IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
v.
THE STATE OF TEXAS
FROM NUECES COUNTY
O P I N I O N
The appellant and his codefendant, Joe David Padron, illegally entered a home while the occupants were asleep and shot and killed Jesus Gonzalez and John Commisky. For this conduct, a Nueces County jury convicted the appellant of two counts of capital murder. (1) Pursuant to the jury's answers to the special issues set forth in Code of Criminal Procedure Article 37.071, sections 2(b) and 2(e), the trial court sentenced the appellant to death. (2) Direct appeal to this Court is automatic. (3) The appellant raises nine points of error. We shall affirm.
II. Jury Selection
In his first point of error, the appellant claims that the trial court erred in denying him a full and fair voir dire examination by restricting relevant inquiry concerning the facts of the case. Juror questionnaires asked jurors to state any questions they had. Venire Member Julian Sanchez asked, "Why two lives?" During Sanchez's voir dire, defense counsel referred to that question in the following exchange:
[Defense counsel]: What did you need to know, sir?
[Sanchez]: I just - Why was [sic] two lives taken?
Q: Okay.
A: That's it.
Q: What I think the state's evidence is gonna be is that the two people that were killed were in a gang, and -
[Prosecutor]: Your Honor, I'm going to object to [defense counsel] telling this juror what my evidence is going to be in the trial, or, actually, what any of [the] evidence is gonna be in the trial. I think that's improper.
[Defense counsel]: Judge, I - That's a new one on me, because any time you voir dire the jury, you've gotta give them an idea about what the evidence is gonna be, so you can get their biases and things like that.
THE COURT: I don't agree with you. I think that's for opening statements. You can discuss matters, but you cain't [sic] discuss what the evidence is gonna be.
[Prosecutor]: You can discuss issues, but not evidence.
THE COURT: I agree.
[Prosecutor]: And that, I think, is what the law is.
[Defense counsel]: Well, note my -
THE COURT: Rephrase - you can ask the same questions, [defense counsel], just rephrase the question.
[Defense counsel]: Some of the issues in the case would be the fact that they're gonna claim that my client was in a gang, and that the two fellows that were killed we're [sic] in a gang -
[Prosecutor]: Judge, that's just -
THE COURT: You're doing the same thing.
[Prosecutor]: - ignoring the Court's ruling, and is going around it, and I object.
[Defense counsel]: Judge, if the Court is instructing me not to go into the evidence that I expect the state to show, for the purpose of voir dire, that's fine, and I won't do it, if I can get a specific instruction from the Court.
THE COURT: The instruction is, do not go into specifics of what you expect the evidence to show.
[Defense counsel]: Okay.
THE COURT: You can go into specifics of, how do you feel about gangs, if, you know, the evidence were to show? If - Do you understand?
[Defense counsel]: I understand the Court's ruling.
THE COURT: I'm telling you, you can do the same thing, [defense counsel], without telling the juror, This is what we expect the evidence to show. Okay? Now, opening statements is a completely different situation.
[Defense counsel]: Very well.
On appeal, the appellant contends that the trial court's instruction prevented him from discussing with Sanchez and the remaining venire members what the evidence was expected to show and from exploring their biases and prejudices.
The appellant has not preserved this issue for review. Although there was some initial disagreement between defense counsel and the prosecutor about what could be asked, defense counsel ultimately asked the trial court to state its instruction on the issue. After hearing the trial court's instruction, defense counsel said "okay" and "very well." He did not state an objection for the record and did not request a running objection with respect to other venire members. (4) Point of error one is overruled.
In his second point of error, the appellant claims that the trial court erred in granting the State's challenge for cause to venire member Angela Cox, in violation of his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. The appellant contends that Cox was wrongly disqualified on the basis of her views about the death penalty. (5)
Cox stated repeatedly that she would answer the special issues in such a way as to result in a death sentence only in cases involving a child victim or a victim who had been tortured; in all other circumstances, including those alleged in the appellant's indictment, Cox stated that she would always answer the issues in such a way that a life sentence would be imposed. Cox was unwavering in her position, restating at the close of her voir dire that she would vote to impose the death penalty only in these circumstances: "Just children and torture." The State's challenge for cause on these grounds was granted.
In Rocha v. State, (6) we upheld the trial court's granting of the State's challenge for cause against a venire member who stated that she could never consider the death penalty for a murder committed in the course of a robbery. We explained that a venire member is challengeable for cause if she could never vote to impose the death penalty for a statutorily classified capital murder offense because the person does not accept that offense as a valid criterion for imposing a sentence of death. (7)
In this case, Cox said that she could never consider the death penalty in any case that did not involve child victims or victims of torture. She would never answer the punishment issues in such a way as to result in the death penalty for a murder committed in the course of a robbery that did not involve these types of victims. The trial court did not abuse its discretion in granting the State's challenge for cause. Point of error two is overruled.
II. Evidentiary Issues
A) Hearsay Statement Against Interest
In his third point of error, the appellant claims that the trial court erred by allowing hearsay testimony from Robert Lara. Lara testified about statements made to him by Joe David Padron, in which Padron implicated himself and the appellant in the murders. The testimony was admitted as statements against penal interest. The appellant argues that the statements were not against Padron's penal interest and were not corroborated by circumstances indicating trustworthiness as required by Rule of Evidence 803(24). (8)
In a hearing outside the presence of the jury, Lara testified that he and Padron were assigned to the same cell block designated for members of the Raza Unida gang. Lara stated that, when Padron was first brought into the cell block, he did not know Lara and asked one of the other gang members in the cell block if Lara could be trusted. Once assured that Lara was trustworthy, Padron began telling everyone that he did not understand how he had been caught so quickly and that he suspected the appellant had "snitched." Lara later had a private conversation with Padron in which Padron told him about committing the instant offense with the appellant.
Padron said that the appellant picked him up in a truck or Bronco and told him that they were "going to take care of business." When they arrived at the house where the murders were to take place, they took the chain off the fence and went in through a side or back door at the kitchen. They saw someone who they thought was a woman asleep on the couch, and they continued looking until they found a room where there were two people lying in a bed. Padron stated that he was the one with the high-caliber rifle. He said that he and the appellant just started shooting.
Lara's testimony before the jury was substantively the same as the testimony he gave during the hearing, but he also testified that Padron had told him about some of the events leading up to the murders, including a stabbing of two gang members and a drive-by shooting at a gang member's house. Lara testified that, according to Padron, the appellant said that the drive-by shooting was the "last straw" and that "enough was enough."
The appellant objected to the admission of Lara's testimony as hearsay and argued that it was not admissible as statements against Padron's penal interest because Padron would not have anticipated any penal consequences from bragging to a fellow gang member about his participation in a homicide. The appellant makes the same arguments on appeal.
Texas Rule of Evidence 803(24) provides that a hearsay statement against the declarant's penal interest may be admissible if corroborating circumstances clearly indicate the statement's trustworthiness. A trial court's ruling on the admissibility of a hearsay statement pursuant to a hearsay exception is a matter of discretion and reviewed under an abuse of discretion standard. (9)
Padron's statements were clearly against his penal interest. His statements that he and the appellant shot the victims inculpated himself in a capital murder. The concern that statements of a co-defendant that inculpate the defendant might be an effort at blame-shifting does not apply here because the statements inculpate Padron and the appellant equally. (10)
We are not persuaded by the appellant's argument that the statements were not against Padron's penal interest because Padron was merely bragging to other gang members, which would have actually elevated his status within the gang. The statements implicated Padron in a very serious crime regardless of how they might have been viewed by other gang members. There is always a risk that the person to whom a statement is made will, for any number of reasons, repeat the statement to others or even to authorities. As explained by a court of appeals addressing this exact issue:
[The declarant] and possibly others were bragging about their participation in the crime. While the declarant may have intended it to enlarge his reputation or uttered it merely for the irrational pleasure of reliving the event, the statement was essentially a confession to the crime. Confessing to criminal conduct is usually against one's interest, at least to the extent that an addressee will later reveal the statement to the authorities in an effort to exonerate himself or another accused. (11)
We conclude that Padron's statements were against his penal interest, despite the fact that the statements might have increased his status with other gang members. We must now determine if corroborating circumstances clearly indicate the statement's trustworthiness.
Padron's statements about the crime suggest trustworthiness because the details generally could not have been learned from a newspaper or other outside source. For instance, Padron described the fence and, to some extent, the lay-out of the house. He stated that he remembered seeing a woman asleep on the couch and described finding the targets asleep on a bed in another room. He also identified the stated motives for the murder: the stabbing of Padron's fellow gang members and a drive-by shooting of a named gang member's house.
The possibility that the statements might have been fabricated by Padron for the purpose of increasing status among gang members is a factor to consider. However, Lara testified that Padron checked with another gang member in the cell block to make sure Lara could be trusted before talking openly about his involvement in the crime. Padron obviously felt that he could speak freely to fellow gang members whom he trusted. Lara's potential motives for fabrication should be considered in addressing trustworthiness as well, but in this case there are sufficient indicia of reliability within the statement itself to outweigh these concerns.
Given the context in which the statements were made and the details revealed in the statements, the trial court did not abuse its discretion in finding that there were corroborating circumstances that clearly indicated that the statements were trustworthy. Point of error three is overruled.
In his fourth point of error, the appellant claims that the trial court violated his confrontation rights by limiting the cross-examination of Robert Lara and Vino Garcia about their agreements with the State. The appellant has failed to preserve this issue for review with regard to each witness.
The appellant cross-examined Lara extensively about his criminal history, his pending charges in an aggravated robbery case, and his deal with the State in the aggravated robbery case in exchange for his testimony against the appellant. Although the appellant elicited the fact that the pending aggravated robbery case involved a weapon, he was not allowed to elicit testimony about the type of weapon used or whether there was an injured victim. The appellant argued that he should have been allowed to go into those facts to establish witness bias, but he never articulated a legal basis in support of his position. On appeal, he asserts a Confrontation Clause violation. But the Confrontation Clause is not the only authority applicable to the appellant's claim. The Rules of Evidence also address impeachment regarding witness bias. (12) Because the appellant did not identify the basis of his position at trial, he did not preserve the Confrontation Clause issue he now raises on appeal. (13)
The appellant's complaint that his cross-examination of Garcia was limited improperly is not preserved for review because the appellant never attempted to cross-examine Garcia, and therefore never obtained a ruling, about the matters he now complains he was not allowed to address. The appellant claims he avoided these matters with Garcia because of the trial court's ruling on the issue during Lara's testimony. Regardless of the appellant's belief that the trial court would rule against him, he was required to seek a ruling in order to preserve error with respect to Garcia. (14) Point of error four is overruled.
B) Demonstrative Evidence
The appellant's fifth, sixth, and seventh points of error pertain to the appellant's compelled display of a tattoo during the punishment phase of trial. According to descriptions in the record, the tattoo at issue depicted "Jesus with a demon devouring his brains." The tattoo was on the appellant's shoulder, and the appellant was required to remove his jacket and shirt to display it. Prior to the admission of the punishment evidence and during a hearing outside the presence of the jury, the appellant made a motion in limine in anticipation of the State's offering of the tattoo. The appellant argued that the tattoo was not relevant, that any relevance was substantially outweighed by its prejudicial effect, and that admitting it would violate the appellant's rights under the Fifth and Sixth Amendments. The State argued that the tattoo showed "a complete disrespect to Christ, the person that stood for peace and love and forgiveness" and was therefore relevant to future dangerousness. The State also noted that although it would not violate the appellant's rights to require him to take off his shirt in the courtroom, it preferred to offer photographs of the tattoo.
The trial court asked the appellant whether he would prefer to display the tattoo in photographs or by disrobing in the courtroom, if the evidence were to be admitted. The court reminded the appellant that the jury was allowed to take photos with them into the jury room. Without waiving any of his objections to the admission of the evidence, the appellant stated that he would prefer to disrobe. The court stated that it would not allow admission of photos and would rule on the appellant's disrobing when the issue came up during trial.
The prosecutor's opening punishment statement warned the jury that, in addition to some gang-related tattoos, they would see "some disturbing tattoos of demons and religious figures, and the most offensive tattoo, you're gonna see a tattoo on his arm - of a demon eating the brains of Christ on his arm." After opening statements and before calling its first witness, the State asked the appellant to stand and take off his jacket and shirt in order to display his tattoos to the jury. The appellant repeated his objections. The trial court overruled the objections and directed the appellant to stand and display his tattoos from counsel table. The appellant complied.
In closing arguments, the prosecutor argued that the tattoos were displayed to the jury "to educate you as to [the appellant's] philosophies, his belief systems, what he is about." He elaborated:
[Y]ou have a demon eating the brains of Christ. There was Christ, with the crowns, and what kind of looks like grapes, and then you have a demon putting it like that. Now, I don't know what that means, but to me it's a bad thing. That to me is a philosophy. I don't know if it's satanic. . . . but it tells you something about him as a person, that ought to tell you where his belief system is.
In his fifth point of error the appellant claims that the compelled display of the tattoo was a violation of his right not to incriminate himself under the Fifth Amendment. The Fifth Amendment does not protect against the compelled production of every sort of incriminating evidence. (15) The privilege protects a person only against being incriminated by his own compelled testimonial communications. (16) Testimonial communications are those that "explicitly or implicitly, relate a factual assertion or disclose information." (17) The appellant argues that the tattoo was testimonial because the State argued that it communicated his "philosophies and belief systems."
The United States Supreme Court has held that documentary communications are not compelled testimonial communication within the meaning of the Fifth Amendment when voluntarily prepared prior to the requested production. (18) Production of a pre-existing document does not "compel the [defendant] to restate, repeat, or affirm the truth of the contents of the documents." (19)
Although the tattoo's relevance is derived from what it communicated to others, the appellant was not compelled by State actors to create it. In this way, the appellant's tattoo is more akin to a pre-existing documentary communication than to a compelled testimonial communication. The appellant was merely asked to show the jury something he had created voluntarily before his appearance in court. The exhibition of the tattoo did not compel the appellant to say anything about its meaning. The trial court did not violate the appellant's Fifth Amendment rights by requiring him to display the tattoo. Point of error five is overruled.
In his sixth point of error, the appellant claims that the trial court erred in allowing the State to use the appellant's tattoo as a reason for imposition of the death penalty in violation of due process, equal protection, and freedom from cruel and unusual punishment. Specifically, the appellant contends that the State's argument that the tattoo represented the appellant's philosophy and was therefore relevant to the issue of future dangerousness improperly injected religion into the case.
During the punishment phase of a capital murder trial, evidence may be presented as to any matter the court deems relevant to the special issues, including the defendant's background or character. (20) A defendant's choice of tattoos is some evidence of his character. (21) Tattoos may also be evidence of the defendant's beliefs or his motive for committing the crime. (22) This kind of evidence is relevant to the issue of future dangerousness. (23)
The State did not inject the issue of religion into the case. Any reference to religion was raised by the tattoo alone. The prosecutor did not refer to the appellant's religion or lack thereof. He stated that the tattoo depicted a "demon eating the brains of Christ" and that this depiction might be viewed as an expression of the appellant's philosophy and beliefs. These are matters relevant to character and therefore have a bearing on an assessment of future dangerousness. The federal cases relied upon by the appellant are distinguishable because they all involved references to religion that were made at the guilt or innocence phase of the trial where character is not in issue. (24) Point of error six is overruled.
In the appellant's seventh point of error, he argues that the prejudicial effect of the tattoo substantially outweighed any probative value it had on the issue of future dangerousness in violation of Rule of Evidence 403. Rule 403 favors admission of relevant evidence and implies a presumption that relevant evidence is more probative than prejudicial. (25) "All testimony and physical evidence will likely be prejudicial to one party or the other. It is only when there exists a clear disparity between the degree of prejudice of the offered evidence and its probative value that Rule 403 is applicable." (26) A proper 403 analysis includes, but is not limited to, consideration of four factors: (1) the probative value of the evidence; (2) its potential to impress the jury in some irrational yet indelible way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence. (27) Questions of admissibility under Rule 403 are subject to review only for an abuse of discretion. (28)
The appellant contends that, because there was no connection or nexus between the type of tattoo and the nature of the crime or the motive behind the crime, the tattoo had little probative value apart from its religious significance. The State argues that the tattoo was evidence relevant to the special issue on future dangerousness because it was indicative of the appellant's character. The State also argues that the tattoo was prejudicial, but not unfairly so because the appellant chose to have the tattoo "depicting that which is evil triumphing over that which is good."
We will assume, without deciding, that the trial court erred in admitting the tattoo before the jury. Even so, we conclude that the appellant was not harmed by the trial court's admission.
Because no constitutional error is involved when evidence is admitted under Rule 403, we look to the nonconstitutional standard in Rule of Appellate Procedure 44.2(b). Under Rule 44.2(b), reviewing courts should disregard any error that did not affect the appellant's substantial rights. (29) We have interpreted this to mean that the conviction should not be reversed when, after examining the record as a whole, the reviewing court has a fair assurance that the error did not influence the jury or had but a slight effect. (30) In assessing the likelihood that the jury's decision was adversely affected by the error, we consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case. (31) We also consider the jury instructions, the State's theory and any defensive theories, closing arguments, voir dire, and whether the State emphasized the error. (32)
The record does not contain a photo of the tattoo. (33) The record does not reflect the tattoo's size, how graphic it was, how detailed, or even the distance between the jurors and the appellant as he displayed the tattoo. The presentation of the tattoo appears to have been brief, and did not require the appellant to approach the jury. It was mentioned by the prosecutor in his opening statement during the punishment phase, and it was the first order of business before the jury in the punishment phase of the trial. It was also mentioned in the closing arguments.
The evidence presented during the guilt phase of the trial, which was relevant to the jury's punishment-phase determination of future dangerousness, included testimony that the appellant broke into a house at 3 a.m., looking for one of the sons in the family. He waved a gun around, threatened family members, and struck the father in the face with the gun before leaving. He shot and killed the two victims while they were asleep in bed.
During the punishment phase, the State presented evidence that, before the appellant's involvement in this case, the appellant pled guilty to murder with a deadly weapon and was sentenced to six years' imprisonment. Although the appellant was not the shooter in that offense, he was armed.
The appellant's records from the Department of Criminal Justice indicate that he began using marijuana and inhalants at age ten, mushrooms and acid at age fourteen, and cocaine at age fifteen. He was an admitted alcoholic. He also admitted to joining the "Clyde Crew" gang at age fourteen. The appellant reported that activities of the Clyde Crew gang included car-jacking and running drugs. While serving his sentence on his murder conviction, the appellant was the subject of four disciplinary reports. Two of the incidents involved altercations with other inmates, one was a failure to follow orders, and in one, the appellant was found in possession of a weapon, a metal rod with a sharpened point. Prison records reflect that prior to his murder conviction, the appellant was arrested eleven times, and was placed several times in the county juvenile facility.
The tattoo was not particularly critical to the State's case, although it was the only evidence of its kind. The facts of the case were very serious: entering a family home in the early morning hours, killing two people and injuring another man. The offense in this case, along with the evidence demonstrating the appellant's escalating and increasingly violent criminal behavior, was much more relevant to the jury's decision on the appellant's future dangerousness than the tattoo. Under these circumstances, we have a fair assurance that admission of the tattoo did not influence the jury or had but slight effect. Point of error seven is overruled.
C. Disciplinary Reports
In his eighth point of error, the appellant claims that the trial court erred in allowing inadmissible hearsay accounts of uncharged prison misconduct. Specifically, the appellant complains about two Department of Criminal Justice disciplinary reports. The appellant contends that the reports were inadmissible hearsay under Rule of Evidence 803(8)(B), as matters observed by "other law enforcement personnel."
The reports were included within a penitentiary packet designated as State's Exhibit 75. When the State proffered Exhibit 75, the appellant stated that it contained "extraneous hearsay matters" and asked if they could have a hearing on it later. The court noted the appellant's objection and stated that the packet would be reviewed before being released to the jury and portions would be redacted, if necessary.
After the State's last punishment witness, the prosecutor re-offered Exhibit 75. Outside the presence of the jury, the appellant objected to one report on the ground that the policemen involved in the incident were not identified by name and to another report as being "hearsay within a business record." On appeal, the appellant contends the reports were inadmissible because they were matters "observed by other law enforcement personnel" under Rule 803(8)(B). The appellant's trial objections do not comport with the specific claim he now raises on appeal. He has failed to preserve error. (34) Point of error eight is overruled.
D. Evidence of the Potential for Parole Law Changes
In point of error nine, the appellant claims that the trial court erred in allowing the State to elicit testimony that the parole laws could change so that the appellant might be released on parole before the expiration of forty years on a life sentence. Prior to the appellant's case at punishment, the appellant presented a motion in limine asking the court to instruct the State "not to allude to any possibilities that the laws would change as far as the period of time [the appellant] would have to serve if he receives a life sentence." The motion was granted.
During the punishment phase, the appellant called Dr. Dennis Longmire, who testified as an expert about various aspects of the Texas penal system. Longmire testified that a person who receives a life sentence must serve forty years before he is eligible for parole. The appellant then asked Longmire if the law had changed over the years regarding the amount of time that must be served. Longmire responded:
Well, I believe the law began to change around '93 - 1993. Prior to 1993, capital murderers sentenced to life, capital life, became eligible for parole in around 12 years or 15 years. In '93 there was a requirement that they be - that they spend at least 35 calendar years, and then, in '95 that became 40 calendar years, and so, at this point in time that's the current law . . ..
During the State's cross-examination of Longmire, the prosecutor asked to approach the bench, and then stated that he believed that the appellant had violated his own motion in limine by asking Longmire about how the parole law had changed over the years. The prosecutor sought permission to ask Longmire whether it was possible that the law could change in the other direction. The court agreed that the appellant had opened the door with his question and allowed the following cross-examination about which the appellant now complains:
[Prosecutor]: I believe, Dr. Longmire, that you testified, under [defense counsel's] direct examination, that the law has changed over the years regarding what the minimum parole eligibility is for parole. Is that correct?
A: That's correct.
Q: Is there any guarantee you can have for this jury -
[objection made and overruled]
A: Is there any guarantee, Dr. Longmire, you can offer this jury that the legislature will not reverse their position on what the minimum parole eligibility will be over the next few years?
[objection made and overruled]
A: I can't guarantee what the Texas legislature will do in any case.
On re-direct examination, the appellant elicited testimony from Longmire that the current trend in Texas was toward harsher punishments and that there was no reason to think that a change in the parole eligibility law would apply retroactively to the appellant.
The appellant's motion in limine sought to preclude the State from asking Longmire questions suggesting that the law could change affecting the period of time required to be served on a life sentence in a capital case. Despite his own motion, the appellant asked Longmire whether the laws had changed in the past regarding the amount of time to be served on a life sentence. The trial court correctly ruled that the appellant's question about past laws that have changed opened the door to the prosecutor's questions asking whether those laws could change in the future. (35) The appellant's ninth point of error is overruled.
The judgment of the trial court is affirmed.
Delivered: April 26, 2006
Do not publish.
1. Tex. Pen. Code § 19.03(a)(2).
2. Tex. Code Crim. Proc. Art. 37.071 § 2(g).
3. Tex. Code Crim. Proc. Art. 37.071 § 2(h).
4. Tex. R. App. P. 33.1.
5. 6. 16 S.W.3d 1, 8 (Tex. Crim. App. 2000).
7. 8. The appellant also alleges that the statements were admitted in violation of the
Confrontation Clause as interpreted by 9. 10. 11. 12. 13. Tex. R. App. P. 33.1.
14. Tex. R. App. P. 33.1.
15. 16. 17. 18. 19. 20. Tex. Code Crim. Proc. Art. 37.071 § 2(a).
21. 22. 23. 24. 25. 26. 27. 28. 29. Tex. R. App. P. 44.2(b).
30. 31. 32. 33. The State did offer into evidence a photograph of the Raza Unida "stampa" which is
tattooed on the appellant's forearm. A large tattoo on his upper arm is also visible in that
photograph, but it is not clearly depicted and the record makes no reference as to what that tattoo
might be.
34. Tex. R. App. P. 33.1; 35.