Suniga, Brian

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-77,041

BRIAN SUNIGA, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL FROM CAUSE NO. 2012-434109

IN THE 140 TH DISTRICT COURT

LUBBOCK COUNTY

Per curiam. KELLER, P.J., concurred in the disposition of point of error

number 2 and otherwise joined.

OPINION

We grant Appellant’s motion for rehearing, withdraw our prior opinion entered in this

case, and substitute the following opinion of the Court.

Suniga — 2

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

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

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

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

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

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

STATEMENT OF FACTS

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

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

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

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

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

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

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

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

for the customers to leave.

1

Unless otherwise indicated, all references to Articles refer to the Code of Criminal

Procedure.

2

Subsequent references to the victims will be by first name because they share the same last

name.

Suniga — 3

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

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

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

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

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

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

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

Both men wore “hoodies” and baggy pants.

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

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

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

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

the floor.

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

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

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

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

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

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

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

Suniga — 4

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

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

The Lubbock Police Department published descriptions of the suspects based on

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

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

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

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

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

description of their vehicle.

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

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

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

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

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

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

seized the vehicle.

PRE-TRIAL MATTERS

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

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

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

Suniga — 5

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

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

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

the risk of a conflict of interest merited the appointment of new counsel.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Like [defense counsel] said, I’m here trying to seek new representation. I have

a couple of issues with one of my defense members. I feel like his best interest

is more probably with the State than with mine. We’ve talked on a couple of

occasions, and he’s told me things that aren’t true. He’s also told me that he

Suniga — 6

feels that I could be guilty; therefore, I don’t feel like his interests are -- his

best interests are with me, I feel they might be with the State, your Honor.

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

stated?” Appellant responded:

Well, your Honor, I mean, I just -- I don’t feel comfortable going into the

courtroom with somebody who might think that I’m guilty, or has been telling

me things that aren’t true. That’s -- I mean, we’re talking about life and death

here in my situation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Voir dire then continued.

Suniga — 7

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

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

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

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

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

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

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

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

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

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

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

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

disarray. Id.

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

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

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

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

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

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

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

Suniga — 8

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

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

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

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

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

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

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

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

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

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

look to case law addressing motions to withdraw as instructive.

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

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

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

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

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

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

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

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

Suniga — 9

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

court did not err in denying the motion).

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

provided Appellant with an opportunity to express his reasons for his dissatisfaction with

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

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

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

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

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

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

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

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

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

court did not abuse its discretion in refusing counsel’s motion to withdraw when the

defendant and his attorney had “personality conflicts” and the defendant complained about

counsel’s trial strategy and failure to provide updates about his case). Under the

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

extent of the alleged conflict.

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

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

Suniga — 10

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

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

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

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

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

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

action against his court-appointed attorney is not a per se conflict of interest that warrants the

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

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

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

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

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

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

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

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

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

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

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

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

Suniga — 11

attorney when he expressed dissatisfaction with defense counsel immediately before jury

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

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

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

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

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

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

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

for new representation.

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

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

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

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

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

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

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

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

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

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

individual voir dire. Point of error one is overruled.

Suniga — 12

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

“personally present at the trial” under Article 33.03,3 his right to be present at “any pre-trial

proceeding” under Article 28.01, § 1,4 and his “absolute right to be present at all proceedings

against him under the Sixth Amendment to the United States Constitution” when the judge

conversed with Peggy White, a seated juror, in his absence. He also contends that the trial

court violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the

United States Constitution because White was biased against criminal defendants.5 At trial,

3

Article 33.03 provides, in relevant part:

In all prosecutions for felonies, the defendant must be personally present at the trial,

. . . provided, however, that . . . , when the defendant voluntarily absents himself . .

. after the jury has been selected when trial is before a jury, the trial may proceed to

its conclusion. When the record in the appellate court shows that the defendant was

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

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

whole trial.

4

Article 28.01, § 1 provides, in relevant part: “The defendant must be present at the

arraignment, and his presence is required during any pre-trial proceeding.”

5

For the first time on appeal, Appellant raises a Sixth Amendment claim – distinct from his

claim based on his absence from court proceedings – that the trial court’s denial of his challenge for

cause based on White’s alleged bias violated the Sixth Amendment. We decline to address this Sixth

Amendment claim because the legal basis he advances differs from his complaint at trial. See TEX .

R. APP . P. 33.1. (Unless otherwise specified, all references to rules refer to the Texas Rules of

Appellate Procedure.) Appellant’s trial counsel listed the specific legal grounds for his bias

challenge, including the Fifth, Eighth, and Fourteenth Amendments, yet omitted the Sixth

Amendment. Under these circumstances, the trial judge could not be expected to understand that

Appellant meant to implicitly advance a legal basis he did not enumerate. See Rule 33.1(a); see also

Lovill v. State, 319 S.W.3d 687, 691-92 (Tex. Crim. App. 2009) (“A complaint will not be preserved

if the legal basis of the complaint raised on appeal varies from the complaint made at trial.”); Reyna

v. State, 168 S.W.3d 173, 179-80 (Tex. Crim. App. 2005) (holding that the Appellant forfeited

appellate review of his Sixth Amendment Confrontation Clause argument due to his failure to

present that legal basis to the trial court).

Suniga — 13

Appellant challenged White for cause because (1) the trial court conducted an ex parte

inquiry with her in violation of Article 33.03, and (2) her comments during the inquiry

demonstrated that she was “bias[ed] against criminal defendants,” so that her service on the

jury would violate the Fifth, Eighth, and Fourteenth Amendments to the United States

Constitution. Appellant contends on appeal that the trial court erred when it denied his

challenge for cause on these bases. This point of error raises more than one ground for relief,

and therefore it is multifarious. See Rule 38.1; Jenkins v. State, 493 S.W.3d 583, 605 n.50

(Tex. Crim. App. 2016). Further, Appellant did not object to the trial court questioning the

juror in his absence on two of the legal grounds raised on appeal – Article 28.01 and the

Sixth Amendment. See Rule 33.1(a). However, we will address these claims in the interest

of justice.6

Based on an ambiguous and misleading record surrounding the trial judge’s

questioning of White, this Court assumed in its opinion on original submission that one of

Appellant’s defense attorneys was present during the questioning of White on May 1, 2014.

6

Appellant argues in his motion for rehearing that “this Court, in Adanandus v. State,

866 S.W.2d 210, 216-217 (Tex. Crim. App. 1993)[,] . . . treated Art. 28.01’s requirement of the

defendant’s presence as being of a type that cannot be waived.” He also argues that the Sixth

Amendment right to be present at one’s trial “must fall into the second category of rights under

Marin [v. State, 851 S.W.2d 275, 278-79 (Tex. Crim. App. 1993)], i.e.[,] those rights that must

be implemented unless expressly waived, since otherwise it would be incumbent on a defendant

to request to be present at his own trial in order to avoid forfeiture of that right[.]” We need not

decide today where the present claims and circumstances fall within our Marin framework. See,

e.g., Routier v. State, 112 S.W.3d 554, 587 (Tex. Crim. App. 2003) (“Even if we assume that the

appellant did not need to object to preserve these complaints[,] the appellant still cannot

prevail.”).

Suniga — 14

We stated that it was unclear whether Appellant was personally absent from the proceeding,

noting the presumption of presence found in Article 33.03. See Art. 33.03 (“When the record

in the appellate court shows that the defendant was present at the commencement, or any

portion of the trial, it shall be presumed in the absence of all evidence in the record to the

contrary that he was present during the whole trial.”). We also assumed, based on the record

before us, that the trial judge questioned White in the courtroom. The submission of a

corrected record has shown those assumptions to be incorrect.

On March 14, 2017, Appellant filed a motion for rehearing alleging four grounds. In

one of Appellant’s grounds, he asserted: “The Court was misled by an ambiguity in the

record that belies the actual circumstances of the trial court’s ex parte questioning of a seated

juror who had inquired into Mr. Suniga’s custody status and declared herself ‘scare[d] to

death’ of incarcerated defendants.”

Shortly thereafter, on March 27, 2017, this Court received a supplemental reporter’s

record (corrected Volume 24), which encompassed the voir dire proceedings held on May

1, 2014. In this supplemental volume, the court reporter inserted the following parenthetical

statement immediately prior to the trial judge’s questioning of Juror White concerning a

reported encounter with Appellant in the courthouse basement: “(The following proceedings

were had in the jury room with only the Judge, Court Reporter, and Juror White present.).”

The court reporter also added the following parenthetical statement immediately after the

judge concluded his questioning of White and the juror departed: “(The following

Suniga — 15

proceedings were had in open court with Defendant and attorneys present.).” Despite the

reference to the “jury room,” the court reporter certified that all proceedings were held in

“open court” or in the judge’s chambers.

Faced with questions concerning the accuracy of the trial record in this matter, this

Court issued an order abating Appellant’s appeal and remanding this case to the trial court.

See Suniga v. State, No. AP-77,041 (Tex. Crim. App. June 14, 2017) (not designated for

publication); see also Rule 34.6(e)(2), (3). This Court ordered the trial court to conduct a

hearing to determine:

[T]he specific circumstances under which Juror Peggy White was questioned

by the trial judge; the location where White was questioned; who was present

during the questioning; and, if defense counsel and the defendant were not

present, when defense counsel and/or the defendant received actual notice of

the questioning and when they were provided with a transcript of the

questioning.

In a footnote, we noted that the March 2017 supplemental record’s “parenthetical statement

that the juror was questioned in the jury room appear[ed] to conflict with the statements in

the court reporter’s certification.” We ordered that the trial court’s hearing be transcribed

and ordered the trial court to:

determine whether the court reporter’s supplemental record filed in this Court

on March 27, 2017, accurately reflects the events that occurred in connection

with the trial court’s questioning of White. If the trial court finds any

inaccuracies in the reporter’s record, the court shall order the court reporter to

“conform the reporter’s record . . . to what occurred in the trial court, and to

file certified corrections” in this Court. See T EX. R. A PP. P. 34.6(e)(2). The

trial court shall order the appropriate supplemental clerk’s and reporter’s

records – including all findings and orders and any certified corrections – to

Suniga — 16

be prepared and forwarded to this Court no later than 30 days after the date of

this order.

After requesting and receiving extensions of time, the trial court held a hearing on

December 20, 2017. At the hearing, the trial court apparently allowed the parties to address

the remanded issues set out above along with related issues Appellant raised in his initial

Article 11.071 application for a writ of habeas corpus. As a result, the transcript of the

hearing on remand includes witness testimony and other evidence beyond the limited subject

matter of this Court’s order remanding this case. Yet this Court’s remand to correct the

record pursuant to Rule 34 cannot authorize supplementing the direct appeal record with

substantive evidence that was not admitted at trial or exceeds the limited issues set out in the

remand order. See Ramirez v. State, 104 S.W.3d 549, 551, n.9 (Tex. Crim. App. 2003)

(citing Farris v. State, 712 S.W.2d 512, 515-16 (Tex. Crim. App. 1986), for the proposition

that an “appellate record cannot be supplemented with evidence not developed during the

proceedings surrounding the defendant’s trial”); see also Solomon v. State, 49 S.W.3d 356,

365 (Tex. Crim. App. 2001) (holding that a record supplementation rule “cannot be used to

create a new appellate record”). Accordingly, we will not consider the testimony and

evidence from the hearing – or new arguments based on that testimony and evidence – that

exceed the scope of our remand order.7

7

A trial court’s jurisdiction on remand is limited to the subject matter of the remand.

See Rule 25.2(g) (“Once the record has been filed in the appellate court, all further proceedings

in the trial court - except as provided otherwise by law or by these rules - will be suspended until

the trial court receives the appellate-court mandate.”); Lewis v. State, 711 S.W.2d 41, 43 (Tex.

(continued...)

Suniga — 17

After the hearing, the court reporter issued a new corrected version of Volume 24 and

it was filed in this Court on March 2, 2018. The March 2018 supplement contains essentially

the same content as the March 2017 supplement. However, the court reporter amended his

certification to state that all transcribed proceedings “occurred in open court or in chambers,

unless otherwise specified in the record[.]”

The trial court subsequently entered findings of fact stating in relevant part that the

new supplemental volume:

accurately reflects the location of the trial court’s questioning of Mrs. White

and accurately identifies who was present at that questioning as well as the

content of the questioning itself. The record created of the evidentiary hearing

held on December 20, 201[7], has clarified that defense counsel and the

defendant had no prior notice that the trial court intended to question Mrs.

White outside their presence on May 1, 2014, and that they did not receive a

transcript of that questioning until later that day (at 11:47:23 a.m.).

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

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

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

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

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

7

(...continued)

Crim. App. 1986) (explaining that, when an appellate court abates an appeal, the trial court’s

jurisdiction is limited and the court “is not authorized to conduct an evidentiary hearing to

develop a record of new testimony and other evidence that was not presented at trial, or

developed on motion for new trial”) (emphasis in original). However, our refusal to consider

evidence outside the direct appeal record here will not prevent this Court from considering such

evidence later in the context of an Article 11.071 application for writ of habeas corpus, if it is

properly presented.

Suniga — 18

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

inside a prison with her church group. She described the experience of entering the prison

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

careful and cautious” while they were there.

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

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

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

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

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

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

thoughts” concerning her experience inside the prison.

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

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

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

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

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

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

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

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

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

Suniga — 19

personal experience in the TDC[J]8 unit.” The trial court denied the challenge for cause.

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

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

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

to anything about the case.

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

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

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

warrant further inquiry.9 On April 30, 2014, the judge told the parties, “With regard to Ms.

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

the judge spoke with White in the jury room. Only White, the trial judge, and the court

reporter were present. The following exchange transpired:

THE COURT: The reason I wanted to talk to you is they indicated to me that you had

seen the Defendant in the basement.

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

THE COURT: Anywhere?

JUROR WHITE: Anywhere.

8

We surmise that “TDC” refers to the Texas Department of Criminal Justice (“TDCJ”),

which was formerly named the Texas Department of Corrections (“TDC”).

9

The record does not reflect the exact source, timing, or content of the communications that

led to the further inquiry.

Suniga — 20

JUROR WHITE: I have not ever seen the Defendant. I’ve never seen anyone in real

clothes in the basement. Only in the -- like the jumpsuit --

THE COURT: Uniform?

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

THE COURT: Okay.

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

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

you had seen him.

JUROR WHITE: I have not.

THE COURT: Okay.

JUROR WHITE: Now, I asked them if he had ever been there. I asked Sharon if he

had ever been there. And she said, “Yes, he’s -- he comes every day.”

And I said, “Oh, my goodness. I didn’t know that.” But I haven’t been to the

basement but a couple of times in the last few weeks.

THE COURT: Okay.

JUROR WHITE: And I have never seen anyone in regular clothes. But, now, when

I’m in the -- my room, we close the door when anyone is going by. And if anyone --

if I should be caught in the hallway, I usually move back against the wall and put my

head down, because I don’t want to make eye contact with any of those people,

because I don’t want them to -- you know, it’s kind of scary -- it’s scary enough to

have to work down there knowing they’re there. But, no, I’ve never seen him.

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

JUROR WHITE: Okay.

THE COURT: Everything else okay?

JUROR WHITE: Yeah.

Suniga — 21

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

hoping. So --

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

THE COURT: Okay.

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

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

(JUROR WHITE OUT)

(The following proceedings were had in open court with Defendant and attorneys

present.)

THE COURT: Are y’all ready?

[DEFENSE COUNSEL]: No, sir.

(BRIEF RECESS)

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

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

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

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

seated the twelfth juror, whom Appellant identified as objectionable.

One of Appellant’s defense attorneys then requested a transcript of that inquiry of

Juror White:

[DEFENSE COUNSEL 2]: Your Honor, I have one issue I’d like to put on the record

if I could with regard to Juror White. It’s my understanding that things were put on

the record about this juror at some point concerning potential issues she may have had

for service -- service on the jury. And at this point, your Honor, even if it’s just a

Suniga — 22

rough draft copy that Defense would request a copy of those matters that were put on

the record with regard to juror Peggy White.

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

[DEFENSE COUNSEL 2]: And given that, your Honor, I all [of] the sudden cannot

identify what juror number she was.

THE COURT: I think she’s 58.

[PROSECUTOR]: Yes, sir.

[DEFENSE COUNSEL 2]: Given that she was by my records, your Honor, she was

the sixth seated juror.

THE COURT: That’s correct.

[DEFENSE COUNSEL 2]: I would ask the Court to allow me to come back and

revisit this issue of peremptory strikes after I’m able to review the rough draft of the

transcript.

THE COURT: Okay.

[DEFENSE COUNSEL 2]: I don’t have any objection to proceeding, but I would like

the right to come back and address that.

THE COURT: That’s fine.

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

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

White, defense counsel challenged White for cause:

[DEFENSE COUNSEL 2]: Your Honor, with regard to the seated juror -- I believe

it was the sixth seated juror, Ms. White. This morning, after review of the transcript

that’s part of the record in this case . . . in light of that transcript, your Honor, we’re

going to challenge that juror, Ms. White, for cause. She’s a seated juror at this point.

We’re going to challenge her for cause in that we believe the Court’s inquiry with her

Suniga — 23

ex parte is a violation of 33.03 of the Code of Criminal Procedure requiring the

Defendant to be present at trial.

Additionally, your Honor, in the transcript, she indicates -- there is a discussion

-- the record will speak for itself, but there is a discussion about her passing, or being

in the hallway -- apparently, in the basement of this building with inmates from the

jail. And toward the end of that -- of that discussion with the Court, she . . . -- the

only context is in the paragraphs above, but she says, “All right. No. No. I’ve not

had any.” The Court replied, “Okay.” She said, “No. And that would scare me to

death.” The implication of the juror’s statements to the Court are [sic] that being

around a defendant scares her to death, and -- or being -- or passing folks in the

basement hallway would scare her to death. A juror who expresses that view, your

Honor, cannot afford a defendant the presumption of innocence if she’s scared to

death of them.

Further, she would not be able to assess the credibility of the Defendant that

she’s scared to death of who might take the stand and testify. And we believe that

that establishes bias against criminal defendants in this juror’s mind. And based upon

that record -- I believe in the last sentence she has to be making reference to my client,

your Honor. And so she has a specific bias against [Appellant] that’s impermissible

under Texas law. A bias cannot be collateral. It would also violate [Appellant’s]

rights under the 5th Amendment, the 8th Amendment and 14th Amendment, your

Honor. Particularly due process under the 5th Amendment.

And so we would ask to challenge the juror at this point on those two bases.

That would be -- that would be the first thing, your Honor, is to challenge the juror

on that basis.

THE COURT: The Court was of the opinion that she was making reference to the fact

that the deputies tell the employees on any floor where any defendants are being taken

to stand aside, and not be in the hallway where they may have more than one

defendant who is being transferred from one place to another.

[DEFENSE COUNSEL 2]: That’s the -- that’s the only challenge for cause I have

against the juror, are those two bases, your Honor.

THE COURT: The Court will deny your challenge.

Suniga — 24

[DEFENSE COUNSEL 2]: And for purposes of the record, Judge, I would also ask

-- the Defense at this point is out of peremptory strikes. I would ask for a peremptory

strike, specifically, to exercise against seated Juror White, Juror No. 52 --

THE COURT: 58.

[DEFENSE COUNSEL 2]: 58? We would request an additional peremptory to

exercise against that juror.

THE COURT: Any response, [prosecutor]?

[PROSECUTOR]: Judge, I probably need to consult with the lead counsel on this

before I put anything on the record with regards to this. If you could give me five

minutes, I may have a response.

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

[PROSECUTOR]: And, your Honor, the State would oppose and would object to the

Court giving the Defense an additional peremptory for Ms. White. This is a big -- in

our opinion, a big to[-]do about nothing. In that this allegation that the Court went

and talked to Ms. White about was based on false information from the beginning,

and I’m not sure that that’s ever been put on the record. But based on --

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

[PROSECUTOR]: And that’s what the Court had told [defense counsel] and I a

couple of days ago, that it was based on false information. She never in that transcript

told the Court that she is scared of this Defendant.

[Defense counsel] is insinuating that from her comments, but that’s not what

she said. In addition, the Defense had peremptories available both at the time that Ms.

White was taken on voir dire, as well as when this information came to light they still

had peremptories available, and they chose to use them on other jurors. . . . And so

we would object to the Court allowing an additional peremptory strike for her.

THE COURT: The Court is going to deny your motion at this time to -- for a

peremptory to strike Ms. White. The Court will deny your challenge to cause as to

Ms. White.

Suniga — 25

[DEFENSE COUNSEL 2]: Yes, your Honor. For purposes of the record, the Defense

would identify Juror White as an objectionable juror, in addition to Juror 105, Mr.

Hanfeld.

“One of the most basic of the rights” guaranteed by the Sixth Amendment’s

Confrontation Clause “is the accused’s right to be present in the courtroom at every stage”

of trial. Illinois v. Allen, 397 U.S. 337, 338 (citing Lewis v. United States, 146 U.S. 370

(1892)). This Court has recognized that, under the Sixth Amendment and Article I, § 10 of

the Bill of Rights in the Texas Constitution, “the scope of the right of confrontation is the

absolute requirement that a criminal defendant who is threatened with loss of liberty be

physically present at all phases of proceedings against him[.]” Jasper v. State, 61 S.W.3d

413, 423 (Tex. Crim. App. 2001) (quoting Miller v. State, 692 S.W.2d 88, 90 (Tex. Crim.

App. 1985)). Under Article 33.03, an accused’s right to be present at his trial is

unwaivable until such a time as the jury “has been selected.” Miller, 692 S.W.2d at 91, 93.

Thus, we have held that a defendant must be present and may not voluntarily absent himself

until after voir dire. Adanandus, 866 S.W.2d at 217-20. “Article 28.01 does not speak to

hearings alone but mandates the appearance of a defendant at ‘any pretrial proceedings.’”

Id. at 218 (quoting Riggall v. State, 590 S.W.2d 460, 461 (Tex. Crim. App. 1979)). In

Adanandus, this Court ruled that a meeting transcribed by a court reporter in which the trial

court overruled a defense motion constituted a “pre-trial proceeding” under Article 28.01.

Id. at 219.

Suniga — 26

The corrected record in Appellant’s case reveals that neither Appellant nor his

attorneys were present when the trial court questioned Peggy White, a seated juror, in the jury

room on May 1, 2014. The court reporter transcribed the judge’s brief exchange with the

juror that day concerning a suspected encounter between White and Appellant. Nothing in

the record before us indicates that Appellant and his counsel’s absence from this proceeding

was knowing or voluntary. Based on the corrected record, we conclude that the trial court’s

conversation with White in their absence violated Appellant’s right to be personally present

at his trial.

Having found error, and presuming it is of constitutional dimension, we determine

whether Appellant was harmed under the standard applicable to constitutional error. See,

e.g., Jasper, 61 S.W.3d at 423 (when faced with non-constitutional and constitutional error,

we will apply the standard of harm for constitutional error); see also Rule 44.2(a) (“If the

appellate record in a criminal case reveals constitutional error that is subject to harmless error

review, the court of appeals 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.”).

When a defendant’s constitutional right to be present during the trial has been

violated, we consider whether the defendant’s presence bears a reasonably substantial

relationship to his opportunity to defend himself. See Adanandus, 866 S.W.2d at 219 (citing

Snyder v. Massachusetts, 291 U.S. 97, 105-08 (1934)); see also Routier, 112 S.W.3d at 577;

Suniga — 27

Cooper v. State, 631 S.W.2d 508, 512 (Tex. Crim. App. 1982). If it does not, then any error

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

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

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

Snyder, 291 U.S. at 106. A defendant’s presence during jury voir dire can bear a reasonably

substantial relationship to his opportunity to defend himself in several ways. See Sumrell v.

State, 326 S.W.3d 621, 625 (Tex. App.—Dallas 2009, pet. dism’d). Voir dire provides

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

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

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

Also, a defendant may assist defense counsel in the jury-selection process, such as by

watching prospective jurors’ reactions to counsel’s questions. Id.

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

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

determine whether they were acquainted. Appellant’s attorney received notice of the judge’s

ex parte exchange with White – and a transcript of the questioning – before noon on the same

day it occurred. After receiving notice and the transcript of the exchange, Appellant did not

seek to question White, even though White worked in the building and trial on the merits had

not commenced. Cf. Adanandus, 866 S.W.2d at 217 (holding that, after eight venire

members were examined in voir dire proceedings by the prosecutor and defense counsel in

Suniga — 28

the defendant’s absence, his absence was “essentially ‘undone’” and Article 33.03 was

satisfied when the trial court and parties repeated those examinations in the defendant’s

presence).

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

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

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

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

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

discretion in overruling the objections). The record shows that the reason for the trial court’s

inquiry – White’s purported encounter with Appellant in the courthouse basement – turned

out to be a false report. White stated that she had never seen Appellant in the basement.

Nevertheless, Appellant contends in his supplemental briefing that his presence at the

proceedings bore a “relation, reasonably substantial” to his opportunity to defend himself.

See Adanandus, 866 S.W.2d at 219 (citing Snyder, 291 U.S. at 105-08). Specifically, he

argues that, had he been present for the court’s questioning of White, “White’s reaction to

[his] mere presence at the interview – the encounter that she admitted would ‘scare her to

death,’ . . . – would have demonstrated to the trial court her inability to function as an

impartial juror who could apply the presumption of innocence.” Appellant’s contention is

purely speculative and he has not pointed us to any evidence showing that White reacted in

a fearful manner to his presence during other court proceedings. Cf. id. at 220 (“There is no

Suniga — 29

evidence that the trial court might have ruled differently during the meeting had appellant

been present and a supposition of that nature is unreasonable.”). Therefore, based on the

corrected record before us, we are persuaded beyond a reasonable doubt that Appellant’s

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

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

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

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

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

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

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

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

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

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

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

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

credible if he testified.10

10

Appellant adds on appeal that White’s responses demonstrated that she had prejudged

Appellant’s future dangerousness. We will not consider this last allegation because Appellant did

not raise it before the trial court. See Rule 33.1; see also Layton v. State, 280 S.W.3d 235, 239 (Tex.

Crim. App. 2009) (“A specific objection is necessary to inform the trial judge of the issue and basis

of the objection[.]”).

Suniga — 30

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Suniga — 31

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

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

in the courthouse basement.

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

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

requested – after learning of the trial court’s conversation with White or during the

subsequent hearing when defense counsel challenged her for cause – an opportunity to

question White about whether she could overcome her prejudice well enough to follow the

law. Without more, White’s generalized fear of encountering detainees in the basement did

not disqualify her. See Ladd v. State, 3 S.W.3d 547, 560 (Tex. Crim. App. 1999) (finding

no abuse of discretion or violation of due process when the trial court denied a challenge for

cause against a venire member who stated that he “leaned” in the direction of believing that

the defendant was guilty because the defendant had been arrested and indicted, but who also

stated that he could follow the law, hold the State to its burden of proof, and presume the

defendant innocent); Jones v. State, 982 S.W.2d 386, 389 (Tex. Crim. App. 1998) (stating

that jurors must not have extreme or absolute positions regarding the credibility of any

witness, but “complete impartiality cannot be realized as long as human beings are called

upon to be jurors”); see also Bell v. State, 724 S.W.2d 780, 797 (Tex. Crim. App. 1986)

(quoting Irwin v. Dowd, 366 U.S. 717, 722 (1961)) (“To hold that the mere existence of any

preconceived notion as to the guilt or innocence of an accused, without more, is sufficient

Suniga — 32

to rebut the presumption of a prospective juror’s impartiality would be to establish an

impossible standard.”).

In his supplemental briefing, Appellant further contends that the law enforcement

warnings that caused White to avoid interaction with the inmates and put her “head down”

reinforced her fear of inmates. He again urges that White’s fear indicated that she had “a

bias or prejudice” against him and against “the law applicable to the case upon which the

defense [was] entitled to rely.” See Art. 35.16(a)(9), (c)(2). He compares his case to two

Supreme Court cases in which federal agents spoke with jurors. See Gold v. United States,

352 U.S. 985 (1957); Remmer v. United States, 347 U.S. 227 (1956).

Gold and Remmer are distinguishable. In Gold, a 1950s case involving a charge of

falsification of a noncommunist affidavit, an FBI agent contacted three jurors or their

families during the trial and asked if they had received communist propaganda – a question

of particular concern during the McCarthy Era. 352 U.S. 985. In Remmer, a third party

approached a juror in an attempt to influence him, the juror reported the contact to the judge,

the judge called the FBI, and the FBI interrogated the juror during the trial. Remmer, 347

U.S. at 228; see also Remmer v. United States, 350 U.S. 377, 380-81 (1956) (after remand).

In the instant case, the direct appeal record before us does not show exactly what led White

to put her “head down.” Thus, the record does not support Appellant’s argument that law

enforcement heightened White’s fear of him to the point where she exhibited “a bias or

prejudice” against him or “the law applicable to the case.”

Suniga — 33

Additionally, Appellant argues that this Court should find that White’s statement that

she was “scare[d] to death” implicated the federal doctrine of “implied juror bias.” Appellant

refers us to Uranga v. Davis, 879 F.3d 646, 562-63 (5th Cir. 2018) (holding that, in “extreme

situations” where the facts inherently create a “substantial emotional involvement,” the court

is justified in finding a violation of the Sixth Amendment due to “implied juror bias”).

Appellant also relies upon Brooks v. Dretke, where the Fifth Circuit applied the implied juror

bias doctrine when a juror was arrested for carrying a loaded pistol into the courthouse on

the day of the defendant’s sentencing hearing. 444 F.3d 328, 332 (5th Cir. 2006).

Appellant has not shown that his case presents circumstances sufficient to trigger

application of the implied juror bias doctrine. In Brooks, the gun-carrying juror’s “fate

rest[ed] in the hands of the same prosecutor now seeking the death penalty in Brooks’s trial.”

Id. Throughout the sentencing hearing, the juror did not know whether he would be

prosecuted and suffered “unrelenting embarrassment.” Id. The Fifth Circuit held that the

prosecutor’s power over the juror created an “intolerable risk.” 444 F.3d at 332. Further, the

Fifth Circuit recently reversed the Uranga case on rehearing. Uranga v. Davis, 893 F.3d 282

(5th Cir. June 18, 2018). The Fifth Circuit on rehearing held that the fact that the defendant

damaged a juror’s lawn while fleeing from police “d[id] not rise to the level of the extreme

situations wherein courts have previously imputed juror bias.” Id. at 289. In light of the

above authority, this Court will not impute bias to Juror White, who merely expressed a

vague fear of detainees and possibly of Appellant.

Suniga — 34

Appellant further maintains in his reply brief that, even if implied juror bias does not

apply here, White was “actually impaired in her ability to follow the law and abide by her

oath.” The record does not support his contention. Juror White expressed during voir dire

a commitment to the presumption of innocence. For example, she indicated that, if one of

her four sons were charged with an offense, she “would want people to give them the benefit

of the doubt before judging them.” Appellant has not demonstrated on the record before us

that she was actually impaired in her ability to follow the law or her oath as a juror.11

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

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

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

overruled.

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

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

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

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

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

improbable that an impartial jury could be selected.

11

Appellant avers that, by the time defense counsel requested a transcript of the court’s

exchange with White, the court had “permitted defense counsel to unwittingly expend the

additional peremptory strikes they might otherwise have exercised on White.” The fact that

Appellant’s counsel exhausted his peremptory strikes before requesting the transcript does not

have any bearing on the merit of Appellant’s challenge for cause to White.

Suniga — 35

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

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

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

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

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

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

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

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

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

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

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

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

associated with the case.

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

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

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

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

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

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

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

Suniga — 36

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

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

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

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

an e-mail that day.

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

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

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

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

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

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

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

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

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

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

from the Sheriff or the DPS Director.

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

31.03;12 his due process right to be tried by a fair and impartial jury under the Fifth, Sixth,

12

Article 31.03 provides, in relevant part, that a change of venue may be granted on the

written motion of the defendant for either of the following causes:

(continued...)

Suniga — 37

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(...continued)

1. That there exists in the county where the prosecution is commenced so great a

prejudice against him that he cannot obtain a fair and impartial trial; and

2. That there is a dangerous combination against him instigated by influential

persons, by reason of which he cannot expect a fair trial.

Suniga — 38

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

story on its website.

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

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

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

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

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

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

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

on them.

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

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

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

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

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

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

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

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

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

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

Suniga — 39

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

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

jurors entered the courtroom.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Suniga — 40

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Suniga — 41

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

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

On May 5, 2014, Appellant filed a second motion for change of venue.13 In it, he re-

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

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

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

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

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

by officers while handcuffed14 and wearing an orange jumpsuit. Appellant asserted that these

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

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

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

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

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

13

Due to concerns about media coverage during voir dire, defense counsel began “bench-

filing” pleadings directly with the judge, rather than filing them with the clerk’s office, at around the

same time counsel requested the “gag order.” In his reply brief, Appellant acknowledges that the

second motion for change of venue was “bench filed” on May 5, although it was not file-stamped

until May 12.

14

Although defense counsel used the term, “handcuffed” during the hearing, he used the

term, “shackled,” in his written second motion. Broadly speaking, a handcuff may be a type of

shackle, but to the extent that counsel intended to convey in his written motion that Appellant was

visibly restrained by something in addition to handcuffs, our independent review of the video

confirms that Appellant was handcuffed, with his hands in front of him. A belly chain connected

the handcuffs to his waist. Appellant was not otherwise visibly restrained.

Suniga — 42

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

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

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

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

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

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

a police vehicle by two police officers.

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

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

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

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

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

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

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

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

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

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

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

Suniga — 43

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

stated that an inmate’s tattoos would be catalogued at the jail and used for identification.15

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

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

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

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

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

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

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

them.

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

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

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

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

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

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

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

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

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

15

Neither Koontz nor Scott testified at Appellant’s trial.

Suniga — 44

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

71.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Suniga — 45

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

at 451.

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

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

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

Suniga — 46

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

juror was aware of the May 2nd news coverage.

Suniga — 47

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

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

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

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

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

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

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

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

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

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

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

id.

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

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

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

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

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

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

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

Suniga — 48

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Additionally, Appellant alleges that law enforcement officials disclosed details about

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

Suniga — 49

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

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

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

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

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

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

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

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

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

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

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

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

that any law enforcement officers had released confidential or otherwise prejudicial

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

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

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

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

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

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

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

Suniga — 50

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

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

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

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

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

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

is overruled.

EVIDENTIARY RULINGS

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

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

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

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

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

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

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

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

Michael and Eric.16

16

Except for Appellant’s co-defendant, Sesilio Lopez Jr., who we refer to as “Lopez,” we

will refer to Appellant’s family members by their first names because many of them share the same

last name.

Suniga — 51

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

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

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

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

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

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

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

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

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

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

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

boys’ time with Albert.

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

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

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

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

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

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

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

Suniga — 52

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

case.

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

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

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

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

their main activities were cooking and drinking alcohol.

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

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

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

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

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

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

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

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

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

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

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

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

Suniga — 53

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

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

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

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

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

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

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

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

1983, when Appellant was three or four years old.

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

a lot of time with some of them, but she never saw others. Appellant’s oldest child, Aaron,

was autistic and had birth defects. Rosalinda acknowledged that Appellant neither provided

for his children nor fulfilled the role of a father for them. She stated that he was a good

father when he spent time with his children, but he spent very little time with them.

Rosalinda testified that she considered Eric to be an alcoholic because he drank every

day. When defense counsel asked her if alcohol had “interfered with some parts of Eric’s

life,” the prosecutor objected on the basis of relevance. The trial court sustained the

objection. Rosalinda went on to testify that Eric lived with her periodically, most recently

from 2009 to 2011.

Suniga — 54

Rosalinda also testified that Michael was in prison at the time of trial because of

DWIs and a probation revocation. When defense counsel asked Rosalinda to “tell the jury

about alcohol in Michael’s life,” the prosecutor objected to relevance. The trial court

instructed counsel to “rephrase.” Counsel then asked Rosalinda if alcohol had “caused

criminal problems for Michael in his life,” and she responded, “Yes.” She stated that alcohol

had caused Michael to get into trouble, such as “[j]ail, prison, accidents.” Michael had also

been convicted of drug offenses.

Rosalinda testified that her father also had issues with alcohol while she was growing

up. She described him as “a weekend drinker.” Every Friday when he finished working, her

father and the family would drive to Lubbock to get beer. They would bring it home and her

father would drink all weekend. When Rosalinda was a young woman, her father was killed

in a card game. Rosalinda testified that all of her siblings “drank,” but she was not sure if

they had “problems” with alcohol because she did not see them very often. She

acknowledged that many of them had been to prison. Her brothers had gone to prison for

drug offenses, and her sister Alma had gone to prison for shoplifting.

Rosalinda testified that she met her second husband, Albert, when they worked for the

same company in Austin. She recalled that he was “a great father to” her children. They

married in 1986. Albert joined the military, and when he was transferred to Massachusetts,

the family moved there with him. Later, when Albert was transferred to California,

Rosalinda and Albert separated. Rosalinda moved with her sons to Copperas Cove, Texas.

Suniga — 55

Appellant was in the fifth grade then. Appellant began skipping school because Rosalinda

was “working nights” and not around to supervise him. He stopped going to school

altogether when he was fifteen. Rosalinda and Albert finally divorced in the late 1990s.

Rosalinda acknowledged that Sesilio was a drug dealer who had been married to her

sister when he and Rosalinda began having a romantic relationship. At the time of trial,

Sesilio was in prison for drug dealing.

On cross-examination, Rosalinda stated that Appellant had issues with alcohol and

drugs. She stated that he had had a good relationship with his father, Augustine. She and

Augustine taught Appellant right from wrong. The prosecutor elicited Rosalinda’s

acknowledgment that even though all three of her sons had alcohol problems, only Appellant

had killed someone. When the prosecutor asked Rosalinda if she took better care of

Appellant’s children than Appellant did, she acknowledged that that was true.

Outside the jury’s presence, defense counsel made a “bill of review” 17 with Rosalinda.

First, counsel asked her about the problems that alcohol had caused for Eric. Rosalinda

testified that there was a time when Eric had difficulty maintaining stable employment.

When he lived with her from 2009 to 2011, he was up all hours “and he drank.” Rosalinda

stated that Eric’s alcohol use had caused problems in both of his marriages.

17

See TEX . R. EVID . 103(a)(2) (concerning offers of proof); Rule TEX . R. APP . P. 33.2

(prescribing bills of exception); Reyna v. State, 168 S.W.3d 173, 176 & n.8 (Tex. Crim. App. 2005)

(“We have held, and the Rules of Evidence make clear, that to preserve error in the exclusion of

evidence, the proponent is required to make an offer of proof and obtain a ruling.”).

Suniga — 56

Rosalinda also testified that, in her opinion, Michael was an alcoholic. Michael was

in prison at the time of trial because his probation on his third DWI had been revoked.

Rosalinda testified that alcohol had caused problems for Michael, in that he was unable to

“hold legitimate jobs” and had trouble in his family relationships. The trial judge opined that

Rosalinda’s testimony for the bill of review largely duplicated Eric’s testimony except for

revealing a second marriage. The court again sustained the prosecutor’s objection to the

relevance of the proposed testimony.

Back in the jury’s presence, Appellant’s maternal aunt Delores testified that when she

was growing up, she and her siblings worked in the fields with their father. Her father

treated “the boys and the girls” differently. Delores, who was younger than Rosalinda, stated

that Delores took on the role of protector because her father got violent when he drank. At

that point, the prosecutor asked to approach the bench and the trial court excused the jury.

The prosecutor argued that Delores’s childhood was not relevant to Appellant. Defense

counsel responded that his “obligation [was] to bring forward generations of family history

to establish Appellant’s upbringing and character.” Counsel asserted that a family history

of violence and alcohol abuse was relevant to that. The court sustained the prosecutor’s

objection to testimony concerning Appellant’s grandfather’s behavior unless Appellant had

personal knowledge of it. Defense counsel asked to make a bill.

Outside of the jury’s presence, Delores testified on a “bill of review” that her father

became physically and verbally abusive of their mother when he was drunk, and he also

Suniga — 57

abused the children. Once when their mother had gone to San Antonio for surgery, he

sexually abused Delores’s older sister, Alma, and Delores had to “step forward and put a stop

to it.” Delores acknowledged that Rosalinda did not learn of that incident until Delores told

her about it, after Appellant was charged with this offense. Delores did not recall if the other

children suffered any abuse from their father. Delores recalled that many of her brothers

went to prison for drug and DWI offenses. Her father was murdered in 1984. At the end of

Delores’s bill, the trial court denied defense counsel’s request to present her testimony to the

jury.

Back in the jury’s presence, Delores identified her siblings in a photograph that

defense counsel showed her. She stated that four of her brothers had been to the penitentiary

for drug offenses or DWIs. Her sister Alma also had been to prison, but Delores and her

other sisters had not. Sesilio had been married to Delores’s sister Mary at one time and later

had lived with Rosalinda. Delores recalled that Rosalinda divorced Augustine over his

alcohol abuse. After Rosalinda separated from her second husband, Albert, she worked very

hard and did not spend time with her sons. She had little free time, and she spent any free

time that she did have “partying.” Rosalinda sent Michael to live with Delores in Fort Worth

because he was getting into fights at school. He lived with Delores for a year while he

finished high school, and then he “went back to living with Rosa” after Rosalinda and

Appellant moved to Fort Worth.

Suniga — 58

Before Appellant’s brother Michael testified, the prosecutor stated at the bench that

he believed Michael would testify that he was sexually abused as a child by one of his uncles.

The prosecutor noted that the State had a jail visitation video in which Appellant told his

mother that he was never sexually abused. The prosecutor objected to the relevance of

Michael’s testimony concerning his own sexual abuse. Defense counsel requested that the

parties approach the bench and address the matter if it came up during Michael’s testimony,

and the trial court agreed.

Michael then testified before the jury that he was serving a prison sentence for his

fourth DWI, having had his probation revoked. He had also served time for a federal charge

of conspiracy to possess marijuana with intent to deliver. He recalled that his parents

divorced when he was about six years old. He testified that his stepfather, Albert, was a good

provider and a good man, but he was “hands-off” as a father figure; he did not play games

with the boys and he left their discipline up to their mother. The boys did not see Albert after

they moved with their mother to Copperas Cove. Michael recalled that they did not have

much contact with their father Augustine because he “was suffering from his own addiction

with alcoholism.” Michael recalled seeing their father at Eric’s high school graduation but

could not remember seeing him at other times.

Michael testified that Rosalinda worked a lot and was not around much when they

lived in Copperas Cove. Eric and Michael were old enough to get themselves to and from

school, and they were responsible for taking care of Appellant. Then Eric graduated from

Suniga — 59

high school and left home. Michael started spending time with guys who were skipping

school and partying on the weekends. He also “loved women,” and his interactions with

them led to him getting into fights with other men. Appellant witnessed a lot of the conflict

between Michael and guys who were mad at him. One time, a group of guys who were mad

at Michael threatened the whole family. They showed up outside the house, and one of them

threw a manhole cover through Appellant’s bedroom window. Appellant was at home when

that happened.

Michael testified that, as a result of that incident, Rosalinda sent Michael to live with

Delores in Fort Worth. He graduated from high school in Fort Worth and then joined the

Army. Nine months later, he was discharged because of his drinking and fraternizing with

enlisted women. By then, Rosalinda was living in Fort Worth, and Michael moved into her

house. Appellant still lived with Rosalinda. Sesilio was also spending time there. Michael

lived there for several months while he looked for work. Eventually, he moved to Eldorado

and worked “out there” for a while.

Michael further testified that he returned to Fort Worth after he left that job, and he

supported himself by selling marijuana. He worked for Sesilio, selling methamphetamine,

cocaine, or acid. Michael stated that he has “always been an alcoholic,” and his memory is

sketchy as a result. He started drinking in high school and was an alcoholic by the time he

was fifteen or sixteen. Michael testified that his father, uncles, and cousins were also

alcoholics. He recalled that alcohol was the center of family get-togethers. Michael also

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recalled that Appellant used drugs, including methamphetamine, from around the time

Appellant was sixteen years old. Michael, his cousins, and his uncles were all involved in

drug dealing, and they had been to prison for drug offenses. Only Michael’s uncle Larry had

not gone to prison.

Michael testified that, while his mother and Sesilio were living together, one of

Sesilio’s sons, Jonathan, shot and wounded a family friend who owed Jonathan money.

Jonathan left the area, but Michael feared for Rosalinda’s safety because “everyone”

associated Rosalinda’s house with Jonathan, making it a likely target for retaliation. Michael

told Rosalinda to leave town for the weekend, and she did. Michael was living in his own

apartment by then, but he and Appellant armed themselves with guns and spent the night at

Rosalinda’s house to guard it.

Michael testified that while he and Appellant were drinking in the living room that

night, their dog growled and they heard gunshots. Michael saw “a big ball of flame coming

through the hallway enveloping the living room.” The gunshots kept coming, the windows

were shattering, and it sounded like someone was kicking in the front door. “It sounded like

a war.” Michael and Appellant fled to the kitchen and then they moved into the garage.

They were planning to escape through the garage, but when they opened the garage door, no

one was there. They surveyed the damage and called 9-1-1. The police investigation

revealed that gasoline had been poured on the front of the house. “[T]he gunshot patterns”

indicated that there had been five shooters, with “[t]hree firing 12 gauge shotgun,” and

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“[t]wo firing 9mm. There was [sic] 60 rounds expended from the 9mm.” Michael testified

that, after that incident, Appellant became “much more apprehensive, much more vigilant.

Maybe didn’t trust people as much.”

At the bench, defense counsel renewed his proffer of Michael’s sexual abuse

evidence, and the prosecutor objected that Appellant was not aware of that abuse when he

was a child and had expressed shock when he learned of it while in jail awaiting trial. The

trial court sustained the objection and stated that defense counsel could make a bill at the end

of Michael’s testimony.

Before the jury, the State cross-examined Michael about prison conditions and his

experiences with other inmates. Michael stated that he had been housed in sixty-man

dormitories and that prison is a very violent place. He affirmed that prison inmates are not

generally aware of other inmates’ offenses of conviction. At the time of trial, Michael was

housed in an in-prison therapeutic community designed to modify negative behaviors and

help him address his “issues.”

Outside the jury’s presence, defense counsel made a “bill of review.” Michael

testified that Larry, who was his only uncle who had avoided prison, had “[s]exually abused”

him around the time Michael’s parents divorced. Michael testified that he had been trying

to deal with that experience through the prison “rehab” program. He acknowledged that

Appellant was not aware of that abuse until Michael told him about it later. Defense counsel

asked the trial court to admit Michael’s testimony before the jury, “to establish the character

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background of the family . . . in which [Appellant] was raised, and that influenced his

background, character.”

The prosecutor then cross-examined Michael, who stated that he had told Appellant

about the sexual abuse on several occasions. Michael was surprised to learn that, when

Rosalinda told Appellant about the sexual abuse in a jail conversation, Appellant acted like

he had not known about it before. Michael recalled that he had told Appellant about it some

years ago. The trial court denied defense counsel’s request to elicit this testimony before the

jury.

On appeal, we review a trial judge’s evidentiary rulings under an abuse-of-discretion

standard. Bowley v. State, 310 S.W.3d 431, 434 (Tex. Crim. App. 2010). If the trial court’s

decision was within the bounds of reasonable disagreement, the appellate court should not

disturb it. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006). We will sustain

the trial court’s decision if it was correct on any applicable theory of law. Prystash v. State,

3 S.W.3d 522, 527 (Tex. Crim. App. 1999). This is true even if the judge failed to give a

reason or gave the wrong reason for the ruling. Bowley, 310 S.W.3d at 434.

Relevant evidence is admissible unless otherwise provided by the state or federal

constitution, a statute, the rules of evidence, or other rules prescribed under statutory

authority. T EX. R. E VID. 402. Irrelevant evidence is inadmissible. Id. At the punishment

phase of a capital trial, “evidence may be presented by the state and the defendant or the

defendant’s counsel as to any matter that the court deems relevant to sentence, including

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evidence of the defendant’s background or character or the circumstances of the offense that

mitigates against the imposition of the death penalty.” Article 37.071, § 2(a)(1).

Relevant mitigating evidence is evidence which tends logically to prove or disprove

some fact or circumstance which a fact-finder could reasonably deem to have mitigating

value. Tennard v. Dretke, 542 U.S. 274, 284-85 (2004); see also T EX. R. E VID. 401. To be

relevant, the evidence need not by itself prove or disprove a particular fact of consequence;

evidence is relevant if it provides a small nudge toward proving or disproving a fact of

consequence. Ex parte Smith, 309 S.W.3d 53, 61 (Tex. Crim. App. 2010). Thus, the trial

court should admit evidence that a juror could reasonably find warrants a sentence less than

death. Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012) (citing Tennard,

542 U.S. at 284). Except as otherwise provided by a statute or rule, a jury is entitled to have

before it “all possible relevant information about the individual defendant whose fate it must

determine.” Shuffield, 189 S.W.3d at 793 (quoting Sells v. State, 121 S.W.3d 748, 766 (Tex.

Crim. App. 2003)).

In this case, the record reflects that Michael’s proffered testimony was that his uncle,

Larry, had sexually abused Michael around the time that Michael’s parents divorced. The

prosecutor objected to the relevance of Michael’s testimony concerning his own sexual

abuse, noting that Appellant was not aware of that abuse until many years later. The trial

court properly sustained the objection. “The fact that others in the appellant’s family were

abused does not by itself make the appellant more or less morally culpable for the crime for

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which he was on trial.” Shuffield, 189 S.W.3d at 793. Nor does it make a jury’s finding of

mitigation any more or less probable than it would be without the evidence. Id. Appellant

did not offer evidence that he, personally, had been sexually abused or had witnessed

Michael’s abuse. See id.

Appellant asserts that this Court has implicitly recognized that sexual abuse of a

defendant’s sibling may be mitigating. See Ex parte Gonzales, 204 S.W.3d 391, 399 (Tex.

Crim. App. 2006). However, our opinion in Gonzales did not concern the trial court’s

evidentiary rulings; rather, our opinion concerned whether trial counsel’s failure to discover

mitigating evidence before trial constituted ineffective assistance of counsel. Id. We did not

state that evidence concerning the sexual abuse of Gonzales’s sister was, by itself, admissible

mitigating evidence as to Gonzales. Cf. Shuffield, 189 S.W.3d at 793. Rather, we concluded

that the evidence and arguments at the punishment phase of the trial would have been

significantly different if trial counsel had discovered and presented the mitigating evidence

adduced at the habeas hearing. Gonzales, 204 S.W.3d at 399.

In Gonzales, the newly discovered evidence included evidence that Gonzales’s father

had repeatedly sexually abused Gonzales and threatened to kill him and his mother if

Gonzales ever reported the abuse, as well as evidence that Gonzales’s father had sexually

molested Gonzales’s older sister numerous times. Id. Thus, although we listed the sexual

abuse of Gonzales’s sister among the items of mitigating evidence that counsel failed to

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discover, we did so in the context of describing the circumstances of Gonzales’s own

childhood.

Further, Gonzales is distinguishable from this case on its facts. In that case, the

evidence was that Gonzales and his sister lived with their abusive father until their parents

divorced when Gonzales was fourteen years old. See id. at 399. It was Gonzales’s sister’s

outcry to their mother that prompted the divorce. Id. at 395. In the instant case, only two

pieces of evidence concerned Larry: (1) he was the only one of Rosalinda’s brothers who

had not gone to prison; and (2) on one occasion, he had sexually abused Appellant’s then-

nine-year-old brother Michael. Appellant, who would have been three or four years old at

the time of that incident, did not know about the abuse until many years later. None of the

punishment evidence indicated the extent, if any, of Larry’s involvement in or influence on

Appellant’s childhood. Without more, the trial court could reasonably have concluded that

the proffered testimony concerning Larry’s sexual abuse of Michael did not provide relevant

information about Appellant. The trial court did not abuse its discretion by sustaining the

prosecutor’s objection to Michael’s testimony.

For similar reasons, the trial court did not abuse its discretion by excluding

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

her mother when he was drunk. We will assume for the sake of argument that evidence that

Rosalinda witnessed such abuse might have affected her ability to parent Appellant and,

therefore, might have been relevant in mitigation. When Delores testified, Rosalinda had

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already testified that her father had issues with alcohol and that he would drink all weekend.

However, Rosalinda did not testify that her father had physically and verbally abused her

mother. Appellant has not explained how, under these circumstances, testimony that

Rosalinda’s sister Delores witnessed such abuse would provide relevant information about

Appellant.

Additionally, the trial court did not abuse its discretion by excluding Delores’s

testimony concerning her father’s sexual abuse of her older sister, Alma. Delores testified

that Rosalinda did not know about that incident until Appellant was in jail awaiting trial for

the instant offense. Cf. Shuffield, 189 S.W.3d at 793 (finding that the trial court’s decision

to exclude the defendant’s uncle’s testimony that the uncle had been sexually abused by a

great-uncle was within the bounds of reasonable disagreement). Delores also stated that she

did not know whether her father had abused any of her siblings other than Alma. Thus,

without more, Delores’s proffered testimony concerning her father’s sexual abuse of Alma

did not provide relevant information about Appellant.

Further, the trial court did not abuse its discretion by excluding Rosalinda’s testimony

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

and Michael. Before Rosalinda testified, Eric testified that he was eight years older than

Appellant. Eric stated that he did not pay much attention to his brothers while he was in high

school, and Eric had not seen Appellant very much since finishing high school. Eric stated

that he was not an alcoholic but he acknowledged that he liked to drink and would have a

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drink before going to bed. Rosalinda testified before the jury that she considered Eric to be

an alcoholic because he drank every day. When defense counsel asked Rosalinda if alcohol

had “interfered with some parts of Eric’s life,” the prosecutor objected on the basis of

relevance, and the trial court sustained the objection. Rosalinda went on to testify before the

jury that Eric lived with her periodically, most recently from 2009 to 2011.

The trial court’s decision to exclude Rosalinda’s testimony concerning the effects of

alcohol on Eric’s life fell within the zone of reasonable disagreement. Eric’s testimony

established that he did not interact with Appellant very much after Eric finished high school.

Therefore, the trial court could reasonably conclude that whatever alcohol-related problems

Eric had later in life were not relevant to Appellant.

Rosalinda testified before the jury that Michael was in prison because of DWIs and

a probation revocation. When defense counsel asked Rosalinda to “[t]ell the jury about

alcohol in Michael’s life,” the prosecutor objected to relevance, and the trial court instructed

counsel to “rephrase.” Counsel then asked Rosalinda if alcohol had “caused criminal

problems for Michael in his life,” and Rosalinda responded, “Yes.” She stated that alcohol

had caused Michael to get into trouble, such as, “[j]ail, prison, accidents.” Michael had also

been convicted of drug offenses.

Although the State objected on relevance grounds when Appellant asked Rosalinda

to “[t]ell the jury about alcohol in Michael’s life,” the trial court instructed Appellant to

“rephrase.” It is not clear that this instruction was a ruling that sustained the State’s

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relevance objection. See T EX. R. E VID. 611(a) (providing that the trial court should exercise

reasonable control over the mode and order of examining witnesses so as to make those

procedures effective for determining the truth and avoid needless consumption of time); cf.

Brewer v. State, 367 S.W.3d 251, 253 (Tex. Crim. App. 2012) (concluding that the trial

court’s instruction to “move on” was not a ruling). However, even assuming arguendo that

this instruction did sustain the State’s objection, and that the ruling was erroneous, we

conclude that any potential error was harmless. See, e.g., Hernandez, 390 S.W.3d at 327

(Keller, P.J., concurring) (concluding beyond a reasonable doubt that the trial court’s

erroneous exclusion of mitigating evidence made no contribution to the jury’s answers to the

punishment special issues in light of the remaining punishment evidence). After the

instruction to “rephrase,” defense counsel asked more specific questions and elicited

Rosalinda’s testimony concerning the “criminal problems” that alcohol had caused for

Michael. Further, Michael himself later testified in detail about the problems he had

experienced as a result of his alcohol use. Therefore, the jury heard essentially the same

information that would have been elicited when counsel asked Rosalinda to “tell the jury

about alcohol in Michael’s life.”

We conclude that the trial court did not abuse its discretion by excluding: Michael’s

testimony concerning his sexual abuse by his uncle Larry; Delores’s testimony concerning

her father’s physical and verbal abuse of her mother and the sexual abuse of her sister Alma;

and Rosalinda’s testimony concerning the problems that alcohol had caused for Eric. We are

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not persuaded that the trial court’s instruction to “rephrase” was a ruling that excluded

Rosalinda’s testimony concerning the problems that alcohol had caused for Michael. Cf.

Brewer, 367 S.W.3d at 253. But even if the instruction was such a ruling, we hold that any

error was harmless in light of the remaining punishment evidence concerning Michael’s

alcoholism. Point of error four is overruled.

In point of error five, Appellant asserts that the trial court erred in admitting autopsy

evidence that violated the Confrontation Clause of the Sixth Amendment of the United States

Constitution. Specifically, Appellant states that the medical examiner who performed the

victim’s autopsy was not the medical examiner who testified at trial concerning the results

of the autopsy. Appellant relies upon Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309-10

(2009), and Bullcoming v. New Mexico, 564 U.S. 647, 657-62 (2011), for the principle that

a testimonial out-of-court statement may not be introduced against the accused at trial unless

the witness who made the statement is unavailable and the accused had a prior opportunity

to confront that witness. See Bullcoming, 564 U.S. at 657.

The record shows that Dr. Sridhar Natarajan, the Chief Medical Examiner for

Lubbock County, testified at trial that Dr. Masahiko Kobayashi, a deputy medical examiner,

had performed the victim’s autopsy. Defense counsel objected that Natarajan’s testimony

violated the Confrontation Clause because Natarajan had not performed the autopsy. The

trial court overruled the objection.

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Natarajan testified that Kobayashi had moved to Hawaii before the trial. Natarajan

stated that he “had oversight” over all of Kobayashi’s work. Natarajan also testified that he

actually reviewed all parts of this case “prior to having the case actually officially signed out

as an autopsy report.” Specifically, Natarajan oversaw the performance of the autopsy, the

analysis, the final conclusions, and the generation of the final report. He examined the

autopsy report and signed off on it before it was released.

Natarajan described general autopsy procedures and stated that the goal of an autopsy

would be to determine a manner and cause of death. He noted that the manner of death

determination is a “medical legal opinion” in which the examiner classifies the death as

either natural, accidental, suicide, undetermined, or homicide. He described the cause of

death as “an injury/disease process combination,” in other words, the reason why an

individual actually died. Natarajan stated that, in a typical autopsy, forensic toxicology tests

would be performed on the individual’s bodily fluids to test whether drugs might have

contributed to the death. The medical examiner also would examine the person’s organs for

damage that might have contributed to the death.

Natarajan testified that, in this case, he had looked at the victim’s medical reports. As

the individual overseeing Kobayashi’s work, Natarajan was aware of all of the victim’s

internal and external injuries before the autopsy report was finalized. The prosecutor

introduced six photographs depicting the injuries on the outside of the victim’s body. These

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photographs were marked as State’s Exhibits 42, 659, 660, 661, 662, and 663. Natarajan

testified that he recognized the photographs.

Natarajan stated that he had helped the prosecutor prepare a visual presentation to

describe and illustrate the victim’s injuries for the jury.18 He testified that the first image in

the presentation contained an “illustration of where an injury is present on the outside of the

body,” next to two autopsy photographs of that injury.19 Natarajan testified that, based on

his knowledge of the circumstances of this case as well as his knowledge of the internal

examination, the injury depicted in the first image was a gunshot wound to the back of the

victim’s neck. He identified the injury as an entrance gunshot wound, characterized by a

“round oval” and “an abrasion bed” or “abrasion band” where the projectile scraped the skin

as it entered the body. When the prosecutor asked Natarajan about the projectile’s trajectory,

defense counsel stated, “I’m going to renew my objection, your Honor, to the -- now the

contents of the report based on the bases I stated earlier.” The court overruled the objection.

Natarajan then testified that the projectile “enter[ed] along the back of the neck right

at the midline,” traveling from right to left, as well as from back to front and slightly

downward. He stated that most of the damage was “within the bottom of . . . the [sixth]

18

This visual presentation is not in the record before us, so our discussion of it relies upon

Natarajan’s verbal descriptions as well as our independent review of State’s Exhibits 42 and 659

through 663.

19

State’s Exhibits 659 and 660 are two autopsy photographs of that injury. We surmise from

Natarajan’s description as well as our independent review of the State’s exhibits that the image

before the jury consisted of State’s Exhibits 659 and 660 and an illustration showing the location of

the injury.

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cervical spine, the seventh cervical spine, and the top of the thoracic spine which would be

the first thoracic vertebral bone.” The projectile stopped as it struck the first thoracic

vertebral bone. Natarajan showed the jury the projectile recovered from that wound, which

had been previously admitted as State’s Exhibit 647, and described it as “a small caliber

deformed projectile.”

Natarajan described the next image in the presentation as “an illustration of the front

of a male, right arm, chest area,” with “a portion of the left arm and shoulder,” “to help

provide some orientation.” An accompanying photograph revealed two gunshot wounds as

well as a “significant cut” across the victim’s chest.20 Natarajan explained that the cut was

a “thoracotomy,” which was performed when the victim entered the hospital, as part of

emergency procedures to try to control the bleeding and “continue to have the heart pump.”

The location of one gunshot entrance wound was in the middle of the “bony area that

you could just feel on yourself that goes both sides.” Natarajan testified that a shot fired

from an indeterminate distance caused this entrance wound “along the midchest.” The

projectile’s trajectory was right to left, front to back, and slightly downward. The projectile

entered the center of the chest, penetrated the sternum, and injured the heart. It struck the

right atrium of the heart as well as the superior vena cava, which “is the main drainage that’s

coming from the region of the head and the upper extremities.” Natarajan showed the jury

20

Natarajan’s description and our independent review of the State’s Exhibits reveal that this

photograph was State’s Exhibit 661.

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the projectile that made this wound. It had been previously admitted as State’s Exhibit 645.

He described that projectile as being less deformed than the projectile that had lodged in the

victim’s vertebrae.

Natarajan identified another entrance wound on the upper left chest area, near a tattoo

of playing cards and dice. A photograph provided a closer view of that wound.21 Natarajan

testified that the wound’s visible characteristics indicated that the firing distance was “not

close,” but he could not determine a precise firing distance. The trajectory of the projectile

that entered the upper left chest area was right to left, front to back, and downward.

Natarajan testified that this projectile perforated portions of the right lung before

lodging in “the soft tissues of the body towards the back.” Natarajan stated that this

projectile also created a hole in the chest that caused the lung to collapse. This damage

caused hemorrhaging inside the lung, so that blood filled the chest cavity and left the body.

This wound accounted for the significant amount of blood around the victim’s body at the

crime scene and was consistent with witnesses’ testimony describing a considerable amount

of blood coming from the victim’s nose and mouth. This wound would have interfered with

the victim’s ability to take in air and, hence, would have resulted in decreased oxygenation

of the blood as well as significant blood loss. The projectile that made this wound had

previously been admitted as State’s Exhibit 646. Natarajan showed this projectile to the jury

21

Natarajan’s description and our independent review of the State’s Exhibits indicate that

this photograph was State’s Exhibit 662.

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and noted that it was less deformed than the projectile that had lodged in the victim’s

vertebrae because it had passed through soft tissues.

Natarajan testified that the toxicology test results were negative for drugs, illicit

substances, and alcohol. The cause of death was multiple gunshot wounds and the manner

of death was homicide.

As an initial matter, we note that the autopsy report was not admitted into evidence.

Therefore, the cases upon which Appellant relies, which concern the admission of an

unavailable witness’s testimonial out-of-court statement, are not directly on point. Rather,

the record reflects that Natarajan testified about his own opinions and conclusions based on

his review of the autopsy report along with other evidence, including autopsy photographs

and x-rays. This testimony was not inadmissible on the basis that it might have been

incidentally based, to some degree, on hearsay. See T EX. R. E VID. 703 (providing that an

expert may base an opinion on facts or data that are not admissible in evidence, provided that

they are of a type reasonably relied on by experts in the field); see also Martinez v. State, 22

S.W.3d 504, 508 (Tex. Crim. App. 2000) (“Since the trial court implicitly found [a witness]

qualified as an expert, the State had no burden to invoke an exception to the hearsay rule.”).

In addition, several courts have held that photographs are non-testimonial in nature. See

United States v. Sanabria, 645 F.3d 505, 518 (1st Cir. 2011) (explaining that “surveillance

photographs of an individual” were “non-testimonial evidence”); United States v. Dougall,

919 F.2d 932, 935 (explaining that photographs “are real and physical evidence, non-

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testimonial in nature”); Herrera v. State, 367 S.W.3d 762, 773 (Tex. App.—Houston [14th

Dist.] 2012, no pet.) (stating that an autopsy photograph is not a testimonial statement);

Wood, 299 S.W.3d 200, at 214-15 (Tex. App.—Austin 2000, pet. ref’d) (same).

Consequently, we are persuaded that Natarajan’s descriptions of the autopsy photographs,

and their presentation to the jury, did not violate the Confrontation Clause.

Further, Natarajan testified that he oversaw Kobayashi’s performance of the autopsy,

the analysis, the conclusions, and the generation of the final report, and he examined the

report and signed off on it before it was released. Therefore, Natarajan had some personal

knowledge of the relevant facts and conclusions that were memorialized in the autopsy

report. See, e.g., Grim v. Fisher, 816 F.3d 296, 309-10 (5th Cir. 2016) (holding that

Bullcoming did not clearly establish as federal law that the State could not introduce a

forensic lab report containing the testimonial certification of an analyst through the testimony

of a technical reviewer who verified the analyst’s findings, agreed with a reasonable degree

of scientific certainty with the analyst’s examinations and results, and signed the

certification).22

To the extent that Appellant intends to complain about any specific part of Natarajan’s

testimony, we note that, with one exception, defense counsel did not object to any specific

part of that testimony. Therefore, Appellant largely failed to preserve error. Rule 33.1; see,

22

In Bullcoming, the Supreme Court held that the State could not introduce into evidence

a lab report containing a testimonial certification through the in-court testimony of a lab analyst who

was familiar with the lab’s procedures but “who did not sign the certification or perform or observe

the test reported in the certification.” Bullcoming, 564 U.S. at 657-58.

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e.g., Martinez v. State, 311 S.W.3d 104, 111-12 (Tex. App.—Amarillo 2010, pet. ref’d)

(concluding that an objection to a witness testifying about an autopsy report, while sufficient

to preserve error regarding the contents and conclusions contained in the report, did not

notify the trial court of any error in the admission of autopsy photographs); see also, e.g.,

Roberts v. State, 220 S.W.3d 521, 532 (Tex. Crim. App. 2007) (stating that the defendant’s

attack on victim impact testimony in general, advanced before any testimony was heard, did

not place the trial court on notice that the defendant would find particular testimony

objectionable).

The only instance in which defense counsel objected to a specific part of Natarajan’s

testimony was after the prosecutor asked Natarajan about the trajectory of the projectile that

struck the victim’s neck. At that point, defense counsel renewed his general objection to

testimony about the contents of the autopsy report. To the extent that Appellant preserved

error as to Natarajan’s testimony concerning that trajectory, we conclude that any arguable

error in admitting that testimony was harmless beyond a reasonable doubt because it did not

contribute to the conviction or punishment. See T EX. R. A PP. P. 44.2(a); see also, e.g., Lee

v. State, 418 S.W.3d 892, 900-01 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (stating

that an expert witness’s minimal repetition of statements from an autopsy report prepared by

another did not materially affect the jury’s deliberations); cf. Martinez, 311 S.W.3d at 113

(finding no harm where a testifying expert’s conclusion regarding the cause of death was

cumulative of autopsy photographs and the opinion expressed in the autopsy report).

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Finally, because the autopsy report is not in the record, the record on appeal does not

contain sufficient information for us to assess whether specific parts of Natarajan’s testimony

might have violated the Confrontation Clause. See T EX. R. A PP. P. Rule 33.2 (prescribing

bills of exception); see also Amador v. State, 221 S.W.3d 666, 675 (Tex. Crim. App. 2007)

(“[R]eviewing courts cannot ‘assume’ or speculate about the contents of exhibits or other

materials that are not contained in the appellate record.”). We will not speculate as to

whether some fraction of Natarajan’s testimony might not have been based on his personal

knowledge of the case.

The trial court did not abuse its discretion by overruling Appellant’s general objection

that Dr. Natarajan’s testimony violated the Confrontation Clause. Point of error five is

overruled.

In point of error six, Appellant asserts that the trial court erred in admitting hearsay

evidence and evidence that violated the Confrontation Clause of the United States

Constitution. This point of error raises more than one legal theory and is therefore

multifarious. See Rule T EX. R. A PP. P. 38.1; see also Jenkins, 493 S.W.3d at 614 n.85.

However, we will address it in the interest of justice. Specifically, Appellant complains that

the punishment-phase testimony of a police officer who responded to a 2008 domestic

violence incident, describing statements the domestic violence victim’s mother made to the

officer at the scene, was hearsay that was not admissible under the excited utterance

exception. Appellant also complains that Child Protective Services (“CPS”) records

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concerning the same incident, which were admitted as State’s Exhibit 712, were hearsay and

that their admission violated the Confrontation Clause.

Defense counsel requested that the State proffer, outside the jury’s presence, the

testimony of Fort Worth Police Officer Leticia Villarreal concerning an extraneous bad act

because counsel anticipated making objections to the testimony that he “want[ed] the Court

to decide outside the presence of the jury.” The trial court granted defense counsel’s request.

Therefore, outside the jury’s presence, Villarreal testified that she responded to a domestic

violence call in 2008. According to Villarreal, “The call details had stated that there was a

husband and wife arguing outside, and the husband hit his wife.” When Villarreal arrived

at the scene, she saw the victim and her mother and brother outside, “all talking very loudly.”

The victim was identified as Megan Suniga. Villarreal attempted to speak with Megan,

whose face was “pretty much covered in blood.” Her nose was “swollen and bleeding, and

her upper lip was very swollen.” It appeared to Villarreal that Megan’s nose might have been

broken. Megan was very argumentative, angry, and uncooperative. She was upset that her

family had called the police, and she did not want to identify her assailant. Megan’s mother,

Leslie Erwin, was also upset and angry. Erwin told Villarreal that Megan had called her,

asking to be picked up from the apartment. Erwin stated that Megan’s husband, Appellant,

had assaulted Megan. Erwin also indicated that Megan was afraid of Appellant. Megan

refused to provide Villarreal with details of the incident, complete a written statement, let

Villarreal photograph her injuries, or accept a copy of a victims’ rights handbook. Villarreal

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learned that Megan and Appellant had been in a relationship for about six years and had two

children. They were not living together at the time of the assault.

On cross-examination, Villarreal confirmed that she did not witness the assault. She

stated that Erwin told her that, when Erwin arrived to pick up Megan, Appellant and Megan

were outside. Erwin saw Appellant push Megan twice, and she saw Megan fall to the

ground, but Erwin did not witness the initial assault that caused Megan’s visible injuries.

Defense counsel then objected to Villarreal testifying to anything beyond what she had

observed, particularly her testimony concerning Erwin’s statements, on the ground that those

statements were hearsay. The State responded that any hearsay contained in Villarreal’s

testimony was admissible under the “excited utterance” exception. The trial court overruled

Appellant’s objection and granted a running objection.

Before the jury, Officer Villarreal repeated the testimony that she had provided during

the proffer. She again acknowledged on cross-examination that she had not witnessed any

part of the assault.

“The admissibility of an out-of-court statement under the exceptions to the general

hearsay exclusion rule is within the trial court’s discretion.” Lawton, 913 S.W.2d at 553.

“An abuse of discretion occurs ‘only when the trial judge’s decision was so clearly wrong

as to lie outside that zone within which reasonable persons might disagree.’” Id. (quoting

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

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For hearsay to be admissible, it must fit into an exception provided by a statute or the

Rules of Evidence. T EX. R. E VID . 802. Rule 803(2) sets forth the excited utterance

exception to the general hearsay exclusion rule. See T EX. R. E VID. 803(2); Zuliani v. State,

97 S.W.3d 589, 595 (Tex. Crim. App. 2003). “An excited utterance is a statement that relates

to a startling event or condition, and it is made when the declarant is still under the stress of

excitement caused by the event or condition.” Coble v. State, 330 S.W.3d 253, 294 (Tex.

Crim. App. 2010). “The basis for the excited utterance exception is ‘a psychological one,

namely, the fact that when a man is in the instant grip of violent emotion, excitement or pain,

he ordinarily loses the capacity for reflection necessary to the fabrication of a falsehood and

the ‘truth will come out.’’” Zuliani, 97 S.W.3d at 595 (quoting Evans v. State, 480 S.W.2d

387, 389 (Tex. Crim. App. 1972)).

In determining whether a hearsay statement is admissible as an excited utterance, the

court may consider the time elapsed between the startling event and the statement and

whether the statement was a response to a question. Id. “However, it is not dispositive that

the statement is an answer to a question or that it was separated by a period of time from the

startling event; these are simply factors to consider in determining whether the statement is

admissible under the excited utterance hearsay exception.” Id. at 596. “The critical

determination is whether the declarant was still dominated by the emotions, excitement, fear,

or pain of the event or condition at the time of the statement.” Id. (internal quotations

omitted).

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Here, the evidence at the time of the ruling showed that Megan had called her mother,

asking to be picked up from her apartment. When Erwin arrived, she saw Appellant push

Megan twice, and she saw Megan fall to the ground. Erwin called the police. When Officer

Villarreal arrived, Appellant was gone. Megan and Erwin were arguing and “talking real

loudly.” They were both upset and angry. This record supports the trial court’s

determination that Erwin was still dominated by the emotions, fear, or pain of the event when

she communicated with Villarreal. Thus, the trial court did not abuse its discretion by

overruling Appellant’s hearsay objection and admitting Erwin’s statements to Villarreal as

an excited utterance.

The second part of Appellant’s complaint concerns the punishment-phase testimony

of Heather Darder, a CPS supervisor for Tarrant County, and the admission of CPS records,

State’s Exhibit 712, regarding a CPS investigation that was connected to the 2008 domestic

violence incident.

Darder testified before the jury that the CPS records were kept in the regular course

of business by someone who had a duty to make them, and they were made at or near the

time of the events recorded. Defense counsel objected “to that portion of State’s 712 that

contains hearsay matters within these documents that contains the conclusions of other

people who are not before the Court testifying,” based upon “hearsay for those things, and

also under the confrontation clause of the U.S. Constitution.” The Court overruled the

objection and admitted State’s Exhibit 712 into evidence.

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Darder testified that her office received an “intake” from law enforcement regarding

Appellant because of “concern that a domestic violence dispute was taking place” that

involved two children, ages one and three. Law enforcement reported to CPS that Megan

had sustained “obvious injuries.” A CPS caseworker went to the home “to interview and

make sure the children were okay.” The caseworker also interviewed Megan. At this point

in Darder’s testimony, defense counsel requested and received “a running objection to my

previous.”

Darder then testified that Megan was willing to speak to the caseworker, but she

would not explain how she had been injured or who had injured her.23 It was Megan’s

mother who told the caseworker that Appellant had injured Megan. Although Megan told

the caseworker that she did not know where Appellant lived or how to contact him, Appellant

showed up at the apartment during the interview. Contrary to the information that Megan

had provided, Appellant informed the caseworker that he lived in the apartment with Megan

and their two children. He told the caseworker that he had six children.

Appellant admitted to the caseworker that he had made a living selling

methamphetamine. When the caseworker asked him about his drug use, he acknowledged

that he had used marijuana and methamphetamine three or four years previously. He

23

On appeal, Appellant asserts for the first time that Darder’s testimony that domestic

violence victims are not always truthful was inadmissible because it was testimony that a class of

persons behaves in a particular way. See, e.g., Yount v. State, 872 S.W.2d 706, 711-12 (Tex. Crim.

App. 1993). At trial, defense counsel objected that this testimony was “speculation.” Appellant’s

trial objection does not comport with his complaint on appeal, and so he failed to preserve his current

complaint. See Rule 33.1; see also Sorto v. State, 173 S.W.3d 469, 476 (Tex. Crim. App. 2005).

Suniga — 83

reported that he drank alcohol socially. When questioned about the domestic violence

incident, Appellant stated that he and Megan had argued, but he denied touching or pushing

her.

The State then asked Darder if Appellant had admitted to going to court for a previous

domestic violence charge involving a different victim. Defense counsel objected that this

questioning was “beyond the scope of the proffer.”24 Counsel also objected under the

Confrontation Clause that this testimony would contain statements of witnesses who were

not before the court. The trial court overruled the objection. Darder then testified that

Appellant acknowledged that he had gone to court over another domestic violence case

involving a different victim.

Darder testified that, as a result of the CPS investigation into the incident involving

Megan, CPS implemented a “safety plan.” This “plan” was an agreement between the

parents and CPS that the parents would cooperate and receive CPS services “through our

safety based service unit,” and that the parents would “not engage in any type of domestic

violence.” Based on the totality of the information that CPS received, including Megan’s

visible injuries, CPS concluded that domestic violence had occurred. On cross-examination,

Darder stated that she had been the CPS caseworker’s supervisor in this matter, but she

acknowledged that she had not been “on the scene.”

24

In our independent review, we have not located any place in the record where the State

made a proffer of the content of Darder’s testimony or the CPS records before calling Darder to

testify before the jury.

Suniga — 84

To preserve error for appellate review, the record must show that Appellant made the

complaint to the trial court by a timely request, objection, or motion that stated the grounds

for the ruling he sought with sufficient specificity to make the trial court aware of the

complaint, unless the specific grounds were apparent from the context, and the trial court

ruled or refused over objection to rule on the request, objection, or motion. Rule 33.1(a).

In the face of a global hearsay objection to an exhibit, the trial court is not required to search

through the exhibit and segregate the admissible from the inadmissible. Ladd, 3 S.W.3d at

572. Similarly, a general objection to testimony, advanced before any testimony is heard,

does not place the trial court on notice that an appellant will find particular unforeseeable

testimony to be objectionable. See Roberts, 220 S.W.3d at 532.

Darder testified that the CPS records contained in State’s Exhibit 712 were kept in the

regular course of business by someone who had a duty to make them, and they were made

at or near the time of the events recorded. See T EX. R. E VID. 803(6). Appellant objected at

trial that an unspecified portion of State’s Exhibit 712 contained “the conclusions of other

people who are not before the Court testifying.” Appellant did not locate or identify any

specific part of State’s Exhibit 712 that was objectionable on that basis. Without more, this

objection did not provide the trial court with adequate notice of the particular material

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Appellant found objectionable. See Ladd, 3 S.W.3d at 572. Thus, the trial court did not err

by overruling Appellant’s non-specific objection to Exhibit 712.25

To the extent that Appellant complains on appeal that Darder’s testimony was hearsay

and that it violated the Confrontation Clause because she testified about the content of a

report prepared by another person, we note that defense counsel’s request during her

testimony for “a running objection to my previous” did not alert the trial court to this

particular complaint. See Layton v. State, 280 S.W.3d 235, 239 (Tex. Crim. App. 2009) (“A

specific objection is necessary to inform the trial judge of the issue and basis of the

objection[.]”). Appellant did not preserve this complaint for appeal. See Rule 33.1; see also

Reyna, 168 S.W.3d at 179 (explaining that an objection on hearsay grounds does not preserve

error on Confrontation Clause grounds).26

When the prosecutor asked Darder if Appellant had admitted to going to court for a

previous domestic violence charge involving a different victim, defense counsel objected

under the Confrontation Clause that this testimony would contain statements of witnesses

25

If Appellant intends to complain that allowing Darder rather than the CPS caseworker to

testify about the contents of State’s Exhibit 712 violated the Confrontation Clause, this complaint

does not comport with his objection at trial. See Jenkins, 493 S.W.3d at 612. Thus, Appellant failed

to preserve this claim. See Lucio v. State, 351 S.W.3d 878, 902 (Tex. Crim. App. 2011).

26

Moreover, to the extent that Appellant may now be understood to challenge not just the

admission of State’s Exhibit 712, or Darder’s testimony as she may have gleaned it from that exhibit,

but also the admission of Darder’s testimony in which she related what Appellant may have told the

CPS caseworker that the CPS caseworker may then have orally related to Darder, no objection to

Darder’s testimony as hearsay within hearsay was ever leveled at trial. No such objection was made

or ruled upon at the trial court level, and therefore, no such error was preserved. Rule 33.1.

Suniga — 86

who were not before the court. The trial court overruled the objection. Darder then testified

that Appellant acknowledged that he had gone to court over another domestic violence case

involving a different victim. The prosecutor’s questioning then returned to the incident

involving Megan.

This part of Appellant’s complaint concerns a statement that Appellant, personally,

made to the CPS caseworker concerning a different domestic violence case. Assuming

arguendo that the admission of that statement was erroneous, its admission was harmless

because a copy of the judgment of conviction for that prior incident had already been

admitted into evidence without objection as State’s Exhibit 709, and a portion of it had been

read into the record. See Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998)

(stating that the improper admission of evidence does not constitute reversible error if the

same facts are shown by other evidence that was not challenged). As read into the record,

the judgment recited that Appellant was “guilty of assault bodily injury of a family member,

committed on October 12, of 2000, a Class A misdemeanor where the Defendant

intentionally or knowingly caused bodily injury to Christy Bretts, a member of the

Defendant’s family or household[,] by hitting her with his hand.”

In sum, the trial court did not abuse its discretion by ruling that Erwin’s statements

to Villarreal were admissible as an excited utterance, or by admitting State’s Exhibit 712 over

Appellant’s objection that an unspecified part of it contained the conclusions of people who

were not before the Court testifying. Further, any arguable error in admitting Appellant’s

Suniga — 87

statement concerning a previous domestic violence case was harmless. Point of error six is

overruled.

In point of error seven, Appellant asserts that the trial court erred in denying a Fourth

Amendment motion to suppress evidence based on the search of the vehicle in which he was

riding at the time of his arrest. Specifically, Appellant complains that police searched the

vehicle without a valid warrant and that no exception to the warrant requirement applied.

The record shows that Appellant filed a pre-trial motion to suppress evidence seized

following the executio

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