# Love, Kristopher

> Court of Criminal Appeals of Texas · April 14, 2021

URL: https://www.frixlaw.com/law-library/cases/4678411

## Case

- **Court:** Court of Criminal Appeals of Texas
- **Decided:** April 14, 2021
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4678411

## How later opinions describe it (automated extraction)

- finding that the veniremember’s answers as a whole showed that he would follow the law and hold the State to its burden of proving venue
- finding no abuse of discretion in overruling challenge for cause based on claim that veniremember was predisposed to believe police Love–45 officers where veniremember never stated or implied a belief that police officers would always tell the truth
- stating that the timing and spontaneity of statements against interest tend to establish their reliability
- concluding that venue error does not render the evidence legally insufficient because venue is not an element of the offense Love–23 that the State must prove beyond a reasonable doubt
- stating that appellant’s conclusory argument that merely “recited the elements of his stated grounds for relief” fell “far short of satisfying his obligation to adequately discuss” his claim

## Opinion text

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. AP-77,085

KRISTOPHER LOVE, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL FROM CAUSE NO. F15-76400-W
IN THE 363RD JUDICIAL DISTRICT COURT
DALLAS COUNTY

KEEL, J., delivered the opinion for a unanimous court.

OPINION

A jury convicted Appellant of capital murder committed on September 2, 2015,

for intentionally killing another in the course of committing or attempting to commit

robbery. See Tex. Penal Code § 19.03(a)(2). Pursuant to the jury’s answers to the special
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issues set forth in Texas Code of Criminal Procedure Article 37.071 sections 2(b) and

2(e), the trial court sentenced Appellant to death. Tex. Code Crim. P. art. 37.071, § 2(g).

Direct appeal to this Court is automatic. Id. art. 37.071, § 2(h). Appellant raises forty-six

points of error. After reviewing Appellant’s points of error, we find them to be without

merit. Consequently, we affirm the trial court’s judgment and sentence of death.

Throughout the remainder of this opinion, “Article” refers to the Code of Criminal

Procedure, and “Section” refers to the Penal Code. Except where otherwise noted, all

dates refer to the year 2015.

I. Overview

Brenda Delgado was obsessed with her ex-boyfriend, Dr. Ricardo “Ricky”

Paniagua, and his new girlfriend, Dr. Kendra Hatcher. Delgado offered to pay Appellant

and Crystal Cortes for their help in murdering Hatcher, and they accepted her offer.

After several meetings and phone conversations, they decided to make the murder look

like a robbery gone wrong. They followed Hatcher and learned how to get into her

apartment building’s garage, and Appellant got a gun.

On September 2, Delgado went to a restaurant to create an alibi for herself while

Cortes and Appellant waited in Hatcher’s apartment building’s garage in a borrowed

Jeep. When Hatcher parked, Appellant got out of the Jeep and shot her to death and took

some of her property, and then Cortes and Appellant fled the scene.

II. Sufficiency Challenges
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Appellant raises several challenges to the sufficiency of the evidence at the guilt

and punishment stages of trial.

II.A. Factual Sufficiency Challenges

In points of error twenty-five and thirty-five Appellant challenges the factual

sufficiency of the evidence to prove his guilt and to support the jury’s answer to the

future-dangerousness issue. We overrule these points of error because we do not review

the factual sufficiency of the evidence to support a defendant’s conviction or a future

dangerousness finding. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)

(guilt); Williams v. State, 270 S.W.3d 112, 138 (Tex. Crim. App. 2008) (future

dangerousness).

In point of error thirty-seven, Appellant claims he was “denied due process of

law” by our prior holdings that the jury’s answer to the mitigation special issue is not

reviewable on appeal. In point of error thirty-eight, he claims that the jury’s verdict on

the mitigation issue was “against the great weight and preponderance of the evidence.”

From his argument, we understand Appellant to: (1) ask the Court to review the factual

sufficiency of the jury’s negative answer to the mitigation special issue; and (2) assert

that a failure to do so renders the mitigation special issue unconstitutional because it

denies him meaningful appellate review. But the mitigation special issue is not amenable

to a sufficiency review. See Prystash v. State, 3 S.W.3d. 522, 536 (Tex. Crim. App.

1999). That does not deprive an appellant of a constitutionally meaningful appellate

review. See, e.g., id. Points of error thirty-seven and thirty-eight are overruled.
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II.B. Accomplice-Witness Corroboration

In point of error twenty-four, Appellant claims that the evidence is legally

insufficient to corroborate Cortes’s accomplice-witness testimony under Article 38.14.

Appellant refers to the Jackson v. Virginia constitutional standard for legal sufficiency,

see 443 U.S. 307, 319 (1979), but he does not apply it to his case. Instead, he challenges

Cortes’s credibility and the sufficiency of the evidence corroborating her testimony under

Article 38.14. We interpret this point of error as an argument that the evidence was

legally insufficient to corroborate Cortes’s testimony as required by Article 38.14. To the

extent Appellant intends to challenge the legal sufficiency of the evidence under the

Jackson standard, that challenge is inadequately briefed. See Tex. R. App. P. 38.1.

Article 38.14 provides: “A conviction cannot be had upon the testimony of an

accomplice unless corroborated by other evidence tending to connect the defendant with

the offense committed; and the corroboration is not sufficient if it merely shows the

commission of the offense.” In reviewing the sufficiency of corroborating evidence

under Article 38.14, we “eliminate from consideration the accomplice testimony and then

examine the other inculpatory evidence to ascertain whether the remaining evidence

tends to connect the defendant with the offense.” McDuff v. State, 939 S.W.2d 607, 612

(Tex. Crim. App. 1997). The non-accomplice evidence need not be sufficient by itself to

support a conviction. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).

Further, “a defendant’s presence at the scene and participation in the underlying offense
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[may] be sufficient to connect him to the capital murder for accomplice-witness rule

purposes.” Solomon v. State, 49 S.W.3d 356, 362 (Tex. Crim. App. 2001).

II.B.1. Guilt–Innocence Evidence

Hatcher was killed in her apartment building’s garage on September 2. Hashem

Saad, a resident of the building, testified that on that evening he exited the elevator onto

the lowest level of the complex’s parking garage and heard animal-like screaming and

one or two gunshots. He then heard a car door close and tires screech. Saad ran to his

Corvette and got inside. He saw a Jeep Cherokee speed down the ramp from the parking

level above, make a left, and pass behind his car. Saad backed out of his parking place

and drove up the ramp toward the garage’s exit. Meanwhile, the Jeep turned around on

the lower level where Saad had been parked, came up the ramp, and followed him out of

the garage. While Saad was driving up the ramp, he saw a woman lying on the floor of

the garage. She appeared to have been shot. Saad called 9-1-1.

Security camera footage corroborated Saad’s testimony. A dark-colored Jeep

Cherokee entered the garage’s unsecured visitor area at 7:13 p.m. and waited there until

7:17 p.m. when it followed another vehicle through the gate and parked in the secured

area of the garage. At about 7:42 p.m. Hatcher drove a white car into the garage’s

secured area and parked on the last row. A person wearing black immediately exited the

Jeep and walked down the ramp toward Hatcher’s car. Moments later, the Jeep’s lights

came on and began backing out of its parking spot. The person wearing black walked
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back up the ramp and got into the Jeep which then drove down the ramp to the garage’s

lower level. At 7:44 p.m., a silver Corvette exited the garage, followed by the Jeep.

First responders found Hatcher lying under the open driver’s side door of her

white Toyota Camry and blood on the floor. She had suffered trauma to her chin, and

they found a wound to the back of her head. A pistol magazine and a fired bullet

fragment were on the ground beside Hatcher’s body. A fired cartridge case was on her

car’s passenger side floorboard.

The medical examiner testified that Hatcher sustained a gunshot wound to the

back of her head with an exit wound under her chin. The bullet had traveled from back to

front and downward. Hatcher also had an abrasion on her chest, which suggested that her

chin was down and near her chest when she was shot. The bullet severed her spinal cord,

leaving her unable to breathe and causing death quickly.

A trace evidence examiner testified that gunshot residue collected from the back of

Hatcher’s hands was consistent with her hands having been raised and behind her head

when she was shot.

Cortes, who testified pursuant to a plea deal, said that she and Delgado had already

begun planning the murder when they met Appellant through a close friend of Cortes’s

brother at the end of August. They all met at the Mandalay Apartments, where Appellant

lived, and Delgado and Cortes explained their intention to murder Hatcher. Appellant

agreed to participate. They met between ten and fifteen times to plan Hatcher’s murder
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and communicated frequently by phone. They followed Hatcher in different cars,

including on at least one occasion Appellant’s blue Chrysler Sebring.

After discussing several potential plans, they ultimately agreed to kill Hatcher with

a gun and make the offense look like a “robbery gone bad.” Appellant suggested that

Cortes drive because she was more familiar with the area, and he volunteered to shoot

Hatcher and take her property. Appellant thereafter obtained a .40-caliber Smith &

Wesson pistol to use in the murder. At Cortes’s suggestion, Appellant wore gloves when

he handled and loaded the pistol. Delgado promised to pay Cortes $500 for driving and

promised to pay Appellant in drugs and money for shooting Hatcher.

Cortes testified that on the morning of September 2 she and Delgado picked up

Appellant at his apartment and stopped at a convenience store so that Appellant could

buy a black shirt. They then dropped Appellant off at a Jack in the Box while Delgado

and Cortes drove to a mechanic shop owned by Delgado’s friend, Jose Luis Ortiz.

Delgado led Ortiz to believe that her BMW needed work, and he let her borrow his black

Jeep Cherokee while he checked out her car. After leaving Ortiz’s shop in his Jeep,

Delgado and Cortes picked up Appellant, returned to the Mandalay Apartments, and put

stolen paper tags on the Jeep.

At about 11:45 a.m., Cortes and Appellant drove the Jeep to Hatcher’s apartment

complex, planning to follow her. They saw her pull out of the garage and anticipated that

she was going to her dental office but did not find her there. Cortes then drove them back
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to the Mandalay Apartments and left Appellant there while she picked up her son from

school, took him to Sonic, and dropped him off at her grandmother’s house.

Cortes picked Appellant up from his apartment again at 4:30 p.m. They initially

went to the dental office but then returned to Hatcher’s apartment complex. Cortes was

driving and Appellant was lying down in the back seat so that no one could see him.

Cortes pulled into the garage’s visitor section and waited for a vehicle to enter the

secured area so that they could follow it through the gate, a strategy they had used several

times before. The area where Hatcher usually parked was full, so they parked on the last

row.

After thirty minutes to an hour, they saw Hatcher enter the garage in her white

Toyota Camry. Appellant put on gloves, grabbed the pistol, and exited the Jeep. Cortes

testified that she heard Hatcher scream and then heard gunshots. Cortes backed out of the

parking spot, and Appellant got back in the Jeep with Hatcher’s purse, a camera, and the

pistol. Cortes drove down the ramp by mistake and then turned the Jeep around and

came back up to leave through the main entrance. As they drove up the ramp, she saw

Hatcher’s body lying on the floor of the garage.

Cortes and Appellant went to an abandoned house in Pleasant Grove, cleaned the

Jeep with disinfectant, and removed the paper tags. Cortes dropped Appellant off at the

Mandalay Apartments and then picked up her son at her grandmother’s house. Cortes

testified that Appellant kept the pistol he had used to shoot Hatcher.
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Cortes testified that Delgado called her between 8:00 and 9:00 p.m. using Ortiz’s

cell phone and asked whether “the task”—meaning the murder—“was complete.” Cortes

said that it was. Delgado, who was having dinner out with Ortiz, sent Ortiz’s home

address to Cortes so that they could meet there to return his Jeep and pick up the BMW.

Cortes and her son got to Ortiz’s house before Delgado and Ortiz did. She

retrieved from the back of the Jeep the shirt and gloves that Appellant had worn, the

hoodie that she had worn, the paper tags, and Hatcher’s purse. Moments later Delgado

and Ortiz arrived in the BMW. They exchanged cars, and Ortiz drove away in his Jeep.

Security-camera footage corroborated Cortes’s account of this exchange.

Delgado and Cortes then exchanged the BMW for Delgado’s Lexus at a parking

garage and went to Cortes’s grandmother’s house where they burned the clothing, paper

tags, and contents of Hatcher’s purse. Delgado paid Cortes $500 for driving Appellant to

murder Hatcher. The next day, Delgado paid Appellant with “Kush,” cocaine, and the

cash from Hatcher’s wallet.

Dallas Police Department Detective Eric Barnes, the lead investigator, testified

that a black Jeep Cherokee was a vehicle of interest based on Saad’s 9-1-1 call. After a

still image of the Jeep was released in connection with the offense, Ortiz contacted the

police and claimed ownership of it. He recognized it from its distinctive rims, hood

damage, and missing bumper cap. Ortiz told the police that he had loaned the Jeep to

Delgado on the day of the offense, and he consented to a vehicle and cell phone search.
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A crime scene analyst who processed the Jeep testified that he found a Sonic receipt for

September 2 at 3:53 p.m. in the center console area.

Investigators questioned Delgado on September 4, but she denied having driven

the Jeep, asserting that Cortes had used it on the day of the offense. After the interview

Delgado fled to Mexico.

Barnes questioned Cortes on September 4. After being confronted with evidence

that contradicted her initial statement, she eventually admitted that she had driven the

Jeep during the killing. She was arrested and charged with capital murder. In a later

interview, Cortes identified the shooter as a man named “Kris.” She described him and

his blue Chrysler Sebring bearing Tennessee license plates and identified the area of town

where he lived or was known to frequent.

Retired DPD detective James Thompson testified that investigators used Cortes’s

phone to identify a Metro PCS number that they believed belonged to the shooter. Other

testimony showed that Metro PCS only sells prepaid accounts, does not do credit checks,

and does not verify its subscribers’ identification information. The subscriber in this case

provided the name “Kasino Jackson” and listed his address as 7272 Marvin D. Love

Freeway, Dallas, Texas. This address corresponded to an area of South Dallas that

Appellant was known to frequent.

Police got a warrant to “ping” the Metro PCS number and determine its location.

On October 1 the phone was in an apartment complex in South Dallas, in the same area

where Cortes claimed the shooter lived or frequented. Thompson went to the apartment
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complex and looked for a blue Chrysler Sebring. After finding it Thompson and other

agents watched it and saw Appellant leave an apartment and drive away in the Sebring.

Appellant matched the physical description of the shooter that Cortes had provided. As

Appellant drove away, the phone’s ping location corresponded with the Sebring’s travel.

When Appellant parked at a nearby apartment complex the phone ping stopped at

that same location. Appellant got out of the car and met a man and a woman in the

parking lot. Thompson arranged for uniformed officers to approach the group and

request identification, and then Thompson approached them. He saw a cell phone sitting

on the Sebring’s trunk. Barnes called the Metro PCS number, and the phone on the trunk

rang. Appellant was taken to the police station for questioning.

Detective Barnes interviewed Appellant after giving him Miranda warnings. See

Miranda v. Arizona, 384 U.S. 436 (1966). The interview was videotaped, and the

relevant portions were published to the jury. Appellant said that he did not know his way

around town very well because he had recently moved to Dallas, and he stayed in one

general area around his apartment. Appellant acknowledged that the Sebring he had been

driving belonged to his girlfriend. He denied knowing Cortes or Delgado.

During the interview, authorities executed a search warrant on the Sebring and

found a .40-caliber Smith and Wesson pistol underneath the center console. DPD

firearms examiner Susan Kerr testified that the magazine found next to Hatcher’s body

would fit and could be used to fire the pistol found in the Sebring. Kerr further testified
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that the fired cartridge found on the floorboard of Hatcher’s car was fired from the pistol

found in the Sebring.

When Barnes confronted Appellant with Kerr’s findings, Appellant’s demeanor

changed. Appellant first claimed that he had bought the pistol from Cortes, but she was

already in jail on the date he named. Eventually he admitted that he had been present

during Hatcher’s murder, but he asserted that Cortes was the shooter. He claimed that the

offense was only supposed to be a robbery, but that Cortes shot Hatcher while he was

struggling with Hatcher over her property.

After he was booked into the Dallas County Jail on a capital murder charge

Appellant called his girlfriend who asked him why he would keep the gun. Appellant

responded, “I don’t know, man. Stupid as fuck.” She later said, “If you shot that girl

with that gun, you should’ve . . . [thrown] it away or something.” Appellant replied, “I

know, man, I know. Too late now though.”

DPD criminal intelligence analyst Michael Freeman used call-detail records and

data extracted from Appellant’s, Cortes’s, and Delgado’s cell phones to summarize cell

phone activity between the three co-defendants around the time of the offense. He also

mapped the cell towers that Appellant’s and Cortes’s cell phones hit on the day of the

offense.

At 10:36 a.m. on the day of the offense Appellant’s phone hit on a tower near a

Jack in the Box located at Interstate Highway 35 and Royal Lane. Cortes’s phone hit near

the same location at 10:34 a.m. At 11:31 a.m., Appellant’s phone hit on a cell tower near
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Hatcher’s apartment. Cortes’s phone hit near the same location at 11:37 a.m. But

Appellant’s phone was inactive between 3:29 p.m. and 7:47 p.m., and Cortes’s phone was

inactive between 4:17 p.m. and 7:40 p.m., suggesting that they had turned off their cell

phones during these periods. When Cortes turned her phone back on it pinged on a tower

close to Hatcher’s apartment. At 7:47 p.m. Cortes received a call from Ortiz’s cell

phone.

Between August 1 and September 30, Delgado contacted Cortes 131 times by call

or text, Cortes contacted Delgado 95 times by call or text, Appellant contacted Cortes 111

times by call or text and Cortes contacted Appellant 23 times by call or text. Appellant

last texted Cortes on September 4, asking, “Wats up wit da kush?”

Around the time Appellant met Delgado, he began communicating with a person

named “Mustang” in his phone’s contacts. This number did not match Delgado’s known

phone number. But because other evidence showed that Delgado often drove her

cousin’s Mustang, the State argued that “Mustang” was the number for a second phone

that Delgado had. Freeman testified that Mustang texted or called Appellant 23 times,

and that Appellant contacted Mustang one time by phone call or text.

The day after the shooting, Appellant searched the internet for “killings in Dallas”

and “Dallas news today”; clicked on the headline, “Woman murdered in Uptown Dallas

parking garage”; searched for a “gun shop in 75237”, his zip code; and looked up “Gold

& Gun Swap Shop” in Dallas. Over the next two weeks he continued to search the
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internet for “Dallas homicide” and for specific news articles about Hatcher’s murder.

His phone also contained images of the type of pistol that was used to murder Hatcher.

II.B.2. Analysis

Appellant argues that the corroborating evidence is insufficient because the

parking garage’s security video does not show that he pulled the trigger and “[t]here are

45 seconds in which nothing can be seen or heard.” He avers that Cortes stepped out of

the Jeep, shot Hatcher, turned the Jeep around, and exited the garage during this 45-

second interval. Appellant contends that Cortes’s testimony—that she drove around the

parking garage during this interval, trying to find an exit—is implausible because Cortes

had been to the garage many times.

Appellant’s videotaped admission that he was present at the scene of Hatcher’s

murder and actively participated in her robbery was sufficient by itself to connect him to

the crime. See Solomon, 49 S.W.3d at 362; Cook, 858 S.W.2d at 470. In addition, the

murder weapon was hidden in his girlfriend’s car, and Appellant was driving it

immediately before his arrest. His cell phone data showed his extensive contact with his

two co-defendants leading up to the offense, proximity to Hatcher’s apartment on the day

of the offense, and numerous post-offense web searches for information on Hatcher’s

murder. Two days after the shooting he texted Cortes to ask about the “Kush” which was

supposed to be one way to pay him for the killing, and he made damning admissions to

his girlfriend in his recorded conversation with her from jail. In sum, the evidence

satisfied Article 38.14.
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Point of error twenty-four is overruled.

II.C. Future Dangerousness

In point of error thirty-four Appellant claims that the evidence is legally

insufficient to support the jury’s affirmative answer to the future dangerousness special

issue. The issue requires the jury to determine “whether there is a probability that the

defendant would commit criminal acts of violence that would constitute a continuing

threat to society.” Article 37.071, § 2(b)(1). In deciding the future dangerousness special

issue, the jury is entitled to consider evidence admitted at both the guilt and punishment

phases of trial. Devoe v. State, 354 S.W.3d 457, 462 (Tex. Crim. App. 2011). We review

the evidence in the light most favorable to the verdict. Jackson, 443 U.S. at 319;

Williams v. State, 273 S.W.3d 200, 213 (Tex. Crim. App. 2008). Assessing the evidence

and reasonable inferences from it in this light, we ask whether any rational trier of fact

could have believed beyond a reasonable doubt that there is a probability the defendant

would commit criminal acts of violence that would constitute a continuing threat to

society. Williams, 273 S.W.3d. at 213.

The circumstances of the offense alone may be sufficient to support an affirmative

answer to the future dangerousness special issue. Buntion v. State, 482 S.W.3d 58, 66

(Tex. Crim. App. 2016). For example, a premeditated killing and general disregard for

human life will support a finding of future dangerousness. See Sonnier v. State, 913

S.W.2d 511, 517 (Tex. Crim. App. 1995) (premeditation); Ford v. State, 919 S.W.2d 107,

112 (Tex. Crim. App. 1996) (disregard for human life). Other relevant factors include a
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defendant’s criminal history, an escalating pattern of lawlessness and violence, lack of

remorse, and blame-shifting. See Jones v. State, 119 S.W.3d 766, 781 (Tex. Crim. App.

2003) (criminal history); Swain v. State, 181 S.W.3d 359, 370 (Tex. Crim. App. 2005)

(escalating pattern of violence); Smith v. State, 74 S.W.3d 868, 872 (Tex. Crim. App.

2002) (escalating lawlessness); Ford, 919 S.W.2d at 112 (remorselessness and blame-

shifting). These factors support the jury’s affirmative finding in this case.

II.C.1 Punishment Evidence

Appellant had a lengthy criminal history in Tennessee. On March 21, 2001,

Appellant, then a juvenile, committed: theft of an automobile; evading arrest by vehicle;

reckless endangerment; unlawful possession of a weapon; leaving the scene of an

accident; and reckless driving. He spent the next six months in the Youth Services

Bureau’s custody. After his release, he committed burglary of a habitation with the intent

to commit theft on September 9, 2002. In August 2003, he pled guilty to that burglary

and received two years’ probation as part of a judicial diversion program, but that

probation was revoked less than a year later.

On December 29, 2003, he evaded arrest. The next day he committed aggravated

robbery and aggravated assault against Cory Turner and aggravated assault against

Lequite Turner and was later sentenced to three years in prison for these crimes. On July

2, 2004, he committed aggravated robbery against Tracey Denton. He admitted using a

stolen vehicle to commit the robbery. He was later sentenced to eight years in prison for

the robbery of Denton.
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Following a March 2013 traffic stop he was charged with being a felon in

possession of a firearm after a gun was found hidden in the car he was driving. After that

arrest he sold another gun in Memphis that he had illegally possessed. An arrest warrant

was pending for his failure to appear on the felon-in-possession charge when he

committed the capital murder in Dallas.

Appellant also committed various unadjudicated crimes in Texas. He admitted to

Barnes that he had been selling drugs in Dallas before killing Hatcher, and his phone data

confirmed his drug dealing. His phone data also suggested that he was trying to become

a pimp; there were many entries for “Backpage,” a black-market website used for

soliciting sex and promoting prostitution.

Appellant’s tattoos were also telling: “Life or Death” surrounded by dollar signs

on his chest, a handgun on his left side, and an AK-47 with “One Man Army” on his

back. While in jail awaiting trial for capital murder, he added bullet holes and smoke to

the AK-47 tattoo, committing a major violation of the jail’s rules by having himself

tattooed while in custody.

Todd Harris, Senior Warden for the Texas Department of Criminal Justice’s

Polunsky Unit, testified about TDCJ’s inmate security classifications and how those

classifications affect inmates’ housing, job opportunities, and privileges. Harris stated

that, despite TDCJ’s best efforts to control inmate behavior, some inmates are still able to

obtain contraband, fashion weapons, and engage in violence.

II.C.2. Analysis
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Appellant murdered Hatcher with premeditation, calculation, and forethought for

payment, evidencing a disregard for human life. The same day that Appellant met

Delgado and Cortes, he agreed to help them murder Hatcher. He helped plan every detail

of the murder and helped watch and follow Hatcher to determine the best time to kill her.

He suggested shooting Hatcher, volunteered to do the shooting, and obtained the pistol

used in the shooting.

Appellant had many opportunities to disavow the plan, even on the day of the

shooting—in the morning when he and Cortes waited outside Hatcher’s office, in the

afternoon before Cortes returned from dropping off her son, and in the evening while he

lay in wait for Hatcher. Despite Hatcher’s screams, Appellant shot her in the back of the

head, took her belongings, returned to the Jeep, and fled the scene with Cortes. He did

these things for some money and drugs. His willingness to murder a stranger for a small

amount of money and drugs also demonstrated his disregard for human life.

In his interview with Barnes Appellant displayed no remorse over Hatcher’s death,

and he tried to shift blame for the offense. It seems that his only regret was that he had

not tossed the gun after killing Hatcher.

Appellant’s lengthy and violent criminal history supported the future

dangerousness finding, too. It also demonstrated an escalating pattern of violence and

disrespect for the law.

On this evidence, any rational jury could find against Appellant on the future

dangerousness issue.
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Point of error thirty-four is overruled.

III. Voir Dire—Challenges for Cause

In points of error one through twenty-one, Appellant claims the trial court erred in

denying twenty-one of his challenges for cause.

A juror is challengeable for cause by the defense if he has a bias or prejudice in

favor of or against the defendant or the law on which the defendant is entitled to rely.

Tex. Code Crim. P. art. 35.16(a)(9), (c)(2); see Gardner v. State, 306 S.W.3d 274, 295

(Tex. Crim. App. 2009). “The test is whether the bias or prejudice would substantially

impair the prospective juror’s ability to carry out his oath and follow instructions in

accordance with the law.” Tracy v. State, 597 S.W.3d 502, 512 (Tex. Crim. App. 2020).

The law must be explained to the juror, and he must be asked whether he can follow the

law regardless of his personal views. Id. The challenger bears the burden of establishing

that the challenge is proper. Id. The challenger does not meet this burden until he has

shown that the juror understood the law’s requirements and could not overcome his

prejudice well enough to follow the law. Id.

When assessing a trial court’s decision to deny a challenge for cause, we review

the entire record to determine whether sufficient evidence exists to support the court’s

ruling. Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim. App. 2010). We reverse only

for a clear abuse of discretion. Id. Because the trial judge is in the best position to

evaluate a potential juror’s demeanor and responses, we review a trial court’s ruling on a

challenge for cause with considerable deference. Gardner, 306 S.W.3d at 295. When a
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prospective juror’s answers are vacillating, equivocating, ambiguous, unclear, or

contradictory, we accord particular deference to the trial court’s decision. Tracy, 597

S.W.3d at 512.

To prevail on a claim that the trial court erred in denying a challenge for cause, the

defendant must also show harm. Harms depends on “whether a peremptory challenge

was wrongfully taken from the defendant.” Newbury v. State, 135 S.W.3d 22, 30–31

(Tex. Crim. App. 2004) (internal quotation marks and alterations omitted). Therefore,

besides error, the defendant must also show that (1) he asserted a clear and specific

challenge for cause; (2) he used a peremptory challenge on the complained-of

veniremember; (3) his peremptory challenges were exhausted; (4) his request for

additional strikes was denied; and (5) an objectionable juror sat on the jury. Comeaux v.

State, 445 S.W.3d 745, 750 (Tex. Crim. App. 2014); see also Newbury, 135 S.W.3d at

31. The parties in capital cases are allotted fifteen peremptory challenges each. Article

35.15(a).

III.A. Byers, Parham, Slear, and Taylor

In points of error eighteen through twenty-one, Appellant complains about the

denial of his challenges for cause to jurors Byers, Parham, Slear, and Taylor. Appellant

still had peremptory strikes remaining when he challenged these jurors, but he did not

strike them. Since he could have used peremptory strikes on them but did not, he

suffered no harm from the trial court’s rulings even if they were erroneous. See

Newbury, 135 S.W.3d at 32. We overrule points of error eighteen through 21.
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III.B. Remaining Veniremembers

Appellant satisfied the conditions for showing harm from any error in the trial

court’s denial of his challenges for cause with respect to seventeen potential jurors.

Appellant challenged each for cause and, as those challenges were denied, he used his

peremptory strikes until he had none left. He requested and was granted two additional

strikes. After his challenge for cause to veniremember Niesman (point of error

seventeen) was denied, he identified Niesman as objectionable and requested but was

denied a third additional peremptory strike. Niesman became the twelfth juror.

Because the trial court granted Appellant two additional peremptory challenges,

Appellant cannot show harm unless he demonstrates that the trial court should have

granted at least three of his challenges for cause to these seventeen veniremembers. See

Comeaux, 445 S.W.3d at 749–50; Chambers v. State, 866 S.W.2d 9, 23 (Tex. Crim. App.

1993).

III.B.1. Thomas

Appellant asserts several reasons that Thomas should have been removed for

cause, but he only raised one of those reasons at trial. Thus, he failed to preserve for our

review those other reasons for his challenge. See Tex. R. App. P. 33.1(a) (stating that a

timely and specific objection at trial is required to preserve a complaint for appellate

review). In support of his preserved basis of review, Appellant cites Thomas’s responses

regarding the issue of venue and argues that Thomas would not have required the State to

prove each element of his case beyond a reasonable doubt.
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Under State questioning, Thomas testified that he would require the State to prove

every element of its case beyond a reasonable doubt and agreed that if the evidence

showed that the offense was committed in a county other than Dallas County, Appellant

would be entitled to a not-guilty verdict. Thomas stated he would “follow all the

evidence” and said he would follow the law.

Appellant emphasizes Thomas’s testimony in response to questions by the

defense. After drawing a distinction between “innocent” and “not guilty” that Thomas

did not buy into, the defense attorney asked him how he felt about the possibility of

having to say “not guilty” merely because the State failed to prove venue. Thomas

answered:

Based on that scenario you’re giving me right there, one instance being out
of area, then I would say -- I will not say the guy is totally innocent. I will
not say he’s not guilty. I would say that’s an error that can be discovered
later on, and the person has that right to bring that back up in an appeal to
say that was wrong. For me, in that point right there, being out of the
county, if the guy was found reasonable doubt [sic] he actually committed
the crime, in my mind as it stays right now, I still will find him guilty.

Defense counsel challenged Thomas for cause, arguing that he would not hold the

State to its burden to prove all the elements of the offense beyond a reasonable doubt.

Although the State must prove that an offense occurred in the county alleged in the

indictment, its burden on that point is by a preponderance of the evidence. See Article

13.17 (requiring the State to prove venue by a preponderance of the evidence); Schmutz v.

State, 440 S.W.3d 29, 34–35 (Tex. Crim. App. 2014) (concluding that venue error does

not render the evidence legally insufficient because venue is not an element of the offense
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that the State must prove beyond a reasonable doubt). No one explained this to Thomas,

and counsel did not ask Thomas if he could follow the law despite any personal

disagreement with it. See Tracy, 597 S.W.3d at 512.

In addition, Thomas stated during State questioning that he would require the State

to prove all the elements of the offense beyond a reasonable doubt. Thomas’s response to

defense counsel’s questions more reasonably evidenced confusion than a statement that

he would not hold the State to its burden. See Tracy, 597 S.W.3d at 512; see also Hogue

v. State, 711 S.W.2d 9, 20–23 (Tex. Crim. App. 1986) (finding that the veniremember’s

answers as a whole showed that he would follow the law and hold the State to its burden

of proving venue). To the extent Thomas’s answers were vacillating or ambiguous, we

defer to the trial court’s implicit determination that he could follow the law and render a

verdict based on the law and the evidence. See Tracy, 597 S.W.3d at 512; Burks v. State,

876 S.W.2d 877, 893 (Tex. Crim. App. 1994).

Point of error one is overruled.

III.B.2. Veniremember Rackard

Appellant argues that the trial court should have excused Rackard because she had

already determined his guilt due to media exposure, would not hold the State to its burden

of proving every element of the offense beyond a reasonable doubt, and would

automatically answer the special issues in a manner that resulted in a death sentence.

a. Presumption of Innocence
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Rackard stated in her questionnaire that she thought she had heard some facts of

Appellant’s case through the media. Appellant emphasizes that when the State asked if

she had formed an opinion about Appellant’s guilt or innocence based on what she had

heard, she answered, “I think I lean a little bit more to the guilty side.” Appellant

contends that this statement shows that Rackard was biased against him.

Rackard’s subsequent responses do not support Appellant’s contention. She

agreed that Appellant was entitled to a presumption of innocence. She stated that the

presumption of innocence meant that, if she were asked for a decision on Appellant’s

guilt or innocence right then, the verdict would have to be not guilty because the State

had not proven anything; Appellant had “just been arrested.” Rackard acknowledged the

importance of the presumption of innocence and stated that she could “remove [her]

emotion and just follow the law” which meant “listen[ing] to both sides” and answering

“fairly.”

Regarding her “leaning towards guilt” comment, Rackard explained, “Well, I

mean, I don’t know that it was him. That has to, obviously, be proven.” She said that, in

hearing about the case through the media, she had merely hoped that the perpetrators

would be caught and punished. Rackard denied that she had a predetermined opinion

about whether Appellant was one of the perpetrators. Rackard also repeatedly

emphasized the importance of keeping an open mind and listening to the evidence.
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Rackard was at most a vacillating juror. The trial court did not abuse its discretion

in denying Appellant’s challenge for cause based on the argument that Rackard had

predetermined his guilt. Gardner, 306 S.W.3d at 295–96.

b. Burden of Proof

Appellant contends that Rackard should have been dismissed because she would

not hold the State to its burden of proof regarding venue.

The prosecutor showed Rackard the indictment and emphasized that the State had

the burden of proving everything in it. When the prosecutor asked Rackard what the

result would be if the State failed to prove that the offense happened in Dallas County,

Rackard responded, “You would get a not guilty” verdict.

Defense counsel returned to this subject and asked Rackard if she would vote for

an acquittal if the State had proved everything alleged in the indictment beyond a

reasonable doubt except that the offense occurred in Dallas County. Rackard answered,

“Not if it was the county.” She understood that the law would entitle Appellant to an

acquittal under that circumstance, but she said that she “would probably let that slide” if

the State only failed to prove the county. She then stated that, although it would be very

difficult for her to acquit Appellant if only the proof of venue were lacking, she would

ultimately “have to do the right thing.”

As with veniremember Thomas, a failure to require the State to prove venue

beyond a reasonable doubt was not a proper basis for challenging Rackard. See Article

13.17; Schmutz, 440 S.W.3d at 34–35. Further, Rackard vacillated on this topic. She
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gave one answer during State questioning but an opposite answer during defense

questioning. She retreated from the answer she gave to the defense, stating that she

would ultimately follow the law. We accord particular deference to a trial court’s ruling

under these circumstances, and thus we defer to its determination. See Tracy, 597

S.W.3d at 512. The trial court did not abuse its discretion in denying the challenge on

this basis.

c. Automatic Death Penalty

Appellant contends that Rackard would automatically answer the special issues in

a way that resulted in the death penalty. He notes that on her questionnaire she said,

“[H]arm to a child (or death), planned and calculated death to someone,” was “the best

argument for the death penalty.” When defense counsel asked what she meant by

“planned and calculated death to someone,” Rackard explained: “Like, murder for hire.

If there is a planned attack seeking out some one individual, a particular individual.”

Rackard’s subsequent answers showed she meant that such a murderer should be eligible

for the death penalty, not that such a person should automatically receive the death

penalty.

Furthermore, the totality of Rackard’s questionnaire and voir dire responses does

not show that she would automatically answer the special issues in a manner that resulted

in a death sentence. Rackard stated in her questionnaire that she believed the death

penalty was appropriate in some cases, but not all, and that she did not believe in “an eye

for an eye.” From the stand she repeatedly emphasized that no two cases are the same,
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that the particular circumstances should control the punishment, and that she would

consider all the evidence presented at the punishment phase, if any, before answering the

special issues.

The trial court did not abuse its discretion in denying the challenge for cause on

the grounds that Rackard would automatically assess the death penalty.

Point of error two is overruled.

III.B.3. Kays

Appellant contends that Kays was challengeable for cause he would need to hear

evidence of remorse from Appellant. However, that complaint was not preserved

because Appellant did not challenge Kays for cause on this basis at trial. See Tex. R.

App. P. 33.1(a). Appellant’s preserved complaint about Kays was that he would not hold

the State to its burden of proof to show future dangerousness. He argued that Kays

would lower the State’s burden of proof on the future dangerousness special issue by

requiring it to prove a probability that Appellant would commit only a single act rather

than “acts” of violence. See Article 37.071, § 2(b)(1). The record does not support this

argument.

During the State’s questioning Kays averred that he would hold the State to its

burden to prove future dangerousness because, “That’s the law.” Kays agreed there were

no automatic answers to the future dangerousness special issue and that the answer might

very well be “no.”
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Defense counsel questioned Kays at length about his understanding of the first

special issue’s requirements, especially the phrase, “criminal acts of violence.” Kays

initially stated that the word “acts” “would be singular.” Defense counsel explained that,

because the future dangerousness special issue states “criminal acts of violence,” it “is

actually looking for more than one act.” When asked if proof of only one act would be

enough for him, Kays said it would “depend[] on the act.” Defense counsel re-

emphasized that the future dangerousness special issue required the State “to prove to

you there is a probability that he would commit acts that would constitute a continuing

threat to society.” Kays answered, “That’s correct.” Questioning continued:

Q. My question to you is, where I’m having a little bit -- I’m stuck. I get
the feeling you’re saying if they prove one act to you, that’s going to be
sufficient.

A. I don’t think anyone can prove one act whatsoever. They are trying
to do their best to show what the person might do down the road. To me -- I
don’t know. It’s hard to determine whether or not it’s going to be one or
more. I don’t know how you get to that point.

Q. That’s just it. That’s what they have to prove, and that’s what I’m
trying to make sure I get to.

A. That will be the next step in the process.

Q. It will be the next step in the process. That’s why I’m trying to see
where you are because I have to make sure we get 12 people on there to
make sure that they prove that there’s going to be a probability that the
defendant will commit criminal acts of violence that would constitute a
continuing threat to society. Not an act of violence.

You even -- a minute ago when I said if they prove a fight in prison, you
said, if there was one, there is going to be many. That begs the question, do
they even have to prove that to you? Because if you already assume if he’s
in prison there is going to be more than one fight, is that going to be an act
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of violence to you? If it is, is it going to be multiple? Are you going to be
predisposed to answering that simply because he’s going to prison?

A. I mean, what can I say?

Q. That’s just it. The only person that knows you is you. I’m trying to
get to know you.

A. It’s an unknown to me, as far as getting there, because I’ve never
been in any one of those seats.

Q. I understand. That’s why I said it’s difficult, because we have to get
you as close to being in that seat as we can to get what your thoughts are.
It’s their burden of proof on this special issue.

A. That’s what I said earlier, that each one of the cases have to be met.

Kays did not manifest an inability to require the State to prove beyond a

reasonable doubt a probability that Appellant would commit criminal acts of violence.

Instead, Kays’s responses evidenced a desire to follow the law but confusion about how

he was supposed to determine whether Appellant would commit criminal acts of violence

in the future. At most, Kays’s answers were unclear or equivocal about his ability to

follow the law. We defer to the trial court’s implicit determination that Kays was able to

set aside any reservations that he may have had and render a verdict based on the law and

the evidence. See Tracy, 597 S.W.3d at 512.

Moreover, we have interpreted the future dangerousness special issue as

“essentially a normative [question] as the Legislature declined to specify a particular

level of risk or probability of violence.” Coble v. State, 330 S.W.3d 253, 267–68 (Tex.

Crim. App. 2010); see Estrada v. State, 313 S.W.3d 274, 281–82 (Tex. Crim. App. 2010)

(discussing our “commonsense” or “core” interpretation of the future dangerousness
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inquiry). The future dangerousness special issue focuses on the degree to which a

defendant “poses a real threat of future violence.” See Coble, 330 S.W.3d at 268.

Defense counsel’s semantic wrangling with Kays did not compel the trial court to find

that Kays had a bias against the law that he was unable to set aside.

Point of error three is overruled.

III.B.4. Queen

Appellant argues that Queen would have required him to testify. However, he did

not challenge Queen for cause on that basis at trial, so he failed to preserve that

complaint. See Tex. R. App. P. 33.1(a). His preserved claim is that Queen was biased

against him because she had been the victim of an attempted carjacking that presented a

similar factual scenario to his case and because she favored the death penalty.

Queen disclosed on her juror questionnaire that she had been the victim of an

attempted carjacking, and she told the prosecutor that the perpetrator had not been

caught. She told the prosecutor that her emotions related to the incident would not affect

her decision-making as a juror. When defense counsel pressed her on whether the two

cases were similar, she explained that she did not think her would-be robber had intended

to hurt anyone, noting that he had been armed with a butter knife. She denied that the

experience would affect her as a juror at Appellant’s trial because the two offenses did

not seem comparable to her. Queen stated that the only lasting impression the incident

had made on her was “[n]ot to be a naive 16 year old in a dark parking lot.”
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On her questionnaire Queen said, “If you’re going to kill and carry a firearm, you

should be prepared for the consequences and justify your actions if called upon.” She

also said that a life sentence was appropriate for some capital murder cases, depending on

the evidence. During voir dire she said she felt the death penalty was appropriate for

premeditated murder. But she said she would not automatically apply the death penalty

and would consider all the evidence before answering the special issue, and she

acknowledged that the default sentence is life without parole.

The trial court did not abuse its discretion in denying Appellant’s challenge.

Queen’s responses supported a finding that her experience would not bias her against

Appellant, and she was at most vacillating in her responses on the death penalty. The

trial court was in the best position to assess her credibility. See Gardner, 306 S.W.3d at

295.

Point of error four is overruled.

III.B.5. Kohn

Appellant argues that the trial court should have removed Kohn for cause because

she would require Appellant to testify, and she would automatically answer “yes” to the

future dangerousness special issue if she found him guilty of capital murder.

a. Right Not to Testify

During State questioning, Kohn stated that it was “fair” that jurors cannot consider

a defendant’s decision not to testify. And when asked whether she could afford
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Appellant his Fifth Amendment right not to testify, Kohn answered, “Absolutely. It’s his

right.”

When defense counsel questioned Kohn, he focused on her questionnaire where

she said, “I believe a defendant should testify in his own defense even though the law

does not require it.” Kohn explained that she had responded “Agree” to that statement

because she had previously been a juror in a DWI case in which the defendant had

testified, and Kohn felt that his testimony had benefitted him, because the jury had

acquitted him.

Kohn continued, “So human nature makes me want to hear somebody speak and

how they carry themselves and just to get an understanding of, you know, nonverbal

language” and “just to add a human element to the person that you’re making -- whose

life you’re holding in your hands.” When defense counsel followed up by asking Kohn if

she would hold it against Appellant if he did not testify, she answered, “No. No. That’s

why he’s got a legal defense team to make that decision, and there [are] pros and cons,

I’m sure, both ways.”

The trial court was in the best position to assess Kohn’s demeanor and responses,

and we defer to its resolution of the issue. See Gardner, 306 S.W.3d at 295.

b. Future Dangerousness

In her questionnaire, Kohn disagreed with the statement, “The state prison system

in Texas can control inmates who have been convicted of violent offenses.” To the

question “What would be important to me in deciding whether a person received a death
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sentence rather than a life sentence” she answered “guilty beyond a reasonable doubt.”

At voir dire defense counsel asked her whether that answer meant that in the case of a

murder in the course of a robbery, she thought “that before getting to the special issues

that the defendant should be sentenced to death?” She answered “At this point, I don't

know.” When asked to hypothetically assume guilt beyond a reasonable doubt, she said,

“honestly, not necessarily, but, you know, I've got to hear more before I can form an

opinion.”

Kohn repeatedly stated or agreed that the imposition of the death penalty should

depend on the facts and circumstances of an individual case. Her answers further showed

her understanding that a life sentence could not lawfully change to death unless the State

proved beyond a reasonable doubt a probability that Appellant would commit criminal

acts of violence that would constitute a continuing threat to society. Kohn pledged to

keep an open mind and not assess any automatic answers to the special issues.

On this record, the trial court was within its discretion to reject Appellant’s

contentions that Kohn would automatically answer “yes” to the future dangerousness

special issue and hold a decision not to testify against him. See Gardner, 306 S.W.3d at

295.

Point of error five is overruled.

III.B.6. Veniremember Tijerina
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Appellant claims that Tijerina was not qualified to serve as a juror because he

would not hold the State to its burden to prove every element of the offense beyond a

reasonable doubt.

Under State questioning, Tijerina repeatedly affirmed that the jury would be

required to return a “not guilty” verdict if the State failed to prove every element beyond

a reasonable doubt.

When the defense questioned Tijerina, counsel asked him to imagine that the State

had proven the elements except that it had shown that the defendant used a knife to

commit the murder rather than a gun as the indictment alleged. Tijerina responded, “It’s

-- that’s a slippery slope, to say the least. It’s just the way the law says that, you know, I

guess it wouldn’t -- according to the law, it wouldn’t meet the capital murder type

scenario.” Defense counsel observed that some people would purposely overlook the

State’s failure to prove the manner and means if they thought the defendant committed

the crime. Tijerina explained that although in his opinion it would not be “right” for

someone to “get people out of – to blame for what they’ve done” but that if that was what

the law required, “then that’s what we’ll do.” Counsel asked if that meant that Tijerina

was saying that he “would still go along and follow the law in that situation,” and

Tijerina responded, “Yeah, I follow the law. I try to follow all the laws. Do we agree

with them all? Like I said in the beginning, no, I do not.”

At the end of questioning, defense counsel referred to Tijerina’s responses to the

gun/knife hypothetical and challenged him for cause on the ground that “he would find
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someone guilty regardless of whether the State proved all the elements of the offense.”

The trial court denied the challenge.

Jurors are not required to agree with the law. See Tracy, 597 S.W.3d at 512.

Jurors are only required to follow the law. See Article 37.071, § 2(e)(1). Tijerina’s

testimony supports a finding that he would follow the law whether he agreed with it or

not.

Point of error seven is overruled.

III.B.7. Rose

Appellant asserts that Rose would automatically assess the death penalty due to his

strong religious beliefs, but he did not preserve this assertion because he did not raise it at

trial. See Tex. R. App. P. 33.1(a). Appellant also contends that the trial court should

have excused Rose from jury service because he would automatically answer “no” to the

mitigation special issue, and he preserved this contention.

On his questionnaire Rose said he “somewhat” agreed that “A convicted capital

murderer’s accomplishments or good deeds in his life should not matter in deciding

whether he should get the death penalty or not.” He also disagreed on the questionnaire

that a person’s background or life history does not matter in assessing punishment. Rose

wrote on his questionnaire that a person’s punishment “should be based on [the]

evidence” and “circumstances,” and that he would have “no problem” listening to mental

health evidence.
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Rose was not required to find any “particular type of evidence to be mitigating.”

See Standefer v. State, 59 S.W.3d 177, 181 (Tex. Crim. App. 2001). The law only

required Rose to be able to consider all the evidence presented at Appellant’s trial in

determining his answer to the mitigation special issue. See Article 37.071, § 2(e)(1). His

testimony supports a finding that he could satisfy that requirement. He repeatedly

expressed the belief that not all capital murders should necessarily be punished by death,

and he indicated that he could keep an open mind. Rose acknowledged that he might not

find any evidence sufficiently mitigating to answer the mitigation special issue “no” after

finding a defendant guilty of capital murder and answering “yes” to the future

dangerousness special issue. But he denied that his answer to the mitigation special issue

would always be “no” under those circumstances. To the extent Rose gave contradictory,

equivocal, or unclear answers, the trial court was in the best position to resolve the issue.

We defer to its determination. See Gardner, 306 S.W.3d at 295.

Point of error eight is overruled.

III.B.8. Parker

Appellant claims that Parker was challengeable for cause on several bases that he

did not rely on at trial. Those claims were not preserved for review. See Tex. R. App. P.

33.1(a). He also claims Parker should have been struck for cause because her

questionnaire shows that she was “mitigation-impaired” because she would not consider

genetics, upbringing, environment, or mental health evidence in answering the mitigation

special issue. However, Parker’s voir dire testimony in its entirety shows the opposite.
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Parker explained that she had either misread the questions or not realized what they were

asking. In any case, the law did not obligate Parker to find any particular evidence

mitigating. See Standefer, 59 S.W.3d at 181. Instead, the law obligated Parker to

consider all the evidence presented at Appellant’s trial. See Article 37.071, § 2(e)(1).

Her testimony indicates that she understood and could fulfill that obligation. The trial

court did not abuse its discretion by denying the defense’s challenge for cause on the

ground that Parker was mitigation-impaired.

Point of error nine is overruled.

III.B.9. Veniremember Theis

Appellant argues that Theis was challengeable for cause because he would not

meaningfully consider the defense’s mitigation evidence and would automatically answer

the mitigation special issue “no,” and because he had job concerns that would affect his

ability to serve as a juror.

a. Mitigation

Appellant refers to Theis’s questionnaire in which Theis suggested that evidence

of a defendant’s background, upbringing, genetics, mental health history,

accomplishments, good deeds, and environment do not matter when determining the

appropriate punishment for capital murder.

But Theis gave these answers before the parties had explained the law to him, so

they would not support a challenge for cause. See Tracy, 597 S.W.3d at 512. Further,

the law did not require Theis to find any particular evidence mitigating. See Standefer,
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59 S.W.3d at 181. Instead, the law required him to be able to consider all the evidence

presented at Appellant’s trial. See Article 37.071, § 2(e)(1).

After the law was explained to Theis, he stated that he understood it. Theis further

asserted that he could set aside his personal beliefs and follow the law if seated as a juror.

Theis noted that he answered the juror questionnaire without previously having thought

deeply about the death penalty. He assured defense counsel that he would “be open and

listen to all the facts and all the evidence, as well as, you know, any personal background

or things that should change my -- you know, my feeling based on the decision that’s

made up to that point. So I think just that I am open-minded.” Theis also promised

several times that he would not automatically answer the mitigation special issue “no” if

the jury convicted Appellant of capital murder and answered “yes” to the future

dangerousness special issue.

To the extent any of Theis’s answers were contradictory, equivocal, or unclear, the

trial court was in the best position to determine his ability to follow the law. See

Gardner, 306 S.W.3d at 295. We defer to its determination.

b. Job Concerns

Theis expressed concern about serving as a juror because he was due to start a new

job. During voir dire he at one point answered “no,” he did not think he could set aside

his employment concerns to focus on the case. At other times, however, he said that his

job stress would not make him unfair, and he assured counsel several times that he could

be fair, pay attention to the proceedings, and fulfill his oath as a juror. It is not an abuse
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of discretion to deny a challenge to a juror that expresses work distractions but also states

he can be fair. Garcia v. State, 887 S.W.2d 846, 859 (Tex. Crim. App. 1994).

Additionally, Theis gave contradictory answers about his ability to set aside his

employment concerns, so we defer to the trial court’s decision. Gardner, 306 S.W.3d at

295.

Point of error ten is overruled.

III.B.10. Applebaum

Appellant claims that Applebaum was challengeable for cause because she would

automatically find police officers more credible than other witnesses, and she would not

meaningfully consider any mitigating evidence.

a. Police Officer Credibility

When questioning Applebaum, the prosecutor observed that many people feel a

special connection with the police and therefore are inclined to automatically find their

testimony more credible than that of other witnesses. Referring to Applebaum’s

questionnaire, the prosecutor noted, “You said they are just the same -- you would treat

them the same as anybody else that got up there to testify. And that’s what the law would

ask of you. It doesn’t matter if a cook, a baker, a lawyer, a priest, or a police officer

testifies, that you hold them all to whatever your same measuring stick is.” Applebaum

responded, “Yes.”

However, she also agreed on her questionnaire that, “If the police charge someone

with a crime, he or she is probably guilty.” Applebaum told defense counsel she selected
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this response because she “believe[d] in the police officers in our society” and “back[ed]

them based on they’re supposed to follow the law as well.” She continued, “So if they’re

the one investigating the crime and say someone is guilty, I am definitely going to be

listening to that testimony. They were the ones there after the crime, I guess I should say,

collecting the evidence. And you’ve got to make your decision based on something.”

Applebaum retreated from her “Agree” response, stating that she “would have to say

‘uncertain’ until [she] heard the information[.]” Applebaum added, “[B]ut I mean, you

have to get your information to make your decision somehow, and I back the blue and

that would definitely be a part of my decision-making.”

Defense counsel told Applebaum that many people shared her attitude because the

police “are professionals, supposed to do a job and their duty.” Counsel said that attitude

might lead people like Applebaum to say, “I’m going to give police officers a little more

credibility by nature of the fact of their position.” Counsel asked, “Is that what I’m

hearing from you, Ms. Applebaum?” She answered, “Yes.” But when asked if she

believed a person is more likely to be guilty if the police arrest and charge him, she said

“I’m not going to make that assumption, no.”

Applebaum at most vacillated in her answers about automatically giving more

credibility to police officers. In such situations, we defer to the trial court’s resolution of

the issue. See Tracy, 597 S.W.3d at 512.

b. Mitigation Bias
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Appellant claims that Applebaum was “mitigation impaired” because her

questionnaire disagreed that genetics, birth circumstances, upbringing, and environment

should be considered when determining punishment in a capital case.

When defense counsel asked her about the response, Applebaum explained that

the day that she had completed the questionnaire had been “very overwhelming.”

Applebaum was not sure what she had been thinking at the time and noted that many of

the terms were new to her. She said that she now realized that the factors listed in the

questionnaire “would play right into these two special issues, No. 1 and No. 2.”

Applebaum stated that she now understood what capital murder was and asserted,

I’m not going to make a decision on anybody’s life until I have all the facts,
and part of the facts are going to be the things that you’re mentioning in
here, your environment, your upbringing. And so I guess I put for capital
murder “no,” but the answer is in capital murder “yes,” I’m going to
consider everything -- I don’t take this lightly.”

Applebaum also assured both sides several times that she would maintain an open

mind and consider any evidence presented. Further, she stated in her questionnaire that

testimony on subjects such as mental health would be a “[g]reat idea!”

The trial court did not abuse its discretion by denying Appellant’s challenge for

cause to Applebaum. See Gardner, 306 S.W.3d at 295–96.

Point of error eleven is overruled.

III.B.11. Roman

Appellant argues that Roman should have been struck for cause for several reasons

that he did not raise at trial, so these arguments were not preserved for review. See Tex.
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R. App. P. 33.1(a). He also contends that Roman was “mitigation-impaired” because he

would consider the two special issues in conjunction rather than sequentially and so

would always answer “no” to the mitigation special issue.

Roman vacillated regarding his understanding of the mitigation special issue and

the requirement that jurors consider it only if they first have answered “yes” to the future

dangerousness special issue. Roman told defense counsel, “Based on what you explained

the procedure was, [both special issues are] going to be considered at the same time and

you’re going to have to consider them pretty much in conjunction.” But when the law

was clarified for Roman, he affirmed that he would answer the two special issues

separately and sequentially. Roman told the State that he would consider the future

dangerousness special issue first and only reach the mitigation special issue if the jury

answered “yes” to the future dangerousness special issue.

Roman initially told defense counsel the same thing and affirmed that he would

“back up” and reconsider all the evidence before answering the mitigation special issue.

Roman further affirmed that he would answer “yes” to the mitigation special issue if he

found something sufficiently mitigating after re-examining the evidence. Roman denied

that he could never find something sufficiently mitigating to warrant a “yes” answer to

the mitigation special issue. Roman’s testimony reflected his eventual understanding of

the law and willingness to follow it.
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To the extent that Roman vacillated regarding his understanding of the law or his

ability to follow it, the trial court was in the best position to resolve the issue. See

Gardner, 306 S.W.3d at 295. We defer to its determination.

Point of error twelve is overruled.

III.B.12. Johnston

Appellant argues that Johnston (also referred to as “Johnson” in the record) was

challengeable for cause because she would give a police officer greater credibility than a

lay witness.

The prosecutor told Johnston that the law required that jurors not automatically

give police officer witnesses more or less credibility than other witnesses. Johnston

stated that she understood and could fulfill that requirement. The prosecutor then asked

Johnston about her questionnaire statement that she considered police officers more

credible than most witnesses. After again asserting that she could approach all witnesses’

testimony from a neutral perspective, Johnston explained:

Yes, I put down I would give police a little more weight simply because
they’re trained responders. They are -- in these situations, they are more
likely to know exactly what’s going on, whereas if you have just been
thrown into some crisis, people -- and it’s a one-time thing for you, a police
officer’s observations are going to be more believable than yours.

Johnston elaborated that she was thinking “[m]ore along that line” when she wrote her

response—“Not whether they’re truthful or not but that they have a better

understanding.”

Johnston gave a similar explanation to defense counsel:
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For police officers, are they telling the truth or not telling the truth, I think
that would be even for everybody. But if a police officer were to say the car
was blue whereas somebody else said it was red, I would be more likely to
believe the police officer because they’re trained to observe these things.

She compared policing to her military and nursing experience; as a “trained observer” she

is “trained to look at what’s happening” in high-stress situations, “whereas regular people

are not.” She explained, “And as far as I know, police are the same way.” Defense

counsel asked:

Q. So it actually kind of sounds like you would give them a little more
credibility based on that they’re a police officer?

A. On situations and what they saw and observed I would, but as to
opinions and whether I think they’re telling the truth or not, it wouldn’t be
more. It would be the same, if you can separate those two things.

Q. I’m trying to, but the scenario you gave, whether it was red or blue, you
said you would give the officer a little more credibility, and that’s what you mean?

A. Yes.

Where a prospective juror testifies that “she believes a police officer would always

tell the truth, this Court has construed such a belief to constitute a bias or prejudice

against the defendant.” Montoya v. State, 810 S.W.2d 160, 171 (Tex. Crim. App. 1989).

However, Johnston made no statement implying that she believed that police officers

would never lie on the witness stand. In fact, she expressly stated that “telling the truth

or not telling the truth . . . that would be even for everybody.” See Lane v. State, 822

S.W.2d 35, 44–45 (Tex. Crim. App. 1991) (finding no abuse of discretion in overruling

challenge for cause based on claim that veniremember was predisposed to believe police
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officers where veniremember never stated or implied a belief that police officers would

always tell the truth); see also Montoya, 810 S.W.2d at 171–72 (same).

Further, Johnston’s attempts to explain herself made her a vacillating juror. In

such situations, we defer to the trial court’s resolution of the issue. See Tracy, 597

S.W.3d at 512.

Point of error thirteen is overruled.

III.B.13. Summers

Appellant asserts that Summers was challengeable for cause for various reasons

not raised at trial and so not preserved for review. See Tex. R. App. P. 33.1(a). In

support of his preserved complaint that Summers would automatically assess the death

penalty in the event of a conviction, Appellant notes Summers’s response to the State’s

hypothetical about convicted capital murderer Karla Faye Tucker.

The prosecutor related that Tucker had killed her two victims with a pickax and

derived sexual pleasure from it. But she had been rehabilitated in prison, and two

competing camps arose as her execution date neared. One group believed that Tucker

should still be executed, while the other group believed that the governor should

commute her sentence. In the end, Tucker was executed. The prosecutor asked Summers

what she would have done if she had been the governor. Summers answered:

A. She should pay for her crime.

Q. Why do you feel that way?

A. Because anybody can change. What’s to say she won’t change back,
and you have to pay the consequences for your actions. If you kill
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somebody, you can’t bring them back just because you’re changed. Good
for you, now that part of your life was better than the previous part, but that
doesn’t change what happened.

The prosecutor then outlined the stages of a death penalty case. He emphasized

that the State believed that its evidence and the law would lead the jury to convict

Appellant of capital murder beyond a reasonable doubt and to answer the special issues in

a way that resulted in Appellant receiving the death penalty. The prosecutor asked

Summers whether she could participate in a process that might end with Appellant being

executed. Summers replied:

I think so. I mean, I don’t know anything about this case at all, like,
nothing, so I look at this person and if I just saw him on the street, it would
just be anybody. That’s who he is right now to me. But if I found out he
killed somebody with a pickax and got sexual pleasure out of it, I would
probably want him to die. I don’t know anything about this, so it doesn’t
change my feeling.

After this exchange, the prosecutor segued to the punishment phase special issues.

The prosecutor emphasized that for there to be a punishment phase, the jury would have

necessarily determined that Appellant intentionally killed another human being in the

course of committing or attempting to commit robbery. He noted that the law required

that jurors not make automatic decisions on punishment. Summers affirmed that her

mind would remain “open to listening to all the evidence” and only afterward would she

determine the answers to the special issues. Summers promised that she would give no

automatic answers, explaining, “No, because it’s someone’s life. It’s kind of a big deal.”
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The prosecutor then focused on the future dangerousness special issue. Summers

affirmed that she “totally understood” what the future dangerousness issue asked her to

decide and that it made sense to her.

Regarding mitigation, the prosecutor explained that jurors would not reach this

issue unless they first found beyond a reasonable doubt that Appellant was guilty of

capital murder and that the answer to the future dangerousness special issue should be

“yes.” Summers thought it was “really good” to require that jurors take “one last look

before [deciding] if someone’s going to get a death sentence.” When the prosecutor

emphasized that “[y]ou can’t say, I find him guilty, future danger, death sentence”

because it would not be fair, Summers responded, “Exactly. I feel you have to really

think about it. It’s someone’s life.” The prosecutor asked her if she understood the

special issues and if she could be a fair juror, and Summers stated, “I definitely think I

can be fair. I have a lot of compassion for people, but I also can be fair. Like I said, I

believe in the death penalty.”

Defense counsel asked Summers to state her thoughts about the death penalty if

she and the other jurors found Appellant guilty of capital murder. Summers answered,

Well, I mean, there would still have to be other information that you know
about to make that determination. Obviously, if the person committed those
crimes -- I don’t know what the crimes are, then they would need to have
some kind of punishment for that, but there are so many other things you
have to know before I could answer a question like that.
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Defense counsel asked Summers to imagine that the jury had also answered “yes”

to the future dangerousness special issue and what her thoughts would be. She replied:

“Then I would definitely consider the death penalty as an option.”

Referring to the prosecutor’s hypothetical about Tucker, defense counsel

suggested that Summers’s response showed that she was “one of these people if I find it’s

a heinous crime and he’s going to victimize people, that’s all I need.” Summers denied

this:

I don’t have any facts. That’s not what I’m saying. I’m a very open person,
and I think I’m very fair. I have a lot of compassion for people. I have
compassion for him. I don’t even know him. Like I said, he’s just a person
on the street to me. I have no opinion of him. You’re not -- that’s too vague
for me to really answer that without facts. I’m a person that really works
with facts and thinks a lot about them.

Summers assured defense counsel that if she found someone guilty of capital murder and

answered “yes” to the future dangerousness special issue, she would “absolutely” also

“go on and listen to Special Issue No. 2[,]” giving that issue “meaningful consideration.”

Defense counsel asked Summers about her “[m]aybe but not really” response on

the questionnaire that genetics, circumstances of birth, upbringing, and environment

should be considered when determining the proper punishment for someone convicted of

a crime. Summers explained that she sometimes saw things on the news about criminal

defendants “try[ing] to use something that’s not true, like, oh, they had a bad mother or

whatever, when it’s kind of BS. It could be true, but I have seen that to be also [sic]. So,

I mean, when I answered it, that’s -- yeah, maybe it could be, but, you know[.]”

Summers continued,
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There are a million circumstances. It’s very vague. Maybe it could. It
depends on what it was. When I was answering that question, what I was
thinking about is the more BS stuff. If somebody’s convicted of a crime,
they’ve totally done the crime and now they’re going to go back and try to
pull something to sort of get out of it. I think we’ve all seen that[.]

She added, “But there could also be times when there was really something that, you

know, caused it.”

In sum, Summers repeatedly expressed that the death penalty was appropriate in

some circumstances but not all and that any decision would depend on the specific facts.

She rejected the idea of “an eye for an eye” because “life is much more complex.”

Although Summers thought a murderer like Tucker should die, she added that she did not

know the facts of Appellant’s case. Summers affirmed several times that she would keep

an open mind as to the special issues if she found Appellant guilty of capital murder, and

she stated that she would not give automatic answers. The record supports a finding that

Summers could answer the punishment phase special issues based on the facts and the

law. See Davis, 329 S.W.3d at 807.

Point of error fourteen is overruled.

III.B.14. Foster

Appellant claims that Foster was challengeable for cause because she would

require him to express remorse in violation of his Fifth Amendment and due process

rights and because she was biased toward police officers. He did not challenge Foster on

these bases at trial, so they are not preserved for review. See Tex. R. App. P. 33.1(a).
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His preserved complaints are that Foster would automatically assess the death penalty

and was “mitigation-impaired.”

a. Automatic Death Penalty

On her questionnaire, Foster indicated that she believed that some crimes call for

the death penalty solely based on their facts and regardless of prior violent history,

“especially on a child or sexual assault of the deceased.” When asked to explain during

voir dire, she said “there is just no second guessing for me. That if you murdered a child,

there just seems to be no redemption, I want to say.” When asked if the death penalty

should be automatic for those who murder children or for murder in the course of a rape,

she said, “Yes.” She also stated that she would want a remorseless killer to receive the

death penalty.

However, Foster also said she could follow the law and would not automatically

assess the death penalty. She said that she would hold the State to its burden to prove

future dangerousness beyond a reasonable doubt and acknowledged that she would

answer “no” on the future dangerousness special issue if the State failed its burden. She

understood that the default sentence was life and said that she would not automatically

apply the death penalty in the event of a conviction but would answer the special issues

based on the evidence she heard.

On this record the trial court did not clearly abuse its discretion in denying the

challenge for cause on grounds that Foster would automatically assess the death penalty.

See Gardner, 306 S.W.3d at 295–96.
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b. Mitigation-impaired

On her questionnaire Foster indicated that she strongly agreed that “A convicted

capital murderer's accomplishments or good deeds during his life should not matter in

deciding whether he should get the death penalty." During voir dire she said she

“probably misread that question” when she answered it. She said she could follow the

law and that she would “take into all of the considerations whenever you’re considering

punishment or anything like that because not one box fits all.”

Foster also said on her questionnaire that genetics, circumstances of birth,

upbringing, and environment should “[n]ot always” be considered because “we can take

responsibility for our own selves at sometime in our lives.” During voir dire she

explained, “Some people can continue to blame everybody else for the things that

happened in their life, and then there are other people that the same thing has happened to

but they have managed to pull themselves up.” Following that explanation, she agreed to

keep an open mind and meaningfully consider any evidence.

Jurors are not required to find any particular evidence mitigating. Standefer, 59

S.W.3d at 181. Rather they must consider all the evidence. See Article 37.071, § 2(e)(1).

The record shows Foster was capable of considering all the evidence, so she was not

mitigation-impaired.

Point of error fifteen is overruled.

III.B.15. Stejskal
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Appellant claims that Stejskal was challengeable for cause because she would

automatically assess the death penalty if the jury convicted him of capital murder, and

she would not consider mitigation evidence.

a. Automatic Death Penalty

On her questionnaire Stejskal wrote that some crimes “are unforgivable” and

deserving of death “solely because of the severe facts and circumstances.” She explained

that she was thinking of “[s]erial killers, that kind of thing” as the kind of cases that

warranted the death penalty as a punishment option and that “there are just some people

that I don’t think should stay around.” When questioned by defense counsel, she denied

that she was the kind of person who would automatically answer “yes” to the future

dangerousness special issue: “I don’t think so. I mean, we still have to prove Special

Issue No. 1.”

Stejskal described herself as someone who believed that the death penalty was

appropriate in some but not all murder cases. Although she believed in “an eye for an

eye,” it would depend on the circumstances. She also expressed that life in prison could

be an appropriate punishment, depending on the facts.

Further, Stejskal assured the prosecutor that there was “no question” that she could

follow the law if she were selected as a juror and would not give any automatic answers

to the punishment issues. Stejskal opined that it was “good” that the law required jurors

to answer a mitigation special issue even if jurors answered “yes” to the future

dangerousness special issue. She did not “think anybody should just rush into [assessing
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the death penalty].” Instead, “[t]hey should be able to go back and look at” whether that

was the right decision. Stejskal added, “I think that Special Issue 2 should be something

that is definitely considered. I mean, we’re talking about somebody’s life.”

The trial court was in the best position to evaluate Stejskal’s demeanor and

responses, and we defer to its ruling. Gardner, 306 S.W.3d at 295.

b. Mitigation Bias

Appellant argues that Stejskal would not meaningfully consider any mitigating

evidence if the jury convicted Appellant of capital murder. The record does not support

Appellant’s assertion.

As discussed above, Stejskal expressed approval of the mitigation special issue

and stated that mitigating evidence “should definitely be considered” if the jury convicted

Appellant of capital murder and found that he posed a future danger. The prosecutor

noted that on her questionnaire Stejskal:

• listed “a person’s character” as an important factor in deciding whether a
defendant received a death sentence rather than life without parole;

• responded “Somewhat Agree” to an assertion that a person’s background and life
history did not matter in determining whether the person received the death
penalty;

• answered, “It’s possible; the person may not be a completely bad apple,” regarding
the possibility of rehabilitation in prison; and

• wrote, “Maybe some, depending on the crime,” to answer whether a defendant’s
upbringing and circumstance of birth should be considered in determining whether
he should receive a death sentence.
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The prosecutor explained how all these factors could be relevant to the mitigation

special issue. Stejskal affirmed that she could meaningfully consider all the evidence in

answering the mitigation special issue if the trial reached that point.

When defense counsel questioned Stejskal about her ability to meaningfully

consider mitigating evidence, Stejskal denied that she would automatically answer the

mitigation special issue “no”; she would need to hear the facts because even after an

affirmative answer to future dangerousness, “you never know what might come next.”

She explained why she “[s]omewhat [d]isagree[d]” that “A person’s background

or life history does not matter in deciding whether or not he should get the death

penalty”:

It’s just one of those things that until you know what the story is or what
happened, it’s -- I don’t know how I would feel or what I would think at
that point. I would have to know the specifics, the facts to be able to
determine whether or not it would influence me at all.

Stejskal gave a similar answer when asked why she “[s]omewhat [d]isagree[d]”

that “A convicted capital murderer’s accomplishments or good deeds during his life

should not matter in deciding whether he should get the death penalty”:

Yeah, I mean, I just -- I don’t know. As far as, I guess, you know, if -- if he
was a hero or something and that came out, it’s part of the character, I
guess, just determining if -- again, if this is somebody that is going to cause
problems in the future. I don’t know without knowing everything. I
couldn’t answer that.

Defense counsel then asked whether Stejskal understood that those two questions spoke

to the mitigation special issue and whether she would take into consideration the facts

related to those two questions as the law required. She said “yes” to both questions.
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When asked again, she again affirmed she would “wait and listen to the evidence and

then make that determination.”

Stejskal testified that she would meaningfully consider all the evidence presented

to her in answering the mitigation special issue. That was all the law required of her; she

was not required to find any particular evidence mitigating or sufficiently mitigating. See

Standefer, 59 S.W.3d at 181. Further, the trial court was in the best position to judge her

demeanor and the credibility of her responses. To the extent any of Stejskal’s answers

about her ability to follow the law were vacillating, equivocating, ambiguous, unclear, or

contradictory, we defer to the trial court’s decision. See Tracy, 597 S.W.3d at 512.

Point of error sixteen is overruled.

III.B.16. Wiley and Niesman

Because Appellant received two additional peremptory strikes, he cannot

demonstrate harm unless he shows that the trial court erroneously denied at least three of

his challenges for cause. See Chambers, 866 S.W.2d at 23. Appellant contends that the

trial court erred by denying seventeen of his challenges for cause. We have reviewed

fifteen of the seventeen challenged rulings and found no trial court error. Accordingly,

even if we assume that the trial court erred in denying Appellant’s challenges for cause to

the two remaining veniremembers at issue, Wiley and Niesman, Appellant cannot show

harm. See id.

Points of error six and seventeen are overruled.

IV. Voir Dire—Remaining Issues
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In points of error twenty-two and twenty-three, Appellant argues that by

overruling his challenges for cause, the trial court deprived him of a lawfully constituted

jury under the federal and state constitutions and Article 35.16. However, Appellant has

failed to show that the trial court erred in its rulings about the complained-of jurors or

that he suffered harm as a result. See Gray v. State, 233 S.W.3d 295, 301 (Tex. Crim.

App. 2007). Absent such a showing, we presume that the jurors who served on

Appellant’s jury were qualified. See id. Because Appellant has not overcome this

presumption, he is not entitled to relief. See id. at 301–02. Points of error twenty-two

and twenty-three are overruled.

V. Hearsay

In points of error twenty-six through twenty-eight, which are briefed collectively,

Appellant contends that the trial court erred in overruling his hearsay objections to

testimony given by Jennifer Escobar, Moses Martinez, and Crystal Cortes about

statements Brenda Delgado made to them while planning Hatcher’s murder.

The trial court overruled Appellant’s hearsay objections after the prosecution

argued that the testimony was not hearsay because it was statements of co-conspirators or

was admissible under the statements-against-interest exception to the hearsay rule. See

Tex. R. Evid. 801(e)(2), 803(24). Appellant does not explain why either of those bases

for admission were erroneous but makes a conclusory assertion that the testimony was

hearsay. Accordingly, he has inadequately briefed points of error twenty-six, twenty-

seven, and twenty-eight. See Tex. R. App. P. 38.1(i); Linney v. State, 413 S.W.3d 766,
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767-68 (Tex. Crim. App. 2013) (stating that appellant’s conclusory argument that merely

“recited the elements of his stated grounds for relief” fell “far short of satisfying his

obligation to adequately discuss” his claim). Nevertheless, we address the merits of his

claims in the interest of justice.

A trial court’s ruling on the admissibility of evidence is reviewed for an abuse of

discretion. Colone v. State, 573 S.W.3d 249, 263–64 (Tex. Crim. App. 2019). The trial

court’s ruling will be upheld if it is within the zone of reasonable disagreement. Tillman

v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). If the trial court’s evidentiary

ruling is correct under any applicable theory of law, an appellate court should not disturb

it, even if the trial court gave a wrong or insufficient reason for the ruling. Johnson v.

State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016).

V.A. Escobar’s Testimony

Escobar was Delgado’s friend and former roommate. Escobar testified that while

they were roommates Delgado had approached her about harming Hatcher, which she

initially agreed to before deciding she did not want to be involved. Escobar’s

complained-of testimony began with this exchange with the prosecutor:

Q. Okay. Now, Jennifer, at some point Brenda brings you into a plan
that she has involving a woman by the name of Kendra Hatcher?

A. Yes, sir.

Q. And what was that plan?
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The trial court sustained a hearsay objection by the defense, but the prosecutor

asked to approach the bench. After an off-the-record bench conference the questioning

resumed:

Q. (BY [PROSECUTOR]) Jennifer, let me ask you again. Now, at some
point Brenda reaches out to you and asks you to help do something?

A. Yes, sir.

Q. And she offers you money to do that?

A. Yes, sir. She offers –

Q. How -- how much money did she offer you?

Defense counsel interrupted before Escobar could answer. Referencing “the

conversation we had at the sidebar,” he said he wanted to renew his hearsay objection in

the presence of the jury. The trial court overruled the objection, and questioning

continued:

Q. (BY [PROSECUTOR]) What did she -- what did she offer you?

A. She offers [sic] me $2,000, plus a car.

Q. And for $2,000 and a car, what were you supposed to do?

At this point, defense counsel asked to approach the bench. After another off-the-

record bench conference, the trial court excused the jury from the courtroom. Defense

counsel then made a record of what had transpired during the off-the-record bench

conferences: the trial court had initially sustained his hearsay objection, but at the first

bench conference, the prosecutor had offered a hearsay exception which caused the trial
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court to change its ruling. Counsel asked to formalize the basis for the trial court’s ruling

for purposes of appellate review.

The prosecution argued Delgado’s statements were admissible as statements

against penal interest made by an indicted co-conspirator and in furtherance of a

conspiracy. The trial court granted the defense a running hearsay objection to oral

statements made by indicted co-conspirators but ruled that such testimony was

admissible. The jury re-entered the courtroom and the State’s questioning resumed:

Q. (BY [PROSECUTOR]) Okay. Ms. Escobar, I think where we left off
was I had asked you what you were supposed to do for -- in exchange for
$2,000 and a car.

A. She -- she had several plans. First, it was Ricky. Put him in a coma
or beat him up, or just eliminate Hatcher.

Q. Did she describe to you how she wanted either of those things to
happen?

A. For -- for Ricky, she had bought a bat, some type of needle. I don’t
know what -- what it contained, basically for him -- to put him to sleep. She
wanted to capture -- to follow around Hatcher and basically eliminate her.
She had so many -- so many ways of -- one was going to her car. Basically
whenever she would get in her car, grab her from the front and just stab her
with the needle that I’m describing. Two, just go and beat her up.

V.B. Martinez’s Testimony

Moses Martinez was Delgado’s cousin. Martinez testified that Delgado had

approached him about help in harming Hatcher, but he had refused. Martinez’s

complained-of testimony began with the following exchange:

Q. Had [Delgado] talked to you about Dr. Ricardo Paniagua?

A. Yes.
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Q. Had she talked to you about how they had broken up?

A. Yes, sir.

Q. Okay. Had she talked to you about how she wanted to get back at
him?

A. Yes, sir.

Q. Did she make any reference or talk to you at all about wanting -- at
least starting off, to hurt Dr. Paniagua?

A. Yes.

The trial court overruled a hearsay objection, and Martinez’s direct examination

resumed:

Q. (BY [PROSECUTOR]) You can answer the question. Did she make
any -- say anything to you about wanting to hurt Ricky?

A. Yes, she said that. But when she was talking like that, she was -- she
was drinking at the time. Every time I see her, she was just -- she was not in
her right mind. She was just -- every time we see her, like she was just
drunk. She was just drinking a lot. I don’t know because of what was going
on, but she was always -- she wasn’t there.

Q. Okay. But she would have conversations with you about doing
things like that, and then at some point did those conversations turn to
hurting a girl named Kendra?

A. Yes.

Q. Okay. Now, did she ever talk to you specifically about how she
wanted you to do it?

A. She just said she wanted me to hit her with the --with the bat. And
that’s when I told her I didn’t want to do that, like it’s not worth it. It’s
someone innocent. I told my uncles, and that’s when we stopped talking
because they didn’t believe me.
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* * *

Q. Okay. Now, you mentioned a bat. She had said something about a bat to
you. What does this appear to be to you?

A. It’s a bat.

Q. It’s a bat? Do you know if she had already bought a bat when she was
talking to you about this?

A. Yes.

Q. And that would be -- I just showed you State’s Exhibit 136.

A. Yes, sir.

Q. So you made -- you made the decision that what she’s asking you is not a
good idea?

A. Yes.

Q. Did she offer you help with your child support?

A. She offered me money.

Q. And she offered you money?

A. I told her I wouldn’t do it for money, for nothing.

Q. What about a car? Did she offer to help you with a car?

A. Offered me a car.

V.C. Cortes’s Testimony

Appellant complains of the following exchange between Cortes and the

prosecutor:

Q. Now, at some point Brenda starts talking to you about someone named
Kendra Hatcher?
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A. Yes.

Q. Okay. What kinds of things is she talking to you about?

A. She said that Kendra Hatcher –

[Hearsay objection sustained and then overruled]
Q. (BY [PROSECUTOR]) You can answer.

A. Okay. She said that Kendra Hatcher, she hated her, she didn’t want
anything to do with her. She already knew where Kendra lived. She pretty much
said she wanted to do away with Kendra.

V.D. Analysis

“‘Hearsay’ means a statement that: (1) the declarant does not make while

testifying at the current trial or hearing; and (2) a party offers in evidence to prove the

truth of the matter asserted.” Tex. R. Evid. 801(d). Hearsay is generally inadmissible

except as provided by statute or by the Texas Rules of Evidence. Tex. R. Evid. 802.

A statement that “was made by the party’s coconspirator during and in furtherance

of the conspiracy” is not hearsay. Tex. R. Evid. 801(e)(2)(E). A statement against

interest may be admitted as an exception to the hearsay rule:

(24) Statement Against Interest. A statement that:

(A) a reasonable person in the declarant’s position would have made only
if the person believed it to be true because, when made, it was so contrary
to the declarant’s proprietary or pecuniary interest or had so great a
tendency to invalidate the declarant’s claim against someone else or to
expose the declarant to civil or criminal liability or to make the declarant an
object of hatred, ridicule, or disgrace; and

(B) is supported by corroborating circumstances that clearly indicate its
trustworthiness, if it is offered in a criminal case as one that tends to expose
the declarant to criminal liability.
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Tex. R. Evid. 803(24).

The trial court did not abuse its discretion in admitting the testimony of Escobar,

Martinez, or Cortes about Delgado’s statements because their testimony was admissible

under Rule 803(24). The underlying “statements” attributed to Delgado through these

three witnesses’ testimony met Rule 803(24)’s exception to the hearsay prohibition.

Rule 803(24) establishes

a two-step foundation requirement for admissibility. First, the trial court
must determine whether the statement, considering all the circumstances,
subjects the declarant to criminal liability and whether the declarant
realized this when he made that statement. Second, the court must
determine whether there are sufficient corroborating circumstances that
clearly indicate the trustworthiness of the statement.

Walter v. State, 267 S.W.3d 883, 890–91 (Tex. Crim. App. 2008) (internal footnotes

omitted). In determining whether there are sufficient corroborating circumstances, a trial

court should consider a number of factors: (1) whether the declarant’s guilt is

inconsistent with the defendant’s guilt, (2) whether the declarant was so situated that she

might have committed the crime, (3) the declaration’s timing, (4) the declaration’s

spontaneity, (5) the relationship between the declarant and the party to whom the

statement is made, and (6) the existence of independent corroborative facts. Dewberry v.

State, 4 S.W.3d 735, 751 (Tex. Crim. App. 1999). “When the statement is offered by the

State to inculpate the defendant, as in the case before us, the first two factors are not

relevant.” Woods v. State, 152 S.W.3d 105, 113 (Tex. Crim. App. 2004).

Here the statements attributed to Delgado were against her penal interest, as they

potentially subjected her to criminal liability for criminal solicitation or attempted capital
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murder for remuneration, among other offenses. See Tex. Penal Code §§ 15.03,

19.03(a)(3). In addition, Delgado undoubtedly would have realized that hiring or

attempting to hire others to commit murder on her behalf would subject her to criminal

penalties.

Further, the statements attributed to Delgado bore sufficient indicia of

trustworthiness. Delgado made the unprompted statements well in advance of the

offense, as she was attempting to recruit someone to help her commit Hatcher’s murder.

See Woods, 152 S.W.3d at 113 (stating that the timing and spontaneity of statements

against interest tend to establish their reliability). Delgado also made these statements to

Escobar and Cortes, her friends, and Martinez, her cousin. See Walter, 267 S.W.3d at

898 (noting that statements to friends, loved ones, or family members normally do not

raise the same trustworthiness concerns as those made to persons outside this circle).

Moreover, the State presented abundant independent evidence that corroborated

Delgado’s statements. Detectives Barnes testified that Delgado had a motive to murder

Hatcher—Hatcher was dating Delgado’s former boyfriend, Paniagua. Other witnesses

testified that Delgado was distraught over her breakup with Paniagua and obsessed with

him and his new romantic relationship with Hatcher. Delgado hired Cortes and Appellant

to murder Hatcher in exchange for payment, but only after several other people had

refused Delgado’s offers. Ortiz, the owner of the Jeep used in the offense, testified that

Delgado borrowed it on the day of the offense. Delgado told Barnes that Cortes had been

driving the Jeep that day. Cortes subsequently told investigators that Hatcher’s murder
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resulted from a murder-for-hire scheme that Delgado orchestrated. When investigators

searched Delgado’s car, they found a bat, which Delgado had suggested Escobar and

Martinez use in the offense. The Dewberry factors plus the foregoing independent

corroborative evidence support a finding that Delgado’s statements offered through

Escobar’s, Martinez’s, and Cortes’s testimony bore sufficient indicia of reliability and

were therefore admissible under Rule 803(24).

Because Escobar’s, Martinez’s, and Cortes’s testimony was admissible under Rule

803(24), we need not consider whether it was also admissible as non-hearsay under Rule

801(e)(2)(E).

Points of error twenty-six through twenty-eight are overruled.

VI. Suppression Issues

In points of error twenty-nine and thirty Appellant claims that the trial court erred

in overruling motions to suppress searches of his car.

In his briefing for point of error twenty-nine, Appellant quotes trial counsel’s

explanation to the trial court about the issues in his suppression motion, summarizes the

suppression hearing testimony, and sets forth some general law about warrantless

searches and exigent circumstances. His effort to apply the law to the facts consists of

these conclusory sentences:

The testimony on when a warrantless search in this case was conducted is
contradicted by the fact that a large number of law enforcement officers
both police and FBI agents were present where the vehicle was stopped.
The trial court denied Appellant a fair trial by denying the motion to
suppress. The only fair [remedy] is to remand for a new trial.
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In his briefing for point of error thirty, Appellant directs us to the objections trial

counsel made to the warrant. Appellant then states,

Trial counsel explained the factual basis of his objections at Reporter’s
Record Volume 36 p. 59 and why the trial court abused its discretion in
overruling his motion to suppress any evidence related to the search of the
vehicle, mainly the recovery of a firearm later tied to the murder.

The totality of Appellant’s argument on appeal is:

Appellant submits that the underlying affidavit of the warrant is insufficient
as argued by trial counsel to the trial court. The seized evidence should
have been suppressed based on either of trial counsel’s two theories of
suppression based on an illegal search of the vehicle.

In point of error twenty-nine, Appellant has insufficiently applied the law to facts.

In point of error of thirty, he has entirely failed to do so. These two points of error are

inadequately briefed, and we will not address them. See Tex. R. App. P. 38.1(i); Wolfe v.

State, 509 S.W.3d 325, 342–43 (Tex. Crim. App. 2017).

Points of error twenty-nine and thirty are overruled.

VII. Victim Impact Evidence

In point of error thirty-one Appellant claims that the trial court erred at the

punishment phase “in overruling [his] objection concerning victim impact evidence.”

The claim apparently pertains to an objection trial counsel made when the State indicated

that it would call Hatcher’s mother to rebut Appellant’s mitigation case.

The objection at trial was that it would be improper for the State to “have the last

word” because the State can’t present victim impact evidence “unless the Defendant has

failed to waive his right to – to present mitigating evidence.” See Williams v. State, 273
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S.W.3d 200, 225 (Tex. Crim. App. 2008) (concluding that the mitigation special issue is a

waivable defensive issue). The argument on appeal is that “in total the State’s victim

impact character evidence [sic] was so voluminous that it violated Appellant’s right to

due process and a fair trial” and thus the trial court erred to overrule the relevance

objection. Appellant failed to preserve the claim he raises on appeal because it does not

comport with his objection at trial. See Tex. R. App. P. 33.1; Bekendam v. State, 441

S.W.3d 295, 300 (Tex. Crim. App. 2014) (“We are not hyper-technical in examination of

whether error was preserved, but the point of error on appeal must comport with the

objection made at trial.”).

This point is also inadequately briefed. Appellant provides some general law on

victim impact testimony and quotes at length from Mosley but fails to apply the law to the

facts. He asserts that the total volume of victim impact or victim character evidence

presented by the State violated his constitutional rights to due process and a fair trial. But

he does not identify where in the record or through what witnesses, other than Hatcher’s

mother, the State presented such victim impact or victim character evidence. See Wolfe,

509 S.W.3d at 342–43; Tex. R. App. P. 38.1(i).

Point of error thirty-one is overruled.

VIII. Photographs

In points of error thirty-two and thirty-three Appellant complains about the

admission of photographs in the punishment phase of trial. Neither point is adequately

briefed.
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“A photograph is generally admissible if verbal testimony about the matters

depicted in the photograph is also admissible.” Young v. State, 283 S.W.3d 854, 875

(Tex. Crim. App. 2009). Further, victim impact and victim character evidence are

generally admissible at the punishment phase of a capital murder trial. See Williams, 273

S.W.3d at 218–19. “[G]iving the defendant ‘the broadest latitude to introduce relevant

mitigating evidence,’ as has been done under Supreme Court precedent, justly entails

permitting the prosecutor to introduce ‘the human costs of the crime of which the

defendant stands convicted.’” Id. (quoting Payne v. Tennessee, 501 U.S. 808, 827

(1991)).

VIII.A. “Victim-Impact” Photographs

In point of error thirty-two, Appellant contends that the trial court erred in

overruling his objection to “victim-impact” photographs. Appellant refers us to trial

counsel’s argument where he objected to the admission of fifteen photographs of

Hatcher, State’s Exhibits SX-363-374 and SX-376-380, taken at various points during her

life. Trial counsel argued that the photographs were “duplicitous” and redundant and

referred to guilt-phase testimony about Hatcher. Appellant argues that the “sheer

volume” of the photographs made them unduly prejudicial.

However, Appellant has not explained how the fifteen photographs created an

undue prejudice by their volume nor shown how they were duplicative of guilt–

innocence testimony; instead, he conclusorily asserts that the photographs are excessively
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voluminous without applying the law to the facts. He thus has failed to adequately brief

the argument. Tex. R. App. P. 38.1(i).

Point of error thirty-two is overruled.

VIII.B. Photographs of Appellant

In point of error thirty-three Appellant asserts that the trial court erred to admit

State’s Exhibits 176 and 178, photographs of him which he contends are prejudicial. The

two images are from Appellant’s cell phone. State’s Exhibit 176 shows his face and

various chest tattoos. State’s Exhibit 178 is a close-up of Appellant grimacing.

Trial counsel objected to State’s Exhibit 178 on the grounds that it had no

probative value and that anything depicted in it was prejudicial. Trial counsel also

asserted that State’s Exhibit 176 was “duplicitous” because it could accomplish the same

goal as State’s Exhibit 178 by “bring[ing] forth a depiction of [Appellant] with a . . .

grimace upon his face.” The trial court overruled the objection.

Appellant now contends that the exhibits at issue were inadmissible under Rule

403 because their probative value was substantially outweighed by the risk of unfair

prejudice or because they were needlessly cumulative. See Tex. R. Evid. 403. He

sets forth, without citation to any authority, a list of factors that he says a court may

consider in determining whether a photograph’s probative value is substantially

outweighed by the danger of unfair prejudice. He does not apply any of these factors to

his case. Instead, he concludes that the probative value of the photographs was
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outweighed by their prejudicial effect or the needless presentation of cumulative

evidence, and thus the trial court abused its discretion in admitting the photographs.

The point is inadequately briefed. See Tex. R. App. P. 38.1(i); Wolfe, 509 S.W.3d

at 342–43.

Point of error thirty-three is overruled.

IX. Punishment Charge

In point of error thirty-six Appellant asserts approximately thirty-three challenges

to the trial court’s punishment charge. He acknowledges that our precedents foreclose his

requested instructions and objections to the trial court’s punishment charge but states that

he seeks to preserve the issues for potential federal review. He also asks us to reconsider

our precedents, but provides no argument for doing so.

The point of error is multifarious and inadequately briefed. See Davis, 329

S.W.3d at 803; Tex. R. App. P. 38.1(i). We see no reason to reconsider our precedents.

Point of error thirty-six is overruled.

X. Constitutional Challenges to Article 37.071

In points of error thirty-nine through forty-six, Appellant raises various

constitutional challenges to Article 37.071. Citing Saldano v. State, 232 S.W.3d 77 (Tex.

Crim. App. 2007), Appellant acknowledges that we have previously considered and

rejected each of the arguments that he raises. He explains that he submits the points of

error to preserve them for federal review and to invite us to review our prior decisions.
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Appellant is correct that we have previously rejected the arguments he asserts in

points of error thirty-nine through forty-six. See, e.g., Coble, 330 S.W.3d at 296–98. He

does not persuade us to revisit our holdings.

Points of error thirty-nine through forty-six are overruled.

We affirm the trial court’s judgment and sentence of death.

Delivered: April 14, 2021

Do not publish

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4678411. Public record. Not legal advice.