” than a testifying defendant.

West stated that he would probably give eyewitnesses “a leg up on police officers,” and he

would give police officers “a leg up on” the defendant.

The prosecutor then pointed out that West, as a juror, would not know whether a

witness was an eyewitness until that witness started testifying. West confirmed that he would

not judge the credibility of a person who took the witness stand until that person started

talking. He stated that he would evaluate the witness’s credibility based on that witness’s

testimony and how it compared to the other evidence and testimony presented.

This record reflects that West’s responses indicated that he was open-minded and

persuadable, with no extreme or absolute positions regarding the credibility of any witness.

Jones, 982 S.W.2d at 389-90. To the extent that West’s answers were vacillating, unclear,

or contradictory, we accord particular deference to the trial court’s decision. See Hernandez,

390 S.W.3d at 317. The trial court did not abuse its discretion by denying Appellant’s

challenge for cause to West.

Hampton

Appellant challenged Hampton on the grounds that she would require the defendant

to testify and produce evidence to disprove his guilt and future dangerousness. Suniga — 114

When the prosecutor asked Hampton if she had any thoughts about why a defendant

would not want to testify, Hampton responded, “There could be a lot of reasons why they

wouldn’t want to testify.” The prosecutor then suggested that a person might be so afraid of

testifying that he could not communicate, or he might not speak English very well. Hampton

did not disagree with the prosecutor’s statement that a juror could not hold a defendant’s

decision not to testify against him.

When defense counsel questioned Hampton concerning her “feelings” about a

defendant’s right to remain silent and right not to testify, Hampton replied that the law gave

the defendant “a choice.” Counsel asked Hampton if it would “seem frustrating” to her if the

defendant did not testify. She answered, “I mean, if he feels that’s in his best interest then

it wouldn’t frustrate me if that’s the choice he made.” Counsel asked her whether she could

set the defendant’s failure to testify aside and not hold it against the defendant. Hampton

stated, “I mean, part of me would wonder what he thinks through all this, if he’s being

accused -- yeah, definitely. But I think I could look past that for sure.” Defense counsel

continued, asking Hampton whether she would feel that the defendant was guilty if he did

not testify, and she stated that she disagreed with that.

This record does not support Appellant’s allegation that Hampton would consider a

defendant’s failure to testify as evidence against him. The trial court did not abuse its

discretion by denying Appellant’s challenge on this basis. Suniga — 115

Hampton also indicated that she understood that the State had the burden to prove a

defendant’s guilt beyond a reasonable doubt by presenting evidence to the jury. She stated

that it made sense that the accuser had to prove the accusations. When defense counsel asked

Hampton what she felt about “[t]he idea that the Defendant has no burden” and “doesn’t have

to do anything,” Hampton responded, “I think that that’s in wording, but it’s not realistic.”

She explained that although the law placed the burden on the prosecution, the “Defense also

has a burden to counteract, I guess. I mean, you have a burden as well even if it’s not in

writing that way.” Defense counsel then asked Hampton, “What kinds of things do you

expect the Defendant to do with their burden?” Hampton stated that she would expect the

defendant “to confirm or deny” the prosecutor’s allegations. Defense counsel asked

Hampton whether in her “belief system” the defendant would also have to “prove some

things” to her, and she responded affirmatively. She indicated that it was “part of human

nature” to expect the defense to present something.

The prosecutor then told Hampton that defense counsel would “zealously advocate

for their client,” but asked her to assume that the defense did not do anything:

Q. And you can’t require them to do anything in order to either find him not guilty or answer those questions in such a way that a life sentence was given.

A. Right.

Q. What you have to be able to commit to, if you can, is, “I’ll listen to whatever evidence is presented and that’s what I’ll make my decision on. I’m not going to speculate and guess what additional things should be out there.”

A. Right. Suniga — 116

Q. You see why this is a silly question. Everybody knows that they’re not going to do that. But can you promise the Court that you will, again, base your decision on what you have and won’t care what you don’t have necessarily?

A. Absolutely, yes.

In this exchange, Hampton confirmed that she would listen to the evidence presented and

make a decision without speculating about evidence she had not heard.

This record supports the trial court’s determination that Hampton could set aside her

personal views and follow the law. See Saldano, 232 S.W.3d at 94-96. To the extent that

her answers were unclear or vacillating, we defer to the trial court’s decision. See

Hernandez, 390 S.W.3d at 317. The trial court did not abuse its discretion by denying

Appellant’s challenge for cause to Hampton.

Timmons

Appellant challenged Timmons on the ground that his opinion of the case was

influenced by his exposure to media coverage, such that he was biased against the law upon

which Appellant was entitled to rely. Specifically, defense counsel asserted that Timmons

had been affected by the media coverage because when he completed the juror questionnaire

in March 2014, he could still recall details of the December 2011 news stories concerning

the offense, including information that the defendant was a gang member and a drug

trafficker.

For an accused to receive a fair trial consistent with due process of law, the jury must

determine his guilt or innocence solely on the basis of the evidence admitted at trial and not Suniga — 117

on the basis of facts or allegations appearing in the media. Narvaiz v. State, 840 S.W.2d 415,

428 (Tex. Crim. App. 1992). Article 35.16(a)(10) provides that a prospective juror must be

discharged if, from exposure to pre-trial publicity such as newspaper articles or other media,

he forms a conclusion as to the guilt or innocence of the defendant that would influence his

verdict. Cooks v. State, 844 S.W.2d 697, 710 (Tex. Crim. App. 1992); see also Devoe v.

State, 354 S.W.3d 457, 474 (Tex. Crim. App. 2011). However, if a prospective juror testifies

that he can set aside any outside influences and render a fair and impartial verdict based upon

the evidence presented, the trial court acts within its discretion by denying a challenge for

cause. Cooks, 844 S.W.2d at 710.

Timmons indicated on his juror questionnaire that he was aware of this case from

publicity at the time of the offense and at the time the suspects were arrested. He recalled

that there was more than one suspect in the case. He also recalled that one of the suspects

told the victim, “That’s what you get,” and then the suspects “ran out.” Further, he recalled

hearing that the suspects had fled to Abilene. He had seen photographs of the suspects and

heard reports of their gang affiliation. When the prosecutor asked Timmons during voir dire

about these questionnaire responses, Timmons stated that he had eaten at the pizza restaurant

less than a month before the robbery, and so the news coverage “kind of got my attention.”

In response to a written question asking whether he had seen or learned about any

other case with facts similar to this one, Timmons had written, “Texas Gang Drug

Trafficking and more.” During voir dire, he explained that, when he answered that question, Suniga — 118

he was recalling that he had first heard news of this case around the same time that he heard

some news stories about gang members, and those stories were associated with this case and

the defendant.

Timmons also acknowledged that the week before his individual jury voir dire, he had

seen a story on the KCBD six o’clock news in which this case was mentioned. He recalled

that the news story had been about gangs in Texas. When the story mentioned the facts of

this case, he had changed the channel. Timmons stated that that news story was the only

coverage about this case that he had seen since completing the juror questionnaire. Timmons

repeatedly stated that, based on the coverage he had seen, he had not formed any conclusions

or opinions as to the guilt or innocence of Appellant. He added that he did not believe

everything he heard in the news. He promised that, if he were selected as a juror, he would

base his decisions in the case on the witnesses and evidence presented in the courtroom, and

not on what he had seen or heard elsewhere.

In this case, Timmons frankly described the extent of his exposure to pre-trial

publicity. He repeatedly stated that, based on the media coverage he had seen, he had not

formed any conclusions or opinions about Appellant’s guilt or innocence. We defer to the

trial judge, who was in the best position to evaluate Timmons’s demeanor and responses. See

Davis, 329 S.W.3d at 807. The trial court did not err in denying Appellant’s challenge for

cause.

Hanfeld Suniga — 119

Appellant challenged Hanfeld on grounds that he was mitigation-impaired and,

therefore, he was biased against a law upon which Appellant was entitled to rely.33

Specifically, defense counsel asserted that Hanfeld defined mitigation as “something that

actually justifies why the murder itself took place,” and that Hanfeld’s “idea of protecting

society pervades his opinions about punishment,” with the result that he had a “bias against

life without parole” as a punishment.

The record reflects that Hanfeld expressed no confusion or discomfort with the

prosecutor’s explanation of the special issues. However, when the prosecutor asked him for

an example of mitigating evidence, Hanfeld gave the example of a mercy killing in which

a husband ended the suffering of his terminally ill wife. The prosecutor pointed out that in

such a situation, the trial would not be for capital murder. The prosecutor then provided

other examples of potentially mitigating evidence, noting that each juror would determine

the mitigating value of any particular evidence. Hanfeld stated that he could consider all of

the evidence and decide whether it provided sufficient mitigation. When the prosecutor

asked Hanfeld to review a list of society’s reasons for punishing people in the justice system

and choose the reason that was most important to him, Hanfeld stated, “I would say punish

to protect society.”

33 At trial, Appellant also challenged Hanfeld on the ground that he was unable to consider the full punishment range, but he has not renewed this ground on appeal. Therefore, we will not consider it. Suniga — 120

Defense counsel then asked Hanfeld whether he would always assess the death penalty

or a life sentence after convicting a defendant of capital murder. Hanfeld stated that he

would not always assess either sentence but instead would “take a look at the evidence that’s

presented and arrive at a logical conclusion based on the evidence.” Hanfeld affirmed that

he understood there would be no justification or excuse in the context of a capital murder.

Defense counsel then asked Hanfeld, “What are your feelings about the death penalty as the

only appropriate punishment for a guilty murderer?” Hanfeld responded, “That takes away

any options of mitigating. That’s it. I mean, that’s the definitive answer to the question.

And I -- that would bother me a little bit.” He stated that he disagreed that the death penalty

should be the only punishment because there could be different circumstances and variables

in each situation.

Defense counsel also asked Hanfeld for his understanding of the future dangerousness

special issue. Initially, Hanfeld stated that the question asked whether a defendant would

probably commit a similar crime if “released back into a community, be it a prison

community or Lubbock, whatever.” Counsel then reminded Hanfeld that once a defendant

had been found guilty of capital murder, he would be in the penitentiary whether he received

a sentence of life or death. Hanfeld indicated that he understood.

When questioned further, Hanfeld stated that someone convicted of a crime would be

placed in the penitentiary “for the benefit of the society in general to keep them separate,”

but as a human being, that person deserved whatever limited rights he would have within the Suniga — 121

penitentiary. Hanfeld indicated that he believed that death sentences and life without parole

sentences protected society. He opined that a defendant’s background was an important part

of determining the defendant’s character and ability to make decisions.

When defense counsel asked Hanfeld how he felt about the fact that some of the terms

in the special issues, such as “sufficient” and “mitigating,” were not legally defined, Hanfeld

described himself as a concrete thinker and acknowledged that he would prefer more

concrete definitions of those terms. However, he also stated that even without more concrete

definitions for those terms, he could still participate in the process of answering the special

issues. Defense counsel stated that mitigating evidence would be any evidence that

suggested that a sentence of life rather than death was the appropriate punishment. Hanfeld

affirmed that this definition made sense.

Defense counsel then explained that, unlike the mercy killing scenario in which the

husband’s motivation for committing the offense was mitigating, mitigating evidence did not

have to have “that kind of connection to the crime” or “explain the why of the crime.” When

defense counsel asked Hanfeld how he felt about that, he stated that he understood the

difference and would be able to accept mitigating evidence that did not have a connection

to the offense.

Hanfeld was not required to consider any particular type of evidence as mitigating.

See Hernandez, 390 S.W.3d at 315; see also Maldonado v. State, 998 S.W.2d 239, 249 (Tex.

Crim. App. 1999). Further, this record does not support Appellant’s assertion that Hanfeld’s Suniga — 122

concept of mitigating evidence was limited to evidence that justified the offense.

Additionally, the record does not support Appellant’s assertion that Hanfeld’s concern with

protecting society constituted an improper bias in favor of the death penalty. The trial court

acted within its discretion to deny Appellant’s challenge for cause to Hanfeld.

Because Appellant received two extra peremptory strikes and has failed to show that

the trial court erred when it denied his challenges for cause to at least three prospective

jurors, he has not shown that he is entitled to relief. See Buntion, 482 S.W.3d at 83, 104.

Therefore, we need not address whether the trial court erred in denying Appellant’s

challenges to venire members Castillo and Lamar. Point of error nine is overruled.

ARTICLE 37.071

In points of error ten through sixteen, Appellant challenges the trial court’s rulings

concerning the constitutionality of Article 37.071. Specifically, in point of error ten,

Appellant asserts that the trial court erroneously denied his motion to declare Article 37.071,

section 2(f)(4)34 unconstitutional for limiting the definition of mitigating evidence to that

which reduces the defendant’s blameworthiness and for overruling his objections that the

jury charge unconstitutionally restricted the jury’s understanding of mitigating evidence. In

point of error eleven, Appellant asserts that the trial court erred in denying his motion to hold

that the statutory definition of mitigating evidence is unconstitutional as applied because it

34 Article 37.071, section 2(f)(4) provides that the court shall charge the jury that in answering the mitigation special issue, the jury “shall consider mitigating evidence to be evidence that a juror might regard as reducing the defendant’s moral blameworthiness.” Suniga — 123

imposes a “nexus” limitation. Appellant acknowledges that we have rejected similar

arguments. See Coble, 330 S.W.3d at 296. We are not persuaded to revisit these issues.

In point of error twelve, Appellant asserts that the trial court erroneously overruled

his objections to Texas’s “10-12 Rule” and its failure to instruct the jury on the potential

impact of a single holdout juror, because Article 37.071, sections 2(d)(2) and 2(f)(2)35

unconstitutionally mislead jurors concerning the true effect of their failure to agree on a

sentence. He argues that these provisions introduce an intolerable level of uncertainty and

unreliability into the fact finding process. Appellant acknowledges that we have rejected

similar arguments. See Prystash, 3 S.W.3d at 536. We are not persuaded to revisit the issue.

In point of error thirteen, Appellant asserts that the trial court erred in denying his

motion to hold that Article 37.071 is unconstitutional “because it provides no definition of

critical terms,” specifically the terms, “personal moral culpability of the defendant,”

“probability,” “criminal acts of violence,” “continuing threat,” and “society.” We have

rejected similar claims. See Luna v. State, 268 S.W.3d 594, 609 (Tex. Crim. App. 2008)

(rejecting claim that Article 37.071 is unconstitutional for failing to define “personal moral

culpability”); Murphy, 112 S.W.3d at 606 (concluding that the jury is presumed to understand

35 Article 37.071, section 2(d)(2) provides, in relevant part, that the court shall charge the jury that it may not answer the future dangerousness issue special issue “‘yes’ unless it agrees unanimously and it may not answer any issue ‘no’ unless 10 or more jurors agree.”

Article 37.071, section 2(f)(2) provides that the court shall charge the jury that in answering the mitigation special issue, the jury “may not answer the special issue ‘no’ unless it agrees unanimously and may not answer it ‘yes’ unless 10 or more jurors agree.” Suniga — 124

the terms, “probability,” “criminal acts of violence,” and “continuing threat to society”

without an instruction). We are not persuaded to revisit the issue.

In point of error fourteen, Appellant asserts that the trial court erred in denying his

motion to preclude the death penalty as a sentencing option, to declare Article 37.071

unconstitutional, and to place upon the State the burden of proving beyond a reasonable

doubt a negative answer to the mitigation special issue. He reasons that the State was

required to include the special issues in the indictment and that the “maximum penalty” in

the Texas capital sentencing scheme is life, such that the State had the burden to disprove the

mitigation special issue beyond a reasonable doubt before a death sentence could be imposed.

We have rejected similar arguments, explaining that, because the “prescribed statutory

maximum” under Article 37.071 is death, the special issues need not be alleged in the

indictment and the State need not prove beyond a reasonable doubt that there are no

mitigating circumstances that would warrant a life sentence. See Roberts, 220 S.W.3d at

535; Rayford v. State, 125 S.W.3d 521, 533 (Tex. Crim. App. 2003); Jones, 119 S.W.3d at

791. We decline to revisit the issue.

In point of error fifteen, Appellant asserts that the trial court erred in denying his

motions to declare Article 37.071, section 2(a) unconstitutional because this provision

permits the trial court to admit, in an arbitrary fashion, any evidence it deems relevant to

sentencing. Specifically, he asserts that this provision introduces arbitrariness, prevents

effective appellate review, undermines the adversarial system, and is void for vagueness. He Suniga — 125

also argues that this provision violates the Texas Constitution’s separation of powers clause

because the Legislature, by failing to provide trial courts with guidelines for determining

what evidence is admissible at the punishment phase of a capital trial, “essentially

delegat[ed] to the trial courts the function of declaring punishment policy case-by-case.”

The special issues provide a framework as to exactly what evidence is “relevant”

under the capital sentencing scheme. See Smith v. State, 919 S.W.2d 96, 100 (Tex. Crim.

App. 1996). Additional guidance “has come from the United States Supreme Court in the

development of Eighth Amendment jurisprudence.” Id. The meaning of relevance is no

different in the context of mitigating evidence in a capital sentencing proceeding than in any

other context. Tennard, 542 U.S. at 284. Punishment-phase evidence, like guilt-phase

evidence, is relevant if it has any tendency to make the existence of any fact of consequence

to the determination of the action more probable or less probable than it would be without

the evidence. See, e.g., id. Trial courts routinely determine whether evidence is relevant

(and therefore admissible, unless otherwise provided) or irrelevant (and therefore

inadmissible). See T EX. R. E VID. 401, 402; Ford v. State, 919 S.W.2d 107, 114-15 (Tex.

Crim. App. 1996) (applying Rule of Evidence 401 in considering whether evidence was

“relevant to sentence” under Article 37.071, section 2(a)); see also Coble, 330 S.W.3d at 269

n.19 (quoting Jurek v. Texas, 428 U.S. 262, 274-76 (1976)) (“[P]rediction of future criminal

conduct is an essential element in many of the decisions rendered throughout our criminal

justice system.”). Article 37.071’s provision that a trial court may admit any evidence it Suniga — 126

deems relevant to sentencing does not introduce a new element of arbitrariness to such

determinations. Similarly, we are not persuaded that the special issues framework provided

by the Legislature impermissibly delegates “policy” decisions to the trial courts.

In point of error sixteen, Appellant asserts that the trial court erred in denying his

motion to declare Article 37.071 unconstitutional because it allows juries to decide future

dangerousness based solely on the facts of the offense. Appellant focuses on the lack of

guidance in the jury instructions regarding factors concerning the crime and the defendant

that this Court has identified as relevant to assessing the sufficiency of future dangerousness

evidence on appeal. He refers specifically to the non-exclusive list of factors enumerated in

Keeton v. State, 724 S.W.2d 58, 61 (Tex. Crim. App. 1987). Appellant also points to a lack

of empirical data establishing any link between the facts of an offense and the likelihood that

an offender will be a future danger.

We concluded that, contrary to Appellant’s argument, the submission of the future

dangerousness special issue is sufficient to constitutionally guide the jury’s determination.

Druery v. State, 225 S.W.3d 491, 509 (Tex. Crim. App. 2007) (citing Jurek, 428 U.S. at 275)

(noting that the United States Supreme Court has concluded that the submission of the future

dangerousness special issue constitutionally guides the jury’s determination); see also

Gardner, 306 S.W.3d at 303 (citing Jurek, 428 U.S. at 276) (concluding that the special

issues and mandatory jury instructions of Texas’s statutory scheme achieve the heightened

reliability required by the Eighth Amendment). “What is essential is that the jury have before Suniga — 127

it all possible relevant information about the individual defendant whose fate it must

determine.” Coble, 330 S.W.3d 253 at n.19 (citing Jurek, 428 U.S. at 274-76). “Texas law

clearly assures that all such evidence will be adduced.” Id. Thus, the trial court did not err

in denying Appellant’s motion.

Points of error ten through sixteen are overruled.

CUMULATIVE IMPACT

In point of error seventeen, Appellant asserts that the cumulative impact of the trial

court’s errors was so great that reversal is required. Having found little or no error, and no

harm, with respect to each point of error separately, we decline to find cumulative harm “so

great that reversal is required.” See Murphy, 112 S.W.3d at 607 (“Because we have found

little or no error in the above-alleged points, there is no harm or not enough harm to

accumulate.”). Point of error seventeen is overruled.

We affirm the judgment of the trial court.

DELIVERED: February 1, 2017 DO NOT PUBLISH