Richard Flores v. State

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

RICHARD FLORES, §
No. 08-07-00330-CR
Appellant, §
Appeal from the
v. §
210th District Court
THE STATE OF TEXAS, §
of El Paso County, Texas
Appellee. §
(TC#20050D02301)
§

OPINION

This is an appeal from a jury conviction for the offense of murder. The jury assessed

punishment at ninety-nine years’ imprisonment, and a fine of $10,000. We affirm.

I. SUMMARY OF THE EVIDENCE

Appellant was tried and convicted of murdering Maria Corral. Appellant met Mary Corral,

as she was called, in 2002, and they became a couple. They had three young children at the time of

her death. Their relationship was troubled, and she was living with her mother at the time of her

murder. The deceased’s mother testified that two weeks prior to Mary Corral’s murder, Appellant

had threatened to kill Mary if she left him. He had made other threats on other occasions. On the

evening of April 28, 2005, Mary went to a dance club with her friend, Elizabeth Lara. At the same

time, Appellant, known as “Playboy,” and his friends Danny Rios, Angel De Leon, known as

“Devil,” Guillermo Palma, Appellant’s cousin known as “Gordo,” Monica Garcia, and Amanda
Molina, were celebrating Appellant’s birthday at Appellant’s mother’s house. Appellant called Mary

Corral a number of times that evening requesting that she come by. Her refusals caused Appellant

to become increasingly upset, and he stated, “This stupid bitch is giving me attitude.” Monica and

Amanda left the party.

Appellant’s mother, Emeteria Hinojos, stated that she was afraid of Appellant when he drank.

On such occasions, she would sleep in her van at a neighbor’s house. She stated that she went to

work in the evening of April 28, 2005, and that Appellant was mad at her for refusing to allow him

to have a party at the house. She returned from work at 11 p.m. to find the party in progress and

Appellant became angry. She left her home to sleep in her van at a friend’s house.

Mary Corral and her friend Elizabeth left the dance club, and Mary decided to drop by the

party. Elizabeth dropped Mary off at the party at 12:30 a.m. on April 29, 2005. Appellant’s mother

returned home at 7 a.m. on April 29, 2005, and found her son, Gordo, and Devil asleep in the house.

She left to have coffee with her sister, and when she returned, the three were gone. She became

concerned when she found out that Appellant was not at school. Hinojos asked her niece, Claudia

Gonzalez, to come to the house. Eventually the police were called.

Jimmy Young, a neighbor, testified that at about 10 a.m. on April 29, 2005, he saw a police

officer arrive at Hinojos’s house. He was asked to translate by Hinojos’s niece, because the

responding officer, Officer Charles J. Kovacs, did not speak Spanish. Young testified that Hinojos

appeared scared. Officer Kovacs suggested that as her son was an adult, she could remove him from

her home by getting his belongings and putting them outside. She took that advice, and she and her

niece began collecting Appellant’s possessions. During this process, they discovered Mary Corral’s

dead body, wrapped in a sheet and garbage bags, in Appellant’s bedroom closet.

2
 The crime scene investigators removed the garbage bags and the sheet from the body and

discovered duct tape wrapped around the deceased’s ankles and around her right arm. A garbage bag

was found inside the outer wrapping of the body that contained a piece of duct tape with blood and

hair on it, the deceased’s purse, her shoes, a roll of duct tape, various personal effects, and a pruning

saw. Fingerprints that were later matched to Appellant were found on that garbage bag and on the

sticky side of the roll of duct tape.

Detective Arturo Ruiz testified that Appellant fled to Mexico after the killing. An indictment

was returned in May of 2005 charging Appellant with murder. Around September 23, 2005,

Appellant was arrested in Juarez, Mexico. He was extradited back to the United States on March

24, 2006. In the late evening of March 24, 2006, Appellant confessed to murdering Mary Corral by

strangling her.

Appellant gave his confession to Detective Ruiz in Spanish. Appellant related that he had

consumed large amounts of beer and drugs such as heroin and rohypnol on the night of his birthday

party. His plan was for Gordo and Devil to hide in Appellant’s bedroom closet and they were to

scare the deceased by jumping out when she got to the bedroom. He then planned to tie her up and

slap her around to cause her to fear a severe beating so that she would not “do stupid things” to him

anymore. Appellant stated that Devil and Gordo jumped out of the closet and taped her legs, hands,

mouth, nose, eyes, and face and that Devil stated that they had to kill her when Appellant

inadvertently used Devil’s name. Appellant agreed to kill Corral after Devil told him she had been

unfaithful. Appellant hit Corral and bit her nose.

Appellant stated in his confession that Devil tried to suffocate Corral with a plastic bag.

When that failed, Gordo brought Appellant an extension cord. Appellant threw the cord to Devil

3
because he was a minor. Devil was unable to strangle Corral with the cord. Appellant and Devil

each pulled on one end of the cord until Corral died. Gordo attempted to dismember Corral’s body.

Appellant asked the detectives who were taking the confession how many years he would get for

pulling the extension cord.

On March 14, 2007, the police obtained a letter that Appellant sent to Rafaela Guillen while

he was in jail. It stated in pertinent part:

I was doing a lot of roches, coke weed and let’s not start on the
alcohol or the beer.

. . .

We were crushing roches and sniffing them like it was coke, too. My
homeys took off and Devil, Gordo and I stayed at the fucking house,
then this bitch called and told me to change because I was thugged
out.

. . .

I was just popping those shits like they were candies. So I was all
Roched up and I finished a bottle of Oso Negro by myself because
these fools were drinking Budweiser and shit. So this bitch called
and told me she was outside and for me to go and get here [sic] so
that she could show me to her friend. So I told these fools to hide
inside the fucking closet and so they did because they were supposed
to tie her up and scare the shit out of her. And they did all right.

. . .

[A]nd then we were walking to my room and I told these fools
“Salgan.” So they jumped out of the closet and this bitch was scared
....

. . .

They tied her up with the duct tape and I said, Devil, your
chick–said–Devil, your chick say about this bitch. And he called me
to the other side of the room and said, Hey–Hey, fool, you fucked up

4
 ‘cause you said my name now we have to kill this bitch.

And I told him, Fuck you shit. So I got some dice and I said
if I roll snake eyes we kill her. And so I rolled and “Boom” snake
eyes. And we looked at each other like, What the fuck? So I said, No
fool, kick back. Let me roll again but this time I have to roll a 7.
And I rolled a fucking 7 landed. So I couldn’t believe what was
going on. I remember it was a 4 and 3.

So I opened a Budweiser can and I chugged it and I put my
favorite song and I turned the radio up and I said, Go for it. So Devil
went downstairs and he got a bag and put it on her face. . . . But she
wasn’t dying. So I told Devil, Move motherfucker and I pushed him
away and Gordo sat–said, Try this.

So he tossed an extension cord and Devil put it around her
neck and I pulled from one side and he pulled from the other and she
stopped moving . . . .

[T]hey tried to cut her in pieces but couldn’t. So we just put her in
bags. And we put her inside my closet . . . .

II. DISCUSSION

In Issue One, Appellant asserts that the court erred in admitting Appellant’s confession

because it was obtained in violation of Appellant’s Sixth Amendment right to counsel. Specifically,

Appellant contends that he was represented by counsel while he awaited extradition from Mexico

to the United States and that the detectives who took Appellant’s confession were prohibited from

approaching Appellant without first obtaining permission from Flores’s attorney.

There were two hearings on Appellant’s motion to suppress the confession prior to trial. At

the first hearing, Appellant asserted that his confession was involuntary because he had been

suffering from fatigue when he confessed, his confession had been induced by a promise that he

could speak to his mother, and that his extradition was improper due to the breach of representations

made to the Mexican government. The concerns regarding legal representation centered on whether

5
Appellant had requested an attorney named John Needham. Detectives Chavarria and Ruiz testified

at the suppression hearings that Appellant never asked for an attorney or told them he had an

attorney. Appellant only stated at the end of the interview that Needham was a family member.

Detective Chavarria testified that he administered the Miranda warnings to Appellant including his

right to counsel. Appellant indicated he understood those rights and he agreed to waive them.

Appellant testified at the suppression hearing. He indicated that he was arrested in Juarez,

Mexico and was taken to police headquarters. From there he was taken to Mexico City. After

approximately six months, he was returned to the United States. Detective Arturo Ruiz of the El

Paso Police Department testified that on March 24, 2006, he met Appellant at the airport in El Paso,

and took custody of Appellant from the United States marshals who had accompanied him from

Mexico City. He was taken to the police department, given the requisite warnings, and a confession

was obtained.

Appellant testified that during his interrogation in El Paso, he told the detectives that he

wanted to talk to John Needham or some other lawyer, but that the detectives proceeded with the

interrogation.1 The trial court denied Appellant’s motion to suppress the confession.

At trial, Appellant objected to the admission of his statement. He argued, partly, that his

waiver of counsel at the time he gave his confession was invalid because his Sixth Amendment

rights had attached due to his representation during the extradition proceedings by a Mexican lawyer

who had been appointed in Mexico to assist him in Mexico regarding the extradition proceedings.

The State agreed that Flores had been represented in Mexico by counsel for the extradition

proceedings. The record does not reveal the identity of this attorney, or any evidence that this

1
Appellant has not raised the matter of John Needham’s representation on appeal.

6
Mexican attorney was involved in representing Appellant on the murder charges in the United States.

The court overruled Appellant’s objection to the admission of the confession.

We review a trial court’s ruling on a motion to suppress using the bifurcated standard

articulated in Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). See Carmouche v. State, 10

S.W.3d 323, 327 (Tex. Crim. App. 2000); Krug v. State, 86 S.W.3d 764, 765 (Tex. App.–El Paso

2002, pet. ref’d). We do not engage in our own factual review because at a suppression hearing, the

trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be

given to their testimony. See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Romero

v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). We give almost total deference to the trial

court’s ruling on (1) questions of historical fact and (2) application-of-law-to-fact questions that turn

on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim.

App. 2002); Best v. State, 118 S.W.3d 857, 861-62 (Tex. App.–Fort Worth 2003, no pet.). We

review de novo a trial court’s rulings on mixed questions of law and fact if they do not turn on the

credibility and demeanor of witnesses. Johnson, 68 S.W.3d at 652-53. If the trial court’s ruling on

the admissibility of a custodial statement turns on an evaluation of credibility and demeanor, we are

not at liberty to disturb any finding which is supported by the record. See Dewberry v. State, 4

S.W.3d 735, 747-48 (Tex. Crim. App. 1999). Ordinarily, we consider only the evidence adduced

at the suppression hearing. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996). But

where, as here, the suppression issue has been consensually relitigated at trial, we review the entire

record, to determine whether the confession was voluntary. See id.

A. Sixth Amendment Right to Counsel

The Sixth Amendment right to assistance of counsel does not attach prior to the initiation of

7
adversarial judicial proceedings, which may be initiated by way of formal charge, preliminary

hearing, indictment, information, or arraignment. Montejo v. Louisiana, --- U.S. ---, 129 S.Ct. 2079,

2085 (2009); United States v. Gouveia, 467 U.S. 180, 187-88, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146

(1984). Once the adversary judicial process has been initiated the Sixth Amendment guarantees a

defendant the right to have counsel present at all “critical” stages of the criminal proceedings. Green

v. State, 872 S.W.2d 717, 719 (Tex. Crim. App. 1994). Formerly, once an accused requested the

assistance of counsel based on his Sixth Amendment right the police could not initiate any

questioning or attempt to induce a waiver of his right to counsel for that police interrogation and any

waiver obtained was invalid. Michigan v. Jackson, 475 U.S. 625, 635-636, 106 S.Ct. 1404, 1410-11,

89 L.Ed.2d 631 (1986). Specifically, Jackson held that “if police initiate interrogation after a

defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver

of the defendant’s right to counsel for that police-initiated interrogation is invalid.” Id. at 636. This

prophylactic protection of the Sixth Amendment is no longer available.

In Montejo v. Louisiana, --- U.S. ---, 129 S.Ct. 2079 (2009), the United States Supreme Court

overruled the bright-line rule articulated in Jackson. In Montejo, counsel was appointed at a

preliminary hearing. Apparently, Montejo stood mute at the hearing. He made no request or

assertion of his Sixth Amendment right to counsel. However, the court did appoint counsel. The

police, unaware that counsel had been appointed for Montejo, approached Montejo, who was in

confinement, and requested that he accompany them to locate the murder weapon. The police read

Montejo his Miranda rights, and he agreed to go with them. At that time, Montejo wrote an

inculpatory letter of apology to the victim's widow. At trial Montejo argued that the letter should

be suppressed because the police had initiated the interrogation after his right to counsel had

8
attached. The letter was admitted at trial, and Montejo was convicted. The Louisiana Supreme Court

affirmed Montejo’s conviction, rejecting his argument that under the Jackson rule the letter should

have been suppressed. Louisiana v. Montejo, 974 So.2d 1238 (La. 2008). In Montejo, the United

States Supreme Court rejected the Jackson Court’s conclusion that a defendant’s request for counsel

at an arraignment should be treated as an invocation of the Sixth Amendment right to counsel at

every subsequent critical stage in the prosecution despite doubt that defendant intended his request

for counsel to encompass representation during any further questioning. The Court held that “it

would be completely unjustified to presume that a defendant's consent to police-initiated

interrogation was involuntary or coerced simply because [the defendant] had previously been

appointed a lawyer.” Montejo, --- U.S. at ---, 129 S.Ct. at 2088. The United States Supreme Court

held that after the right to counsel has attached, “a defendant who does not want to speak to the

police without counsel present need only say as much when he is first approached and given the

Miranda warnings.” At that point, not only must the immediate contact end, but “badgering” by later

requests is prohibited. Montejo, --- U.S. at ---, 129 S.Ct. at 2090.

The Court conducted a balancing test and found that the marginal benefits of Jackson (viz.,

the number of confessions obtained coercively that are suppressed by its bright-line rule and would

otherwise have been admitted) are dwarfed by its substantial costs (viz., hindering “society’s

compelling interest in finding, convicting, and punishing those who violate the law”). Montejo, ---

U.S. at ---, 129 S.Ct. at 2089.

The Court reasoned that “[e]ven without Jackson, few badgering-induced waivers, if any,

would be admitted at trial because the Court has taken substantial other, overlapping measures to

exclude them.” Montejo, ___U.S. at ___, 129 S.Ct. at 2081. First, under Miranda, any suspect

9
subject to custodial interrogation must be advised of his right to have a lawyer present. Miranda v.

Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694 (1966). Then, under Edwards,

once such a defendant has invoked his [Miranda] right, he “is not subject to further interrogation

by the authorities until counsel has been made available to him, unless the accused himself initiates

further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S.

477, 484-85, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981). And under Minnick v. Mississippi, 498

U.S. 146, 111 S.Ct. 486 (1990), no subsequent interrogation may take place until counsel is present.

Id. at 153, 111 S.Ct. at 491; Montejo, ___ U.S. at ___, 129 S.Ct. at 2081. “If that regime suffices

to protect the integrity of ‘a suspect’s voluntary choice not to speak outside his lawyer’s presence’

before his arraignment, it is hard to see why it would not also suffice to protect that same choice after

arraignment, when Sixth Amendment rights have attached.” Montejo, ___ U.S. at ___, 129 S.Ct.

at 2090. Quoting Patterson v. Illinois, 487 U.S. 285, 296, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988),

the Court stated, “an accused who is admonished with the warnings prescribed by this Court in

Miranda . . . has been sufficiently apprised of the nature of his Sixth Amendment rights, and of the

consequences of abandoning those rights, so that his waiver on this basis will be considered a

knowing and intelligent one.” Montejo, ___U.S. at ___, 129 S.Ct. at 2085. Based on that analysis,

the Court found Jackson to be simply superfluous. Id.

Therefore, a court can no longer presume that a waiver of a right to counsel executed after

the right to counsel has attached is invalid. An accused must make a clear assertion of the right to

counsel when officers initiate interrogation and in that case no interrogation should take place. A

subsequent waiver would be invalid if it follows an unequivocal election of the right to counsel.

Montejo, ___ U.S. at ___, 129 S.Ct. at 2091.

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 Here the Appellant argues that because he was given appointed counsel in Mexico to deal

with the extradition proceedings, this automatically causes his waiver of the right to counsel, prior

to police interrogation, to be invalid. In light of the United States Supreme Court’s ruling in

Montejo, we do not agree.

B. Voluntariness of Sixth Amendment Waiver

In light of the change in the legal landscape brought about by the Court’s ruling in Montejo,

the Court remanded so that Montejo might be given an opportunity to argue that his letter of apology

should have been suppressed under the Edwards rule. Montejo, ___U.S. at ___, 129 S.Ct. at 2081.

“[U]nderstandably [Montejo] did not pursue an Edwards objection, because Jackson offered broader

protections . . . .” Id. Further, the Court felt it was appropriate to remand in order to allow Montejo

“to press any claim he might have that his Sixth Amendment waiver was not knowing and voluntary,

e.g., his argument that the waiver was invalid because it was based on misrepresentations by police

as to whether he had been appointed a lawyer . . . .” Cf. Montejo, ___ U.S. at ___, 129 S.Ct. at

2092.2

Accordingly, we review Appellant’s claim with the Edwards rule in mind. The Edwards rule

is “designed to prevent police from badgering a defendant into waiving his previously asserted

Miranda rights.” Michigan v. Harvey, 494 U.S. 344, 350, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990).

It does this by presuming his post-assertion statements to be involuntary, “even where the suspect

executes a waiver and his statements would be considered voluntary under traditional standards.”

McNeil v. Wisconsin, 501 U.S. 171, 177, 111 S.Ct. 2204, 2208, 115 L.Ed.2d 158 (1991). This

2
Part of the Court’s rationale in remanding the case was due to the Court’s reluctance to determine if the
state procedural rules allowed the admission of some evidence concerning the police activity and was properly in the
record. Montejo, --- U.S. at ---, 129 S.Ct. at 2092. We have no such difficulty with the record before us.

11
prophylactic rule thus “protect[s] a suspect’s voluntary choice not to speak outside his lawyer’s

presence.” Montejo, ___ U.S. at ___, 129 S.Ct. at 2085-86.

Our precedents also place beyond doubt that the Sixth Amendment right to counsel may be

waived by a defendant so long as a relinquishment of this right is voluntary, knowing, and intelligent.

Id. at 2085, citing Patterson, 487 U.S. 285, 292, n.4, 108 S.Ct. at 2389. “The defendant may waive

the right whether or not he is already represented by counsel; the decision to waive need not itself

be counseled. ” Montejo, ___ U.S. at ___, 129 S.Ct. at 2085, citing Harvey, 494 U.S. 344, 352-53.

Waiver is demonstrated regarding pretrial questioning if an accused decides voluntarily not

to rely on his right to counsel and that decision is made under the understanding that he could remain

silent and request a lawyer and that the State could use any statement he gave against him.

Arabzadegan v. State, 240 S.W.3d 44, 48 (Tex. App.–Austin 2007, pet. ref’d).

Preliminarily, we note that Appellant does not challenge the validity of the waiver.

Appellant’s argument is wholly based on the existence of a Mexican attorney. The attorney is never

identified nor is there indication in the evidence that the Mexican attorney had any connection with

the murder charge. Furthermore, the Sixth Amendment right to counsel is offense specific. Templer

v. State, 917 S.W.2d 133, 134 (Tex. App.–Fort Worth 1996, pet ref’d). There is no evidence that

after Appellant received his Miranda warnings, he invoked his right to the Mexican counsel.

Furthermore, there is no evidence in the record to indicate that the Appellant may have been coerced,

badgered, or tricked into waiving his right to counsel. In light of the ruling in Montejo, we find that

the court did not err in admitting the video-recorded statement.

C. Harm Analysis

However, even if error did occur, we find the error, if any, to be harmless. In Chapman v.

12
California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the United States Supreme Court set

forth the test for determining whether a federal constitutional error is harmless. That test, the Court

said, is whether it appears “beyond a reasonable doubt that the error complained of did not contribute

to the verdict obtained.” Id. at 24, 87 S.Ct. at 828. Under Chapman, a federal constitutional error

“did not contribute to the verdict obtained” if the verdict “would have been the same absent the error

. . . .” Neder v. United States, 527 U.S. 1, 15-18, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). The

Chapman test is codified in Texas Rule of Appellate Procedure 44.2(a), which provides that

constitutional error requires reversal of the judgment “unless the court determines beyond a

reasonable doubt that the error did not contribute to the conviction or punishment.” TEX . R. APP .

P. 44.2(a).

In an appellate assessment of the likelihood that, absent the trial court’s error, the jury

verdicts as to appellant’s conviction and punishment would have been the same, we must consider

the entire record. Neder, 527 U.S. at 15-16. Among the factors, as revealed by the record, that we

must consider are: (1) the importance of the evidence to the State’s case; (2) whether the evidence

was cumulative of other evidence; (3) the presence or absence of other evidence corroborating or

contradicting the excluded evidence on material points; and (4) the overall strength of the State’s

case. Davis v. State, 203 S.W.3d 845, 852 (Tex. Crim. App. 2006). We must also consider any other

factor, as revealed by the record, that may shed light on the probable impact of the trial court’s error

on the minds of average jurors. Id.

Here, the record showed a pattern of abuse, threats and anger by the Appellant towards the

deceased at the time of the killing. Appellant’s fingerprints were found on the garbage bag that

contained her body. Appellant fled. Further, he wrote a grisly letter from jail to a friend detailing

13
his involvement in the offense. While it is true that during jury argument the State asked the jury

to observe Appellant’s indifferent attitude during the videotaped confession, the State also argued

that the evidence supported Appellant’s guilt even without the tape. The State’s case was strong,

and there was no contradictory evidence whatsoever. The statements in the letter were fully

corroborative and compelling. We find that the error, if any, did not contribute to his conviction or

punishment, and any error was harmless. Accordingly, Issue One is overruled.

In Issue Two, Appellant contends that the court erred when it allowed Appellant’s Spanish

language videotaped confession to be admitted and presented to the jury without providing a

contemporaneous translation of the confession as it was played for the jury. At trial, due to the fact

that Appellant’s videotaped confession was primarily in Spanish, the State prepared and presented

into evidence a transcript of a sworn, Spanish-to-English translation of the videotaped statement to

assist the jury. Araceli Guevara, the sworn interpreter, testified at trial about her qualifications. She

was cross-examined regarding the accuracy of her work.

Appellant’s counsel requested that the videotape be translated contemporaneously by a live

interpreter with the showing of the video to the jury. Counsel stated that the non-Spanish speaking

jurors would only be reading the translation as the tape was played. Therefore, they would be unable

to correlate the English translation with Appellant’s statements and the context in which they were

made. The court responded that the translation and the videotape would be available to the jury

during deliberations, and they could watch it and read the translation again if needed. The court

denied Appellant’s request.

At closing argument, the State pointed out that Appellant looked comfortable and laughed

during some parts of the videotaped interview. The State asked the jury to observe Appellant’s

14
demeanor while he described how he killed Mary Corral, in particular, his smile and lack of concern.

The State directed the jury to specific times during the videotaped interview to observe Appellant

as he described how Mary struggled–at 41:30 minutes, and how he pulled the extension cord around

her neck and strangled her–at 43:30 minutes.

The trial judge has wide discretion in determining the adequacy of interpretive services. The

question on appeal is not whether the “best” means of interpretive services were employed, but

whether the services that were actually employed were constitutionally adequate such that the

defendant could understand and participate in the proceedings. Linton v. State, 275 S.W.3d 493, 500

(Tex. Crim. App. 2009). The translation must be accurate or “true,” but it need not be perfect. Id.

at 501-02. An abuse of discretion standard is utilized by appellate courts to determine if the court

erred. See id. at 502.

Appellant cites Leal v. State, 782 S.W.2d 844 (Tex. Crim. App. 1989) in support of his

contention that a contemporaneous translation was required. We do not agree that it stands for that

proposition. In Leal, the Court of Criminal Appeals determined that the admission of a recorded

conversation in a foreign language is analogous to testimony by a non-English speaker and the

safeguards of article 38.30 of the Code of Criminal Procedure apply.3 See id. at 849. The court

determined that because an interpreter must be sworn to translate the recorded conversation, the trial

court in that case erred in admitting the tape recording into evidence with an unsworn translation.

3
Article 38.30 of the Texas Code of Criminal Procedure provides that in a criminal proceeding, when “it is
determined that a person charged or a witness does not understand and speak the English language, an interpreter
must be sworn to interpret for the person charged or the witness.” T EX . C O D E C RIM . P RO C . A N N . art. 38.30 (Vernon
Supp. 2009). W hen a trial judge is aware that the defendant has a problem understanding the English language, the
judge has an independent duty to implement this right in the absence of a knowing and voluntary waiver by the
defendant. Garcia v. State, 149 S.W .3d 135, 145 (Tex. Crim. App. 2004).

15
Id. at 849-50. In Leal there was no testimony as to who actually translated the conversation. No one

was positively identified as the translator in court and no one was sworn in by the trial court as an

interpreter. Id. at 847. Whoever the interpreter was, was not called to the stand so the accuracy of

their work could be subject to cross-examination. Id. at 849.

The Appellant does not challenge the quality or accuracy of the translation. Rather his

complaint is that the non-Spanish speaking jurors would only be reading the translation and would

be unable to correlate the translation with the spoken statements and the context in which they were

made. As the court noted, the jury would have the translation and videotape available to view during

deliberations if necessary. Playing the video of the Appellant’s statement enabled the jury to assess

the Appellant’s non-verbal behavior which was particularly important in evaluating the testimony.

However, we note that playing the audio in Spanish for the jury was unnecessary.

The interpreter’s rendition of the Appellant’s statement created the only permanent record

of what was said. It is as if the non-English language was never spoken before the jury and the

interpreter stands in place of the witness. There is in fact no requirement or means available at trial

to preserve the original foreign language spoken in court. It is the translation presented by the

interpreter that creates the record and that ultimately serves as the basis for any potential appeal.4

In this case all the jurors should have been focused on the written translation and not on the Spanish

audio. We find that the written translation satisfied the requirements of Article 38.30, Texas Code

of Criminal Procedure. The interpreter was positively identified, qualified, officially sworn and

subject to cross-examination.

4
Roseann Duenas Gonzalez, Victoria F. Vasquez & Holly Mikkelson, Fundamentals of Court
Interpretation, Theory, Policy and Practice 485 (1991).

16
 We find that the translation provided was adequate. The court did not err in failing to

provide a contemporaneous translation.

However, even if error did occur, we find the error, if any, to be harmless. We use the

standards regarding a harm analysis enunciated in the prior discussion. In the present case, as stated,

there was overwhelming evidence of Appellant’s guilt. Appellant states that harm occurred in that

both the State and the defense focused on Appellant’s actions during certain parts of the video, and

non-Spanish speaking jurors would have no way of knowing if the party’s arguments were correct

or not; thereby potentially causing other jurors to be consulted. However, we find nothing in the

record before us that indicates that in fact occurred. We further note that there is nothing in the

Appellant’s statement that would qualify as lighthearted or humorous. We find that no harm

occurred. Issue Two is overruled.

In Issue Three, Appellant argues that the court erred by admitting a letter written by appellant

without proper authentication. Detective Ruiz stated that he intercepted a letter from Appellant’s

jail mail, and he made a copy of the letter. He later retrieved the letter from Rafaela Guillen after

the letter was delivered to her. Guillen stated that she had known Appellant since they were both

five years old, but she was not familiar with his handwriting. The letter was signed “Richard Flores”

and contained the nickname “Playboy” which was Appellant’s nickname. Guillen testified before

the jury that the envelope in which the letter had been sent was addressed to her at her previous

address and contained Appellant’s name, his jail identification number, 9282439, and the return

address of 12501 Montana, El Paso, Texas. She testified that she had previously received five or six

letters from Appellant and she had not been receiving letters from anyone else at jail. Appellant

objected to the admission of the letter on grounds that, among other things, the letter had not been

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properly authenticated. The court admitted the letter into evidence.

An appellate court may not disturb a trial court’s evidentiary ruling absent an abuse of

discretion. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). As long as the trial

court’s ruling is within the zone of reasonable disagreement and is correct under any theory of law

applicable to the case, it must be upheld. Id., citing Montgomery v. State, 810 S.W.2d 372, 391

(Tex. Crim. App. 1990) (op. on reh’g).

The requirement of authentication or identification as a condition precedent to admissibility

is satisfied by evidence sufficient to support a finding that the matter in question is what the

proponent claims. TEX . R. EVID . 901(a). Evidence may be authenticated by the testimony of a

witness with knowledge that a matter is what its proponent claims it to be, nonexpert opinion as to

the genuineness of handwriting based upon familiarity not acquired for the purposes of the litigation,

or other distinctive characteristics. TEX . R. EVID . 901(b)(1), (2), (4).

Under the circumstance in this case, we find that the letter was adequately authenticated. See

Reyes v. State, No. 14-96-01189-CR, 1998 WL 733681, at *2 (Tex. App.–Houston [14th Dist.] Oct.

22, 1998, pet. ref’d) (not designated for publication) (the return address on the envelopes identifying

the accused as the sender and listing his jail-identification number, and the address for the Harris

County Jail as the sender’s address, indicated that the accused sent the letters from his cell at the

Harris County Jail). The letter was signed “Richard Flores” and contained his nickname, “Playboy.”

Furthermore, the letter indicated that Appellant had sent Guillen letters and photos, facts known to

both Appellant and Guillen. The letter contained details of the murder which would be known to

the murderer. Detective Ruiz identified the letter as being the same letter he intercepted and copied

from the Appellant’s jail mail and later retrieved from Guillen. He had personal knowledge and

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testified that it was the same letter. We find the letter was properly authenticated.

Even assuming that the court erred, we find that no harm occurred. An appellate court will

not reverse a ruling based on non-constitutional error that does not affect “substantial rights.” See

Neal v. State, 256 S.W.3d 264, 284-85 (Tex. Crim.App. 2008), citing TEX . R. APP . P. 44.2(b). The

reviewing court examines the record as a whole, and if the court determines that any error had slight

effect or no effect on the jury, then the reviewing court should not overturn the trial court’s ruling.

See id. at 285. The presence of overwhelming evidence of guilt plays a determinative role in this

analysis. See id.

Appellant states that the letter presents a darker picture than was depicted in the video

confession. However, the letter comports with the confession except for the statement about rolling

the dice to determine Corral’s fate. We find that other evidence in the case provides support for the

depiction of overwhelmingly gruesome, depraved act. As such, no harm occurred. Issue Three is

overruled.

In Issue Four, Appellant contends that the court erred when it admitted four autopsy photos

which showed the deceased’s body in a gruesome manner. Appellant complains of two views of

Corral’s neck with the skin peeled off. Two other photos showed Corral’s eyes with a medical

instrument holding each eye open.

We review a trial court’s admission of photographs into evidence under an abuse of

discretion standard. Penry v. State, 903 S.W.2d 715, 751 (Tex. Crim. App.), cert. denied, 516 U.S.

977, 116 S.Ct. 480, 133 L.Ed.2d 408 (1995). A photograph is relevant if it has “any tendency to

make the existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” TEX . R. EVID . 401; Penry, 903

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S.W.2d at 751. The identity of the victim and the manner and means of death are facts that are of

consequence to the determination of an action. Penry, 903 S.W.2d at 751.

The photographs in question were relevant to show the cause of death. Photographs showing

mutilation by the medical examiner may be admissible when the photographs show bruising or other

damage that is attributable to an accused’s actions but is not visible externally. Ripkowski v. State,

61 S.W.3d 378, 392-93 (Tex. Crim. App. 2001), cert. denied, 539 U.S. 916, 123 S.Ct. 2274, 156

L.Ed.2d 133 (2003). The medical examiner testified that all four pictures were helpful and necessary

in demonstrating that strangulation was the cause death. Two of the pictures demonstrated

hemorrhaging around the iris that was consistent with hemorrhaging that occurs during strangulation.

The other two pictures showed the hemorrhaging caused by compressing the deceased’s neck which

assisted in explaining her injury and the cause of death. While Appellant asserts that the

photographs were not relevant because the cause of death was not contested, such evidence is

admissible even if it merely corroborates other evidence. See Cohn v. State, 849 S.W.2d 817, 820-21

(Tex. Crim. App. 1993). We find that the photographs were relevant.

Evidence may still be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice. See Salazar v. State, 38 S.W.3d 141, 151 (Tex. Crim. App. 2001), cert.

denied, 534 U.S. 855, 122 S.Ct. 127, 151 L.Ed.2d 82 (2001). TEX . R. EVID . 403 favors the

admission of relevant evidence and carries a presumption that relevant evidence will be more

probative than prejudicial. When the accused objects that photographic evidence is more prejudicial

than probative, the trial court must conduct a balancing test under Texas Rule of Evidence 403.

Jones v. State, 982 S.W.2d 386, 394 (Tex. Crim. App. 1998), cert. denied, 528 U.S. 985, 120 S.Ct.

444, 145 L.Ed.2d 362 (1999). Under Rule 403, the trial court determines whether the probative

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value of the evidence is substantially outweighed by the danger of unfair prejudice. TEX . R. EVID .

403; Reese v. State, 33 S.W.3d 238, 240 (Tex. Crim. App. 2000). Evidence is unfairly prejudicial

when it has “an undue tendency to suggest that a decision be made on an improper basis.” Reese,

33 S.W.3d at 240, citing Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990) (op.

on reh’g). When conducting a Rule 403 balancing test, the trial court should analyze: (1) how

probative the evidence is; (2) the potential of the evidence to impress the jury in some irrational way;

(3) the time the proponent will need to develop the evidence; and (4) the proponent's need for the

evidence, i.e., whether other evidence is available and whether the fact of consequence is related to

a disputed issue. Montgomery, 810 S.W.2d at 389-90. When analyzing photographic evidence, the

trial court should also consider the number and the size of the photographs, whether they are in color

or black and white, the detail shown in the photographs, whether the photographs are gruesome,

whether the body is naked or clothed, and whether the body has been altered since the crime in some

way that might enhance the gruesomeness of the photographs to the accused’s detriment. Reese, 33

S.W.3d at 241.

Even if the photographs are gruesome, that fact alone does not render them more prejudicial

than probative. See Shavers v. State, 881 S.W.2d 67, 77 (Tex. App.–Dallas 1994, no pet.). Here,

the photographs were relevant to show the cause of death as ligature strangulation. As stated, the

closeup photographs of the eyes showed a type of hemorrhaging around the iris that was consistent

with the type of hemorrhaging that occurs during strangulation. Holding the eyes open enabled the

jury to see the full extent of the hemorrhaging. See Hayes v. State, 85 S.W.3d 809, 816 (Tex. Crim.

App. 2002) (if the victim’s skin on her face had not been pulled back, the jury would not have been

able to see the full extent of one of her fatal injuries). The photographs depicting the inside of the

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deceased’s neck depicted the internal injuries that were not visible externally and were relevant to

show the nature of the injuries.

In this instance, there was no great time expended in presenting the evidence and the

evidence was relevant to show the cause of death. While gruesome, the evidence was pertinent in

demonstrating the cause of death from strangulation. We find that the court did not err in admitting

the photographic evidence.

Even if error occurred, such error constitutes non-constitutional error; thus, we must

disregard it unless it affected Appellant’s “substantial rights.” TEX . R. APP . P. 44.2(b); Potter v.

State, 74 S.W.3d 105, 113-14 (Tex. App.–Waco 2002, no pet.). An error affects a substantial right

“when the error had a substantial and injurious effect or influence in determining the jury’s verdict.”

King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Thus, we affirm a criminal conviction

despite non-constitutional error if, after examining the record as a whole, we are left with the fair

assurance that the error did not influence the jury, or influenced the jury only slightly. Johnson v.

State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). See also O'Neal v. McAninch, 513 U.S. 432,

438, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995) (error must be treated as harmful if “grave doubt” exists

as to whether it had a “substantial and injurious effect or influence” upon the jury). We analyze the

whole record to determine if the trial court’s error had no or only a slight effect on the jury’s

decision; thus, we may consider the trial court’s instructions to the jury and the parties’ closing

arguments. Schutz v. State, 63 S.W.3d 442, 444-45 (Tex. Crim. App. 2001). We consider all the

evidence, the nature of the evidence supporting the sentence, and the character of the error and its

relationship to other evidence to determine if the error substantially affected appellant’s rights. See

Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).

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 Here, there was overwhelming evidence of guilt. See Neal, 256 S.W.3d at 285 (even if the

trial court erred in admitting evidence, such error was harmless in light of the overwhelming guilt

shown by other evidence). And while Appellant maintains that the State argued that the photographs

showed “how Mary ended up,” this statement was not in reference to the autopsy photographs.

Accordingly, the State did not emphasize the autopsy pictures. Further, a conviction should not be

reversed merely because and for the sole reason that the jury was exposed to numerous gruesome

photographs. See Drew v. State, 76 S.W.3d 436, 453 (Tex. App.–Houston [14th Dist.] 2002, pet.

ref’d). Accordingly we find no harm and Issue Four is overruled.

III. CONCLUSION

We affirm the judgment of the trial court.

GUADALUPE RIVERA, Justice

October 28, 2009

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)
(Publish)

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