Velez, Manuel

• Court: Court of Criminal Appeals of Texas
• Decided: June 13, 2012
• Docket: AP-76,051
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,051

MANUEL VELEZ, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL FROM CAUSE NO. 07-CR-721-G IN THE 404 TH JUDICIAL DISTRICT COURT CAMERON COUNTY

J OHNSON, J., delivered the opinion of the Court in which P RICE, W OMACK, C OCHRAN, and A LCALÁ, JJ., joined. K ELLER, P.J., concurred. M EYERS, K EASLER, and H ERVEY, JJ., dissented.

OPINION

In October 2008, a jury convicted appellant of the 2005 capital murder of a one-year-old

child. TEX . PENAL CODE ANN . § 19.03(a)(8). Based on the jury’s answers to the special issues set

forth in Texas Code of Criminal Procedure Article 37.071, sections 2(b) and 2(e), the trial judge

sentenced appellant to death. Art. 37.071, § 2(g).1 Direct appeal to this Court is automatic. Art.

1 Unless otherwise indicated all references to Articles refer to the Code of Criminal Procedure. 2

37.071, § 2(h). Appellant raises forty-six points of error on direct appeal. After reviewing

appellant’s points of error, we find his guilt phase points of error to be without merit. We sustain

point of error five and reverse and remand this case for a new punishment hearing. We overrule all

other punishment phase points of error.

STATEMENT OF FACTS

On October 31, 2005, Angel Moreno (“Angel”) was one day shy of his first birthday. He was

in his home with his mother Acela Moreno (“Moreno”), his sister Emily, his brother Alexis,

appellant’s son Ismael, and appellant, who was romantically involved with Moreno. According to

Moreno, after breakfast Angel cried as he lay in an armchair but he was otherwise behaving

normally. Later that afternoon, Moreno placed Angel on a living-room sofa with Emily. Emily held

Angel in her arms while Moreno took Alexis into the bedroom to sleep. When Moreno lay down

with Alexis on one bed, appellant and Ismael arose from napping on another bed and left the

bedroom. According to Moreno, although she was lying down, she never fell asleep. She did not

hear anything unusual from the rest of the house for about twenty minutes, but she then heard “some

blowing . . . three times” followed by running water in the bathroom.

From the bedroom door, appellant told Moreno that there was something wrong with Angel.

Appellant had moved Angel from the living room to another bedroom. Moreno rushed to the child,

and when she realized that Angel was not breathing, she directed appellant to use the neighbor’s

phone to call 9-1-1. Appellant left the house in search of a phone with Moreno following behind

him. The neighbor later told police that appellant was yelling and agitated. In her statement to

police, she described appellant as nervous to the point that he was not able to use the cordless

telephone. However, at trial, she testified that appellant told her that the phone did not work and 3

described appellant as not as “worried as any person that would find themselves in this situation

would be.” She made the phone call to 9-1-1 for him. The same neighbor also told police that

Moreno came out of the house holding Angel in her arms. In describing Moreno’s demeanor to

police, the neighbor said that Moreno “only would complain, she would say ‘my baby, my baby’ but

I never really saw any tears.” According to the neighbor, she could see Angel’s heartbeat although

his body was “completely lose (sic)” and “his lips were purple.”

When Cameron County Deputy Constable Jesus Coria arrived at the scene, he saw a “lady

carrying a baby with one of her hands.” According to Coria, “the baby was just dangling” and

“looked lifeless.” He took Angel from Moreno and administered CPR until Emergency Medical

Services (EMS) personnel arrived. He noted that appellant was standing with his arms crossed, just

watching what was happening. At the direction of his supervising officer, Coria did not generate a

report of the incident, but he testified at trial that he recalled noticing bruises on Angel’s forehead,

arms, and abdomen. He turned Angel’s care over to firefighter and Emergency Medical Technician

(EMT) Fernando Rivera, Jr., who also administered CPR. Rivera immediately noticed that Angel

was not breathing. Rivera observed “several contusions on [Angel’s] body, on the sides, on the back,

on the head, [and] forehead.”

En route to Valley Regional Hospital in Brownsville, Osiel Garcia, an EMT employed by the

City of Brownsville EMS, administered an electrocardiogram, which showed electrical activity in

Angel’s heart, but no pulse. Garcia noted that Angel had suffered several visible injuries, including

a contusion on the left side of his forehead with redness in the area, a scrape on his left ear, bruising

on the trunk of his body, and discoloration of the skin in his lower extremities.

Angel’s pediatrician, Dr. Asim Zamir, was called to the emergency room when Angel 4

arrived. Dr. Zamir noted that Angel was “critically ill” and that he was being given life-saving

measures. He also noticed “marks and bruises on [Angel’s] body which were unusual.” According

to Dr. Zamir, Angel’s heart was not beating when he arrived at the hospital, but the medication

administered during transport was beginning to take effect, and Angel’s heart was beginning to beat.

The decision was made to transport Angel to a larger hospital for “high level care.”

Angel was transported by helicopter to Valley Baptist Hospital in Harlingen. Upon arrival,

he was attended by pediatrician and intensive-care specialist Dr. Maria Camacho. According to Dr.

Camacho, Angel was not responsive–his pupils were dilated, he had no involuntary gag reflex, and

his heart had not been beating for at least 45 minutes. Dr. Camacho’s examination also revealed that

Angel suffered from anemia. He was pale, and it appeared that he had not been eating well. He

suffered from frontal subarachnoid bleeding, multiple abrasions and bruises, and subdural

hemorrhages. Dr. Camacho suspected that although Angel was “alive” because he was connected

to a respirator, he was actually “brain dead.” However, she could not make that diagnosis without

following a protocol of exams that needed to be repeated twelve hours later by another physician.

After twelve hours, pediatric neurologist Dr. Rafael Mimbela completed the same protocol and also

concluded that Angel was “brain dead.” Angel was disconnected from the respirator and declared

dead. The autopsy revealed that Angel died as a result of significant head trauma.

SUFFICIENCY OF THE EVIDENCE

In point of error seven, appellant challenges the sufficiency of the evidence supporting his

conviction. When deciding whether evidence is legally sufficient to support a conviction, we assess

all the evidence in the light most favorable to the verdict to determine whether any rational trier of

fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 5

443 U.S. 307 (1979). In Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007), we further

described the Jackson standard of review with regard to cases involving circumstantial evidence and

conflicting inferences:

[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This standard accounts for the factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Therefore, in analyzing legal sufficiency, we determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. Our review of all of the evidence includes evidence that was properly and improperly admitted. When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the prosecution and therefore defer to that determination. Direct and circumstantial evidence are treated equally: Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.

Id. at 778 (internal citations and quotation marks omitted).

To prove the essential elements of capital murder in this case, the state had to show that

appellant intentionally or knowingly caused the death of a child who was under six years of age.

TEX . PENAL CODE ANN . §§ 19.02(b)(1) & 19.03(a)(8). The identity of an offender can be proven

by direct or circumstantial evidence. Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986).

Additionally, circumstantial evidence may be used to prove intent. An accused’s intent can be

determined from his words, acts, and conduct. Smith v. State, 965 S.W.2d 509, 518 (Tex. Crim.

App. 1998). Evidence of a particularly brutal mechanism of death, inflicted upon a helpless victim,

can prove intent or knowledge beyond a reasonable doubt. Patrick v. State, 906 S.W.2d 481, 487-88

(Tex. Crim. App. 1995).

In June or July of 2005, appellant and Moreno moved into a house on Chilton Street in 6

Brownsville, Texas, across the street from Moreno’s sister Magnolia Medrano. Medrano testified

that she noticed a bite mark on Angel during the time that Moreno and appellant were living

together. Moreno, however, told Medrano that she was responsible for the bite mark. In September

2005, appellant went to work in Memphis, Tennessee. Moreno and her children moved in with

Yvonne Salazar, a family friend, for a few weeks before appellant returned from Memphis. Angel’s

father, Juan Chavez, last saw Angel “when Hurricane Rita hit,” which was in September 2005, while

Moreno was living with Salazar and appellant was still in Memphis. Chavez testified that Angel was

healthy and that he saw no signs of abuse. Medrano then saw Moreno and Angel on October 13,

2005, the day before appellant returned from Memphis. Medrano testified that on that day, Angel

was fine and she did not see any injuries on the child.

On October 18, 2005, Moreno took Angel for a regular well-baby check with his pediatrician.

Dr. Zamir testified that Angel was in the 70th percentile for weight, his height was excellent, and his

milestones were very good. During that visit, Angel was congested with a slight fever and cough,

and he was constipated. Developmentally, however, there was nothing wrong with Angel. Further,

there were no signs of physical abuse noted in Angel’s records. Later that day, appellant and Moreno

moved into a home on Vermont Circle. Moreno testified that appellant was not there “all the time”

because “he would go out.” Moreno also testified that she began noticing bruises, marks, and cuts

on Angel after they moved to Vermont Circle. She suspected that appellant was harming her son,

and she told him to stop.

In his statement to police, appellant provided his own version of events. In addition to

exculpating himself, appellant claimed that Moreno abused her children. He told police that her

family was aware of how she treated her older children. He explained to police that while he played 7

roughly with Angel, he had nothing to do with Angel’s head injuries. Appellant stated that after

Moreno lay down for a nap, he was walking by the sofa where Angel was with Emily when he

noticed that Angel was having trouble breathing. Appellant stated that he shook Angel and then

placed Angel on the bed in the second bedroom before getting Moreno. Appellant admitted in his

statement to police that he had bitten Angel because “[t]his is the way I play with [Angel].” In his

statement, which was read to the jury and entered into evidence, appellant stated:

I did bite the baby Angel Moreno on the cheek and on his buttocks about three days ago. I did this to the baby because I was playing with him. This is the way that I play with him. Sometimes I will pull or smash his nose with my hand. I will pick him up and put his forehead against mine.

Appellant explained that he played with Angel this way because Angel “cause[d] me to [be] anxious

because he is white and I don’t know.” Appellant also admitted the following:

[E]arlier today I was playing with the baby Angel Moreno by throwing him up in the air and catching him while I was lying on the bed. The baby did sustain bruises along his ribs while I played with him last week by throwing him up and catching him and squeezing him a little hard along his rib area. I was playing with him today and I shook the baby with force. I did this because I was trying to get him to laugh. He doesn’t smile with me.

Moreno testified that on the day of the offense, Angel was normal and breathing well when

she laid him down with Emily. Moreno described appellant as “nervous” when he came to tell her

that something was wrong with Angel. She admitted on cross-examination that she never heard

Angel crying. However, Dr. Norma Jean Farley, the forensic pathologist who performed the autopsy,

testified that this would not have been unusual. Dr. Farley testified that a child very possibly would

not cry when hit with enough force to cause Angel’s injuries because such a blow “could put you

out.”

The neighbor testified that appellant did not seem worried, although her statement to police 8

indicated that appellant was nervous. She testified that appellant told her that a child was choking

and he asked to use her phone. When she gave appellant her cordless phone, he told her that the

phone did not work. On cross-examination, she admitted that she did not actually see if appellant

attempted to dial 9-1-1. She testified that she dialed the number. At the time of trial, she did not

recall telling police that appellant was nervous. When emergency personnel arrived at the scene,

they noticed that appellant was “laid back,” “indifferent,” and stayed to himself, standing back.

During the autopsy of Angel’s body, Dr. Farley conducted an initial visual examination of

the child and found several injuries, including the following:

• a perfect circular scar on the bottom of his left foot that appeared to be a cigarette burn;

• a u-pattern burn on the posterior and lateral part of his left thigh that appeared to be from a disposable cigarette lighter;

• bruising from what appeared to be a bite mark on the posterior and lateral part of his left thigh;

• two more sets of bite marks on his torso; and

• a very large contusion with green discoloration that appeared older than the other injuries on his lateral left chest.

Dr. Farley testified that the burn scars and bite marks on Angel’s thigh were old and could

not be accurately dated. The bite marks on his torso were bruising only with no teeth marks. She

testified that the contusion on Angel’s torso was very deep and older than the other injuries.

According to Dr. Farley, these injuries were signs of abuse. They were not, however, life

threatening. She also testified regarding the injuries she found on Angel’s head, including the

following:

• contusions on his mid forehead and left scalp line; 9

• contusions with abrasions on his right frontal scalp and left parietal scalp, one of which was “crusted,” indicating that it was older and healing;

• an abrasion at the top of his left ear; and

• two contusions as well as abrasions on the back of his head.

Once Dr. Farley opened the cranial vault, she discovered acute fresh subdural hemorrhaging

primarily covering the left side and base of Angel’s brain. She also found older subdural

hemorrhaging in both parietal regions that corresponded to skull fractures extending across Angel’s

head. These injuries were caused by significant blunt force trauma, which Dr. Farley described as

being a direct blow or multiple blows to the head. Dr. Farley explained that the injuries were due

to “acceleration of the body or the head and then that instant impact when it hits something hard.”

She described it as like “slinging, you know, an infant up against a wall” or “slamming them by

holding their feet.”

Dr. Farley also found two additional “new” contusions. She described these contusions as

“very significant head trauma,” and indicated that she “usually [does not] see those [sorts of]

contusions even on children who die.” These injuries were of the sort that could stop the heart from

beating, and according to Dr. Farley, they were not consistent with an accident. These contusions

were not caused by the sort of blunt force trauma that occurs when a child falls from a sofa or while

running.

When Moreno took Angel for a regular well-baby check, he was healthy and there were no

signs of physical abuse noted in his medical records. Later that afternoon, Moreno moved

households to a location away from the neighborhood in which her family lived. She and appellant

were the only adults in the household, and appellant admitted to playing roughly with the child. Two 10

weeks later, Angel died as the result of significant head trauma after appellant discovered Angel not

breathing.

Aside from the trauma responsible for Angel’s death, Dr. Farley found evidence of non-life

threatening physical abuse. Angel suffered from two skull fractures that were caused by direct blows

to his head and were a week to two weeks old. Dr. Farley also found bite marks, evidence of

cigarette and cigarette lighter burns, and very deep bruising on Angel’s body. Angel’s pediatrician

testified that the injuries he witnessed in the emergency room on October 31st were not present on

the 18th.

Viewing the evidence in the light most favorable to the verdict, we determine that the

inferences necessary for a rational trier of fact to have found that appellant murdered Angel Moreno,

a child under the age of six years old, are reasonable. Point of error seven is overruled.

ACCOMPLICE CORROBORATION

In point of error three, appellant complains that the trial court erred when it failed to provide

a jury instruction on accomplice corroboration regarding Acela Moreno’s testimony as is required

by Article 38.14.2 Applicant argues that he was egregiously harmed by the lack of the statutory

instruction.

An accomplice is one who participates in an offense, before, during, or after its commission,

to the extent that she can be charged with the offense or with a lesser-included offense. Blake v.

State, 971 S.W.2d 451, 454-55 (Tex. Crim. App. 1998). A prosecution witness who is indicted for

the same offense with which the defendant is charged is an accomplice as a matter of law. Ex parte

2 Article 38.14 states that: “A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.” 11

Zepeda, 819 S.W.2d 874, 876 (Tex. Crim. App. 1991). If a prosecution witness is an accomplice

as a matter of law, the trial court is under a duty to instruct the jury accordingly. Blake, 971 S.W.2d

at 455. Failure to do so is error.

Here, appellant was indicted for the capital murder of a child under six years old. The record

reflects that Moreno was also indicted for capital murder and that she was convicted of the lesser

offense of injury to a child. Therefore, she was an accomplice as a matter of law, and the trial court

should have instructed the jury to that effect. Zepeda, 819 S.W.2d at 876; see also Blake, 971

S.W.2d at 455.

We must next consider whether the trial court’s error was harmful. Answering this question

requires us to examine the effect an accomplice-witness instruction has on the trial. See Herron v.

State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002). Article 38.14 provides that a conviction cannot

be based on an accomplice’s testimony unless that testimony is corroborated by other evidence that

tends to connect the defendant to the offense. Id. The required instruction does not state that the

jury should be skeptical of accomplice-witness testimony. Id. Nor does it instruct that the jury

should give less weight to accomplice testimony than to other evidence. Id. Rather, the instruction

informs the jury that it cannot use the accomplice-witness testimony unless there also exists some

non-accomplice evidence connecting the defendant to the offense. Id. Once it is determined that

such non-accomplice evidence exists, the instruction’s purpose is fulfilled, and the instruction plays

no further role in the jury’s decision-making. Id. Therefore, non-accomplice evidence can render

harmless a failure to submit an accomplice-witness instruction by fulfilling the purpose the

instruction is meant to serve. Id. In determining the strength of a particular item of non-accomplice

evidence, we examine (1) its reliability or believability, and (2) the strength of its tendency to 12

connect the defendant to the crime. Id.

Under Almanza, the appropriate harm analysis depends upon whether the defendant preserved

error by bringing the omission to the trial court’s attention. Almanza v. State, 686 S.W.2d 157, 171

(Tex. Crim. App. 1985). When the error is properly preserved, a reversal is required if “some harm”

is shown. Id. However, when an appellant failed to preserve error, he must show egregious harm.

Id. The difference in harm standards affects how strong the non-accomplice evidence must be before

an erroneous omission of an accomplice-witness instruction will be considered harmless. Herron,

86 S.W.3d at 632.

Appellant acknowledges that, while he requested an accomplice-witness instruction in a

pretrial motion, he did not bring the written request or omission to the trial court’s attention in open

court, thus failing to properly preserve error. Under the egregious-harm standard, the omission of

an accomplice-witness instruction is generally harmless unless the corroborating non-accomplice

evidence is “so unconvincing in fact as to render the State’s overall case for conviction clearly and

significantly less persuasive.” Id. (quoting Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App.

1991)).

The non-accomplice evidence in this case consisted of the testimony of law enforcement

officers, EMS personnel, appellant’s neighbor, emergency-room physicians, forensic pathologists,

and Angel’s aunt, father, and pediatrician. Appellant’s statement is also included in the non-

accomplice evidence. The non-accomplice evidence established that, before appellant returned from

Memphis, Angel’s aunt and father saw no visible signs of abuse. During Angel’s last pediatrician

visit, the doctor did not note any unexplained injuries or signs of abuse in Angel’s medical records.

Within the thirteen days following appellant’s return from Memphis, Angel’s body displayed 13

evidence of significant abuse. During that time period, Angel was living with only his mother,

appellant, and three other children.

The autopsy also revealed that Angel had suffered significant abuse. Angel’s pediatrician

testified that the injuries he saw on Angel in the emergency room had not been present during

Angel’s last office visit. The pathologist who conducted the autopsy testified that these injuries were

inflicted within two weeks of Angel’s death. According to appellant’s statement, he played roughly

with Angel, causing the significant bruising on Angel’s torso that was visible to the responding EMS

personnel and emergency-room physicians. Appellant also admitted in his statement that Angel

made him anxious. Appellant acknowledged that he was the one who discovered that Angel was not

breathing. Further, appellant’s behavior raised the suspicions of both his neighbor and the

responding emergency personnel.

While the non-accomplice testimony in this case is circumstantial, it is not so unconvincing

as to render the State’s case clearly and significantly less persuasive. Appellant did not suffer

egregious harm from the lack of an accomplice corroboration instruction. Point of error three is

overruled.

In point of error eight, appellant alleges that the evidence of accomplice corroboration is

insufficient to support his conviction. “The accomplice witness rule is satisfied if there is some non-

accomplice evidence which tends to connect the accused to the commission of the offense alleged

in the indictment.” Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim. App. 1997). The non-

accomplice evidence need not itself be sufficient to establish the accused’s guilt beyond a reasonable

doubt. Id. While the accused’s mere presence at the crime scene is insufficient, by itself, to

corroborate accomplice-witness testimony, “evidence of such presence, coupled with other 14

suspicious circumstances, may tend to connect the accused to the offense.” Dowthitt v. State, 931

S.W.2d 244, 249 (Tex. Crim. App. 1996). Even “[a]pparently insignificant incriminating

circumstances may sometimes afford satisfactory evidence of corroboration.” Munoz v. State, 853

S.W.2d 558, 559 (Tex. Crim. App. 1993). In order to determine whether the accomplice-witness

testimony is corroborated, we eliminate all accomplice evidence from the record and determine

whether the other inculpatory facts and circumstances in evidence tend to connect appellant to the

offense. Id.

As set out previously, the non-accomplice evidence in this case establishes that Angel did

not suffer any noticeable abuse before appellant’s return from Memphis. However, Angel suffered

significant injury in the two weeks following appellant’s return. After the 9-1-1 call on October 31,

law-enforcement officers and medical personnel identified several visible injuries, including bruising

on Angel’s forehead and torso, abrasions on his forehead, and bite marks on his ear, thigh, and torso.

The autopsy revealed that Angel died from significant blunt-force trauma to his head. It also

revealed additional injuries that were inflicted on Angel after appellant returned from Memphis.

Appellant’s own statement placed him in the home at the time of Angel’s injuries and established

that appellant had previously injured Angel. Although appellant denied directly causing the injury

that led to Angel’s death and placed the blame for Angel’s injuries on Moreno, appellant admitted

that he had left marks on the child’s body during rough play. Appellant acknowledged that he played

roughly with Angel by throwing him in the air and shaking him while trying to make him laugh.

Appellant told police that Angel made him anxious. Further, appellant’s demeanor following the

incident raised suspicions with both his neighbor and emergency personnel.

After eliminating the accomplice testimony from the record, we determine that other facts 15

and circumstances in evidence tend to connect appellant to the offense. Point of error eight is

In point of error nine, appellant argues that the appropriate standard for evaluating the

sufficiency of accomplice corroboration evidence should be the Jackson standard. This Court

rejected the same argument in Cathey v. State, 992 S.W.2d 460, 462-63 (Tex. Crim. App. 1999), and

we find no reason to revisit the issue at this time. Point of error nine is overruled.

FUTURE DANGEROUSNESS

In point of error twenty-eight, appellant challenges the sufficiency of the evidence supporting

the jury’s future-dangerousness determination. Appellant specifically points to his lack of a serious

violent criminal background and his good behavior while awaiting trial. Additionally, appellant

argues that this crime was not particularly brutal and, therefore, the facts of the offense do not

support a future-dangerousness finding.

A jury may consider a variety of factors when determining whether a defendant will pose a

continuing threat to society. Wardrip v. State, 56 S.W.3d 588, 594 & n.7 (Tex. Crim. App. 2001);

Keeton v. State, 724 S.W.2d 58, 61 (Tex. Crim. App. 1987). For example, the facts of the offense

alone may be sufficient to sustain the jury’s finding of future dangerousness. Fuller v. State, 253

S.W.3d 220, 231-32 (Tex. Crim. App. 2008); Sonnier v. State, 913 S.W.2d 511, 517 (Tex. Crim.

App. 1995). We must view all of the evidence in the light most favorable to the jury’s finding and

determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could

have found beyond a reasonable doubt that the answer to the future-dangerousness issue was “yes.”

Ladd v. State, 3 S.W.3d 547, 557-58 (Tex. Crim. App. 1999).

The jury heard a variety of testimony during the punishment phase. In addition to the facts 16

surrounding the immediate injury that caused Angel’s death, the jury had before it evidence of the

abuse that he suffered in the weeks leading up to his death. That abuse included use of force

sufficient to cause fracturing of Angel’s skull.

The jury heard evidence relating to appellant’s criminal history. Appellant had been

previously convicted of battery and criminal mischief, both of which involved violent behavior. The

jury heard testimony that appellant had attacked another person with either a baseball bat or an axe

handle. Appellant had also been twice convicted of driving under the influence, as well as of felony

forgery, evading arrest, and theft.

The jury also heard testimony that appellant did not successfully complete probation or

parole. While on probation for forgery, appellant violated the conditions of his probation by failing

to report to his probation officer for four months. His probation was revoked, and he was sentenced

to two years’ incarceration. He was later released to parole supervision, but he also violated the

conditions of parole by committing the new offense of criminal mischief by causing between $200

and $750 worth of damage to an automobile. His parole was revoked, and he returned to prison to

serve the remainder of his forgery sentence. Although appellant displayed no bad behavior while

awaiting trial for this offense, jurors heard testimony that his good behavior could be attributed to

appellant’s desire to avoid the death penalty.

Appellant urges this Court to find that the crime in this case “was not particularly brutal

relative to other capital murders” and thus, to find the evidence insufficient to support the jury’s

future-dangerousness determination. In reviewing a jury’s future-dangerousness determination, we

resolve each case on its own facts. See Estrada v. State, 313 S.W.3d 274, 284 (Tex. Crim. App.

2010) (citing Dinkins v. State, 894 S.W.2d 330, 357-61 (Tex. Crim. App. 1995)). On the record 17

before us, we cannot conclude that it would be irrational for a jury to find beyond a reasonable doubt

that there is a probability that appellant would constitute a continuing threat to society. Point of error

twenty-eight is overruled.

In point of error twenty-nine, appellant alleges that his sentence is “disproportionate, arbitrary

and capricious, and no rational trier of fact could have imposed it.” We understand appellant to

argue that the evidence is legally insufficient to support the jury’s answers to the future-

dangerousness and mitigation special issues. We have decided in point of error twenty-eight that the

evidence is legally sufficient to support the jury’s future-dangerousness determination. We do not

review the sufficiency of the evidence supporting the jury’s response to the mitigation special issue.

See Russeau v. State, 171 S.W.3d 871, 886 (Tex. Crim. App. 2005). Point of error twenty-nine is

MORENO’S TESTIMONY

In point of error one, appellant alleges that the “State corrupted the truth-seeking function

of trial when it failed to correct the false and highly misleading testimony of its star witness [during]

the guilt[/]innocence phase.” Specifically, appellant complains that Moreno’s testimony regarding

her understanding of why she received a ten-year sentence misled the jury. Appellant argues that

Moreno’s testimony left the jury with the impression that she had no culpability in Angel’s death.

A Cameron County grand jury indicted both appellant and Moreno for the capital murder of

a child under six years old. The state offered Moreno a plea agreement under which Moreno plead

guilty to injury of a child and received a ten-year sentence in exchange for her testimony against

appellant. During appellant’s trial, the prosecutor questioned Moreno about her sentence in the

following exchange: 18

Q. [Prosecutor] Where are you living these days, Acela [Moreno]?

A. Here at the jail.

Q. And how long have you been in jail?

A. It’s going to be three years on October 31st.

Q. And what is your understanding as to how many years you’re going to serve?

A. Ten years.

Q. And what is your understanding as to why you’re going to be serving 10 years?

A. Because I am guilty of not having reported to the police that [appellant] was hurting my child.

Q. Do you understand that you were charged with capital murder initially?

A. Yes.

Q. And do you understand that you’ve agreed to testify against [appellant] in this case?

On cross-examination, defense counsel again asked Moreno about her plea agreement and

sentence. Moreno acknowledged that, rather than facing the death penalty, she plead guilty to an

offense that carried a maximum ten-year penalty. Defense counsel did not object that Moreno’s

testimony on direct examination was either false or misleading.

During Moreno’s plea hearing, her attorney made a statement on her behalf that “[s]he feels

saddened by this incident. She feels a loss of her child and she knows that she should have

intervened on behalf of the child, did not, and wants to make sure justice is done as well as testify.”

Moreno pleaded guilty to injury to a child. Texas Penal Code Section 22.04 states that a person

commits injury to a child if she “intentionally, knowingly, recklessly, or with criminal negligence, 19

by act or intentionally, knowingly, or recklessly by omission, causes to a child . . . bodily injury.”

A conviction obtained through the use of false testimony is a denial of the due process

guaranteed by the Federal Constitution. Napue v. Illinois, 360 U.S. 264, 269 (1959); Ex parte

Ghahremani, 332 S.W.3d 470, 477 (Tex. Crim. App. 2011). Recently, in Ex parte Chavez, ___

S.W.3d___, No. AP-76,665, 2012 Tex. Crim. App. LEXIS 696 at *18 (Tex. Crim. App. May 23,

2012), we said,

“The Due Process Cause of the Fourteenth Amendment can be violated when the State uses false testimony to obtain a conviction, regardless of whether it does so knowingly or unknowingly.” Ex parte Robbins, 360 S.W.3d 446, 459 (Tex. Crim. App. 2011) (citing U.S. CONST . amend. XIV). Testimony need not be perjured to constitute a due-process violation; rather, “it is sufficient that the testimony was ‘false.’” Id. The question is whether the testimony, taken as a whole, gives the jury a false impression. See Ghahremani, 332 S.W.3d at 477; Alcorta v. Texas, 355 U.S. 28, 31 (1957).

Id. at *16.

Moreno’s testimony that it was her understanding that she was serving a ten-year sentence

because she failed to report appellant’s abuse to police is arguably misleading.3 Moreno was charged

with capital murder, and she pleaded guilty to injury of a child. The discussion during her plea

hearing centered around her failure to protect Angel. Additionally, the affidavits submitted by the

state at that hearing support that Moreno did not physically abuse her child. However, Moreno

pleaded guilty to injury to a child, which is a felony, rather than failure to report abuse, which is a

3 Moreno’s actions, or lack of action as the case may be, seem to fall within the “omission” portion of Penal Code § 22.04. Failure to report abuse, however, is a misdemeanor under the Family Code. See T EX . F AM . C O D E § 261.109. Cases regarding the “omission” portion of Penal Code § 22.04 have generally centered around fact situations dealing with the failure to seek, or preventing another from seeking, medical attention for an elderly or disabled person or a child. See, e.g., Villanueva v. State, 227 S.W .3d 744 (Tex. Crim. App. 2007) (appellant prevented his girlfriend from taking her child to the hospital right after he apparently engaged in conduct that caused the child’s injury). 20

misdemeanor. See TEX . FAM . CODE § 261.109. At the very least, Moreno’s statement was

misleading regarding the exact offense to which she pleaded guilty.

The use of misleading testimony violates due process when there is a “reasonable likelihood”

that the misleading testimony affected the outcome of the trial, that is, it was material. When there

is a “reasonable likelihood” that the material misleading testimony affected the outcome of the trial

to the defendant’s detriment, there is harm. In this case, the jury was aware that Moreno had initially

been indicted for capital murder along with appellant. The jury was aware that in exchange for her

testimony, Moreno pleaded guilty to a lesser offense for which she received the maximum sentence.

Further, the jury heard Medrano’s testimony that Moreno admitted biting Angel. The jury was also

aware that, in his statement to police, appellant accused Moreno of causing Angel’s injuries and of

abusing her other children. In addition, the jury viewed the videotape recording of Moreno’s

interview with police during which she admitted to accidentally burning Angel with a cigarette.

On this record, we cannot find that there is a reasonable likelihood that Moreno’s statement

that she was serving ten years for failing to report appellant’s abuse of Angel to police affected the

outcome of the trial, i.e., it was not material. Because it was not material, it could not result in harm

to appellant. Point of error one is overruled.

INCONSISTENT PROSECUTION THEORIES

In point of error twenty-seven, appellant complains that the state used “inherently factually

contradictory theories” to convict appellant and Moreno. He argues that this violated judicial

estoppel and his rights to due process and to be free from cruel and unusual punishment. The record

reflects that appellant did not object at any time during his trial, which occurred after Moreno’s plea

hearing, about the State’s use of inconsistent theories. Although error was not preserved, we address 21

it for purposes of clarification.

To violate due process, there must be an irreconcilable inconsistency at the core of the State’s

case. See Hall v. State, 283 S.W.3d 137, 156 (Tex. App.–Austin 2009, pet. ref’d) (citing Smith v.

Groose, 205 F.3d 1045, 1050-52 (8th Cir. 2000)). To support his argument, appellant relies solely

on Groose, a case which is not binding on this Court. Additionally, the facts in Groose are

distinguishable from those in this case. In Groose, the court found that due process was violated

when the state presented contradictory theories in co-defendants’ separate murder trials. In one trial,

the state claimed that the victims had been killed before the defendant began to participate in a

burglary. Id. at 1050. In the other trial, the state claimed that the victims had been killed after the

defendant began to participate in the burglary. Id.

In this case, appellant points to the capital-murder indictment against Moreno, which accused

her of hitting Angel on the head or hitting his head against something. However, Moreno pleaded

guilty to the indicted lesser offense, injury of a child. During the plea hearing, the parties discussed

that Moreno failed to intervene on Angel’s behalf, to protect him from appellant’s abuse, and to act

when she saw injuries that she attributed to appellant. Moreno failed to report appellant’s actions

to police or to protect her child from appellant’s abuse. During appellant’s trial, the state argued that

appellant caused Angel’s injuries, and Moreno testified that it was her understanding that she

received a ten-year sentence because she failed to report appellant’s abuse to police. Appellant

argues that this inconsistency violates due process and judicial estoppel.

Appellant’s due-process rights were not implicated here. While the state initially charged

Moreno with capital murder, she was not convicted of inflicting the injuries that immediately led to

Angel’s death. Nor was she convicted under any theory that was inconsistent with the State’s case 22

against appellant.

We similarly conclude that judicial estoppel is not implicated here. The doctrine of judicial

estoppel prohibits a party who has taken a position in an earlier proceeding from subsequently taking

a contrary position. See Arroyo v. State, 117 S.W.3d 795, 798 (Tex. Crim. App. 2003). Having

concluded that no inconsistency existed between the State’s theories at Moreno’s and appellant’s

trials, we find that neither justice nor sound public policy require the application of judicial estoppel

here. We likewise find that appellant’s right to be free of cruel and unusual punishment is not

implicated here. Point of error twenty-seven is overruled.

SUPPRESSION HEARING FINDINGS

In point of error ten, appellant argues that the trial judge who entered the findings of fact and

conclusions of law relating to appellant’s suppression hearing lacked the authority to issue those

findings because she was not the judge who presided over the suppression hearing. Appellant argues

that this violates statutory law, is contrary to prior case law, and requires a de novo hearing to remedy

the error.4 The state responds that appellant waived this error because he did not present a timely

written motion to the trial court. This Court previously addressed this issue during the pendency of

this appeal.

The original trial judge conducted a hearing on appellant’s motion to suppress his statements

to police. During the suppression hearing, the trial judge stated on the record that, in making his

ruling, he would take into consideration the credibility of the testifying witnesses. The trial judge

4 See Art. 38.22 § 6; Garcia v. State, 15 S.W .3d 533, 536 (Tex. Crim. App. 2000) (rejecting findings and conclusions made by a trial judge who did not preside over the hearing because the judge who presided over the hearing was in a better position to evaluate witnesses’ credibility and demeanor, and it was not appropriate for the second judge to make findings of fact based solely on the written transcript of the hearing). 23

announced his ruling from the bench, denying appellant’s motion to suppress. Defense counsel

orally moved for the preparation of findings of fact and conclusions of law. The record reflects that

there was some confusion between the trial judge and defense counsel regarding whether an oral

motion was sufficient or a written motion was necessary. The record does not reflect that a written

motion was filed, and the trial judge did not enter written findings of fact and conclusions of law.

In his motion for new trial, appellant complained that the trial judge did not prepare the findings and

conclusions.

After the appellate record was received by this Court, appellate counsel filed a motion

requesting that this Court abate the appeal and instruct the trial judge to enter written findings of fact

and conclusions of law concerning the voluntariness of appellant’s statements. This Court declined

to abate the case, but ordered the trial court to prepare and file the required findings and conclusions.

See TEX . R. APP . P. 34.5(c)(2); Velez v. State, No. AP-76,051 (Tex. Crim. App. Feb. 24, 2010)(not

designated for publication). A supplemental record was not timely filed with this Court.

This Court subsequently received a letter from the trial judge explaining that she was not able

to comply with our order because she was not the judge who presided over the suppression hearing.

She advised that she had requested the presiding judge of the Fifth Administrative Region to appoint

the judge who had presided over the suppression hearing to prepare findings and conclusions.

Ultimately, the prior judge was not appointed, and on December 17, 2010, the new trial judge

prepared findings and conclusions based on the record and the prior judge’s ruling that the statement

was voluntarily made, and the clerk forwarded a supplemental record to this Court. Once the trial

court had fulfilled its duty under this Court’s order and the record had been received by this Court,

the trial court lost its authority to take any further action in this case. See TEX . R. APP . P. 25.2(g). 24

After the supplemental record was filed with this Court, appellant filed in the trial court an

“Objection to Findings of Fact and Conclusions of Law and Motion to Hold de novo Hearing

Pursuant to CCP 38.22.” Pursuant to this motion, on January 19, 2011, the trial court rescinded its

findings and conclusions and granted appellant a de novo suppression hearing. Two days later

appellant filed in this Court a motion to stay the briefing schedule until the trial court completed the

hearing and filed new findings and conclusions. However, because this Court had received the

record in the case, the trial court had lost the authority to act on appellant’s motion. Accordingly,

we denied appellant’s motion and accepted the December 17th findings and conclusions.

We now have before us a complete record, the parties’ briefs, and the additional public

information regarding the unavailability of the original trial judge. In his brief, appellant points out

that under our holding in Garcia v. State, 15 S.W.3d 533, 536 (Tex. Crim. App. 2000), it appears

that he is entitled to a de novo suppression hearing. In Garcia, however, we did not specifically

address the rare situation that presents itself here, wherein the prior judge cannot be appointed to

prepare findings of fact and conclusions of law because of unavailability or ineligibility.

Peculiar circumstances surround this case. While the record does not include the reason the

presiding judge of the Fifth Administrative Region did not appoint the prior judge to prepare findings

and conclusions, we take note of the readily available public information indicating that the prior

judge is currently unavailable for appointment. In such a situation, where the prior judge is

unavailable or ineligible for an appointment, we find it appropriate that there be an exception to the

rule laid out in Garcia. In the event that the judge who presided over a suppression hearing is

unavailable or ineligible to be appointed to prepare findings of fact and conclusions of law, the

current trial judge may prepare findings and conclusions based on the prior judge’s ruling on the 25

record and the transcript of the suppression hearing regarding whether a defendant’s statement was

voluntarily made.

We recognize that the original trial judge, who is uniquely situated to observe the demeanor

of witnesses first-hand, is generally in the best position to assess the credibility of witnesses.5 See

Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008). In this rare circumstance, the trial

judge making the findings and conclusions did not observe the demeanor of the witnesses because

she did not preside over the suppression hearing. However, she refrained from making any explicit

credibility determinations. Thus, we will accept the new trial judge’s findings and conclusions, and

we will review the record to determine if they are supported by the evidence. Point of error ten is

USE OF RESTRAINTS

In point of error nineteen, appellant contends that the trial court violated his constitutional

rights by forcing him to appear at trial in visible shackles. In a pretrial motion, appellant sought to

preclude being shackled in public, and at the beginning of voir dire, defense counsel pointed out,

“Your Honor, my client has ankle bracelets on.” Counsel asked the trial court, “Would the court

consider suspending that?” The trial court responded, “No sir.”6

The harm a defendant suffers when the jury sees him in handcuffs or shackles is that his

constitutional presumption of innocence is infringed. Long v. State, 823 S.W.2d 259, 282 (Tex.

5 W e note that the original trial judge made implicit credibility determinations by denying appellant’s motion to suppress his statement.

6 The state argues that this issue is not properly preserved because this exchange between defense counsel and the trial court was not a proper objection. W hile this is not the form of a proper objection, this exchange did put the trial court on notice that appellant opposed being placed in leg restraints in front of the jury. 26

Crim. App. 1991). All efforts should be made to prevent the jury from seeing a defendant in

shackles, except where there has been a showing of exceptional circumstances or a manifest need

for such restraint. Id. On appeal, we determine whether the trial court abused its discretion by

requiring appellant to appear in restraints. Id. To assist us in this determination, the record must

clearly and affirmatively reflect the trial court’s reasoning. Id.

In this case, the trial court did not make specific findings of fact justifying the use of leg

restraints. There is no evidence in the record that appellant threatened violence or escape during his

trial. The fact that a person is charged with the most serious of felonies cannot override his

constitutional presumption of innocence. Id. at 283. On the basis of this record, we find that the trial

court abused its discretion in shackling appellant during trial.

However, we decline appellant’s invitation to find that shackling is inherently harmful and

prejudicial. In this case, the record does not reflect that the trial court’s abuse of discretion harmed

or prejudiced appellant. While it appears that appellant was shackled throughout his trial, he fails

to direct our attention to any place in the record showing that the jury actually saw the shackles. See

Cooks v. State, 844 S.W.2d 697, 723 (Tex. Crim. App. 1992) (absent evidence that the jury actually

saw the shackles, we will not conclude the defendant has been harmed). The only mention of the

shackles in the record is the brief exchange between defense counsel and the trial court. Therefore,

we cannot conclude, based on this record, that appellant was harmed in any respect by the use of the

shackles. Point of error nineteen is overruled.

DISQUALIFICATION AND RECUSAL OF SPECIAL PROSECUTOR

In point of error two, appellant alleges that the trial court’s denial of his motion to disqualify

the special prosecutor violated Article 2.01 and the Due Process Clause of the United States 27

Constitution. Appellant filed a pretrial motion seeking to recuse special prosecutor Luis Saenz on

the basis of conflict of interest. Appellant alleged that he was a former client of Saenz because his

family sought Saenz’s representation in this case. Appellant complained that Saenz’s representation

of the state was in violation of the Texas Disciplinary Rules of Professional Conduct.

In support of his motion, appellant presented an affidavit from his sister Elmita Velez.

Elmita stated that her sister Marisol Velez visited Saenz’s office for the purpose of retaining counsel

for appellant following his arrest in this case. Elmita took Marisol to Saenz’s office, but did not

attend the meeting. According to Elmita, Saenz advised Marisol that the state “did not have a case.”

Elmita also stated that Saenz informed Marisol that he sometimes “work[ed] in some cases as a

district attorney.” According to Elmita, Saenz told Marisol that he would check on the case and then

call Elmita. Elmita and Saenz never spoke. Saenz never called Elmita, but Elmita attempted to

contact him several times. Eventually, according to Elmita, Saenz’s secretary told her that Saenz

would not take the case “because he didn’t have the time.”

During the hearing on appellant’s motion, Marisol was the only family member to testify.

Rather than testifying on direct examination, Marisol submitted an affidavit and was then cross-

examined by the state. In her affidavit, Marisol stated that she visited Saenz regarding her brother’s

case. She stated that she told Saenz that appellant was charged with murdering a child. According

to Marisol, Saenz asked if she knew anything about the case. She told Saenz that her brother had

just returned from working “up north,” he was charged with the death of a baby, and the baby’s

mother was very irresponsible. Marisol stated that Saenz told her the state did not have a case, he

had experience with this kind of case, and he served as a district attorney in some cases. Marisol

also stated in her affidavit that she told Saenz that Elmita would call him because Elmita was in 28

“charge of hiring an attorney” for appellant.

On cross-examination, Marisol testified that she met with Saenz only one time, but she could

not recall how long the meeting lasted. She testified that Saenz did not quote her a specific price.

Additionally, she did not provide Saenz with any written materials to review, and she testified that

she informed Saenz that the family’s primary interest in looking for an attorney was cost. Marisol

also testified that she told Saenz that she didn’t know too much about the case – just that it was a

“baby shake syndrome” case. Marisol admitted that when she spoke with Saenz, she was basing her

information on “what the newspaper said.” Marisol did not speak with Saenz again after that one

meeting because, as she explained, she had done what she was charged to do. She testified that she

was not charged with actually hiring an attorney; she was gathering information, and her sister was

the person who would do the actual hiring.

Given these facts, we conclude that Marisol was not her brother’s representative. See TEX .

R. EVID . 503(a)(2)(A) (defining a “representative of the client” as “a person having authority to

obtain professional legal services on behalf of the client”). Her sole responsibility was that of

gathering information for her sister. Both she and Elmita acknowledged that Elmita was going to

be the one to obtain representation. Additionally, Marisol admitted that the information she shared

with Saenz was based on what the family had learned in the newspaper. See TEX . R. EVID .

503(a)(2)(B). Because Marisol could not have created an attorney-client relationship on her

brother’s behalf, and further, did not share any privileged or confidential information with Saenz,

it was not a conflict of interest for Saenz to serve as the special prosecutor in appellant’s case. The

trial court did not abuse its discretion in denying appellant’s motion to recuse the special prosecutor.

Point of error two is overruled. 29

In point of error twenty, appellant alleges that the trial court erred when it failed to recuse the

special prosecutor because of his bias. Appellant alleges that the special prosecutor was not

“rigorously disinterested” as evidenced by his testimony during a pretrial hearing that he decided he

did not want to defend appellant as soon as he learned that this was a case involving the death of a

baby. Saenz explained that he had once “defended a case involving a baby . . . a death situation” and

that he “never felt the same” afterward. Appellant argues that Saenz’s personal bias disqualified him

from being the special prosecutor in this case because it “create[d] an opportunity for conflict or

other improper influence in professional judgment.”

Appellant’s motion to recuse Saenz alleged only conflict of interest. It did not allege that

Saenz was biased. When Saenz testified during the pretrial hearing, appellant did not complain that

Saenz demonstrated bias. Appellant did not bring the issue of bias to the trial court’s attention at any

time. Therefore, this issue has not been preserved for appellate review. See TEX . R. APP . P. 33.1.

Point of error twenty is overruled.

STATEMENT TO POLICE

In point of error eleven, appellant alleges that “because [he] could not and did not knowingly,

voluntarily, and intelligently waive his Miranda rights, the trial court erred in admitting his

statement.” In point of error thirteen, appellant alleges that “the trial court violated [his] rights by

admitting a statement that [he] could not possibly have read and adopted.” Specifically, appellant

argues that he could not have knowingly and intelligently waived the warnings given in English

because he is illiterate in English and Spanish and “functions in the defective or mildly retarded level

when tested in English.”

The trial court is the “sole and exclusive trier of fact and judge of the credibility of the 30

witnesses” and of the evidence presented at a hearing on a motion to suppress. Delao v. State, 235

S.W.3d 235, 238 (Tex. Crim. App. 2007), quoting Green v. State, 934 S.W.2d 92, 98 (Tex. Crim.

App. 1996). This is particularly true when the motion is based on the voluntariness of an appellant’s

statement. Id. Given this vital role, we afford great deference to the trial court’s decision to admit

or exclude such evidence and will overturn that decision on appeal only when a flagrant abuse of

discretion is shown. See Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim. App. 2006).

Article 38.21 of the Texas Code of Criminal Procedure provides that the statements of an

accused “may be used in evidence against him if it appears that the same w[ere] freely and

voluntarily made without compulsion or persuasion.” Our determination of whether a statement was

voluntarily made is based on an examination of the totality of the circumstances surrounding its

acquisition. Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000); see also Arizona v.

Fulminante, 499 U.S. 279, 285-86 (1991).

The trial court held a hearing on appellant’s motion to suppress the statement he made to

police. During the hearing, former Sheriff’s Deputy Rene Gosser, who took appellant’s statement,

testified that he first spoke with appellant at the scene and later at the sheriff’s office. The interview

at the sheriff’s office was conducted in a combination of English and Spanish. Gosser testified that

he read appellant his rights and instructed appellant to initial each right and sign the waiver in

English. According to Gosser, appellant knowingly complied.

Following an interview that lasted for about an hour, appellant agreed to give a statement.

Gosser testified that he once again read appellant his rights in English and that appellant

acknowledged in English that he understood. Gosser then questioned appellant in English while

typing the statement into a computer. Gosser testified that, during the questioning, appellant 31

responded in English and that his responses were appropriate to the questions asked.

Gosser once again informed appellant of his rights after preparing the statement and gave

appellant the printed statement to read. Gosser instructed appellant, in English, to read and sign the

statement and initial each warning. According to Gosser, appellant appeared to read the statement

before initialing each warning and each page of the statement and before signing the statement.

Dr. Michael Rabin, a forensic psychologist, also testified during the hearing. Dr. Rabin

supervised appellant’s testing by a Spanish-speaking psychologist who was completing his doctoral

internship. Dr. Rabin also reviewed appellant’s social history and competency-assessment results.

Dr. Rabin testified that appellant’s English reading ability measured below second grade, and his

Spanish reading ability measured at a kindergarten level. According to Dr. Rabin, the statement

produced by Gosser was written at a sophomore level and “[t]here is no way [appellant] could

understand” the statement.

Dr. Rabin additionally testified that appellant has borderline intellectual functioning in

Spanish and that his English skills are so poor that he tested in the “defective or retarded range.”

Based on testing conducted in English, Dr. Rabin reported that appellant had a verbal intelligence

quotient (I.Q.) of 62, a performance I.Q. of 75, and a full scale score of 65. Dr. Rabin testified that,

while appellant knew that he should have had an attorney, he did not understand the concept of

consulting with an attorney before questioning. Appellant could not define the right to silence, but

did understand self-incrimination when it was explained to him using different words. On cross-

examination, Dr. Rabin acknowledged that appellant considered himself fluent in both English and

Spanish. However, Dr. Rabin opined that, because of his level of functioning, appellant could not

have competently, knowingly, and voluntarily waived his rights. 32

Finally, the state presented two witnesses who were incarcerated in the Cameron County Jail

with appellant. David Bradshaw was jailed with appellant for approximately six months and shared

the same “tank” for approximately three months. Bradshaw testified that he speaks both English and

Spanish and that when he spoke to appellant in English, appellant responded appropriately.

According to Bradshaw, appellant regularly read an English-language newspaper, and they would

discuss the police-blotter section.

Brian Martin testified that he was jailed with appellant for three to four months. Martin

speaks English exclusively and understands “a little” Spanish. Martin testified that he spoke English

with appellant and saw appellant read an English-language newspaper. According to Martin,

appellant would read and translate the horoscope section for non-English speaking inmates. Martin

also testified that he wrote a letter for appellant in English, which appellant read back to Martin and

then discussed with him. Martin testified that he wrote the letter so it would appear that “[appellant]

didn’t speak or understand English so that his confession could be dismissed.”

The trial judge who presided over the suppression hearing denied appellant’s motion to

suppress the statement. The new trial judge who prepared findings and conclusions based on the

prior trial judge’s ruling and the transcript of the hearing found that “[appellant] was able to

communicate in the English language and could read and understand English sufficiently to

understand his statement and the waiver of his . . . rights.”

Appellant argues on appeal only that, because he is illiterate in English and Spanish and

possesses a low I.Q., he could not have voluntarily given his statement. A statement is not

considered involuntary simply because a defendant suffers from some mental impairments. See

Delao, 235 S.W.3d at 239-40, citing Bizzarri v. State, 492 S.W.2d 944, 946 (Tex. Crim. App. 1973). 33

An accused’s mentality is but one factor among many to consider when evaluating the voluntariness

of a statement. Id. The question is whether appellant’s illiteracy was such that he was incapable of

understanding the meaning and effect of the warnings.

At the pretrial hearing, appellant’s expert testified regarding appellant’s illiteracy and low

assessment scores. However, according to other testimony, appellant was able to converse in English

and gave appropriate responses in English when asked questions in English. Appellant’s expert

admitted that appellant considered himself “fluent” in both English and in Spanish. Further, other

testimony showed that appellant was able to read an English-language newspaper and a letter written

in English and hold discussions regarding what he read.

When tested by his expert, appellant defined the right to silence as “I’m not supposed to

make a statement.” He explained self-incrimination as “whatever I say they can use it against me

in court.” Appellant also understood that he was “supposed to have a lawyer,” and he explained the

“right to consult if indigent” as “if [you] don’t got (sic) money, [the] court give (sic) you [a] lawyer.”

In this case, not only did the trial court conclude that appellant’s statement was voluntary,

but the jury did as well.7 Further, in making his ruling, the trial judge who presided over the

suppression hearing necessarily made implicit credibility findings regarding the evidence and witness

testimony presented during the hearing. Those findings, as well as the written findings and

conclusions prepared by the new trial judge, are supported by the record. Therefore, based on the

totality of the circumstances, we find that the trial court did not abuse its discretion in denying

7 The trial court instructed the jury to completely disregard appellant’s statement if it did not “find from the evidence beyond a reasonable doubt that before and during such statement, the defendant knowingly, intelligently[,] and voluntarily waived the rights hereinabove set out in the said warning.” The jury’s verdict could be understood to mean that either the jury determined that appellant’s statement was voluntary or that the jury believed that the statement was involuntary but that other evidence was sufficient to establish appellant’s guilt. 34

appellant’s motion to suppress the statement he made to police. Points of error eleven and thirteen

are overruled.

In point of error twelve, appellant argues that his constitutional rights were violated when the

trial court admitted a two-page statement and a three-page statement, both of which were purportedly

signed by appellant. Appellant complains that the trial court erred in leaving it to the jury to

determine which statement he actually signed. Appellant urges that he was entitled to a

determination by the trial court of which statement he actually signed.

During the suppression hearing, appellant apparently discovered for the first time that the

three-page statement the state was attributing to him was different from the two-page statement

defense counsel purportedly received from the state. See State’s Exhibit 64 and Defense Exhibit 2.

The difference between the two statements is an additional paragraph in the three-page statement in

which appellant acknowledges throwing Angel in the air and shaking him.

The trial court examined both documents and observed that the signatures appeared different.

The trial court asked appellant’s expert witness which version of the statement he had reviewed, and

the witness responded that he had been given the three-page statement by the defense. The trial court

ordered the state to present witnesses on the issue. The state first called Gosser, who testified that

the three-page statement was the statement taken from Velez. Gosser acknowledged that the two-

page statement appeared to be a statement produced in the sheriff’s department. Gosser identified

his signature at the bottom of the two-page statement, and testified that the other signature appeared

to be that of Lieutenant Carlos Garza. The trial court ordered that Garza appear before the court, and

once Garza arrived in the courtroom, the trial judge went into chambers with Garza, Gosser, and the

attorneys. The record does not reflect the result, if any, of the meeting in chambers. 35

At trial, when the state offered State’s Exhibit 64 into evidence, appellant objected, arguing

lack of predicate and that the statement was not voluntarily made. The trial court overruled that

objection and admitted State’s Exhibit 64, the three-page statement, into evidence. Later during trial,

appellant requested that Defense Exhibit 2, the two-page statement, be admitted for all purposes.

The state’s objection was overruled, and the two-page statement was admitted.

Appellant’s complaint on appeal, that his constitutional rights were violated by the trial

court’s admission of both statements and failure to make a determination regarding which statement

appellant signed, does not comport with appellant’s objections at trial. See TEX . R. APP . P. 33.1.

Thus, appellant has failed to preserve this complaint for review. See Guevara v. State, 97 S.W.3d

579, 583 (Tex. Crim. App. 2003). Point of error twelve is overruled.

In point of error fourteen, appellant argues that his rights were violated when the trial court

denied his request for the notes made during his interrogation by the officer who took his statement.

Gosser testified that he generated the written statement that appellant signed based on the notes he

took while interrogating appellant. Gosser testified that he was not in possession of the notes and

that the notes remained at the Sheriff’s office when he left his employment there. Gosser also

testified that his notes were not included in the case file that he submitted to the district attorney’s

office. Appellant requested that these notes be produced. A short discussion ensued as to whether

the notes would be considered work product. The state told the trial court that it did not have the

notes, but it did have a report prepared by Gosser, which it presented to the defense. The record

reflects that at the time that this occurred, the trial court did not actually make a ruling regarding the

production of the notes. Therefore, this complaint has not been preserved for appeal. See TEX . R.

APP . P. 33.1. Point of error fourteen is overruled. 36

PRIOR INCONSISTENT STATEMENT

In point of error seventeen, appellant alleges that the trial court erred by excluding extraneous

evidence of a witness’s prior inconsistent statement. Neighbor Veronica Aparicio testified that

appellant told her that the phone she had given him to call 9-1-1 did not work when it actually did.

During its cross-examination of Aparicio, the defense presented the written statement she gave to

police. According to that statement, appellant was so nervous that he was not able to dial 9-1-1.

Aparicio testified that she does not read or write English and that, while she signed the statement,

she did not actually write it. The statement was prepared by a law-enforcement officer, but Aparicio

could not remember which officer. At trial, after reviewing the written statement with the help of

the court interpreter, Aparicio indicated that there were two discrepancies. She testified that she did

not use the word “nervous” to describe appellant, and she indicated that the portion of the statement

that said appellant knocked on her door was incorrect. She testified that appellant “came yelling”

at her door rather than knocking.

Appellant moved to introduce Aparicio’s written statement. The state objected on hearsay

grounds, and appellant argued that the statement should be admitted for impeachment purposes. The

trial court sustained the state’s objection. Appellant argues on appeal that the statement should have

been admitted as a prior inconsistent statement.

In considering a trial court’s ruling on the admissibility of evidence, an appellate court must

determine whether the trial court abused its discretion. Montgomery v. State, 810 S.W.2d 372, 391

(Tex. Crim. App. 1991) (op. on reh’g). We uphold the trial court’s ruling if it is reasonably

supported by the record and is correct under any theory of law applicable to the case. State v. Ross,

32 S.W.3d 853, 856 (Tex. Crim. App. 2000). Finally, we review the trial court’s ruling in light of 37

what was before the trial court at the time the ruling was made. Weatherred v. State, 15 S.W.3d 540,

542 (Tex. Crim. App. 2000).

Texas Rule of Evidence 613(a) provides that: In examining a witness concerning a prior inconsistent statement made by the witness, whether oral or written, and before further cross-examination concerning, or extrinsic evidence of, such statement may be allowed, the witness must be told the contents of such statement and the time and place and the person to whom it was made, and must be afforded an opportunity to explain or deny such statement. If written, the writing need not be shown to the witness at that time, but on request the same shall be shown to opposing counsel, if the witness unequivocally admits having made such statement, extrinsic evidence of same shall not be admitted.

Subsection (c) of Rule 613 provides that “[a] prior statement of a witness which is consistent with

the testimony of the witness is inadmissible except as provided in Rule 801(e)(1)(B).” Rule

801(e)(1)(B) accords substantive, non-hearsay status to prior consistent statements of a witness

“offered to rebut an express or implied charge against [him] of recent fabrication or improper

influence or motive.”

Considering the facts and the arguments presented to the trial court, we cannot say that the

trial court abused its discretion in excluding Aparacio’s written statement to police. Two statements

contained within the written statement were prior inconsistent statements, other statements were

prior consistent statements, and other statements were arguably irrelevant or inadmissible hearsay.

Hence, it was reasonable for the trial court to conclude that appellant was attempting to offer into

evidence a document containing both admissible and inadmissible statements. When a trial judge

is presented with a proffer of evidence containing both admissible and inadmissible statements and

the proponent of the evidence fails to segregate and specifically offer the admissible statements, the

trial court may properly exclude all of the statements. Willover v. State, 70 S.W.3d 841, 847 (Tex.

Crim. App. 2002). We have previously explained that: 38

Inadmissible hearsay testimony does not become admissible simply because it is contained within an admissible document or transcript. The trial court need never sort through challenged evidence in order to segregate the admissible from the excludable, nor is the trial court required to admit only the former part or exclude only the latter part. If evidence is offered and challenged which contains some of each, the trial court may safely admit it all or exclude it all . . . . When evidence which is partially admissible and partially inadmissible is excluded, a party may not complain upon appeal unless the admissible evidence was specifically offered.

Id. (quoting Jones v. State, 843 S.W.2d 487, 492-93 (Tex. Crim. App. 1992) (overruled on other

grounds) (footnotes and some punctuation omitted)).

Because Aparicio denied only portions of her written statement to police, appellant could

have introduced only those portions of her statement. See McGary v. State, 750 S.W.2d 782, 787

(Tex. Crim. App. 1988). He was not entitled to introduce the entirety of her statement. Id. at 788.

It was appellant’s responsibility to specify which portions of Aparicio’s statement he wished to use

for impeachment purposes. It was not an abuse of discretion for the trial court to exclude the entirety

of the statement. Point of error seventeen is overruled.

HEARSAY STATEMENTS

In point of error twenty-one, appellant alleges that the trial court erred in excluding hearsay

offered as underlying support for an expert opinion. During the testimony of Dr. Michael Rabin, a

defense expert, appellant sought to admit statements that his relatives and Moreno made during

interviews with another defense expert, Dr. Kim Arredondo, who did not testify at trial. The trial

court sustained the State’s hearsay objection to the admission of the statements.

The problem posed here is that the statements at issue are hearsay. See TEX . R. EVID . 801(a)-

(d). Such statements are inadmissible unless they fall under an exception. See TEX . R. EVID . 802.

Appellant contends that these otherwise inadmissible statements should have been admitted as a 39

basis for his expert’s opinion under Rule of Evidence 705. Texas Rule of Evidence 705(d) sets forth

a balancing test for determining when otherwise inadmissible evidence can be admitted if it is relied

upon by an expert in forming his opinion:

When the underlying facts or data would be inadmissible in evidence, the court shall exclude the underlying facts or data if the danger that they will be used for a purpose other than as explanation or support for the expert’s opinion outweighs their value as explanation or support or are unfairly prejudicial.

“One of the greatest dangers in allowing otherwise inadmissible evidence under Rule 705 is that the

jury will consider the facts and data as substantive evidence rather than as merely constituting the

underlying basis for the expert’s opinion.” Valle v. State, 109 S.W.3d 500, 505-06 (Tex. Crim. App.

2003) (quoting Cole v. State, 839 S.W.2d 798, 815 (Tex. Crim. App. 1992) (Maloney, J., concurring

on reh’g)).

This Court is not able to discern from the record exactly what the content of the excluded

statements would have been. However, given the context of the testimony at the time the statements

were mentioned, the statements presumably concerned matters such as whether appellant was able

to read or understand English, as well as his literacy level in Spanish and his education level. Dr.

Rabin testified that it was his opinion that appellant could not have understood the statement he

allegedly gave to police. Dr. Rabin further testified that he relied on the interviews Dr. Arredondo

conducted with Moreno and appellant’s relatives, as well as Dr. Arredondo’s report and his own

testing, to arrive at his conclusions. Allowing appellant to present his relatives’ and Moreno’s

statements to the jury would have run the risk of the jury accepting their statements as substantive

evidence. Further, given Dr. Rabin’s testimony about the items he relied on to support his

conclusions, appellant did not need to present the actual contents of the excluded statements. Under 40

the circumstances present here, the trial court did not abuse its discretion in declining to admit the

evidence under Rule 705. Point of error twenty-one is overruled.

PHOTOGRAPHS

In point of error twenty-three, appellant alleges that the state committed prosecutorial

misconduct by ignoring the trial court’s ruling that excluded State’s Exhibit 17, a photograph of the

injury to Angel’s ear. During the state’s direct examination of Dr. Maria Camacho, appellant

objected to the admission of this particular photograph, and the trial court sustained the objection.

The prosecutor went on to ask Dr. Camacho to explain what was depicted in a series of photographs.

It appears that the prosecutor presented the photographs to Dr. Camacho in numerical order;

however, between the presentation of State’s Exhibits 6 and 8, the record states that the prosecutor

asked for a description of State’s Exhibit 17. The record reflects that when Dr. Camacho briefly

described the contents of the photograph, appellant did not object. The description that she gave,

however, is that of State’s Exhibit 7–not State’s Exhibit 17. Thus, it appears from the record that

the court reporter may have made a typographical error, typing “17” rather than “7.” Even if it is not

the case that the record contains a typographical error, the record reflects that State’s Exhibit 17 was

not submitted into evidence and was not viewed by the jury. Appellant has not shown that the state

violated the trial court’s ruling excluding State’s Exhibit 17. Point of error twenty-three is overruled.

In point of error twenty-four, appellant argues that the trial court erroneously admitted

evidence in violation of Rule 403 of the Texas Rules of Evidence. He specifically complains about

an autopsy photograph (State’s Exhibit 58) that was admitted over defense objection during the guilt

phase. Appellant objected at trial that, because the forensic pathologist gave detailed testimony

regarding the wounds Angel sustained and showed where those injuries occurred on a blackboard 41

diagram, the autopsy photograph should not have been admitted. Appellant also argues on appeal

that the photo is irrelevant and had no probative value because the manner or cause of Angel’s

injuries or death was not contested.

Rule 403 requires that the evidence presented at trial have some probative value and that its

probative value not be substantially outweighed by its inflammatory nature. TEX . R. EVID . 403;

Long, 823 S.W.2d at 272. A court may consider many factors in determining whether the probative

value of photographs is substantially outweighed by the danger of unfair prejudice. The factors

include: the number of exhibits offered, their gruesomeness, their detail, their size, whether they are

in color or black-and-white, whether they are close up, whether the body depicted is clothed or

naked, the availability of other means of proof, and other circumstances unique to the individual

case. Santellan v. State, 939 S.W.2d 155, 172 (Tex. Crim. App. 1997); Long, 823 S.W.2d at 272.

The admissibility of photographs over an objection is within the sound discretion of the trial court.

Sonnier v. State, 913 S.W.2d 511, 518 (Tex. Crim. App. 1995). Autopsy photographs are generally

admissible unless they depict mutilation of the victim caused by the autopsy itself. Santellan, 939

S.W.2d at 172.

State’s Exhibit 58 is an autopsy photograph of Angel that was introduced during the

testimony of forensic pathologist Dr. Norma Jean Farley. The photograph shows the damage done

to Angel’s head viewed from the underside of his scalp. Dr. Farley testified that the scalp was

reflected in that photograph in order to show the bruising damage that could not be seen otherwise.

The autopsy photograph shows the condition of Angel’s body and the wounds he received.

The blackboard diagram showed the location of the bruising, but not the actual bruising itself.

State’s Exhibit 58 shows Angel’s skull with the scalp reflected, which Dr. Farley explained was 42

necessary to clearly show the bruising damage to Angel’s head. Because Dr. Farley needed the

photograph to show an injury that was otherwise not visible, showing reflection of the scalp is not

fatal to the admissibility of State’s Exhibit 58. See Harris v. State, 661 S.W.2d 106, 108 (Tex. Crim.

App. 1983) (explaining that because reflecting the skin from a victim’s skull did not “obfuscate the

results of the crime” but allowed the jury to see the injury, there was no error in admitting the

photograph).

Considering all factors, we cannot conclude that the probative value of the photograph was

substantially outweighed by its prejudicial effect or the needless presentation of cumulative evidence.

The trial court did not abuse its discretion in admitting the photograph at trial. Point of error twenty-

four is overruled.

CONFRONTATION

In point of error twenty-five, appellant alleges that he was “denied his right to confrontation,

to due process, and to a fair trial” by the State’s use of “non-confronted hearsay.” Specifically,

appellant complains that Dr. Zamir testified regarding medical-chart entries made by his nurse

practitioner. The record reflects that appellant made no objections during Dr. Zamir’s testimony.

Therefore, this complaint has not been preserved for review. See TEX . R. APP. P. 33.1. Point of error

twenty-five is overruled.

In point of error twenty-six, appellant complains that the trial court violated his

“confrontation rights by admitting several testimonial hearsay statements by a witness who did not

appear at trial.” Specifically, appellant complains that Javier Reyna, a captain with the Cameron

County Sheriff’s Office, can be heard making several statements on the videotape recording of

Moreno’s police interview. Reyna did not testify during appellant’s trial, and the videotape 43

recording of Moreno’s interview was played for the jury. The record reflects that appellant did not

object to the admission of the videotape recording of Moreno’s interview on confrontation grounds.

Therefore, this complaint is not preserved for review. See TEX . R. APP . P. 33.1. Point of error

twenty-six is overruled.

MANNER AND MEANS INSTRUCTION

In point of error eighteen, appellant alleges that the “trial court erred by charging the jury that

it could convict upon an unknown manner and means of causing death, when the manner and means

were not unknown.” Appellant argues that, because the State’s expert Dr. Vincent DiMaio testified

that Angel’s head was struck against a floor, wall, or furniture, “the trial court should have charged

the jury that it could only convict upon sufficient proof of one or several of the options presented by

the evidence.” The jury was charged that it could convict appellant of capital murder upon finding

that he intentionally or knowingly caused Angel’s death by “striking the victim’s head against a

surface unknown to the grand jury, or by striking the victim’s head with an object unknown to the

grand jury.”

Appellant relies exclusively on this Court’s decision in Sanchez v. State, No. PD-0961-07,

2010 Tex. Crim. App. LEXIS 1242 (Tex. Crim. App. delivered Oct. 6, 2010) (Sanchez I). In

Sanchez I, the Court drew a distinction between “unknown”–cannot be or has not yet been

ascertained–and “unknowable”–has been ascertained, but cannot be comprehensively known–

manner and means. The State’s expert testified that the victim died of asphyxiation, but the cause

of the asphyxiation was undetermined; it could have been caused by manual strangulation, ligature

strangulation, blocking of the air passages, the use of a stun gun, or a combination of these methods.

Id. at 16-17. This Court stated that, because all the evidence that could have been presented was 44

presented and there was still uncertainty as to which manner and means actually caused the victim’s

death, the manner and means were “unknowable”–“a known choice of several options as opposed

to no evidence and no options.” Id. at 18. We concluded that the jury charge was erroneous because

the indictment contained an allegation of “manner and means to the grand jury unknown,” when the

manner and means were not truly unknown. Id. at 19.

However, in its opinion on rehearing, Sanchez v. State, No. PD-0961-07, 2012 Tex. Crim.

App. LEXIS 692 (Tex. Crim. App. delivered May 16, 2012) (not yet reported) (Sanchez II), this

Court held that

[t]he Code of Criminal Procedure provides that the trial court must “deliver to the jury . . . a written charge distinctly setting forth the law applicable to the case.” See TEX . CODE CRIM . PROC. art. 36.14. The Court’s instructions must “apply the law to the facts adduced at trial.” Gray v. State, 152 S.W.3d 125, 127-28 (Tex. Crim. App. 2004). ... Neither the manner (the actus reus) nor the means (the “instrument of death”) need to be agreed upon unanimously by a jury. [Ngo v. State, 175 S.W.3d 738, 742 n.27 (Tex. Crim. App. 2005)](noting that the jury must be unanimous on the gravamen of the offense of murder, which is causing the death of a person, but the jury need not be unanimous on the manner and means); see also Jefferson, 189 S.W.3d at 315; Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991). The jury need only unanimously agree that appellant caused the death of the complainant. See Ngo, 175 S.W.3d at 746.

Id. at *14-15.

In Sanchez II, this Court found the charge was erroneous because the “evidence in the record

supports only a limited list of known alternatives for the manner and means of the cause of death,”

thus the “trial court's instructions should have reduced the four theories to the two theories with the

specified manner and means that were supported by evidence at trial. See Gray, 152 S.W.3d at 127-

28 (jury charge must apply law to ‘fact adduced at trial’).” Id. at *16. In contrast to the situation 45

in Sanchez, in this case the jury instructions conformed to the evidence that was presented at trial

and failed to show with what surface or object the complainant’s head had been struck.

Dr. DiMaio testified on direct examination that Angel’s injury was “the type of injury you

get when children are thrown like across the room into a wall, or if they’re swung by their feet into

furniture or something like that.” He also testified on direct examination that Angel’s injuries were

fractures without scalp tears indicating that Angel’s head impacted with a flat surface such as “a

floor or a wall. Something like that.” Finally, on cross-examination, Dr. DiMaio agreed with

defense counsel’s statement that “most likely the child was thrown or swung against the floor, a wall,

or furniture.” Dr. DiMaio did not definitively state that Angel’s head was struck against a floor,

wall, or furniture.

In this case, the expert testimony shows that Angel died from blunt trauma to the head. The

blunt trauma was caused by Angel’s head colliding forcefully with a hard, flat surface or object. The

identity of that hard, flat surface or object–the means of Angel’s death–is the unknown in this case.

The state presented testimony that investigators were unable to ascertain which surface or object

within the home that Angel’s head was struck against. Investigators did not find forensic evidence

tying any particular surface or object to Angel’s injuries. Therefore, the surface or object truly is

unknown, and it was not error for the jury to be so charged. Point of error eighteen is overruled.

CONDUCT ELEMENT INSTRUCTION

In point of error four, appellant alleges that the trial court’s improper jury instruction denied

him his rights to a fair and impartial trial and due process of law, in violation of state law and the

Sixth and Fourteenth Amendments to the United States Constitution. Appellant specifically argues

that the trial court’s expansion of “the intent charge beyond the result of [appellant’s] actions to the 46

‘nature of conduct’” was reversible error.

The definition portion of the court’s charge provided, in relevant part, that: A person acts “intentionally,” or “with intent,” with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

A person acts “knowingly,” or “with knowledge,” with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct and that the circumstances exist. A person acts knowingly, or with knowledge, with respect to the result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

Appellant asserts that this charge “was thoroughly confusing as to whether the jury, in

determining whether [he] ‘did intentionally or knowingly cause the death of’ Angel Moreno, could

consider [appellant’s] intent or knowledge with respect to the nature of his conduct and its

surrounding circumstances, or whether it was limited to considering his intent or knowledge with

respect to the result of his conduct.”

Section 19.03(a) of the Texas Penal Code describes particular factual contexts that the

Legislature has determined, in combination with an intentional murder, give rise to capital murder.

In proving capital murder, the state must prove that the accused intentionally or knowingly caused

the death of an individual and also that the accused engaged in other criminal conduct (e.g.,

kidnapping, robbery, aggravated sexual assault, escape from a penal institution) or certain

circumstances existed (e.g., that the victim was a child under the age of six). Therefore, capital

murder is a result-of-conduct offense, but it also includes circumstances surrounding the conduct

and/or nature of conduct elements, depending on the facts that elevate the intentional murder to

capital murder. See, e.g., Roberts v. State, 273 S.W.3d 322, 329 (Tex. Crim. App. 2008); see also

Hughes v. State, 897 S.W.2d 285, 296 (Tex. Crim. App. 1994). Accordingly, in a capital-murder 47

case that involves more than one conduct element, it would not be erroneous for the definitions to

include more than the result of conduct element:

[S]ince the State must prove every element of the capital murder and of the underlying offense, in capital murder cases, there is no error in failing to limit the court’s charge to specific “result of conduct” language when the additional language concerning the culpable mental state is itself limited to proving the “conduct elements” for the underlying offense.

Id. at 295 (citations omitted) (emphasis in original). However, under our reasoning in Cook v. State,

884 S.W.2d 485 (Tex. Crim. App. 1994), it would be erroneous if, in a capital-murder case that

involves only one or two of the three conduct elements, the definitions included all three of the

conduct elements. See Hughes, 897 S.W.2d at 295.

In this case, the indictment charged that appellant intentionally or knowingly caused the death

of Angel Moreno, a child under six years old, by striking Angel on or about his head with appellant’s

hands or feet, or striking Angel’s head against an unknown surface, or by striking Angel’s head with

an unknown object. This offense includes just one of the three conduct elements. The state was

required to prove that appellant intentionally or knowingly caused Angel’s death (result of conduct),

and that Angel was a child under the age of six years. See TEX . PENAL CODE ANN . § 19.03(a)(8);

see also Black v. State, 26 S.W.3d 895, 897 (Tex. Crim. App. 2000) (holding that there is no

requirement that an offender know or intend that his victim is less than six years old).8 As

mentioned above, the definition portion of the jury charge included the full statutory definitions of

8 W hile the circumstance that elevated Angel’s death from murder to capital murder was Angel’s age, our case law holds that circumstance-of-conduct instructions apply only when the state must prove, as an element of the offense, that the defendant knew of the circumstance. The only such circumstance presently recognized is causing the death of a peace officer. See Hughes, 897 S.W .2d at 295 (“The State was required to prove that appellant intentionally or knowingly caused the death of the deceased (result of conduct) and that appellant knew the deceased was a peace officer (circumstances surrounding the conduct.)”). Clearly, appellant knew that Angel was under the age of six years, but current law does not require the perpetrator to know that the child is under six, thus a circumstances-of-conduct instruction should not be given. 48

intentionally and knowingly, including result-, nature- and circumstances-of-conduct language.

Because this offense does not contain a nature-of-conduct element or a circumstance-of-conduct

element, the trial court erred in failing to limit the definitions of culpable mental state to result of

conduct. However, a mistake in the charge does not in and of itself require reversal. Because

appellant failed to object to the instructions, our next inquiry is whether the record shows egregious

harm to establish reversible error. Almanza, 686 S.W.2d at 171.

Egregious harm is a difficult standard to meet. Taylor v. State, 332 S.W.3d 483, 489 (Tex.

Crim. App. 2011). The record must show “actual, not just theoretical, harm to the accused,” and we

must be able to conclude that appellant has been “deprived of a fair and impartial trial.” Id. at 489-

90. In assessing the harm resulting from the inclusion of improper conduct elements in the

definitions of culpable mental states, we “may consider the degree, if any, to which the culpable

mental states were limited by the application portions of the jury charge.” Hughes, 897 S.W.2d at

297.

The application portion of the charge in this case directed, as follows:

Now if you find from the evidence beyond a reasonable doubt that on or about the 31st day of October, 2005 in Cameron County, Texas, [appellant] did intentionally or knowingly cause the death of [the victim] by striking [the victim] on or about the victim’s head with [appellant’s] hands or feet, or striking the victim’s head against a surface unknown to the grand jury, or by striking [the] victim’s head with an object unknown to the grand jury, and [the victim] was then and there an individual younger than six years of age, then you will find [appellant] “guilty” of Capital Murder, as charged in the indictment.

Although the definitions of “intentionally” and “knowingly” indiscriminately set forth the three

alternative conduct elements, when those terms are viewed in their factual context, it is apparent

which conduct element applies to which element of the offense. For example, the application 49

paragraph states that appellant “did intentionally and knowingly cause the death of [the victim.]”

The terms “intentionally” and “knowingly” directly modify the phrase “cause the death.” Referring

back to the definitions of culpable mental states, it is obvious that the “result of conduct” and “cause

the result” language are the applicable portions of the full code definitions.

We conclude that because the facts, as applied to the law in the application paragraph,

pointed the jury to the appropriate portion of the definitions, no harm, much less egregious harm,

resulted from the court’s failure to limit the definitions of culpable mental states to the result of

conduct. Point of error four is overruled.

JURY ARGUMENT

In point of error twenty-two, appellant maintains that the prosecution deprived him of a fair

trial through repeated misconduct during closing statements at the guilt phase. Appellant raises

numerous complaints within one point of error. Our review of the record shows that appellant failed

to object to many of the instances of alleged prosecutorial misconduct of which he now complains.

Therefore, those specific complaints are not preserved for review, and we decline to address them.

See TEX . R. APP . P. 33.1. We will address the remaining instances to which appellant did object.

This Court has stated that proper jury argument generally falls within one of four areas: (1)

summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to an argument

of opposing counsel; and (4) plea for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex.

Crim. App. 2008).

Appellant complains that the prosecutor made the following argument to the jury: “Prior to

his first birthday, [appellant], this coward right here, took —.” Defense counsel objected, arguing

to the trial court that this was an improper argument. The trial court properly sustained the objection. 50

Appellant’s attorney did not ask the court to instruct the jury to disregard, but the trial court, sua

sponte, ordered the comment “stricken from the record,” which served essentially the same purpose

of telling the jury not to consider the comment for any purpose. Under these circumstances, the trial

court properly denied the motion for mistrial. Lucero v. State, 246 S.W.3d 86, 101 (Tex. Crim. App.

2008).

Appellant also complains that the state accused the defense of manufacturing evidence during

its closing argument. Appellant did not object when the prosecutor argued to the jury that the two-

page statement presented by the defense as appellant’s true statement to police was a “document that

somebody with a copy machine can come back and [with] just a little b[i]t of effort can go back and

try to forge.” However, later, appellant objected when the prosecutor further argued to the jury that

“[the state did not bring] this statement here that shows an improper spacing on top [and d]oesn’t

show the third page conveniently the third – the last paragraph which is very incriminating again[st]

[appellant].”

The trial court sustained appellant’s objection that the prosecutor was arguing outside the

record. Appellant did not request a curative instruction or move for a mistrial. The prosecutor

immediately continued arguing to the jury that “[t]his statement is a fraud. Who brought it to you?

Who introduced it? They brought it.” At that time, defense counsel did not object, but did ask to

approach the bench. A bench conference occurred off the record. When the parties were back on

the record, the following exchange took place:

[Defense Counsel]: Judge, at this time I would request a Grand Jury investigation of me and let [the state] prove or try to prove their case against me.

[Trial Court]: All right. I’ll let them decide. 51

It was appellant’s responsibility to request a curative instruction or move for mistrial. See Young v.

State, 137 S.W.3d 65, 70 (Tex. Crim. App. 2004) (indicating that, when a party fails to request a

curative instruction and requests only a mistrial, the scope of review is limited to whether the trial

court erred in not granting a mistrial).

Finally, appellant complains that the state improperly commented on his failure to testify.

While discussing appellant’s statement to police, which was given before his arrest and after he was

advised of his rights, the prosecutor argued, “But what he admits to is only the biting and the

squeezing of the ribs . . . The only thing [appellant] didn’t want to talk about in his statement—.”

Defense counsel objected “to the comment on [appellant’s] Fifth Amendment rights.”

The trial court held a discussion outside the presence of the jury and confirmed with the court

reporter that the prosecutor’s actual words were “[t]he only thing that the defendant didn’t want to

talk about in his statement.” The trial court ultimately overruled the objection, stating that the

prosecutor’s remarks did not rise to the level of commenting on appellant’s failure to testify.

Appellant requested a mistrial, which was denied.

The prosecutor’s remarks referred specifically to appellant’s statement, which was in

evidence and had been taken before his arrest and after he had received warnings. Her remarks did

not refer to appellant’s decision not to testify at trial or any other post-arrest silence. Therefore, the

prosecutor’s arguments were not improper. Point of error twenty-two is overruled.

JURY REQUEST

In point of error fifteen, appellant contends that the trial court erred in failing to provide the

jury with an exhibit it requested during deliberation following the guilt phase. The jury requested

to review several items, one of which was the video recording of Moreno’s statement. The trial court 52

ruled that the jury could not have the entirety of the video recording but could request the specific

portion it wanted to view. Defense counsel objected and argued that because the entire video

recording was introduced into evidence, the jurors were entitled to see all of it.

Following a recess, the trial court corrected its ruling, indicating that defense counsel was

correct. The trial court, the state, and defense counsel then discussed the best way to satisfy the

jury’s request. Difficulty arose because the video recording was entirely in Spanish. The trial court

indicated that it would ask the jury whether it wanted to actually view the video recording of

Moreno’s statement in the court room or if the translated transcript of the video would be sufficient.

The trial court told the jury: “This is what we are going to do, I want you to go back and think about

what I said as a jury. [T]hen you send me a note on what you want to do, all right?” Prior to the jury

informing the trial court of how it wanted to proceed regarding its request, the jury sent out a note

indicating that it had reached a verdict.

While the trial court initially made an incorrect ruling, it corrected that ruling and was in the

process of determining the best way to fulfill the jury’s request when the jury reached its decision.

Under these circumstances, we do not find that the trial court erred. Point of error fifteen is

RIGHT TO BE PRESENT

In point of error sixteen, appellant complains that his right to be present was violated when

he was absent from the in-chambers discussion regarding appellant’s two varying statements to

police and from the proceeding regarding the jury’s notes. The record reflects that appellant neither

asked to be present in chambers nor objected to not being in chambers during the discussion

regarding the two statements. Before the discussion regarding the jury notes, the state questioned 53

whether appellant should be present. The trial court noted that appellant “waived appearance,” and

defense counsel confirmed this, stating: “Your Honor . . . I do hereby waive his appearance at this

time.” Thus, this point of error has not been preserved for review. See TEX . R. APP . P. 33.1; see also

Routier v. State, 112 S.W.3d 554, 575-77 (Tex. Crim. App. 2003). Point of error sixteen is

A.P. MERILLAT’S TESTIMONY AT PUNISHMENT

In point of error five, appellant argues that the state violated appellant’s constitutional rights

by presenting “false and highly misleading testimony on a crucial issue.” During the punishment

phase, A.P. Merillat9 testified that a capital murderer sentenced to life without parole could achieve

a lower, less restrictive G classification status based on good behavior.

The prosecutor asked Merillat, “And in the event that a person is placed or sentenced to life

in prison without parole, where do they serve that sentence?” Merillat responded,

Interestingly enough, the classification system in prison determines where an inmate lives[,] if he is able to work, [and] how many privileges he has. The classification system determines how an inmate will spend the rest of his time[,] whatever it is[,] inside the penitentiary. It’s the very heart of a prison inmate’s sentence or his time in prison. When a person is convicted of capital murder and given a life sentence or anything less than death, he’s classified immediately upon arrival [in the] prison system as what they call a G3. A G3 classification is a middle range classification, it’s not the tightest they have, it’s not the easiest they have. That G system begins at the number one, that means very light, like a trustee type status. Then it goes to number two, number three, number four, number five. Five being the worst inmates. A convicted capital murderer with a life sentence will go in automatically as a G3 right in the middle. In other words[,] that can be the same as a burglar or thief or a forger, or DWI felon. They could go in as a G3 too or they can be a G3 while in prison. You can promote up to better classification if you behave, you can go down to more strict classification.

Merillat was the only witness to testify regarding the Texas Department of Criminal Justice (TDCJ)

9 The reporter’s record incorrectly identifies this witness as A.P. Marilock. 54

classification system and about the environment a defendant might encounter if sentenced to life

without parole, and while his testimony was more accurate than it had been in Estrada, 313 S.W.3d

at 286-88, it remained false in at least one significant way.

In Estrada, Merillat testified that, “after 10 years of G-3 status, a capital murderer who had

been sentenced to life without parole could earn a lower, less restrictive, G classification status than

a G-3 status.” Id. at 286. We sustained Estrada’s point of error based on that false testimony. Id.10

In this case, Merillat testified, “They could go in as a G3 too or they can be a G3 while in prison.

You can promote up to better classification if you behave, you can go down to more strict

classification.” Such testimony is directly contradicted by a July 2005 TDCJ regulation, judicially

noticed by the Estrada Court, that “unambiguously shows, ‘Effective 9/1/05, offenders convicted

of Capital Murder and sentenced to “life without parole” will not be classified to a custody less

restrictive than G-3 throughout their incarceration . . ..” Id. at 287.11

The United States Supreme Court has instructed that a death sentence based on materially

inaccurate evidence violates the Eighth Amendment. Johnson v. Mississippi, 486 U.S. 578, 590

(1988). At the time of trial, no inmate who was sentenced to life without parole would be assigned

a G classification less than G-3. Both Merillat and the state knew or should have known of that

regulation and therefore knew or should have known that Merillat’s testimony about the G

10 During the punishment phase at Estrada’s trial, the jury sent out two notes. The first inquired as to what the jurors should do if they could not “come to a decision” on future dangerousness. The second asked about the testimony of Larry Fitzgerald, a defense expert, and Merillat’s testimony, both of whom had testified about the inmate classification system. Fitzgerald’s (accurate) testimony that the least restrictive classification a capital murderer could ever get was G-3 was in conflict with Merillat’s (inaccurate) testimony that a capital murderer’s classification could become less restrictive after ten years in prison. (He seems to be referring to an outdated version of TDCJ regulations.) The response to both notes was “You have the law and the evidence. Please continue your deliberations.”

11 The regulation was in effect in 2008 and is still in effect. 55

classification of inmates who were sentenced to life without parole was false. In Estrada, this Court

found that such testimony is material. Id. at 287. We now consider harm.

Because the Supreme Court has held that a death sentence based on materially inaccurate

evidence violates the Eighth Amendment, Johnson, 486 U.S. at 590, we examine the issue of harm

pursuant to Tex. Rule App. Pro. 44.2(a), Constitutional error. Under that standard, a reviewing court

“must reverse a judgment of conviction or punishment unless the court determines beyond a

reasonable doubt that the error did not contribute to the conviction or punishment.”

Merillat testified as an expert on prison violence and regulations: a Texas peace officer for

31 years; a criminal investigator for the special prosecution unit for 24 years; qualified as a

fingerprint and “blood stain” expert; author of five books and numerous articles on prison violence

in Texas; college lecturer on prison violence and classification of inmates; author of the curriculum

for criminal investigations at Texas A&M University; and frequent speaker on prison violence,

criminal investigations, and crime in Texas prisons. Such extensive credentials increased his

credibility as a person knowledgeable about violence in prisons and future dangerousness.

After Merillat’s testimony about classification, the prosecutor also led Merillat through a list

of prison “horribles”: escapes; smuggled cell phones; corrupt guards and wardens; inmates “raping

and extorting” other inmates; 156 murders within the prison system since 1984; violent felony crimes

committed by 94 convicted capital murders in the previous three to four years; five murders “this

year,” two in high security areas; two murders on death row and many attacks on guards; two capital

murderers from Cameron County, the venue of this trial, who had been sentenced to life without

parole instead of death and killed again in prison.

Merillat also stated that inmates sentenced to life without parole are treated just like all other, 56

non-death-row, inmates, but then contradicted himself and said that such inmates are not allowed

out on work detail without an armed guard, but rules “change all the time.” He conceded that, since

the escapes of the Texas Seven, the authorities “don’t want them working outside the fence, but it

could happen.” His testimony repeatedly emphasized the violence pervasive within the prison

system: “a extremely violent place. Very violent”; “[t]he level of violence is extremely high inside

Texas prisons”; it’s a very, very violent, very dangerous place”; “Our prison system of Texas is a

extremely violent place.”

The state’s case was circumstantial. The cause of death was clear, but the testimony about

the manner and means of death showed that only two adults and several small children were in the

home, an 11-month-old child died, and each adult pointed at the other as the perpetrator. The state

presented no psychiatric evidence that appellant presents a future danger, nor did it attempt to rebut

the defense’s psychiatric evidence that appellant would not be a danger in the future.

At the time of his trial in 2008, Velez’s criminal record consisted of a forgery (1985),

criminal mischief (1988), a bar fight in Sauk County, Wisconsin, which resulted in three

misdemeanor charges–battery, disorderly conduct, and use of a deadly weapon (1991), a DWI

(1998), evading arrest or detention (2001), and three hot checks (2005). Other than the bar fight in

1991, all of the charges involved non-violent offenses. With the exception of the 1985 forgery, all

were misdemeanors. He had also used more than one name, birth date, and Social Security number.

Velez had been in custody for some period of time before trial and had a clean disciplinary record.

And while the facts of a case alone may support a finding of future dangerousness,12 after reviewing

this record we cannot find beyond a reasonable doubt that Merillat’s false testimony “did not

12 See, e.g., Estrada at 312 and cases cited therein. 57

contribute to the conviction or punishment.” Point of error five is sustained.

OTHER PUNISHMENT PHASE ALLEGATIONS

In points of error thirty through thirty-five, appellant raises complaints alleging the improper

admission of evidence during the punishment phase, the improper cross-examination of defense

witnesses, prosecutorial misconduct during the punishment-phase closing arguments, and the

improper granting of the State’s challenges for cause.13 Our resolution of these points of error cannot

result in relief greater than that resulting from our resolution of point of error five. These are errors

that are not likely to be repeated in a new sentencing hearing. Thus, we decline to address points of

error thirty through thirty-five.

TEXAS DEATH-PENALTY SCHEME

In point of error thirty-six, appellant alleges that the trial court erred in refusing “to instruct

the jury that it had to find beyond a reasonable doubt the extraneous offenses offered by the State

to prove the special issues.” As appellant acknowledges, we have rejected this argument in other

cases. See Garcia v. State, 57 S.W.3d 436, 442 (Tex. Crim. App. 2001). “As long as the

punishment charge properly requires the State to prove the special issues, other than the mitigation

issue, beyond a reasonable doubt, there is no unfairness in not having a burden of proof instruction

concerning extraneous offenses.” Ladd v. State, 3 S.W.3d 547, 574-75 (Tex. Crim. App. 1999).

Point of error thirty-six is overruled.

In points of error thirty-seven through forty-two, appellant presents allegations that he

characterizes as challenges to the jury instructions. These points of error, however, are actually

13 In capital cases, jury-selection claims that revolve around punishment issues are errors relating to punishment only. Ransom v. State, 920 S.W .2d 288, 297-98 (Tex. Crim. App. 1996). 58

facial constitutional challenges to Article 37.071. The record reflects that appellant did not preserve

these claims for appeal. See Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009). Even

if appellant had preserved these claims, they are without merit.

In point of error thirty-seven, appellant complains that the trial court committed reversible

error in charging the jury that a “yes” vote to Special Issue Two, the mitigation special issue,

required ten votes. We have rejected this claim in other cases. See Rousseau v. State, 855 S.W.2d

666, 687 n.26 (Tex. Crim. App. 1993). Point of error thirty-seven is overruled.

In point of error thirty-eight, appellant argues that the trial court improperly charged jurors

that they had the discretion to determine whether a circumstance was mitigating. This Court has

previously addressed and rejected this claim. See Threadgill v. State, 146 S.W.3d 654, 671 (Tex.

Crim. App. 2004). Point of error thirty-eight is overruled.

In point of error thirty-nine, appellant alleges that the trial court erred by statutorily charging

the jury on Special Issue One, the future-dangerousness special issue, because the term “probability”

diluted the State’s beyond-a-reasonable-doubt burden of proof standard. This Court has rejected this

claim in other cases. See Rayford v. State, 125 S.W.3d 521, 534 (Tex. Crim. App. 2003). Point of

error thirty-nine is overruled.

In point of error forty, appellant asserts that the trial court committed reversible error in

charging the jury to presume that a death sentence was the appropriate penalty. Appellant argues that

the mitigation special issue in Article 37.071 unconstitutionally creates a “presumption of death.”

We have addressed and rejected this claim in other cases. See Russeau v. State, 291 S.W.3d 426,

436 (Tex. Crim. App. 2009). Point of error forty is overruled.

In point of error forty-one, appellant asserts that the trial court’s instructions applied an 59

unconstitutional statute by instructing the jury to consider mitigating evidence in its future-

dangerousness determination. Appellant argues that the Article 37.071 instruction is

unconstitutional because it directs the jury, while considering the future-dangerousness special issue,

to consider “evidence of the defendant’s background or character or the circumstances of the offense

that militate for or mitigate against the imposition of the death penalty.” We have previously

addressed and rejected this argument. See Estrada, 313 S.W.3d at 306-07. Point of error forty-one

is overruled.

In point of error forty-two, appellant alleges that the trial court erred by not instructing the

jury that it could consider any residual doubt about his guilt as a mitigating circumstance. This Court

has previously decided this issue adversely to appellant’s position. Gallo v. State, 239 S.W.3d 757,

779 (Tex. Crim. App. 2007). Point of error forty-two is overruled.

In point of error forty-three, appellant complains that the indictment in this case is deficient

because it did not contain grand jury findings on the future-dangerousness special issue. Citing to

Ring v. Arizona, 536 U.S. 584 (2002), appellant argues that before the state could seek the death

penalty in this case, the grand jury was required to pass on the future-dangerousness special issue.

This Court has previously found that the state is not required to allege the special issues under

Article 37.071 in the indictment and that the grand jury is not required to pass on the punishment

special issues when deciding whether to indict a defendant for capital murder. Roberts v. State, 220

S.W.3d 521, 535 (Tex. Crim. App. 2007). Point of error forty-three is overruled.

In point of error forty-four, appellant alleges that the statutory future-dangerousness special 60

issue violates the Eighth Amendment14 because no one can reliably predict whether another person

will commit acts of violence in the future and therefore this is an arbitrary factor. We recently

addressed and rejected this claim in Coble v. State, 330 S.W.3d 253, 297-98 (Tex. Crim. App. 2010).

Appellant’s argument does not persuade us to revisit the issue. Point of error forty-four is overruled.

In point of error forty-five, appellant alleges that Texas prosecutors’ “unfettered,

standardless[,] and unreviewable discretion” to seek the death penalty violates equal protection, due

process, and the Eighth Amendment of the United States Constitution. We have rejected these and

similar claims in other cases. See, e.g., Estrada, 313 S.W.3d at 312. Point of error forty-five is

INEFFECTIVE ASSISTANCE OF COUNSEL

In point of error six, appellant raises numerous ineffective-assistance-of-counsel claims

relating to the guilt and punishment phases of trial. Because of our disposition of point of error five,

we find it unnecessary to address claims relating to the punishment phase. With respect to the guilt

phase, appellant presents a lengthy list of counsels’ alleged deficiencies. Appellant argues that

counsel failed to do the following: correct Moreno’s false testimony; request an accomplice-

corroboration charge; object to the charge expanding intent beyond cause of death; and request a

charge affording the benefit of doubt between the charged offense and lesser included offenses.

We determine that the record is not sufficient to address appellant’s ineffective- assistance-

of-counsel claims because it does not sufficiently show that counsel’s representation was lacking in

14 In the heading for this point of error, appellant contends that the statutory future-dangerousness special issue violates the Texas Constitution. However, within his argument, appellant cites the Texas Constitution only twice and does not provide any support for his Texas constitutional claim. Therefore, we decline to address this contention in relation to the Texas Constitution. See Heitman v. State, 815 S.W .2d 681 (Tex. Crim. App. 1991). 61

tactical and strategic decision making. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.

2002) (“Under normal circumstances, the record on direct appeal will not be sufficient to show that

counsel’s representation was so deficient and so lacking in tactical or strategic decision making as

to overcome the presumption that counsel’s conduct was reasonable and professional”). Point of

error six is overruled.

CUMULATIVE ERROR

In point of error forty-six, appellant argues that this Court should reverse the conviction and

sentence because of the cumulative harm of the errors enumerated above. In light of our disposition

of point of error five, our resolution of this point of error pertains only to the guilt phase of

appellant’s trial. On this record, we cannot say that the cumulative effect of any errors that may have

occurred during the guilt phase rendered this portion of appellant’s trial fundamentally unfair. See

Estrada, 313 S.W.3d at 311 (citing United States v. Bell, 367 F.3d 452, 471 (5th Cir. 2004)). Point

of error forty-six is overruled.

We affirm the appellant’s conviction, set aside his death sentence, and remand the case to

the trial court for a new punishment hearing.

Delivered: June 13, 2012 Do Not Publish