Petition for Writ of Certiorari — Brian Suniga, Petitioner v. Texas
Supreme Court briefJun 3, 2019
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No. ______________
IN THE
SUPREME COURT OF THE UNITED STATES
_________________________________________________
BRIAN SUNIGA,
Petitioner,
v.
THE STATE OF TEXAS,
Respondent.
_____________________________________
On Petition for a Writ of Certiorari to
the Texas Court of Criminal Appeals
APPENDICES
_______________________________________
Appendix A
Suniga v. State, AP-77,041, 2019 Tex. Crim. App. Unpub. LEXIS 128, 2019 WL
1051548 (Tex. Crim. App. March 6, 2019) (not designated for publication)
Appendix B
Texas Code of Criminal Procedure Article 37.071§ 2
APPENDIX A
User Name: HILARY SHEARD
Date and Time: Monday, June 3, 2019 7:13:00 AM CDT
Job Number: 90056046
Document (1)
1. Suniga v. State, 2019 Tex. Crim. App. Unpub. LEXIS 128
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HILARY SHEARD
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As of: June 3, 2019 12:13 PM Z
Suniga v. State
Court of Criminal Appeals of Texas
March 6, 2019, Delivered
NO. AP-77,041
Reporter
2019 Tex. Crim. App. Unpub. LEXIS 128 *; 2019 WL 1051548
BRIAN SUNIGA, Appellant v. THE STATE OF TEXAS
Notice: DO NOT PUBLISH.
PLEASE CONSULT THE
APPELLATE PROCEDURE
UNPUBLISHED OPINIONS.
TEXAS RULES
FOR CITATION
OF
OF
Prior History: [*1] ON DIRECT APPEAL FROM
CAUSE NO. 2012-434109. IN THE 140TH DISTRICT
COURT, LUBBOCK COUNTY.
Suniga v. State, 2017 Tex. Crim. App. Unpub. LEXIS
892 (Tex. Crim. App., Feb. 1, 2017)
Core Terms
trial court, defense counsel, juror, law law law, alcohol,
challenge for cause, questioning, special issue, gang,
voir dire, witnesses, responded, prison, violence, future
dangerousness, police officer, venire members, asserts,
beyond a reasonable doubt, sexual abuse, trial judge,
probability, peremptory, circumstances, sentence,
burden of proof, pre-trial, objected, recalled,
photographs
Judges: KELLER, P.J., concurred in the disposition of
point of error number 2 and otherwise joined.
Opinion
Per curiam. KELLER, P.J., concurred in the
disposition of point of error number 2 and otherwise
joined.
prior opinion entered in this case, and substitute the
following opinion of the Court.
In May of 2014, a jury convicted Appellant of capital
murder. Tex. Penal Code § 19.03(a)(2). Pursuant to the
jury's answers to the special issues set forth in the
Texas Code of Criminal Procedure, Article 37.071,
sections 2(b) and 2(e), the trial judge sentenced
Appellant to death. Tex. Code Crim. Proc. art. 37.071, §
2(g).1 Direct appeal to this Court is automatic. Art.
37.071, § 2(h). After reviewing Appellant's seventeen
points of error, we find them to be without merit.
Consequently, we affirm the trial court's judgment.
STATEMENT OF FACTS
Appellant was charged with intentionally causing the
death of David Rowser while "in the course of
committing or attempting to commit the offense of
robbery of Jonathan Rowser" on December 26, 2011.2
The record reflects that David and his younger brother,
Jonathan, both worked at a pizza restaurant in Lubbock.
At around 10:00 p.m. on the date of the offense, they
were preparing [*2] to close the restaurant. David was
cleaning the bathrooms, while Jonathan was manning
the cash register. The last three customers were sitting
at a table. Their server was refilling their drinks at a
soda fountain near the cash register. Other servers
were cleaning the restaurant or talking with Jonathan as
they waited for the customers to leave.
Two men entered the restaurant through the front door
and approached Jonathan at the cash register.
Jonathan and other witnesses believed that the men
were there to place a last-minute take-out order until
both men pointed guns at Jonathan and shouted at him,
demanding money from the cash register. One man was
1 Unless otherwise indicated, all references to Articles refer to
OPINION
the Code of Criminal Procedure.
We grant Appellant's motion for rehearing, withdraw our
2 Subsequent
references to the victims will be by first name
because they share the same last name.
HILARY SHEARD
Page 2 of 45
2019 Tex. Crim. App. Unpub. LEXIS 128, *2
Hispanic, had tattoos on his arms and neck, and was
wearing "whiteout" contact lenses that blocked out all
the color of his irises. The other man was also Hispanic
and had some facial hair as well as a star-shaped tattoo
on his face. He was shorter, heavier-set, and darkercomplected than the first man. Both men wore "hoodies"
and baggy pants.
When Jonathan did not immediately open the cash
register, one of the men grabbed the tip jar that was
sitting on the counter near the register and both of them
headed toward the door. David then [*3] emerged from
cleaning the men's bathroom. The man wearing the
whiteout contacts yelled, "That's what you get," as he
shot David three times. David fell to the floor.
Jonathan ran to David, who was bleeding profusely and
coughing up blood. David asked Jonathan to help him.
Jonathan applied pressure to two gunshot wounds on
David's chest. He yelled at David, trying to keep him
awake, but David soon lost consciousness. Jonathan
kept David's head and torso elevated, trying to help him
breathe until first responders arrived. Paramedics
loaded David into an ambulance and took him to
University Medical Center. In the ambulance, they
suctioned blood from David's lungs and inserted an
endotracheal tube to keep his airway open. They placed
David on a cardiac monitor, performed chest
compressions, and "started an IV." However, David had
no breath, pulse, or heart activity. He was pronounced
dead in the hospital's trauma care center.
The Lubbock Police Department published descriptions
of the suspects based on witness interviews. On the
morning of December 27, a woman who worked at the
front desk of a motel where Appellant and his
accomplice, Sesilio Lopez Jr., had been staying, heard
a news story [*4] about the robbery-murder. Based on
the suspects' descriptions, she believed that Appellant
and Lopez were the culprits. She called the motel
manager, who then called the "Crime Line" number and
provided police with Appellant's and Lopez's names and
a description of their vehicle.
Based on this information and details provided in other
calls to the "Crime Line," the Lubbock Police
Department released a statewide "attempt to locate"
bulletin describing the suspects and their vehicle and
identifying Appellant and Lopez by name. About twentyfour hours after the offense, Taylor County sheriff's
deputies stopped Appellant and Lopez because their
vehicle matched the details provided in the bulletin.
Upon confirming their identities and the capital murder
warrants from Lubbock County, deputies arrested them
and seized the vehicle.
PRE-TRIAL MATTERS
In point of error one, Appellant asserts that the trial court
violated the Sixth and Fourteenth Amendments to the
United States Constitution "when it failed to prevent
[him] from being represented by counsel laboring under
a conflict of interest." He states that, once he brought a
potential conflict of interest to the trial court's attention,
the court was obligated to inquire into whether a conflict
of interest [*5] existed. He argues that the trial court did
not "make a meaningful inquiry" into his concerns or
take adequate steps to ascertain whether the risk of a
conflict of interest merited the appointment of new
counsel.
Appellant further complains that, even after the trial
judge was informed that Appellant had filed a grievance
against the entire Office of the Regional Public Defender
for Capital Cases ("Public Defender's Office") and had
expressed dissatisfaction with "everyone" representing
him, the judge stated that there was "no need to worry
about it" and again failed to conduct an adequate
inquiry. Appellant also urges that, if the trial court's
failure to conduct an adequate inquiry resulted in a
record that contains insufficient evidence of a conflict,
then this Court should not resolve this issue without first
abating the appeal and remanding for the trial court to
make a proper inquiry. Additionally, Appellant asserts
that the error requires automatic reversal because it is
impossible to determine the degree of prejudice arising
from representation by counsel who had a conflict of
interest.
The record reflects that the trial court held a pre-trial
hearing on January 29, 2014, a few [*6] days after
defense counsel informed the judge that Appellant had
contacted the director of the Public Defender's Office to
say that he wanted another attorney to represent him.
The judged asked Appellant if he wanted to say
anything to the court, and Appellant answered:
Like [defense counsel] said, I'm here trying to seek
new representation. I have a couple of issues with
one of my defense members. I feel like his best
interest is more probably with the State than with
mine. We've talked on a couple of occasions, and
he's told me things that aren't true. He's also told
me that he feels that I could be guilty; therefore, I
don't feel like his interests are -- his best interests
are with me, I feel they might be with the State,
your Honor.
The trial judge asked Appellant, "What other conflicts do
HILARY SHEARD
Page 3 of 45
2019 Tex. Crim. App. Unpub. LEXIS 128, *6
you have other than what you just stated?" Appellant
responded:
Well, your Honor, I mean, I just -- I don't feel
comfortable going into the courtroom with
somebody who might think that I'm guilty, or has
been telling me things that aren't true. That's -- I
mean, we're talking about life and death here in my
situation.
The trial judge denied the request, stating that Appellant
wanted to replace defense [*7] counsel with an attorney
who was not qualified to be on the list of attorneys
eligible for capital murder case appointments. Defense
counsel and Appellant both clarified that counsel, and
not Appellant, had suggested the names of substitute
counsel. The judge again denied Appellant's request. At
the end of this hearing, the judge and parties confirmed
that they were scheduled to begin "general voir dire of
the jury pool" on March 13, 2014.
On April 16, during individual voir dire, defense counsel
made an ex parte record, "out of an abundance of
caution because of some of the confidentiality rules,"
that the Public Defender's Office had received a letter
from the Office of Disciplinary Counsel. The letter stated
that Appellant had filed a grievance against defense
counsel, the substance of which named all the attorneys
on Appellant's defense team and the director of the
Public Defender's Office, and that the grievance had
been summarily dismissed. Counsel stated that if the
judge thought the matter should be addressed in front of
the State, he was willing to repeat this information. The
judge stated, "I don't think there's any need to worry
about it." Voir dire then continued.
Once a [*8] possible conflict of interest is brought to the
trial court's attention by either a pre-trial motion or trial
objection, the court has a constitutional obligation to
take adequate steps to ascertain whether the risk of the
conflict of interest is too remote to warrant remedial
action. Dunn v. State, 819 S.W.2d 510, 519 (Tex. Crim.
App. 1991) (citing Holloway v. Arkansas, 435 U.S. 475,
484, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978)). "[I]n
evaluating Sixth Amendment claims, 'the appropriate
inquiry focuses on the adversarial process, not on the
accused's relationship with his lawyer as such.'" Wheat
v. United States, 486 U.S. 153, 159, 108 S. Ct. 1692,
100 L. Ed. 2d 140 (1988). "[T]he essential aim of the
Amendment is to guarantee an effective advocate for
each criminal defendant rather than to ensure that a
defendant will inexorably be represented by the lawyer
whom he prefers." Id. A trial court has no duty to search
for counsel agreeable to the defendant. King v. State,
29 S.W.3d 556, 565-66 (Tex. Crim. App. 2000). Further,
a defendant cannot manipulate his constitutional right to
counsel in a manner that throws the trial process into
disarray. Id.
In this case, Appellant has not provided a record cite to
a pre-trial motion to withdraw or a trial objection, and we
have not located such a motion or objection in our
independent review of the record. Rather, it appears
that, as the result of an off-the-record communication
between defense counsel and the trial court, the
trial [*9] court held a hearing to ask Appellant about any
potential conflict. Assuming without deciding that this
off-the-record communication was sufficient to trigger
the trial court's obligation to inquire and to preserve this
matter for appeal, we hold that the trial court made an
adequate inquiry.
Whether the trial court's inquiry into an alleged conflict is
adequate depends on the circumstances. It is not
always necessary for the trial court to hold a hearing
concerning an alleged conflict when the defense does
not request one, or when a motion to withdraw does not
advance a valid basis for the asserted conflict. See,
e.g., Malcom v. State, 628 S.W.2d 790, 791-92 (Tex.
Crim. App. 1982) (stating that the trial court was not
required to hold a hearing on a motion to withdraw
where the defendant did not request one); see also
Calloway v. State, 699 S.W.2d 824, 830-31 (Tex. Crim.
App. 1985) (declining to find that the trial court
neglected its duty to hold a hearing when the motion to
withdraw did not advance a valid basis for the asserted
conflict). Although no formal motion to withdraw was
filed in this case, given that defense counsel suggested
the names of replacement counsel, we will look to case
law addressing motions to withdraw as instructive.
Generally, when a motion to withdraw merits further
inquiry, the [*10] trial court's inquiry is adequate if it
provides the movant with an opportunity to explain the
perceived conflict and his reasons for requesting new
counsel. See, e.g., King, 29 S.W.3d at 565-66
(concluding that, when the hearing on the motion to
withdraw gave the defendant the opportunity to expand
on his reasons for dissatisfaction with counsel, but he
failed to do so, the trial court did not abuse its discretion
in refusing the motion); Viges v. State, 508 S.W.2d 76,
76-77 (Tex. Crim. App. 1974) (concluding that, when the
trial court held a conference with the defendant and
defense counsel, but the only reasons urged for
withdrawal were the defendant's refusal to cooperate
and his desire not to be represented by that attorney,
the court did not err in denying the motion).
HILARY SHEARD
Page 4 of 45
2019 Tex. Crim. App. Unpub. LEXIS 128, *10
In this case, the trial court made an adequate inquiry by
holding a hearing that provided Appellant with an
opportunity to express his reasons for his dissatisfaction
with counsel. Appellant asserted only that defense
counsel had told Appellant "things that aren't true" and
"that he feels I could be guilty." When the trial court
asked Appellant if he had any additional conflicts,
Appellant rephrased his prior assertions. Notably,
defense counsel did not ask to withdraw or state that a
conflict [*11] of interest might impair his representation
of Appellant. See Cuyler v. Sullivan, 446 U.S. 335, 347,
100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980) ("[T]rial courts
necessarily rely in large measure upon the good faith
and good judgment of defense counsel.").
granting the motion could have delayed the trial); Green
v. State, 840 S.W.2d 394, 408 (Tex. Crim. App. 1992)
(holding that the court did not abuse its discretion in
denying a motion filed "just over one month" before jury
selection, when the case had already been reset once
to accommodate defense counsel, and counsel's
opinion concerning his inability to contact the defendant
was "speculative at best"); Gonzales v. State, 532
S.W.2d 343, 345 (Tex. Crim. App. 1976) (concluding
that the trial court did not err in refusing the defendant's
request for another attorney when he expressed
dissatisfaction with defense counsel immediately before
jury [*13] selection and did not specify how counsel's
representation was inadequate).
Appellant's stated concerns at the hearing — that
defense counsel had expressed the view that Appellant
might be guilty and had told him unspecified "things that
aren't true" — were not valid grounds for removal. See,
e.g., King, 29 S.W.3d at 566 (holding that the trial court
did not abuse its discretion in refusing counsel's motion
to withdraw when the defendant and his attorney had
"personality conflicts" and the defendant complained
about counsel's trial strategy and failure to provide
updates about his case). Under the circumstances, the
trial court was not required to take any additional steps
to ascertain the extent of the alleged conflict.
In this case, as discussed above, the concerns stated
by Appellant during the hearing were not valid grounds
for removal. Further, defense counsel did not allege a
conflict or express support for Appellant's request for
new representation. Also, Appellant raised the alleged
conflict approximately six weeks before general jury voir
dire was scheduled to begin, although he had been
represented by the same attorneys for almost two years.
Under the circumstances, the trial court did not abuse its
discretion by refusing Appellant's request for new
representation.
Further, the trial court did not abuse its discretion in
refusing to order defense counsel's removal. The trial
court has discretion to determine whether defense
counsel should be allowed to withdraw from a case.
King, 29 S.W.3d at 566; see also Solis v. State, 792
S.W.2d 95, 100 (Tex. Crim. App. 1990). Personality
conflicts and disagreements concerning trial strategy
are typically not valid grounds for withdrawal. King, 29
S.W.3d at 565-66. Neither are a defendant's statements
to the effect that [*12] he is dissatisfied with, and no
longer wants to be represented by, counsel. Viges, 508
S.W.2d at 76-77; Rogers v. State, 488 S.W.2d 833, 834
(Tex. Crim. App. 1973). Further, a criminal defendant's
filing of a civil action against his court-appointed
attorney is not a per se conflict of interest that warrants
the attorney's disqualification. Dunn, 819 S.W.2d at 519.
The trial court may also consider the timing of a motion
to withdraw based on an alleged conflict in determining
whether to grant it. See, e.g., King, 29 S.W.3d at 566
(concluding that the trial court did not abuse its
discretion in refusing a motion alleging only personality
conflicts and disagreements over strategy, when
counsel had worked on the case for several months and
had made significant preparations for trial, such that
Appellant also complains that the trial court should have
removed defense counsel upon learning that Appellant
had filed a grievance with the Office of Disciplinary
Counsel. However, defense counsel did not move to
withdraw at that time, and the grievance had already
been summarily dismissed. Moreover, individual voir
dire was well underway. Cf. Perry v. State, 464 S.W.2d
660, 664 (Tex. Crim. App. 1971) (finding no error when
the trial court declined to appoint new counsel after the
defendant filed a civil suit against defense counsel,
reasoning that, "if [the defendant's] contention were
upheld, a defendant could [*14] effectively delay or
prevent an appeal (or trial)" by suing defense counsel).
We conclude that the trial court did not abuse its
discretion by denying Appellant's request for new
representation after the initial inquiry or by failing to sua
sponte remove counsel during individual voir dire. Point
of error one is overruled.
In point of error two, Appellant complains that the trial
court violated his right to be "personally present at the
trial" under Article 33.03,3 his right to be present at "any
3 Article 33.03 provides, in relevant part:
In all prosecutions for felonies, the defendant must be
HILARY SHEARD
Page 5 of 45
2019 Tex. Crim. App. Unpub. LEXIS 128, *14
pre-trial proceeding" under Article 28.01, § 1,4 and his
"absolute right to be present at all proceedings against
him under the Sixth Amendment to the United States
Constitution" when the judge conversed with Peggy
White, a seated juror, in his absence. He also contends
that the trial court violated his rights under the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution because White was biased
against criminal defendants.5 At trial, Appellant
challenged White for cause because (1) the trial court
conducted an ex parte inquiry with her in violation of
Article 33.03, and (2) her comments during the inquiry
demonstrated that she was "bias[ed] against criminal
defendants," so that her service on the jury would
violate the Fifth, Eighth, and Fourteenth Amendments to
the United States Constitution. Appellant contends on
appeal that the trial court erred when it denied his
challenge for cause on these [*15] bases. This point of
error raises more than one ground for relief, and
therefore it is multifarious. See Rule 38.1; Jenkins v.
State, 493 S.W.3d 583, 605 n.50 (Tex. Crim. App.
2016). Further, Appellant did not object to the trial court
questioning the juror in his absence on two of the legal
grounds raised on appeal — Article 28.01 and the Sixth
Amendment. See Rule 33.1(a). However, we will
address these claims in the interest of justice.6
Based on an ambiguous and misleading record
surrounding the trial judge's questioning of White, this
Court assumed in its opinion on original submission that
one of Appellant's defense attorneys was present during
the questioning of White on May 1, 2014. We stated that
it was unclear whether Appellant [*16] was personally
absent from the proceeding, noting the presumption of
presence found in Article 33.03. See Art. 33.03 ("When
the record in the appellate court shows that the
defendant was present at the commencement, or any
portion of the trial, it shall be presumed in the absence
of all evidence in the record to the contrary that he was
present during the whole trial."). We also assumed,
based on the record before us, that the trial judge
questioned White in the courtroom. The submission of a
corrected record has shown those assumptions to be
incorrect.
On March 14, 2017, Appellant filed a motion for
rehearing alleging four grounds. In one of Appellant's
grounds, he asserted: "The Court was misled by an
ambiguity in the record that belies the actual
circumstances of the trial court's ex parte questioning of
a seated juror who had inquired into Mr. Suniga's
custody status and declared herself 'scare[d] to death' of
incarcerated defendants."
personally present at the trial, . . . provided, however, that
. . . , when the defendant voluntarily absents himself . . .
after the jury has been selected when trial is before a
jury, the trial may proceed to its conclusion. When the
record in the appellate court shows that the defendant
was present at the commencement, or any portion of the
trial, it shall be presumed in the absence of all evidence
in the record to the contrary that he was present during
the whole trial.
understand that Appellant meant to implicitly advance a legal
basis he did not enumerate. See Rule 33.1(a); see also Lovill
v. State, 319 S.W.3d 687, 691-92 (Tex. Crim. App. 2009) ("A
complaint will not be preserved if the legal basis of the
complaint raised on appeal varies from the complaint made at
trial."); Reyna v. State, 168 S.W.3d 173, 179-80 (Tex. Crim.
App. 2005) (holding that the Appellant forfeited appellate
review of his Sixth Amendment Confrontation Clause
argument due to his failure to present that legal basis to the
trial court).
4 Article 28.01, § 1 provides, in relevant part: "The defendant
6 Appellant argues in his motion for rehearing that "this Court,
must be present at the arraignment, and his presence is
required during any pre-trial proceeding."
in Adanandus v. State, 866 S.W.2d 210, 216-217 (Tex. Crim.
App. 1993)[,] . . . treated Art. 28.01's requirement of the
defendant's presence as being of a type that cannot be
waived." He also argues that the Sixth Amendment right to
be present at one's trial "must fall into the second category of
rights under Marin [v. State, 851 S.W.2d 275, 278-79 (Tex.
Crim. App. 1993)], i.e.[,] those rights that must be
implemented unless expressly waived, since otherwise it
would be incumbent on a defendant to request to be present
at his own trial in order to avoid forfeiture of that right[.]" We
need not decide today where the present claims and
circumstances fall within our Marin framework. See, e.g.,
Routier v. State, 112 S.W.3d 554, 587 (Tex. Crim. App. 2003)
("Even if we assume that the appellant did not need to object
to preserve these complaints[,] the appellant still cannot
prevail.").
5 For
the first time on appeal, Appellant raises a Sixth
Amendment claim — distinct from his claim based on his
absence from court proceedings — that the trial court's denial
of his challenge for cause based on White's alleged bias
violated the Sixth Amendment. We decline to address this
Sixth Amendment claim because the legal basis he
advances differs from his complaint at trial. See TEX. R. APP.
P. 33.1. (Unless otherwise specified, all references to rules
refer to the Texas Rules of Appellate Procedure.) Appellant's
trial counsel listed the specific legal grounds for his bias
challenge, including the Fifth, Eighth, and Fourteenth
Amendments, yet omitted the Sixth Amendment. Under
these circumstances, the trial judge could not be expected to
HILARY SHEARD
Page 6 of 45
2019 Tex. Crim. App. Unpub. LEXIS 128, *16
Shortly thereafter, on March 27, 2017, this Court
received a supplemental reporter's record (corrected
Volume 24), which encompassed the voir dire
proceedings held on May 1, 2014. In this supplemental
volume, the court reporter inserted the following
parenthetical statement [*17] immediately prior to the
trial judge's questioning of Juror White concerning a
reported encounter with Appellant in the courthouse
basement: "(The following proceedings were had in the
jury room with only the Judge, Court Reporter, and Juror
White present.)." The court reporter also added the
following parenthetical statement immediately after the
judge concluded his questioning of White and the juror
departed: "(The following proceedings were had in open
court with Defendant and attorneys present.)." Despite
the reference to the "jury room," the court reporter
certified that all proceedings were held in "open court"
or in the judge's chambers.
Faced with questions concerning the accuracy of the
trial record in this matter, this Court issued an order
abating Appellant's appeal and remanding this case to
the trial court. See Suniga v. State, No. AP-77,041
(Tex. Crim. App. June 14, 2017) (not designated for
publication); see also Rule 34.6(e)(2), (3). This Court
ordered the trial court to conduct a hearing to determine:
[T]he specific circumstances under which Juror
Peggy White was questioned by the trial judge; the
location where White was questioned; who was
present
during
the
questioning;
and,
if
defense [*18] counsel and the defendant were not
present, when defense counsel and/or the
defendant received actual notice of the questioning
and when they were provided with a transcript of
the questioning.
In a footnote, we noted that the March 2017
supplemental record's "parenthetical statement that the
juror was questioned in the jury room appear[ed] to
conflict with the statements in the court reporter's
certification." We ordered that the trial court's hearing be
transcribed and ordered the trial court to:
determine
whether
the
court
reporter's
supplemental record filed in this Court on March 27,
2017, accurately reflects the events that occurred in
connection with the trial court's questioning of
White. If the trial court finds any inaccuracies in the
reporter's record, the court shall order the court
reporter to "conform the reporter's record . . . to
what occurred in the trial court, and to file certified
corrections" in this Court. See TEX. R. APP. P.
34.6(e)(2). The trial court shall order the
appropriate supplemental clerk's and reporter's
records — including all findings and orders and any
certified corrections — to be prepared and
forwarded to this Court no later than 30 days after
the date of this order.
After [*19] requesting and receiving extensions of time,
the trial court held a hearing on December 20, 2017. At
the hearing, the trial court apparently allowed the parties
to address the remanded issues set out above along
with related issues Appellant raised in his initial Article
11.071 application for a writ of habeas corpus. As a
result, the transcript of the hearing on remand includes
witness testimony and other evidence beyond the
limited subject matter of this Court's order remanding
this case. Yet this Court's remand to correct the record
pursuant to Rule 34 cannot authorize supplementing the
direct appeal record with substantive evidence that was
not admitted at trial or exceeds the limited issues set out
in the remand order. See Ramirez v. State, 104 S.W.3d
549, 551, n.9 (Tex. Crim. App. 2003) (citing Farris v.
State, 712 S.W.2d 512, 515-16 (Tex. Crim. App. 1986),
for the proposition that an "appellate record cannot be
supplemented with evidence not developed during the
proceedings surrounding the defendant's trial"); see also
Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App.
2001) (holding that a record supplementation rule
"cannot be used to create a new appellate record").
Accordingly, we will not consider the testimony and
evidence from the hearing — or new arguments based
on that testimony and evidence — that exceed the
scope of our remand order.7
[*20] After the hearing, the court reporter issued a new
corrected version of Volume 24 and it was filed in this
Court on March 2, 2018. The March 2018 supplement
7 A trial court's jurisdiction on remand is limited to the subject
matter of the remand. See Rule 25.2(g) ("Once the record has
been filed in the appellate court, all further proceedings in the
trial court - except as provided otherwise by law or by these
rules - will be suspended until the trial court receives the
appellate-court mandate."); Lewis v. State, 711 S.W.2d 41, 43
(Tex. Crim. App. 1986) (explaining that, when an appellate
court abates an appeal, the trial court's jurisdiction is limited
and the court "is not authorized to conduct an evidentiary
hearing to develop a record of new testimony and other
evidence that was not presented at trial, or developed on
motion for new trial") (emphasis in original). However, our
refusal to consider evidence outside the direct appeal record
here will not prevent this Court from considering such
evidence later in the context of an Article 11.071 application
for writ of habeas corpus, if it is properly presented.
HILARY SHEARD
Page 7 of 45
2019 Tex. Crim. App. Unpub. LEXIS 128, *20
contains essentially the same content as the March
2017 supplement. However, the court reporter amended
his certification to state that all transcribed proceedings
"occurred in open court or in chambers, unless
otherwise specified in the record[.]"
was a former convict. The prosecutor then returned to
the topic of White's experience of ministering inside the
prison and asked her if "[a]nything about that situation
would have an influence on the way [she would] decide
these issues in this case." White answered, "No."
The trial court subsequently entered findings of fact
stating in relevant part that the new supplemental
volume:
accurately reflects the location of the trial court's
questioning of Mrs. White and accurately identifies
who was present at that questioning as well as the
content of the questioning itself. The record created
of the evidentiary hearing held on December 20,
201[7], has clarified that defense counsel and the
defendant had no prior notice that the trial court
intended to question Mrs. White outside their
presence on May 1, 2014, and that they did not
receive a transcript of that questioning until later
that day (at 11:47:23 a.m.).
At the end of questioning, White stepped out of the
courtroom. Defense counsel challenged her for cause,
alleging that the prosecutor had made an improper
reference to the prison sign about hostage-taking.
Counsel argued that this reference created "the
possibility that [the] juror has some bias in her mind
about the [applicable] law . . . . related to her own
personal experience in the TDC[J]8 unit." The trial court
denied the challenge for cause. Defense counsel
declined to use a peremptory strike against White. The
judge then called White into the courtroom and informed
her that she had been selected as a juror. He advised
her that the trial would probably start in a few weeks and
reminded her not to read or listen to anything about the
case.
The corrected record reflects that White was seated on
the jury on April 15, 2014. During her voir dire, White
indicated that she understood the presumption [*21] of
innocence and would afford this presumption to
Appellant. She stated that she had four sons and that "if
anything happened I would want people to give them
the benefit of the doubt before judging them." White also
indicated that she worked in the courthouse as a clerk
for "Justice of the Peace Precinct Four." She also
revealed that, ten or fifteen years earlier, she had
ministered inside a prison with her church group. She
described the experience of entering the prison as "real
sad when you got past the second gate," and stated that
the group "had to be very careful and cautious" while
they were there.
When the prosecutor asked White if she recalled seeing
a sign that said, "Hostages will not be allowed," as she
passed the second gate, defense counsel objected.
After White stepped out of the courtroom, defense
counsel asserted that the prosecutor's reference to a
sign about hostage-taking played on White's fears and
was an attempt "to heighten some idea that prison . . . is
a dangerous place." The trial court sustained the
objection "as far as talking about hostage taking," but
added that the prosecutor could question White about
"her thoughts" concerning her experience inside
the [*22] prison.
When White returned, and before anyone asked her a
question, White related that she had also been inside a
county jail with a ministry led by a friend of hers who
On April [*23] 28, White was sworn in as a juror when
the trial court called the first nine jurors to swear them in
and discuss whether they had viewed recent media
coverage of the case. Around that time, the trial court
received information about White that it deemed to
warrant further inquiry.9 On April 30, 2014, the judge
told the parties, "With regard to Ms. White, I'll check on
something and let y'all know." Then, on the morning of
May 1, 2014, the judge spoke with White in the jury
room. Only White, the trial judge, and the court reporter
were present. The following exchange transpired:
THE COURT: The reason I wanted to talk to you is
they indicated to me that you had seen the
Defendant in the basement.
JUROR WHITE: No, I have not seen the Defendant
in the basement.
THE COURT: Anywhere?
JUROR WHITE: Anywhere.
JUROR WHITE: I have not ever seen the
Defendant. I've never seen anyone in real clothes in
the basement. Only in the -- like the jumpsuit -THE COURT: Uniform?
JUROR WHITE: -- stuff and the shackles. I've never
seen anyone in real clothes.
8 We
surmise that "TDC" refers to the Texas Department of
Criminal Justice ("TDCJ"), which was formerly named the
Texas Department of Corrections ("TDC").
9 The
record does not reflect the exact source, timing, or
content of the communications that led to the further inquiry.
HILARY SHEARD
Page 8 of 45
2019 Tex. Crim. App. Unpub. LEXIS 128, *23
THE COURT: Okay.
JUROR WHITE: Did they -- have they seen me?
THE COURT: I don't know. The deputies -- I
thought they had said that you had said you had
seen him. [*24]
JUROR WHITE: I have not.
THE COURT: Okay.
JUROR WHITE: Now, I asked them if he had ever
been there. I asked Sharon if he had ever been
there. And she said, "Yes, he's -- he comes every
day."
And I said, "Oh, my goodness. I didn't know that."
But I haven't been to the basement but a couple of
times in the last few weeks.
THE COURT: Okay.
JUROR WHITE: And I have never seen anyone in
regular clothes. But, now, when I'm in the -- my
room, we close the door when anyone is going by.
And if anyone -- if I should be caught in the hallway,
I usually move back against the wall and put my
head down, because I don't want to make eye
contact with any of those people, because I don't
want them to -- you know, it's kind of scary -- it's
scary enough to have to work down there knowing
they're there. But, no, I've never seen him.
THE COURT: Okay. That's all I need to know then.
JUROR WHITE: Okay.
THE COURT: Everything else okay?
JUROR WHITE: Yeah.
THE COURT: I suspect we're going to have a jury
within the next few days, I'm hoping. So -JUROR WHITE: All right. No. No, I've not had any THE COURT: Okay.
JUROR WHITE: No. That would scare me to death.
I'm sorry.
THE COURT: Well, we don't want to do that.
(JUROR WHITE [*25] OUT)
(The following proceedings were had in open court
with Defendant and attorneys present.)
THE COURT: Are y'all ready?
[DEFENSE COUNSEL]: No, sir.
(BRIEF RECESS)
Immediately following this inquiry and recess, the
parties resumed individual voir dire of prospective
jurors. The remaining jurors were seated that afternoon.
The trial court denied Appellant's challenge for cause to
the twelfth juror. Appellant, having exhausted his
peremptory strikes, requested an additional strike. The
trial court denied this request and seated the twelfth
juror, whom Appellant identified as objectionable.
One of Appellant's defense attorneys then requested a
transcript of that inquiry of Juror White:
[DEFENSE COUNSEL 2]: Your Honor, I have one
issue I'd like to put on the record if I could with
regard to Juror White. It's my understanding that
things were put on the record about this juror at
some point concerning potential issues she may
have had for service -- service on the jury. And at
this point, your Honor, even if it's just a rough draft
copy that Defense would request a copy of those
matters that were put on the record with regard to
juror Peggy White.
THE COURT: I have no objection to that being
furnished [*26] to you.
[DEFENSE COUNSEL 2]: And given that, your
Honor, I all [of] the sudden cannot identify what
juror number she was.
THE COURT: I think she's 58.
[PROSECUTOR]: Yes, sir.
[DEFENSE COUNSEL 2]: Given that she was by
my records, your Honor, she was the sixth seated
juror.
THE COURT: That's correct.
[DEFENSE COUNSEL 2]: I would ask the Court to
allow me to come back and revisit this issue of
peremptory strikes after I'm able to review the
rough draft of the transcript.
THE COURT: Okay.
[DEFENSE COUNSEL 2]: I don't have any
objection to proceeding, but I would like the right to
come back and address that.
THE COURT: That's fine.
[DEFENSE COUNSEL 2]: Thank you, your Honor.
On May 2, 2014, having reviewed the transcript of the
court's conversation with White, defense counsel
challenged White for cause:
[DEFENSE COUNSEL 2]: Your Honor, with regard
to the seated juror -- I believe it was the sixth
seated juror, Ms. White. This morning, after review
of the transcript that's part of the record in this case
. . . in light of that transcript, your Honor, we're
going to challenge that juror, Ms. White, for cause.
She's a seated juror at this point. We're going to
challenge her for cause in that we believe [*27] the
Court's inquiry with her ex parte is a violation of
33.03 of the Code of Criminal Procedure requiring
the Defendant to be present at trial.
Additionally, your Honor, in the transcript, she
HILARY SHEARD
Page 9 of 45
2019 Tex. Crim. App. Unpub. LEXIS 128, *27
indicates -- there is a discussion -- the record will
speak for itself, but there is a discussion about her
passing, or being in the hallway -- apparently, in the
basement of this building with inmates from the jail.
And toward the end of that -- of that discussion with
the Court, she . . . -- the only context is in the
paragraphs above, but she says, "All right. No. No.
I've not had any." The Court replied, "Okay." She
said, "No. And that would scare me to death." The
implication of the juror's statements to the Court are
[sic] that being around a defendant scares her to
death, and -- or being -- or passing folks in the
basement hallway would scare her to death. A juror
who expresses that view, your Honor, cannot afford
a defendant the presumption of innocence if she's
scared to death of them.
Further, she would not be able to assess the
credibility of the Defendant that she's scared to
death of who might take the stand and testify. And
we believe that that establishes bias against
criminal defendants [*28] in this juror's mind. And
based upon that record -- I believe in the last
sentence she has to be making reference to my
client, your Honor. And so she has a specific bias
against [Appellant] that's impermissible under
Texas law. A bias cannot be collateral. It would also
violate [Appellant's] rights under the 5th
Amendment, the 8th Amendment and 14th
Amendment, your Honor. Particularly due process
under the 5th Amendment.
And so we would ask to challenge the juror at this
point on those two bases. That would be -- that
would be the first thing, your Honor, is to challenge
the juror on that basis.
THE COURT: The Court was of the opinion that
she was making reference to the fact that the
deputies tell the employees on any floor where any
defendants are being taken to stand aside, and not
be in the hallway where they may have more than
one defendant who is being transferred from one
place to another.
[DEFENSE COUNSEL 2]: That's the -- that's the
only challenge for cause I have against the juror,
are those two bases, your Honor.
THE COURT: The Court will deny your challenge.
[DEFENSE COUNSEL 2]: And for purposes of the
record, Judge, I would also ask -- the Defense at
this point is out of peremptory strikes. I would ask
for a peremptory strike, [*29] specifically, to
exercise against seated Juror White, Juror No. 52 -THE COURT: 58.
[DEFENSE COUNSEL 2]: 58? We would request
an additional peremptory to exercise against that
juror.
THE COURT: Any response, [prosecutor]?
[PROSECUTOR]: Judge, I probably need to consult
with the lead counsel on this before I put anything
on the record with regards to this. If you could give
me five minutes, I may have a response.
After consulting with the lead prosecuting attorney, the
prosecutor responded:
[PROSECUTOR]: And, your Honor, the State would
oppose and would object to the Court giving the
Defense an additional peremptory for Ms. White.
This is a big -- in our opinion, a big to[-]do about
nothing. In that this allegation that the Court went
and talked to Ms. White about was based on false
information from the beginning, and I'm not sure
that that's ever been put on the record. But based
on -THE COURT: I would say that's probably true.
[PROSECUTOR]: And that's what the Court had
told [defense counsel] and I a couple of days ago,
that it was based on false information. She never in
that transcript told the Court that she is scared of
this Defendant.
[Defense counsel] is insinuating that from her [*30]
comments, but that's not what she said. In addition,
the Defense had peremptories available both at the
time that Ms. White was taken on voir dire, as well
as when this information came to light they still had
peremptories available, and they chose to use them
on other jurors. . . . And so we would object to the
Court allowing an additional peremptory strike for
her.
THE COURT: The Court is going to deny your
motion at this time to -- for a peremptory to strike
Ms. White. The Court will deny your challenge to
cause as to Ms. White.
[DEFENSE COUNSEL 2]: Yes, your Honor. For
purposes of the record, the Defense would identify
Juror White as an objectionable juror, in addition to
Juror 105, Mr. Hanfeld.
"One of the most basic of the rights" guaranteed by the
Sixth Amendment's Confrontation Clause "is the
accused's right to be present in the courtroom at every
stage" of trial. Illinois v. Allen, 397 U.S. 337, 338, 90 S.
Ct. 1057, 25 L. Ed. 2d 353 (citing Lewis v. United
States, 146 U.S. 370, 13 S. Ct. 136, 36 L. Ed. 1011
(1892)). This Court has recognized that, under the Sixth
Amendment and Article I, § 10 of the Bill of Rights in the
Texas Constitution, "the scope of the right of
HILARY SHEARD
Page 10 of 45
2019 Tex. Crim. App. Unpub. LEXIS 128, *30
confrontation is the absolute requirement that a criminal
defendant who is threatened with loss of liberty be
physically present at all phases of proceedings against
him[.]" Jasper v. State, 61 S.W.3d 413, 423 (Tex. Crim.
App. 2001) (quoting Miller v. State, 692 S.W.2d 88, 90
(Tex. Crim. App. 1985)). Under Article 33.03, an
accused's right to be present at his trial [*31] is
unwaivable until such a time as the jury "has been
selected." Miller, 692 S.W.2d at 91, 93. Thus, we have
held that a defendant must be present and may not
voluntarily absent himself until after voir dire.
Adanandus, 866 S.W.2d at 217-20. "Article 28.01 does
not speak to hearings alone but mandates the
appearance of a defendant at 'any pretrial
proceedings.'" Id. at 218 (quoting Riggall v. State, 590
S.W.2d 460, 461 (Tex. Crim. App. 1979)). In
Adanandus, this Court ruled that a meeting transcribed
by a court reporter in which the trial court overruled a
defense motion constituted a "pre-trial proceeding"
under Article 28.01. Id. at 219.
The corrected record in Appellant's case reveals that
neither Appellant nor his attorneys were present when
the trial court questioned Peggy White, a seated juror, in
the jury room on May 1, 2014. The court reporter
transcribed the judge's brief exchange with the juror that
day concerning a suspected encounter between White
and Appellant. Nothing in the record before us indicates
that Appellant and his counsel's absence from this
proceeding was knowing or voluntary. Based on the
corrected record, we conclude that the trial court's
conversation with White in their absence violated
Appellant's right to be personally present at his trial.
Having found error, and presuming it is of constitutional
dimension, we determine [*32] whether Appellant was
harmed under the standard applicable to constitutional
error. See, e.g., Jasper, 61 S.W.3d at 423 (when faced
with non-constitutional and constitutional error, we will
apply the standard of harm for constitutional error); see
also Rule 44.2(a) ("If the appellate record in a criminal
case reveals constitutional error that is subject to
harmless error review, the court of appeals must
reverse a judgment of conviction or punishment unless
the court determines beyond a reasonable doubt that
the error did not contribute to the conviction or
punishment.").
When a defendant's constitutional right to be present
during the trial has been violated, we consider whether
the defendant's presence bears a reasonably
substantial relationship to his opportunity to defend
himself. See Adanandus, 866 S.W.2d at 219 (citing
Snyder v. Massachusetts, 291 U.S. 97, 105-08, 54 S.
Ct. 330, 78 L. Ed. 674 (1934)); see also Routier, 112
S.W.3d at 577; Cooper v. State, 631 S.W.2d 508, 512
(Tex. Crim. App. 1982). If it does not, then any error is
harmless. Adanandus, 866 S.W.2d at 219.
The defendant's right to be present ensures that he is
able to "give advice or suggestion" to defense counsel
and to exercise control over the conduct of the trial.
See, e.g., Snyder, 291 U.S. at 106. A defendant's
presence during jury voir dire can bear a reasonably
substantial relationship to his opportunity to defend
himself in several ways. See Sumrell v. State, 326
S.W.3d 621, 625 (Tex. App.—Dallas 2009, pet. dism'd).
Voir dire provides prospective jurors [*33] with an
opportunity to view a defendant and discover whether
they know him. Id. It also provides a defendant with an
opportunity to view the prospective jurors and determine
whether he knows any of them and whether they are
biased for or against him. Id. Also, a defendant may
assist defense counsel in the jury-selection process,
such as by watching prospective jurors' reactions to
counsel's questions. Id.
In this case, Appellant was present during White's voir
dire. Therefore, by the time of the later inquiry, he and
White had already had the opportunity to view each
other and determine whether they were acquainted.
Appellant's attorney received notice of the judge's ex
parte exchange with White — and a transcript of the
questioning — before noon on the same day it occurred.
After receiving notice and the transcript of the
exchange, Appellant did not seek to question White,
even though White worked in the building and trial on
the merits had not commenced. Cf. Adanandus, 866
S.W.2d at 217 (holding that, after eight venire members
were examined in voir dire proceedings by the
prosecutor and defense counsel in the defendant's
absence, his absence was "essentially 'undone'" and
Article 33.03 was satisfied when the trial court [*34] and
parties repeated those examinations in the defendant's
presence).
Further, Appellant does not assert, and the record does
not demonstrate, that he had any information about
White, not available to his attorneys or the court, that
would have affected the court's inquiry. Cf. Jasper, 61
S.W.3d at 424 (concluding that no harm resulted from
the defendant's absence while the trial court heard jury
excuses because, even if he had been present and
objected to the excuses, the trial court would have been
well within its discretion in overruling the objections).
The record shows that the reason for the trial court's
HILARY SHEARD
Page 11 of 45
2019 Tex. Crim. App. Unpub. LEXIS 128, *34
inquiry — White's purported encounter with Appellant in
the courthouse basement — turned out to be a false
report. White stated that she had never seen Appellant
in the basement.
Nevertheless, Appellant contends in his supplemental
briefing that his presence at the proceedings bore a
"relation, reasonably substantial" to his opportunity to
defend himself. See Adanandus, 866 S.W.2d at 219
(citing Snyder, 291 U.S. at 105-08). Specifically, he
argues that, had he been present for the court's
questioning of White, "White's reaction to [his] mere
presence at the interview — the encounter that she
admitted would 'scare her to death,' . . . — would have
demonstrated [*35] to the trial court her inability to
function as an impartial juror who could apply the
presumption of innocence." Appellant's contention is
purely speculative and he has not pointed us to any
evidence showing that White reacted in a fearful manner
to his presence during other court proceedings. Cf. id. at
220 ("There is no evidence that the trial court might
have ruled differently during the meeting had appellant
been present and a supposition of that nature is
unreasonable."). Therefore, based on the corrected
record before us, we are persuaded beyond a
reasonable doubt that Appellant's absence from the trial
court's conversation with White did not affect his
opportunity to defend himself and did not contribute to
his conviction or punishment.
Next, we consider Appellant's assertion that the trial
court erroneously denied his challenge for cause on the
ground that White was biased, in violation of the Fifth,
Eighth, and Fourteenth Amendments to the United
States Constitution. To demonstrate White's bias,
Appellant points to her answers during the trial court's
May 1st inquiry. Specifically, Appellant complains that
White stated that working near the holding cell, and
particularly encountering detainees in the basement
hallway, was "scary." She indicated that [*36] "That" —
perhaps referring to the possibility of encountering
Appellant in the basement hallway — would "scare [her]
to death." Defense counsel challenged White on the
grounds that her responses indicated that she was
biased against Appellant and against criminal
defendants generally, such that she would not be able
to presume Appellant innocent or find Appellant credible
if he testified.10
10 Appellant
adds on appeal that White's responses
demonstrated that she had prejudged Appellant's future
dangerousness. We will not consider this last allegation
Where a party wishes to challenge a potential juror for
bias, that party must demonstrate, through questioning,
that the potential juror lacks impartiality. Buntion v.
State, 482 S.W.3d 58, 84 (Tex. Crim. App. 2016) (citing
Wainwright v. Witt, 469 U.S. 412, 423, 105 S. Ct. 844,
83 L. Ed. 2d 841 (1985)). The proponent of the
challenge for cause must show that the prospective
juror understood the requirements of the law and could
not overcome her prejudice well enough to follow the
law. Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim.
App. 2010). Before a prospective juror may be excused
for cause on the basis of bias or prejudice, the law must
be explained to her and she must be asked whether she
can follow that law regardless of her personal views.
Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App.
2002).
On appeal, in determining whether a trial court abused
its discretion when it overruled a challenge for cause
during voir dire, we examine the voir dire of the venire
member as a whole and decide whether the record
shows that her convictions [*37] would interfere with
her ability to serve as a juror and uphold her oath.
Buntion, 482 S.W.3d at 84. We review a trial court's
ruling on a challenge for cause with considerable
deference because the trial court is in the best position
to evaluate the venire member's demeanor and
responses. Newbury v. State, 135 S.W.3d 22, 32 (Tex.
Crim. App. 2004). We will reverse a trial court's ruling on
a challenge for cause "only if a clear abuse of discretion
is evident." Colburn v. State, 966 S.W.2d 511, 517 (Tex.
Crim. App. 1998).
In this case, White did not directly express bias against
Appellant. Rather, her statements during voir dire
indicated that she understood the presumption of
innocence and would afford this presumption to
Appellant. Her statements during the later inquiry
expressed a generalized fear of encountering pre-trial
detainees, perhaps including Appellant, in the
courthouse basement.
As the party challenging White for cause, Appellant had
the burden of proving by a preponderance of the
evidence that White lacked impartiality. However,
Appellant never requested — after learning of the trial
court's conversation with White or during the
because Appellant did not raise it before the trial court. See
Rule 33.1; see also Layton v. State, 280 S.W.3d 235, 239
(Tex. Crim. App. 2009) ("A specific objection is necessary to
inform the trial judge of the issue and basis of the
objection[.]").
HILARY SHEARD
Page 12 of 45
2019 Tex. Crim. App. Unpub. LEXIS 128, *37
subsequent hearing when defense counsel challenged
her for cause — an opportunity to question White about
whether she could overcome her prejudice well enough
to follow the law. Without [*38] more, White's
generalized fear of encountering detainees in the
basement did not disqualify her. See Ladd v. State, 3
S.W.3d 547, 560 (Tex. Crim. App. 1999) (finding no
abuse of discretion or violation of due process when the
trial court denied a challenge for cause against a venire
member who stated that he "leaned" in the direction of
believing that the defendant was guilty because the
defendant had been arrested and indicted, but who also
stated that he could follow the law, hold the State to its
burden of proof, and presume the defendant innocent);
Jones v. State, 982 S.W.2d 386, 389 (Tex. Crim. App.
1998) (stating that jurors must not have extreme or
absolute positions regarding the credibility of any
witness, but "complete impartiality cannot be realized as
long as human beings are called upon to be jurors");
see also Bell v. State, 724 S.W.2d 780, 797 (Tex. Crim.
App. 1986) (quoting Irvin v. Dowd, 366 U.S. 717, 722,
81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961)) ("To hold that
the mere existence of any preconceived notion as to the
guilt or innocence of an accused, without more, is
sufficient to rebut the presumption of a prospective
juror's impartiality would be to establish an impossible
standard.").
In his supplemental briefing, Appellant further contends
that the law enforcement warnings that caused White to
avoid interaction with the inmates and put her "head
down" reinforced her fear of inmates. He again urges
that [*39] White's fear indicated that she had "a bias or
prejudice" against him and against "the law applicable to
the case upon which the defense [was] entitled to rely."
See Art. 35.16(a)(9), (c)(2). He compares his case to
two Supreme Court cases in which federal agents spoke
with jurors. See Gold v. United States, 352 U.S. 985, 77
S. Ct. 378, 1 L. Ed. 2d 360 (1957); Remmer v. United
States, 347 U.S. 227, 74 S. Ct. 450, 98 L. Ed. 654,
1954-1 C.B. 146 (1956).
Gold and Remmer are distinguishable. In Gold, a 1950s
case involving a charge of falsification of a
noncommunist affidavit, an FBI agent contacted three
jurors or their families during the trial and asked if they
had received communist propaganda — a question of
particular concern during the McCarthy Era. 352 U.S.
985, 77 S. Ct. 378, 1 L. Ed. 2d 360. In Remmer, a third
party approached a juror in an attempt to influence him,
the juror reported the contact to the judge, the judge
called the FBI, and the FBI interrogated the juror during
the trial. Remmer, 347 U.S. at 228; see also Remmer v.
United States, 350 U.S. 377, 380-81, 76 S. Ct. 425, 100
L. Ed. 435, 1956-1 C.B. 641 (1956) (after remand). In
the instant case, the direct appeal record before us does
not show exactly what led White to put her "head down."
Thus, the record does not support Appellant's argument
that law enforcement heightened White's fear of him to
the point where she exhibited "a bias or prejudice"
against him or "the law applicable to the case."
Additionally, Appellant argues that this Court should find
that White's statement [*40] that she was "scare[d] to
death" implicated the federal doctrine of "implied juror
bias." Appellant refers us to Uranga v. Davis, 879 F.3d
646, 652-53 (5th Cir. 2018) (holding that, in "extreme
situations" where the facts inherently create a
"substantial emotional involvement," the court is justified
in finding a violation of the Sixth Amendment due to
"implied juror bias"). Appellant also relies upon Brooks
v. Dretke, where the Fifth Circuit applied the implied
juror bias doctrine when a juror was arrested for
carrying a loaded pistol into the courthouse on the day
of the defendant's sentencing hearing. 444 F.3d 328,
332 (5th Cir. 2006).
Appellant has not shown that his case presents
circumstances sufficient to trigger application of the
implied juror bias doctrine. In Brooks, the gun-carrying
juror's "fate rest[ed] in the hands of the same prosecutor
now seeking the death penalty in Brooks's trial." Id.
Throughout the sentencing hearing, the juror did not
know whether he would be prosecuted and suffered
"unrelenting embarrassment." Id. The Fifth Circuit held
that the prosecutor's power over the juror created an
"intolerable risk." 444 F.3d at 332. Further, the Fifth
Circuit recently reversed the Uranga case on rehearing.
Uranga v. Davis, 893 F.3d 282 (5th Cir. June 18, 2018).
The Fifth Circuit on rehearing held that the fact that the
defendant damaged [*41] a juror's lawn while fleeing
from police "d[id] not rise to the level of the extreme
situations wherein courts have previously imputed juror
bias." Id. at 289. In light of the above authority, this
Court will not impute bias to Juror White, who merely
expressed a vague fear of detainees and possibly of
Appellant.
Appellant further maintains in his reply brief that, even if
implied juror bias does not apply here, White was
"actually impaired in her ability to follow the law and
abide by her oath." The record does not support his
contention. Juror White expressed during voir dire a
commitment to the presumption of innocence. For
example, she indicated that, if one of her four sons were
charged with an offense, she "would want people to give
HILARY SHEARD
Page 13 of 45
2019 Tex. Crim. App. Unpub. LEXIS 128, *41
them the benefit of the doubt before judging them."
Appellant has not demonstrated on the record before us
that she was actually impaired in her ability to follow the
law or her oath as a juror.11
The trial court did not abuse its discretion in concluding
that White's responses during the inquiry did not
demonstrate that she could not afford Appellant the
presumption of innocence or impartially judge his
credibility if he chose to testify. Point of error two
is [*42] overruled.
In his third point of error, Appellant asserts that the trial
court's erroneous denial of his motion to change the
venue of his trial in light of prejudicial pre-trial publicity
violated the Sixth, Eighth, and Fourteenth Amendments
to the United States Constitution. He complains that
extensive pre-trial media coverage projected a
"particular view of the evidence" that prejudiced the
community against him. Therefore, he contends, it was
highly improbable that an impartial jury could be
selected.
The record shows that individual jury voir dire
commenced on March 31, 2014. By the time court
recessed for the day on April 23rd, nine jurors had been
selected. At a hearing on the morning of April 24th,
defense counsel stated that he intended to file a motion
to transfer venue. Counsel explained that he had seen a
news article the previous evening on the web site for
KCBD, the NBC affiliate in Lubbock. Counsel also
stated that he had recorded KCBD's 10:00 p.m.
television news, which featured a similar story. The trial
judge stated that he had not seen the article but he had
seen the television news story, and he noted that it
featured photographs of Appellant and his co-defendant.
Defense counsel expressed concern that the online
article purported [*43] to be about gangs, but that most
of it was actually about Appellant and the instant case.
He noted that the article included the content of witness
statements in the case and details about the aftermath
of the shooting. Counsel asserted that some of this
information could only have come from law enforcement
officers associated with the case.
Defense counsel asked the court to enter a "gag order"
specifically instructing the parties, the Lubbock Police
Department, and the Lubbock County Sheriff's Office
not to discuss the case. The trial court agreed to enter a
"gag order." The judge added that "Rhonda," who we
surmise was the court coordinator, would contact the
people who had already been selected for the jury and
tell them not to "read anything regarding that story." He
noted that, although he had instructed each selected
juror not to read or watch any news accounts about the
instant case, the story at issue was not about this
particular offense but rather was a report about a gang
that included a discussion of this offense. The judge
requested that the prosecutor instruct the Sheriff, the
Chief of Police, and the Lubbock-area Department of
Public Safety ("DPS") Director that their [*44]
employees were not to communicate with the media
about the instant case, and the prosecutor advised that
he would send them an e-mail that day.
That afternoon, the trial court entered a "News Media
Communication Gag Order." In relevant part, the order
recited that, due to information the Court had received
about the April 23rd news stories, the Court ordered
persons involved in the investigation and prosecution of
this case to refrain from further communication with all
news media regarding this case or the defendants. The
order applied to "all members of the Lubbock Police
Department, Lubbock County Sheriff's Department,
Department of Public Safety for the State of Texas, the
Lubbock County District Attorney's office, and the
attorneys/investigators for the defendant." The
prosecutor informed the court and defense that the
Lubbock Chief of Police had acknowledged receipt of
his e-mail and had indicated that he would instruct all of
his officers concerning the gag order, but the prosecutor
had not yet received a response from the Sheriff or the
DPS Director.
Appellant filed his first motion for change of venue on
April 25, 2014, citing Article 31.03;12 his due process
12 Article
11 Appellant avers that, by the time defense counsel requested
a transcript of the court's exchange with White, the court had
"permitted defense counsel to unwittingly expend the
additional peremptory strikes they might otherwise have
exercised on White." The fact that Appellant's counsel
exhausted his peremptory strikes before requesting the
transcript does not have any bearing on the merit of
Appellant's challenge for cause to White.
31.03 provides, in relevant part, that a change of
venue may be granted on the written motion of the defendant
for either of the following causes:
1. That there exists in the county where the prosecution
is commenced so great a prejudice against him that he
cannot obtain a fair and impartial trial; and
2. That there is a dangerous combination against him
instigated by influential persons, by [*46] reason of
which he cannot expect a fair trial.
HILARY SHEARD
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2019 Tex. Crim. App. Unpub. LEXIS 128, *46
right to be tried by a fair and [*45] impartial jury under
the Fifth, Sixth, Seventh, and Fourteenth Amendments;
his right to effective assistance of counsel under the
Sixth Amendment; and the prohibition against cruel and
unusual punishment under the Eighth and Fourteenth
Amendments. He reiterated in this motion that a news
article had appeared on KCBD's web site on the
evening of April 23, 2014, titled, "New DPS report
highlights gang activity in Lubbock." He explained that
the article included photographs of Appellant and his codefendant and discussed the prevalence of the Tango
Blast gang and its dangerous activities in Lubbock.
Appellant asserted that, although the article purported to
be a news story about gang activity, its second
sentence began a discussion of the instant case,
including crime scene evidence and witness statements
to police. Appellant argued that the article went on to
state that Appellant and his co-defendant, who were
awaiting trial on charges of capital murder in this case,
were both believed to be associated with Tango Blast.
Appellant also explained in this motion that a story on
KCBD's 10:00 p.m. television news had discussed the
same subject of gang activity in Lubbock. That story
made no overt reference to the instant case, but it
featured photographs of Appellant and his co-defendant.
Additional versions of that story appeared online and in
later broadcasts. One such version included video
footage from the crime scene, photos of the victim, and
photos of Appellant and his co-defendant. The Texas
Tech University newspaper also published a version of
this story on its website.
Appellant noted in the motion that, as of the April 25th
filing date, "individual sequestered voir dire is in
progress and nine jurors have been selected." He
moved the court to dismiss those nine jurors and the
remainder of the venire and to change venue to a
county outside the coverage area of the Lubbock
County news media. Alternatively, he moved the court
to inquire whether the nine selected jurors had seen any
media coverage concerning this case since March 13,
2014 (the date these jurors completed their
questionnaires), and to give counsel an opportunity to
question them regarding [*47] any effect that the media
coverage had had on them.
Appellant attached two affidavits from Lubbock County
residents to the motion. The affiants recited that there
existed in Lubbock County "so great a prejudice against
. . . the said[] defendant[] that he cannot obtain a fair
and impartial trial of said cause in Lubbock County."
Appellant also attached print-outs of two of the online
articles, as well as DVDs of KCBD's 10:00 p.m.
television news story and another television news story.
In response, the State filed three affidavits from
Lubbock County residents which recited that, in each
affiant's opinion, "there is not so great a prejudice that
prevents [Appellant] from receiving a fair trial in
Lubbock," and Appellant "can receive a fair trial in
Lubbock County."
At a hearing on April 28, 2014, the trial judge explained
to the parties that he would swear in the nine selected
jurors and ask them as a group whether anyone had
heard or read anything in the news during the preceding
week. If any of them responded affirmatively, he would
question those jurors individually. The parties assented
to this procedure and the jurors entered the courtroom.
The judge then swore in the nine jurors [*48] and
explained to them that a prospective juror had seen a
recent news story and, based on that story, had formed
an opinion concerning Appellant's guilt or innocence.
The judge repeated his admonition to the jurors that
they should not view any media coverage about the
case. He then stated that, "with regard to the news
coverage," he could either sequester the jury until the
case was complete or grant a change of venue. He
noted that there had been little news coverage of the
case before jury selection began, but that the coverage
from the previous week might "change things." He
expressed the hope that he would not need to order a
change of venue. The judge then asked the jurors as a
group if anyone had seen anything on the news the
previous week. No one responded affirmatively. He
reminded them again to avoid media coverage of the
case.
After the jurors left the courtroom, a member of the
defense team testified that he had discussed the motion
for change of venue with Appellant on April 25th and
that Appellant had signed it. Defense counsel then
argued that the recent media coverage had prejudiced
Appellant by linking him to a dangerous gang and by
discussing the crime scene and witness [*49]
statements. Defense counsel asserted that it was also
apparent that law enforcement officials had been
providing information about the case to the media. The
prosecutor responded that she believed that a fair and
impartial jury could still be selected. The trial court
denied the motion for change of venue, but stated that,
if it became apparent "that more than just one person on
the venire panel has viewed or read any of this, the
Court will reconsider its ruling." The judge reiterated that
"Rhonda" was contacting prospective jurors and
HILARY SHEARD
Page 15 of 45
2019 Tex. Crim. App. Unpub. LEXIS 128, *49
reminding them "not to read or view anything in the
news."
On May 1st, the twelfth juror was selected and sworn,
and voir dire of prospective alternate jurors commenced.
At a hearing on May 2nd, defense counsel stated that
he was renewing the motion to transfer venue and that
he intended to file a supplemental motion due to
additional media coverage. He noted that the May 2nd
edition of the Lubbock Avalanche Journal featured a
front-page article about gang tattoos and paraphernalia.
He pointed out that a Lubbock police officer who had
been designated by the State as an expert witness in
this case was quoted in the article, discussing the
Tango Blast [*50] gang and gang tattoos. Counsel
acknowledged that the news article did not refer to
Appellant but noted that it referred to Tango Blast, which
had been connected to Appellant in previous news
coverage. Counsel also noted that KCBD, the same
news outlet that had run the previous online and
television news stories, had run a story on the 6:00 p.m.
television news that "rehashed" the trial court's denial of
his motion for change of venue and featured video
footage of Appellant being escorted by police officers
while handcuffed and wearing an orange jumpsuit. The
prosecutor asserted that the Lubbock Avalanche
Journal story about gang tattoos was not tied to the
instant case and, therefore, the officer's comments that
appeared in it did not necessarily violate the trial court's
gag order. The trial judge stated that he would take up
the matter when Appellant filed his supplemental motion
for change of venue.
On May 5, 2014, Appellant filed a second motion for
change of venue.13 In it, he re-urged his previous
motion and described two subsequent news stories,
which included comments provided by law enforcement
officers, one of whom was designated as an expert
witness in the instant case. Appellant [*51] asserted
that the officers' comments violated the gag order. He
reiterated in the motion that a KCBD television news
story discussed the denial of the first motion to change
venue and featured video footage of Appellant being
escorted by officers while handcuffed14 and wearing an
13 Due
to concerns about media coverage during voir dire,
defense counsel began "bench-filing" pleadings directly with
the judge, rather than filing them with the clerk's office, at
around the same time counsel requested the "gag order." In
his reply brief, Appellant acknowledges that the second motion
for change of venue was "bench filed" on May 5, although it
was not file-stamped until May 12.
14 Although
defense counsel used the term, "handcuffed"
orange jumpsuit. Appellant asserted that these news
stories and the officers' comments further prejudiced his
ability to receive a fair trial. Appellant requested that the
court dismiss all twelve seated jurors and the remainder
of the venire and change venue to a county outside the
coverage area of the Lubbock County news media.
Alternatively, Appellant requested that the court
continue the case until a later time when the impact of
the prejudicial media coverage would be diminished.
This second motion was accompanied by affidavits of
two Lubbock County residents that were substantively
the same as the affidavits Appellant had attached to his
first motion. Appellant also provided a DVD of the KCBD
television news story. That story primarily concerned the
trial court's gag order and Appellant's motion for change
of venue. It displayed some of the same photographs
that had been featured in the earlier stories, [*52] as
well as a brief, silent video of Appellant in an orange
jumpsuit, handcuffed, being escorted from a police
vehicle by two police officers.
Appellant also provided photocopies and a print-out of
the Lubbock Avalanche Journal news article, titled,
"Lubbock/Local expert says face tattoos growing trend
among gangs." That article quoted a Lubbock police
officer, Lieutenant Billy Koontz, who stated that prison
members of the West Texas gang, which was part of the
Tango Blast network, sometimes used Texas Tech's
Double T logo, or a five-pointed star, as a face tattoo
denoting their gang affiliation. The article stated that
Koontz had "on many occasions" testified as an expert
in gang tattoo identification for the District Attorney's
office. As an expert witness, Koontz would tell the jury
what a defendant's tattoos "stand for." Koontz noted that
not all inmates who obtained gang tattoos were gang
members or hardened criminals. On the other hand,
Koontz stated, a defendant's gang tattoos did not "help
when facing a jury," and prosecutors would use a
defendant's gang involvement against him at
punishment. The article also quoted the Lubbock
County Detention Center's chief deputy, Cody
Scott, [*53] who stated that an inmate's tattoos would
during the hearing, he used the term, "shackled," in his written
second motion. Broadly speaking, a handcuff may be a type of
shackle, but to the extent that counsel intended to convey in
his written motion that Appellant was visibly restrained by
something in addition to handcuffs, our independent review of
the video confirms that Appellant was handcuffed, with his
hands in front of him. A belly chain connected the handcuffs to
his waist. Appellant was not otherwise visibly restrained.
HILARY SHEARD
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2019 Tex. Crim. App. Unpub. LEXIS 128, *53
be catalogued at the jail and used for identification.15
An alternate juror was selected and sworn on May 5th.
At a hearing on May 6th, the trial court denied
Appellant's second motion for change of venue, noting
that the court had reviewed all of the evidence and that
nothing in the Lubbock Avalanche Journal story was
connected to Appellant or his co-defendant. Voir dire for
alternate jurors then continued, but at the end of the
day, the parties agreed to go to trial with only one
alternate juror. The guilt-innocence phase began on
May 13th. That day, before the jury entered the
courtroom, defense counsel re-urged both motions to
transfer venue, and the trial court again denied them.
A proceeding may be transferred to a different district at
the defendant's request if extraordinary local prejudice
will prevent a fair trial. See Skilling v. United States, 561
U.S. 358, 378, 130 S. Ct. 2896, 177 L. Ed. 2d 619
(2010). A trial court may grant a change of venue if the
defendant establishes that "there exists in the county
where the prosecution is commenced so great a
prejudice against him that he cannot obtain a fair and
impartial trial," or that "there is a dangerous combination
against him instigated by influential persons, by
reason [*54] of which he cannot expect a fair trial." Art.
31.03(a); see Gonzalez v. State, 222 S.W.3d 446, 449
(Tex. Crim. App. 2007). We review a trial court's ruling
on a motion for change of venue for an abuse of
discretion. Freeman v. State, 340 S.W.3d 717, 724
(Tex. Crim. App. 2011). If the trial court's decision falls
within the zone of reasonable disagreement, it will be
upheld. Buntion, 482 S.W.3d at 71.
To justify a change of venue based upon media
attention, a defendant must show that the publicity was
pervasive, prejudicial, and inflammatory. Salazar v.
State, 38 S.W.3d 141, 150 (Tex. Crim. App. 2001).
Widespread publicity alone is not inherently prejudicial.
Gonzalez, 222 S.W.3d at 450; see also Renteria v.
State, 206 S.W.3d 689, 709 (Tex. Crim. App. 2006).
"Prominence does not necessarily produce prejudice,
and juror impartiality, we have reiterated, does not
require ignorance." Skilling, 561 U.S. at 381 (emphasis
in original). Extensive knowledge of the case or
defendant in the community as a result of pre-trial
publicity is not sufficient without some showing of
prejudicial or inflammatory coverage. Gonzalez, 222
S.W.3d at 450; Faulder v. State, 745 S.W.2d 327, 33839 (Tex. Crim. App. 1987). "A defendant must
15 Neither Koontz nor Scott testified at Appellant's trial.
demonstrate an 'actual, identifiable prejudice attributable
to pretrial publicity on the part of the community from
which members of the jury will come.'" Renteria, 206
S.W.3d at 709 (quoting DeBlanc v. State, 799 S.W.2d
701, 704 (Tex. Crim. App. 1990)). We generally
consider news stories that are accurate and objective in
their coverage not to be prejudicial or inflammatory.
Gonzalez, 222 S.W.3d at 451.
In examining whether pre-trial publicity is prejudicial and
inflammatory, a trial court may take three [*55] matters
into consideration: 1) the nature of the publicity; 2) any
evidence presented at a change of venue hearing; and
3) testimony received from venire members at voir dire.
Id. We afford great deference to the trial judge, who
heard the responses of the jurors during voir dire,
because he was in a better position than we are to
resolve issues involving testimony and other questions
of fact by observing the demeanor of witnesses and
scrutinizing their veracity face-to-face. See id. at 452.
The record reflects that the main subject of the April
23rd news stories was a recently-released DPS report
about gang violence in Texas. The KCBD online story
described the Tango Blast gang as "one of the most
predominant and dangerous gangs in Texas," and
quoted a DPS sergeant who stated that the gang had
been active in Lubbock for some time. The story
mentioned that Appellant and his co-defendant, who
were charged with capital murder following a restaurant
robbery, were believed to be members of Tango Blast.
The story briefly summarized the facts of the offense
and featured photographs of Appellant and his codefendant. One KCBD television news story repeated
the content of this online story and featured [*56]
additional photographs of Appellant, his co-defendant,
and the victim. Another television news story concerning
the DPS report did not expressly discuss the offense or
Appellant, but the accompanying graphics included
Appellant's and his co-defendant's photographs and
names. These news stories are the type of accurate and
objective coverage that we generally consider not to be
prejudicial or inflammatory. See Gonzalez, 222 S.W.3d
at 451.
The May 2nd Lubbock Avalanche Journal story did not
refer to Appellant or this case, but generally discussed
gangs and gang tattoos in an informative manner. Cf.
Salazar, 38 S.W.3d at 150 (holding that the trial court
did not abuse its discretion by denying a change of
venue when most of the complained-of publicity did not
mention the Appellant's case specifically and was
informative rather than prejudicial). Additionally, the May
HILARY SHEARD
Page 17 of 45
2019 Tex. Crim. App. Unpub. LEXIS 128, *56
2nd KCBD news story reported the denial of Appellant's
motion to transfer venue in an informative manner. The
brief video of Appellant was not prejudicial or
inflammatory. See, e.g., Bell, 938 S.W.2d at 46 (noting
that the fact that many people in the community knew
appellant had received two death sentences which had
been overturned did not merit a change of venue
because such knowledge did not [*57] amount to per
se prejudice).
Appellant identifies a number of venire members who
acknowledged during voir dire that they had heard news
reports about this case. However, Appellant identifies
only three venire members who stated that, as a result
of these news reports, they had formed opinions about
Appellant's guilt. None of the three was selected for the
jury. On April 28, 2014, the trial judge asked the nine
members of the jury who had already been selected and
admonished not to view news coverage of the case
whether they had seen "anything on the news" during
the previous week. None of them responded
affirmatively. The trial court again admonished them not
to view any news coverage, and Rhonda contacted the
remaining venire members to instruct them not to view
news coverage of the case. The twelfth juror was
selected on May 1st, and, like the jurors who had been
selected before him, he was admonished to avoid news
coverage of the case. There is no evidence in the record
that any juror was aware of the May 2nd news
coverage.
Appellant nevertheless asserts that he was entitled to a
change of venue as a matter of law because the State
did not file affidavits controverting his second [*58]
motion for change of venue and the trial court did not,
he alleges, have a hearing on the second motion. See,
e.g., McManus v. State, 591 S.W.2d 505, 516 (Tex.
Crim. App. 1979) (explaining that a defendant would be
entitled to a change of venue as a matter of law if no
controverting affidavit was filed by the State because,
absent controverting evidence, there would be no issue
of fact to resolve). However, as discussed above, by the
time Appellant filed his second motion, the parties had
already presented controverting evidence and the trial
court had already held a hearing on Appellant's first
motion. The State's failure to re-file county resident
affidavits responding to the evidence that Appellant
presented in support of his second motion did not
render
Appellant's
newly-presented
evidence
"uncontroverted." Cf. id.
Further, the record reflects that the trial court heard
Appellant's second motion for change of venue and his
arguments, although the "hearing" was somewhat
informal. See id. (noting that, where the State failed to
file controverting affidavits, a defendant may waive his
right to a change of venue as a matter of law if he
proceeds to a hearing without objecting that there is no
issue of fact to be tried). The trial court concluded [*59]
that the Lubbock Avalanche Journal story was not
connected to Appellant. The trial judge did not expressly
address Appellant's argument concerning the KCBD
television news story that contained video footage of
him in an orange jumpsuit and handcuffs, but the judge
stated that he had considered "all of the evidence"
before he denied the second motion.
Appellant also argues that the news coverage in this
case was prejudicial and inflammatory because the
headlines concerning Texas gang activity did not
announce that the news stories that followed would
discuss him or this case. Therefore, he asserts, even
well-intentioned venire members and jurors might have
begun viewing those news stories before discovering
that the stories concerned this case. It is true that the
two KCBD news stories that prompted Appellant's first
motion for change of venue followed a pattern of
discussing the Texas DPS gang report — the main
focus of the story — and then pivoting to Appellant's and
other Lubbock-area criminal cases that might be gangrelated. This pattern could have operated to expose
Appellant's alleged gang affiliation contemporaneously
with the revelation that the story concerned Appellant,
so [*60] that the viewer would not discover that the
story concerned Appellant until some information about
him had already been conveyed. However, the news
stories were accurate and objective in their coverage,
and the information that they conveyed — that Appellant
was believed or alleged to belong to a dangerous gang
— was not itself prejudicial and inflammatory. See
Gonzalez, 222 S.W.3d at 451. Moreover, because
evidence of Appellant's gang affiliation was presented at
trial, we do not hold that publishing this information was
by itself prejudicial and inflammatory. See id.
Additionally, Appellant alleges that law enforcement
officials disclosed details about the offense to the media
and later violated the gag order by discussing gang
tattoos. Relying on Henley, Appellant points to the
connection of government officials with the release of
pretrial publicity as a factor we should consider in
reviewing the trial court's ruling on his motions for
change of venue. See Henley v. State, 576 S.W.2d 66,
71-72 (Tex. Crim. App. 1978). However, Henley
concerned the trial court's refusal to hold a hearing or
admit evidence concerning a defendant's motion for a
HILARY SHEARD
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2019 Tex. Crim. App. Unpub. LEXIS 128, *60
change of venue, and it is therefore not instructive. See
Gonzalez, 222 S.W.3d at 451 (concluding that Henley
was not instructive because we resolved that [*61] case
based on the trial court's failure to hold a hearing or
allow the introduction of evidence on pre-trial publicity;
the Henley opinion listed, but did not actually apply,
some factors relevant to a trial court's venue decision).
In this case, the trial judge expressed his displeasure
with the Sheriff's Office, which did not acknowledge the
court's "gag order" or circulate the court's instructions to
its employees until after the court contacted the Sheriff
directly. However, the court did not find that any law
enforcement officers had released confidential or
otherwise prejudicial information to the media. The court
further noted that law enforcement officials'
communications with the media that occurred after the
issuance of the gag order did not concern Appellant or
this case. Thus, the trial court did not abuse its
discretion by declining to find that any government
officials' conduct merited a change of venue.
To summarize, Appellant received hearings and
presented evidence on his motions to change venue.
The trial court reviewed affidavits from county residents
as well as the content of the media coverage. In
addition, the trial court heard from selected jurors and
venire members [*62] concerning their exposure to the
media coverage. We conclude that the trial court could
reasonably find that Appellant's affidavits from county
residents were unpersuasive, the news coverage was
not inherently prejudicial and inflammatory, and jurors'
and venire members' credible statements during voir
dire indicated that the pre-trial publicity had not impeded
Appellant's ability to select a fair and impartial jury. The
trial court did not abuse its discretion by denying
Appellant's motions for change of venue. Point of error
three is overruled.
EVIDENTIARY RULINGS
In his fourth point of error, Appellant asserts that the trial
court erred in excluding, during the punishment phase of
trial, mitigating evidence concerning intrafamilial sexual
abuse, violence, and alcohol abuse, in violation of the
Eighth and Fourteenth Amendments to the United
States Constitution. Appellant complains specifically that
the court excluded: (1) his brother Michael's testimony
concerning sexual abuse within the family; (2) his
maternal aunt Delores's testimony concerning her
father's physical and verbal abuse of her mother and the
sexual abuse of her sister Alma; and (3) his mother
Rosalinda's testimony "concerning the problems that
alcohol had wrought in the lives [*63] of" Appellant's
brothers, Michael and Eric.16
The record reflects that Appellant's brother Eric testified
before the jury that he was the eldest of three brothers.
Eric stated that he was about three years older than
Appellant's brother Michael and about eight years older
than Appellant. Eric recalled that Appellant was a
happy-go-lucky child. Their parents divorced when
Appellant was about three years old, and the boys
subsequently lived with their mother, Rosalinda. She
remarried when Appellant was five or six. The boys'
stepfather, Albert, was a good father figure to them. Eric
recalled that Albert would take Eric to play golf and he
encouraged him to do well in school. Eric stated that his
experience with Albert had motivated him to complete
high school and attend college. However, Albert was in
the boys' lives for only about four years before he
separated from their mother. They saw him very rarely
after that. Eric noted that Appellant, who was much
younger than Eric, would not have experienced the
same positive influence from the boys' time with Albert.
Eric testified that, after Albert moved away, the boys
continued living with Rosalinda. She left them generally
unsupervised while [*64] she worked long hours and
attended GED classes. Appellant became more
introverted around this time. Eric was completing high
school by then, and he did not pay much attention to his
younger brothers. Around the time Eric graduated from
high school, his aunt's husband, Sesilio Lopez Sr., left
his aunt and moved into Rosalinda's house. Sesilio had
issues with drugs and alcohol. Eric's understanding was
that Sesilio made a living "primarily [by] narcotics
trafficking." Eric explained that one of Sesilio's sons
(Sesilio Lopez Jr.) was Appellant's co-defendant in this
case.
Eric stated that he had not seen Appellant much since
finishing high school. Eric testified that, after he
graduated from high school, he moved out of
Rosalinda's house and attended college for two and
one-half years. He then served in the Navy for four
years before finishing college. Eric stated that he still
saw his mother and brothers on holidays, when their
main activities were cooking and drinking alcohol.
Eric also testified that the boys' father, Augustine, was a
"chronic alcoholic." Eric denied being an alcoholic but
16 Except for Appellant's co-defendant, Sesilio Lopez Jr., who
we refer to as "Lopez," we will refer to Appellant's family
members by their first names because many of them share the
same last name.
HILARY SHEARD
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2019 Tex. Crim. App. Unpub. LEXIS 128, *64
acknowledged that he liked to drink, saying that he
would have a drink before going to bed. Eric [*65]
stated that several of his maternal aunts and uncles had
been to the penitentiary; among his uncles, only the
youngest, Larry, had avoided prison. Eric recalled that
most of his family members' offenses were narcoticsrelated. Eric also testified that his brother Michael had
issues with drugs and alcohol. At the time of trial,
Michael was in a correctional facility for a "parole
violation because of alcohol."
During cross-examination, Eric stated that he had been
married and that he had a little girl for whom he helped
provide. Eric stated that Appellant had seven children.
When the prosecutor asked Eric if Appellant "[took] care
of and provide[d] for" those children, Eric stated that he
did not know specifically, "but [he] would doubt it." Eric
also acknowledged that his mother had modeled a good
work ethic for her sons.
Appellant's mother, Rosalinda, testified that her parents
moved around a lot in West Texas when she was a
child. Her mother was a homemaker and her father was
a farm worker. Rosalinda was one of ten children. All of
the children worked on the farms with their father.
Rosalinda recalled that she married Augustine when
she was nineteen and he was twenty. Augustine
was [*66] in the Air Force at the time. He stayed in the
service for twelve years, but when he got out, he
became an alcoholic and "didn't work anymore." Alcohol
took over his life. Augustine was already an alcoholic
when Appellant was born. Rosalinda recalled that
Augustine was not a "mean drunk," but he liked to
argue. They divorced in 1983, when Appellant was three
or four years old.
Rosalinda further testified that Appellant had seven
children. She stated that she spent a lot of time with
some of them, but she never saw others. Appellant's
oldest child, Aaron, was autistic and had birth defects.
Rosalinda acknowledged that Appellant neither provided
for his children nor fulfilled the role of a father for them.
She stated that he was a good father when he spent
time with his children, but he spent very little time with
them.
Rosalinda testified that she considered Eric to be an
alcoholic because he drank every day. When defense
counsel asked her if alcohol had "interfered with some
parts of Eric's life," the prosecutor objected on the basis
of relevance. The trial court sustained the objection.
Rosalinda went on to testify that Eric lived with her
periodically, most recently from 2009 to 2011. [*67]
Rosalinda also testified that Michael was in prison at the
time of trial because of DWIs and a probation
revocation. When defense counsel asked Rosalinda to
"tell the jury about alcohol in Michael's life," the
prosecutor objected to relevance. The trial court
instructed counsel to "rephrase." Counsel then asked
Rosalinda if alcohol had "caused criminal problems for
Michael in his life," and she responded, "Yes." She
stated that alcohol had caused Michael to get into
trouble, such as "[j]ail, prison, accidents." Michael had
also been convicted of drug offenses.
Rosalinda testified that her father also had issues with
alcohol while she was growing up. She described him
as "a weekend drinker." Every Friday when he finished
working, her father and the family would drive to
Lubbock to get beer. They would bring it home and her
father would drink all weekend. When Rosalinda was a
young woman, her father was killed in a card game.
Rosalinda testified that all of her siblings "drank," but
she was not sure if they had "problems" with alcohol
because she did not see them very often. She
acknowledged that many of them had been to prison.
Her brothers had gone to prison for drug offenses, and
her [*68] sister Alma had gone to prison for shoplifting.
Rosalinda testified that she met her second husband,
Albert, when they worked for the same company in
Austin. She recalled that he was "a great father to" her
children. They married in 1986. Albert joined the
military, and when he was transferred to Massachusetts,
the family moved there with him. Later, when Albert was
transferred to California, Rosalinda and Albert
separated. Rosalinda moved with her sons to Copperas
Cove, Texas. Appellant was in the fifth grade then.
Appellant began skipping school because Rosalinda
was "working nights" and not around to supervise him.
He stopped going to school altogether when he was
fifteen. Rosalinda and Albert finally divorced in the late
1990s.
Rosalinda acknowledged that Sesilio was a drug dealer
who had been married to her sister when he and
Rosalinda began having a romantic relationship. At the
time of trial, Sesilio was in prison for drug dealing.
On cross-examination, Rosalinda stated that Appellant
had issues with alcohol and drugs. She stated that he
had had a good relationship with his father, Augustine.
She and Augustine taught Appellant right from wrong.
The
prosecutor
elicited
Rosalinda's [*69]
acknowledgment that even though all three of her sons
had alcohol problems, only Appellant had killed
HILARY SHEARD
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2019 Tex. Crim. App. Unpub. LEXIS 128, *69
someone. When the prosecutor asked Rosalinda if she
took better care of Appellant's children than Appellant
did, she acknowledged that that was true.
Outside the jury's presence, defense counsel made a
"bill of review"17 with Rosalinda. First, counsel asked
her about the problems that alcohol had caused for Eric.
Rosalinda testified that there was a time when Eric had
difficulty maintaining stable employment. When he lived
with her from 2009 to 2011, he was up all hours "and he
drank." Rosalinda stated that Eric's alcohol use had
caused problems in both of his marriages.
Rosalinda also testified that, in her opinion, Michael was
an alcoholic. Michael was in prison at the time of trial
because his probation on his third DWI had been
revoked. Rosalinda testified that alcohol had caused
problems for Michael, in that he was unable to "hold
legitimate jobs" and had trouble in his family
relationships. The trial judge opined that Rosalinda's
testimony for the bill of review largely duplicated Eric's
testimony except for revealing a second marriage. The
court again sustained the prosecutor's [*70] objection to
the relevance of the proposed testimony.
Back in the jury's presence, Appellant's maternal aunt
Delores testified that when she was growing up, she
and her siblings worked in the fields with their father.
Her father treated "the boys and the girls" differently.
Delores, who was younger than Rosalinda, stated that
Delores took on the role of protector because her father
got violent when he drank. At that point, the prosecutor
asked to approach the bench and the trial court excused
the jury. The prosecutor argued that Delores's childhood
was not relevant to Appellant. Defense counsel
responded that his "obligation [was] to bring forward
generations of family history to establish Appellant's
upbringing and character." Counsel asserted that a
family history of violence and alcohol abuse was
relevant to that. The court sustained the prosecutor's
objection
to
testimony
concerning
Appellant's
grandfather's behavior unless Appellant had personal
knowledge of it. Defense counsel asked to make a bill.
Outside of the jury's presence, Delores testified on a
17 See
Tex. R. Evid. 103(a)(2) (concerning offers of proof);
Rule Tex. R. App. P. 33.2 (prescribing bills of exception);
Reyna v. State, 168 S.W.3d 173, 176 & n.8 (Tex. Crim. App.
2005) ("We have held, and the Rules of Evidence make clear,
that to preserve error in the exclusion of evidence, the
proponent is required to make an offer of proof and obtain a
ruling.").
"bill of review" that her father became physically and
verbally abusive of their mother when he was drunk,
and he also abused the [*71] children. Once when their
mother had gone to San Antonio for surgery, he
sexually abused Delores's older sister, Alma, and
Delores had to "step forward and put a stop to it."
Delores acknowledged that Rosalinda did not learn of
that incident until Delores told her about it, after
Appellant was charged with this offense. Delores did not
recall if the other children suffered any abuse from their
father. Delores recalled that many of her brothers went
to prison for drug and DWI offenses. Her father was
murdered in 1984. At the end of Delores's bill, the trial
court denied defense counsel's request to present her
testimony to the jury.
Back in the jury's presence, Delores identified her
siblings in a photograph that defense counsel showed
her. She stated that four of her brothers had been to the
penitentiary for drug offenses or DWIs. Her sister Alma
also had been to prison, but Delores and her other
sisters had not. Sesilio had been married to Delores's
sister Mary at one time and later had lived with
Rosalinda. Delores recalled that Rosalinda divorced
Augustine over his alcohol abuse. After Rosalinda
separated from her second husband, Albert, she worked
very hard and did not spend time [*72] with her sons.
She had little free time, and she spent any free time that
she did have "partying." Rosalinda sent Michael to live
with Delores in Fort Worth because he was getting into
fights at school. He lived with Delores for a year while
he finished high school, and then he "went back to living
with Rosa" after Rosalinda and Appellant moved to Fort
Worth.
Before Appellant's brother Michael testified, the
prosecutor stated at the bench that he believed Michael
would testify that he was sexually abused as a child by
one of his uncles. The prosecutor noted that the State
had a jail visitation video in which Appellant told his
mother that he was never sexually abused. The
prosecutor objected to the relevance of Michael's
testimony concerning his own sexual abuse. Defense
counsel requested that the parties approach the bench
and address the matter if it came up during Michael's
testimony, and the trial court agreed.
Michael then testified before the jury that he was serving
a prison sentence for his fourth DWI, having had his
probation revoked. He had also served time for a federal
charge of conspiracy to possess marijuana with intent to
deliver. He recalled that his parents divorced [*73]
when he was about six years old. He testified that his
HILARY SHEARD
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2019 Tex. Crim. App. Unpub. LEXIS 128, *73
stepfather, Albert, was a good provider and a good man,
but he was "hands-off" as a father figure; he did not play
games with the boys and he left their discipline up to
their mother. The boys did not see Albert after they
moved with their mother to Copperas Cove. Michael
recalled that they did not have much contact with their
father Augustine because he "was suffering from his
own addiction with alcoholism." Michael recalled seeing
their father at Eric's high school graduation but could not
remember seeing him at other times.
Michael testified that Rosalinda worked a lot and was
not around much when they lived in Copperas Cove.
Eric and Michael were old enough to get themselves to
and from school, and they were responsible for taking
care of Appellant. Then Eric graduated from high school
and left home. Michael started spending time with guys
who were skipping school and partying on the
weekends. He also "loved women," and his interactions
with them led to him getting into fights with other men.
Appellant witnessed a lot of the conflict between
Michael and guys who were mad at him. One time, a
group of guys who were mad at Michael [*74]
threatened the whole family. They showed up outside
the house, and one of them threw a manhole cover
through Appellant's bedroom window. Appellant was at
home when that happened.
Michael testified that, as a result of that incident,
Rosalinda sent Michael to live with Delores in Fort
Worth. He graduated from high school in Fort Worth and
then joined the Army. Nine months later, he was
discharged because of his drinking and fraternizing with
enlisted women. By then, Rosalinda was living in Fort
Worth, and Michael moved into her house. Appellant still
lived with Rosalinda. Sesilio was also spending time
there. Michael lived there for several months while he
looked for work. Eventually, he moved to Eldorado and
worked "out there" for a while.
Michael further testified that he returned to Fort Worth
after he left that job, and he supported himself by selling
marijuana.
He
worked
for
Sesilio,
selling
methamphetamine, cocaine, or acid. Michael stated that
he has "always been an alcoholic," and his memory is
sketchy as a result. He started drinking in high school
and was an alcoholic by the time he was fifteen or
sixteen. Michael testified that his father, uncles, and
cousins were also alcoholics. [*75] He recalled that
alcohol was the center of family get-togethers. Michael
also recalled that Appellant used drugs, including
methamphetamine, from around the time Appellant was
sixteen years old. Michael, his cousins, and his uncles
were all involved in drug dealing, and they had been to
prison for drug offenses. Only Michael's uncle Larry had
not gone to prison.
Michael testified that, while his mother and Sesilio were
living together, one of Sesilio's sons, Jonathan, shot and
wounded a family friend who owed Jonathan money.
Jonathan left the area, but Michael feared for
Rosalinda's safety because "everyone" associated
Rosalinda's house with Jonathan, making it a likely
target for retaliation. Michael told Rosalinda to leave
town for the weekend, and she did. Michael was living in
his own apartment by then, but he and Appellant armed
themselves with guns and spent the night at Rosalinda's
house to guard it.
Michael testified that while he and Appellant were
drinking in the living room that night, their dog growled
and they heard gunshots. Michael saw "a big ball of
flame coming through the hallway enveloping the living
room." The gunshots kept coming, the windows were
shattering, and [*76] it sounded like someone was
kicking in the front door. "It sounded like a war." Michael
and Appellant fled to the kitchen and then they moved
into the garage. They were planning to escape through
the garage, but when they opened the garage door, no
one was there. They surveyed the damage and called 91-1. The police investigation revealed that gasoline had
been poured on the front of the house. "[T]he gunshot
patterns" indicated that there had been five shooters,
with "[t]hree firing 12 gauge shotgun," and "[t]wo firing
9mm. There was [sic] 60 rounds expended from the
9mm." Michael testified that, after that incident,
Appellant became "much more apprehensive, much
more vigilant. Maybe didn't trust people as much."
At the bench, defense counsel renewed his proffer of
Michael's sexual abuse evidence, and the prosecutor
objected that Appellant was not aware of that abuse
when he was a child and had expressed shock when he
learned of it while in jail awaiting trial. The trial court
sustained the objection and stated that defense counsel
could make a bill at the end of Michael's testimony.
Before the jury, the State cross-examined Michael about
prison conditions and his experiences with other [*77]
inmates. Michael stated that he had been housed in
sixty-man dormitories and that prison is a very violent
place. He affirmed that prison inmates are not generally
aware of other inmates' offenses of conviction. At the
time of trial, Michael was housed in an in-prison
therapeutic community designed to modify negative
behaviors and help him address his "issues."
HILARY SHEARD
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2019 Tex. Crim. App. Unpub. LEXIS 128, *77
Outside the jury's presence, defense counsel made a
"bill of review." Michael testified that Larry, who was his
only uncle who had avoided prison, had "[s]exually
abused" him around the time Michael's parents
divorced. Michael testified that he had been trying to
deal with that experience through the prison "rehab"
program. He acknowledged that Appellant was not
aware of that abuse until Michael told him about it later.
Defense counsel asked the trial court to admit Michael's
testimony before the jury, "to establish the character
background of the family . . . in which [Appellant] was
raised, and that influenced his background, character."
The prosecutor then cross-examined Michael, who
stated that he had told Appellant about the sexual abuse
on several occasions. Michael was surprised to learn
that, when Rosalinda told Appellant [*78] about the
sexual abuse in a jail conversation, Appellant acted like
he had not known about it before. Michael recalled that
he had told Appellant about it some years ago. The trial
court denied defense counsel's request to elicit this
testimony before the jury.
On appeal, we review a trial judge's evidentiary rulings
under an abuse-of-discretion standard. Bowley v. State,
310 S.W.3d 431, 434 (Tex. Crim. App. 2010). If the trial
court's decision was within the bounds of reasonable
disagreement, the appellate court should not disturb it.
Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim.
App. 2006). We will sustain the trial court's decision if it
was correct on any applicable theory of law. Prystash v.
State, 3 S.W.3d 522, 527 (Tex. Crim. App. 1999). This
is true even if the judge failed to give a reason or gave
the wrong reason for the ruling. Bowley, 310 S.W.3d at
434.
Relevant evidence is admissible unless otherwise
provided by the state or federal constitution, a statute,
the rules of evidence, or other rules prescribed under
statutory authority. Tex. R. Evid. 402. Irrelevant
evidence is inadmissible. Id. At the punishment phase of
a capital trial, "evidence may be presented by the state
and the defendant or the defendant's counsel as to any
matter that the court deems relevant to sentence,
including evidence of the defendant's background or
character or the circumstances of the offense that
mitigates [*79] against the imposition of the death
penalty." Article 37.071, § 2(a)(1).
Relevant mitigating evidence is evidence which tends
logically to prove or disprove some fact or circumstance
which a fact-finder could reasonably deem to have
mitigating value. Tennard v. Dretke, 542 U.S. 274, 284-
85, 124 S. Ct. 2562, 159 L. Ed. 2d 384 (2004); see also
Tex. R. Evid. 401. To be relevant, the evidence need
not by itself prove or disprove a particular fact of
consequence; evidence is relevant if it provides a small
nudge toward proving or disproving a fact of
consequence. Ex parte Smith, 309 S.W.3d 53, 61 (Tex.
Crim. App. 2010). Thus, the trial court should admit
evidence that a juror could reasonably find warrants a
sentence less than death. Hernandez v. State, 390
S.W.3d 310, 324 (Tex. Crim. App. 2012) (citing
Tennard, 542 U.S. at 284). Except as otherwise
provided by a statute or rule, a jury is entitled to have
before it "all possible relevant information about the
individual defendant whose fate it must determine."
Shuffield, 189 S.W.3d at 793 (quoting Sells v. State, 121
S.W.3d 748, 766 (Tex. Crim. App. 2003)).
In this case, the record reflects that Michael's proffered
testimony was that his uncle, Larry, had sexually
abused Michael around the time that Michael's parents
divorced. The prosecutor objected to the relevance of
Michael's testimony concerning his own sexual abuse,
noting that Appellant was not aware of that abuse until
many years later. The trial court properly sustained the
objection. "The fact that others in the appellant's [*80]
family were abused does not by itself make the
appellant more or less morally culpable for the crime for
which he was on trial." Shuffield, 189 S.W.3d at 793.
Nor does it make a jury's finding of mitigation any more
or less probable than it would be without the evidence.
Id. Appellant did not offer evidence that he, personally,
had been sexually abused or had witnessed Michael's
abuse. See id.
Appellant asserts that this Court has implicitly
recognized that sexual abuse of a defendant's sibling
may be mitigating. See Ex parte Gonzales, 204 S.W.3d
391, 399 (Tex. Crim. App. 2006). However, our opinion
in Gonzales did not concern the trial court's evidentiary
rulings; rather, our opinion concerned whether trial
counsel's failure to discover mitigating evidence before
trial constituted ineffective assistance of counsel. Id. We
did not state that evidence concerning the sexual abuse
of Gonzales's sister was, by itself, admissible mitigating
evidence as to Gonzales. Cf. Shuffield, 189 S.W.3d at
793. Rather, we concluded that the evidence and
arguments at the punishment phase of the trial would
have been significantly different if trial counsel had
discovered and presented the mitigating evidence
adduced at the habeas hearing. Gonzales, 204 S.W.3d
at 399.
In Gonzales, the newly discovered evidence included
HILARY SHEARD
Page 23 of 45
2019 Tex. Crim. App. Unpub. LEXIS 128, *80
evidence that Gonzales's [*81] father had repeatedly
sexually abused Gonzales and threatened to kill him
and his mother if Gonzales ever reported the abuse, as
well as evidence that Gonzales's father had sexually
molested Gonzales's older sister numerous times. Id.
Thus, although we listed the sexual abuse of Gonzales's
sister among the items of mitigating evidence that
counsel failed to discover, we did so in the context of
describing the circumstances of Gonzales's own
childhood.
Further, Gonzales is distinguishable from this case on
its facts. In that case, the evidence was that Gonzales
and his sister lived with their abusive father until their
parents divorced when Gonzales was fourteen years
old. See id. at 399. It was Gonzales's sister's outcry to
their mother that prompted the divorce. Id. at 395. In the
instant case, only two pieces of evidence concerned
Larry: (1) he was the only one of Rosalinda's brothers
who had not gone to prison; and (2) on one occasion,
he had sexually abused Appellant's then-nine-year-old
brother Michael. Appellant, who would have been three
or four years old at the time of that incident, did not
know about the abuse until many years later. None of
the punishment evidence indicated the extent, if
any, [*82] of Larry's involvement in or influence on
Appellant's childhood. Without more, the trial court could
reasonably have concluded that the proffered testimony
concerning Larry's sexual abuse of Michael did not
provide relevant information about Appellant. The trial
court did not abuse its discretion by sustaining the
prosecutor's objection to Michael's testimony.
For similar reasons, the trial court did not abuse its
discretion by excluding Appellant's aunt Delores's
testimony concerning her father's physical and verbal
abuse of her mother when he was drunk. We will
assume for the sake of argument that evidence that
Rosalinda witnessed such abuse might have affected
her ability to parent Appellant and, therefore, might have
been relevant in mitigation. When Delores testified,
Rosalinda had already testified that her father had
issues with alcohol and that he would drink all weekend.
However, Rosalinda did not testify that her father had
physically and verbally abused her mother. Appellant
has not explained how, under these circumstances,
testimony that Rosalinda's sister Delores witnessed
such abuse would provide relevant information about
Appellant.
Additionally, the trial court did not [*83] abuse its
discretion by excluding Delores's testimony concerning
her father's sexual abuse of her older sister, Alma.
Delores testified that Rosalinda did not know about that
incident until Appellant was in jail awaiting trial for the
instant offense. Cf. Shuffield, 189 S.W.3d at 793 (finding
that the trial court's decision to exclude the defendant's
uncle's testimony that the uncle had been sexually
abused by a great-uncle was within the bounds of
reasonable disagreement). Delores also stated that she
did not know whether her father had abused any of her
siblings other than Alma. Thus, without more, Delores's
proffered testimony concerning her father's sexual
abuse of Alma did not provide relevant information
about Appellant.
Further, the trial court did not abuse its discretion by
excluding Rosalinda's testimony "concerning the
problems that alcohol had wrought in the lives of"
Appellant's brothers, Eric and Michael. Before Rosalinda
testified, Eric testified that he was eight years older than
Appellant. Eric stated that he did not pay much attention
to his brothers while he was in high school, and Eric had
not seen Appellant very much since finishing high
school. Eric stated that he was not an alcoholic
but [*84] he acknowledged that he liked to drink and
would have a drink before going to bed. Rosalinda
testified before the jury that she considered Eric to be
an alcoholic because he drank every day. When
defense counsel asked Rosalinda if alcohol had
"interfered with some parts of Eric's life," the prosecutor
objected on the basis of relevance, and the trial court
sustained the objection. Rosalinda went on to testify
before the jury that Eric lived with her periodically, most
recently from 2009 to 2011.
The trial court's decision to exclude Rosalinda's
testimony concerning the effects of alcohol on Eric's life
fell within the zone of reasonable disagreement. Eric's
testimony established that he did not interact with
Appellant very much after Eric finished high school.
Therefore, the trial court could reasonably conclude that
whatever alcohol-related problems Eric had later in life
were not relevant to Appellant.
Rosalinda testified before the jury that Michael was in
prison because of DWIs and a probation revocation.
When defense counsel asked Rosalinda to "[t]ell the jury
about alcohol in Michael's life," the prosecutor objected
to relevance, and the trial court instructed counsel to
"rephrase." [*85] Counsel then asked Rosalinda if
alcohol had "caused criminal problems for Michael in his
life," and Rosalinda responded, "Yes." She stated that
alcohol had caused Michael to get into trouble, such as,
"[j]ail, prison, accidents." Michael had also been
convicted of drug offenses.
HILARY SHEARD
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2019 Tex. Crim. App. Unpub. LEXIS 128, *85
Although the State objected on relevance grounds when
Appellant asked Rosalinda to "[t]ell the jury about
alcohol in Michael's life," the trial court instructed
Appellant to "rephrase." It is not clear that this
instruction was a ruling that sustained the State's
relevance objection. See Tex. R. Evid. 611(a) (providing
that the trial court should exercise reasonable control
over the mode and order of examining witnesses so as
to make those procedures effective for determining the
truth and avoid needless consumption of time); cf.
Brewer v. State, 367 S.W.3d 251, 253 (Tex. Crim. App.
2012) (concluding that the trial court's instruction to
"move on" was not a ruling). However, even assuming
arguendo that this instruction did sustain the State's
objection, and that the ruling was erroneous, we
conclude that any potential error was harmless. See,
e.g., Hernandez, 390 S.W.3d at 327 (Keller, P.J.,
concurring) (concluding beyond a reasonable doubt that
the trial court's erroneous exclusion of mitigating
evidence made no [*86] contribution to the jury's
answers to the punishment special issues in light of the
remaining punishment evidence). After the instruction to
"rephrase," defense counsel asked more specific
questions and elicited Rosalinda's testimony concerning
the "criminal problems" that alcohol had caused for
Michael. Further, Michael himself later testified in detail
about the problems he had experienced as a result of
his alcohol use. Therefore, the jury heard essentially the
same information that would have been elicited when
counsel asked Rosalinda to "tell the jury about alcohol in
Michael's life."
We conclude that the trial court did not abuse its
discretion by excluding: Michael's testimony concerning
his sexual abuse by his uncle Larry; Delores's testimony
concerning her father's physical and verbal abuse of her
mother and the sexual abuse of her sister Alma; and
Rosalinda's testimony concerning the problems that
alcohol had caused for Eric. We are not persuaded that
the trial court's instruction to "rephrase" was a ruling that
excluded Rosalinda's testimony concerning the
problems that alcohol had caused for Michael. Cf.
Brewer, 367 S.W.3d at 253. But even if the instruction
was such a ruling, we hold that any error [*87] was
harmless in light of the remaining punishment evidence
concerning Michael's alcoholism. Point of error four is
overruled.
In point of error five, Appellant asserts that the trial court
erred in admitting autopsy evidence that violated the
Confrontation Clause of the Sixth Amendment of the
United States Constitution. Specifically, Appellant states
that the medical examiner who performed the victim's
autopsy was not the medical examiner who testified at
trial concerning the results of the autopsy. Appellant
relies upon Melendez-Diaz v. Massachusetts, 557 U.S.
305, 309-10, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009),
and Bullcoming v. New Mexico, 564 U.S. 647, 657-62,
131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011), for the
principle that a testimonial out-of-court statement may
not be introduced against the accused at trial unless the
witness who made the statement is unavailable and the
accused had a prior opportunity to confront that witness.
See Bullcoming, 564 U.S. at 657.
The record shows that Dr. Sridhar Natarajan, the Chief
Medical Examiner for Lubbock County, testified at trial
that Dr. Masahiko Kobayashi, a deputy medical
examiner, had performed the victim's autopsy. Defense
counsel objected that Natarajan's testimony violated the
Confrontation Clause because Natarajan had not
performed the autopsy. The trial court overruled the
objection.
Natarajan testified that Kobayashi had moved to Hawaii
before the trial. Natarajan stated that he "had oversight"
over all of Kobayashi's work. Natarajan [*88] also
testified that he actually reviewed all parts of this case
"prior to having the case actually officially signed out as
an autopsy report." Specifically, Natarajan oversaw the
performance of the autopsy, the analysis, the final
conclusions, and the generation of the final report. He
examined the autopsy report and signed off on it before
it was released.
Natarajan described general autopsy procedures and
stated that the goal of an autopsy would be to determine
a manner and cause of death. He noted that the manner
of death determination is a "medical legal opinion" in
which the examiner classifies the death as either
natural, accidental, suicide, undetermined, or homicide.
He described the cause of death as "an injury/disease
process combination," in other words, the reason why
an individual actually died. Natarajan stated that, in a
typical autopsy, forensic toxicology tests would be
performed on the individual's bodily fluids to test
whether drugs might have contributed to the death. The
medical examiner also would examine the person's
organs for damage that might have contributed to the
death.
Natarajan testified that, in this case, he had looked at
the victim's medical reports. [*89] As the individual
overseeing Kobayashi's work, Natarajan was aware of
all of the victim's internal and external injuries before the
autopsy report was finalized. The prosecutor introduced
HILARY SHEARD
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2019 Tex. Crim. App. Unpub. LEXIS 128, *89
six photographs depicting the injuries on the outside of
the victim's body. These photographs were marked as
State's Exhibits 42, 659, 660, 661, 662, and 663.
Natarajan testified that he recognized the photographs.
Natarajan stated that he had helped the prosecutor
prepare a visual presentation to describe and illustrate
the victim's injuries for the jury.18 He testified that the
first image in the presentation contained an "illustration
of where an injury is present on the outside of the body,"
next to two autopsy photographs of that injury.19
Natarajan testified that, based on his knowledge of the
circumstances of this case as well as his knowledge of
the internal examination, the injury depicted in the first
image was a gunshot wound to the back of the victim's
neck. He identified the injury as an entrance gunshot
wound, characterized by a "round oval" and "an
abrasion bed" or "abrasion band" where the projectile
scraped the skin as it entered the body. When the
prosecutor asked Natarajan about the [*90] projectile's
trajectory, defense counsel stated, "I'm going to renew
my objection, your Honor, to the -- now the contents of
the report based on the bases I stated earlier." The
court overruled the objection.
Natarajan then testified that the projectile "enter[ed]
along the back of the neck right at the midline," traveling
from right to left, as well as from back to front and
slightly downward. He stated that most of the damage
was "within the bottom of . . . the [sixth] cervical spine,
the seventh cervical spine, and the top of the thoracic
spine which would be the first thoracic vertebral bone."
The projectile stopped as it struck the first thoracic
vertebral bone. Natarajan showed the jury the projectile
recovered from that wound, which had been previously
admitted as State's Exhibit 647, and described it as "a
small caliber deformed projectile."
"significant cut" across the victim's chest.20 Natarajan
explained that [*91] the cut was a "thoracotomy," which
was performed when the victim entered the hospital, as
part of emergency procedures to try to control the
bleeding and "continue to have the heart pump."
The location of one gunshot entrance wound was in the
middle of the "bony area that you could just feel on
yourself that goes both sides." Natarajan testified that a
shot fired from an indeterminate distance caused this
entrance wound "along the midchest." The projectile's
trajectory was right to left, front to back, and slightly
downward. The projectile entered the center of the
chest, penetrated the sternum, and injured the heart. It
struck the right atrium of the heart as well as the
superior vena cava, which "is the main drainage that's
coming from the region of the head and the upper
extremities." Natarajan showed the jury the projectile
that made this wound. It had been previously admitted
as State's Exhibit 645. He described that projectile as
being less deformed than the projectile that had lodged
in the victim's vertebrae.
Natarajan identified another entrance wound on the
upper left chest area, near a tattoo of playing cards and
dice. A photograph provided a closer view of that
wound.21 Natarajan [*92] testified that the wound's
visible characteristics indicated that the firing distance
was "not close," but he could not determine a precise
firing distance. The trajectory of the projectile that
entered the upper left chest area was right to left, front
to back, and downward.
18 This visual presentation is not in the record before us, so our
Natarajan testified that this projectile perforated portions
of the right lung before lodging in "the soft tissues of the
body towards the back." Natarajan stated that this
projectile also created a hole in the chest that caused
the lung to collapse. This damage caused hemorrhaging
inside the lung, so that blood filled the chest cavity and
left the body. This wound accounted for the significant
amount of blood around the victim's body at the crime
scene and was consistent with witnesses' testimony
describing a considerable amount of blood coming from
the victim's nose and mouth. This wound would have
interfered with the victim's ability to take in air and,
hence, would have resulted in decreased oxygenation of
discussion of it relies upon Natarajan's verbal descriptions as
well as our independent review of State's Exhibits 42 and 659
through 663.
20 Natarajan's description and our independent review of the
Natarajan described the next image in the presentation
as "an illustration of the front of a male, right arm, chest
area," with "a portion of the left arm and shoulder," "to
help provide some orientation." An accompanying
photograph revealed two gunshot wounds as well as a
19 State's Exhibits 659 and 660 are two autopsy photographs
of that injury. We surmise from Natarajan's description as well
as our independent review of the State's exhibits that the
image before the jury consisted of State's Exhibits 659 and
660 and an illustration showing the location of the injury.
State's Exhibits reveal that this photograph was State's Exhibit
661.
21 Natarajan's description and our independent review of the
State's Exhibits indicate that this photograph was State's
Exhibit 662.
HILARY SHEARD
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2019 Tex. Crim. App. Unpub. LEXIS 128, *92
the blood as well as significant blood loss. The projectile
that made this wound had previously been admitted as
State's Exhibit 646. Natarajan showed this projectile to
the jury and noted that it was less [*93] deformed than
the projectile that had lodged in the victim's vertebrae
because it had passed through soft tissues.
Natarajan testified that the toxicology test results were
negative for drugs, illicit substances, and alcohol. The
cause of death was multiple gunshot wounds and the
manner of death was homicide.
As an initial matter, we note that the autopsy report was
not admitted into evidence. Therefore, the cases upon
which Appellant relies, which concern the admission of
an unavailable witness's testimonial out-of-court
statement, are not directly on point. Rather, the record
reflects that Natarajan testified about his own opinions
and conclusions based on his review of the autopsy
report along with other evidence, including autopsy
photographs and x-rays. This testimony was not
inadmissible on the basis that it might have been
incidentally based, to some degree, on hearsay. See
Tex. R. Evid. 703 (providing that an expert may base an
opinion on facts or data that are not admissible in
evidence, provided that they are of a type reasonably
relied on by experts in the field); see also Martinez v.
State, 22 S.W.3d 504, 508 (Tex. Crim. App. 2000)
("Since the trial court implicitly found [a witness]
qualified as an expert, the State had no burden to
invoke an exception [*94] to the hearsay rule."). In
addition, several courts have held that photographs are
non-testimonial in nature. See United States v.
Sanabria, 645 F.3d 505, 518 (1st Cir. 2011) (explaining
that "surveillance photographs of an individual" were
"non-testimonial evidence"); United States v. Dougall,
919 F.2d 932, 935 (explaining that photographs "are
real and physical evidence, nonSuniga testimonial in
nature"); Herrera v. State, 367 S.W.3d 762, 773 (Tex.
App.—Houston [14th Dist.] 2012, no pet.) (stating that
an autopsy photograph is not a testimonial statement);
Wood, 299 S.W.3d 200, at 214-15 (Tex. App.—Austin
2000, pet. ref'd) (same). Consequently, we are
persuaded that Natarajan's descriptions of the autopsy
photographs, and their presentation to the jury, did not
violate the Confrontation Clause.
Further, Natarajan testified that he oversaw Kobayashi's
performance of the autopsy, the analysis, the
conclusions, and the generation of the final report, and
he examined the report and signed off on it before it was
released. Therefore, Natarajan had some personal
knowledge of the relevant facts and conclusions that
were memorialized in the autopsy report. See, e.g.,
Grim v. Fisher, 816 F.3d 296, 309-10 (5th Cir. 2016)
(holding that Bullcoming did not clearly establish as
federal law that the State could not introduce a forensic
lab report containing the testimonial certification of an
analyst through the testimony of a technical reviewer
who verified the analyst's findings, [*95] agreed with a
reasonable degree of scientific certainty with the
analyst's examinations and results, and signed the
certification).22
To the extent that Appellant intends to complain about
any specific part of Natarajan's testimony, we note that,
with one exception, defense counsel did not object to
any specific part of that testimony. Therefore, Appellant
largely failed to preserve error. Rule 33.1; see, e.g.,
Martinez v. State, 311 S.W.3d 104, 111-12 (Tex. App.—
Amarillo 2010, pet. ref'd) (concluding that an objection to
a witness testifying about an autopsy report, while
sufficient to preserve error regarding the contents and
conclusions contained in the report, did not notify the
trial court of any error in the admission of autopsy
photographs); see also, e.g., Roberts v. State, 220
S.W.3d 521, 532 (Tex. Crim. App. 2007) (stating that
the defendant's attack on victim impact testimony in
general, advanced before any testimony was heard, did
not place the trial court on notice that the defendant
would find particular testimony objectionable).
The only instance in which defense counsel objected to
a specific part of Natarajan's testimony was after the
prosecutor asked Natarajan about the trajectory of the
projectile that struck the victim's neck. At that point,
defense counsel renewed his general objection to
testimony about [*96] the contents of the autopsy
report. To the extent that Appellant preserved error as to
Natarajan's testimony concerning that trajectory, we
conclude that any arguable error in admitting that
testimony was harmless beyond a reasonable doubt
because it did not contribute to the conviction or
punishment. See Tex. R. App. P. 44.2(a); see also, e.g.,
Lee v. State, 418 S.W.3d 892, 900-01 (Tex. App.—
Houston [14th Dist.] 2013, pet. ref'd) (stating that an
expert witness's minimal repetition of statements from
an autopsy report prepared by another did not materially
22 In Bullcoming, the Supreme Court held that the State could
not introduce into evidence a lab report containing a
testimonial certification through the in-court testimony of a lab
analyst who was familiar with the lab's procedures but "who
did not sign the certification or perform or observe the test
reported in the certification." Bullcoming, 564 U.S. at 657-58.
HILARY SHEARD
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2019 Tex. Crim. App. Unpub. LEXIS 128, *96
affect the jury's deliberations); cf. Martinez, 311 S.W.3d
at 113 (finding no harm where a testifying expert's
conclusion regarding the cause of death was cumulative
of autopsy photographs and the opinion expressed in
the autopsy report).
Finally, because the autopsy report is not in the record,
the record on appeal does not contain sufficient
information for us to assess whether specific parts of
Natarajan's testimony might have violated the
Confrontation Clause. See Tex. R. App. P. Rule 33.2
(prescribing bills of exception); see also Amador v.
State, 221 S.W.3d 666, 675 (Tex. Crim. App. 2007)
("[R]eviewing courts cannot 'assume' or speculate about
the contents of exhibits or other materials that are not
contained in the appellate record."). We will not
speculate as to whether some fraction of Natarajan's
testimony might not have been based on his personal
knowledge [*97] of the case.
The trial court did not abuse its discretion by overruling
Appellant's general objection that Dr. Natarajan's
testimony violated the Confrontation Clause. Point of
error five is overruled.
In point of error six, Appellant asserts that the trial court
erred in admitting hearsay evidence and evidence that
violated the Confrontation Clause of the United States
Constitution. This point of error raises more than one
legal theory and is therefore multifarious. See Rule Tex.
R. App. P. 38.1; see also Jenkins, 493 S.W.3d at 614
n.85. However, we will address it in the interest of
justice. Specifically, Appellant complains that the
punishment-phase testimony of a police officer who
responded to a 2008 domestic violence incident,
describing statements the domestic violence victim's
mother made to the officer at the scene, was hearsay
that was not admissible under the excited utterance
exception. Appellant also complains that Child
Protective Services ("CPS") records concerning the
same incident, which were admitted as State's Exhibit
712, were hearsay and that their admission violated the
Confrontation Clause.
Defense counsel requested that the State proffer,
outside the jury's presence, the testimony of Fort Worth
Police Officer Leticia Villarreal concerning an
extraneous bad act because counsel anticipated making
objections [*98] to the testimony that he "want[ed] the
Court to decide outside the presence of the jury." The
trial court granted defense counsel's request. Therefore,
outside the jury's presence, Villarreal testified that she
responded to a domestic violence call in 2008.
According to Villarreal, "The call details had stated that
there was a husband and wife arguing outside, and the
husband hit his wife." When Villarreal arrived at the
scene, she saw the victim and her mother and brother
outside, "all talking very loudly." The victim was
identified as Megan Suniga. Villarreal attempted to
speak with Megan, whose face was "pretty much
covered in blood." Her nose was "swollen and bleeding,
and her upper lip was very swollen." It appeared to
Villarreal that Megan's nose might have been broken.
Megan was very argumentative, angry, and
uncooperative. She was upset that her family had called
the police, and she did not want to identify her assailant.
Megan's mother, Leslie Erwin, was also upset and
angry. Erwin told Villarreal that Megan had called her,
asking to be picked up from the apartment. Erwin stated
that Megan's husband, Appellant, had assaulted Megan.
Erwin also indicated that Megan was afraid [*99] of
Appellant. Megan refused to provide Villarreal with
details of the incident, complete a written statement, let
Villarreal photograph her injuries, or accept a copy of a
victims' rights handbook. Villarreal learned that Megan
and Appellant had been in a relationship for about six
years and had two children. They were not living
together at the time of the assault.
On cross-examination, Villarreal confirmed that she did
not witness the assault. She stated that Erwin told her
that, when Erwin arrived to pick up Megan, Appellant
and Megan were outside. Erwin saw Appellant push
Megan twice, and she saw Megan fall to the ground, but
Erwin did not witness the initial assault that caused
Megan's visible injuries. Defense counsel then objected
to Villarreal testifying to anything beyond what she had
observed, particularly her testimony concerning Erwin's
statements, on the ground that those statements were
hearsay. The State responded that any hearsay
contained in Villarreal's testimony was admissible under
the "excited utterance" exception. The trial court
overruled Appellant's objection and granted a running
objection.
Before the jury, Officer Villarreal repeated the testimony
that she had [*100] provided during the proffer. She
again acknowledged on cross-examination that she had
not witnessed any part of the assault.
"The admissibility of an out-of-court statement under the
exceptions to the general hearsay exclusion rule is
within the trial court's discretion." Lawton, 913 S.W.2d at
553. "An abuse of discretion occurs 'only when the trial
judge's decision was so clearly wrong as to lie outside
that zone within which reasonable persons might
HILARY SHEARD
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2019 Tex. Crim. App. Unpub. LEXIS 128, *100
disagree.'" Id. (quoting Cantu v. State, 842 S.W.2d 667,
682 (Tex. Crim. App. 1992)).
For hearsay to be admissible, it must fit into an
exception provided by a statute or the Rules of
Evidence. Tex. R. Evid. 802. Rule 803(2) sets forth the
excited utterance exception to the general hearsay
exclusion rule. See Tex. R. Evid. 803(2); Zuliani v.
State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). "An
excited utterance is a statement that relates to a
startling event or condition, and it is made when the
declarant is still under the stress of excitement caused
by the event or condition." Coble v. State, 330 S.W.3d
253, 294 (Tex. Crim. App. 2010). "The basis for the
excited utterance exception is 'a psychological one,
namely, the fact that when a man is in the instant grip of
violent emotion, excitement or pain, he ordinarily loses
the capacity for reflection necessary to the fabrication of
a falsehood and the 'truth will come out.''" Zuliani, 97
S.W.3d at 595 (quoting Evans v. State, 480 S.W.2d 387,
389 (Tex. Crim. App. 1972)).
In determining whether a hearsay statement [*101] is
admissible as an excited utterance, the court may
consider the time elapsed between the startling event
and the statement and whether the statement was a
response to a question. Id. "However, it is not
dispositive that the statement is an answer to a question
or that it was separated by a period of time from the
startling event; these are simply factors to consider in
determining whether the statement is admissible under
the excited utterance hearsay exception." Id. at 596.
"The critical determination is whether the declarant was
still dominated by the emotions, excitement, fear, or
pain of the event or condition at the time of the
statement." Id. (internal quotations omitted).
Here, the evidence at the time of the ruling showed that
Megan had called her mother, asking to be picked up
from her apartment. When Erwin arrived, she saw
Appellant push Megan twice, and she saw Megan fall to
the ground. Erwin called the police. When Officer
Villarreal arrived, Appellant was gone. Megan and Erwin
were arguing and "talking real loudly." They were both
upset and angry. This record supports the trial court's
determination that Erwin was still dominated by the
emotions, fear, or pain of the event when [*102] she
communicated with Villarreal. Thus, the trial court did
not abuse its discretion by overruling Appellant's
hearsay objection and admitting Erwin's statements to
Villarreal as an excited utterance.
The second part of Appellant's complaint concerns the
punishment-phase testimony of Heather Darder, a CPS
supervisor for Tarrant County, and the admission of
CPS records, State's Exhibit 712, regarding a CPS
investigation that was connected to the 2008 domestic
violence incident.
Darder testified before the jury that the CPS records
were kept in the regular course of business by someone
who had a duty to make them, and they were made at
or near the time of the events recorded. Defense
counsel objected "to that portion of State's 712 that
contains hearsay matters within these documents that
contains the conclusions of other people who are not
before the Court testifying," based upon "hearsay for
those things, and also under the confrontation clause of
the U.S. Constitution." The Court overruled the objection
and admitted State's Exhibit 712 into evidence.
Darder testified that her office received an "intake" from
law enforcement regarding Appellant because of
"concern that a domestic violence dispute was taking
place" that involved two [*103] children, ages one and
three. Law enforcement reported to CPS that Megan
had sustained "obvious injuries." A CPS caseworker
went to the home "to interview and make sure the
children were okay." The caseworker also interviewed
Megan. At this point in Darder's testimony, defense
counsel requested and received "a running objection to
my previous."
Darder then testified that Megan was willing to speak to
the caseworker, but she would not explain how she had
been injured or who had injured her.23 It was Megan's
mother who told the caseworker that Appellant had
injured Megan. Although Megan told the caseworker
that she did not know where Appellant lived or how to
contact him, Appellant showed up at the apartment
during the interview. Contrary to the information that
Megan had provided, Appellant informed the
caseworker that he lived in the apartment with Megan
and their two children. He told the caseworker that he
had six children.
23 On appeal, Appellant asserts for the first time that Darder's
testimony that domestic violence victims are not always
truthful was inadmissible because it was testimony that a class
of persons behaves in a particular way. See, e.g., Yount v.
State, 872 S.W.2d 706, 711-12 (Tex. Crim. App. 1993). At
trial, defense counsel objected that this testimony was
"speculation." Appellant's trial objection does not comport with
his complaint on appeal, and so he failed to preserve his
current complaint. See Rule 33.1; see also Sorto v. State, 173
S.W.3d 469, 476 (Tex. Crim. App. 2005).
HILARY SHEARD
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2019 Tex. Crim. App. Unpub. LEXIS 128, *103
Appellant admitted to the caseworker that he had made
a living selling methamphetamine. When the
caseworker asked him about his drug use, he
acknowledged that he had used marijuana and
methamphetamine three or four years previously. He
reported [*104] that he drank alcohol socially. When
questioned about the domestic violence incident,
Appellant stated that he and Megan had argued, but he
denied touching or pushing her.
The State then asked Darder if Appellant had admitted
to going to court for a previous domestic violence
charge involving a different victim. Defense counsel
objected that this questioning was "beyond the scope of
the proffer."24 Counsel also objected under the
Confrontation Clause that this testimony would contain
statements of witnesses who were not before the court.
The trial court overruled the objection. Darder then
testified that Appellant acknowledged that he had gone
to court over another domestic violence case involving a
different victim.
Darder testified that, as a result of the CPS investigation
into the incident involving Megan, CPS implemented a
"safety plan." This "plan" was an agreement between
the parents and CPS that the parents would cooperate
and receive CPS services "through our safety based
service unit," and that the parents would "not engage in
any type of domestic violence." Based on the totality of
the information that CPS received, including Megan's
visible injuries, CPS concluded that domestic violence
had occurred. [*105] On cross-examination, Darder
stated that she had been the CPS caseworker's
supervisor in this matter, but she acknowledged that she
had not been "on the scene."
To preserve error for appellate review, the record must
show that Appellant made the complaint to the trial court
by a timely request, objection, or motion that stated the
grounds for the ruling he sought with sufficient
specificity to make the trial court aware of the complaint,
unless the specific grounds were apparent from the
context, and the trial court ruled or refused over
objection to rule on the request, objection, or motion.
Rule 33.1(a). In the face of a global hearsay objection to
an exhibit, the trial court is not required to search
through the exhibit and segregate the admissible from
the inadmissible. Ladd, 3 S.W.3d at 572. Similarly, a
24 In our independent review, we have not located any place in
the record where the State made a proffer of the content of
Darder's testimony or the CPS records before calling Darder to
testify before the jury.
general objection to testimony, advanced before any
testimony is heard, does not place the trial court on
notice that an appellant will find particular unforeseeable
testimony to be objectionable. See Roberts, 220 S.W.3d
at 532.
Darder testified that the CPS records contained in
State's Exhibit 712 were kept in the regular course of
business by someone who had a duty to make them,
and they were made at or near the time of the events
recorded. [*106] See Tex. R. Evid. 803(6). Appellant
objected at trial that an unspecified portion of State's
Exhibit 712 contained "the conclusions of other people
who are not before the Court testifying." Appellant did
not locate or identify any specific part of State's Exhibit
712 that was objectionable on that basis. Without more,
this objection did not provide the trial court with
adequate notice of the particular material Appellant
found objectionable. See Ladd, 3 S.W.3d at 572. Thus,
the trial court did not err by overruling Appellant's nonspecific objection to Exhibit 712.25
To the extent that Appellant complains on appeal that
Darder's testimony was hearsay and that it violated the
Confrontation Clause because she testified about the
content of a report prepared by another person, we note
that defense counsel's request during her testimony for
"a running objection to my previous" did not alert the
trial court to this particular complaint. See Layton v.
State, 280 S.W.3d 235, 239 (Tex. Crim. App. 2009) ("A
specific objection is necessary to inform the trial judge
of the issue and basis of the objection[.]"). Appellant did
not preserve this complaint for appeal. See Rule 33.1;
see also Reyna, 168 S.W.3d at 179 (explaining that an
objection on hearsay grounds does not preserve error
on Confrontation Clause grounds).26
25 If Appellant intends to complain that allowing Darder rather
than the CPS caseworker to testify about the contents of
State's Exhibit 712 violated the Confrontation Clause, this
complaint does not comport with his objection at trial. See
Jenkins, 493 S.W.3d at 612. Thus, Appellant failed to preserve
this claim. See Lucio v. State, 351 S.W.3d 878, 902 (Tex.
Crim. App. 2011).
26 Moreover,
to the extent that Appellant may now be
understood to challenge not just the admission of State's
Exhibit 712, or Darder's testimony as she may have gleaned it
from that exhibit, but also the admission of Darder's testimony
in which she related what Appellant may have told the CPS
caseworker that the CPS caseworker may then have orally
related to Darder, no objection to Darder's testimony as
hearsay within hearsay was ever leveled at trial. No such
HILARY SHEARD
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2019 Tex. Crim. App. Unpub. LEXIS 128, *106
When [*107] the prosecutor asked Darder if Appellant
had admitted to going to court for a previous domestic
violence charge involving a different victim, defense
counsel objected under the Confrontation Clause that
this testimony would contain statements of witnesses
who were not before the court. The trial court overruled
the objection. Darder then testified that Appellant
acknowledged that he had gone to court over another
domestic violence case involving a different victim. The
prosecutor's questioning then returned to the incident
involving Megan.
This part of Appellant's complaint concerns a statement
that Appellant, personally, made to the CPS caseworker
concerning a different domestic violence case.
Assuming arguendo that the admission of that
statement was erroneous, its admission was harmless
because a copy of the judgment of conviction for that
prior incident had already been admitted into evidence
without objection as State's Exhibit 709, and a portion of
it had been read into the record. See Leday v. State,
983 S.W.2d 713, 717 (Tex. Crim. App. 1998) (stating
that the improper admission of evidence does not
constitute reversible error if the same facts are shown
by other evidence that was not challenged). As read into
the record, the judgment recited that Appellant [*108]
was "guilty of assault bodily injury of a family member,
committed on October 12, of 2000, a Class A
misdemeanor where the Defendant intentionally or
knowingly caused bodily injury to Christy Bretts, a
member of the Defendant's family or household[,] by
hitting her with his hand."
In sum, the trial court did not abuse its discretion by
ruling that Erwin's statements to Villarreal were
admissible as an excited utterance, or by admitting
State's Exhibit 712 over Appellant's objection that an
unspecified part of it contained the conclusions of
people who were not before the Court testifying.
Further, any arguable error in admitting Appellant's
statement concerning a previous domestic violence
case was harmless. Point of error six is overruled.
In point of error seven, Appellant asserts that the trial
court erred in denying a Fourth Amendment motion to
suppress evidence based on the search of the vehicle in
which he was riding at the time of his arrest.
Specifically, Appellant complains that police searched
the vehicle without a valid warrant and that no exception
to the warrant requirement applied.
objection was made or ruled upon at the trial court level, and
therefore, no such error was preserved. Rule 33.1.
The record shows that Appellant filed a pre-trial motion
to
suppress
evidence
seized
following
the
execution [*109] of a search warrant on December 28,
2011, in Taylor County. In his motion, Appellant
asserted that the warrant provided only for the seizure
of the vehicle and not for a search of its contents.
Therefore, he argued, the evidence obtained during the
vehicle search had to be suppressed because it was not
seized pursuant to a valid search warrant.
At the pre-trial hearing on this motion, defense counsel
argued that Appellant was a passenger in a vehicle that
law enforcement stopped when there was no warrant for
his or his co-defendant's arrest. He asserted that, after
the arrest, a Taylor County magistrate signed a search
warrant which provided only for seizing the vehicle; it did
not authorize a search of the vehicle's contents.
Defense counsel argued that Appellant, as a passenger
in the vehicle, had standing to challenge the vehicle
search under Brendlin v. California, 551 U.S. 249, 263,
127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007), which states
that both the driver and the passenger are seized within
the meaning of the Fourth Amendment when a police
officer makes a traffic stop. Counsel clarified that he
was not challenging the constitutionality of the stop.
Defense counsel asserted that the police officer who
prepared the affidavit for the search warrant had
requested authority to transport, [*110] remove, or take
any property or evidence seized pursuant to the warrant
to any location deemed necessary for the purpose of
safekeeping and completion of the investigation. Thus,
counsel argued, once the vehicle was in police
safekeeping, no warrant provided authority to search the
vehicle and no exception to the warrant requirement
existed. According to counsel, when Lubbock police
officers searched the vehicle without obtaining a search
warrant, that search was illegal.
The prosecutor argued that Appellant did not have
standing to challenge the search because Brendlin
enabled a passenger to challenge only a vehicle stop,
not a vehicle search. As the passenger, Appellant had
no reasonable expectation of privacy in the vehicle. The
prosecutor also asserted that some of the items seized
from the vehicle were recovered during a search
incident to arrest while the vehicle was stopped on the
side of the road and a narcotics dog had alerted to the
presence of drugs, and so the automobile exception
also applied to the roadside search. The prosecutor
further cited United States v. Johns, 469 U.S. 478, 484,
105 S. Ct. 881, 83 L. Ed. 2d 890 (1985), for the principle
that there is no requirement that a warrantless vehicle
HILARY SHEARD
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2019 Tex. Crim. App. Unpub. LEXIS 128, *110
search occur contemporaneously with the vehicle's
lawful [*111] seizure if there is probable cause to
believe that the vehicle contains contraband.
Concerning the search that officers conducted after
transporting the vehicle to the Lubbock Police
Department, the prosecutor argued that the vehicle
exception applied to authorize the search even if the
search warrant did not. The prosecutor argued that,
under Adkins v. State, 764 S.W.2d 782, 784 (Tex. Crim.
App. 1988), when a warrant is found invalid, the search
should be treated as if it proceeded without a warrant,
such that the trial court should consider whether the
search can be upheld under an exception to the warrant
requirement.
The trial court found that Appellant did not have
standing to challenge the searches. Alternatively, the
court denied the motion to suppress because the
searches were lawful. The court granted defense
counsel's request for a running objection to any
testimony concerning "anything that was taken at any
time from the vehicle."
On June 3, 2015,27 the trial court entered written
findings of fact and conclusions of law regarding the
motion to suppress. The court found that a Taylor
County Sheriff's Deputy stopped the vehicle after
receiving a bulletin to be on the lookout for "a tan or
champagne colored SUV with two male subjects
that [*112] were wanted for a murder that had taken
place in Lubbock County." The bulletin advised that one
of the men had tattoos on his head. Shortly thereafter,
the deputy saw a vehicle matching that description and
initiated a traffic stop. During the stop, he saw that the
passenger had tattoos on his head. He determined that
the driver was Lopez and the passenger was Appellant.
They were both arrested "based on outstanding
homicide warrants."
The court also found that a narcotics dog "was run
around the vehicle" and alerted to the presence of drugs
in the vehicle. At that time, the deputy conducted a
roadside search and found items that were later turned
over to Lubbock Police Department detectives. The
vehicle was taken to a police holding facility in Abilene
and then released to Lubbock detectives after a Taylor
27 June 15, 2015, is the file-stamped date, but June 3rd is the
date the judge signed and entered the findings and
conclusions. These findings and conclusions were entered
following this Court's May 20, 2015, order abating the appeal
and directing the trial court to supplement the record.
County magistrate signed a search warrant that
authorized law enforcement to seize the vehicle. The
vehicle, which belonged to Lopez's mother, was
searched at the Lubbock Police Department's
processing facility. During that search, additional items
of evidence were recovered.
The trial court concluded that Appellant lacked standing
to challenge the vehicle searches because he
failed [*113] to prove that he had a reasonable
expectation of privacy in the vehicle or its contents.
Alternatively, even if the warrant did not authorize the
second search, the searches were proper under the
automobile exception because law enforcement had
probable cause to believe the vehicle contained
evidence of a crime, and there was no requirement that
the search be contemporaneous with the vehicle's
seizure.
When a trial judge enters findings of fact after denying a
motion to suppress, an appellate court reviewing that
denial must first determine whether the evidence,
viewed in the light most favorable to the trial court's
ruling, supports those findings. Keehn v. State, 279
S.W.3d 330, 334 (Tex. Crim. App. 2009). The appellate
court reviews de novo the trial court's resolution of
purely legal questions. Gonzales v. State, 369 S.W.3d
851, 854 (Tex. Crim. App. 2012).
In this case, the circumstances of the vehicle searches
were largely undisputed. Further, the trial court's
determination that Appellant did not have standing to
challenge the vehicle search was a purely legal
question. Thus, we review that determination de novo.
See, e.g., Matthews v. State, 431 S.W.3d 596, 607
(Tex. Crim. App. 2014) ("Although we defer to the trial
judge's factual findings, we review the legal issue of
standing de novo.").
The rights protected by the Fourth Amendment to the
United States Constitution are personal. Id. at 606
(citing Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S. Ct.
421, 58 L. Ed. 2d 387 (1978)). As such, an [*114]
accused must show that the challenged search violated
his own, rather than a third party's, legitimate
expectation of privacy in the place invaded. State v.
Betts, 397 S.W.3d 198, 203 (Tex. Crim. App. 2013). A
defendant alleging an unconstitutional search has the
burden of proving facts demonstrating that he,
personally, exhibited an actual subjective expectation of
privacy in the place invaded, and that his expectation of
privacy is one that society is prepared to recognize as
objectively reasonable. Id.; see also Minnesota v.
HILARY SHEARD
Page 32 of 45
2019 Tex. Crim. App. Unpub. LEXIS 128, *114
Carter, 525 U.S. 83, 87-88, 119 S. Ct. 469, 142 L. Ed.
2d 373 (1998). The United States
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