Delacerda, Jason

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-77,078

JASON DELACERDA, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL FROM CAUSE NO. 21284

IN THE 356th DISTRICT COURT

HARDIN COUNTY

YEARY, J., delivered the opinion for a unanimous Court.

OPINION

A jury convicted Appellant of capital murder for the 2011 killing of B.L., a four-

year-old child. See TEX. PENAL CODE § 19.03(a)(8). Based on the jury’s answers to the

special issues presented in the punishment phase of his trial, the trial court sentenced

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

1

Unless otherwise indicated, all references to “Articles” refer to the Texas Code of

Criminal Procedure.

Delacerda – 2

Art. 37.071, § 2(h). Appellant raises thirty-four points of error. After reviewing Appellant’s

points of error, we find each of them to be without merit. Consequently, we affirm the trial

court’s judgment and sentence of death.

I. STATEMENT OF FACTS

A. Guilt Phase Evidence

In late 2010, B.L. lived with her grandmother, Wanda Bailey; her aunt, Samantha

Bailey; and other family members. Wanda and Samantha took care of B.L. and had been

involved in B.L.’s care since her birth. B.L. was a normal, healthy child who never had any

serious injuries or illnesses. B.L.’s mother, Amanda Guidry, 2 lived in the Bailey home “off

and on.” Guidry began dating Appellant around December 2010. Shortly thereafter, Guidry

moved in with Appellant. Around May 2011, Guidry took B.L. to live with her and

Appellant in his trailer.

After Guidry took B.L., Wanda and Samantha “stopped getting to see [her]” and

they became concerned. In June 2011, Samantha visited her brother who lived across the

street from Appellant. Samantha knocked on the doors and windows of Appellant’s trailer,

but no one answered. Guidry eventually allowed Samantha inside Appellant’s home.

When Samantha entered the poorly lit trailer, she saw B.L. lying “on the recliner

with a bag of ice on her head.” Samantha saw that B.L.’s “head was really swollen and

black and purple and her eyes were like little slits.” B.L. had also suffered a broken leg.

Samantha held B.L. with the bag of ice on her head for twenty to thirty minutes. B.L. would

not stop crying. Appellant told B.L., “[I]f you don’t stop whining, don’t think you can’t be

2

Guidry is Wanda’s daughter and Samantha’s sister.

Delacerda – 3

punished because your aunt is here.” Guidry assured Samantha that B.L. was “okay.”

Guidry said that B.L. had “slipped” on the cast of her broken leg and that “that’s why her

head was swollen.”

A week or two later, Samantha returned to check on B.L. This time Samantha

brought her father, her boyfriend, and Wanda. When they knocked on the door, Guidry and

Appellant “took awhile to answer.” When they entered the trailer, they found B.L. wrapped

in covers in a back bedroom. Her head was the only visible part of her and “[i]t was still

really swollen and black and purple looking.” Wanda and Samantha visited B.L. once more

before her death. On this final visit, B.L. seemed to be doing a “little better.” She was

“excited and talking about going to school.”

On August 17, 2011, the Hardin County Sheriff’s Office received a 9-1-1 call from

a female caller at Appellant’s residence. At the beginning of the recording, a male voice

exclaimed something unintelligible followed by, “God damn it!” The caller sounded

anxious and was sobbing. She said her four-year-old daughter was not breathing. The male

voice in the background said, “She had a broke leg and a head injury at one time. She’s

been getting better. She’s had like a seizure or something -- she’s not breathing.”

At 10:27 p.m. on August 17, paramedic Cassandra Walters was dispatched to

Appellant’s trailer in response to the 9-1-1 call. Guidry flagged her down. As Walters

entered the trailer, she saw a small girl wearing only underwear lying on a floor wet with

water and ice cubes. Walters said it looked “[l]ike someone had spilled a drink.” Appellant

was performing cardio-pulmonary resuscitation (CPR) on B.L. as the dispatcher instructed

him over the phone. B.L. was not breathing and had no pulse. Walters observed that the

Delacerda – 4

child had suffered multiple burns and bruising to her legs and face. 3 She was cold and pale

and her lips were blue (“cyanotic”). Walters administered medications to try to start B.L.’s

heart and attempted to revive her using a defibrillator, without success. Other paramedics

arrived, and they transported B.L. to the hospital.

Dr. Charles Owen treated B.L. in the emergency room at the hospital that night. B.L.

was “clothed only in filthy underwear.” Owen said that “the general state of her body

indicated multiple quite substantial injuries and trauma and wounds that were clearly

sustained over a long period of time.” He spent about twenty minutes trying to get B.L.’s

heart beating, but she had “no meaningful neurologic function.” B.L. was, “for all intents

and purposes, dead when she came in and remained so.”

In treating B.L., Owen observed numerous injuries to the child’s body, including:

• Bruising, contusions, and injuries to her head “reflective of blunt force trauma”;

• A wound above her left cheek that appeared to be a burn or caused by some type of

“gouging or cutting”;

• A wound over her left breast that appeared to be a healing cigarette burn which,

Owen noted, was “a classic type of injury to a child”;

• Another healing cigarette burn and multiple puncture wounds on her hand;

• “[I]njuries to the bottom of the feet, a pattern that . . . indicated that she had been

walking on or scarred by bottle caps of some sort -- some rounded, pointed object”;

• “[L]arge areas of what appeared to be healing burns on the top of one foot and . . .

one of her thighs”;

• “[M]ultiple rib fractures in various stages of healing”; 4

3

According to B.L.’s medical records, her cast had been removed on July 25, 2011.

4

A radiological report in evidence documents rib fractures in twelve locations.

Delacerda – 5

• “[A] spiral fracture of the tibia[,]” which Owen described as “indicat[ing] high risk

for non[-]accidental injury”; and

• “[S]unken eyes, dark discoloration around the eyes, just indicative of . . . issues of

nutrition and hygiene and general care.”

The prosecutor asked Owen whether, “[c]onsidering all of these injuries that we

have gone over so far, would you state that these are accidental injuries, or would you state

it’s intentional?” Owen responded:

Given the full context of all the information I had available to me, including

her examination and subsequent discussions with the adults responsible for

her care, it’s unequivocal that this child was seriously abused over a long

period of time; and these injuries are reflective of that abuse.

Owen—an emergency room physician who had treated close to 150,000 patients in his

thirty-eight year career—said the abuse B.L. suffered was “[h]ead and shoulders above

anything else I have ever seen in my entire career.” He said she was “subjected to a long

repeated and obscene level of physical abuse. It was outside of my experience. It remains

outside of my experience.”

Dr. Tommy J. Brown later performed B.L.’s autopsy. He noted that B.L. was four

years old and weighed only thirty-two pounds. She had suffered hemorrhaging “at the back

part of the head, the occipital-parietal area, the left temporal area, [and] the left frontal

area.” Her head injuries involved “a large amount of granulation tissue,” which Brown

described as “healing tissue from older injuries or within the last 24 hours to four or five

days.” B.L.’s forehead had six puncture wounds, one of which pierced her skull and entered

her brain cavity. She had hemorrhages beneath both eyes and one on her cheek. Brown also

documented a large bruise to B.L.’s rib cage, multiple older rib fractures, a recent rib

fracture, a large ulceration on her right thigh, cigarette burns, and a large burn on the top

Delacerda – 6

of her right foot. He said that the bruise on B.L.’s chest could not have been caused by

CPR-related chest compressions. The bottoms of her feet contained circular injuries about

one inch in diameter. Brown noted an injury on the back of B.L.’s left shoulder which

looked like someone had sucked on B.L.’s skin “like a hickey.” In addition, Brown

documented contusions on B.L.’s lips, missing skin on her nose, and other injuries to her

face. Like Owen, Brown noted B.L.’s spiral leg fracture, which is usually “caused by

twisting of the foot or the leg.”

Brown concluded that B.L.’s cause of death was “a non-accidental injury with blunt

force trauma to the head.” When asked how he determined that the fatal injury was non-

accidental, Brown responded, “All the signs I [saw] leading up to the cause of death [were]

like the baby had been tortured or abused for a long period of time.”

Captain Gary Spears and Sergeant Mark Minton of the Hardin County Sheriff’s

Office were dispatched to the hospital in the early morning hours of August 18, 2011. They

examined B.L.’s body and noted her numerous injuries. They then interviewed Appellant

and Guidry separately. 5 Spears used a pocket audio recorder to record Appellant’s

interview. 6 Appellant said that B.L. “had a trembling incident about a month and a half to

two months ago.” He explained that, at that time, they were outside on the trampoline, and

B.L. “was acting bad -- as usual like she does” and “she ended up bouncing off the

trampoline and landing on the ground. Broke her leg. Hit her head.”

5

Guidry did not testify at trial, and her recorded statements were not admitted into

evidence.

6

This Court received Appellant’s recorded statements in audio and/or audiovisual format

only.

Delacerda – 7

Appellant said they took B.L. to the hospital and the doctor told them that they

“could expect swelling” and that there was “probably a slight concussion.” Appellant said

that he and Guidry “kept ice on it -- kept icing it down.” He said that they watched B.L.

“[p]retty much at all times.” B.L.’s head “got better” but “probably about a week and a

half, two weeks ago,” her head “swole right back up.” Appellant said they mentioned the

swelling to the doctor when they took B.L. to get her cast removed, and the doctor told

them that the swelling was normal. They continued to apply ice to B.L.’s head and bathe

her in cold water, although they switched to warm baths when she started “acting funny.”

Appellant said that, at around 5:30 p.m. on August 17, he and Guidry were giving

B.L. a warm bath when she started “acting funny again”:

[B.L.] was like, “no, no, no, no, no” . . . “Mm, mm, mm, mm.” So we thought

she was messing with us. . . . Sometimes she’d be stubborn like that. . . . She

started leaning back and like trying to put her head in the water. . . . So I told

her to stop. . . . [Guidry] grabbed her and got her out of the bathtub. . . . After

it was all over with, she was acting fine. We had asked her, “was that all just

to get out of the damn bathtub?” And she was like, “yes.” . . . So we looked

at each other and we were like, “Damn.”

Appellant told the officers that B.L. seemed fine from about 8:00 p.m. until around

10:00 p.m. when Guidry left for work, although she was “still kind of sluggish.” Shortly

after Guidry left, “all of the sudden [B.L.] balled her fists up” and started “to come up in

the air with them.” He said B.L. was making sounds again like, “nah, nah, nah, nah, nah.”

He called Guidry and told her, “She is doing it again. I don’t know what the fuck is going

on. Get here now.” He said he did not call 9-1-1 before Guidry got home because B.L. was

still breathing and making sounds. He said that when Guidry got home, he picked up B.L.,

who was “still slightly breathing” and said, “We gotta go.” But Guidry told him to call 9-

1-1, and he complied.

Delacerda – 8

The officers asked Appellant about B.L.’s other injuries:

[Officer]: . . . [N]ow I’m gonna be blunt with you, alright? This child has

got bruises from head to toe. She’s got marks from head to toe,

okay?

[Appellant]: The ones on her ass, I can say where they came from.

[Officer]: Where did they come from?

[Appellant]: Those came from me and [Guidry] -- about four days ago, five

days ago, something like that -- paddling her. She woke up in

the morning. She had been bad that morning. [Guidry] paddled

her first.

[Officer]: What did you paddle her with?

[Appellant]: A paddle. Just, just a regular wood paddle.

[Officer]: How thick of a wood paddle?

[Appellant]: Uh, probably about a half an inch. I made it in wood shop when

I was young.

The officers asked Appellant how B.L. received the burns on her leg. He replied

that he accidentally spilled coffee on B.L. when she “staggered and hit” his recliner. The

officers asked Appellant what caused the bruise in the middle of B.L.’s head. He replied,

“That’s from her head being swole like an egg, and also me and [Guidry] were trying to

release the fluid out of it and we had popped it a couple of times -- a little pus[.]” When

asked how B.L.’s ribs were broken, Appellant said, “I have no idea. We thought they were

broken when we first went in with the broken leg. And we told him that her side was

hurting. . . . He asked her how does it feel and she said, ‘[I]t’s okay.’”

When asked why they did not take B.L. to the hospital for her injuries after the

broken leg, Appellant said that they talked about it but that Guidry “was afraid they would

take her daughter for the spanking on the butt.” The officers asked, “And all that time you

Delacerda – 9

[had] lived with the mother and the daughter?” Appellant answered, “Yes, Sir.” When

asked who “normally disciplined [B.L.],” Appellant answered, “We both did.”

At the end of the hospital interview, Appellant signed a written consent form

allowing the officers to search his residence. They also obtained a search warrant. When

searching Appellant’s trailer, investigators found cigarettes, a paddle, a push pin, bottle

caps, and a battery powered device for shocking a person.

Minton began to gather timecards and similar documentation to determine Guidry’s

working hours during the period preceding B.L.’s death. The records showed that she

worked full-time overnight shifts from around 10:00 p.m. until around 6:00 a.m. on the

nights of August 13-16, 2011. On August 17, 2011, Guidry reported for work at 9:53 p.m.

and clocked out at 10:16 p.m. (approximately eleven minutes before Walters was

dispatched).

Later, Appellant voluntarily came to the police station to make another statement.

Minton and Spears conducted a videotaped interview. They began by reading Appellant

the Miranda warnings. 7 Appellant indicated that he understood the warnings. In this

interview, Appellant repeated many of the statements he made in the hospital interview.

However, he added some new information:

• When B.L.’s head began swelling and “getting tight,” Appellant and Guidry

wrapped a “tourniquet” around her head. They joked about how B.L. looked in the

tourniquet and took a photo of it. When she complained that the tourniquet hurt,

they removed it.

• Around the time the doctors removed B.L.’s cast, B.L.’s “leg just shrunk.”

Appellant and Guidry joked about the shrunken leg, saying that it looked like B.L.

was doing a dance when she walked.

7

See Miranda v. Arizona, 384 U.S. 436, 479 (1966).

Delacerda – 10

• When Appellant’s coffee burned B.L.’s leg, she “jumped off the sofa screaming.”

The spilled coffee did not burn Appellant.

• When B.L.’s head swelled up “like a balloon,” Appellant observed indentations,

soft spots, and “lumps” on her head. Also, B.L. was having seizures.

• Regarding discipline, Appellant said, “Normally, I would use my hand. I would slap

[B.L.] on her leg. I would slap her on her hand.”

• Appellant said that he also disciplined B.L. by making her “stand in the corner” and

that she “would stand there forever.”

• When Appellant decided that standing in the corner was not “working,” he and

Guidry removed “a bottle cap off a water bottle” and put the “bottle cap on the

ground.” They forced B.L. to “stand on the bottle cap.” He explained, “[T]hat would

start hurting her like about five or ten minutes afterwards. And we would tell her,

‘Do you want to stop? Do you want to get off? Yes? Well, then stop being bad.’”

• The day Appellant and Guidry paddled B.L., they struck her “about six times.” That

night, Appellant saw that her buttocks had “swelled up like a blister.”

• Appellant conceded that the paddling was intentional and “it was wrong.”

• When B.L.’s head swelled, they “popped” it with a “thumbtack” cleaned with

alcohol—not a “needle,” as Appellant had previously stated.

• When asked about the cigarette burn on B.L.’s chest, Appellant said he did not know

what happened but speculated that “one of us dropped a damn cherry on her.”

• When asked how B.L. could have suffered twelve broken ribs that were in different

stages of healing, Appellant said that sometimes they would pick up B.L. and “she

would pop.” He said he had suspected that she had a broken rib.

• Appellant said he had noticed that B.L.’s stomach was swollen and distended, and

her hair was falling out, as was Guidry’s hair. He said he had joked about this,

saying, “Y’all are shedding.” He disagreed with the doctor’s statement that B.L. was

“very malnourished.”

• Appellant agreed with each of the following statements: “The butt, you did”; “The

bottoms of the feet, you did”; and “The pin holes in the forehead, you did.”

• Appellant conceded that, despite B.L.’s severe head swelling, suspected broken rib,

burns, and other injuries, they did not take her to the hospital except to treat her

broken leg. He emphasized Guidry’s fear that Child Protective Services (CPS)

would take B.L. away from her.

Delacerda – 11

At the end of the interview, the officers arrested Appellant.

Subsequently, Sergeants Jerry Roberts and Billy Malone, also from the Sheriff’s

Office, conducted a third interview. They read the Miranda warnings to the handcuffed

Appellant. Roberts had attended the autopsy and spoken with Appellant’s sons, J.G.D. and

D.D. 8 He told Appellant that J.G.D. and D.D. had independently stated that Appellant

would force B.L. to stand on bottle caps and would burn her with cigarettes if she stepped

off the bottle caps. Appellant responded, “Bullshit.” But he eventually conceded, “Having

[B.L.] stand on bottle caps was my idea after she stood there for a long time in the corner

and it wasn’t working.” He also admitted, “We fucked up with her ass.”

Forensic scientist, Angelina Temple, analyzed DNA derived from B.L.’s fingernail

scrapings. She testified that the DNA profiles from both of B.L.’s hands indicated a mixture

of two individuals (B.L. was an assumed contributor). Temple said B.L.’s mother, Guidry,

and Appellant’s sons were “excluded as contributors to the profile[s]” obtained from both

hands. For the profile from B.L.’s left-hand scrapings, Temple found that it was “140

million times more likely that the DNA came from [B.L.] and [Appellant] than . . . from

[B.L.] and an unrelated, unknown individual.” She concluded, “Based on the likelihood

ratio results, [Appellant] cannot be excluded as a possible contributor to the profile.” 9

8

The record reflects that J.G.D. was eighteen years old at the time of the trial and twelve

at the time of the offense. D.D. was sixteen at the time of the trial and ten at the time of the offense.

9

Temple said it was “inconclusive” whether Appellant could be a contributor to the DNA

profile obtained from B.L.’s right-hand scrapings.

Delacerda – 12

Defense counsel called no witnesses and offered no testimony. The jury charge

authorized the jury to convict Appellant as a principal or a party to the offense. 10 The jury

found Appellant guilty of the capital murder of a child under six as alleged in the

indictment. 11

B. Punishment Phase Evidence

At the punishment phase of trial, the State’s board-certified forensic psychiatrist,

Lisa Douget, M.D., 12 testified that she interviewed Appellant in early 2013. She also

considered Appellant’s background, history, and medical records in assessing his risk for

future dangerousness. She found his risk level for future violent behavior to be “moderate”

without the capital murder conviction. However, because the jury found Appellant guilty

of capital murder, Douget adjusted her assessment of Appellant’s risk for future violence

10

The jury charge provided:

“PARTY TO AN OFFENSE” - A person is criminally responsible as a party to an offense

if the offense is committed by his own conduct, by the conduct of another for which he is criminally

responsible, or both. Each party to an offense may be charged with the commission of the offense.

All traditional distinctions between accomplices and principals are abolished by this section, and

each party to an offense may be charged and convicted without alleging that he acted as a principal

or accomplice.

“CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER” - A person is

criminally responsible for an offense committed by the conduct of another if: acting with intent to

promote or assist the commission of the offense, he solicits, encourages, directs, aids or attempts

to aid the other person to commit the offense; or, having a legal duty to prevent commission of the

offense and acting with intent to promote or assist in its commission, he fails to make a reasonable

effort to prevent commission of the offense.

11

The current version of Texas Penal Code § 19.03(a)(8) makes it a capital felony to

murder “an individual under 10 years of age,” but at the time of the instant offense, the statute

applied to “an individual under six years of age.” See Act of June 17, 2005, 79th Leg., ch. 428,

2005 Tex. Gen. Laws 428 (amended 2011) (current version at TEX. PENAL CODE § 19.03(a)(8)).

12

The record contains varying spellings and first names for this witness. We will use the

witness’s own spelling of her name for the court reporter.

Delacerda – 13

to “moderate to high.” Douget conceded that she did not review Appellant’s jail records

from the last six-and-a-half years, 13 and that she had not interviewed Appellant in the last

five years.

Douget’s risk assessment report (State’s Exhibit 74A) indicated that Appellant

received inpatient hospitalization at Fannin Pavilion in 1994 (at age seventeen) and 1996

(at age eighteen). He was diagnosed with “Bipolar affective disorder, mixed type, Attention

deficit hyperactive disorder, Cannabis Dependence, Chronic,” and “Anti-social personality

disorder.” The 1996 hospitalization records indicated that Appellant:

• Had threatened to kill his parents and engaged “in physical fights with them”;

• Had “stole[n] his parents’ property and sold it to support his drug habit”;

• Was “manipulative, demanding, non-compliant, uncooperative, and abrupt with the

staff and some of the other patients”; and

• “[W]as judged not dangerous to himself or others.”

The report noted that Appellant had received treatment in jail while awaiting trial and had

“demonstrated an improved mental state, which should remain manageable with continued

medication compliance.”

Amanda Henderson testified that, in 2001, she saw Appellant and her neighbor

yelling at each other. At one point, Appellant drove away, and then turned around and

drove back towards the neighbor at a “high rate of speed.” Henderson said that, if her

neighbor had not moved, Appellant “probably would have run over him.” Appellant’s ex-

girlfriend, Jeri Shelburne, was riding in Appellant’s Bronco at the time. Jeri testified that

13

The record indicates that Appellant was jailed from the time of his arrest in August 2011

until his trial in February 2018.

Delacerda – 14

Appellant tried to “[r]un over a guy” due to a “drug deal gone bad.” He “did a big U-turn

in the trailer park[,]” and drove at high speed toward the man. He “hit a culvert and flipped

the Bronco,” which “busted all the windows” and trapped Jeri inside the vehicle. The man

Appellant had tried to run over helped her escape from the Bronco.

Jeri’s husband, Joys Shelburne, testified about a separate assault. Joys pulled into a

parking lot with his newborn daughter riding in a car seat next to him. Appellant

approached the car and punched Joys through his open car window.

The State offered documentation of Appellant’s criminal history, which included

misdemeanor marijuana possession, Class B misdemeanor theft, criminal trespass, and

theft by check. The State offered no evidence of prior convictions for felonies or crimes of

violence.

Appellant’s son, J.G.D., testified that he and his brother D.D. periodically stayed

with Appellant, Guidry, and B.L. During these visits, J.G.D. witnessed Appellant abuse

B.L. “[a]ll the time.” J.G.D. said Appellant would punch B.L. with his fists “in her head

and just everywhere; in her stomach, in her chest.” B.L.’s head and “whole face” would

“swell up” with bruises and black eyes. And Appellant “poked [B.L.’s] head with

thumbtacks to try to drain the fluid from it being swollen.” Sometimes, when Appellant

punched B.L., “[s]he would be knocked out, and she would start shaking.” He said that

Appellant also choked B.L. “[w]ith his hands around her neck” until she lost consciousness.

J.G.D. further testified that Appellant would make B.L. “stand on the bottle caps for

-- all night long, and he would make her sit in bathtubs full of ice for hours.” When B.L.

tried to step off of the bottle caps, Appellant “would act like he was going to burn her” with

Delacerda – 15

a cigarette. While forcing B.L. to stand on the bottle caps, Appellant would also “poke her

fingertips and toes with thumbtacks.”

J.G.D. said Appellant would put B.L.’s panties in her mouth and make her lick the

panties. Once, when J.G.D. and D.D. were riding in the car with Appellant, Appellant

“reached back and twisted [B.L.’s] foot like -- looked like almost all the way around.”

J.G.D. said Appellant routinely kicked B.L. with his feet or his boots. Appellant also

spanked B.L. with a wooden paddle “[a]s hard as he could,” leaving her buttocks bruised

and bleeding. The prosecutor asked, “How would [Appellant] act while these things were

going on? Did he say anything, did he -- I mean, what was his demeanor?” J.G.D. answered,

“He just acted like it was normal to do that to a four-year-old.”

J.G.D. testified that he witnessed this sort of abuse every time he and D.D. went to

Appellant’s house. At first, B.L. would cry, but eventually she “got used to it” and

“[s]topped crying.” None of the abuse occurred when Guidry was present, though J.G.D.

told her about it. J.G.D. said Appellant told B.L. that “she better not tell her mom or he

would do something worse.”

The defense’s final witness was Dr. Edward Gripon, a psychiatrist. Gripon opined

that there is no test that can reliably assess future dangerousness, and “past behavior” is

“the best indicator of future behavior, particularly if there is a history of escalating past

behavior.” Gripon reviewed Appellant’s jail records, recorded interviews, jail calls, and

visits. He focused on how Appellant has “functioned and how will he function in an

incarcerated setting, because that’s the only option left.” Gripon stated that Appellant’s jail

records were “pretty benign” and demonstrated that Appellant “has been able to conduct

Delacerda – 16

himself [in] a reasonable manner . . . without any repeated acts of violence.” Gripon

concluded, “It appears as though in a prison setting . . . his risk for future violence is low.”

On cross-examination, Gripon agreed that Appellant had a “temper” and his jail

calls with his mother included “a lot of hollering and screaming.” Appellant’s jailers had

to “intervene and tell him to cool off.” Gripon agreed that Appellant had a list of grievances

against his parents, and he blamed his parents for “this situation even now.”

II. SUFFICIENCY OF THE EVIDENCE

In his first point of error, Appellant argues that the evidence is legally insufficient

to support his conviction for capital murder as a principal or as a party. He contends that

the evidence does not show that he personally struck the fatal blow or inflicted “long-term

torture.” He notes that Guidry was also with B.L. in the days before her death and

emphasizes that he was performing CPR on B.L. when paramedics arrived.

A. Relevant Law

When determining whether the evidence is legally sufficient to support a conviction,

we assess all the evidence in the light most favorable to the verdict to determine whether

any rational trier of fact could find the essential elements of the crime beyond a reasonable

doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).

This standard accounts for the factfinder’s duty “to resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts.” . . . Our review of “all of the evidence” includes

evidence that was properly and improperly admitted. When the record

supports conflicting inferences, we presume that the factfinder resolved the

conflicts in favor of the prosecution and therefore defer to that determination.

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (internal citations omitted).

Delacerda – 17

“Circumstantial evidence is as probative as direct evidence in establishing the guilt

of an actor, and circumstantial evidence alone can be sufficient to establish guilt.” Id.; see

also Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Intent may “be inferred

from the extent of the injuries and the relative size and strength” of the assailant and the

victim. Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995); see also Lindsey v.

State, 501 S.W.2d 647, 648 (Tex. Crim. App. 1973) (“In considering whether or not an

assault was committed with the intent to murder, this Court must take into account the

extent of the injuries and the relative size and strength of the parties.”).

We measure the evidence by the elements of the offense as defined by the

hypothetically correct jury charge. Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim.

App. 2018) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). To prove

that Appellant was guilty of capital murder, the State had to prove that he intentionally or

knowingly caused the death of an individual under six years of age. TEX. PENAL CODE §§

19.02(b)(1), 19.03(a)(8).

“Party liability is as much an element of an offense as the enumerated elements

prescribed in a statute that defines a particular crime.” Metcalf v. State, 597 S.W.3d 847,

856 (Tex. Crim. App. 2020) (quoting In re State ex rel. Weeks, 391 S.W.3d 117, 124 (Tex.

Crim. App. 2013) (orig. proceeding)); see also Malik, 953 S.W.2d at 239. Under the law

of parties, a “person is criminally responsible as a party to an offense if the offense is

committed by his own conduct, by the conduct of another for which he is criminally

responsible, or by both.” TEX. PENAL CODE § 7.01(a).

A person is criminally responsible for an offense committed by the

conduct of another if . . . acting with intent to promote or assist the

Delacerda – 18

commission of the offense, he solicits, encourages, directs, aids, or attempts

to aid the other person to commit the offense[.]

Id. § 7.02(a)(2). In performing a legal sufficiency analysis in a law of parties case, “we

should look at events occurring before, during and after the commission of the offense and

may rely on actions of the defendant which show an understanding and common design to

do the prohibited act.” Padilla v. State, 326 S.W.3d 195, 201 (Tex. Crim. App. 2010)

(citing Hooper, 214 S.W.3d at 13).

B. Analysis

The evidence before the jury revealed that the four-year-old victim, B.L., endured

horrific abuse for weeks culminating in her death. From her condition at the time of her

death, doctors determined that B.L. had recently suffered:

• Multiple broken ribs;

• A spiral leg fracture;

• Cigarette burns and other more serious burns;

• Bottle-cap-shaped wounds to the bottoms of her feet;

• Numerous contusions and other injuries, including an apparent “hickey” on the back

of her shoulder;

• Malnutrition and neglect;

• Puncture holes due to stabbing with something like a thumbtack, one of which

pierced B.L.’s skull; and

• Extensive blunt-force head trauma which ultimately caused her death.

Based on his examination of B.L.’s body, medical examiner Brown testified that the

cause of her death was “a non-accidental injury with blunt force trauma to the head.” He

determined that B.L. “had been tortured or abused for a long period of time.” Owen, an

Delacerda – 19

emergency room physician with thirty-eight years of experience, said B.L. was “subjected

to a long repeated and obscene level of physical abuse” that was “[h]ead and shoulders

above anything else I have ever seen in my entire career.”

B.L. lived in Appellant’s home at the time of her death and during the three or four

months preceding her death. She was in good health with no significant injuries when

Guidry took her to live with Appellant. Guidry and Appellant prevented other family

members, including Samantha and Wanda, from seeing B.L. for some time. Later, family

members who visited B.L. found her face bruised and swollen. During one of these visits,

Appellant threatened B.L.: “[D]on’t think you can’t be punished because your aunt is here.”

Appellant’s recorded statements revealed that he and Guidry shared in supervising,

bathing, and disciplining B.L., and he was left alone with the child when Guidry went to

work. Appellant admitted that he and Guidry had recently beaten B.L. so severely with a

wooden paddle that her skin formed blisters, which still disfigured her buttocks at the time

of her death. Appellant genially informed the officers that, as B.L. struggled to walk on her

shrunken leg and wore the tourniquet he and Guidry fashioned for her swollen head, they

joked about her appearance. Further, Appellant conceded that forcing B.L. to stand on

bottle caps—which left circular wounds on her feet—was his idea.

Appellant offered an implausible account of how his spilled coffee caused severe

burns on B.L.’s leg and foot while his own legs remained unscathed. He also admitted that

he poked B.L.’s head repeatedly with a thumbtack in a misguided attempt to stop the

swelling. Appellant’s only explanation for the couple’s failure to take B.L. to a hospital

was Guidry’s alleged fear that CPS would take the child away from her. See Guevara v.

State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (“Attempts to conceal incriminating

Delacerda – 20

evidence, inconsistent statements, and implausible explanations to the police are probative

of wrongful conduct and are also circumstances of guilt.”).

Brown testified that B.L.’s head trauma included “granulation tissue” indicating

injuries inflicted “within the last 24 hours to four or five days.” We see no evidence that

anyone other than Appellant and Guidry had care and custody of B.L. during the twenty-

four hours to five days preceding her death on August 17, 2011. And Guidry’s employment

records show that she worked overnight shifts on August 13-16, suggesting that Appellant

was B.L.’s only caregiver for several hours on those days.

On the night of B.L.’s death, Guidry clocked in at 9:53 p.m., then clocked out at

10:16 p.m. Appellant told police he called Guidry at work and told her, “Get here now.”

He said that, after she got home five to ten minutes later, he called 9-1-1. He said B.L. was

still breathing at that time. However, the jury heard the 9-1-1 call recording in which the

caller was a distraught woman who said her four-year-old daughter was not breathing. And

when Walters arrived only a few minutes later, she found that B.L. had no pulse or

respiration and was cold and cyanotic. 14 Appellant told police that they were no longer

soaking B.L. in cold baths, but Walters noticed that the floor around B.L. was wet with ice

cubes and water. See Guevara, 152 S.W.3d at 50.

14

Regarding Appellant’s argument that he could not have intended to kill B.L. because he

was administering CPR when first responders arrived, we defer to the jury’s responsibility to weigh

the evidence and resolve conflicts in the evidence. See Clayton, 235 S.W.3d at 778. Further, we

note that a rational juror could infer that a person who has intentionally or knowingly fatally injured

a child in his care might seek to deflect suspicion by making visible efforts to revive the child.

Delacerda – 21

Finally, forensic scientist Temple testified that the DNA profile obtained from

B.L.’s left-hand fingernail scrapings was “140 million times more likely” to come from

B.L. and Appellant than from B.L. and “an unrelated, unknown individual.” At the same

time, Appellant’s teenage sons and Guidry were “excluded as contributors” to the DNA

profiles obtained from B.L.’s fingernail scrapings from both hands.

Viewing the evidence in the light most favorable to the verdict, a rational juror could

have deduced that Appellant intentionally or knowingly caused four-year-old B.L.’s death.

Cf. Lindsey, 501 S.W.2d at 648. Further, the record before us contains ample evidence that

Appellant—at a minimum—encouraged, directed, and aided in the offense with the intent

to promote or assist in its commission. See TEX. PENAL CODE §§ 7.01, 7.02. In sum, a

rational trier of fact could have found beyond a reasonable doubt that Appellant committed

the essential elements of capital murder of a child under six. Appellant’s first point of error

is overruled.

III. EXTRANEOUS BAD ACTS AND OFFENSES 15

In his second point of error, Appellant argues that, at the guilt-innocence phase,

“[t]he trial court erred in admitting evidence of extraneous bad acts and offenses, the

cumulative effect of which was to cause the jury to convict Appellant on extraneous matters

not alleged in the indictment.” In his third through fifteenth points of error, Appellant

contends that the trial court erred in admitting evidence of various bad acts, injuries, and

offenses introduced through: testimony from Owen, Brown, Spears, Minton, Walters, and

Samantha Bailey; Appellant’s own recorded statements; and photographs, medical records,

15

Appellant briefs his second through fifteenth points of error together and we will address

them together.

Delacerda – 22

and other evidence. Appellant notes that the indictment alleged that he intentionally and

knowingly caused B.L.’s death, and the State’s evidence showed her cause of death was

blunt force trauma to the head. He complains that—based on the State’s theory that he

“tortured the decedent to death”—the trial court allowed the State to try him for

“extraneous matters” beyond the indicted offense, i.e., abusive acts that did not cause

B.L.’s death. He specifically lists the following bad acts:

• Forcing B.L. to stand on bottle caps, wounding and scarring her feet;

• Burning B.L.’s foot and thigh;

• Causing B.L. to have poor nutrition, hygiene, and general care;

• Causing blunt force trauma, bruises, and contusions to B.L.’s head;

• Causing long-term abuse to B.L., as evidenced by B.L.’s healing injuries;

• Causing puncture wounds to B.L.’s skull with a thumbtack;

• Burning B.L., including with cigarettes, on her body and extremities;

• Causing a spiral fracture to B.L.’s leg, “a known high-risk” for non-accidental

injury;

• Breaking B.L.’s ribs, resulting in rib fractures in various stages of healing;

• Bruising B.L.’s face and body;

• Bruising B.L.’s shoulder by sucking on her skin;

• Paddling B.L.; and

• Torturing and abusing B.L. over a long period of time.

Appellant acknowledges the Texas statute that allows both parties in murder cases

to offer testimony of “relevant facts and circumstances surrounding the killing and the

previous relationship existing between the accused and the deceased.” See Art. 38.36(a).

Delacerda – 23

However, he argues, such evidence must still be admissible under Texas Rules of Evidence

403 and 404(b). 16 See State v. Smith, 5 S.W.3d 673, 679 (Tex. Crim. App. 1999) (holding

evidence admissible under Article 38.36(a) may still be excluded under Rule 403 or Rule

404(b)). Appellant posits that the admission of this non-fatal injury evidence caused him

significant harm, contributed to his conviction, and constituted reversible error.

A. Background

Through pretrial motions, defense counsel sought to exclude testimony and physical

evidence regarding B.L.’s non-fatal injuries. In the motions and in argument, Appellant

relied on Rules 401, 402, 403, and 404(b), Robbins v. State, 17 and constitutional grounds.

Defense counsel explained: “[W]hen we are talking about extraneous offense evidence, we

are talking about anything outside of the window of the time of [B.L.’s] death, going back

24 to 48 hours.” After the trial court denied one of Appellant’s motions, counsel stated:

“[T]hen we feel like we can’t effectively represent him; and we would like the permission

of the Court to withdraw from the case.” The trial court denied the motion to withdraw.

Counsel asserted that—in reliance on Robbins—the defense strategy would be to

“not open the door to those 404(b) issues” by questioning witnesses. At trial, the court

overruled Appellant’s repeated objections based on a list of legal claims in “Trial Exhibit

2.” However, the court periodically gave the jurors a limiting instruction cautioning them

not to consider the complained-of evidence for “character conformity.”

16

Unless otherwise indicated, future references to “Rules” refer to the Texas Rules of

Evidence.

17

88 S.W.3d 256, 260 (Tex. Crim. App. 2002).

Delacerda – 24

Defense counsel cross-examined only one State’s witness, forensic scientist

Temple. Counsel asked Temple whether blood was found under B.L.’s fingernails (it was

not). He also asked her, “Based on your skills, training, and experience, people that are in

proximity with each other on a regular basis, would it be uncommon or common for them

to have each other’s DNA?” The witness responded, “It is possible, yes.”

In guilt-phase closing arguments, defense counsel challenged the State’s proof of

Appellant’s mens rea and connection to the offense. Counsel argued, “[T]hey have to prove

beyond a reasonable doubt [that] someone intentionally or knowingly caused this child’s

death. When did y’all hear that? When?” Counsel urged that there was “no evidence, not

even a little bit[,]” that Appellant was “aware that his conduct was reasonably certain to

cause death.” He maintained that Appellant was trying to save B.L., not kill her: “He is

doing CPR. He is calling 9-1-1. He is trying to save her life. He is not a party to anything.”

Counsel said, “[T]his is what [Appellant] admitted to[:] thumbtacks, paddling, standing on

bottle caps.” Counsel also pointed to Appellant’s statements to police claiming that some

of B.L.’s injuries were caused by a coffee spill and a trampoline fall, arguing, “Where is

the person to come in and say, ‘He didn’t do that by accident. He did that on purpose.’”

B. Standard of Review

We review a trial judge’s decision on the admissibility of evidence under an abuse

of discretion standard and will not reverse it if it is within the zone of reasonable

disagreement. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); see also

Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1991) (stating that, if the trial

court “operates within the boundaries of its discretion, an appellate court should not disturb

its decision, whatever it may be”). If the trial court’s evidentiary ruling is correct under any

Delacerda – 25

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). “Whether extraneous offense evidence has relevance apart from

character conformity, as required by Rule 404(b), is a question for the trial court.” De La

Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009) (citing Moses v. State, 105

S.W.3d 622, 627 (Tex. Crim. App. 2003)). We employ an abuse of discretion standard in

reviewing a trial court’s application of the balancing test set out in Rule 403, “although that

balance is always slanted toward admission, not exclusion, of otherwise relevant

evidence.” Id.

C. Relevance

Under the Texas Rules of Evidence, evidence must be relevant to be admissible. See

Rule 402. “Evidence is relevant if: (a) it has any tendency to make a fact more or less

probable than it would be without the evidence; and (b) the fact is of consequence in

determining the action.” Rule 401. Appellant avers that, “Only the facts that indicated

appellant intentionally and knowingly caused the injury that led to the death of B.L. were

relevant.” For the reasons set out below, we hold that the State’s evidence showing B.L.

suffered non-fatal injuries—and showing Appellant inflicted those non-fatal injuries—near

the time of B.L.’s death tended to make a fact of consequence more or less probable. See

Rules 401, 402.

D. Rule 404(b), Res Gestae, and Robbins

Appellant argues that the State’s use of the non-fatal abuse evidence violated Rule

404(b), which prohibits admitting evidence of specific crimes, wrongs, or acts “to prove a

person’s character in order to show that on a particular occasion the person acted in

Delacerda – 26

accordance with the character.” Rule 404(b)(1). But extraneous act evidence may be

admissible for other purposes, “such as proving motive, opportunity, intent, preparation,

plan, knowledge, identity, absence of mistake, or lack of accident.” Rule 404(b)(2).

Extraneous conduct evidence “that logically serves any of these purposes is ‘relevant’

beyond its tendency ‘to prove the character of a person to show that he acted in conformity

therewith.’” Montgomery, 810 S.W.2d at 387.

“Rule 404(b) is a rule of inclusion rather than exclusion” and the Rule 404(b)

exceptions are neither mutually exclusive nor exhaustive. De La Paz, 279 S.W.3d at 343

(citing United States v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000)). Rule 404(b) “excludes

only that evidence that is offered (or will be used) solely for the purpose of proving bad

character and hence conduct in conformity with that bad character.” Id. The proponent of

extraneous conduct evidence “need not ‘stuff’ a given set of facts into one of the laundry-

list exceptions set out in Rule 404(b).” Id. Yet the proponent “must be able to explain to

the trial court, and to the opponent, the logical and legal rationales that support its

admission on a basis other than ‘bad character’ or propensity.” Id. A “well-established

rationale” is “to rebut a defensive issue that negates one of the elements of the offense.”

Id. However, the “mere denial of commission of an offense generally does not open the

door to extraneous offenses.” Id.

In murder prosecutions, Article 38.36(a) permits a party “to offer testimony as to all

relevant facts and circumstances surrounding the killing and the previous relationship

existing between the accused and the deceased, together with all relevant facts and

circumstances going to show the condition of the mind of the accused at the time of the

offense.” Art. 38.36(a); see also Garcia v. State, 201 S.W.3d 695, 702 (Tex. Crim. App.

Delacerda – 27

2006). Evidence of the general nature of the relationship between the accused and the

victim “is clearly admissible under this Article.” Garcia, 201 S.W.3d at 702. “[I]n some

situations, prior acts of violence between the victim and the accused may be offered to

illustrate the nature of the relationship.” Id. To be admissible, “[t]hese specific acts of

violence must meet the requirements of the Rules of Evidence.” Id.; see also Smith, 5

S.W.3d at 677–79.

We first address Appellant’s complaints about non-fatal abuse evidence introduced

through the testimony of Walters, Spears, Minton, Brown, and Owen, and Appellant’s

recorded statements. Most of the complained-of evidence involved injuries found on B.L.’s

body at the time of her death, including bottle-cap shaped wounds on her feet, cigarette and

other burns, injuries from paddling, an apparent hickey, head trauma and associated

subdural hemorrhages, 18 granulation tissue from older head injuries, signs of poor hygiene

and symptoms of malnutrition, a spiral leg fracture, rib fractures, and puncture wounds.

These physical injuries visible on B.L.’s body were relevant circumstances uncovered

during the investigation of her death, and the record suggests that B.L. sustained these

injuries in May through August of 2011, while living with Appellant.

Brown and Owen acknowledged that the non-fatal injuries to B.L.—including the

cigarette burns and spiral leg fracture—showed a pattern of child abuse that culminated in

the severe head trauma that caused B.L.’s death. These doctors specifically considered

B.L.’s non-fatal injuries as contributing factors to their medical opinions that her death was

18

As the State observes in its brief, the “[e]vidence of bruising and contusions on B.L.’s

head is not evidence of extraneous injuries; rather, it is the essence of the offense with which

appellant was charged.”

Delacerda – 28

non-accidental. Brown explained that “[a]ll the signs I [saw] leading up to the cause of

death [were] like the baby had been tortured or abused for a long period of time.” Owen

offered a similar opinion: “Given the full context of all the information I had available to

me . . . it’s unequivocal that this child was seriously abused over a long period of time; and

these injuries are reflective of that abuse.”

Although not an enumerated exception in Rule 404(b), evidence of another crime,

wrong, or act also “may be admissible as same-transaction contextual evidence where

‘several crimes are intermixed, or blended with one another, or connected so that they form

an indivisible criminal transaction, and full proof by testimony . . . of any one of them

cannot be given without showing the others.’” Devoe v. State, 354 S.W.3d 457, 469 (Tex.

Crim. App. 2011) (citing Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000)). Same-

transaction contextual evidence “is admissible, not for the purpose of showing character

conformity, but to illuminate the nature of the crime alleged.” Santellan v. State, 939

S.W.2d 155, 168 (Tex. Crim. App. 1997) (citing Camacho v. State, 864 S.W.2d 524, 532

(Tex. Crim. App. 1993)).

Such evidence “is considered ‘res gestae,’ under the reasoning that events do not

occur in a vacuum, and the jury has a right to hear what occurred immediately prior to and

subsequent to the commission of that act so that it may realistically evaluate the evidence.”

Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). However, same-

transaction evidence is admissible “only when the offense would make little or no sense

without also bringing in that evidence; and it is admissible ‘only to the extent that it is

necessary to the jury’s understanding of the offense.’” Devoe, 354 S.W.3d at 469.

Delacerda – 29

The non-fatal injury testimony of the medical professionals and law enforcement

officers who examined B.L. on the day of her death (Walters, Spears, Minton, Brown, and

Owen) and the associated exhibits were interwoven with the charged offense. This

evidence was “so intertwined with the murder that the jury’s understanding of the offense

would have been obscured without it.” See Wyatt, 23 S.W.3d at 26. This evidence was

same-transaction contextual evidence and was admissible for a purpose other than

character conformity. Cf. Camacho, 864 S.W.2d at 535.

Further, Appellant’s recorded admissions that he poked B.L. with thumbtacks,

paddled her so hard that he caused blisters, and made her stand on bottle caps aligned with

the medical evidence showing her constellation of injuries. These admissions were relevant

to the jury’s determination of his motive, opportunity, and absence of accident, and they

were probative of his inclination to use unorthodox and violent methods to discipline B.L.

A rational juror could have found Appellant’s story (that B.L. accidentally spilled his

coffee causing severe burns on her leg and foot) implausible. See Guevara, 152 S.W.3d at

50.

Additionally, Spears’s identification of a bottle cap and thumbtack found in

Appellant’s trailer did not constitute impermissible extraneous offense evidence. The

presence of bottle caps and push pins in Appellant’s trailer did not in itself constitute a

“bad act” under Rule 404(b). This evidence was merely background necessary to describe

the State’s investigation of the case. Similarly, Samantha’s observations that she saw B.L.

with head injuries weeks before the offense and that she never saw B.L. with any serious

injuries before B.L. lived in Appellant’s trailer were not, in themselves, bad acts subject to

Rule 404(b).

Delacerda – 30

On the other hand, Samantha’s testimony that Appellant and Guidry prevented

family members from seeing B.L. and that Appellant threatened to punish B.L. while she

was injured and crying could have been construed by a rational factfinder as bad acts.

However, this testimony helped demonstrate Appellant’s motive to punish B.L. when she

was—in his words—“acting bad.” See Rule 404(b); see also Colone v. State, 573 S.W.3d

249, 266–67 & n.56 (Tex. Crim. App. 2019) (“[M]otive is highly relevant, so much so that

we have said, on multiple occasions in the past, that the prosecution may ‘always’ offer

evidence to show motive.”) (internal citations omitted). Samantha’s testimony established

Appellant’s role in the home as B.L.’s disciplinarian and supported Owen’s and Brown’s

medical opinions that B.L.’s injuries were not accidental. See Art. 38.36(a); Rule 404(b);

see also Garcia, 201 S.W.3d at 703.

Even so, Appellant argues that the trial court should have refused to admit the non-

fatal injury evidence because he “followed the exact procedure” outlined by this Court in

Robbins, 88 S.W.3d 256, to avoid opening the door to extraneous offense evidence.

Robbins was convicted and sentenced to life imprisonment for killing his girlfriend’s

seventeen-month-old daughter when left alone with the baby. Id. at 257–58. The defense

suggested through cross-examination that Robbins loved the victim and that her death was

actually caused by Sudden Infant Death Syndrome (SIDS) or incorrectly performed CPR.

Id. The victim’s mother testified that the victim had previously received a black eye, a leg

injury, and bruises while in Robbins’s care. Id. at 258–59. The trial court admitted this

“relationship evidence” under Article 38.36(a) and overruled Robbins’s objections under

Rules 403 and 404(b). Id. at 259.

Delacerda – 31

Robbins challenged the admission of this evidence on direct appeal. In response, the

State relied on Estelle v. McGuire, 502 U.S. 62 (1991). See Robbins, 88 S.W.3d at 260. In

Estelle, the United States Supreme Court held that “a simple plea of not guilty” still “puts

the prosecution to its proof as to all elements of the crime charged,” and that “a defendant’s

tactical decision not to contest an essential element of the offense” does not relieve the

State of its burden. 502 U.S. at 69–70. The Supreme Court stated, “When offered to show

that certain injuries are a product of child abuse, rather than accident, evidence of prior

injuries is relevant even though it does not purport to prove the identity of the person who

might have inflicted those injuries.” Id. at 68.

However, this Court explained that Texas law creates a “catch 22,” in which “a

simple plea of not guilty usually does not make issues such as intent a relevant issue of

consequence for purposes of determining the admissibility of relationship evidence under

Rule 404(b).” Robbins, 88 S.W.3d at 261. Yet issues like intent are nonetheless “material

issues that the prosecution must prove beyond a reasonable doubt.” Id. We said that “the

issue is whether appellant went beyond a simple plea of not guilty and put his intent at

issue through vigorous cross-examination or other means (such as the presentation of

various defensive theories).” Id. We upheld the admission of the “relationship evidence”

because Robbins “went beyond simply pleading not guilty through vigorous cross-

examination of the prosecution witnesses suggesting that the victim’s death was caused by

some means other than an intentional act.” Id.

Although defense counsel strategically avoided “vigorous cross-examination,” like

Robbins’s defense, Appellant’s defense “went beyond a simple plea of not guilty.” See id.

Appellant put his intent at issue and presented his defensive theories through “other

Delacerda – 32

means.” See id. In his recorded statements to police, Appellant maintained that—other than

the wounds he caused by paddling B.L., forcing her to stand on bottle caps, and poking her

with thumbtacks—her injuries were accidental and unintentional. He noted B.L.’s fall from

the trampoline and what he described as an inadvertent coffee spill. He spoke of his efforts

to treat B.L.’s swelling, bathe and care for her, seek medical treatment for her, and

administer CPR to her.

Defense counsel objected to the admission of Appellant’s recorded statements.

Nevertheless, they leveraged the statements to advance their defensive theories. In closing

argument, counsel pointed to Appellant’s account of the accidental coffee spill, B.L.’s fall

from the trampoline, and her medical treatment following that fall. Emphasizing

Appellant’s consistent admissions of certain conduct, counsel tied his recorded statements

to the medical evidence and attempted to spread seeds of doubt through the cross-

examination of Temple. Counsel argued that the State had not proven the absence of

accident or the required mens rea regarding B.L.’s fatal head injuries. Under these

circumstances, the trial court did not abuse its discretion in deciding that the complained-

of evidence was relevant and admissible for legitimate, non-character-conformity

purposes. See Rule 404(b).

E. Rule 403

If a trial court determines that Rule 404(b) does not bar admission of uncharged

misconduct evidence, the opponent of the evidence may further object under Rule 403.

Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). Rule 403 provides that the

court “may exclude relevant evidence if its probative value is substantially outweighed by

a danger of one or more of the following: unfair prejudice, confusing the issues, misleading

Delacerda – 33

the jury, undue delay, or needlessly presenting cumulative evidence.” If the opponent raises

a Rule 403 objection, the trial court must conduct a balancing test, which includes the

following factors:

1. the evidence’s probative value;

2. the evidence’s potential to impress the jury in some irrational, but

nevertheless indelible way;

3. the time the proponent needs to develop the evidence; and

4. the proponent’s need for the evidence.

Colone, 573 S.W.3d at 266.

The complained-of evidence undeniably occupied a significant amount of the jury’s

time during Appellant’s trial. However, Owen’s and Brown’s medical opinions about the

child’s cause of death illustrate how probative the non-fatal injury evidence was in proving

facts of consequence, including Appellant’s motive and opportunity and the non-accidental

nature of B.L.’s injuries. Given the absence of eyewitness testimony, the State needed this

evidence to prove disputed issues, including Appellant’s mens rea.

In addition, the potential for the complained-of evidence to impress the jury “in

some irrational but nevertheless indelible way” was not substantial. Cf. id. The massive

head trauma that caused B.L.’s death was her most serious injury, and it was not

extraneous. The emotional impact of this small child’s brutal death was unavoidable, even

absent evidence of her non-fatal injuries. 19

19

Appellant also complains that the State played a Christina Aguilera song during closing

argument while displaying a photo of the child victim. Defense counsel called attention to the

State’s use of the song after the State played it and referred generally to “that kind of emotional

appeal” and “Trial Exhibit 2 stuff,” to which the trial judge replied, “That is so noted, and that is

true.” But Appellant did not raise a contemporaneous objection before or during the song or receive

Delacerda – 34

Further, the trial court gave a limiting instruction concerning the non-fatal abuse

evidence, specifying its only allowed uses, and cautioning the jury not to consider the

evidence for character conformity purposes. The judge periodically referred to and restated

this instruction throughout the trial. The court excluded three of the State’s photographic

exhibits depicting Appellant’s abuse, including B.L.’s paddling injuries, finding that the

danger of unfair prejudice substantially outweighed their probative value.

The prohibition on character conformity evidence serves “primarily to prevent a

jury, with a reasonable doubt of a defendant’s guilt of the charged offense, from

nevertheless convicting the defendant of the charged offense based solely on the

defendant’s ‘wicked or criminal disposition’ or solely because the defendant is a bad person

generally.” Robbins, 88 S.W.3d at 263. We see little risk of that in the instant case. The

conduct at issue was perpetrated in the summer of 2011 against the same child victim

named in the indictment while the victim was living with Appellant and in his care. Most

of the complained-of conduct occurred so close in time to the victim’s death that the

resulting contusions, abrasions, swelling, burns, and other damage were still visible on her

body after her death. Under these circumstances, we find that the trial court did not exceed

its discretion in determining that any unfair prejudice caused by the complained-of

evidence did not substantially outweigh the significant probative value of the evidence.

F. Cumulative Effect

Appellant claims that the “cumulative effect” of the multiple extraneous bad acts

led to his conviction and constituted reversible error. The cumulative error doctrine

an adverse ruling. See TEX. R. APP. P. 33.1. In any event, we do not see a direct connection between

this song and the non-fatal abuse evidence he complains of here.

Delacerda – 35

provides relief only when constitutional errors so “fatally infect the trial” that they violate

the trial’s “fundamental fairness.” See Estrada v. State, 313 S.W.3d 274, 311 (Tex. Crim.

App. 2010) (citations omitted). We have found no error in the trial court’s admission of the

complained-of evidence. Appellant has pointed us to no “authority holding that non-errors

may in their cumulative effect cause error.” Chamberlain v. State, 998 S.W.2d 230, 238

(Tex. Crim. App. 1999).

Because we have found that the trial court did not abuse its discretion in admitting

the evidence at issue, we overrule Appellant’s second through fifteenth points of error.

IV. CHILD VICTIM’S STATEMENT ABOUT DYING

In his sixteenth and seventeenth points of error, Appellant argues that the trial court

erred in overruling his hearsay objection to Wanda’s testimony about a conversation she

had with B.L. “weeks or months” before B.L.’s death. He alleges that Wanda testified that

B.L.—while lying in bed with her head swollen—talked about dying and told Wanda

“goodbye.” Appellant also argues that the trial court erred in denying his motion for a

mistrial. He asserts, “Nothing could have proved more harmful than the admission of a

child saying goodbye to a grandparent.” 20

A. Background

The prosecutor asked Wanda, “Did [B.L.] tell you anything?” Defense counsel

objected on hearsay grounds. The State argued, “It comes in under present sense

impression.” The trial judge responded: “You can develop it. Let’s move on. Then

sustained at this time.” The prosecutor then asked Wanda if B.L. seemed “to be worried

20

He contends that the State exacerbated the harm by referring to this testimony during

jury argument prior to playing a song. See supra note 18.

Delacerda – 36

that she was hurt[.]” Wanda responded, “She was saying a lot of stuff -- talking to us. When

I thought about it later, it was almost like she was telling us bye individually.” Defense

counsel again objected on hearsay grounds, urging that “we are nowhere near present sense

impression.” The trial court overruled this objection.

The prosecutor followed up with this question: “In fact, Ms. Bailey, did she tell you

something that shook you to the ground?” Defense counsel objected again: “I’m going to

object to that being leading and/or him testifying and that he is asking for hearsay.” The

trial judge instructed the State to “[r]ephrase the question.” The prosecutor then asked the

witness, “Ms. Bailey, did [B.L.] tell you something that was significant to you?” The

witness replied, “She told me two different things.” Defense counsel again objected on

hearsay grounds. The trial court sustained the objection, saying, “I think we have to move

on.”

The following exchange then transpired:

[Prosecutor]: Let me ask you: Did she state anything to you that

related to her condition; “yes” or “no”?

[Wanda]: Yes, I guess that would be what she was saying to me.

[Prosecutor]: And what was that?

[Wanda]: If I die, would I --

[Defense Counsel]: Judge --

[The Court]: Stop.

[Defense Counsel]: Judge, this doesn’t relate to her condition. I know what

they are trying to get around, and it doesn’t have

anything to do with the present sense impression. It

doesn’t relate to her condition. It’s not sought for

medical purposes. There is not an exception that fits this

Delacerda – 37

testimony. It’s hearsay. It’s not offered for any other

purpose.

[Prosecutor]: Your Honor, it is an exception to hearsay under 803(3),

a dying deceleration [sic] and present sense impression.

Both of those appl[y] as an exception to the hearsay. She

already indicated --

[The Court]: Sustained. Move on.

[Defense Counsel]: I move to strike the answer [to] the question.

[The Court]: Strike the hearsay answer.

[Defense Counsel]: Judge, after that response, I would move for a mistrial

as well.

[The Court]: Denied.

When the State’s attorney referred to B.L.’s statement during closing arguments,

defense counsel immediately objected that the trial court had sustained counsel’s earlier

objection. The trial judge sustained the objection in part and overruled it in part, saying,

“The jury was instructed to disregard a -- determined to be a hearsay response. Just

remember the Court’s instructions regarding the admissions regarding the evidence.” The

court denied counsel’s motion for mistrial.

B. Analysis

The admission of hearsay evidence in violation of the Rules of Evidence is non-

constitutional error subject to a harm analysis under Texas Rule of Appellate Procedure

44.2(b). See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); Taylor v.

State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008). Non-constitutional error “must be

disregarded” unless it affects an Appellant’s “substantial rights.” TEX. R. APP. P. 44.2(b).

We will not overturn a criminal conviction for non-constitutional error if, after examining

Delacerda – 38

the record, we have “fair assurance that the error did not influence the jury, or had but a

slight effect.” Johnson, 967 S.W.2d at 417; see also Taylor, 268 S.W.3d at 592.

The trial court sustained Appellant’s objections to the State’s “[i]f I die” inquiry and

told the jury to “strike” the witness’s answers. The only part of the complained-of

testimony for which the judge overruled Appellant’s objections was Wanda’s remark that

“it was almost like she was telling us bye individually.” Assuming arguendo that this

testimony actually relayed hearsay and that the trial court abused its discretion in admitting

it, we have fair assurance that any error did not influence the jury or had only a slight effect.

See Johnson, 967 S.W.2d at 417. The trial court did not permit Wanda to fully respond to

this line of questioning and gave a curative instruction. Wanda’s truncated response made

no mention of Appellant, and her vague statement was unlikely to prejudice the jury. We

conclude that any error in the admission of this testimony did not affect Appellant’s

“substantial rights.” See TEX. R. APP. P. 44.2(b). Appellant’s sixteenth and seventeenth

points of error are overruled.

V. B.L.’S MEDICAL RECORDS

In Appellant’s eighteenth point of error, he argues that the trial court erred in

admitting over his objection State’s Exhibit 67 (B.L.’s hospital records). Appellant asserts

that the exhibit contained “hearsay within hearsay” and evidence of “extraneous injuries.”

Appellant specifically complains that the exhibit included a doctor’s statement that B.L.

had experienced “serious long-term child abuse” and “references to other extraneous

injuries, including multiple traumas, an old fracture, multiple acute and/or healing fractures

to the ribs, multiple bruises to the extremities, body, head, and face, [and] a spiral fracture

to the tibia which was comminuted.”

Delacerda – 39

Appellant contends that, by the time these hospital records were created, B.L. “was

obviously deceased.” He surmises that the hearsay statements within State’s Exhibit 67

were therefore not made “for the purpose of seeking medical treatment for the child.” See

Garcia v. State, 126 S.W.3d 921, 926 (Tex. Crim. App. 2004) (“The records themselves

were admissible, but that does not mean that all information, from whatever source or of

whatever reliability, contained within those business records is necessarily admissible.”).

Appellant asserts that he was harmed because the exhibit “contained allegations of long-

term child abuse” which the State used to prove he caused B.L.’s death “because he must

have abused her over a long period of time.”

The complained-of material—consisting of clinical descriptions of various injuries

found on B.L.’s body—appears on only a few pages of a packet of hospital records. One

of the complained-of statements—a handwritten remark about child abuse—is nearly

illegible. The statements cover the same subject matter as Brown’s and Owen’s testimony.

We have held that the court did not err in admitting that testimony.

Even if Exhibit 67 contained inadmissible “hearsay within hearsay” and/or injuries

arising from extraneous acts, this evidence was unlikely to sway the jury when compared

with other, more accessible child-abuse evidence, such as Brown’s and Owen’s testimony.

We have “fair assurance” that the alleged error “did not influence the jury, or had but a

slight effect.” See Johnson, 967 S.W.2d at 417; see also TEX. R. APP. P. 44.2(b).

Accordingly, we overrule Appellant’s eighteenth point of error.

VI. LAW OF PARTIES CHARGE

In his nineteenth point of error, Appellant argues that the trial court reversibly erred

by instructing the jury on the law of parties and applying that law to the facts “in the

Delacerda – 40

complete absence of any evidence to support the instruction.” Appellant objected to the

trial court’s proposed instructions and tendered his own proposed instruction (Trial Exhibit

6) which omitted a parties charge.

Appellant emphasizes that he was not indicted as a party. He acknowledges that, if

the evidence at trial supports a charge on the law of parties, then the court may properly

charge on that law even though it was not pled in the indictment. See Weeks, 391 S.W.3d

at 124 (“Regardless of whether it is pled in the charging instrument, liability as a party is

an available legal theory if it is supported by the evidence.”). But, he maintains, “Certainly

the evidence herein did not demonstrate that [he] was guilty, if at all, by soliciting,

encouraging, directing, aiding, or attempting to aid Amanda Guidry or any other person.”

He points to the State’s argument urging the jury, “[D]on’t get hung up. . . . He did them

all. He did bodily injury. He did serious bodily injury. And he committed capital murder.”

Appellant argues that, because he “most assuredly objected to the court’s charge,” he need

only show “some harm,” not egregious harm. See Almanza v. State, 686 S.W.2d 157, 171

(Tex. Crim. App. 1984). He argues he has shown some harm because the complained-of

charge found no support in the record and expanded his criminal liability.

Even if an indictment omits the law of parties, the trial court may give the jury a

parties instruction “whenever there is sufficient evidence to support a jury verdict that the

defendant is criminally responsible under the law of parties.” Ladd v. State, 3 S.W.3d 547,

564 (Tex. Crim. App. 1999); see also Weeks, 391 S.W.3d at 125. Further, this Court has

held that, “where the evidence clearly supports a defendant’s guilt as a principal actor, any

error of the trial court in charging on the law of parties is harmless.” Ladd, 3 S.W.3d at

564–65 (citing Black v. State, 723 S.W.2d 674, 675 (Tex. Crim. App. 1986)).

Delacerda – 41

In light of Appellant’s admissions that he abused the four-year-old victim, his

misleading and implausible statements about her injuries, the medical evidence, the

victim’s family members’ testimony, and the DNA evidence from the victim’s fingernail

scrapings, the evidence clearly supports his guilt as a principal actor. Therefore, even if the

trial court erred in charging the jury on the law of parties, any error was harmless. See id.

His nineteenth point of error is overruled.

VII. CONSTITUTIONALITY OF CAPITAL MURDER SENTENCING SCHEME

In his twentieth point of error, Appellant argues that the trial court erred in not

granting his “motion to dismiss the death penalty” because the capital murder sentencing

procedure in Article 37.071 fails to meet the minimum requirements set forth in Furman v.

Georgia, 408 U.S. 238 (1972). He cites data from the “Capital Jury Project” which, he

asserts, shows that Texas jurors “are incapable of fulfilling the requirements of Furman.”

He argues that Texas’s capital sentencing scheme provides insufficient guidance to jurors

concerning future dangerousness, resulting in arbitrary decisions.

In Appellant’s twenty-first and twenty-second points of error, he argues that Article

37.071, §§ 2(b)(1), (e), and (f), violate his right to a trial by jury, the presumption of

innocence, and his due process rights, and are arbitrary and capricious. He asserts that the

provisions improperly require jurors to make long-term predictions concerning future

dangerousness and decide the mitigation question “with no standard of proof or

presumption of innocence.” He avers that this “shifts the burden of proof on mitigation” to

the defense in violation of Article I, §§ 13 and 19 of the Texas Constitution and the Eighth

Amendment to the United States Constitution. He further contends that the United States

Supreme Court has “in essence held that death-eligibility factors are functional equivalents

Delacerda – 42

of elements of an offense[.]” He relies on Ring v. Arizona, 536 U.S. 584 (2002), Jones v.

United States, 526 U.S. 227 (1999), and Apprendi v. New Jersey, 530 U.S. 466 (2000). In

addition, he argues that “the Texas sentencing scheme runs afoul of the Texas statute that

provides that no person may be convicted unless each element of an offense is proved

beyond a reasonable doubt.” See Art. 38.03.

In his twenty-third point of error, Appellant argues that the trial court reversibly

erred in denying his motion to quash the indictment because Article 37.071, § 2, violates

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

Article I, §§ 10, 13, and 19 of the Texas Constitution. In his scant argument on this point,

he refers to the claims alleged in his pretrial motion and offers conclusory assertions that

the statute suffers from nineteen “specific failings” to meet “constitutional muster.” He

does not detail those specific failings, nor does he cite relevant supporting authorities.

In his twenty-fourth point of error, Appellant argues that the trial court reversibly

erred in denying his motion asking that the court find Article 37.071, § 2(f)(4),

unconstitutional. Section 2(f)(4) requires that the trial court charge the jurors that in

answering the mitigation special issue, they shall consider mitigating evidence to be

“evidence that a juror might regard as reducing the defendant’s moral blameworthiness.”

He contends that this definition violates the Eighth and Fourteenth Amendments to the

United States Constitution and “causes jurors to disregard any potentially relevant

mitigating evidence that does not relate to a defendant’s moral blameworthiness.” See

Eddings v. Oklahoma, 455 U.S. 104, 110 (1982).

In his twenty-fifth point of error, Appellant argues that the trial court reversibly

erred in denying his motion asking that the court declare Article 37.071 “to be

Delacerda – 43

unconstitutional based upon its unreliability” because the statutory scheme violates the

Eighth and Fourteenth Amendments to the United States Constitution and unspecified parts

of the Texas Constitution. He refers broadly to DNA-based exonerations, innocent people

convicted of capital crimes, the State’s use of psychiatric testimony, and allegedly

misleading provisions “concerning the inability of the jury to agree on a death sentence.”

Appellant refers generally to claims he alleged in a motion he filed in the trial court and

does not cite applicable cases or explain how the sentencing statute abridges his

constitutional rights.

In his twenty-sixth point of error, Appellant argues that the trial court reversibly

erred in denying his motion to declare the “10-12 Rule” unconstitutional. See Art. 37.071,

§§ 2(d)(2), 2(f)(2). Appellant argues that the statutory language “misdirects and misinforms

jurors concerning the effects of [their] votes on the special issues” and does not permit the

court or the parties to tell the jurors what will happen if they fail to agree. He maintains

that the 10-12 Rule creates “constitutionally impermissible arbitrariness” and denies

appellants the “right to individualized sentencing,” in violation of the Eighth and

Fourteenth Amendments to the United States Constitution.

In his twenty-seventh point of error, Appellant argues that the trial court reversibly

erred in denying his motion to preclude the death penalty because the indictment did not

include the “factual determinations [that] must be made in order to warrant the death

penalty.” He argues that these determinations are “equivalent to elements” and “should be

alleged by the grand jury” so that “an accused may mount a meaningful defense.” Appellant

relies on the federal due process clause and Article 21.03, which states that “[e]verything

Delacerda – 44

should be stated in an indictment which is necessary to be proved.” See also TEX. CONST.

art. I, § 10, art. V, § 12 (governing indictments).

We have previously rejected arguments substantially similar to Appellant’s

constitutional challenges. See Buntion v. State, 482 S.W.3d 58, 105–06 (Tex. Crim. App.

2016) (rejecting a claim that the future dangerousness special issue is “constitutionally

infirm under the Eighth and Fourteenth Amendments” and that capital juries cannot

accurately predict future dangerousness); Soliz v. State, 432 S.W.3d 895, 904–05 (Tex.

Crim. App. 2014) (rejecting claims that the indictment failed to incorporate allegations

regarding the punishment special issues and that Article 37.071 shifts the mitigating

evidence burden to the defendant); Williams v. State, 301 S.W.3d 675, 694 (Tex. Crim.

App. 2009) (rejecting a claim that the mitigation issue unconstitutionally permits “the very

type of open-ended discretion condemned in Furman” and challenging to the 10-12 Rule);

Woods v. State, 152 S.W.3d 105, 121 & n.66 (Tex. Crim. App. 2004) (rejecting a claim

that the mitigation special issue impermissibly gives the jury unfettered discretion and

permits the arbitrary and capricious imposition of the death penalty); Blue v. State, 125

S.W.3d 491, 501 (Tex. Crim. App. 2003) (rejecting a constitutional challenge based on

Ring and Apprendi); Jones v. State, 944 S.W.2d 642, 655–56 (Tex. Crim. App. 1996)

(rejecting claims that the Texas death penalty has been arbitrarily imposed and is

unconstitutional under the Eighth and Fourteenth Amendments and Article I, § 13 of the

Texas Constitution); Cantu v. State, 939 S.W.2d 627, 639, 649 (Tex. Crim. App. 1997)

(holding that the defendant’s “global argument” was “without merit” because he had “not

shown us how his specific rights were violated” and rejecting a claim that “racial

discrimination continues to taint the Texas sentencing scheme”); Lawton v. State, 913

Delacerda – 45

S.W.2d 542, 556 (Tex. Crim. App. 1995) (rejecting a challenge to Article 37.071, § 2(f)(4)

based on Eddings).

Further, points of error twenty-three and twenty-five are inadequately briefed. See

TEX. R. APP. P. 38.1(i); see also Bohannan v. State, 546 S.W.3d 166, 179 (Tex. Crim. App.

2017) (finding constitutional claim to be inadequately briefed where the appellant’s

language was “conclusory, [did] not make an argument, and [did] not contain any citations

to appropriate authorities”). We overrule Appellant’s points of error twenty through

twenty-seven.

VIII. PSYCHIATRIST’S EVALUATION OF APPELLANT

A. Background for Points of Error Twenty-eight, Twenty-nine, and Thirty

The State filed a pretrial motion seeking a psychiatric examination of Appellant for

competency and sanity. At a December 2012 pretrial hearing, the prosecutor explained that

the State filed the motion for two reasons: (1) business records “show[ed] some problems

that [Appellant] had in the past where he was under psychiatric treatment”; and (2)

Appellant repeatedly asked “the jail nurse [for] medicine that he said was for his mental

health and for his psychiatric well-being.”

Defense counsel replied that the defense neither agreed with nor opposed the

motion. Counsel explained: “If the Court wants to grant that motion, we would have no

objection to the Court granting the State’s motion. But we want it made known that it is

not filed on behalf of the Defendant.” The trial court granted the State’s motion. Defense

counsel asked that the court limit the doctor’s questions to those concerning Appellant’s

present competency and sanity and not Appellant’s condition at the time of the offense.

Delacerda – 46

The trial court responded that the court’s order “refers to [Article] 46B.021[ 21] and directs

the examining physician to prepare the report that meets the requirements of that statute.”

The judge stated his intent to appoint Dr. Lisa Douget to examine Appellant and asked, “Is

that okay, as far as the doctor, from the defense?” Defense counsel replied, “Subject to our

earlier statements, Your Honor.”

The State subsequently filed another motion asking that the trial court order Douget

to examine Appellant for all purposes including an assessment of his future dangerousness.

The State argued that it had a “right and duty to be ready to combat any contingency that

may be brought forward by the defendant at any stage of the trial.” At a January 2013

pretrial hearing, the State complained that the defense made statements indicating that they

might hire a future dangerousness expert but had not complied with the court’s deadline

for designating their experts. The prosecutor argued that the defense’s failure to disclose

21

Article 46B.021 provides in relevant part:

(a) On a suggestion that the defendant may be incompetent to stand trial, the court may

appoint one or more disinterested experts to:

(1) examine the defendant and report to the court on the competency or

incompetency of the defendant; and

(2) testify as to the issue of competency or incompetency of the defendant at any

trial or hearing involving that issue.

(b) On a determination that evidence exists to support a finding of incompetency to stand

trial, the court shall appoint one or more experts to perform the duties described by

Subsection (a).

* * *

(f) If a defendant wishes to be examined by an expert of the defendant’s own choice, the

court on timely request shall provide the expert with reasonable opportunity to examine

the defendant.

TEX. CODE CRIM. PROC. art. 46B.021.

Delacerda – 47

experts forced the State to speculate about whether the defense would hire an expert and

whether the expert would testify.

Defense counsel stated that they had not hired a competency expert, and they could

not decide about whether to hire an expert until after they received Douget’s report:

What our position basically is: I don’t know what Dr. Douget’s reports are

going to say; whether or not [Appellant] is competent, whether or not he is -

- we have the burden of proving part of that. And we haven’t sought an

expert, if you want to call it, someone to say this man is not competent to go

to trial.

* * *

Now, whether or not that they are going to proceed with this lady --

[Dr.] Douget -- as an expert . . . I think we are entitled to see what she says,

what her opinion is. And then we can get someone to be an expert to

contradict whatever their experts -- but we are not in a position to determine

who an expert is until such time we get something from Dr. Douget, which

we don’t have.

The trial judge indicated that he intended to “sign off” on the State’s order allowing

Douget “to examine for all purposes.” But first the judge asked defense counsel, “Is that

okay with you?” Counsel responded, “Yes, sir.”

Counsel stated, “I have talked to some doctors. I’ve talked to some others, but we

don’t actually have a person that’s going to testify at the present.” Counsel added that they

were “waiting for some reports . . . but we don’t have them back yet. And this is after the

State’s examination.” When the State again complained that the defense had not complied

with the trial court’s deadline, defense counsel responded:

[G]etting an expert and then expecting us to name somebody to comply with

whatever they are seeking from their expert doesn’t really make sense [sic]

why we would be able to even comply and provide an expert on an issue of

future dangerousness when they don’t even have a report yet on it.

Delacerda – 48

Now, I think we would be entitled under the law to have their reports

examined and somebody appointed. And if the Court wants to give us a

continuance until that’s done, we have got no problem. But we can’t do that

until we get the expert because I don’t know what it’s going to say [sic].

The prosecutor responded, “So, the only expert that we take it that . . . they are going

to have is an expert on future dangerousness, depending on what [Dr.] Douget says. Is that

your understanding, Your Honor? Because I want it clear.” The judge said, “As of January

10th, they don’t have any experts to designate and disclose. . . . That’s what I heard. Fair

enough?” Defense counsel responded, “Yes, sir.” The trial judge said, “Okay. Great. I am

going to sign the order as to the comprehensive psychiatric evaluation as -- I guess it’s

agreed.” Defense counsel did not contradict this statement.

Douget interviewed Appellant in January and February 2013 and prepared a report

on February 4, 2013. At the punishment phase, the State called Douget as its first witness.

Defense counsel objected that Douget’s opinion did not satisfy Rule 702. 22 The trial court

allowed counsel to question Douget outside the jury’s presence. Douget said that she had

done risk assessments about twenty times and had previously testified as an expert. She

agreed that she had never been qualified by a court to testify regarding “the future risk of

danger” in a capital murder case.

Defense counsel agreed that Douget was qualified to give psychiatric opinions but

objected that Douget’s opinion was “stale” and not relevant because it was based on her

examination of Appellant over five years prior to the 2018 trial. Counsel further objected

22

Rule 702 provides: “A witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an opinion or otherwise if the expert’s

scientific, technical, or other specialized knowledge will help the trier of fact to understand the

evidence or to determine a fact in issue.”

Delacerda – 49

that Douget’s opinion was not reliable because it did not take into account Appellant’s six-

and-a-half years of jail records showing “that [Appellant] has been a model inmate.” The

trial judge overruled Appellant’s objection, stating that the issues Appellant raised went to

“the weight of the evidence to be given by the jury.”

Douget testified before the jury that Appellant posed a moderate to high risk for

future dangerousness. On cross-examination, defense counsel pointed out that Appellant

had no convictions for felonies or other violent offenses other than the case at bar. Douget

conceded that she had not reviewed Appellant’s jail records from the last six-and-a-half

years. Defense counsel then elicited the following from Douget:

[Defense Counsel]: And if you wanted to know how he would act in the

system; in custody in the control of sheriff’s deputies

and everything else, that would be one of the things you

would want to factor in, right?

[Douget]: Definitely.

[Defense Counsel]: Over a period of six and a half years, you ought to be

able to determine how somebody is going to act in

custody, right?

[Douget]: That’s correct.

[Defense Counsel]: The State hasn’t given you those to review?

[Douget]: No.

[Defense Counsel]: If you were going to give an up-to-date opinion to this

jury, would you think that would be important to

consider?

[Douget]: Yes, that would be important.

[Defense Counsel]: And if the jail records reflected that he hasn’t had any

issues of violence or fights or anything else of that

nature, would that impact potentially the opinion that

you give to this jury?

Delacerda – 50

[Douget]: Potentially.

[Defense Counsel]: And the State hasn’t given you that?

[Douget]: No.

* * *

[Defense Counsel]: And would you agree with me that five years is a little

too long to go without really interaction -- any

interaction with a case to make a current assessment?

[Douget]: I mean, I like to see people a little bit, you know, more

often than five years from when I do an evaluation,

obviously.

[Defense Counsel]: And it might even make your opinion stale?

[Douget]: I mean, possibly.

The State then proffered Douget’s full report. The defense objected. The trial court

admitted a redacted version of the exhibit containing only Douget’s risk assessment report

(State’s Exhibit 74A). 23 After another witness testified, the State recalled Douget to the

stand to ask her about a record that she considered in preparing her risk assessment report:

a discharge summary from Appellant’s 1996 inpatient hospitalization. The discharge

summary reported that Appellant had threatened to kill his parents.

Defense counsel then elicited the following:

[Defense Counsel]: And you didn’t interview his mother?

[Douget]: No.

[Defense Counsel]: She’s the person that says that he said that?

[Douget]: That’s correct.

23

This exhibit is the subject of Appellant’s thirty-first and thirty-second points of error and

will be described in greater detail infra.

Delacerda – 51

[Defense Counsel]: Now [it was] 20-something years ago, right?

[Douget]: Correct.

[Defense Counsel]: And to your knowledge, he hasn’t actually killed his

parents, has he?

[Douget]: Not to my knowledge.

The following day, the defense called Dr. Edward Gripon, a psychiatrist. Gripon

had testified in court regarding risk assessments on twenty-five to thirty occasions for both

the defense and the State. He reviewed Appellant’s six-and-a-half years of jail records,

custodial interviews, and recorded jail calls and visits. He testified that Appellant’s jail

records were “pretty benign” and demonstrated that Appellant “has been able to conduct

himself in a reasonable manner . . . without any repeated acts of violence.” Gripon opined,

“It appears as though in a prison setting that [Appellant’s] risk for future violence is low.”

He also discussed problems with using standardized risk assessments because they do not

consider the constraints on the population in which the subject will be placed.

Gripon testified that dangerous defendants possess characteristics not shared by

Appellant, including a “history of continued escalating violence” and “threats and fights

and violent behavior in the incarcerated setting.” On cross-examination, Gripon conceded

that Appellant was angry, yelled at his mother, harbored grievances against those close to

him, and blamed his parents for his situation.

B. Defense Counsel’s Agreement to Allow Douget to Interview Appellant

In his twenty-eighth point of error, Appellant contends that he was deprived of the

effective assistance of counsel when his trial attorney agreed to allow Douget to interview

him. Appellant asserts that, after the State moved to allow Douget to examine him for all

Delacerda – 52

purposes, his counsel “made it clear that they had no intention” of offering psychiatric

evidence concerning his future dangerousness, and “in fact, had no experts at that time.”

Yet when the trial judge asked his attorney if the State’s motion was “okay with you,” his

counsel responded affirmatively. And when the court granted the State’s motion, counsel

did not object.

Appellant asserts that the State had “absolutely no right” to have Douget examine

him to assess his future dangerousness unless “the defense had an expert that examined

appellant and intended upon relating to the jury an opinion regarding future

dangerousness.” He relies on Estelle v. Smith and LaGrone v. State. Estelle, 451 U.S. 454,

468 (1981) (noting that a defendant “who neither initiates a psychiatric evaluation nor

attempts to introduce any psychiatric evidence[] may not be compelled to respond to a

psychiatrist if his statements can be used against him at a capital sentencing proceeding”);

LaGrone, 942 S.W.2d 602, 610–12 (Tex. Crim. App. 1997) (holding that, when the defense

demonstrates the intent to put on future dangerousness expert testimony, the trial court may

order the defendant to submit to an independent, State-sponsored psychiatric exam). Thus,

he argues, defense counsel had “no strategic basis” for agreeing to allow Douget to examine

him. And therefore, he alleges, counsel’s performance “fell below the minimum standards

required for the effective assistance of counsel, and unquestionably affected the results of

the case.” See Strickland v. Washington, 466 U.S. 668, 689 (1984).

1. Relevant Law

The Sixth Amendment right to the assistance of counsel means more than the mere

presence of a lawyer; it means the right to effective assistance. Lopez v. State, 343 S.W.3d

137, 142 (Tex. Crim. App. 2011). This right does not guarantee “errorless counsel” but

Delacerda – 53

rather “objectively reasonable representation.” Id. (citing Strickland, 466 U.S. at 686). An

appellant must satisfy Strickland’s two-pronged test:

Appellant must show that (1) counsel’s representation fell below an objective

standard of reasonableness, and (2) the deficient performance prejudiced the

defense. Unless appellant can prove both prongs, an appellate court must not

find counsel’s representation to be ineffective. In order to satisfy the first

prong, appellant must prove, by a preponderance of the evidence, that trial

counsel’s performance fell below an objective standard of reasonableness

under the prevailing professional norms. To prove prejudice, appellant must

show that there is a reasonable probability, or a probability sufficient to

undermine confidence in the outcome, that the result of the proceeding would

have been different.

Id. We apply a “strong presumption that counsel’s performance fell within the wide range

of reasonably professional assistance.” Id. Counsel’s deficiency must be “affirmatively

demonstrated in the trial record”; we will not “engage in retrospective speculation.” Id. It

is not sufficient that Appellant demonstrate, “with the benefit of hindsight,” that his

counsel’s performance was “merely of questionable competence.” Id. at 142–43. And when

direct evidence is not available, “we will assume that counsel had a strategy if any

reasonably sound strategic motivation can be imagined.” Id. at 143.

Further, direct appeal “is usually an inadequate vehicle” for raising an ineffective

assistance of counsel claim because the record is undeveloped. Goodspeed v. State, 187

S.W.3d 390, 392 (Tex. Crim. App. 2005). Where counsel’s reasons for the alleged

deficiency do not appear in the record, “trial counsel should ordinarily be afforded an

opportunity to explain his actions before being denounced as ineffective.” Id. (citing

Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)).

Strickland requires that we examine the totality of the circumstances and evidence

presented at the trial to determine if there is a reasonable probability that—but for counsel’s

Delacerda – 54

deficient performance—the result of the proceeding would have been different. Ex parte

Martinez, 330 S.W.3d 891, 900–01 (Tex. Crim. App. 2011). It is not sufficient for an

appellant to show “that the errors had some conceivable effect on the outcome of the

proceeding.” Id. at 901 (citing Strickland, 466 U.S. at 693). “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at

694. “A verdict or conclusion only weakly supported by the record is more likely to have

been affected by errors than one with overwhelming record support.” Id. at 696.

“The Fifth Amendment is implicated when a mental health expert testifies against

the defendant based in part on communications made by the defendant during a court-

ordered psychiatric examination.” Soria v. State, 933 S.W.2d 46, 52 (Tex. Crim. App.

1996) (citing Smith, 451 U.S. at 462–63). The Supreme Court has held that “[a] criminal

defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any

psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements

can be used against him in a capital sentencing proceeding.” Id. at 53 (citing Smith, 451

U.S. at 468).

However, we held in Lagrone and Soria that, if a defendant offers psychiatric

testimony on the issue of future dangerousness—or plans to introduce testimony from a

psychiatric expert based upon an examination of a defendant—a trial court can compel his

examination by a State-sponsored psychiatric expert. See In re Medina, 475 S.W.3d 291,

305–06 (Tex. Crim. App. 2015) (citing Lagrone, 942 S.W.2d at 611); Soria, 933 S.W.2d

at 55. We explained that “our sense of justice will not tolerate allowing criminal defendants

to testify through the defense expert and then use the Fifth Amendment privilege against

Delacerda – 55

self-incrimination to shield themselves from cross-examination on the issues which they

have put in dispute.” Medina, 475 S.W.3d at 306 (citing Lagrone, 942 S.W.2d at 611).

In Chamberlain v. State, the State introduced its psychiatric testimony first, and

the defendant offered his expert’s testimony in rebuttal. 998 S.W.2d at 234. We said that,

if a defendant “breaks his silence” and voluntarily participates in a psychiatric interview

with the intent to introduce the evidence, he waives the Fifth Amendment privilege. Id.

2. Analysis

a. Deficient Performance Prong

The trial court initially appointed Douget to assess Appellant’s competence

pursuant to Article 46B.021 and asked if defense counsel had any objection to Douget’s

appointment. Defense counsel expressed no objection. Three weeks later, when the State

filed its second motion to allow Douget to examine Appellant for all purposes, Appellant’s

attorney again expressed no opposition. Counsel’s comments suggest that the defense team

wanted their expert to review Douget’s report before making any decisions about whether

a defense expert would testify. Otherwise, the record is largely silent about counsel’s

strategy. It is not clear whether Appellant had broken “his silence” by speaking to a

psychologist or psychiatrist. 24 Cf. id.

“It is not sufficient that the appellant show, with the benefit of hindsight, that his

counsel’s actions or omissions during trial were merely of questionable competence.” Mata

v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). Where the record is silent, we

ordinarily “assume that counsel had a strategy if any reasonably sound strategic motivation

24

Gripon testified at the punishment phase that he was contacted “last week.” But his

assessment relied on a records review, not an interview with Appellant.

Delacerda – 56

can be imagined.” See Lopez, 343 S.W.3d at 143. Here, counsel has not been “afforded an

opportunity to explain his actions.” See Goodspeed, 187 S.W.3d at 392. It would be

premature to find defense counsel’s performance fell below an objective standard of

reasonableness.

b. Prejudice Prong

Assuming without deciding that counsel’s performance was deficient, we will

determine whether, in light of the totality of the circumstances, the result of Appellant’s

punishment proceeding would have been different but for counsel’s failure to object to

Douget’s examination and testimony. Cf. Strickland, 466 U.S. at 694–95. We conclude that

he has not carried his burden.

Appellant maintains that Douget’s opinion that he presented a moderate to high

risk of future dangerousness was irrelevant, based on “unreliable, incomplete, and outdated

data,” and “likely significantly misled the jury.” However, Douget’s testimony was not the

State’s strongest evidence. Though Douget testified that Appellant’s risk level was

moderate to high, she made several concessions that were detrimental to the State’s case.

She admitted that she had never before been qualified to give an opinion about future

violence in a capital murder case and that she had never interviewed Appellant’s mother

concerning his reported threat to kill his parents. Douget conceded that she had never

reviewed Appellant’s jail records, nor had she spoken with Appellant in five years. She

acknowledged that the jail records were important and that her assessment of Appellant

could be stale.

Further, weighty evidence supported the jury’s punishment verdict. Doctors

testified that, at the time of her death, the four-year-old victim had suffered multiple broken

Delacerda – 57

ribs, a spiral leg fracture, burns, numerous contusions and other injuries, malnutrition and

neglect, and puncture wounds. This is in addition to the massive blunt-force head trauma

that caused her death. As Brown opined, “the baby had been tortured or abused for a long

period of time.” And Owen testified that the “obscene level of physical abuse” was “[h]ead

and shoulders above anything else” he had seen in his career.

Although Appellant’s criminal record did not show convictions for violent

offenses, the evidence revealed his history of angry outbursts, drug abuse, threats, and

violence. For example, Appellant became irate about a “drug deal gone bad” and drove his

Bronco at a “high rate of speed” in an attempt to “run over” a man. His Bronco hit a culvert

and overturned, pinning his girlfriend inside. On another occasion, Appellant approached

Joys Shelburne in a parking lot and punched him through the car window while Joys’s baby

was in the car.

Appellant’s expert, Gripon, agreed that Appellant had a “temper” and his jail calls

with his mother included “a lot of hollering and screaming.” Gripon conceded that jailers

had to “intervene and tell [Appellant] to cool off.” Gripon also agreed that Appellant had

a list of grievances against his parents and blamed them for his situation.

Finally, Appellant’s teenage son, J.G.D., delivered damaging testimony that

Appellant punched B.L. with his fists and abused her “[a]ll the time,” causing B.L.’s head

and “whole face” to “swell up.” J.G.D. said that, when Appellant punched B.L., sometimes

“[s]he would be knocked out, and she would start shaking.” He said Appellant also choked

B.L. until she lost consciousness, kicked her, and spanked her with a wooden paddle “[a]s

hard as he could.” Appellant would make B.L. “stand on the bottle caps for -- all night

long, and he would make her sit in bathtubs full of ice for hours.” When B.L. tried to step

Delacerda – 58

off the bottle caps, Appellant “would act like he was going to burn her” with a cigarette.

While forcing B.L. to stand on bottle caps, Appellant would “poke her fingertips and toes

with thumbtacks.” Once, Appellant “reached back and twisted [B.L.’s] foot . . . almost all

the way around.” J.G.D. said Appellant told B.L. that “she better not tell her mom or he

would do something worse.” When the prosecutor asked J.G.D. what Appellant’s

demeanor was while abusing B.L., the boy said, “He just acted like it was normal to do that

to a four-year-old.”

In light of the record before us, we conclude that Appellant has not demonstrated

a reasonable probability that the result of his punishment proceeding would have been

different but for counsel’s decision to allow Douget to examine him. We overrule his

twenty-eighth point of error.

C. Defense Counsel’s Failure to Object to the Admission of the Statements

Appellant Made to Douget

In his twenty-ninth point of error, Appellant contends he was deprived of effective

assistance of counsel when his attorney failed to object to the admission of his statements

to Douget. He maintains that there is “nothing in the record to indicate that [he] received

any of the required warnings at the time he made the statements[.]” Appellant avers that

the State called Douget to testify at the punishment phase “to relate damaging information

gained from her interviews with appellant,” including her risk assessment report. He

contends that the evidence Douget obtained from her interviews with Appellant and her

resulting evaluation were “absolutely inadmissible under Estelle v. Smith” because they

violated Appellant’s Fifth Amendment right to remain silent as well as his Sixth

Delacerda – 59

Amendment right to counsel. See 451 U.S. at 462–63; see also Miranda, 384 U.S. at 467–

76.

Appellant argues that, when the State offered Douget’s testimony and records

containing his unwarned statements, his counsel should have immediately raised

constitutional objections. He avers there is no trial strategy that could justify counsel’s

oversight. Appellant concedes that his attorney did object to Douget’s testimony on the

bases of hearsay and lack of relevance. See Rules 401, 402, 801, 802.

Appellant acknowledges that we have held that the record on direct appeal is

usually an inadequate vehicle for raising an ineffective assistance claim. See Goodspeed,

187 S.W.3d at 392. But he insists that the record in his case “demonstrates that the conduct

of trial counsel was ‘so outrageous that no competent attorney would have engaged in it.’”

See id. He contends counsel’s omission “unquestionably affected the outcome of the case

and caused the jury to sentence [him] to death.”

1. Estelle v. Smith

Absent “other fully effective procedures, a person in custody must receive certain

warnings before any official interrogation, including that he has a ‘right to remain silent’

and that ‘anything said can and will be used against the individual in court.’” Smith, 451

U.S. at 466–67 (citing Miranda, 384 U.S. at 467–69). These warnings combat the

“inherently compelling pressures” on the person and notify the subject of “the

consequences of forgoing” the Fifth Amendment privilege, “which is the prerequisite for

‘an intelligent decision as to its exercise.’” Id. at 467. The considerations mandating

warnings prior to custodial interrogation “apply with no less force” to a pretrial psychiatric

examination. Id.

Delacerda – 60

The United States Supreme Court held that a capital defendant is entitled to

Miranda warnings before speaking to a court-appointed psychiatrist if the prosecution

seeks to admit the psychiatrist’s testimony to demonstrate the defendant’s future

dangerousness. Id. at 468–69; see also Ripkowski v. State, 61 S.W.3d 378, 385 (Tex. Crim.

App. 2001). The Supreme Court also found a violation of the Sixth Amendment right to

counsel where criminal proceedings had been initiated, the defendant was represented by

an attorney, and counsel was not notified that the psychiatric interview would cover the

defendant’s future dangerousness. See Ripkowski, 61 S.W.3d at 385.

2. Analysis

The record in the instant case does not reflect whether Douget gave Appellant any

warnings before interviewing him. No one asked Douget at trial if she gave Appellant any

warnings and her report does not address this subject. Defense counsel agreed to allow

Douget to interview Appellant “for all purposes” including future dangerousness. 25

Further, defense counsel have had no opportunity to explain their actions or inactions. Cf.

Goodspeed, 187 S.W.3d at 392. On this limited record, we cannot find that counsel’s

performance fell below an objective standard of reasonableness.

In addition, for the reasons set out in point of error twenty-eight, even assuming

deficient performance, we hold that Appellant has not shown a reasonable probability that

the result of his punishment proceeding would have been different but for counsel’s failure

25

Counsel’s involvement here undermines Appellant’s claim that he was “denied the

assistance of his attorneys in making the significant decision of whether to submit to the

examination and to what end the psychiatrist’s findings could be employed.” Cf. Smith, 451 U.S.

at 471.

Delacerda – 61

to object based on Douget’s alleged failure to administer Miranda warnings. See

Strickland, 466 U.S. at 694. In particular, we note the heinous nature of the instant offense,

the prolonged abuse Appellant inflicted on the child victim, and the minor role Douget’s

testimony played in the State’s punishment case. We overrule Appellant’s twenty-ninth

point of error.

D. Trial Court’s Admission of Douget’s Future Dangerousness Opinion

Testimony

In his thirtieth point of error, Appellant asserts that the trial court improperly

permitted Douget to “render her opinion that appellant was a moderate to high risk for

future dangerousness, despite the irrelevance of her opinion.” He notes that Douget “had

never been qualified by a District Court to testify concerning the future risk of danger in a

capital murder case.” 26 He further asserts that Douget had not spoken with Appellant in

five years and had not reviewed his six-and-a-half years of jail records. He argues that her

underlying data was “obviously not true.” Appellant avers that Douget’s opinion testimony

“did not make the existence of a material fact more or less probable” because the opinion

was “outdated and stale.” Further, he contends that Douget “could not bridge [the]

analytical gap” between her opinion and her “foundational” data (the interviews she

26

To the extent that Appellant argues here that Douget was not qualified to testify, we find

that this complaint does not comport with his objection at trial. See TEX. R. APP. P. 33.1(a)(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.”). At trial, Appellant objected that Douget’s opinion was “stale”—

because she examined Appellant five years prior to trial—and was not reliable because she did not

consider Appellant’s jail records. Further, at trial, defense counsel conceded that Douget was

“qualified to give psychiatric opinions.”

Delacerda – 62

conducted five years before the trial). He argues that he was harmed by the admission of

Douget’s testimony because the jury used it to find that he was a future danger.

Assuming without deciding that the trial court erred in admitting Douget’s opinion

testimony, we must address “whether that error affected appellant’s substantial rights to a

fair sentencing trial.” See Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010). In

Coble, the State’s forensic psychiatrist interviewed the defendant before his first trial in

1990 but did not perform any further psychiatric assessment of Coble—who accumulated

eighteen years of nonviolent behavior on death row—before his second trial. Id. at 278–

79. The expert also seemed unfamiliar with relevant forensic psychiatry literature. Id. at

277–78. We determined that the trial court abused its discretion in admitting the expert’s

testimony in light of Rule 702, Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579

(1993), and related cases. Coble, 330 S.W.3d at 277–80.

We analyzed the trial court’s error under Texas Rule of Appellate Procedure

44.2(b) and found the error in admitting the State expert’s testimony did not have a

“substantial and injurious” effect on the jury’s punishment-phase deliberations. See id. at

280–87. We determined that there was “ample evidence,” apart from the expert’s

testimony, of a probability that Appellant would commit future acts of violence. Id. at 281,

286. Also, we found that the State expert’s testimony was not “particularly powerful” and

“was effectively rebutted” by the defense expert. Id. at 286–87. Finally, the State “barely

mentioned” the expert’s testimony during closing argument. Id. at 287.

Similarly, in the instant case, Douget did not offer strong expert testimony for the

State. On cross-examination, she agreed with the defense attorney that she should have

considered Appellant’s jail records. She agreed that her risk assessment could be “stale.”

Delacerda – 63

She also admitted that she had never before been qualified to give an opinion about future

violence in a capital murder case.

Further, the defense effectively rebutted Douget’s testimony with the testimony

of Gripon, a psychiatrist since 1975 who had testified in court regarding risk assessments

on twenty-five to thirty occasions. He discussed the weaknesses of using standardized risk

assessments and reviewed the jail records the State did not provide to Douget. He testified

that Appellant’s “pretty benign” records contained no repeated acts of violence and,

“[Appellant] has made what we would call a reasonable adaptation to an incarcerated

setting.”

Moreover, in over 250 lines of closing argument, the State’s attorneys devoted

only eight to Douget’s testimony. In defense counsel’s closing arguments, they stressed

Douget’s concessions and emphasized Gripon’s contrary testimony.

Furthermore, like in Coble, “there was ample evidence that there was a probability

that appellant would commit future acts of violence” apart from Douget’s testimony. Cf.

id. at 281. We will not again summarize the punishment phase evidence; however, we note

the brutal facts of the instant offense, Appellant’s history of angry outbursts, and J.G.D.’s

troubling testimony.

We hold that any error in admitting Douget’s testimony did not have a “substantial

and injurious” effect on the jury’s deliberations concerning the future dangerousness

special issue. See id. at 287. We overrule Appellant’s thirtieth point of error.

E. Trial Court’s Admission of Douget’s Risk Assessment Report and Related

Hearsay Testimony

Delacerda – 64

In Appellant’s thirty-first point of error, he contends that the trial court erred in

admitting State’s Exhibit 74A (Douget’s risk assessment report) over his objection. He

complains that the exhibit contained “hearsay within hearsay” or “double hearsay.” In his

thirty-second point of error, Appellant argues that the trial court erred in allowing Douget

to testify about the double hearsay material in the report. Appellant focuses on Douget’s

testimony about a statement in the report concerning a 1996 incident in which he threatened

to kill his parents. He contends that this statement was hearsay and was not automatically

admissible “simply because it was contained within [Douget’s] report.” He further argues

that this statement was not made for the purposes of medical diagnosis or treatment, rather

it “was likely made, if at all, by appellant’s mother who was concerned for her own safety

upon his release from hospitalization.” Cf. Garcia, 126 S.W.3d at 926. Appellant asserts

that admitting this material caused him “significant harm” as it was “an extreme example”

of “a threat of criminal acts of violence that would constitute a continuing threat.”

1. Background

During Douget’s testimony, the State proffered her full report (State’s Exhibit 74).

Defense counsel objected on the basis of hearsay to the entire document and on the basis

of relevance to the first two sections, which related to competency and sanity. Counsel

argued that Douget’s report was not a government record and asserted that it was “unfair

to call them statements made for the purpose of medical evaluation because it was court

ordered.” Counsel requested that, if the exhibit was admitted over his objection, the exhibit

“be limited to the portion of her evaluation” covered by her testimony, which is the “last

four or five pages.”

Delacerda – 65

After questioning another witness, the State recalled Douget. The prosecutor

asked her to turn to page two of her report. Defense counsel objected that the prosecutor’s

questions called for information in Douget’s report that was “hearsay within hearsay.” The

State’s attorney responded that Douget was “allowed to talk about what she used to form

her opinion.” Defense counsel stated that Douget had already “given her opinion.” Counsel

averred that the statement about Appellant’s threat to kill his parents was “layer upon layer

of hearsay” because it was a statement by a doctor recounting what Appellant’s mother

said about what Appellant said. The State responded that they had filed the business records

affidavit as required and that defense counsel should have raised any objections before

trial. The trial judge said that he understood the defense objection and he did “have

concerns about that.”

The State agreed to submit only Douget’s risk assessment report (State’s Exhibit

74A), omitting material dealing with competence and sanity. Defense counsel stated, “[I]f

the Court, again, is going to admit the future danger risk assessment, I would ask that the

items that she relied on that are hearsay be redacted from the document.” The State

indicated an intent to use a part of the report recounting that Appellant threatened to kill

his parents in 1996. Defense counsel again objected. Noting Appellant’s objections, the

trial judge ruled: “I’m going to let her testify to what she relied on in making her report.

And as far as her risk assessment [State’s Exhibit 74A], the work she prepared, I don’t

mind that coming in as an exhibit also.”

Douget prepared the risk assessment report (State’s Exhibit 74A) based on her

interviews with Appellant, the “HCR-20 Risk Assessment for Violence completed on

01/28/2013,” Appellant’s medical records, and information about the case supplied by

Delacerda – 66

defense counsel. Her report addressed Appellant’s “current mental state and whether his

release to a less restrictive environment would create a substantial risk of bodily injury to

another person or serious damage to the property of another.” In the report, Douget

discussed Appellant’s 1996 inpatient hospitalization for “severe depression, anger, rage

spells, and [a] marijuana problem.” Appellant “had threatened to kill his parents and had

been in physical fights with them.” He also “stole his parents’ property and sold it to

support his drug habit.” Appellant was discharged “against medical advice” because of his

disruptive behavior but was “judged not dangerous to himself or others.”

Although the State did not question Douget about most of her risk assessment

report, the prosecutor briefly asked her whether she considered “something that indicated

violence” on page two of her report. Douget answered, “Yes,” noting that Appellant’s 1996

inpatient hospitalization records “reported that he had threatened to kill his parents.” On

cross-examination, defense counsel elicited Douget’s admissions that she had never

interviewed Appellant’s mother; the statement was made “20-something years ago”; and

Appellant did not actually kill his parents. The defense called their own expert, Gripon,

who testified that Appellant’s six-and-a-half years of jail records were “pretty benign” and

demonstrated that Appellant “has been able to conduct himself in a reasonable manner . . .

without any repeated acts of violence.” Gripon opined that, “in a prison setting,”

Appellant’s “risk for future violence is low.”

2. Relevant Law

An expert may base his or her opinion on data that the expert “has been made

aware of, reviewed, or personally observed.” Rule 703. If experts in the field reasonably

rely on this kind of data in forming an opinion, the data “need not be admissible for the

Delacerda – 67

opinion to be admitted.” Id. However, if the underlying data would otherwise be

inadmissible, the opinion’s proponent may not disclose the data to the jury “if their

probative value in helping the jury evaluate the opinion is outweighed by their prejudicial

effect.” Rule 705(d).

If the court allows the proponent to disclose those facts or data the court must,

upon timely request, restrict the evidence to its proper scope and instruct the jury

accordingly. Id. We have said, “One of the greatest dangers in allowing otherwise

inadmissible evidence under Rule 705 is that the jury will consider the facts and data as

substantive evidence rather than as merely constituting the underlying basis for the expert’s

opinion.” Valle v. State, 109 S.W.3d 500, 505–06 (Tex. Crim. App. 2003) (quoting Cole v.

State, 839 S.W.2d 798, 815 (Tex. Crim. App. 1992) (Maloney, J., concurring on reh’g)).

For hearsay to be admissible, it must fit into a hearsay exception. See Rule 802.

Rule 803(6) provides requirements for “records of regularly conducted activity” to be

admitted as an exception to the hearsay rule, even if the declarant is available to testify.

Garcia, 126 S.W.3d at 926 (citing Rule 803(6)). If the proponent complies with the rules

of evidence, the business records themselves are admissible. However, this exception does

not allow the admission of information in the business records from outside sources who

have no business duty to report accurately. See id. at 926. Those statements must

independently qualify for admission under their own hearsay exception. Id. at 926–27; see

also Rule 805 (“Hearsay within hearsay is not excluded by the rule against hearsay if each

part of the combined statements conforms with an exception to the rule.”).

To preserve error regarding hearsay within hearsay, a defendant must specifically

object to the double-hearsay content within the evidence at issue. See TEX. R. APP. P.

Delacerda – 68

33.1(a)(1) (requiring that the complaining party at trial state the grounds “with sufficient

specificity to make the trial court aware of the complaint, unless the specific grounds were

apparent from the context”); see also Rule 805. We review the trial court’s ruling under an

abuse of discretion standard and will not reverse the ruling if it is within the zone of

reasonable disagreement. Tillman, 354 S.W.3d at 435.

We disregard non-constitutional error that does not affect an Appellant’s

“substantial rights.” See TEX. R. APP. P. 44.2(b). We will not reverse if, after examining

the record, “we have fair assurance . . . that the error did not influence the jury, or had but

slight effect.” Taylor, 268 S.W.3d at 592; see also Garcia, 126 S.W.3d at 927 (declining

to reverse where we had “fair assurance that the error in question did not have a substantial

and injurious effect or influence in determining the jury’s verdict”).

3. Analysis

When the State originally offered the exhibit at issue, Appellant objected on the

basis of hearsay to the entire document. Defense counsel later stated that their objection

was “not to the hearsay of the document itself” but to “the items that [Douget] relied on

that are hearsay.” However, defense counsel only specifically addressed—and therefore

only preserved—one hearsay-within-hearsay statement within this exhibit and Douget’s

related testimony: the assertion taken from the 1996 discharge summary that Appellant had

threatened to kill his parents. 27 See TEX. R. APP. P. 33.1(a)(1).

27

Although Appellant did not restate his hearsay-within-hearsay objection at the moment

the witness testified about this statement in the exhibit, the record shows that the trial court

understood and noted Appellant’s objections to this material.

Delacerda – 69

We assume, without deciding, that the trial court erred in admitting Appellant’s

mother’s statement about Appellant’s threat through Douget’s testimony and report. Cf.

Valle, 109 S.W.3d at 506 (“Allowing the defense to present appellant’s mother’s statements

to the jury would have entailed a danger that the jury would consider those statements as

substantive evidence.”). We turn to the question of harm. See TEX. R. APP. P. 44.2(b);

Taylor, 268 S.W.3d at 592; Garcia, 126 S.W.3d at 926–27.

After the court admitted the statement at issue, defense counsel cross-examined

Douget and elicited her admissions that she had never interviewed Appellant’s mother, the

threat was made “20-something years ago,” and Appellant did not actually kill his parents.

The defense responded to Douget’s testimony with Gripon’s testimony that criticized

standardized risk assessment tests and emphasized Appellant’s years of nonviolent

behavior in jail. Further, the jury was faced with the heinous facts of the instant offense

and Appellant’s other violent conduct.

In sum, we have fair assurance that any error did not have a substantial and

injurious effect or influence on the jury’s punishment verdict. We overrule Appellant’s

thirty-first and thirty-second points of error.

IX. J.G.D.’S TESTIMONY

In his thirty-third point of error, Appellant argues that the trial court erred in

admitting at the punishment phase the testimony of his son, J.G.D., because the State gave

insufficient notice. Appellant maintains that the State “had provided general notice of the

punishment witnesses” under Article 37.07, § 3(g), but the State’s general notice did not

describe the subject of J.G.D.’s testimony and lacked detail.

Delacerda – 70

In his thirty-fourth point of error, Appellant contends that the trial court erred in

allowing J.G.D.’s testimony because the State violated “the Rule,” which prohibits

witnesses from collaborating or discussing their testimony. 28 Appellant asserts that, before

J.G.D. testified, he met with the District Attorney and discussed his anticipated testimony

with other witnesses, including his brother D.D. Appellant asserts that J.G.D. had been

admonished concerning “the Rule,” yet collaborated with other witnesses, and his

testimony ultimately corroborated their statements. Appellant complains that, though the

trial court prohibited J.G.D. and D.D. from testifying during the guilt phase, the court

allowed J.G.D. to testify at the punishment phase over his objection.

Appellant argues that the trial court did not perform the analysis required by this

Court in Archer v. State, 703 S.W.2d 664, 666–67 (Tex. Crim. App. 1986) (setting out two

criteria for assessing whether a defendant is harmed by a Rule violation: (1) “did the

witness actually hear the testimony or confer with another witness without court

permission”; and (2) did the witness give “testimony that either corroborates another

witness for the prosecution or contradicts defensive testimony on that issue”).

Appellant asserts that J.G.D. testified to “damaging information,” describing

Appellant’s brutal abuse of B.L. He declares that “[o]ne cannot conceive much worse

testimony in the punishment phase of a capital murder case involving the death of a child

than the testimony of this witness[.]” Further, Appellant argues, J.G.D.’s testimony

28

Rule 614—known as the sequestration rule, or “the Rule”—provides in relevant part:

“At a party’s request, the [trial] court must order witnesses excluded so that they cannot hear other

witnesses’ testimony.”

Delacerda – 71

corroborated statements given by other witnesses; thus, he maintains, the trial court

reversibly erred in allowing J.G.D. to testify at the punishment phase.

A. Background

On June 12, 2012, Appellant filed his “Motion for Discovery and Limiting

Instructions to the Jury.” In this pleading, Appellant stated:

If the State intends to introduce in its case-in-chief evidence of other crimes,

wrongs or acts other than that arising in the same transaction, the Defendant

hereby gives timely notice of its right and request to have reasonable notice

of such acts, in advance of trial pursuant to Texas Rule of Evidence 404(b).

Further, the State should be required to advise the Court and counsel for the

Defendant of the specific purpose for which such evidence is being offered.

Additionally, notice of any other unadjudicated offenses that the State

intends to offer evidence of during the penalty phase of the trial should be

given in order to avoid any unfair surprise to this Defendant.

Appellant asked that the trial court “sustain this Motion and relief be granted as prayed for

herein.”

On the same day, Appellant filed his “Motion to Discover State’s Extraneous

and/or Unadjudicated Acts of Misconduct to be Offered at Guilt or Punishment,” stating:

“In order for Defendant’s counsel to effectively investigate and defend against any and all

extraneous and/or unadjudicated acts of misconduct that the State may present, counsel is

entitled to discovery of such acts with sufficient notice.” In this motion, defense counsel

prayed for the trial court to “require the State to disclose any and all extraneous and/or

unadjudicated acts of misconduct to Defendant’s counsel on or before 30 days before trial.”

The trial court denied both of these motions.

In November 2017, the State included J.G.D. on a witness list it sent to defense

counsel, and it also filed its second amended notice of extraneous acts. That notice included

the following acts (quoted):

Delacerda – 72

• Choking complainant;

• Twisting complainant’s leg causing [a] spiral fracture to the femur or

tibia;

• Twisting the foot of complainant;

• Inserting a push-pin to the forehead, toes, and fingers of complainant;

• Burning complainant with a cigarette;

• Causing abrasions, bodily injury and ultimately scabbing to both

buttock cheeks and the right leg, upper thigh, and right top of foot of

complainant by some type of scalding, burning, or paddling;

• Striking and/or hitting the complainant with defendant’s hand(s)

and/or fist(s) and causing injury to complainant’s body;

• Causing breaks, fractures, and/or bodily injury to the ribs of the

complainant;

• Causing circular marks to the bottom of the feet of complainant by

causing complainant to stand on bottle caps;

• Kicking complainant;

• Causing complainant to lick her panties and/or feces;

• Tripping complainant;

• Threatening complainant; and

• Striking and/or hitting complainant with a paddle-board.

On the morning of February 22, 2018, during the guilt phase, the judge sent the

jurors home for the day, saying, “We have had something come up.” After the jury left,

defense counsel explained:

An issue has arisen that has been brought to our attention by the State

regarding the testimony of the next two witnesses -- the final two witnesses

for the State. We believe that there is an issue with how their interviews were

handled by the DA’s office. Again, they have brought it to our attention,

which is admirable; but we believe that we need to have a factfinding hearing

Delacerda – 73

with everyone that was involved in the interviews before we can even make

a decision about what we have.

The State’s attorneys said that one of the prosecutors held a meeting earlier that

morning with Appellant’s teenage sons (J.G.D. and D.D.), their mother (Jeri Shelburne),

and their stepfather (Joys Shelburne), who were all on the State’s witness list:

[Prosecutor One]: Yes, Your Honor. As we were proceeding this morning,

I was in a rush. We brought the boys in along with their

mother and stepfather, who I never met. I began to go

over their potential testimony with them. I was in a rush

and inadvertently did that when they were both present;

and I apologize for that. I let [Prosecutor Two] know

and brought it to his attention. I understand that they

were not under the rule and had not been sworn in as

witnesses. However, it’s still, in my opinion, not proper.

[The Court]: Yes, the rule was invoked. No doubt about that. And

they were not present; but y’all were aware of the rule,

of course.

[Prosecutor One]: Your Honor, I inadvertently started speaking and

talking about their potential testimony.

[The Court]: Okay.

[Prosecutor Two]: Also, after talking with [Prosecutor One], he assured me

that he did not -- in interviewing the boys -- let them

know that somebody else has already testified to

something from the stand to say, hey, this is what they

said. Is it anything like that? So, he didn’t tell them

anything anybody else said. It was merely an

inadvertent violation of talking together and in just

talking and saying, okay, let’s go over your testimony;

what you personally know and saw and heard.

The defense moved for a mistrial based on “a serious, serious mistake in a case

like this.” The trial court denied the motion.

After a recess, the trial judge questioned J.G.D. The boy said that, earlier that

morning, he, his brother, his mother, and his stepfather had met with a prosecutor in the

Delacerda – 74

prosecutor’s office. All four of them sat on a couch together and discussed what would

happen that day. The meeting lasted about ten or twenty minutes. They talked about “how

it was going to go down[,] steps of like how we are going to have to come in here and talk

about everything.” He said that the prosecutor “talked about like basically what we had

told him and make sure everything was 100 percent true, what we told him, before we came

in here. . . . He was asking us if it was all correct.”

The trial judge asked, “Did you learn anything new in this meeting at all?” J.G.D.

replied, “No, sir.” The judge asked, “Was there any discussion about what anyone else may

have testified to?” J.G.D. again replied, “No, sir.” The judge followed up: “Did this

meeting help your memory? Did you remember anything new that you had not?” J.G.D.

responded, “No, it was just everything that we have talked about -- pretty much before that,

the same thing.” The judge asked, “Were you reminded of anything that you had

forgotten?” J.G.D. said, “No, sir.” He said the prosecutor told him to “tell the truth.”

D.D. testified that he and his brother had separately recorded videotaped

statements six years before. Although their mother (Jeri) was in the room with each of them

during those statements, they were the ones who were “talking the whole time.” D.D. said

that the “first video explains everything -- is everything that we have said.” D.D. said the

February 2018 meeting with the prosecutor lasted five, ten, or fifteen minutes, but it could

have been longer. He said, “Well, what we went over is what we’ve already said to [the

prosecutor]. That’s how he knows what he was saying because of us. . . . And today, he

was just asking us, you know, pretty much what we recall, I guess.” D.D. added, “We were

just going over how . . . [t]hat he abused her, you know.”

Delacerda – 75

The judge asked D.D., “Did you hear anything this morning that you hadn’t heard

before?” D.D. replied, “No sir.” The judge asked if D.D. remembered “anything new” that

he had not already recalled and discussed. The boy replied, “No sir.” D.D. added,

[T]he reason why our stories are, like, the same or whatever, is because we

seen it the same; and there is no way that we could forget because it was

tragic. I mean, it was something tragic. There is no way I can forget that.

That’s why both our stories are the same. Because everything we seen is

stuck in our head[s].

Jeri testified that the meeting in the prosecutor’s office lasted ten or fifteen

minutes. She said that she did not have a good memory of the details, but the prosecutor

“just went over some of the things that [J.G.D. and D.D.] had previously said” and “[t]old

them to say the truth.” Jeri stated that the prosecutor was “not trying to pressure them into

anything, any different than what actually happened.” Jeri said the prosecutor “[j]ust asked

if they remembered it all; like . . . [Appellant] hitting the little girl. Everything that he has

done.” She also mentioned “twisting the ankle” and “[l]icking her panties” and the other

things that the boys “had said previously” in their original statements.

The judge asked Jeri, “Did you hear anything new this morning that you had never

heard before?” She replied, “No. No, sir.” Jeri added, “Everything that we went over today

was in the original video when we first came the very first day when everything happened

on . . . August 18th.”

The next morning, the trial court ruled that the State would not be able to call

J.G.D. and D.D. to testify at the guilt phase. The State responded, “In light of the Court’s

ruling, we rest.”

During the punishment phase, the State called Jeri to the stand. The trial court

overruled defense counsel’s objections based on “[Article] 37.07 and the rule violation.”

Delacerda – 76

Jeri testified about Appellant trying to run over a man with his Bronco after a “drug deal

gone bad.” She did not testify about Appellant’s abuse of B.L.

Subsequently, the State called Joys to the stand. The trial court overruled defense

counsel’s objection on the basis of inadequate notice. Joys testified about an incident in

which Appellant punched him through his car window. He did not testify about Appellant’s

abuse of B.L.

The State indicated its intent to call J.G.D., but not D.D., to testify. Defense

counsel objected based on: (1) inadequate notice under Article 37.07, § 3(g) 29 (“It’s

handing us the haystack and saying, ‘Here, good luck’”); and (2) the DA’s Office violating

the Rule by collaborating with the four witnesses “about their testimony as a group.”

Defense counsel argued that these witnesses had not been released from the Rule, and “[i]t

was, you know, four witnesses sat in a room with the elected district attorney and discussed

the witnesses’ testimony; one of whom is the witness they intend to call. We believe that’s

absolutely unacceptable under the rule.” Counsel argued that the trial court should exclude

J.G.D.’s testimony because, “[i]f they collaborate and they corroborate, that’s harm and

that’s enough.”

Regarding the lack-of-notice objection, the trial judge ruled that Appellant could

not claim surprise because he was provided access to his sons’ videotaped statements

containing the same allegations:

I don’t think that the Defense can claim any type of surprise that these

witnesses are being called, given the fact that, as I understand it, they were

interviewed six years ago. Apparently, there [are] some recorded statements

or videotape statements. I’m sure you have had the opportunity to go over

29

Article 37.071, § 2(a) requires that, in a capital case, “[t]he introduction of evidence of

extraneous conduct is governed by the notice requirements of Section 3(g), Article 37.07.”

Delacerda – 77

those. And I would not expect this witness to testify [to] something beyond

what was discussed then.

Defense counsel re-urged their “previous objection under Trial Exhibit 2” but did not

contradict the trial court’s assertion that counsel had the opportunity to review J.G.D.’s

videotaped statement containing the same content as the witness’s testimony. Counsel did

not request a continuance.

Regarding the Rule violation, the trial judge stated that he had evaluated the

testimony provided at the hearing and believed that J.G.D. would testify “in accordance

with his oath, irrespective of that meeting.” The judge found, “[i]n balancing all the

considerations -- and I’ve balanced a lot -- I’m going to allow [J.G.D.] to testify.” J.G.D.’s

testimony (summarized above) described Appellant’s ongoing abuse of B.L. in the months

preceding her death. Defense counsel asked no questions of J.G.D.

B. Notice Under Article 37.07, § 3(g)

The Code of Criminal Procedure requires the State—“[o]n timely request of the

defendant”—to provide “notice of intent to introduce evidence under this article” which

“shall be given in the same manner required by Rule 404(b).” Art. 37.07, § 3(g). Rule

404(b) requires “[o]n timely request by a defendant . . . the prosecutor must provide

reasonable notice before trial” of the State’s intent to introduce evidence of a crime, wrong,

or act—“other than that arising in the same transaction—in its case-in-chief.” Rule

404(b)(2). If the State

intends to introduce an extraneous crime or bad act that has not resulted in a

final conviction or a probated or suspended sentence, notice of that intent is

reasonable only if the notice includes the date on which and the county in

which the alleged crime or bad act occurred and the name of the alleged

victim of the crime or bad act.

Delacerda – 78

Id.

The State’s duty to provide “reasonable notice” of intent to introduce certain

extraneous offenses is triggered by a “timely request” by the accused. Mitchell v. State,

982 S.W.2d 425, 427 (Tex. Crim. App. 1998). However, in this case, Appellant filed

discovery motions requesting that the court require the State to provide notice. A discovery

motion that requests a ruling from the trial court—“namely an order from the court

directing the State to produce evidence”—is not effective until the trial court rules on the

motion. Id. A document that seeks an action from the trial court “cannot also serve as a

request for notice triggering the State’s duty under Article 37.07, § 3(g).” Id.; see also

Espinosa v. State, 853 S.W.2d 36, 39 (Tex. Crim. App. 1993) (“While we may assume the

State makes itself aware of the contents of a discovery motion, the State need not comply

with requests contained in a discovery motion until the trial court orders it to do so.”). We

review a trial court’s ruling on the admission of extraneous offense evidence under an

abuse of discretion standard. See McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim.

App. 2005).

Appellant’s “Motion for Discovery and Limiting Instructions to the Jury” stated

that the defense “hereby gives timely notice of its right and request to have reasonable

notice of such acts.” Nevertheless, this motion ultimately sought an order from the trial

court. Similarly, Appellant’s “Motion to Discover State’s Extraneous and/or

Unadjudicated Acts of Misconduct to be Offered at Guilt or Punishment” asked the trial

court to require the State to disclose any extraneous acts to defense counsel by thirty days

before trial. Neither of these documents served as a proper “timely request” under Article

37.07, § 3(g). See Mitchell, 982 S.W.2d at 427 (“[W]hen a document asks the trial court to

Delacerda – 79

enter an order and it also asks the State to provide notice, the document is insufficient to

trigger the duty to provide notice under Art. 37.07, § 3(g).”).

Appellant’s pleadings were—as titled—motions for discovery. Therefore, “it

[was] incumbent upon him to secure a ruling on his motion in order to trigger the notice

requirements.” See Espinosa, 853 S.W.2d at 39. Appellant secured rulings on his motions,

but both rulings were denials. Therefore, the State was not required to comply with the

discovery motions and the motions were “insufficient to trigger the duty to provide notice

under Art. 37.07, § 3(g).” See Mitchell, 982 S.W.2d at 427.

Even if we assume that Appellant’s motions triggered the State’s duty to provide

notice and the State failed to comply with the notice requirements, Appellant has not

demonstrated harm. Error in admitting extraneous offense evidence when the State fails to

comply with the notice requirements of Article 37.07, § 3(g), is statutory, not

constitutional, error; therefore, we apply the test in Rule of Appellate Procedure 44.2(b).

Cf. Hernandez v. State, 176 S.W.3d 821, 824 & n.6 (Tex. Crim. App. 2005) (applying the

Rule 44.2(b) non-constitutional harm standard to a violation of Rule 404(b)’s notice

requirements). A failure to provide reasonable notice in compliance with the statute “does

not render the evidence inherently unreliable, but instead raises a question about the effect

of procedural noncompliance.” Id. at 825 (quoting Roethel v. State, 80 S.W.3d 276, 282

(Tex. App.—Austin 2002, no pet.)). The notice requirement’s purpose is to allow a

defendant to prepare to meet the State’s extraneous act evidence. Id.

The State notified Appellant in 2017 that prosecutors intended to call J.G.D. as a

witness at trial and also provided a list of the abusive acts they planned to show that

Appellant committed against B.L. The notice document did not include dates for each act.

Delacerda – 80

However, the record shows that B.L. only lived with Appellant for three or four months,

so the available time frame was narrow. And the enumerated misconduct was particular

and peculiar. Further, the record suggests that defense counsel was given access to the

videotaped statements that J.G.D. and D.D. made six years earlier, in which the boys

discussed the same conduct. See, e.g., Hernandez, 176 S.W.3d at 826 (“Surely, having been

given the complete tape recordings, appellant’s counsel

This text is long and has been trimmed here. Open the source document for the complete record.