Petition for Writ of Certiorari — Fidencio Valdez, Petitioner v. Texas

Supreme Court briefSep 18, 2018

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App. 1

[SEAL]

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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NO. AP-77,042

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FIDENCIO VALDEZ, Appellant

THE STATE OF TEXAS

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ON DIRECT APPEAL FROM

CAUSE NO. 20120D00749 IN THE

384TH JUDICIAL DISTRICT COURT

EL PASO COUNTY

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RICHARDSON, J., delivered the opinion of the

Court in which KELLER, P.J., and KEASLER, HERVEY, YEARY, NEWELL, KEEL, and WALKER, JJ. joined.

ALCALA, J. concurred in the result.

OPINION

On May 30, 2014, a jury convicted appellant of capital murder for intentionally causing the death of Julio

Barrios in the course of committing or attempting to

commit robbery. See TEX. PENAL CODE § 19.03(a)(2).

Pursuant to the jury’s answers to the special issues set

forth in Texas Code of Criminal Procedure Article

App. 2

37.071 § 2(b) and (e), the trial court sentenced appellant to death.1 Direct appeal to this Court is automatic.2 Appellant raises thirteen points of error. After

reviewing appellant’s points of error, we find them to

be without merit. Consequently, we affirm the trial

court’s judgment and sentence of death.

STATEMENT OF FACTS

In early December 2010, at a bus stop in El Paso,

Gilbert Ramirez met a young man named Julio Barrios. Ramirez saw Barrios pull out a bag of marijuana

and asked Barrios if he knew anybody who sold marijuana. Barrios responded that he sold marijuana and

also other drugs, including ecstasy. The two men exchanged phone numbers. At the time, Ramirez was living with his sister-in-law, Ruby Jurado. Both Ramirez

and Jurado were acquainted with appellant.

Appellant had recently moved into his girlfriend

Veronica Cera’s apartment. He did not have a job and

he routinely drove Cera’s car, a white Saturn SUV. On

December 10, 2010, appellant drove Cera’s SUV to Jurado’s house. Cera was riding in the front passenger’s

seat. Appellant, who was wearing gray sweatpants, a

gray sweatshirt, and glasses, asked Jurado for Xanax

pills and money for gas. She gave him the pills, but told

him that she did not have any money. Appellant asked

See TEX. CODE CRIM. PROC. art. 37.071 § 2(g). Unless otherwise indicated, all future references to Articles refer to the Texas

Code of Criminal Procedure.

TEX. CODE CRIM. PROC. art. 37.071 § 2(h).

App. 3

Ramirez if he knew where to get some “ecstasies.”

Ramirez answered that he knew this “little boy”

(meaning Barrios) who sold ecstasy. Ramirez called

Barrios on appellant’s behalf and asked Barrios if appellant could buy forty ecstasy pills from him. Ramirez

then passed the phone to appellant so that appellant

and Barrios could work out the details concerning their

transaction. Ramirez and Jurado overheard appellant

discuss a price of $300 for thirty or forty ecstasy pills.

Cera and appellant then returned to Cera’s apartment so she could prepare for her birthday party that

evening. Cera testified that appellant spoke on the

phone with “this kid” in order to “score some pills.” The

“kid” gave appellant directions to a location in northeast El Paso to make the exchange. Cera had $40 and

she believed that she and appellant were going to

“score” four pills for her birthday party with her money

because appellant did not have any money. They left

her apartment and stopped by appellant’s friend Liz’s

house, where appellant had previously hidden a brown

tote bag containing guns. Appellant went inside for five

or ten minutes, and then they headed to the specified

location.

Barrios and his girlfriend, Brenda Rosales, were

shopping that day when he began receiving many

phone calls. Barrios’s uncle, Samuel Herrera, picked

up Rosales and Barrios in Herrera’s white Chrysler Sebring. At Barrios’s request, Herrera drove the couple to

the northeast part of town. Barrios continued to receive a lot of phone calls during the drive. Phone records admitted at trial revealed that Barrios received

App. 4

multiple calls from appellant’s number during this

time period. These calls ceased at 6:29 p.m. During the

drive, Barrios kept insinuating to Herrera that he “was

going to do something, like he was either going to score

some weed or buy something.” Barrios handed Herrera

several empty sandwich bags which led Herrera to surmise that Barrios intended to purchase some marijuana and divide it or do something else “drug related.”

Herrera followed Barrios’s driving directions to a location on Waldorf Street.

Eventually, Herrera stopped his car near a white

SUV parked on the opposite side of the street. Barrios

got out of the Chrysler and approached the SUV. Cera

heard appellant tell Barrios to get into the truck and

saw Barrios climb into the back seat of her SUV (behind the driver’s seat). Appellant then drove away and

Herrera followed the SUV in his Chrysler. Appellant

stopped in a darker area on Tropicana Street and Herrera parked about fifteen feet behind him. Appellant

told Barrios to give him the pills. Barrios handed appellant a sandwich bag filled with pills. Appellant

handed the bag to Cera and told her to count them.

Cera started to count the pills—there were about

thirty or forty of them—and then Barrios asked appellant for the money. Appellant told Barrios that “he ain’t

going to pay him shit.” He asked Barrios if he was

wearing a wire. Barrios got mad and told appellant to

“give him his fucking pills back.” Appellant responded

that he was “not going to give [Barrios] shit.” Cera then

heard two shots and looked up to see that appellant

had shot Barrios in the head.

App. 5

Appellant got out of the SUV and pulled Barrios

out of the vehicle. Cera panicked, threw the pills up in

the air, got out of the SUV, and went around to the back

of the vehicle. Appellant ordered Cera to “get back in

the fucking truck” and she complied. From inside the

SUV, Cera saw appellant shoot Barrios again while

Barrios was on the ground. Appellant then turned and

shot twice at the car (the Chrysler) parked behind

them. Cera also testified that she saw a man and a girl

get out of the car and they were yelling.

From their vantage point in the Chrysler, Herrera

and Rosales heard a bang from within the SUV. Herrera thought he saw a flash from the passenger’s side

of the SUV, but his attention was focused on the

driver’s side. The driver of the SUV, whom Herrera described as tall and thin, and wearing glasses and a

gray hooded sweatshirt, exited the SUV and opened

the rear driver’s side door. Herrera saw the driver pull

Barrios out of the SUV and shoot him while he was on

the ground. Meanwhile, Herrera got out of his Chrysler

and started to run toward the SUV. The driver turned

and pointed the gun at Herrera. He began shooting in

Herrera’s direction and shot the windshield of the

Chrysler. Herrera ducked behind his car door. He

heard a total of about five shots, and then the driver

drove away in the SUV. Herrera grabbed a crowbar

from his vehicle and ran after the SUV, but it was already gone. He picked Barrios up and saw the gunshot

wounds to his head. Barrios’s eye was protruding from

its socket and he was bleeding from his mouth and

nose. Rosales ran to Barrios and grabbed his hand.

App. 6

Some people approached them and Herrera asked

them to call 911.

Forest Zozaya, who was visiting a friend on Tropicana Street on December 10, 2010, witnessed these

events. He told the police that he had seen an SUV and

a car drive up and park on Tropicana Street. He said

that he heard the muffled sound of gunshots coming

from inside the SUV. Zozaya saw the driver of the SUV

exit the vehicle, open the driver’s side back door, and

“pull out a guy and drop him on the floor.” Zozaya

heard three more shots and he assumed that the driver

had shot the guy on the ground. Zozaya heard a girl

repeatedly screaming “Julio” and “No” and heard

someone yell, “call 911.” Zozaya described the SUV’s

driver as tall and thin and wearing a gray “hoodie”

sweatshirt and glasses.

At approximately 6:30 p.m., appellant called

Ramirez and made a statement in Spanish that

equated to, “everything got ruined” or “everything had

gone down wrong.” At this point, appellant’s cell phone

was transmitting its signal via a cell tower that was

located only about three-tenths of a mile from where

Barrios was shot. Ramirez asked appellant what he

meant and what had happened, but appellant would

not tell him anything. Appellant instructed Ramirez

not to say anything to Jurado, and he hung up the

phone. However, Ramirez told Jurado what appellant

said. Ramirez and Jurado then began trying to call appellant, but he did not answer his phone. Eventually

Jurado reached appellant and asked him, “[W]hat happened to the little boy?” Appellant told her, “No,

App. 7

nothing. Don’t worry about it.” He acted “all pissed off ”

and hung up on her. After that conversation, Jurado

never spoke with appellant again. Ramirez and Jurado

viewed phone records in court and identified various

calls between appellant and Barrios.

Cera testified that, as appellant drove away after

shooting Barrios, he yelled at her for getting out of the

SUV. He stopped at a stop sign and asked her if she

was “down to go with him” or if she was “going to stay.”

Cera interpreted this question as a threat, and she told

him that she would stay. They drove back to his friend

Liz’s house and then went to Cera’s sister’s house.

Later, appellant took Cera’s SUV for a few days and

then abandoned it on a road. He called Cera’s home

and left a message telling her where to find the SUV.

When Cera picked up the SUV, she discovered blood

spatter, appellant’s black shirt and glove, and Barrios’s

shoe in the vehicle. She cleaned up the blood with

Clorox, burned the shoe and the clothing, and hid the

SUV near her sister’s house.

Hours after the shooting, appellant arrived at his

ex-wife’s house in the middle of the night with his car

radio blaring. He told her that something bad had happened. He was very “hyper” and he asked her for cocaine and twenty dollars. She testified that he was a

drug addict who asked her for money and stole to support his habit. About six days after the shooting, El

Paso police officers asked Herrera to look at a photo

line up. Herrera identified appellant in the third photo

in the second group as the driver of the white SUV.

Herrera said he recognized appellant’s eyes, glasses,

App. 8

and the slim shape of his face. He said the photo lineup

identification process took, at most, about five minutes.

Herrera also identified appellant in the courtroom as

the driver of the white SUV and the man who shot his

nephew.

Detective Ray Sanchez was assigned to investigate this case. He testified that he used phone records

and other information to find Cera. Cera eventually led

Sanchez to the place where her white SUV was hidden

and she made a statement about what had happened

on December 10th. Subsequent forensic testing revealed blood inside Cera’s SUV and in its tire well that

yielded DNA profiles consistent with Barrios’s DNA.

Cera testified that appellant returned to her apartment after Sanchez had come. In Cera’s presence, appellant instructed his friend, Santiago De Leon, to “get

rid of the gun.”

Detective Sanchez also obtained video footage

taken on December 6, 2010, by a camera located at the

Bayou Bar and Grill. The video showed appellant making a cell phone call in the bar. Cell phone records

demonstrated that he was then using the same phone

number that called Barrios repeatedly on December

10th.

The medical examiner testified that Barrios died

as a result of two gun shot wounds to his head. Both

wounds exhibited stippling, which indicated that the

assailant fired the gun in close proximity to the victim.

App. 9

USE OF FALSE EVIDENCE

In his first point of error, appellant argues that the

prosecutors deprived him of due process of law in violation of the Fourteenth Amendment to the United

States Constitution by knowingly using Cera’s false

out-of-court statements and allegedly false trial testimony as substantive evidence. Appellant further contends in his second point of error that the prosecutors

deprived him of due process of law by allowing Cera’s

false statements to “go uncorrected.”3

The State’s “constitutional duty to correct known

false evidence is well established both in law and in

the professional regulations which govern prosecutorial conduct. . . . It does not matter whether the prosecutor actually knows that the evidence is false; it is

enough that he or she should have recognized the misleading nature of the evidence.”4 Further, it matters

not whether the falsity concerns the accused’s guilt or

the witness’s credibility: “A lie is a lie, no matter what

its subject, and, if it is in any way relevant to the case,

the district attorney has the responsibility and duty to

correct what he knows to be false and elicit the truth.”5

The State violates a defendant’s right to due process

See Napue v. Illinois, 360 U.S. 264, 269–71 (1959) (holding

that a prosecutor violated the defendant’s due process rights under the Fourteenth Amendment when he failed to correct a witness’s false statement that the witness had been promised no

consideration in return for his testimony).

Duggan v. State, 778 S.W.2d 465, 468–69 (Tex. Crim. App.

1989).

Napue, 360 U.S. at 269–70 (internal citations omitted).

App. 10

when it actively or passively uses perjured testimony

to obtain a conviction.6

Further, testimony need not amount to perjury to

constitute a due process violation – the proper question

“is whether the particular testimony, taken as a whole,

‘gives the jury a false impression.’ ”7 “If the prosecution

presents a false picture of the facts by failing to correct

its own testimony when it becomes apparent that the

testimony was false, then the conviction must be reversed.”8 However, the defendant bears the burden of

showing that the testimony used by the State was

false.9 Discrepancies in testimony alone do not establish falsity.10

The knowing use of false testimony violates due

process only when a “reasonable likelihood” exists that

the false testimony affected the outcome, i.e., the false

testimony was material.11 This “ ‘reasonable likelihood’

standard is equivalent to the standard for constitutional error, which ‘requir[es] the beneficiary of a constitutional error to prove beyond a reasonable doubt

Ex parte Castellano, 863 S.W.2d 476, 481, 485–86 (Tex.

Crim. App. 1993).

Ex parte Weinstein, 421 S.W.3d 656, 665–66 (Tex. Crim. App.

2014).

Losada v. State, 721 S.W.2d 305, 311 (Tex. Crim. App. 1986)

(citing Napue, 360 U.S. 264).

Id.

Id. at 312.

Weinstein, 421 S.W.3d at 665; Ex parte Ghahremani, 332

S.W.3d 470, 478 (Tex. Crim. App. 2011).

App. 11

that the error complained of did not contribute to the

verdict obtained.’ ”12

Cera’s 2010 and 2012 Statements

Appellant specifically complains about the State’s

use of Cera’s December 17, 2010 videotaped statement

to Detective David Samaniego and her August 19, 2012

written supplemental statement to other officers. Appellant argues that prosecutors knew these exhibits

contained falsehoods, but they “failed to correct any of

the false statements and lies at any point in the trial.”

Appellant enumerates the following alleged falsehoods

in Cera’s 2010 and 2012 statements:

• Appellant claims that, in Cera’s 2010 and 2012

statements, she asserted that appellant did not

shoot Barrios until after he got out of the SUV and

opened the back door of the vehicle. Yet at trial

Cera testified that appellant shot Barrios first

from the driver’s seat.

• Appellant contends that, in Cera’s 2010 statement, when asked whether she ever saw the gun

“afterwards,” she answered that she did not see

the gun and then shook her head in response when

the detective asked her, “Never?” In her trial testimony, Cera stated that she first saw the gun when

appellant shot “the little kid.”

• Appellant asserts that, in Cera’s 2010 statement, she said that she heard appellant fire two

ted).

Ghahremani, 332 S.W.3d at 478 (internal citations omit-

App. 12

shots and then she “blacked out.” She said she

could not remember what happened after that. In

her 2012 statement, she said that she saw Barrios

leaning against the back seat and saw appellant

pull him out of the SUV, and she did not mention

blacking out. In her trial testimony, she stated

that she “blacked out,” but she recounted hearing

a total of five gunshots, including two shots that

she saw appellant fire at Barrios from inside the

car.

• Appellant complains that Cera testified at trial

that she only took about four steps towards the

back of the SUV before she re-entered the vehicle.

But in 2012, Cera stated that she went around the

back of the vehicle from the passenger side before

re-entering the SUV.

• Appellant claims that, in Cera’s 2012 statement, she reported that appellant told her to get

out of the car, but in her trial testimony, she did

not mention that appellant told her to get out of

the car.

Appellant contends that, as Cera was the “only

witness who could testify regarding what brought

about the shooting incident[,]” Cera’s testimony was

material to the outcome of the case. He asserts that the

prosecutors “were knowingly complicit in presenting

false evidence[,]” which so “tainted and corrupted the

‘truth seeking function’ of the trial that the only remedy . . . would be to grant [appellant] a new trial.”

The State argues that appellant failed to preserve

his due process claims for review because he did not

object in the trial court on this basis, nor did he raise

App. 13

these claims in a motion for new trial.13 Appellant responds in his reply brief that no objection was necessary because the State’s presentation of Cera’s false

statements and failure to correct them deprived him of

due process, and thus represented a violation of an “absolute systemic requirement” and fundamental error.14

To preserve error for appellate review, an appellant is ordinarily required to make a timely request,

objection, or motion to the trial court stating the

grounds for the ruling sought with sufficient specificity

to make the trial court aware of his complaint.15 Additionally, an appellant’s point of error on appeal must

See TEX. R. APP. P. 33.1(a) (“As a prerequisite to presenting

a complaint for appellate review, the record must show that: (1)

the complaint was made to the trial court by a timely request,

objection, or motion. . . .”); Pena v. State, 353 S.W.3d 797, 807–09

(Tex. Crim. App. 2011) (“A complaint is timely if it is made ‘as soon

as the ground of objection becomes apparent.’ Regarding its specificity, the objection must simply be clear enough to provide the

judge and the opposing party an opportunity to address and, if

necessary, correct the purported error.” (internal citations omitted)).

See TEX. R. EVID. 103(d) (2014) (“In a criminal case, nothing in these rules precludes taking notice of fundamental errors

affecting substantial rights although they were not brought to the

attention of the court.”); United States v. Agurs, 427 U.S. 97, 103

(1976) (stating that, “the Court has consistently held that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair and must be set aside if there is any reasonable

likelihood that false testimony could have affected” the jury’s

judgment).

See TEX. R. APP. P. 33.1(a)(1).

App. 14

comport with the objection made at trial.16 In Marin v.

State,17 we held that the requirement that a party raise

a timely and specific objection does not apply to two

types of errors: violations of “rights which are waivable

only” and denials of “absolute systemic requirements.”18 Rights that are waivable-only include the

right to the assistance of counsel and the right to trial

by jury. Absolute systemic requirements include fundamental errors such as jurisdiction over the person,

jurisdiction over the subject matter, and compliance

with the Separation of Powers Section of the Texas

Constitution.19

We have generally held that the failure to object

in a timely and specific manner to the admission of evidence during the trial forfeits complaints about the

admissibility of that evidence, even when its admission

violates a constitutional right.20 For example, despite

the State’s confession of error in Saldano, we held that

Saldano’s claim – that the State’s testimony improperly appealed to jurors’ racial prejudices in violation of

the Equal Protection Clause – implicated neither an

“absolute, systemic requirement nor a right that is

waivable only.”21 We concluded that Saldano’s failure

Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App.

2014).

Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993).

Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002)

(citing Marin v. State, 851 S.W.2d 275, 280 (Tex. Crim. App. 1993)).

Id. at 887–88.

Id. at 889.

Id.

App. 15

to object to the testimony precluded his raising the

claim on appeal.22

Subsequently, this Court considered the applicability of our holding in Saldano to the question of

whether a defendant waived error by failing to raise a

timely objection when the State presented incorrect

testimony about the prison classification system at the

punishment phase of his trial.23 The Court observed

that Estrada “could not reasonably be expected to have

known that [the witness’s] testimony was false at the

time that it was made.”24 We noted that the State,

which had stipulated to the error, has a “duty to correct

‘false’ testimony whenever it comes to the State’s attention.”25 We concluded under these circumstances

that Estrada had “no duty” to object at trial to the false

testimony.26

The instant case differs from Estrada in significant respects. Unlike Estrada’s counsel, appellant’s

trial counsel was aware of the contradictory facts contained in Cera’s 2010 and 2012 statements to police

before the State offered these exhibits into evidence. In

fact, defense counsel cross-examined Cera at length

about the discrepancies between her earlier statements and her trial testimony. Counsel elicited Cera’s

Id.

Estrada v. State, 313 S.W.3d 274, 286–88 (Tex. Crim. App.

2010).

Id. at 288.

Id.

App. 16

testimony showing that, in 2010, she told Detective Samaniego facts that were different from the facts she

related in her trial testimony. For example, counsel

elicited Cera’s testimony that she told Detective Samaniego that, after Barrios handed over the ecstasy pills,

appellant and Barrios argued about whether Barrios

was wearing a wire, which she had not mentioned in

her direct examination testimony. Also, counsel elicited

Cera’s admission that she told police that she heard

only two shots and then she “blacked out.”

Further, Cera testified on cross-examination that,

in her 2010 and 2012 interviews, she omitted facts and

made statements that were not true. For example,

Cera admitted that she did not tell Detective Samaniego anything about counting the pills and she did not

mention throwing the pills into the air. Cera also admitted giving police incorrect information about

whether the gun shots came from inside the car, what

she did after returning home on the night of the shooting, and when she last spoke to appellant.

After defense counsel exposed the inconsistent

statements contained in Cera’s 2010 and 2012 statements, the State proffered the complained-of statements on redirect examination. When the State sought

to admit the statements, the trial judge specifically

asked defense counsel if they had any objection to the

exhibits. To the trial judge’s apparent surprise, counsel

only requested that the statements be redacted, rather

than excluded from evidence:

THE COURT:

Do you have an objection?

App. 17

[Defense Counsel]: Yes, we do.

THE COURT:

What’s the objection? . . .

[Defense Counsel]: With regards to the interview, I would like to ask if we could redact

anything that has reference to any other

crimes, which I think she does talk about –

[Prosecutor]:

I’ll double-check.

THE COURT: You guys have no objections

to this coming in other than that?

[Defense Counsel]: Other than that.

THE COURT:

You like what’s in there?

[Defense Counsel]: Yes, sir. Other than –

THE COURT: It’s all hearsay. That’s all

hearsay, but you’re going to let it in?

[Defense Counsel]: Yeah.

THE COURT: Man, very interesting to me.

Okay. They’re admitted with that caveat.

Thus, other than requesting the redaction of references to other crimes, defense counsel expressed no objection to the admission of Cera’s 2010 and 2012

statements and indicated that the defense “like[d]

what’s in there.”27

In sum, the record shows that appellant’s counsel

fully understood that the complained-of exhibits

Appellant does not argue that the State failed to redact

references to other crimes, and the record shows that the prosecutor agreed to “double-check” for any such references.

App. 18

contained Cera’s inconsistent statements, had already

revealed many of those statements to the jury, and affirmatively indicated to the trial court that the defense

did not object to the State’s submission of the exhibits

on these grounds. On these facts, we hold that the admission of Cera’s 2010 and 2012 statements did not

abrogate an absolute systemic requirement or a

waivable-only right. Appellant had a duty to raise a

timely and specific objection to these exhibits and he

did not do so. Therefore, he did not preserve his claim

of a due process violation in the State’s submission of

– or failure to correct false and inconsistent statements

within – these exhibits.28

Even if appellant had preserved this issue, his

claim still fails. After introducing Cera’s 2010 and 2012

statements, the prosecutor referred to defense counsel’s cross-examination and elicited Cera’s testimony

that she had made inconsistent statements, omitted

facts, and did not give the “full truth” to police in 2010.

In response to the prosecutor’s questions, Cera testified that at the time of the offense she was using drugs,

her friends were not good people, and she was not a

“big fan” of law enforcement. Cera testified that, because she was scared, did not want to be seen as a

snitch, and was trying to trying to protect her sister,

Cf. Saldano, 70 S.W.3d at 888–90; see also Darcy v. State,

488 S.W.3d 325, 330 n.19 (Tex. Crim. App. 2016) (noting that a

defendant’s due process claim concerning the admissibility of a

note written by a witness was the type of claim that is forfeited

by inaction); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App.

1995) (concluding that the failure to object at trial waived a federal constitutional due-process claim).

App. 19

she omitted facts when she spoke to Detective Samaniego. For example, she did not tell Samaniego that she

burned appellant’s clothing and that she overheard appellant’s conversation about getting rid of the gun. The

State elicited Cera’s testimony that, after these events,

her husband was killed and her life changed. She

stated that she no longer uses drugs and now cooperates with law enforcement.

Through its redirect examination of Cera, the

State complied with its “constitutional duty to correct

known false evidence” in Cera’s 2010 statement.29 In

addition, though the record shows that Cera’s earlier,

contradictory statements to police contained false information, Cera was consistent from 2010 through her

trial testimony about certain key facts: appellant was

driving her SUV; Ramirez put appellant in contact

with a young man who had ecstasy pills; she and appellant met the young man on the northeast side; the

young man got into the SUV behind the driver’s seat

and handed over a bag of pills; appellant refused to pay

him for the pills and told him to get out of the car; the

two men argued; and then appellant shot the young

Duggan, 778 S.W.2d at 468–69 (“The prosecutor’s constitutional duty to correct known false evidence is well established. . . . ”);

see also Vasquez v. State, 67 S.W.3d 229, 239 (Tex. Crim. App. 2002)

(noting that, even if the witness’s testimony “was a lie, the State

corrected the false testimony in its closing argument”); see, e.g.,

Marchbanks v. State, 341 S.W.3d 559, 563 (Tex. App.—Fort Worth

2011, no pet.) (holding that, even assuming a witness’s testimony

that he did not punch the defendant was perjured, the State corrected the witness’s misstatement by informing defense counsel

about a recorded admission and recalling the witness to address

the misstatement).

App. 20

man. The inconsistencies between Cera’s 2010 and

2012 statements and her testimony at trial—though

relevant to the jury in its assessment of her credibility—do not demonstrate that her trial testimony was

false.30

Cera’s Trial Testimony

Appellant additionally argues that Cera’s trial

testimony contained internal inconsistencies which

gave the jury a false impression and which the State

did not correct. He asserts that, “Cera’s testimony that

[appellant] had difficulty removing Julio Barrios from

the back seat of the SUV because Barrios continued to

hold onto the headrest of the driver’s seat with his

hand after Valdez had already shot him in the head at

point blank range with a firearm is an obvious falsehood.”31 And he complains that Cera’s trial testimony

was internally contradictory because Cera testified

that, when appellant shot Barrios on the ground, she

was outside the car. However, elsewhere she indicated

that she was back inside the car when appellant shot

Barrios on the ground. Appellant also contends that

See Losada, 721 S.W.2d at 312 (finding there was nothing

in the record showing that a witness’s trial testimony was false

where the witness had given an earlier contradictory statement

to authorities but at trial “admitted that when he turned himself

in he was scared and wanted to tell the story in the best light in

order to protect himself ”).

Appellant does not provide a record citation or other authority to support his assertion that Cera’s impression that Barrios’s arm was gripping the car seat after he was shot was an

“obvious falsehood.”

App. 21

Cera did not provide consistent testimony about precisely when she first saw appellant with the gun. Moreover, she testified that she “blacked out” for a short

time after she heard the shots, and yet she testified to

the events that happened after appellant shot Barrios

with no apparent breaks in chronology.

Appellant further asserts that “[i]f Herrera’s [the

driver of the Chrysler who followed Appellant] trial

testimony is believed, his description of the person who

first shot Julio Barrios from inside of her SUV is evidence that Veronica Cera was the shooter.”32 Appellant

posits that “[c]ommon sense dictates that a woman

with a loaded gun is as equally capable of killing another person as is a man with a loaded gun.” Appellant

complains that the State did not reveal in its questioning of Cera that she could have been charged with “capital murder, robbery, tampering with evidence, and

other crimes” for her conduct and thus had a strong

motive to assist the State. He argues that, by portraying Cera as a victim and a reformed, more law-abiding

person, “the State created a false impression of Cera

as a credible person before the jury.” Ultimately,

Herrera testified that he had previously given a statement

declaring that it appeared that the passenger had gotten out of

the SUV and shot at him [Herrera] twice. At trial, Herrera testified that he heard a total of about five shots. First, Herrera heard

a “loud bang” and saw a “flash” from inside the SUV. He got out of

his car and he “was running towards [his] nephew when the

driver pulls out [Barrios] and shoots him again.” Herrera also testified that he saw a “shadow” and a “flash” that appeared to come

“from the passenger side” but his attention was focused on the

driver’s side. He heard a fourth shot from the driver’s side and he

also heard a fifth bang, which could have been an echo.

App. 22

appellant’s arguments that Cera’s trial testimony was

false, contradictory, and created a false impression are

based entirely on evidence presented at trial. Appellant’s counsel cross-examined Cera regarding matters

affecting her credibility and objected to her testimony

on unrelated grounds, and yet at no point did he object

to her testimony on the due process grounds he now

raises on appeal. To the extent that Cera made inconsistent, implausible, or conflicting statements in her

testimony, appellant could “reasonably be expected to

have known” that her testimony “was false at the time

that it was made.”33 Thus, we again conclude that appellant had a duty to raise a timely and specific objection on due process grounds and he did not do so.

Therefore, he did not preserve this claim.34

Even if appellant had preserved this claim, it lacks

merit. We have previously held that minor inconsistencies in a witness’s trial testimony do not, without more,

show that the witness’s testimony is false.35

Cf. Estrada, 313 S.W.3d at 288; see also Saldano, 70 S.W.3d

at 889. Herrera testified the day before Cera testified.

TEX. R. APP. P. 33.1(a); TEX. R. EVID. 103(a)(1); see also Hill

v. State, 633 S.W.2d 520, 524–25 (Tex. Crim. App. 1981) (“The

State has a valid interest in requiring an objection and precluding

the defendant from later complaining if no contemporaneous objection was lodged.”); Wainright v. Sykes, 433 U.S. 72, 88–89 (1977)

(detailing the many reasons justifying the contemporaneous objection rule).

See Ex parte De La Cruz, 466 S.W.3d 855, 871 (Tex. Crim.

App. 2015) (finding that inconsistencies in a eyewitness’s trial testimony compared with an expert witness’s opinion, with respect

to the number of times the victim was shot and the location of the

shooting, did not, without more, support a finding that the

App. 23

Contradictory witness testimony during trial “merely

establishes a credibility question for the jury” to decide

and it “does not suffice to demonstrate” that the evidence gave the jury a false impression.36 The jury is the

sole judge of a witness’s credibility and the weight of

his testimony, especially where the record contains

conflicting testimony.37

Appellant points to no evidence showing that any

witness ever stated that he saw Cera shoot Barrios.

However, the jurors did hear testimony that Herrera

saw a “shadow” and a “flash” that appeared to come

“from the passenger side” of the vehicle and that Herrera had given an earlier statement asserting that the

SUV passenger had shot at him twice. The jury also

heard testimony that Cera hid her SUV behind a sister’s house, cleaned Barrios’s blood from her SUV,

burned appellant’s clothing and Barrios’s shoe, and

lied to Detective Samaniego. The jurors had the opportunity to observe Cera’s demeanor and were capable of

weighing the credibility of her testimony against the

witness’s testimony was false) (citing United States v. Croft, 124

F.3d 1109, 1119 (9th Cir. 1997) (stating that the fact that a witness may have given an earlier inconsistent statement, or that

other witnesses may have a conflicting recollection of events, does

not establish that the witness’s testimony was false)).

Id. (quoting Koch v. Puckett, 907 F.2d 524, 531 (5th Cir.

1990)).

Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008)

(holding in a case involving contradictory testimonial evidence

that it was “for the jury to determine” whether two witnesses were

“lying or telling the truth”); see also TEX CODE CRIM. PROC art.

38.04 (“The jury, in all cases, is the exclusive judge of the facts

proved and of the weight to be given to the testimony,. . . .”).

App. 24

contrary evidence. We will not second-guess their assessment of her credibility.

Materiality

Even if we assume that Cera’s statements and

trial testimony collectively gave the jury a false impression, appellant is not entitled to relief. The false

impression, if any, conveyed by Cera was not “material”

because defense counsel effectively cross-examined her

about the inconsistencies in her statements, and because the State corrected the false impression by eliciting testimony through redirect examination showing

that Cera had made false and inconsistent statements.38 Further, apart from Cera’s testimony, the record contained overwhelming evidence showing

appellant’s identity as the perpetrator and his intent

to commit capital murder. This evidence included: (1)

testimony from Jurado and Ramirez that appellant negotiated the drug transaction with Barrios; (2) Herrera’s positive identification of appellant from a

pretrial lineup as the driver of the SUV and the

shooter of Barrios; (3) other witness testimony identifying appellant as the driver of the white SUV in which

Barrios’s blood was found; (4) the fact that appellant

fled the scene of the crime and failed to call 911; (5)

appellant’s phone records, cell site location

See Vasquez, 67 S.W.3d at 239; see also Ramirez v. State,

802 S.W.2d 674 676 (Tex. Crim. App. 1990) (“When a witness

leaves a false impression concerning a matter relating to his or

her credibility, the opposing party is allowed to correct that false

impression.”).

App. 25

information, and messages which linked him to Barrios’s murder; and (6) appellant’s incriminating statements and behavior after the shooting.

In sum, the record does not demonstrate a reasonable likelihood that any false content in Cera’s 2010

and 2012 statements or discrepancies in her trial testimony affected the outcome of the trial.39 Accordingly,

we overrule points of error one and two.

FAILURE TO DISCLOSE EVIDENCE

In appellant’s third point of error, he argues that

the State violated Brady v. Maryland40 by failing to disclose to the defense Cera’s prior inconsistent statements made to prosecutors during pretrial meetings.

He complains that prosecutors did not provide him

with “a written summary of how Cera’s story had

changed” or “a new statement from Cera showing how

her trial testimony would be substantially different

from statements she had made” to police. Specifically,

appellant complains that the State never informed him

“before trial” that “Cera would be testifying that she

first observed [appellant] pull a gun and point it at

Barrios while inside the Saturn Vue and that she observed [appellant] shoot Barrios in the head while still

inside the SUV, even though [Cera] had never told this

story before.” Appellant argues that the State’s

See Ghahremani, 332 S.W.3d at 478 (“The knowing use of

false testimony violates due process when there is a ‘reasonable

likelihood’ that the false testimony affected the outcome.”).

Brady v. Maryland, 373 U.S. 83 (1963).

App. 26

questioning of Cera on redirect “belied a conscious decision on the part of the prosecutors to abandon Cera’s

two prior accounts of the shooting” in favor of “a new,

revised version of events.” He asserts that defense

counsel “were caught entirely by surprise” by the

change in Cera’s story, and cites defense counsel’s

cross-examination of Cera as proof of this surprise.

Appellant argues that, by introducing Cera’s 2010

and 2012 statements as substantive evidence, the

State “assumed the obligation to identify all inconsistent oral statements Cera had previously made” because Cera’s oral pretrial statements thereby became

impeachment evidence.41 He argues that this impeachment evidence was material because Cera was the only

alleged eyewitness to the gun shots that occurred inside the SUV and to the events leading up to them.

In Brady, the Supreme Court held that “the suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the

evidence is material either to guilt or to punishment,”

regardless of the good or bad faith of the prosecutor.42

Impeachment evidence, as well as exculpatory evidence, falls within the Brady rule.43 In order for a defendant to succeed with a Brady claim against the

State, he must satisfy three requirements: “(1) the

State suppressed evidence, (2) the suppressed evidence

is favorable to him, and (3) the suppressed evidence is

See TEX. R. EVID. 613.

Brady, 373 U.S. at 87.

United States v. Bagley, 473 U.S. 667, 676 (1985).

App. 27

material.”44 Brady and its progeny do not require prosecutors to disclose exculpatory information that the

State does not have in its possession and that is not

known to exist.45

When evidence allegedly withheld in violation of

Brady is disclosed during trial, we inquire whether the

defendant was prejudiced by the tardy disclosure.46 To

demonstrate prejudice, a defendant must show a reasonable probability that, if the evidence had been disclosed to the defense earlier, the result of the

proceeding would have been different.47 “If the defendant received the material in time to use it effectively

at trial, his conviction should not be reversed just because it was not disclosed as early as it might have and

should have been.”48 A defendant’s failure to request a

continuance when Brady evidence is disclosed at trial

arguably waives his complaint that the State has

Harm v. State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006)

(“Incorporated into the third prong, materiality, is a requirement

that defendant must be prejudiced by the state’s failure to disclose the favorable evidence.” (citing Banks v. Dretke, 540 U.S. 668,

691 (2004)).

Pena, 353 S.W.3d at 810 (citing Hafdahl v. State, 805

S.W.2d 396, 399 n.3 (Tex. Crim. App. 1990)).

Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App. 1999);

see also United States v. Williams, 132 F.3d 1055, 1060 (5th Cir.

1998) (“Because the government produced the allegedly inconsistent statement during the trial, the evidence was not suppressed. . . . Under these circumstances, the court looks to

whether [the defendant] was prejudiced by the tardy disclosure.”).

Wilson v. State, 7 S.W.3d 136, 146 (Tex. Crim. App. 1999).

Little, 991 S.W.2d at 866.

App. 28

violated Brady and suggests that the tardy disclosure

of the evidence was not prejudicial to him.49

The State argues that appellant failed to preserve

his Brady complaint for review because he failed to

make a specific objection and obtain an adverse ruling

on that objection.50 To be timely, where Brady evidence

is discovered or disclosed at trial, the defendant must

raise an objection as soon as the grounds for the complaint become apparent.51 The record reflects that appellant’s counsel did not object on the basis of Brady or

request a continuance at any point during Cera’s testimony. And the record is silent regarding what was or

was not disclosed to counsel prior to trial. On this record, appellant has not preserved his claim of Brady error.

Further, even if we were to assume that appellant

preserved error and that the State failed to notify him

of Cera’s changed story in a timely manner, his claim

would fail. Appellant undermines his own argument

that his counsel were “caught entirely by surprise”52

when he states that, in their cross-examination of

See State v. Fury, 186 S.W.3d 67, 73–74 (Tex. App—Houston [1st Dist.] 2005, pet. ref ’d); see also Lindley v. State, 635

S.W.2d 541, 544 (Tex. Crim. App. 1982) (“The failure to request a

postponement or seek a continuance waives any error urged in an

appeal on the basis of surprise.”).

See TEX. R. APP. P. 33.1(a); see also Pena, 353 S.W.3d at

806–07; Wilson, 7 S.W.3d at 146 (applying the Rule 33.1 error

preservation requirements to a Brady claim).

See Wilson, 7 S.W.3d at 146.

Trial Tr. at 137–67.

App. 29

Cera, “Defense Counsel, point by point, demonstrated

to the jury just how radically Cera’s story of how the

shooting [sic] had changed, and how she had also altered numerous important details relating to events

both preceding and following the shooting.” In fact, defense counsel responded to Cera’s testimony by thoroughly cross-examining her and exposing various

inconsistencies between her trial testimony and her

earlier statements.53

Appellant counters that counsel “would have been

able to prove up many more of Cera’s lies before the

jury if he had been afforded timely disclosure” of her

“new story.” In support, he merely refers us to his list

of inconsistencies between Cera’s earlier, out-of-court

statements to police and her trial testimony in his first

and second points of error, summarized supra. But appellant has not shown that, given more time, he could

have exposed any significant inconsistent statements

of a different ilk than the ones counsel had already exposed. Nor has he demonstrated that he could have

proven that Cera actually lied in her trial testimony,

as opposed to her out-of-court statements, which she

openly admitted contained inconsistencies. Also, had

counsel believed that they needed more time to prepare to cross-examine Cera, they could have objected

and requested a continuance. Instead, after the State

See, e.g., Marshall v. State, 210 S.W.3d 618, 636 (Tex. Crim.

App. 2006) (holding that, where the State allegedly failed to disclose the statement of an inmate that appellant did not really assault him, but the defense called the inmate to testify to that

effect, any Brady violation was harmless).

App. 30

completed its redirect examination, defense counsel

declined to ask any more questions of Cera. Defense

counsel later returned to the subject of Cera’s credibility in closing arguments, emphasizing that Cera had

given three different stories and asserting that even

the prosecutor had conceded that she was a liar.

In sum, appellant has not demonstrated that he

was prejudiced by the allegedly tardy disclosure of

Cera’s changed story. We overrule his third point of error.

SUFFICIENCY OF THE EVIDENCE

In point of error four, appellant contends that the

evidence is legally insufficient to support his conviction for capital murder and only supports a conviction

for murder. When reviewing the sufficiency of the evidence, we consider all of the evidence in the light most

favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.54 This

standard “gives full play to the responsibility of the

trier of fact fairly to resolve conflicts in the testimony,

to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”55

Appellant was charged in Count I of the indictment with intentionally causing the death of Julio Barrios by shooting Barrios with a firearm while in the

Jackson v. Virginia, 443 U.S. 307, 318–19 (1979).

Id. at 319.

App. 31

course of committing the robbery of Barrios.56 Appellant concedes in his appellate brief that “[t]he undisputed evidence adduced during [his] trial reveals that

[he] shot and killed Barrios in the course of taking between 30 and 40 ecstasy pills from Barrios without

paying for these pills.” However, appellant maintains

that the record does not contain evidence proving that

he committed “robbery” by using or threatening to use

force or violence in order to obtain “property.”

The robbery statute provides:

A person commits an offense if, in the course

of committing theft as defined in Chapter 31

and with intent to obtain or maintain control

of the property, he: (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly

threatens or places another in fear of imminent bodily injury or death.57

Appellant maintains that there “is no definition of

‘property’ in Chapter 31 of the Texas Penal Code” or

elsewhere in the Penal Code, and therefore, “the ‘plain

language’ definition of the term ‘property’ must be ascertained.” He refers us to Black’s Law Dictionary,

which defines “property” as: the “right to possess, use,

and enjoy a determinate thing (either a tract of land or

a chattel)” or “[a]ny external thing over which the

rights of possession, use, and enjoyment are exercised.”

See TEX. PENAL CODE § 19.03(a)(2).

TEX. PENAL CODE § 29.02(a) (emphasis added).

App. 32

Appellant argues that ecstasy pills are not “property” that a person has a right to possess, use, or enjoy

because their possession is a felony offense under

Texas law.58 Thus, appellant posits, even if he appropriated the ecstasy pills without Barrios’s consent, he

could not have committed the robbery of Barrios because Barrios could not be the lawful “owner” of the

pills. He insists that, “[t]o hold otherwise would be to

conclude that the term ‘property,’ as used in the Texas

Penal Code[,] is a superfluous word which includes

every ‘thing’ in the universe, irrespective of whether

that ‘thing’ is capable of being legally owned or possessed.”

Contrary to appellant’s assertions, both Chapter

31 and Chapter 29 of the Texas Penal Code define the

term “property.” The Penal Code defines “property” in

part as “tangible or intangible personal property including anything severed from land[.]”59 Black’s Law

Dictionary defines “tangible personal property” as:

“[c]orporeal personal property of any kind; personal

property that can be seen, weighed, measured, felt, or

touched, or is in any way perceptible to the

senses. . . .”60 “In a broad and general sense, ‘personal

property’ includes everything that is the subject of

ownership not coming under the denomination of real

See TEX. HEALTH & SAFETY CODE §§ 481.103(a)(1),

481.116(a).

TEX. PENAL CODE §§ 29.01(2), 31.01(5).

Property—tangible personal property, BLACK’S LAW DICTIONARY (10th ed. 2014).

App. 33

estate.”61 Further, the Penal Code defines an “owner”

as “a person who: (A) has title to the property, possession of the property, whether lawful or not, or a greater

right to possession of the property than the actor[.]”62

The ecstasy pills that appellant took from Barrios

were personal property that could be seen, weighed,

measured, felt, and touched. As the person in possession of the pills who was negotiating their sale, Barrios

had a greater right to possess them than appellant.63

Thus, the ecstasy pills constituted “property” for the

purposes of the robbery statute. And, viewed in the

light most favorable to the verdict, the record supports

the jury’s finding that appellant murdered Barrios

while in the course of robbing him of this property.64

In sum, a rational trier of fact could have found

beyond a reasonable doubt that appellant was guilty of

the capital murder of Barrios. Thus, the evidence is

Erwin v. Steele, 228 S.W.2d 882, 885 (Tex. Civ. App.—Dallas

1950, writ ref ’d n.r.e.).

TEX. PENAL CODE § 1.07(35) (emphasis added).

Cf. Robertson v. State, 871 S.W.2d 701, 707 (Tex. Crim. App.

1993) (holding question of whether the victim had a “greater right

of possession” of the illegal contraband than appellant was a factual question for the jury); see also Brown v. State, 56 S.W.3d 915,

919 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (“The literal

text of section 1.07(a)(35) could not be more clear; a person may

own property even if possession of that property is unlawful.”).

See Nguyen v. State, 982 S.W.2d 945, 948 (Tex. App.—Houston [14th Dist.] 1998, pet. ref ’d) (holding that “the legislature

intends that there may be a theft or robbery of property that is

illegally possessed”).

App. 34

legally sufficient to support the jury’s guilty verdict.

We overrule appellant’s fourth point of error.

MITIGATION INSTRUCTION

In appellant’s fifth point of error, he argues that

the trial court erred and caused him egregious harm

when it failed to submit to the jury “a correct version

of special issue two [the mitigation special issue] in the

punishment charge.” Appellant urges that the trial

court’s wording of the mitigation special issue did not

track the language mandated by Article 37.071

§ 2(e)(1). That provision states that the trial court shall

instruct the jurors that, if they return an affirmative

finding to each issue submitted under subsection (b),

then they must answer the following question:

Whether, taking into consideration all of the

evidence, including the circumstances of the

offense, the defendant’s character and background, and the personal moral culpability of

the defendant, there is a sufficient mitigating

circumstance or circumstances to warrant

that a sentence of life imprisonment without

parole rather than a death sentence be imposed.

The trial court’s mitigation special issue verdict form

read as follows:

Taking into consideration all of the evidence,

including the circumstances of the offense, the

Defendant’s character and background, and

the personal moral culpability of the Defendant, do you find that there is a sufficient

App. 35

mitigating circumstance or circumstances to

warrant that a sentence of life imprisonment

rather than a death sentence be imposed?

Thus, the trial court’s instruction omitted the words

“without parole” from the statutory instruction. Appellant alleges that this error implied to the jurors that

he would become eligible for parole if sentenced to life

in prison. He complains that many of the jurors may

not have wanted to answer “yes” to this question because they erroneously believed that doing so would

entitle appellant to a life sentence with the possibility

of parole. He argues that the proper remedy for this

charge error is to reform his death sentence to a life

sentence.

Appellant concedes that he did not object to the

instruction given by the trial court, and therefore his

claim must be evaluated for egregious harm under Almanza v. State.65 In Almanza, this Court prescribed a

process for reviewing a complaint of charge error.66 A

reviewing court must first decide whether a jury instruction is erroneous.67 If so, the reviewing court must

determine whether the instruction harmed the defendant by applying either a “some harm” standard, if the

complaint was preserved, or an “egregious harm”

standard, if the complaint was not preserved.68 Errors

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985).

Id. at 160–74.

Id. at 174.

Id. at 171; see also Olivas v. State, 202 S.W.3d 137, 144 (Tex.

Crim. App. 2006).

App. 36

which result in egregious harm are those that “affect

the very basis of the case, deprive the defendant of a

valuable right, or vitally affect a defensive theory.”69 In

analyzing whether egregious harm has occurred, we

consider the whole record, including: (1) the entire jury

charge; (2) the state of the evidence, including contested issues and the weight of the probative evidence;

(3) counsel’s arguments; and (4) any other relevant information revealed by the trial record.70

Although the verdict form omitted the words

“without parole,” the trial court’s charge advised the

jury regarding its consideration of the mitigation special issue that a life sentence in prison would be without parole:

You are instructed that if you answer that a

circumstance or circumstances warrant that a

sentence of life imprisonment without parole

rather than a death sentence be imposed, the

court will sentence the defendant to imprisonment in the Texas Department of Criminal

Justice for life without parole.

You are further instructed that a defendant

sentenced to confinement for life without parole is ineligible for release from the Department of Criminal Justice on parole.

Arteaga v. State, 521 S.W.3d 329, 338 (Tex. Crim. App.

2017); Almanza, 686 S.W.2d at 172.

Almanza, 686 S.W.2d at 171; see also State v. Ambrose, 487

S.W.3d 587, 598 (Tex. Crim. App. 2016).

App. 37

(Emphasis added). The jurors were also told during

jury selection that death and life without parole were

the only punishment options following a conviction for

capital murder. Similarly, the juror questionnaires informed the jurors:

Under Texas law, if an individual is found

guilty of capital murder, he shall be sentenced

to either confinement in the Institutional Division of the Texas Department of Criminal

Justice (the state prison) for life without parole or to the death penalty. In other words, a

sentence of life imprisonment without parole

or death is mandatory upon a conviction for

capital murder.

The record does not suggest that the jury was confused

or asked any questions about this matter. Further, the

prosecutor argued to the jurors before their punishment deliberations that the mitigation special issue

was “the question that will determine whether or not

he receives life without parole or death.”

Moreover, the State’s punishment phase evidence

was strong. In addition to the capital murder of Barrios, the record showed that appellant was a member

of a violent prison gang. He had a criminal history involving violent, assaultive conduct. While incarcerated

and under lock-down following the instant offense, appellant escaped his cell using a homemade rope in order to assault and injure an older, mentally-ill inmate.

He terrorized employees at the Bayou Bar and Grill

with a rifle because the establishment did not provide

him and his companions with limes for their beers. He

App. 38

violently assaulted a woman at a bowling alley in the

presence of a uniformed police officer. And he committed another capital murder in the course of a robbery

on Thanksgiving Day, a few weeks before he committed

the instant offense.

In sum, our review of the record leads us to conclude that appellant was not egregiously harmed by

the erroneous admission of the words “without parole”

from the mitigation special issue. We overrule his fifth

point of error.

FAILURE TO DISCLOSE TACIT

AGREEMENT WITH WITNESS

Appellant claims, in his sixth point of error, that

the prosecutors in his case failed “to inform the jury

that they had entered into a tacit agreement or implied

understanding with Cera to not prosecute her for robbery, tampering with evidence, or any other crime if

she testified for the State.” In support of this claim, appellant argues that Cera was a party to the robbery

and murder of Barrios and tampered with evidence because she:

• knew that appellant had no money to buy the

ecstasy pills;

• knew that he first sought a male friend to accompany him to buy the pills;

• accompanied appellant to his friend’s house

where she knew he had hidden guns;

App. 39

• did not offer to pay Barrios for the pills or return the pills to him, even after appellant told Barrios he was not “going to pay him shit”;

• counted the thirty to forty pills, as appellant

instructed her, without objecting that they were

only buying four pills;

• hid her SUV, burned or discarded appellant’s

clothing, burned Barrios’s shoe, and cleaned Barrios’s blood from her SUV; and

• in light of Herrera’s testimony, may have discharged a firearm.

Appellant contends that, because Cera cooperated

with law enforcement and the State did not prosecute

her for robbery, murder, tampering with evidence, or

any other crime, there must have been “a tacit or implied agreement” not to prosecute her in exchange for

her testimony. He complains that the State created a

false impression “that [Cera] was merely an innocent

person [who] accompanied Valdez to make a $40 ecstasy purchase [and] who had engaged in no criminal

wrongdoing for which she could be prosecuted.” Citing

Giglio v. United States,71 he asserts that the State violated his due process rights by failing to disclose the

tacit leniency agreement he assumes existed.

The State argues that appellant failed to preserve

error because he did not raise this issue during Cera’s

testimony, in a motion for a new trial, or in a motion

Giglio v. United States, 405 U.S. 150 (1972).

App. 40

for a continuance.72 The evidence of Cera’s alleged complicity now described by appellant was before the jury,

and yet appellant never objected that the State failed

to disclose a leniency agreement or requested a continuance on that basis.

Appellant counters that the State’s suppression of

a tacit immunity agreement with a material witness

represents the type of fundamental due process violation that excuses him from error preservation requirements. He cites Saldano v. State in support of this

assertion, but Saldano does not help him. In Saldano,

we held that the failure to object to evidence in a timely

and specific manner during trial forfeits complaints

about its admissibility, “even though the error may

concern a constitutional right of the defendant.”73

Appellant additionally argues that he was not obligated to object at trial to preserve this claim because

Brady imposes a duty on the State to disclose evidence

favorable to the defense and does not impose a duty on

the defense to “ferret out the secret and tacit agreements.” However, if, as appellant contends, the trial

record contains “overwhelming evidence that a tacit or

implied immunity agreement was reached between the

State and Veronica Cera which was never disclosed[,]”

then appellant was obliged to object to this failure to

807.

See TEX. R. APP. P. 33.1(a).

Saldano, 70 S.W.3d at 889; see also Pena, 353 S.W.3d at

App. 41

disclose as soon as the “ground of objection” became apparent, and to obtain a ruling on that objection.74

Even if we were to find that appellant was not

obliged to adhere to the rules of error preservation in

this instance, the authorities he invokes involve dissimilar fact patterns and do not persuade us that he is

entitled to relief on the merits.75

See Pena, 353 S.W.3d at 807; see also Wilson, 7 S.W.3d at

146 (“That subsequent events may cause a ground for complaint

to become more apparent does not render timely an otherwise untimely complaint.”).

See, e.g., Giglio, 405 U.S. at 151–53 (finding a violation of

due process rights requiring a new trial where a key government

witness testified that nobody promised him that he would not be

prosecuted, but a prosecutor later stated that he had promised the

witness that he would not be prosecuted); Harris v. State, 642

S.W.2d 471, 472–74 (Tex. Crim. App. 1982) (holding that the trial

court unconstitutionally restricted a defense attorney’s attempted

cross-examination of a material witness about whether she had

been charged with murder in connection with the offense at

bar);Tassin v. Cain, 517 F.3d 770, 773–74, 781 (5th Cir. 2008) (finding a Fourteenth Amendment violation where the State did not

disclose that the defendant’s wife—a charged codefendant—was

told that she would most likely receive a ten-year sentence in exchange for her testimony, and the wife had testified that “no promises relating to her testimony had been made”); United States v.

Shaffer, 789 F.2d 682, 685–89 (9th Cir. 1986) (finding that the failure to disclose evidence undermined confidence in the outcome of

the defendant’s trial where the Government provided defense

counsel with a copy of a co-conspirator witness’s grand jury testimony and immunity agreement and represented that this was the

“complete agreement” and “no separate secret or other agreement

was made,” but new evidence presented at a motion for new trial

hearing showed that the witness had retained additional assets

and benefits in exchange for his cooperation).

App. 42

The instant case is distinguishable from those

cases on its facts. Unlike the circumstances presented

in the above cases, the record in the appellant’s case

shows that Cera never made any representations

about whether or not she had entered into an agreement (either express or tacit) with the State or

whether she had been assured that she would receive

leniency in exchange for her testimony. Cera did not

make misleading statements about such an agreement

or understanding because she did not testify about the

subject at all. Further, appellant has not cited to any

other evidence in the record affirmatively demonstrating that any such agreement or understanding ever existed or showing whether Cera was ever charged with

a crime in connection with these events.76 Appellant

Appellant quotes a passage, ostensibly from Harris, but apparently extracted from Duggan v. State. Such inaccurate citation

does not comply with our briefing rules. See TEX. R. APP. P. 38.1(i)

(“The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to

the record.”). In Duggan, two accomplices testified that no leniency agreement existed, but the prosecutor later admitted telling

the accomplices that he would consider leniency in exchange for

their testimony. 778 S.W.2d at 468.

We are not required to follow federal intermediate court interpretations of a federal constitutional right, though we may find

the reasoning in those cases persuasive. See Guzman v. State, 85

S.W.3d 242, 249 n.24 (Tex. Crim. App. 2002).

Appellant is essentially asserting that unicorns must exist,

and then, pointing to the rhinoceros—a four-legged animal with

horns on its nose—as “almost conclusive proof ” that the asserted

animals can exist and has merely not been discovered yet. See Appellant’s Br. at *120 (alleging the lack of prosecution of Cera necessitates the existence of a tacit or implied quid pro quo

agreement between Cera and the State). Claiming he has met the

App. 43

suggests that Cera could have been charged with an

offense such as tampering with evidence; but this does

not in itself prove that Cera had an express or implied

arrangement with the State for leniency in exchange

for her testimony.77 In addition, in her 2010 interview

with Detective Samaniego, Cera indicated that the detective had not promised her anything or threatened

her.

Thus, the record in this case does not demonstrate

that the State failed to disclose an immunity or leniency agreement, express or tacit, or failed to correct

misleading testimony. We overrule appellant’s sixth

point of error.

ACCOMPLICE-WITNESS INSTRUCTIONS

In points of error 7A and B, appellant alleges that

defense counsel rendered ineffective assistance by failing to request accomplice-witness instructions in the

guilt-innocence phase jury charge regarding the roles

of Cera, Ramirez, Herrera, and Rosales in the capital

burden of proof, Appellant then demands the State prove its negative. Although “absence of evidence is not evidence of absence,”

to require the State to conclusively prove the negative would be

absurd in this case because it is impossible.

See, e.g., Todd v. Schomig, 283 F.3d 842, 849 (7th Cir. 2002)

(“Without an agreement, no evidence was suppressed, and the

[S]tate’s conduct, not disclosing something it did not have, cannot

be considered a Brady violation”); Shabazz v. Artuz, 336 F.3d 154,

165 (2nd Cir. 2003) (“[T]he fact that a prosecutor afforded favorable treatment to a government witness, standing alone, does not

establish the existence of an underlying promise of leniency in exchange for testimony.”).

App. 44

murder or a lesser-included offense. Appellant argues

in point of error 7C that the trial court erred by failing

to sua sponte give an accomplice-witness instruction

regarding Cera’s role in the capital murder or a lesserincluded offense. We will discuss these points of error

together because they are interconnected and share

common legal authorities.

The Accomplice-Witness Rule

Under Texas Code of Criminal Procedure 38.14,

“[a] conviction cannot be had upon the testimony of an

accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely

shows the commission of the offense.” The testimony of

one accomplice witness may not be used to corroborate

that of another accomplice witness.78 “Even apparently

insignificant incriminating circumstances may sometimes afford satisfactory evidence of corroboration.”79

Because of the requirement that a conviction “cannot

be had” on the accomplice-witness testimony alone, if

the issue is raised by the evidence, then the jury must

be instructed accordingly, inasmuch as the accomplicewitness rule becomes the “law applicable to the case.”80

Moron v. State, 779 S.W.2d 399, 401 (Tex. Crim. App. 1985).

Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App.

1996).

TEX. CODE CRIM. PROC. art. 36.14; Zamora v. State, 411

S.W.3d 504, 513 (Tex. Crim. App. 2013) (“An examination of the

plain language in the accomplice-witness statute reveals that it

is, in all its variations, the law applicable to the case rather than

App. 45

Thus, when an accomplice witness’s testimony implicates the defendant in the charged offense, the accomplice-witness instruction is law applicable to the case,

and the trial court must instruct the jury even without

a request.81

“A proper accomplice-witness instruction informs

the jury either that a witness is an accomplice as a

matter of law or that he is an accomplice as a matter

of fact.”82 An accomplice is a person who, “under the

evidence, could have been charged with the same or

lesser-included offense as that with which the defendant was charged.”83 If the accomplice is one “as a matter of law,” then that witness either has been charged

with the same offense as the defendant or a lesserincluded offense, or “the evidence clearly shows that

the witness could have been so charged,” and the

court’s charge tells the jury that the witness is an accomplice and that his or her testimony must be corroborated.84 But if the evidence is conflicting or

inconclusive, then the accomplice is one “as a matter of

a defense issue”); State v. Ambrose, 487 S.W.3d 587, 594 (Tex.

Crim. App. 2016) (citing Zamora, 411 S.W.3d at 513).

Zamora, 411 S.W.3d at 513.

Id. at 510 (citing Cocke v. State, 201 S.W.3d 744, 747 (Tex.

Crim. App. 2006)).

Id. at 510 (citing Medina v. State, 7 S.W.3d 633, 641 (Tex.

Crim. App. 1999) (noting that defendant is “entitled to an accomplice-witness instruction if and only if ‘there is sufficient evidence

in the record to support a charge against the witness alleged to be

an accomplice’ ”).

Zamora, 411 S.W.3d at 510 (citing Cocke, 201 S.W.3d at

747–48; Druery, 225 S.W.3d at 499) (emphasis added).

App. 46

fact,” and the jury instruction asks the jury to decide

(1) whether the witness is an accomplice as a matter of

fact, and only if so, (2) whether the testimony of the

witness is corroborated by other evidence tending to

connect the defendant with the offense committed.85

We recently explained that a witness is an accomplice as a matter of law in the following situations:

• If the witness has been charged with the

same offense as the defendant or a lesserincluded offense;

• If the State charges a witness with the

same offense as the defendant or a lesserincluded of that offense, but dismisses the

charges in exchange for the witness’s testimony against the defendant; and

• When the evidence is uncontradicted or so

one-sided that no reasonable juror could conclude that the witness was not an accomplice.86

If a prosecution witness is an accomplice as a matter

of law, the trial court is under a duty to instruct the

jury accordingly and the failure to do so is error.87

Where the witness is not charged with the same offense as the defendant or a lesser-included offense, and

the evidence is “not uncontradicted or so one-sided that

a rational jury” would have had to believe that the

Id.

Ash v. State, No. PD-0244-16, 2017 WL 2791727, slip. op. at

*5–6 (Tex. Crim. App. June 28, 2017).

Herron v. State, 86 S.W.3d 621, 631 (Tex. Crim. App. 2002).

App. 47

witness was an accomplice, the defendant is not entitled to an accomplice-as-a-matter-of-law instruction.88

If the record contains evidence that a witness may

have been an accomplice or the evidence is conflicting,

then the issue should be submitted to the jury to decide

whether the witness was an accomplice as a matter of

fact.89 If the evidence demonstrates that a witness is

not an accomplice, then the trial judge is not obliged to

instruct the jury on the accomplice-witness rule—as a

matter of law or fact.90

Ineffective Assistance of Counsel

In Strickland v. Washington,91 the Supreme Court

established a two-prong test for evaluating ineffectiveassistance claims.92 To obtain a reversal of a conviction

under the Strickland test, a defendant must show that:

(1) counsel’s performance fell below an objective standard of reasonableness; and (2) counsel’s deficient performance prejudiced the defense, resulting in an

unreliable or fundamentally unfair outcome of the proceeding.93 This prejudice means that a “defendant

must show that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable

Ash, 2017 WL 2791727, slip op. at *16.

Id., slip op. at *12, *16.

Smith, 332 S.W.3d at 440.

Strickland v. Washington, 466 U.S. 668 (1984).

Id. at 687.

Id.

App. 48

probability is a probability sufficient to undermine

confidence in the outcome.”94

Appellant asserts that counsel performed deficiently in failing to request an accomplice-witness instruction regarding Cera because “the evidence

adduced at trial definitely links Cera to being at least

a party to the ‘robbery’ of Barrios, even if it was not her

intent to shoot or kill Barrios.” He focuses on Cera’s

statements that she counted the thirty to forty ecstasy

pills, that she knew that appellant tried to recruit a

male friend to come with him, that they stopped at appellant’s friend’s house where she knew he had stored

some guns, and that she concealed and destroyed incriminating evidence in her SUV, such as Barrios’s

shoe and his blood. Appellant contends that, had Cera’s

intent been merely to purchase the pills, she would not

have continued counting the pills after he declared

that he was not going to pay Barrios.

Appellant points to Cera’s August 29, 2012 police

statement in which she said that she told appellant after he shot Barrios that he should have just “hit” him.

He argues that her intent that appellant hit Barrios at

least made her an accomplice-witness to a robbery. He

also highlights Herrera’s testimony that he saw a

“flash” coming from the passenger side of the SUV, arguing that this testimony showed that Cera shot a gun

during the robbery. Appellant further contends that

counsel’s error harmed him because the omission of an

Ex parte Zepeda, 819 S.W.2d 874, 876 (Tex. Crim. App.

1991) (citing Strickland, 466 U.S. at 694).

App. 49

accomplice-witness instruction concerning Cera “prevented the jury from acquitting him, finding him guilty

of a lesser[-]included offense, or assessing a lesser punishment based on what constituted almost totally accomplice-witness testimony.”

In this case, appellant claimed that his attorney

was ineffective for failing to request an accomplicewitness instruction, and he claimed that the trial court

erred in failing to sua sponte include an accomplicewitness instruction. He did not expressly include a

claim that his attorney was ineffective for failing to object to the omission of such an instruction. Nevertheless, we will read appellant’s failure-to-request point of

error liberally to encompass the failure-to-object claim

since the asserted harm is the same. With regard to

Cera, even given this liberal interpretation, appellant

cannot meet the second prong of Strickland because he

cannot demonstrate prejudice.95 Appellant maintains

that counsel’s omission was prejudicial because the

non-accomplice testimony was “sparse.” However, the

trial record reflects that the State presented a substantial amount of non-accomplice corroborating evidence

connecting appellant to the offense. This evidence included the testimony of Herrera, Ramirez, Jurado,

Rosales, various law enforcement witnesses, and appellant’s ex-wife, along with appellant’s cell phone

records and cell site location data. Collectively, that

non-accomplice evidence established that:

See Strickland, 466 U.S. at 694.

App. 50

• Appellant was addicted to drugs and stole to

support his habit;

• On the day of the offense, appellant was driving Cera’s white SUV, wearing gray sweatpants, a

gray sweatshirt, and glasses, and was seeking

Xanax and ecstasy pills;

• Ramirez called Barrios on the day of the offense and handed the phone to appellant so that

appellant could arrange the purchase of ecstasy

pills from Barrios;

• Appellant and Barrios were overheard negotiating a deal in which appellant would purchase

thirty to forty ecstasy pills from Barrios in exchange for $300, even though appellant had just

asked Jurado to lend him money for gas;

• Appellant and Barrios exchanged numerous

phone calls on the day of the offense; they were

speaking with each other on the phone as Herrera

drove Barrios to the location of the prearranged

ecstasy deal; and the calls between appellant and

Barrios ceased right before Barrios was murdered;

• Cell site location records revealed that appellant’s phone was located in close range of the

shooting within minutes of the shooting;

• Herrera testified that Barrios got into the SUV,

Herrera heard gunshots coming from the SUV,

and the Herrera saw the driver of the SUV – who

was tall and thin and wore glasses and a gray

hooded sweatshirt-pull Barrios out of the vehicle,

shoot Barrios on the ground, then turn and shoot

at Herrera;

App. 51

• An eyewitness to the shooting (Zozaya) described the driver of the SUV as tall and thin and

wearing a gray “hoodie” sweatshirt and glasses;

• Six days after the offense, Herrera identified

appellant in a photo line up as the driver of the

white SUV, noting the appellant’s eyes, glasses,

and slim face, and he also identified appellant in

the courtroom;

• After Cera later led police to where she had

hidden the white SUV, forensic testing revealed

that blood spatter found inside the vehicle and on

its tire well yielded DNA profiles consistent with

Barrios’s DNA;

• After the offense, appellant told witnesses that

something bad had happened and “everything had

gone down wrong.” Jurado asked appellant,

“[W]hat happened to the little boy?” Appellant told

her not to worry about it, acted “all pissed off[,]”

and hung up on her.

Appellant suggests that the jury should have

doubted or disregarded the above evidence that was

based on the testimony of Herrera, Ramirez, and

Rosales because these witnesses were themselves accomplices.96 However, appellant has not demonstrated

that Herrera, Ramirez, and Rosales acted as his accomplices. Point of error 7A is overruled.

In support of point of error 7B—that defense

counsel was ineffective for failing to request an

Accomplice witnesses cannot corroborate each other.

Moron v. State, 779 S.W.2d at 401.

App. 52

accomplice-witness instruction regarding Ramirez and

Herrera97—appellant contends that Ramirez assisted

him in arranging the sale of the ecstasy pills by facilitating his communications with Barrios. He also states

that Herrera transported Barrios to the location of the

planned drug deal and Barrios handed Herrera about

ten sandwich bags. Therefore, appellant argues, Herrera and Ramirez engaged in illicit drug dealing which

“is certainly dangerous conduct which can result in a

person’s death” and they are guilty of felony murder.98

He maintains that the fact that Herrera and Ramirez

may not have intended to murder Barrios is irrelevant

because the doctrine of transferred intent applies to

felony murder. Appellant’s arguments have no merit.

The record shows that Herrera drove Barrios to

the specified location on Waldorf Street and held the

sandwich bags because Herrera believed that Barrios

intended to purchase marijuana from someone for recreational use. Herrera did not know appellant and we

see no evidence that Herrera knew of appellant’s

Appellant also complains that counsel failed to request an

accomplice-witness instruction regarding Rosales (Barrios’s girlfriend). However, he offers no facts or legal argument to support

his claim that Rosales was an accomplice witness and we see no

evidence in the record to support this contention. His claim regarding Rosales is inadequately briefed and we will not consider

it. See TEX. R. APP. P. 38.1(i).

See TEX. PENAL CODE § 19.02(b)(3) (“A person commits an

offense if he: . . . commits or attempts to commit a felony, other

than manslaughter, and in the course of and in furtherance of the

commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly

dangerous to human life that causes the death of an individual.”).

App. 53

intent to harm or rob Barrios. The record also suggests

that Herrera was distraught that Barrios had been

shot, and he chased after the SUV wielding a crowbar

as appellant fled the scene.

The record indicates that Ramirez called Barrios

on appellant’s behalf because appellant wanted to buy

ecstasy pills. There is no evidence in the record that

Ramirez knew that appellant intended to hurt or rob

Barrios. Appellant argues that Ramirez knew that he

did not have any money to purchase the pills, but the

record merely shows that Ramirez did not see appellant with money. The record also shows that, when appellant told Ramirez after the shooting that

“everything got ruined” and asked Ramirez not to tell

Jurado, Ramirez did tell Jurado and they both began

calling appellant to find out what had happened.

Thus, although Herrera and Ramirez may have

had some limited involvement in planning the unlawful purchase of a controlled substance, they were never

charged with, nor was there evidence to support the

assertion that they could they have been charged with,

the capital murder of Barrios or any lesser-included offense of that capital murder. The record does not indicate that these witnesses performed an affirmative act

promoting the commission of the murder, possessed

the required culpable mental state, or had reason to

anticipate that a life would be taken.99 Because there

See id.; see also TEX. PENAL CODE § 19.03(a)(2) (providing

that a person commits capital murder when he commits murder

as defined under § 19.02(b)(1) and . . . “intentionally commits the

murder in the course of committing or attempting to commit . . .

App. 54

is nothing to support a claim that the trial court erroneously failed to include an accomplice-witness instruction related to Herrera and Ramirez, appellant’s

counsel was not ineffective for failing to object to the

omission of such an instruction. Appellant has failed to

meet his burden to demonstrate both deficient performance and prejudice as required by Strickland. Point

of error 7B is overruled.

Regarding point of error 7C, appellant concedes

that this Court must review under Almanza’s100 egregious harm standard any error the trial court committed in failing to sua sponte give an accomplice-witness

robbery”); § 19.02(b)(1) (providing that a person commits murder

if he “intentionally or knowingly causes the death of an individual”) (emphasis added); see also Druery, 225 S.W.3d at 498;

Kutzner v. State, 994 S.W.2d 180, 188 (Tex. Crim. App. 1999) (stating that complicity with an accused in the commission of another

offense does not make a witness an accomplice in the offense for

which the accused is on trial).

Appellant correctly asserts that felony murder can be a

lesser-included offense of capital murder. See Fuentes v. State, 991

S.W.2d 267, 272 (Tex. Crim. App. 1999). However, the elements of

felony murder include the requirement that the individual in

question “commits or attempts to commit an act clearly dangerous

to human life that causes the death of an individual.” TEX. PENAL

CODE § 19.02(b)(3). Even if Ramirez and Herrera could have been

charged with a felony controlled-substance offense as a result of

their limited involvement in this case, there is no evidence that

either of them committed an act clearly dangerous to human life

that caused Barrios’s death. Indeed, appellant’s argument would

have a nonsensical result, e.g., a person who merely agreed to give

a family member a ride, knowing the family member might purchase some marijuana, would thereby become an accomplice to

the capital murder of his own family member.

100

686 S.W.2d at 160–74.

App. 55

instruction because his counsel did not request such an

instruction or object to its omission.101 Emphasizing

many of the same facts as he did in point of error 7A,

supra, appellant asserts that Cera conspired with him

to rob Barrios of the ecstasy pills, concealed and destroyed evidence by cleaning and hiding her SUV and

burning clothing, and initially lied to the police. Thus,

he contends, the trial court should have sua sponte instructed the jury that Cera was an accomplice-witness,

and egregious error resulted from the trial court’s failure to do so.102

Given the evidence of Cera’s involvement in the

events at issue and her destruction of evidence after

the crime, an instruction as to whether she was an accomplice as a matter of fact may have been appropriate

in the instant case.103 As explained above, however,

even if we assume, without deciding, that the trial

court erred in failing to sua sponte give such an accomplice-witness instruction, we nevertheless conclude

that appellant has not demonstrated that he was egregiously harmed by the omission. “Article 38.14, by its

very terms, requires only that there ‘be some nonaccomplice evidence tending to connect the defendant

101

See Zamora, 411 S.W.3d at 512–13 (“Our review of the underlying principles of Almanza compels us to conclude that all

complaints about the trial court’s failure to include an accomplicewitness instruction must be analyzed under its procedural framework.”).

102

See Almanza, 686 S.W.2d at 172.

103

See Ash, slip op. at *12, *16.

App. 56

to the crime, not to every element of the crime.’ ”104 In

evaluating the non-accomplice evidence, we assess its

reliability or believability and the strength of its tendency to connect the defendant to the crime.105 “Under

the egregious harm standard, the omission of an accomplice[-]witness instruction is generally harmless

unless the corroborating (non-accomplice) evidence is

‘so unconvincing in fact as to render the State’s overall

case for conviction clearly and significantly less persuasive.’ ”106

In closing arguments, defense counsel emphasized

Cera’s false statements and other evidence suggesting

her complicity in the offense and her lack of credibility.

The State in turn pointed the jury to evidence from

other sources, such as phone records and the testimony

of other witnesses, corroborating Cera’s testimony. We

previously summarized the non-accomplice corroborating evidence in our discussion of point of error 7A. We

find appellant has not demonstrated that the nonaccomplice evidence was “so unconvincing in fact as to

render the State’s overall case for conviction clearly

and significantly less persuasive.”107 Therefore, he has

not shown that the failure to include an accomplicewitness instruction egregiously harmed him. We overrule point of error 7C.

104

Ambrose, 487 S.W.3d at 598 (quoting Vasquez v. State, 56

S.W.3d 46, 48 (Tex. Crim. App. 2001)).

105

Id.

106

Id. (quoting Herron v. State, 86 S.W.3d 621, 632 (Tex.

Crim. App. 2002)).

107

See id.

App. 57

PHOTOGRAPHIC LINEUP

Appellant contends in point of error eight that the

trial court erred in allowing the State to introduce the

photographic lineup shown to Herrera, in which Herrera identified him as the person who shot and killed

Barrios. The complained-of photo array (State’s Exhibit 13) consisted of six photographs of similar-looking men with mustaches. Herrera had circled

appellant’s photo in the upper-right-hand corner of the

array, signed the array next to this image, and wrote

the date, December 16, 2010. Appellant alleges that the

lineup exhibit constituted inadmissible hearsay offered for the truth of the matter asserted by Herrera,

i.e., that appellant was the shooter.108

When the State offered the lineup exhibit at trial,

defense counsel made the following objection:

Your Honor, I’m going to object. I’m going to

object on the grounds of being – this is improper bolstering of the identification. I mean,

if he can identify him in court, that’s one

thing. And if he can’t identify him in court,

then that would be relevant and admissible,

but for her to do it both ways . . . It’s not so

much the identification. I’m not objecting to

him saying that he identified him six days after the incident. What I’m objecting to is the

admission . . . of this photo lineup, because

108

See TEX. R. EVID. 801(d) (“ ‘Hearsay’ is a statement, other

than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter asserted.”).

App. 58

then she’s bolstering his identification then

. . . and now.

Thus, appellant’s counsel objected to the photo

lineup on the basis of improper bolstering. Appellant

now argues that “ ‘bolstering’ has ties to Texas Rule of

Evidence 613(c), which involves prior consistent statements and reiterates principles of hearsay.” He therefore contends that his “bolstering” objection preserved

a hearsay claim regarding the photo array. He asserts

that the harm to him was substantial, since Herrera

was the only witness other than Cera who identified

him.

Texas Rule of Appellate Procedure 33.1(a) provides, in relevant part, that for a complaint to be presented on appeal, a timely request, objection, or motion

must have been made to the trial court. The request,

objection, or motion must have stated the grounds for

the ruling that the complaining party sought with sufficient specificity to make the trial court aware of the

complaint, unless the specific grounds were apparent

from the context.109 Additionally, it is well settled that

the legal basis of a complaint raised on appeal must

comport with the objection raised at trial.110 In determining whether a complaint on appeal comports with

an objection at trial, we look to the objection’s context

and the parties’ shared understanding at the time.111

109

TEX. R. APP. P. 33.1(a)(1)(A).

Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012).

111

Id.

110

App. 59

“Bolstering” occurs when a party improperly uses

“an item of evidence” to “add credence or weight to

some earlier unimpeached piece of evidence already offered by the same party.”112 Historically, a witness’s

testimony bolstering a eyewitness’s identification of

the accused was not allowed because the testimony

was considered to be hearsay.113

However, in the instant case, appellant specifically

objected to the admission of the photo array itself and

not a witness’s testimony concerning the out-of-court

identification. Texas Rule of Evidence 801(e)(1)(C) provides that, “A statement is not hearsay if: The declarant testifies at the trial or hearing and is subject to

cross-examination concerning the statement, and the

statement is: . . . one of identification of a person made

after perceiving the person.”114 Thus, the rule defines a

statement, such as the one Herrera made when he

signed the photo array, as non-hearsay if: the declarant

testifies, he is subject to cross-examination concerning

the statement, and the statement is one identifying a

person made after perceiving him.115

112

Guerra v. State, 771 S.W.2d 453, 474 (Tex. Crim. App.

1988).

113

See Thomas v. State, 811 S.W.2d 201, 208 (Tex. App.—Houston [1st Dist.] 1991, pet. ref ’d) (citing Frison v. State, 473 S.W.2d

479, 481 (Tex. Crim. App. 1971) (holding that testimony from a

detective that the complainant identified the defendant as one of

several robbers was “rank hearsay”)).

114

TEX. R. EVID. 801(e)(1)(C) (2014).

115

See Thomas, 811 S.W.2d at 208; see also Sanders v. State,

No. 09-16-00004-CR, slip op. at 5 (Tex. App.—Beaumont June 21,

2017, no pet. h.) (“[B]y adopting Rule 801(e)(1)(C) . . . the Court of

App. 60

Assuming, arguendo, that appellant preserved his

hearsay claim by objecting to the array on the basis of

improper bolstering, he nonetheless cannot prevail on

the merits due to Rule 801(e)(1)(C). Herrera testified

at trial and was subject to cross-examination. The complained-of exhibit conveys Herrera’s out-of-court identification of appellant as the shooter after he perceived

appellant during the shooting. In sum, State’s Exhibit

13 was not hearsay. Appellant’s eighth point of error is

overruled.

CONSTITUTIONALITY OF FUTURE

DANGEROUSNESS SPECIAL ISSUE

In his ninth point of error, appellant avers that the

statutory future dangerousness special issue violated

his due process rights under the Fourteenth Amendment.116 Appellant alleges that this special issue is unconstitutional on its face because it does not define the

term “probability” and it is “unduly vague.” He argues

that the statutory special issue, as it is currently

worded, warrants a “yes” finding whenever there is

any possibility of future acts of criminal violence, no

matter how remote the possibility, which makes virtually every person convicted of capital murder a “future

danger.”

Criminal Appeals adopted a rule that expressly allowed a party

to elicit testimony from a witness regarding the witness’s prior

out-of-court identification of the defendant.”).

116

See TEX. CODE CRIM. PROC. art. 37.071 § 2(b)(1).

App. 61

We have addressed and rejected substantially similar constitutional challenges.117 Appellant has not persuaded us to reverse our longstanding precedent. We

overrule his ninth point of error.

COUNSEL’S CONCESSION THAT

APPELLANT COMMITTED MURDER

In point of error ten, appellant argues that his

counsel rendered constitutionally ineffective assistance by conceding to the jury that appellant had committed “murder, plain and simple.”118 He contends that

counsel’s strategy of admitting appellant’s involvement in the murder conflicted with counsel’s strategy

in requesting a charge on the lesser-included offense of

manslaughter and urging the jury to find appellant

guilty only of manslaughter. Appellant also argues

that the concession conflicted with counsel’s interpretation of the evidence that “Cera was the actual killer.”

Appellant maintains that counsel should only have

117

See, e.g., Russeau v. State, 291 S.W.3d 426, 434 (Tex. Crim.

App. 2009) (holding that the trial court did not violate the defendant’s due process rights in failing to define “probability,” where

the defendant argued that, in common usage, the term “probability” can mean “any possibility” and “a juror would have been compelled to answer the first special issue ‘yes’ if [he was] convinced

that there was even the remotest probability of future violence by

appellant”); Gardner v. State, 306 S.W.3d 274, 302–03 (Tex. Crim.

App. 2009) (holding that the terms “probability,” “criminal acts of

violence,” “militates,” and “continuing threat to society” are not

statutorily defined, and therefore the jury should give them their

“commonly accepted meanings”).

118

Appellant Br. at 144; 52 Rep. R. 39–40.

App. 62

conceded that appellant was guilty of robbery, not murder.

In closing arguments at the guilt or innocence

phase of trial, defense counsel made the following

statements:

When you hear something from two people and one is being selective and one is not –

when one side only gives you the good and the

other side is presenting everything else, that

should tell you something about what they

think in their case and how they prepared for

it and how their police investigated it, if they

investigated anything at all. Now, I’m going to

save you some time, and hopefully I’ll save the

[S]tate some time, and we can end this closing

argument relatively quickly. . . .

Fidencio Valdez is involved in this murder. Plain and simple. You’ve heard it from me.

There is no – I think if I stood up here and told

you, “It wasn’t him.” You know, “They didn’t

prove it” – let me ask you this . . . How many

times did I ask one of those witnesses, “Now,

you can’t prove he’s the person using that

phone, can you?” . . . How many times did you

hear me ask that? That’s the defense of “I’m

not there. It wasn’t me.” . . . You didn’t hear

me ask that one time. Not once. And the very

first 15 minutes of my argument I’m telling

you he’s there. We know he’s there, because

Forest Zozaya tells you, “I saw a guy with

glasses.” . . .

App. 63

So what am I doing? Our defense has always been, from the very beginning – and it is

today, it was yesterday, it is now – this is a

drug deal gone bad. That’s all it is. This is two

people in a suspicious situation where there’s

not a lot of trust, where it’s dangerous, and it

went south. That’s all.

Again, don’t waste your time. Yes, he’s

there. He’s in the car. It’s his phone. He’s at

the murder scene. He’s seen shooting someone

else, Julio Barrios. So let’s move past that.

Counsel discussed weaknesses in the State’s case, including the problems with Cera’s credibility and the

evidence showing that Barrios was a drug dealer, not a

“little boy,” despite the State’s witnesses’ contrary testimony. Counsel cautioned the jurors that the State

was not giving them the whole story, and he suggested

that the defense was being completely honest with

them. He discussed the fact that appellant had accused

Barrios of wearing a wire and emphasized the fear and

distrust inherent in drug deals. Counsel then argued,

So something bad happened between these

two guys, and Barrios got shot. That’s it.

That’s this case. That’s all there is. It’s a drug

deal gone bad.

Now, whether you want to believe it’s

reckless, or whether you want to believe it’s

intentional, that’s your – I’m not going to go

there. You decide which one you want to believe. . . .

App. 64

I think this – this is – there’s one verdict

in this case with regards to the count of the

shooting of Barrios, and that’s murder. If you

feel it’s manslaughter, you can go there, but

this – there’s one verdict.

There’s no robbery. In order to get to robbery you have to disregard all of the inconsistencies of everybody else telling you what

happened. . . . You have to disregard the selectiveness. You have to disregard the incomplete

investigation, the lack of ballistics, the lack of

blood testing in the car, the lack of luminol,

the lack of people being shown everything,

good and bad, and you’ve got to just accept the

fact that they were sloppy and, “Well, you

know, we’ll cut them a break because they’re

the [S]tate.”

Our review of trial counsel’s representation is

highly deferential and presumes that counsel’s actions

fell within the wide range of reasonable professional

assistance.119 “If counsel’s reasons for his conduct do

not appear in the record and there is at least the possibility that the conduct could have been grounded in

legitimate trial strategy,120 we will defer to counsel’s

119

Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007).

In McCoy v. Louisiana, the Supreme Court held that “a

defendant has the right to insist that counsel refrain from admitting guilt, even when counsel’s experienced-based view is that

confessing guilt offers the defendant the best chance to avoid the

death penalty. McCoy v. Louisiana, 138 S. Ct. 1500, ___ (2018)

(emphasis added). However, in McCoy, the defendant, while on the

record, affirmatively denied any guilt and protested to the court

his objections to his trial attorney’s chosen defense strategy of

120

App. 65

decisions and deny relief on an ineffective assistance

claim on direct appeal.”121 In the majority of cases, the

record on direct appeal is simply undeveloped and insufficient to permit a reviewing court to fairly evaluate

the merits of an ineffective assistance of counsel

claim.122

In particular, judicial review of counsel’s closing

arguments is highly deferential: “deference to counsel’s tactical decisions in his closing presentation is

particularly important because of the broad range of

legitimate defense strategy at that stage.”123 Further,

when a defense attorney was faced with overwhelming

evidence of his client’s involvement in the offense, we

have found that conceding the defendant’s guilt of a

lesser-included offense in an apparent attempt to persuade the jury to find him guilty of the lesser offense,

admitting guilt in favor of the hope of a lesser-included charge. Id.

at ___. Here, the record contains no challenge to show that counsel’s strategy was not in line with the defendant’s objective. See

id. at ___ (“[W]hen counsel confers with the defendant and the

defendant remains silent, neither approving nor protesting counsel’s proposed concession strategy, ‘no blanket rule demands the

defendant’s explicit consent’ to implementation of that strategy.”

(citing Florida v. Nixon, 543 U.S. 175, 181 (2004)). For our purposes here, Appellant presents no evidence in the record to overcome the presumption of competent representation.

121

Garza, 213 S.W.3d at 348.

122

Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

123

Yarborough v. Gentry, 540 U.S. 1, 6 (2003).

App. 66

rather than the charged offense, was a reasonable trial

tactic.124

In the instant case, counsel’s reasons for his actions do not appear in the record, and his conduct could

have been part of a reasonable trial strategy. Without

more, we must defer to counsel’s decisions and deny

relief. We overrule appellant’s tenth point of error.

PUNISHMENT CHARGE ERROR

In his eleventh point of error, appellant contends

that the trial court egregiously erred in submitting an

allegedly incomprehensible jury instruction regarding

the jury’s consideration of the future dangerousness

special issue. He asserts that the instruction failed to

comply with the wording required by Article 37.071

§ 2(d)(1). The statute provides that the trial court shall

charge the jury that:

(1) in deliberating on the issues submitted under Subsection (b) of this article, it shall consider all evidence admitted at the guilt or

innocence stage and the punishment stage, including evidence of the defendant’s background or character or the circumstances of

the offense that militates for or mitigates

124

Hathorn v. State, 848 S.W.2d 101, 118 (Tex. Crim. App.

1992); see also Jordan v. State, 859 S.W.2d 418, 422 (Tex. App.—

Houston [1st Dist.] 1993, no pet.) (“It is logical to conclude that

trial counsel, faced with overwhelming evidence of appellant’s

guilt, chose to placate the jurors rather than to possibly antagonize them with an impassioned, though weakly supported, plea

for a verdict of not guilty.”).

App. 67

against the imposition of the death penalty[.]125

The instruction that the trial court in appellant’s case

actually submitted to the jury read:

In deliberating on Special Issue Number One

you shall consider all the evidence at the guilt

or innocence stage and the punishment stage,

including evidence of the Defendant’s background or character or the circumstances of

the offense that mitigates for or mitigates

against the imposition of the death penalty.

(Emphasis added). Thus, the instruction actually submitted to the jury in this case did not comply with Article 37.071 § 2(d)(1) because it used the words

“mitigates for” where the statute indicates that the instruction should have used the words “militates for.”

Appellant argues that this deviation rendered the

instruction incomprehensible because the word “mitigate” means to “make less severe, serious, or painful.”

He contends that a “person can never consider evidence which ‘mitigates for’ the death penalty; he or she

can only consider evidence which mitigates ‘against

the death penalty.’ ” Appellant concedes that, because

his trial counsel did not object to the erroneous jury

instruction, he must show egregious harm to prevail

on appeal.126

125

TEX. CODE CRIM. PROC. art. 37.071 § 2(d)(1) (emphasis

added).

126

See Almanza, 686 S.W.2d at 171.

App. 68

We agree that appellant must show egregious

harm. Therefore, we must determine whether the

charging error affected the very basis of the case, deprived appellant of a valuable right, or vitally affected

his defensive theory.127 In doing so, we consider the entire jury charge, the state of the evidence, the argument of counsel, and any other relevant information.128

Where faced with a claim that a jury instruction is ambiguous, the reviewing court should use common sense

to determine whether there is a reasonable likelihood

that the jury was misled by the ambiguity.129

Appellant complains that no other part of the jury

charge informed the jury of the correct language required by Article 37.071 § 2(d)(1). The State responds

that the court’s charge correctly instructed the jury to

consider all the evidence presented at the guiltinnocence and punishment phases of trial, including

evidence that mitigates against the death penalty, in

answering the special issue. The erroneous part of the

instruction was the portion that should have called the

jury’s attention to evidence that militated for the imposition of the death penalty. Thus, the State asserts,

the party that suffered a disadvantage due to the

charging error, if any, was the State, not appellant. We

agree. We overrule his eleventh point of error.

127

Id.

129

See Mireles v. State, 901 S.W.2d 458, 460 (Tex. Crim. App.

1995) (citing Boyde v. California, 494 U.S. 370 (1990)).

128

App. 69

PETIT JURY SELECTION

Appellant complains in his twelfth point of error

that the trial judge, over defense counsel’s objection,

declined to follow the statutory procedure set out in Article 35.13 for selecting a petit jury in a death penalty

case. Appellant contends that Article 35.13 mandates

that a jury in a capital case in which the State is seeking the death penalty “shall be passed for acceptance

or challenge first to the [S]tate and then to the defendant.” Appellant maintains that, though defense counsel requested that the statutory procedure be followed,

the trial judge nevertheless used his “own unique procedure.” Appellant maintains that the trial judge allowed both sides to make challenges for cause and

then, after a sufficient number of qualified venire persons were selected to seat a jury, the judge instructed

the State and the defense to make their peremptory

strikes.

The State responds that appellant invited the alleged error he now complains of by filing a written pretrial motion requesting that the trial court not strictly

comply with Article 35.13. Thus, the State avers, appellant should be estopped from complaining about the

trial court’s failure to comply with Article 35.13. The

State further contends that the jury selection method

used by the trial court was within the court’s discretion

under the statute because the State was required to

bring its peremptory challenges to each venire member

before the defense was required to make its peremptory strike decision.

App. 70

Appellant does not direct us to the parts of the record revealing the trial court’s decision to deviate from

the statutory procedure, nor to the point at which appellant’s counsel objected to the trial court’s actions.

Thus, he has not adequately briefed this claim.130 However, in the interest of justice, we will review his claim.

In February 2012, appellant filed his “Amended

Motion to Qualify the Panel Prior to Requiring the Defendant to Exercise his Peremptory Strikes.” In this

motion, appellant argued that Article 35.13 did not require the State and the defense to make their challenges for cause and peremptory strikes immediately

upon passing each juror. He maintained that “[r]equiring the defendant to exercise his peremptory strikes

immediately after the juror is passed on individual

voir dire denies the defendant the opportunity to intelligently exercise his peremptory challenges.” He asked

the trial court to qualify and question the entire panel

before the State—and then the defense—exercised

their peremptory strikes.

At a pretrial hearing held in March 2012, the

State agreed to the plan appellant proposed and the

trial judge announced that he intended to allow the

parties to make challenges for cause at the time the

jurors were questioned and to qualify approximately

forty-six jurors. The judge told the parties that, following that qualification process, “[o]nce we get there then

you can make your peremptory strikes. Is that all

130

See TEX. R. APP. P. 38.1(i); Buntion v. State, 482 S.W.3d 58,

106 (Tex. Crim. App. 2016).

App. 71

right?” The defense attorney and the prosecutor both

agreed.

After the voir dire of the second venire member131

in February 2014, the following colloquy occurred between the trial judge and counsel:

THE COURT: We need to decide how we’re

going to go – obviously, the strikes for cause

are going to be made immediately, you first

and then them. The issue now – I just want

your feelings on it – and both sides give me

their feelings regarding the exercising of peremptory challenges.

Now, I know that some courts, what they

have done is basically waited until they have

the proper number of jurors qualified then

bring them in the courtroom and then give

you the opportunity to make your peremptory

strikes. I know under the statute I can make

you exercise your peremptory strikes now if

that be the case. So I want to know – you

know, I certainly want to do this in a way that

both sides feel comfortable – whether, you

know – with however we proceed, but I think

that it might move this process a little bit

more smoothly, more quickly is [sic], if I force

you guys to make your decision on your peremptories now.

And I would welcome your comments on

that.

131

The first venire member was struck for cause based on the

State’s challenge.

App. 72

[THE PROSECUTOR]: We had talked about

it earlier, Judge – and I can’t remember, so

you’ll have to correct me if I’m wrong. I

thought we had both agreed that we would

prefer to qualify the number and do the peremptories at the end.

Was that not your preference?

[DEFENSE ATTORNEY]:

[THE PROSECUTOR]:

them now?

No.

No? You want to do

[DEFENSE ATTORNEY]:

Yes.

[THE PROSECUTOR]: Our preference is to

qualify the number of jurors we need and say

– and do the peremptories at the very end. . . .

THE COURT: Okay. So let me think. So each

side gets 15 strikes each on the peremptories,

we go for – and then if we’re going to get alternates – and we’re probably going to get two

alternates, I’d probably grant – I probably

would qualify six extra jurors for the alternate

pool and then give you two strikes each on the

alternate pool. So we’re looking at 53 – about

53 – about 53, 55 people we’d have to qualify.

[THE PROSECUTOR]: Right. And, really,

my argument – it absolutely benefits the defense as well. They’re going to be making

these same type of strategic decisions when

they’re making their peremptory strikes as

well. I would assume that they would want to

know – to look at the whole pool and rate them

also.

App. 73

THE COURT:

What’s your position?

[DEFENSE ATTORNEY]: Your

Honor,

we’re asking for strict adherence to [Article]

35.13. 35.13 is what the legislature – the legislators have decided what – or they have set

down what – the way the order should be.

And that is that it be – that “A juror in a

capital case in which the [S]tate has made it

known to seek the death penalty, held to be

qualified, shall be passed for acceptance or

challenge first to the state and then to the defendant. Challenges to jurors are either peremptory or for cause.”

And so we’ve read that in addition to

reading Bigsby [sic][132]and Hughes [133] – Bigsby

[sic] v. State, Hughes v. State – to mean that at

once the juror has been voir dired, [sic] the

[S]tate moves for – if they so desire – challenges, strikes, or accepts. And at that point

the juror then passes to us, in which then we

exercise cause – or acceptance, cause, or

strike. The reason why this system is – and

it’s explained in Hughes beautifully, and that

is, the [S]tate gains a strategic advantage

when they see us challenging for cause before

they have decided whether to strike or not.

For example, if the [S]tate does not challenge

and then we challenge for cause and that’s denied, now the [S]tate knows that we’ve got to

exercise a strike on that person. And if they

132

Bigby v. State, 892 S.W.2d 864, 879–80 (Tex. Crim. App.

1994).

133

Hughes v. State, 24 S.W.3d 833, 841 (Tex. Crim. App. 2000).

App. 74

also – if they move for cause and it’s denied

and then we move for cause again, we’re in a

situation now where they know that we don’t

want the person and therefore they can save

a strike knowing that we will strike the – or

at least having an idea of what our hand is

going to be that we have to exercise that

strike. And it gives the [S]tate an unfair advantage either way because if we wait until

the end – if we challenge for cause and it’s denied, they know then they don’t have to worry

about that juror. More than likely the defense

will strike that person. And if that person is

objectionable to the [S]tate, then they save a

strike, whereas we don’t gain that advantage.

We don’t have that ability.

Defense counsel subsequently conceded that “a

trial court has the discretion to decide whether the

[S]tate must voice both a challenge for cause or a peremptory challenge before the defendant, or that both

sides issue any challenges for cause before the [S]tate

lodges its first peremptory.” The judge responded that

his intention was to have the State make its desired

challenges for cause to each juror, the defense make its

challenges for cause, the State exercise its peremptory

strikes, and then the defense exercise its peremptory

strikes. Defense counsel continued to argue that this

method could give the State an unfair advantage in a

situation where both sides unsuccessfully challenged a

juror for cause, because the State could withhold its

peremptory strike, knowing that the defense would be

likely to exercise one of its peremptory strikes on such

a juror. The State continued to ask the trial judge to

App. 75

reserve both sides’ peremptory strikes until the parties

had assembled a qualified pool of venire members. Defense counsel continued to lobby for the trial judge to

proceed juror by juror.

After taking time to read the cases cited by defense counsel, the trial judge ruled that the parties

would raise their challenges for cause after each juror

was questioned and “then we will reserve peremptories

[for] when we have the 48 jurors.” Defense counsel

again objected and requested “strict adherence to

35.13.” The trial judge responded, “And the way I read

the law, this Court has discretion to do it either way,

and that’s the way I’m going to do it.”

Following questioning of each venire member, the

trial judge allowed the State to make its challenges for

cause and then allowed the defense to make its challenges for cause. After qualifying the requisite number

of venire members in April 2014, the trial judge allowed the parties to make their peremptory strikes

against each venire member in the qualified juror pool.

For each person in the pool, the State exercised its peremptory strike first and then, if the State did not strike

the person, the defense could exercise a peremptory

strike.

First, we address the State’s contention that appellant invited error by filing a written pretrial motion

in 2012 asking the trial court to deviate from the procedure set out in Article 35.13. The law of invited error

provides that a party cannot complain of an error that

App. 76

it invited or caused.134 In other words, “[i]f a party affirmatively seeks action by the trial court, that party

cannot later contend that the action was error.”135 “To

hold otherwise would be to permit him to take advantage of his own wrong.”136 Appellant specifically requested in his pretrial motion that the trial court

follow a procedure other than the one dictated by Article 35.13. Thus, argues the State, to the extent that appellant complains about the trial court’s ruling on his

pretrial motion, he is estopped from seeking appellate

relief.

However, this is not a case in which an appellant

lay behind the log, induced the trial court to take an

action, and then later claimed on appeal that said action was erroneous.137 Rather, appellant communicated

to the trial court shortly after voir dire commenced

that he no longer wanted the court to follow the procedure upon which the parties had previously agreed. He

argued that the trial court should adhere to the process

set out by statute. Because appellant made his change

of position clear before any for cause or peremptory

challenges were made, he made his complaint “by a

timely request, objection, or motion that stated the

grounds for the ruling” he sought, and he left adequate

time for the State to respond and the trial court to take

134

Woodall v. State, 336 S.W.3d 634, 644 (Tex. Crim. App.

2011).

135

Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999).

Woodall, 336 S.W.3d at 644 (internal citations omitted).

137

Cf. Prystash, 3 S.W.3d at 531.

136

App. 77

corrective action, if necessary.138 Further, appellant obtained an adverse ruling when the judge stated that he

had “discretion to do it either way, and that’s the way

[he was] going to do it.”139 Therefore, notwithstanding

his pretrial motion, appellant preserved his complaint

about the trial court’s jury selection procedure and he

is not estopped from complaining now of the court’s

ruling on his 2014 request to follow Article 35.13.

Nevertheless, appellant cannot prevail on the merits of his claim. Appellant avers that, only after the

State exercises its challenges for cause and peremptory challenges to the venire member, should the defendant exercise his causal and peremptory

challenges. He contends that, by requiring that the defense make its challenges for cause before the State exercised its peremptory challenges, the trial court

unfairly provided advance notice to the State of how

the defense would likely later exercise its peremptory

strikes, thereby prejudicing his defense.

138

See TEX. R. APP. P. 33.1(a)(1); see also Gillenwaters v. State,

205 S.W.3d 534, 537–38 (Tex. Crim. App. 2006) (holding that the

appellant’s complaint was timely raised when his motion gave the

trial court the opportunity to take corrective action “without burdening the parties and the judicial system with a costly appeal

and retrial”; “gave the State a fair opportunity to respond”; and

his delay in raising the claim “did not impair the orderly and effective presentation of the case to the jury”) (internal citations

omitted).

139

See TEX. R. APP. P. 33.1(a)(2).

App. 78

Appellant cites Bigby v. State140 in support of his

argument that the trial court erred in conducting jury

selection in the above-described manner. This Court

noted in Bigby that Article 35.20 regulates the manner

of selecting a jury in a capital case in Texas.141 Article

35.20 provides in relevant part:

In selecting the jury from the persons summoned, the names of such persons shall be

called in the order in which they appear upon

the list furnished the defendant. Each juror

shall be tried and passed upon separately.

Additionally, Article 35.13 provides:

A juror in a capital case in which the [S]tate

has made it known it will seek the death penalty, held to be qualified, shall be passed for

acceptance or challenge first to the state and

then to the defendant. Challenges to jurors

are either peremptory or for cause.

In Bigby, this Court held that these two statutes read

together provide that, in capital cases, jurors must be

called individually.142 The Court also held:

It seems apparent, [that] the legislature intended that defendant’s challenges for cause

could be made after the State has made its decision to accept a veniremember. In this instance the statutory language evokes no other

140

Bigby v. State, 892 S.W.2d 864, 879–80 (Tex. Crim. App.

1994).

141

142

Id. at 880.

Id.

App. 79

logical interpretation. . . . Upon completion of

voir dire by both parties of that potential juror, the State must choose to accept the veniremember or challenge him for cause or

peremptorily, and then the defendant or his

counsel may exercise its peremptory or causal

challenge.143

In Bigby, over a defense objection, the trial court ruled

that the State would have the opportunity to make its

challenge for cause to each venire member, followed by

the defendant’s challenge for cause, followed by the

State’s peremptory challenge, and then the defendant’s peremptory challenge.144 Relying on Articles

35.13 and 35.20, this Court found that the trial court

“fell into error” by proceeding with voir dire in this

manner.145 However, the Court concluded that the error

was harmless under former TEX. R. APP. P. 81(b)(2).146

Six years later, the Court re-examined its decision

in Bigby, noting that five members of this Court in a

concurring opinion expressed their belief that the fairest and most objective interpretation of Article 35.13

provides trial judges the discretion during voir dire “to

143

Id. at 879–80.

Id. at 879.

145

Id. at 880.

146

Former Rule 81(b)(2) applied the same harmless-error

standard – that the appellate court must reverse the judgment

unless the court determined beyond a reasonable doubt that the

error did not contribute to the conviction or punishment – regardless

of whether the error was of constitutional magnitude. See Snowden v. State, 353 S.W.3d 815, 818 (Tex. Crim. App. 2011). Under

the current reversible error rule promulgated in 1997, that standard only applies to constitutional errors. See TEX. R. APP. P. 44.2(a).

144

App. 80

permit the exercise of challenges for cause by both

sides before moving on to any use of peremptory challenges.” In other words, a trial court has the discretion

to decide (1) whether the State must voice both a challenge for cause or a peremptory challenge before the

defendant, or (2) that both sides issue any challenges

for cause before the State first lodges a peremptory

challenge. . . . Either method, however, is acceptable

under Article 35.13, and no error can result if either is

followed.

Similarly, in Wood v. State,147 this Court held that

a trial court did not abuse its discretion by overruling

an appellant’s motion to require the State to exercise

all of its strikes – both for cause and peremptory – before appellant’s strikes, and did not abuse its discretion

in “requiring that both sides issue challenges for cause

prior to the State’s use of a peremptory challenge.”148

We conclude that the trial court’s jury selection

procedure in this case did not exceed the court’s discretion. We overrule appellant’s twelfth point of error.

CONSTITUTIONALITY OF DEATH PENALTY

In his final point of error, appellant asserts that

“evolving standards of decency have reached the point

where the [C]ourt can declare that the death penalty

is no longer consistent with the values embodied in

the Eighth Amendment.” Appellant cites Gregg v.

147

148

Wood v. State, 18 S.W.3d 642 (Tex. Crim. App. 2000).

Id. at 649.

App. 81

Georgia,149 in which the United States Supreme Court

stated that the Eighth Amendment “must draw its

meaning from the evolving standards of decency that

mark the progress of a maturing society.”150

Appellant provides no citation to authority or factual argument supporting his contention that “evolving standards of decency that mark the progress of

America’s maturing society” now render the death penalty per se unconstitutional. Further, Gregg does not

support appellant’s premise. The Supreme Court observed in Gregg, “[f ]or nearly two centuries, this Court,

repeatedly and often expressly, has recognized that

capital punishment is not invalid per se.”151 The Court

concluded that Georgia’s statutory procedure did not

violate the Eighth Amendment.152 In addition, appellant’s proposed holding conflicts with this Court’s precedent.153 Without more, we decline to overrule existing

precedent. Appellant’s thirteenth point of error is overruled. We affirm the judgment of the trial court.

DELIVERED:

June 20, 2018

DO NOT PUBLISH

149

Gregg v. Georgia, 428 U.S. 153 (1976).

Id. at 173.

151

Id. at 177–78.

152

Id. at 207.

153

See, e.g., Castillo v. State, 221 S.W.3d 689, 694 (Tex. Crim.

App. 2007) (“The death penalty does not violate the Eighth

Amendment.”); Threadgill v. State, 146 S.W.3d 654, 672–73 (Tex.

Crim. App. 2004) (same).

150

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.