IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,157
ARMANDO LEZA, Appellant
v.
THE STATE OF TEXAS
ON DIRECT APPEAL FROM CAUSE NO. 2007-CR-4563A
IN THE 187 TH JUDICIAL DISTRICT COURT
BEXAR COUNTY
P RICE, J., delivered the opinion for a unanimous Court.
OPINION
The appellant was convicted of intentional murder committed in the course of a
robbery, a capital offense,1 and the jury answered the statutory special issues in such a way
that the trial court was obliged to assess the death penalty.2 Direct appeal is automatic in this
1
TEX . PENAL CODE § 19.03(a)(2).
2
TEX . CODE CRIM . PROC. art. 37.071, §§ 2(b) & 2(e)(1).
Leza – 2
Court.3 In fourteen points of error, the appellant contends that the trial court erred in various
respects. We disagree and find his contentions to be without merit. We will therefore affirm
the judgment of conviction and sentence of death.
The State’s evidence at trial showed generally that the appellant and his girlfriend,
Dolores Trevino, were admitted to the apartment of Caryl Jean Allen, a semi-invalid, in the
early morning hours of April 4, 2007. Both the appellant and Trevino were staying with the
appellant’s sister in the same apartment complex, and Allen had helped them out in the past
by giving them rides. When Allen refused on this occasion to provide them with money with
which to buy drugs, they tied her up on the floor of her bedroom. One or both of them then
cut her throat and stabbed her in the chest with a kitchen knife. Each wound was fatal. They
took a number of items from the apartment, commandeered Allen’s car, pawned the items
they had stolen, and then set fire to and abandoned Allen’s car. Both were arrested within
forty-eight hours of the offense, albeit for traffic warrants, and questioned at the homicide
office of the San Antonio Police Department. In the video recording of his interrogation,
having been urged by the interrogating officer that it was unmanly to allow his girlfriend to
take responsibility for the murder component of the offense, the appellant eventually
admitted that he had been the one to cut Allen’s throat.4 In a general verdict that did not
specify whether it believed the appellant to be the principal actor or a party to Allen’s
3
TEX . CODE CRIM . PROC. art. 37.071, § 2(h).
4
The appellant was never asked, and did not offer, to give a written statement.
Leza – 3
murder, the jury found the appellant guilty and, upon hearing additional evidence at the
punishment phase about his prior criminal history and behavior while previously
incarcerated, answered the special issues in such a way as to mandate the death penalty. The
appellant does not now challenge the sufficiency of the evidence in any respect. In
addressing the appellant’s fourteen points of error on appeal, we will examine the evidence
in greater detail as appropriate.
ADMISSIBILITY OF ORAL STATEMENTS
In his first and second points of error, the appellant contends that the trial court erred
in failing to suppress his video-recorded oral statement. He argues that admission of this
recorded oral statement violated both federal law under Miranda v. Arizona,5 and state law
under Article 38.22 of the Code of Criminal Procedure.6
5
384 U.S. 436 (1966). Miranda held that a suspect in police custody
must be warned prior to any questioning that he has the right to remain silent, that
anything he says can be used against him in a court of law, that he has the right to the
presence of an attorney, and that if he cannot afford an attorney one will be appointed
for him prior to any questioning if he so desires. Opportunity to exercise these rights
must be afforded to him throughout the interrogation. After such warnings have been
given, and such opportunity afforded him, the [suspect] may knowingly and
intelligently waive these rights and agree to answer questions or make a statement.
But unless and until such warnings and waiver are demonstrated by the prosecution
at trial, no evidence obtained as a result of interrogation can be used against him.
Id. at 479.
6
TEX . CODE CRIM . PROC. art. 38.22.
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Waiver of Miranda Rights
In his first point of error, the appellant makes no argument that his oral statement was
itself coerced in any way such that its admission into evidence would violate due process.
Nor does he challenge the adequacy of the Miranda warnings that were administered to him
before he made the statement, designed to protect his constitutional right to silence and his
privilege against compelled self-incrimination. He does not even deny that he, at least
implicitly, waived his right to silence by signing a written form to indicate that he understood
his Miranda rights and then responding to police questioning anyway.7 Instead, he asserts
that his apparent waiver of Miranda rights was, in reality, neither voluntary nor knowing and
intelligent. He complains that he was not informed of the true object of the interrogation and
was under the influence of heroin at the time the Miranda warnings were administered,
which prevented him from comprehending their significance and/or overbearing his
resistance to waiving them.8 On direct appeal, we measure the propriety of the trial court’s
7
See Berghuis v. Thompkins, 130 S.Ct. 2250, 2262 (2010) (“As a general proposition, the law
can presume that an individual who, with a full understanding of his or her rights, acts in a manner
inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights
afford.”); Joseph v. State, 309 S.W.3d 20, 25 (Tex. Crim. App. 2010) (“The question is not whether
Appellant ‘explicitly’ waived his Miranda rights, but whether he did so knowingly, intelligently, and
voluntarily.”).
8
At the pre-trial hearing on the appellant’s motion to suppress, he challenged the admissibility
not only of the video-recorded oral statement, but also of an oral statement he made to an escort
officer who had taken him out for a restroom and cigarette break during the course of the three-hour
interrogation session. The trial court ruled that the State could offer both the video-recorded
statement and testimony as to the oral statement made during the restroom/cigarette break, expressly
finding that the latter was not the product of custodial interrogation. Both oral statements were
introduced at trial. On appeal, however, the appellant does not challenge the admissibility of the oral
Leza – 5
ruling with respect to alleged Miranda violations under the totality of the circumstances,
almost wholly deferring to the trial court on questions of historical fact and credibility, but
reviewing de novo all questions of law and mixed questions of law and fact that do not turn
on credibility determinations.9 By this standard, we hold that it was within the discretion of
the trial court to conclude that the appellant’s waiver was both voluntary and knowing and
intelligent.
It is the State’s burden to establish a valid waiver of Miranda rights by a
preponderance of the evidence.10 There are two facets to any inquiry with respect to the
adequacy of a purported waiver of Miranda rights:
First, the waiver must be “voluntary in the sense that it was the product of a
free and deliberate choice rather than intimidation, coercion, or deception.”
Second the waiver must be made “with a full awareness both of the nature of
the right being abandoned and the consequences of the decision to abandon
it.” 11
Before it may be said that a waiver of a Miranda right is involuntary, however, there must
statement made during the restroom/cigarette break. His first two points of error expressly allude
only to the admissibility of the video-recorded oral statement. While he mentions the oral statement
made during the restroom/cigarette break in passing in his factual recitation with respect to his first
point of error, he fails to include any independent argument why it was erroneously admitted. We
therefore express no opinion with respect to that issue.
9
Ripkowski v. State, 61 S.W.3d 378, 381-82 (Tex. Crim. App. 2001).
10
Joseph v. State, supra, at 24.
11
Ripkowski v. State, supra, at 384 (quoting Colorado v. Spring, 479 U.S. 564, 573 (1987)
(footnotes omitted)).
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be some element of official intimidation, coercion, or deception.12 And, with respect to the
requirement that the waiver also be knowing and intelligent,
[o]nce it is determined that a suspect[ ] . . . at all times knew he could stand
mute . . ., and that he was aware of the State’s intention to use his statements
to secure a conviction, the analysis is complete and the waiver is valid as a
matter of law.13
It will suffice to render a waiver knowing and intelligent, in other words, that the accused has
been made aware, and fully comprehends, that he has the right to remain silent in the face of
police interrogation and to discontinue the dialogue at any time, and that the consequence of
his waiver is that his words may be used against him later in a court of law.14
It is true, as the appellant contends, that none of the interrogating officers expressly
informed him that the subject of the interrogation would be, not the traffic infraction for
which he was arrested, but the capital murder of which he was suspected. But this
circumstance is patently insufficient, as a matter of law, to render his waiver of Miranda
rights either involuntary or insufficiently informed. The Supreme Court of the United States
has expressly determined that “a suspect’s awareness of all the possible subjects of
questioning in advance of interrogation is not relevant to determining whether the suspect
12
Colorado v. Connelly, 479 U.S. 157, 169-70 (1986); Oursbourn v. State, 259 S.W.3d 159,
170 (Tex. Crim. App. 2008).
13
Moran v. Burbine, 475 U.S. 412, 422-23 (1986).
14
Ripkowski v. State, supra, at 384 n.10 (citing Colorado v. Spring, supra, at 574).
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voluntarily, knowingly, and intelligently waived his Fifth Amendment privilege.”15 After all,
the appellant was expressly informed that “anything” he said may be used against him,16 and
the interrogating officers said and did nothing that could reasonably have deceived him into
believing otherwise. Indeed, it became obvious to the appellant immediately after the
Miranda warnings were administered that the interrogators had no interest in questioning him
about the traffic warrant and wanted only to elicit a statement about the murder. It is
inconceivable that the appellant could have been tricked into thinking that the warnings that
had just been read to him, and which he had just acknowledged, applied only to questioning
about traffic infractions, about which the police displayed no interest at all.
The other circumstance upon which the appellant relies—that he was under the
influence of heroin when the Miranda warnings were administered—is equally unavailing.
First, the appellant’s assertion that his heroin intoxication rendered his apparent waiver
involuntary is foreclosed as a matter of law, at least as a matter of federal constitutional law.
Although the record demonstrates that the police were told shortly after the interrogation
began that the appellant had “shot up” with heroin just before he was arrested, any tendency
that the influence of heroin may have had to overbear his will to resist waiving his Miranda
15
Colorado v. Spring, supra, at 577.
16
Id. (“This Court’s holding in Miranda specifically required that the police inform a criminal
suspect that he has the right to remain silent and that anything he says may be used against him.
There is no qualification of this broad and explicit warning. The warning, as formulated in Miranda,
conveys to a suspect the nature of his constitutional privilege and the consequences of abandoning
it.”).
Leza – 8
rights was due to no causative action on the part of the police, and therefore cannot serve to
undermine the voluntariness of his subsequent statements for Fifth Amendment purposes.
The Fifth Amendment privilege against self-incrimination, we have recognized, “is not
concerned ‘with moral and psychological pressures to confess emanating from sources other
than official coercion.’ If the appellant’s [drug] use . . . alone impelled him to confess, that
is of no constitutional consequence.” 17
The appellant’s heroin use does have a bearing on his comprehension, however, and
is a factor that is relevant to determining whether this Miranda waiver was knowing and
intelligent.18 We cannot reject the appellant’s argument in this regard, then, as a matter of
law. At the pre-trial hearing on the appellant’s motion to suppress, he presented an expert
in behavioral pharmacology who testified that, in his opinion, the appellant was obvioiusly
under the influence of heroin intoxication during the interrogation. And while that influence
seemed to dissipate over the course of the three-hour interrogation, at least at the outset,
when the Miranda warnings were administered and the appellant signed the acknowledgment
of those warnings ostensibly indicating that he understood them, the appellant’s capacity to
pay attention and make informed decisions based on the information that was being imparted
to him was impaired. But the trial court was not obliged to credit this testimony over that of
17
Ripkowski v. State, supra, at 384 (quoting Colorado v. Connelly, supra, at 170).
18
Id. (drug use, though not relevant to voluntariness query, is relevant to whether the accused
“was aware of his rights and of the consequences of waiver.”).
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the detaining and interrogating officers. They maintained at the pre-trial hearing, as had the
“various” police officers who testified in Ripkowski,19 that the appellant was awake and alert,
appeared to comprehend the warnings and the questions propounded to him, and was
coherent and appropriate in his responses;20 and that, moreover, in light of their prior
experience in dealing with heroin users, the appellant did not appear to them to be under its
influence at all, much less to the extent that he could not comprehend the proceedings.21 As
in Ripkowski v. State, here “the trial court was entitled to believe the State’s witnesses rather
than [the] appellant’s expert.”22 We cannot say that the trial court erred to conclude that the
State satisfied its burden by a preponderance of the evidence to establish a valid waiver, and
thus to deny the appellant’s motion to suppress to the extent it was based on federal
constitutional law.23 We overrule the appellant’s first point of error.
19
Id.
20
Although we defer to the trial court’s credibility determination, we observe that our own
review of the recorded oral statement supports the interrogating officers’ assertions in this respect.
21
Other than the appellant’s own assertion, memorialized in the recorded oral statement, that
he had “just shot up heroin,” the police officers had no indication that he was presently under its
influence. None thought that he appeared to be in any way intoxicated.
22
Ripkowski v. State, supra, at 384.
23
The appellant does not invoke comparable provisions of the Texas Constitution in this or
any other point of error challenging the admissibility of his oral statements.
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Waiver of Rights Under Article 38.22
Under Article 38.22, Section 3(a)(2) of the Code of Criminal Procedure, before an oral
recorded statement may be admitted into evidence, the State must show, inter alia, that “prior
to the statement but during the recording the accused is given the warning in Subsection (a)
of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any
rights set out in the warning.”24 The functional equivalent of this warning was administered
to the appellant,25 and he does not now contend otherwise. Insofar as we can tell from his
24
TEX . CODE CRIM . PROC. art. 38.22 § 3(a)(2). The warning prescribed in Section 2(a)
includes the following:
(1) [The accused] has the right to remain silent and not make any statement
at all and that any statement he makes may be used against him at his trial;
(2) any statement he makes may be used as evidence against him in court;
***
(5) he has the right to terminate the interview at any time[.]
25
The warnings card, which the principal interrogating officer expressly read aloud to the
appellant before obtaining his signature as an indication that he understood them, reads in relevant
part:
Before you are asked any questions, it is my duty as a police officer to advise you of
your rights and to warn you of the consequences of waiving those rights.
1. You have the right to remain silent.
2. You do not have to make a statement, oral or written, to anyone.
3. Any statement that you make will be used in evidence against you in a court of
law at your trial.
***
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brief, the appellant makes two challenges under state law. First, he argues that his waiver
of these statutorily prescribed rights was not voluntary, knowing and intelligent, for the same
reasons he asserted with respect to the purported waiver of his Miranda rights. For reasons
we have already explained, the failure to immediately inform the appellant of the subject of
the interrogation impacted neither the voluntariness nor the knowing and intelligent nature
of any waiver of his statutory rights—as a matter of law. Nor, for reasons we have also
explained, did the trial court err to conclude that the possibility that the appellant was under
the influence of heroin had no impact on the knowing and intelligent nature of any waiver
of his statutory rights. However, to decide whether the trial court may have erred to conclude
that heroin intoxication did not impact the voluntariness of the appellant’s waiver with
respect to his statutory rights, we must undertake some additional analysis.
As we have noted, for purposes of the Fifth Amendment, waiver of the privilege
against compelled self-incrimination during custodial questioning can be deemed involuntary
only if it is a product of official coercion, intimidation, or deception. In Oursbourn v. State,
however, we recognized that a claim that a purported waiver of the statutory rights
enumerated in Article 38.22 is involuntary “need not be predicated on police overreaching.”26
6. If you decide to talk with anyone, you can, and you can stop talking to them at any
time you want.
7. The above rights are continuing rights which can by urged by you at any stage of
the proceedings.
26
259 S.W.3d at 172.
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Circumstances unattributable to the police that nevertheless adversely impact an accused’s
ability to resist reasonable police entreaties to waive his statutory rights, such as intoxication,
are “factors” in the voluntariness inquiry, though they “are usually not enough, by
themselves, to render a statement inadmissible under Article 38.22[.]” 27 The officer who
read the appellant his rights and conducted the bulk of the interrogation testified that she used
no force or threats with the appellant, that he did not seem to her to be at all intoxicated, and
that his ongoing cooperation in the interrogation appeared to her to be wholly voluntary. The
trial judge reviewed the recording of the interrogation and could measure the officer’s
perceptions with respect to the voluntariness of the appellant’s waiver for himself.
Moreover, even the appellant’s expert acknowledged that, at least by the time the appellant
ultimately admitted his role in the offense, several hours into the interview, he “was not
intoxicated and impaired in judgment and decision making.” The expert could not say
exactly how soon before the interrogation began that the appellant may have actually ingested
heroin. From all these circumstances, we think the trial court could rationally conclude that
the appellant’s heroin intoxication, if any, at the beginning of the interview when his
statutory rights were read to him and the interrogation began, was not so acute as to
overcome his capacity to resist reasonable, non-coercive tactics by the police to persuade him
to waive his statutory rights. The trial court’s conclusion that the appellant’s waiver of his
Article 38.22 rights was voluntary is supported by the record, and we defer to it.
27
Id. at 173.
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In his second challenge under this point of error, the appellant also appears to argue
that Article 38.22 was violated in that the police failed to obtain an express waiver on the
recording of the oral statement itself, as required by Section 3(a)(2). The appellant never
presented this particular argument in the trial court for a ruling, however, and so he has not
preserved it for appeal.28 In any event, we have consistently held that waiver of Article 38.22
rights “may be inferred from actions and words of the person interrogated.” 29 While we have
also said that such implied waivers are not to be preferred,30 we have acknowledged that it
is within a trial court’s discretion to rely upon an implied waiver whenever the totality of the
28
See TEX . R. APP . P. 33.1(a) (“As a prerequisite to presenting a complaint for appellate
review, the record must show that . . . the complaint was made to the trial court by a timely request,
objection, or motion that . . . stated the grounds for the ruling that the complaining party sought from
the trial court 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 on the request,
objection, or motion, either expressly or implicitly[.]”). In his written motion to suppress, the
appellant did contend, inter alia, that his oral statement was “not taken in compliance with Article
38.22, § 3 of the Texas Code of Criminal Procedure,” but he did not specify what aspect of Section
3 was not satisfied. At the conclusion of the pre-trial hearing, counsel for the appellant argued only
that the appellant “was under the influence of heroin at the time he was interviewed, that he was not
capable of processing information, did not fully understand the warnings that were given to him, and
did not knowingly and voluntarily waive his rights under Miranda and 38.22.” He did not argue to
the trial court that the oral recorded statement should, moreover, be suppressed because no express
waiver actually appears on the recording as specifically required by Article 38.22, Section 3(a)(2).
29
Barefield v. State, 784 S.W.2d 38, 41 (Tex. Crim. App. 1989). See also Etheridge v. State,
903 S.W.2d 1, 16-17 (Tex. Crim. App. 1994) (expressly declining to overrule Barefield, and finding
an implied waiver where the accused was informed of his rights, declared that he understood them,
and agreed to continue with questioning); Rocha v. State, 16 S.W.3d 1, 12 (Tex. Crim. App. 2000)
(following Etheridge).
30
Watson v. State, 762 S.W.2d 591, 601 (Tex. Crim. App. 1988).
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circumstances, as reflected by the recording of the oral statement, supports it.31 This
construction of the statute, although it has been criticized by some,32 has the virtue of being
consistent with the Supreme Court’s most recent pronouncement with respect to what may
serve to constitute an implied waiver of the Fifth Amendment right to remain silent.33 We
overrule the appellant’s second point of error.
GRAND JURY INVOLVEMENT
In his multifarious third point of error, the appellant asserts that the trial court should
have either precluded the State from seeking the death penalty, or at least quashed the
indictment against him, on the ground that there was no grand jury involvement in the
decision to pursue the death penalty against him. His argument is predicated on Apprendi
31
Joseph v. State, supra, at 25-26 n. 7 (“[I]n a case where there is no express waiver, we search
not for a specific moment, but for a collective body of facts representing the interrogation as a
whole”); id. at 28-30 (Cochran, J., concurring) (trial court may infer waiver for purposes of Article
38.22 where the accused’s post-warning conduct is wholly consistent, under all the circumstances,
with waiver, but such cases are usually “close” and a reviewing court should defer to the trial court’s
conclusion regardless of whether the trial court finds waiver).
32
See, e.g., George E. Dix & John M. Schmolesky, 41 TEXAS PRACTICE: CRIMINAL PRACTICE
AND PROCEDURE § 16:96 (3d ed. 2011), at 136-7 (observing that our case law “assumes that the rule
that waiver may be implied means that an implied waiver is proved by evidence that the accused was
admonished of his rights and then made the statement without affirmatively demanding that those
rights be respected. This simply cannot be the case. At a bare minimum, an implied waiver . . .
should require that the accused, after being admonished . . ., was asked in substance whether he
nevertheless was willing to submit to questioning or to discuss the matter with the officer”).
33
See Berghuis v. Thompkins, supra (“Where the prosecution shows that a Miranda warning
was given and that it was understood by the accused, an accused’s uncoerced statement establishes
an implied waiver of the right to remain silent.”); id. at 2264 (“In sum, a suspect who has received
and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to
remain silent by making an uncoerced statement to the police.”).
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v. New Jersey,34 and its progeny, as well as various provisions of the federal bill of rights,
including the Sixth Amendment right to jury trial, the Eighth Amendment prohibition against
cruel and unusual punishment, and the Fourteenth Amendment Equal Protection Clause.35
The appellant identifies no portion of the record in which he sought either form of relief from
the trial court on the basis of any of these asserted grounds, and we are unable to find any.36
Nor does he maintain that his arguments are not subject to ordinary principles of procedural
default, in line with the regime this Court outlined in Marin v. State.37 Even if his claims
should have been preserved for appellate review, moreover, the appellant frankly
acknowledges that we have rejected his present arguments on numerous occasions in the
past.38 Likewise rejecting them today, we overrule the appellant’s third point of error.
JURY CHARGE ERRORS
Guilt Phase Special Issue
In his fourth point of error, the appellant makes a multifarious argument the gist of
which seems to be that the trial judge erred in failing to submit a special-issue jury instruction
34
530 U.S. 466 (2000).
35
U.S. CONST . amends. VI, VIII, & XIV, § 1.
36
TEX . R. APP . P. 33.1(a).
37
851 S.W.2d 275 (Tex. Crim. App. 1993).
38
See Roberts v. State, 220 S.W.3d 521, 535 & n.51 (Tex. Crim. App. 2007).
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at the guilt phase of trial. This special issue, he urges, would have assured satisfaction of
both the Eighth Amendment requirement of a minimum threshold culpable mental state to
justify the death penalty, under Tison v. Arizona,39 and the Sixth Amendment requirement
that the jury make every factual determination necessary to establish Tison’s constitutional
baseline for capital punishment, embodied in Apprendi v. New Jersey and its progeny.40 The
jury was instructed at the punishment phase, however, in accordance with Article 37.071,
Section 2(b)(2) of the Code of Criminal Procedure,41 and by its punishment verdict it found
that the appellant either “actually caused the death of [Allen] or did not actually cause the
death of [Allen] but intended to kill [Allen] or anticipated that a human life would be taken.”
We have held that this finding satisfies the dictates of Tison,42 and nothing we discern in
Apprendi or its progeny requires that the jury determination of baseline facts to justify
39
481 U.S. 137 (1987).
40
530 U.S. 466 (2000); Ring v. Arizona, 536 U.S. 584 (2002).
41
See TEX . CODE CRIM . PROC. art. 37.071, § 2(b)(2) (“On conclusion of the presentation of
the evidence, the court shall submit the following issues to the jury: * * * [I]n cases in which the
jury charge at the guilt or innocence stage permitted the jury to find the defendant guilty as a party
under Sections 7.01 and 7.02, Penal Code, whether the defendant actually caused the death of the
deceased or did not actually cause the death of the deceased but intended to kill the deceased or
another or anticipated that a human life would be taken.”).
42
See Ladd v. State, 3 S.W.3d 547, 573 (Tex. Crim. App. 1999) (“Article 37.071, § 2(b)(2),
allows the death penalty for defendants who participate in a crime and who actually anticipate that
a human life will be taken. Anticipating that a human life will be taken is a highly culpable mental
state, at least as culpable as the one involved in Tison v. Arizona, and we hold that, according to
contemporary social standards, the death penalty is not disproportionate for defendants with such a
mental state.”).
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imposition of the death penalty must necessarily occur at the guilt phase of trial.
Accordingly, without reaching the State’s contention that the appellant has procedurally
defaulted any such jury-charge error by failing to preserve it by request or objection at trial,43
we overrule the appellant’s fourth point of error.
Jury Unanimity
In point of error five, the appellant contends that the trial court committed reversible
error in failing to require jury unanimity at the guilt phase of trial with respect to whether he
was guilty, if at all, as a principal actor or as a party to the offense. The jury charge
authorized the jury to convict the appellant if he was the principal actor or a party under
either Section 7.02(a)(2) or Section 7.02(b) of the Penal Code,44 but it did not require the jury
to specify under which of these theories of criminal responsibility, if any, it found him liable.
To whatever extent that the appellant has preserved, or is required to preserve, his arguments
43
The State cites Ladd v. State, supra, at 564, for the proposition that, because the appellant’s
claim of jury-charge error is of constitutional dimension, he was required to preserve it in the trial
court, notwithstanding Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (opinion on
State’s motion for reh’g). However, less than a year after Ladd was decided, we issued our opinion
in Jimenez v. State, 32 S.W.3d 233 (Tex. Crim. App. 2000), in which we held (without reference to
Ladd) that jury-charge error of constitutional dimension may still be assayed for egregious harm
under Almanza, regardless of whether there was a corresponding objection in the trial court.
44
TEX . PENAL CODE § 7.02(a)(2) & (b) (“A person is criminally responsible for an offense
committed by the conduct of another if . . . acting with intent to promote or assist the commission
of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the
offense; or . . . [i]f, in the attempt to carry out a conspiracy to commit one felony, another felony is
committed by one of the conspirators, all conspirators are guilty of the felony actually committed,
though having no intent to commit it, if the offense was committed in furtherance of the unlawful
purpose and was one that should have been anticipated as a result of the carrying out of the
conspiracy.”).
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for appeal,45 we hold that there was no error in the jury charge in any event.
Both Article V, Section 13 of the Texas Constitution and Article 36.29(a) of the Texas
45
An appellant can raise a claim of error in the failure of the jury charge to require an
unanimous verdict on appeal regardless of whether he made that objection in the trial court; the only
limitation is that, if he made no trial objection, the record must demonstrate egregious harm before
he may obtain appellate relief on that basis. Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App.
2005). “Thus, we review alleged charge error by considering two questions: (1) whether error
existed in the charge; and (2) whether sufficient harm resulted from the error to compel reversal.”
Id. at 744. At the jury-charge conference at the conclusion of the guilt phase of trial, counsel for the
appellant first objected that there was no evidence to support submission of the conspiracy theory
of criminal liability under Section 7.03(b). When this objection was overruled, he continued:
[DEFENSE COUNSEL]: Your Honor, there is one thing that I just realized
I didn’t place on the record. * * * That if you decide to leave the conspiracy charge
in, then we would want a special issue in addition to the parties language to avoid a
general verdict, and so that it can be argued as a general verdict on analysis with the
Court of Criminal Appeals.
THE COURT: I don’t know what you’re talking about, so you’ve got to give
it to me. Show it to me. What do you want?
[DEFENSE COUNSEL]: That they decide whether they find him guilty as
a law of parties or they find him guilty as a conspiracy that it’ll be separated out.
THE COURT: Okay, it’s denied.
It is difficult to determine from this trial colloquy precisely the extent of jury unanimity the appellant
was seeking. Did he want an instruction that would require the jury only to specify which theory of
party responsibility, if any, it found the appellant liable under? Did he want an instruction that
would require the jury to specify only whether it found the appellant guilty as a principal actor or a
party, without necessarily specifying the theory of party responsibility? Or did he want an instruction
that would require the jury to specify both whether the appellant was guilty as a principal actor or
a party, and also, if as a party, to specify the particular theory of party liability? (The fact that his
request was made contingent on the trial court submitting the conspiracy theory of criminal
responsibility suggests that appellant was requesting only an instruction that would require the jury
to specify which theory of parties responsibility, if any, it found—but we cannot be certain.)
Because we do not believe the trial court would have erred in failing to give any of these alternative
instructions, however, we need not assay harm, egregious or otherwise.
Leza – 19
Code of Criminal Procedure require unanimous jury verdicts in all felony cases.46 Whether
the jury must be unanimous with respect to a particular fact or issue is, we have held,
“primarily a question of legislative intent.”47 Moreover, we have said, “[i]n deciding what
elements and facts a jury must unanimously agree on, courts implement the legislative intent
behind the penal provision.”48 In Pizzo v. State, we elaborated:
To discern what a jury must be unanimous about, appellate courts examine the
statute defining the offense to determine whether the Legislature created
multiple, separate offenses, or a single offense with different methods or
means of commission. Jury unanimity is required on the essential elements of
the offense but is generally not required on the alternate modes or means of
commission. Therefore, it is necessary to identify the essential elements or
gravamen of an offense and the alternate modes of commission, if any. This
is accomplished by diagraming the statutory text according to the rules of
grammar. The essential elements of an offense are, at a minimum: (1) the
subject (the defendant); (2) the main verb; (3) the direct object if the main verb
requires a direct object (i.e., the offense is a result-oriented crime); the specific
occasion, and the requisite mental state. The means of commission or
nonessential unanimity elements are generally set out in adverbial phrases that
describe how the offense was committed. Such phrases are commonly
preceded by the preposition “by.” 49
Although this “eighth-grade grammar” approach, first suggested by Judge Cochran in her
46
TEX . CONST . art. V, § 13; TEX . CODE CRIM . PROC. art. 36.29(a).
47
Stuhler v. State, 218 S.W.3d 706, 718 (Tex. Crim. App. 2007); Jefferson v. State, 189
S.W.3d 305, 312 (Tex. Crim. App. 2006).
48
Landrian v. State, 268 S.W.3d 532, 536 (Tex. Crim. App. 2008) (emphasis added).
49
Pizzo v. State, 235 S.W.3d 711, 714-15 (Tex. Crim. App. 2007) (emphasis added) (internal
quotation marks and citations omitted).
Leza – 20
concurring opinion in Jefferson v. State,50 “will not necessarily work invariably, in every
scenario, to accurately identify legislative intent[,]”51 we have deemed it generally useful and
have since adopted it as a “rule of thumb” for that purpose.52
In his brief, the appellant begins his argument from the premise that “[t]o unanimously
convict under the law of parties, the jury must find all the elements of the felony offense
[presumably capital murder] unanimously, and also find all the elements of the law of parties
unanimously.”53 He proceeds from this uncritical premise to apply the eighth-grade-grammar
rule of thumb to the statutory language of Sections 7.02(a) and 7.02(b) of the Penal Code in
an attempt to discern the “elements” of parties liability. But these are not the penal
provisions that define the offense of capital murder; they do not identify the elements or
gravamen of that offense. At best they operate like adverbial phrases, defining not the
prohibited conduct that comprises capital murder (or any other criminal offense, for that
matter), but conditions by which an accused may be deemed criminally responsible for the
conduct of another that satisfies the elements or gravamen of capital murder (or any other
criminal offense). They describe alternative manners by which an accused may be held
50
189 S.W.3d at 315.
51
Pizzo v. State, supra, at 722 (Price, J., concurring).
52
Stuhler v. State, supra.
53
Appellant’s Brief, at 74.
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accountable for the conduct of another who has committed the constituent elements of a
criminal offense, but they in no way define the offense itself. Where, as is the case here, the
evidence is compelling that an accused is guilty of every constituent element of the alleged
penal offense—either as a principal actor or under some theory of party liability—but there
remains evidentiary play with respect to his precise role in that offense, we think it would be
plainly absurd to require the jury to acquit the accused unless it can unanimously determine
his status as a principal actor or a party and, if the latter, what his exact party accountability
might be.54 Reasoning similarly, several courts of appeals in Texas have concluded that the
Legislature did not intend that a jury should have to achieve unanimity with respect to
whether an accused was guilty of capital murder as a principal actor or as a party, or with
respect to any particular statutory alternative by which he might be found liable as a party.55
We agree, and hold that there was no error in the jury charge. The appellant’s fifth point of
error is overruled.
JUDICIAL BIAS
In his sixth point of error, the appellant maintains that his trial was fatally unfair
54
See Jefferson v. State, supra, at 314 (“We believe that it would be . . . absurd to set appellant
free because, for example, six jurors may have believed that he struck the fatal blow to the child
while six other jurors may have believed he failed to pick up the phone and call 9-1-1 to seek
medical help for a child who was obviously very seriously injured and in great distress.” (quotation
marks omitted.)).
55
Hanson v. State, 55 S.W.3d 681, 694-95 (Tex. App.—Austin 2001, pet. ref’d); Holford v.
State, 177 S.W.3d 454, 462-63 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d); Randall v. State,
232 S.W.3d 285, 293-94 (Tex. App.—Beaumont 2007, pet. ref’d).
Leza – 22
because the judge who presided over it was popularly elected. He argues that only a judge
whose tenure depends exclusively upon continued good behavior while in office is capable
of resisting the ineluctable public pressure to assure convictions in capital prosecutions. Any
conviction obtained before such a judge, he contends, must of necessity violate due process
under the Fifth and Fourteenth Amendments and deprive him of a reliable sentencing
mechanism in violation of the Eighth Amendment.56 The appellant directs us to nowhere in
the record where any such complaints were registered in the trial court, nor have we found
any. Nor does he now offer any justification for treating these arguments as immune from
ordinary principles of procedural default,57 in contemplation of the framework for error
preservation elaborated in Marin v. State.58 For this reason, we regard his arguments under
this point of error as inadequately briefed and decline to reach their merits.59
MOTION FOR MISTRIAL
In his tenth point of error, the appellant urges us to order a new punishment hearing
because the trial court erred in failing to grant his request for a mistrial at that stage of the
trial. Having found certain testimony of a prison guard to have been admitted erroneously,
56
U.S. CONST . amends. V, VIII, & XIV, § 1.
57
TEX . R. APP . P. 33.1(a).
58
851 S.W.2d 275 (Tex. Crim. App. 1993).
59
TEX . R. APP . P. 38.1(i).
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the trial court instructed the jury in no uncertain terms to disregard it. The appellant argues
that the testimony was so inflammatory that no instruction to disregard it could possibly
prove efficacious. For its part, the State responds that no instruction to disregard was called
for because the testimony was properly admitted in the first place. We agree with the State.
The witness, Sergeant James Porter, was a guard at the Bexar County Jail. He
testified at the punishment phase of trial that, on June 1, 2008, he had an encounter with the
appellant while the appellant was incarcerated pending trial. On that day, against
instructions, the appellant had left his cell door open, and Porter took the opportunity to “just
look around” in his absence.
Q. Okay. And so, when you went into his cell, what happened?
A. While I was in his cell, he had come up the stairs behind me and came
down to the cell, and when I noticed him there, I came out.
Q. Okay.
A. And he said, “What were you doing in my cell?” I said, “You should have
shut the door like I told you.” And he looked at me and said to me, just as
plain as I’m talking to you, just as calm as he could be, “If you go in my cell
again, I’ll fucking kill you.” And I said, “Excuse me, sir?” He said, “You
heard me. I’ll throw you off of this tier. I’ll fucking kill you.” I said, “Fair
enough.”
I turned around. I went down the steps, I went and wrote a disciplinary
report, one-dash-one, threats, terroristic threats, and sent it up to the Sergeant’s
office[.]”
A short time after this testimony, the appellant objected on the basis that Porter’s rendition
of the appellant’s threat did not comport with a description contained in the pretrial notice
Leza – 24
provided by the State with respect to this incident. On this basis, the trial court categorically
instructed the jury to disregard the testimony it had already heard from Porter:
Ladies and gentlemen, the last witness, Sergeant James Porter, I’m
ordering you to disregard anything he may have said during his testimony.
You’re not to take it into consideration for any purpose at this time. Okay?
The appellant immediately requested a mistrial, which the trial court denied.
Article 37.071, Section 2(a)(1) of the Code of Criminal Procedure provides that, in
a capital punishment trial, “[t]he introduction of evidence of extraneous conduct is governed
by the notice requirements of Section 3(g), Article 37.07."60 Under Section 3(g) of Article
37.07, “[o]n timely request, notice of intent to introduce evidence under this article shall be
given in the same manner required by Rule 404(b), Texas Rules of Evidence.” 61 Rule 404(b),
in turn, requires “reasonable notice . . . in advance of trial of intent” to introduce extraneous
conduct evidence,62 but it does not directly speak to a level of specificity. For notice of
unadjudicated extraneous misconduct to be “reasonable” for purposes of Section 3(g) of
Article 37.07, and hence, Article 37.071, Section 2(a)(1), it must include “the date on which
and the county in which [the extraneous misconduct] occurred and the name of the alleged
60
TEX . CODE CRIM . PROC. art. 37.071, § 2(a)(1).
61
TEX . CODE CRIM . PROC. art. 37.07, § 3(g).
62
TEX . R. EVID . 404(b).
Leza – 25
victim of the [extraneous misconduct].”63 The notice that the State provided in this case
easily satisfies this minimum statutory threshold for reasonableness.
The appellant’s trial commenced on May 11, 2009. The first word that the appellant
received of Porter’s proposed testimony came in the State’s first supplemental notice, which
it served on the appellant on March 6, 2009, more than two months before trial. That notice
read:
On or about May 1, 2008, in Bexar County, Texas, while an inmate at
the Bexar County Jail, Defendant threatened Officer J. Porter (badge #3135)
by stating either exactly or something to the effect of: “I’m here on capital
murder. I ain’t got nothing to lose. If you go in my cell again or mess with me
in any way I’m going to make you regret it. I’m going to do something bad to
you. You can write me up. I don’t give a fuck. But it isn’t a threat, it is a
promise.”
In its fourth supplemental notice, served on the appellant on April 23, 2009, the State
corrected the date to June 1, 2008. Otherwise, the notice was identical. And finally, on May
8, 2009, three days before trial commenced, the State served the appellant with its sixth and
final supplemental notice, which was identical to the notice provided in its fourth
supplemental notice except that for the first time it added a sentence: “A short time later,
defendant also threatened to throw Officer Porter off the second tier of the Unit CD.”
We fail to see how the State’s notice could reasonably be deemed deficient. By April
19th —almost three weeks before trial began—the appellant had been formally informed of
all of the information statutorily essential to “reasonable notice”: where, when, and at whom
63
TEX . CODE CRIM . PROC. art. 37.07, § 3(g).
Leza – 26
the extraneous conduct was directed. What the conduct included was also substantially
supplied, along with the caveat that the quoted threat may be an approximation—“something
to the effect of” the language conveyed in the notice. By three days prior to the first day of
trial, the only information missing from the State’s notice was the express death threat. But
by that time the appellant had long been informed that the State intended to prove that he had
promised to “do something bad” to Porter. Under these circumstances, the record fails to
support the trial court’s conclusion that the State failed to provide “reasonable notice” of
Porter’s testimony in contemplation of Articles 37.071, Section 2(a)(1), Article 37.07,
Section 3(g), and Rule 404(b). It was not inadmissible on that account.
When the trial court nevertheless instructed the jury in unmistakable terms to
disregard Porter’s testimony, the appellant enjoyed a windfall. If, as the appellant argues,
the trial court’s instruction to disregard it was inefficacious, this only means that the jury may
have considered unobjectionable evidence that was manifestly relevant to the issue of his
future dangerousness. Under these circumstances, we decline to hold that the trial court’s
denial of the motion for mistrial constituted reversible error. Accordingly, we overrule the
appellant’s tenth point of error.
RIGHT TO PRESENT A COMPLETE PUNISHMENT DEFENSE
The appellant maintains in his eleventh point of error that his federal constitutional
right to present a complete defense to the death penalty was compromised when the trial
court refused to admit proffered punishment-phase testimony of an out-of-court statement
Leza – 27
made by his girlfriend and accomplice, Dolores Trevino, to his sister, Amanda Leza.
According to testimony from Amanda that was adduced outside the presence of the jury,
Trevino admitted to Amanda shortly after the offense was committed that she had been the
one who had cut Allen’s throat, and that she had acted alone. The appellant contends that
this out-of-court statement was admissible as a statement against penal interest under Rule
803(24) of the Texas Rules of Evidence.64 In failing to admit this proffered out-of-court
statement, the appellant argues, the trial court committed error of a federal constitutional
dimension under the Supreme Court’s recent holding in Holmes v. South Carolina.65
At trial, however, although the appellant argued that Trevino’s out-of-court statement
satisfied the criteria for admissibility under Rule 803(24), he never alerted the trial court in
any way that exclusion of the statement would violate any federal constitutional right. Nor
does he argue now, as he did at trial, that its exclusion violated state law. On appeal, he
64
See TEX . R. EVID . 803(24) (“The following are not excluded by the hearsay rule, even though
the declarant is available as a witness: * * * Statement Against Interest. A statement which . .
. at the time of its making . . . so far tended to subject the declarant to . . . criminal liability . . . that
a reasonable person in the declarant’s position would not have made the statement unless believing
it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not
admissible unless corroborating circumstances clearly indicate the trustworthiness of the
statement.”).
65
547 U.S. 319, 324 (2006) (“State and federal rulemakers have broad latitude under the
Constitution to establish rules excluding evidence from criminal trials. This latitude, however, has
limits. Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the
Compulsory Process Clause of the Sixth Amendment, the Constitution guarantees criminal
defendants a meaningful opportunity to present a complete defense. This right is abridged by
evidence rules that infringe upon a weighty interest of the accused and are arbitrary or
disproportionate to the purposes they are designed to serve.” (citations and internal quotation marks
omitted)).
Leza – 28
argues only that constitutional error occurred—asserting, for example, that the error was
harmful exclusively by the constitutional criteria for harmless error embodied in Rule 44.2(a)
of the Rules of Appellate Procedure, rather than Rule 44.2(b),66 the provision that governs
harm analysis for non-constitutional errors. Because the only argument that the appellant
now pursues on appeal with respect to the exclusion of Trevino’s out-of-court statement was
not preserved for appeal by a contemporaneous objection,67 and he fails to argue that the
constitutional right upon which he relies is, or that we should hold it to be, immune to
ordinary principles of procedural default,68 we overrule his eleventh point of error without
reaching the merits.
VICTIM IMPACT INSTRUCTIONS
By way of point of error twelve, the appellant asserts error in the trial court’s failure
to include certain instructions in the jury charge at the punishment phase, designed to limit the
jury’s consideration of victim-impact evidence.69 The appellant directs us to no place in the
66
TEX . R. APP . P. Rule 44.2.
67
TEX . R. APP . P. 33.1(a). Under this rule, an objection must be both timely and specific,
alerting the trial court to any and every legal basis upon which the appellant should desire to
predicate a claim later on appeal.
68
Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993). Even after the State asserted in
its reply brief that the appellant had forfeited his federal constitutional claim, the appellant failed to
argue, in his response to the State’s reply brief, either that he had in fact preserved the error or that
preservation was not required under the Marin framework.
69
The instructions that the appellant argues should have been submitted were to the effect that:
Leza – 29
record in which he may have requested such instructions or objected to their absence, and we
have found none; nor does he argue, in the absence of such a request or objection, that the
record demonstrates he was egregiously harmed, excusing him from the burden of preserving
jury-charge error under Almanza v. State.70 In any event, as the State points out, we have
lately held, on more than one occasion, that a trial court does not err in failing to submit the
very instructions the appellant now contends should have been submitted on appeal.71
Because the appellant offers no justification for reconsidering these recent holdings, we
overrule his twelfth point of error.
CONSTITUTIONAL CHALLENGES
In his seventh point of error, the appellant challenges the constitutionality of the so-
(1) the jury’s consideration of victim impact evidence should not be conducted in connection
with the future dangerousness issue;
(2) the jury’s consideration of victim impact evidence does not relieve the state of its burden to
prove the future dangerousness special issue beyond a reasonable doubt;
(3) the jury should disregard victim impact evidence that was not shown to be within the
knowledge or reasonable expectation of the defendant; and
(4) the jury should not make a comparative worth analysis of the value of the victims to their
families and community compared to the defendant or other members of society.
70
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (opinion on State’s motion for
reh’g).
71
Mays v. State, 318 S.W.3d 368, 391 & n.85 (Tex. Crim. App. 2010); Saldano v. State, 232
S.W.3d 77, 105-107 (Tex. Crim. App. 2007).
Leza – 30
called “10-12 rule”72 and the provision that prohibits the defense from informing the jury that
a failure to agree on a special issue would result in life rather than a death sentence.73 The
appellant argues that these aspects of Article 37.071 result in arbitrariness in the imposition
of the death penalty. We have repeatedly rejected these claims,74 and we likewise reject them
today. We overrule the appellant’s seventh point of error.
In his eighth, ninth, and thirteenth points of error, the appellant contends that the trial
court committed constitutional error in failing to include in the jury charge at the punishment
phase of trial definitions of the words “militates,” “criminal acts of violence,” and
“probability.”75 The appellant recognizes that we have previously rejected these claims,76 but
requests that we reconsider them. He has not distinguished his case from those in which these
same claims were denied. We decline to reconsider our previous holdings and overrule points
of error eight, nine, and thirteen.
SUPPRESSION OF EXCULPATORY EVIDENCE
With respect to his fourteenth and final point of error, the appellant has attached two
72
TEX . CODE CRIM . PROC. art. 37.071 §§ 2(d) & (f)(2).
73
TEX . CODE CRIM . PROC. art. 37.071 § 2(a)(1).
74
Russeau v. State, 171 S.W.3d 871, 886 (Tex. Crim. App. 2005); Druery v. State, 225
S.W.3d 491, 509 (Tex. Crim. App. 2007).
75
See TEX . CODE CRIM . PROC. art. 37.071 §§ 2(b)(1) & (d)(1).
76
Russeau v. State, 291 S.W.3d 426, 434-35 (Tex. Crim. App. 2009).
Leza – 31
letters that his appellate counsel received from an assistant district attorney, apparently in
relation to another case altogether. These letters informed appellate counsel that, since the
appellant’s trial, a certain Bexar County deputy sheriff, not a witness at either phase of the
appellant’s own trial, had been charged with aggravated perjury and abuse of official capacity.
When the relevance of these charges to appellant’s circumstances was not immediately
apparent to appellate counsel, she contacted the assistant district attorney for additional
information, but none was provided. Appellate counsel now avers that she believes the letter
was most likely sent to her by mistake, but in an abundance of caution she brings a claim that
the State has violated the appellant’s due-process rights under Brady v. Maryland,77 by
suppressing evidence favorable to him at the time of his trial. Obviously, the letters upon
which the appellant now relies are not any part of the appellate record in this case, and we
could not predicate any appellate relief upon them even if they did establish a Brady
violation.78 We therefore overrule the appellant’s fourteenth point of error—without
prejudice, of course, to pursue any Brady claim that further investigation might turn up
77
373 U.S. 83 (1963).
78
See, e.g., Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004) (“An appellate
court may not consider factual assertions that are outside the record, and a party cannot circumvent
this prohibition by submitting an affidavit for the first time on appeal.” (footnotes omitted));
Thompson v. State, 612 S.W.2d 925, 928 (Tex. Crim. App. 1981) (“Articles attached to briefs are
not properly before this Court as evidence.”); George E. Dix & John M. Schmolesky, 43B TEXAS
PRACTICE : CRIMINAL PRACTICE AND PROCEDURE § 55:48 (3rd ed. 2011), at 116 (“Perhaps the most
basic characteristic of the appellate record is that it is limited to matters before the trial court. An
appellate court may not consider such extra-record materials as affidavits attached to appellate
briefs.”).
Leza – 32
pursuant to his initial application for post-conviction writ of habeas corpus brought under
Article 11.071 of the Code of Criminal Procedure.79
CONCLUSION
Finding no error, we affirm the judgment of the trial court.
DELIVERED: October 12, 2011
PUBLISH
79
TEX . CODE CRIM . PROC. art. 11.071.
Leza, Armando
Combined Opinion