NUMBER 13-13-00207-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JOSE LUIS ALVAREZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 370th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria
Memorandum Opinion by Justice Longoria
A jury found Jose Luis Alvarez guilty of two counts of attempted capital murder of
a peace officer, see TEX. PENAL CODE ANN. § 15.01(a) (West 2011) (“criminal attempt”);
id. § 19.03(a)(1) (West Supp. 2013) (“capital murder”), and assessed a $10,000 fine and
a fifteen year prison sentence for each count, with the sentences to run concurrently. See
id. § 12.32(a) (West 2011) (“first degree felony punishment”); id. § 15.01(d) (stating that
an attempted offense “is one category lower than the offense attempted”); id. § 19.03(d)
(capital murder is a “capital felony”). The State also charged Alvarez with three counts of
aggravated kidnapping for the abduction of Jesus Martin Torres, Felix Garza, Jr., and
Juan Jesus Ramos. See id. § 20.04(b) (West 2011) (“A person commits an offense if the
person intentionally or knowingly abducts another person and uses or exhibits a deadly
weapon during the commission of the offense.”). The jury found Alvarez guilty of two of
the three alleged counts of aggravated kidnapping (i.e., for the abduction of Jesus Martin
Torres and Juan Jesus Ramos), and Alvarez received community supervision for a term
of ten years for those offenses. Alvarez now appeals his convictions by seven issues in
which he contends, inter alia, that the evidence was insufficient to support the jury’s guilty
verdict on the two counts of attempted capital murder, see Jackson v. Virginia, 443 U.S.
307, 316 (1979) (“[E]ssential of the due process guaranteed by the Fourteenth
Amendment [is] that no person shall be made to suffer the onus of a criminal conviction
except upon sufficient proof-defined as evidence necessary to convince a trier of fact
beyond a reasonable doubt of the existence of every element of the offense.”), and that
he did not receive a fair and impartial trial due to various errors committed by the trial
court. See Nebraska Press Assn. v. Stuart, 427 U.S. 539, 551 (1976) (“The Sixth
Amendment . . . right to jury trial guarantees to the criminally accused a fair trial by a
panel of impartial, indifferent jurors. A fair trial in a fair tribunal is a basic requirement of
due process.”) (quotations omitted). For the reasons set forth below, we overrule
Alvarez’s issues and affirm the trial court’s judgment.
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I. SUFFICIENCY OF THE EVIDENCE
In his first and second issues, Alvarez challenges the sufficiency of the evidence
to support the jury’s guilty verdict on the two counts of attempted capital murder.
A. Standard of Review
When we review the sufficiency of the evidence to support a verdict under the
sufficiency standard set out in Jackson v. Virginia, “the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.”
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S.
at 307). “This standard accounts for the fact[-]finder’s duty to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts.” Id. (quotations omitted). “[W]e determine whether the necessary
inferences are reasonable based upon the combined and cumulative force of all the
evidence when viewed in the light most favorable to the verdict.” Id. (quotations omitted).
“Our review of all of the evidence includes evidence that was properly and improperly
admitted.” Id. “When the record supports conflicting inferences, we presume that the
fact[-]finder resolved the conflicts in favor of the prosecution and therefore defer to that
determination.” Id. “Direct and circumstantial evidence are treated equally.” Id.
“Circumstantial evidence is as probative as direct evidence in establishing the guilt of an
actor, and circumstantial evidence alone can be sufficient to establish guilt.” Id.
B. Applicable Law
We measure the sufficiency of the evidence by the elements of the offense as
defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240
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(Tex. Crim. App. 1997). “Such a charge [is] one that accurately sets out the law, is
authorized by the indictment, does not unnecessarily increase the State’s burden of proof
or unnecessarily restrict the State’s theories of liability, and adequately describes the
particular offense for which the defendant was tried.” Villarreal v. State, 286 S.W.3d 321,
327 (Tex. Crim. App. 2009) (quotations omitted).
In relevant part, the Texas Penal Code provides, “A person commits an offense if
the person commits murder as defined under Section 19.02(b)(1) and . . . the person
murders a peace officer . . . who is acting in the lawful discharge of an official duty and
who the person knows is a peace officer . . . .” TEX. PENAL CODE ANN. § 19.03(a)(1).
Under Section 19.02(b)(1) of the Texas Penal Code, a person commits the offense of
murder “if he . . . intentionally or knowingly causes the death of an individual.” Id. §
19.02(b)(1) (West 2011). The Texas Penal Code also provides that “[a] person commits
an offense if, with specific intent to commit an offense, he does an act amounting to more
than mere preparation that tends but fails to effect the commission of the offense
intended.” Id. § 15.01(a).
“A person is criminally responsible as a party to an offense if the offense is
committed by his own conduct, by the conduct of another for which he is criminally
responsible, or by both.” Id. § 7.01(a) (West 2011). “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.” Id. § 7.02(a)(2) (West 2011). “In
determining whether the accused participated as a party, the court may look to events
occurring before, during and after the commission of the offense, and may rely on actions
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of the defendant which show an understanding and common design to do the prohibited
act.” Ransom v. State, 920 S.W.3d 288, 302 (Tex. Crim. App. 1994) (en banc) (quotations
omitted).
The Texas Penal Code also provides as follows:
If, 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.
TEX. PENAL CODE ANN. § 7.02(b). The Texas Penal Code provides in relevant part:
CRIMINAL CONSPIRACY.
(a) A person commits criminal conspiracy if, with intent that a felony be
committed:
(1) he agrees with one or more persons that they or one or more of
them engage in conduct that would constitute the offense; and
(2) he or one or more of them performs an overt act in pursuance of
the agreement.
(b) An agreement constituting a conspiracy may be inferred from acts of the
parties.
Id. § 15.02(a)–(b) (West 2011).
In this case, the indictment alleged that Alvarez committed two counts of attempted
capital murder by “shoot[ing] [Deputy] Hugo Rodriguez with a firearm” and by “shoot[ing]
at or in the direction of [Deputy] Manuel Morales [with a firearm] . . . .” 1 Alvarez asserts,
and the State agrees, that for purposes of our sufficiency review, the essential elements
of the charged offenses are as follows: (1) Alvarez and his coconspirators engaged in “a
1 Although the State did not allege in the indictment that it would prove the two counts of attempted
capital murder by the law of parties, “it is well-settled that the law of parties need not be pled in the
indictment.” Marable v. State, 85 S.W.3d 287, 287 (Tex. Crim. App. 2002).
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conspiracy to commit aggravated kidnapping,” (2) “one of the coconspirators committed
attempted capital murder” in the course of committing the aggravated kidnapping, (3) “the
attempted capital murder was committed in furtherance of the aggravated kidnapping,”
and (4) “the attempted capital murder was an offense that should have been anticipated
as a result of carrying out the conspiracy.”
C. Anticipation of Secondary Felony
In his first issue, Alvarez contends that the evidence is insufficient to prove as to
either count of attempted capital murder that he “should have anticipated that a
coconspirator would have attempted to kill a police officer during the course of the
kidnapping.” See id. § 7.02(b). Alvarez does not challenge the sufficiency of the evidence
to support the jury’s finding of guilt on the two counts of aggravated kidnapping. See id.
§ 20.04(b). Furthermore, Alvarez does not dispute that he and his coconspirators
engaged in a conspiracy to commit the aggravated kidnappings. See id. § 15.02(a)–(b).
Instead, Alvarez merely contends that the State failed to prove that either of the offenses
of attempted capital murder of a peace officer “was one that should have been anticipated
as a result of the carrying out of the conspiracy [to commit aggravated kidnapping].” Id.
§ 7.02(b).
As set forth above, the jury found that Alvarez committed two aggravated
kidnappings by using or exhibiting a deadly weapon during the commission of the
offenses. See id. § 20.04(b). The uncontroverted evidence produced by the State
established that during the course of the aggravated kidnappings, Alvarez and one of his
coconspirators, Daniel Perez, were detained in a traffic stop by Deputies Rodriguez and
Morales of the Hidalgo County Sheriff’s Office because the vehicle in which they were
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traveling matched the description of the vehicle used by the suspects in the aggravated
kidnappings, which had been reported to police earlier in the day.
At the time of the traffic stop, Alvarez was driving an extended-cab pickup truck,
his coconspirator, Daniel Perez, was in the front passenger seat, and the abducted
individuals, Ramos and Torres, were in the vehicle’s rear seats bound with duct tape.
Perez was armed with at least one firearm, a pistol. A second firearm, an assault rifle
with a bayonet, was also located inside the vehicle on the floorboard by the driver’s seat.
A large knife was located in the backseat. According to Ramos’s testimony, at the outset
of the traffic stop before the deputies approached the vehicle, Perez told him and Torres
“to stay quiet or he was gonna shoot . . . [them].”
Deputy Morales instructed Alvarez to exit the vehicle, and Alvarez complied with
the instruction. Deputy Morales escorted Alvarez to the rear of the vehicle and conducted
a pat-down search, which uncovered no weapons. Deputy Rodriguez then approached
the passenger side door of the truck to interview the other occupants of the vehicle. Perez
emerged from the truck firing his pistol at Deputy Rodriguez, who was struck by four of
the gunshots. Deputy Morales then saw Perez running towards the rear of the vehicle,
where he and Alvarez were standing. Deputy Morales moved to the driver’s side of the
vehicle. He then saw Alvarez and Perez standing together behind the vehicle. Perez
was pointing his pistol at Deputy Morales, who fired three rounds in their direction.
Although he was taken down to the ground by Perez’s gunshots, Deputy Rodriguez also
fired his weapon at Alvarez and Perez at or about the same time that Deputy Morales
was firing his weapon. Alvarez ducked behind the truck’s tailgate, but he still sustained
several gunshot wounds. Perez also sustained several gunshot wounds, one of which
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was to his head and was fatal. The deputies found Perez lying dead near the roadway.
His pistol was still in his hand with his finger on the trigger.
Based on the foregoing, we must decide whether the State proved that Alvarez
should have anticipated Perez committing attempted capital murder of two peace officers
as a result of the carrying out of the conspiracy to commit aggravated kidnapping. See
id. § 7.02(b). The Fort Worth Court of Appeals has summarized the relevant case law as
follows:
In virtually all of the Texas cases . . . in which an appellate court has found
legally . . . sufficient evidence to uphold a capital murder conviction under
the theory of criminal responsibility contained in section 7.02(b), there has
been evidence that the appellant was on notice that murder was a possible
result of the carrying out of a conspiracy to commit another felony.
Tippitt v. State, 41 S.W.3d 316, 323 (Tex. App.—Fort Worth 2001, no pet.) (citing Fuller
v. State, 827 S.W.2d 919, 932 (Tex. Crim. App. 1992); Green v. State, 682 S.W.2d 271,
285–86 (Tex. Crim. App. 1984); Simmons v. State, 594 S.W.2d 760, 764 (Tex. Crim. App.
1980); Ruiz v. State, 579 S.W.2d 206, 209 (Tex. Crim. App. [Panel Op.] 1979); Williams
v. State, 974 S.W.2d 324, 330 (Tex. App.—San Antonio 1998, pet. ref’d); Coleman v.
State, 956 S.W.2d 98, 102 (Tex. App.—Tyler 1997, pet. ref’d); Queen v. State, 940
S.W.2d 781, 788 (Tex. App.—Austin 1997, pet. ref’d); Alvarado v. State, 816 S.W.2d 792,
796 (Tex. App.—Corpus Christi 1991), aff’d as modified, 840 S.W.2d 442 (Tex. Crim.
App. 1992); Naranjo v. State, 745 S.W.2d 430, 433–34 (Tex. App.—Houston [14th Dist.]
1988, no pet.); Flores v. State, 681 S.W.2d 94, 96 (Tex. App.—Houston [14th Dist.] 1984),
aff’d, 690 S.W.2d 281 (Tex. Crim. App. 1985)).
Last year, the Texas Court of Criminal Appeals held that “a rational jury could find
beyond a reasonable doubt that [the] [a]ppellant should have anticipated his co-
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conspirator committing aggravated assault of a public servant as a result of carrying out
their conspiracy to deliver methamphetamine.” Anderson v. State, No. PD–0408–12, __
S.W.3d __, 2013 WL 6182427, at *7 (Tex. Crim. App. Nov. 27, 2013). The court reasoned
as follows:
It was reasonable for the jury to infer that Appellant should have anticipated
that the police could bust the drug transaction, and reasonable for the jury
to infer that Appellant should have anticipated that an officer could be
injured while attempting to bust the drug transaction. The evidence
supports the jury’s finding that Appellant should have anticipated the
aggravated assault of a public servant in furtherance of the conspiracy to
commit the offense of possession of a controlled substance with intent to
deliver.
Id. at *6. The court emphasized that “Section 7.02(b) does not require the State to prove
that Appellant actually anticipated the secondary felony, only that the crime is one that
should have been anticipated.” Id. at *4.
Following this reasoning, we conclude that it was reasonable for the jury to infer
that Alvarez should have anticipated that the police could “bust” him and his
coconspirators for the aggravated kidnappings, particularly once the deputies had
stopped Alvarez and Perez on suspicion that they were in the course of committing the
reported kidnappings. See id. at *6. According to the testimony of Torres, one of the two
victims in the vehicle at the time, both Alvarez and Perez were armed and Perez
threatened to “shoot” Torres and the other victim unless they “stay[ed] quiet.” From this
evidence, it was reasonable for the jury to infer that Alvarez and Perez continued their
conspiracy to commit aggravated kidnapping even after they were detained by the
deputies. Furthermore, under these circumstances, it was reasonable for the jury to infer
that Alvarez should have anticipated that Perez was ready, willing, and able to use deadly
force to further the conspiracy by shooting the victims, the deputies, or anyone else who
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got in his way. In sum, the evidence supports the jury’s finding that Alvarez should have
anticipated the attempted capital murder of the two peace officers in furtherance of the
conspiracy to commit aggravated kidnapping. See id. Accordingly, we overrule Alvarez’s
first issue.
D. Attempted Capital Murder of Deputy Morales
In his second issue, Alvarez contends that the evidence is “insufficient to prove
that the deceased coconspirator . . . attempted to kill Deputy Manuel Morales.” As set
forth above, the State produced evidence showing that after Perez gunned down Deputy
Rodriguez, he ran towards Alvarez and Deputy Morales. After Deputy Morales retreated
to the driver’s side of the vehicle, Perez pointed his pistol at Deputy Morales; however,
Perez was unable to fire a shot because Deputy Morales and Deputy Rodriguez opened
fire on Perez before he could pull the trigger. In fact, afterward, Perez’s dead body was
found with the pistol still in his hand and his finger on the trigger. From this evidence, it
was reasonable for the jury to find that Perez committed “an act amounting to more than
mere preparation that tends but fails to effect the commission of the offense intended,”
namely, capital murder. TEX. PENAL CODE ANN. § 15.01(a).
Nevertheless, Alvarez contends that the act of pointing a gun is not an act that
amounts to more than mere preparation for the offense of attempted capital murder. He
contends that something more is necessary, such as firing the weapon. We disagree.
The Texas Court of Criminal Appeals has squarely addressed this issue. See Godsey v.
State, 719 S.W.2d 578, 583 (Tex. Crim. App. 1986) (“Appellant contends that the act of
pointing a gun is not an act that amounts to more than mere preparation for the offense
of attempted murder. He contends that something more is necessary. We do not
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agree.”). For the reasons stated in Godsey, we reject Alvarez’s contention. See id. (“The
only remaining act for the commission of capital murder was for appellant to pull the
trigger and hit his target. His actions constituted more than mere preparation.”).
Accordingly, we overrule Alvarez’s second issue.
II. VOIR DIRE
In his third and fourth issues, Alvarez raises error that purportedly occurred during
voir dire.
A. Relevant Facts
During voir dire the following occurred:
[PROSECUTOR]: Anybody familiar with any of those
following -- I guess as -- we know them
as cartels? I’m sure everybody has
heard about one of them; right, at some
time or another? Should there be any
testimony -- and this is a double-edged
sword -- Should there be any testimony
that either of these cartels or a cartel
that’s not even on there was part of this
crime, are you automatically gonna say,
“Well, you know, I’m sitting here as a
juror. I’ve heard about these. I think I’m
gonna vote ‘not guilty’ because I don’t
want any part of this”?
Anybody feel that way in the first row?
Juror Number – I’m sorry. Your number?
PROSPECTIVE JUROR 5: 5.
[PROSECUTOR]: 5. Okay.
Anybody else? Juror Number 9.
Anybody else in the first row?
Okay. Second row, Juror Number 29.
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Anybody else on the second row?
Second row, Juror Number – I’m sorry. Is
it -- I should put on my glasses; right?
PROSPECTIVE JUROR 19: 19.
[PROSECUTOR]: 19. Okay. Thank you. And --
PROSPECTIVE JUROR 17: 17.
[PROSECUTOR]: 17.
Third row, Juror Number 31 --
PROSPECTIVE JUROR 37: 37.
[PROSECUTOR]: 37.
Back row, Juror Number – I’m sorry.
That’s 58 over here. I’m sorry. I skipped
Juror Number 36 back here in the back.
Juror Number 49. Anybody else? Did I
get everybody? Juror Number 53. And
Juror Number 34.
All right. What if I told you then by doing
that, you let them win? Right? Kind of
like this last 45 minutes. If we, as good
citizens -- which you all are here -- then
who’s gonna put a stop to them?
[DEFENSE COUNSEL]: Judge, I think he’s committing the jury to
issues of cartel --
[PROSECUTOR]: I’ll – I’ll withdraw the question, Judge, and
I’ll hit the other end of it.
THE COURT: Clear it up.
[PROSECUTOR]: Is there anybody here who’s gonna say,
“You know what? If there’s any
testimony, any evidence that he’s part of
the cartel” --
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[DEFENSE COUNSEL]: Again, Judge --
[PROSECUTOR]: A cartel --
[DEFENSE COUNSEL]: Again, Judge, he’s committing the jury
into that particular area, Judge.
THE COURT: Well, let him finish the question first.
[DEFENSE COUNSEL]: It’s not permissible.
[PROSECUTOR]: Are you gonna automatically find him
guilty because of that, and say, “You
know what? I hear anything about
cartels, any association whatsoever, just
the mention of it -- I don’t care what the
evidence is. I’m finding him guilty
because I don't want that here”?
Anybody feel that way? And, again,
you're entitled to feel that way.
First row?
[DEFENSE COUNSEL]: Judge, again --
THE COURT: Your objection is overruled.
[PROSECUTOR]: First row? Second row? Third row?
Juror Number 30 -- I'm sorry -- 34.
PROSPECTIVE JUROR 37: 37.
[PROSECUTOR]: And Juror Number 37?
PROSPECTIVE JUROR 37: Yes, sir.
[PROSECUTOR]: And anybody else? Back here -- Juror
Number 48, and Juror Number 46, and
Juror Number --
PROSPECTIVE JUROR 20: 20.
[PROSECUTOR]: 20. Anybody else that I missed?
Over here on this side?
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So you all are saying that you cannot be
a fair and impartial juror -- and only you
all can tell me. Okay?
Only you all can tell me. Those of you --
either way - - that raised your hands that
you would convict or you wouldn’t
convict; are you saying that you --
THE COURT: Well, let’s clear the record. Let’s clear
the record slightly because I think that . .
. [the prosecutor] is -- asked the right
questions, but when he’s summing it up,
then it’s gonna be unclear.
Be very, very careful and listen carefully
to the question that’s being asked.
Question first says: Would you
automatically do “X” or do “Y”, whatever
you may decide to do, simply because
there is a presentation of evidence that
may include the involvement of an
organization?
Remember I started off earlier by
mentioning that? That’s why I was
mentioning it. If an organization of this
type that has been discussed at this point
is involved or is presented, are you
automatically going to decide this case
simply on that fact? Never mind all of the
other evidence that may be presented.
Once that’s presented, you’re gonna find
not guilty because you fear or you're
going to find someone guilty because you
fear, as opposed to listening to all the
evidence and deciding the case. And
that may be or may not be a factor in the
case. But if it is a factor, then you have
to be able to follow your oath.
And remember what the oath is going to
be – It’s slightly different than what you
took today as an oath.
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You’re going to be asked to -- a true
verdict render in accordance with the
evidence presented here and the law that
applies to the case that the judge gives
you.
So in other words, you have to decide
this case on what’s presented here, and
they have to prove it in accordance with
the law. So if they prove the case beyond
a reasonable doubt, you find the
individual guilty. If they don’t prove their
case beyond a reasonable doubt, you
find the individual not guilty, whether or
not there’s evidence of any organization
being involved one way or the other.
Does everybody understand that?
Okay. Now, my understanding is: A
number of you testified -- because you're
under oath -- you took an oath -- that you
would automatically find someone not
guilty just because there may be
evidence submitted that an organization
is involved. And others testified that you
would automatically find him guilty
because of that, no matter what the
evidence was, or whether the State
proved their case beyond a reasonable
doubt, simply to take that individual off
the street and to avoid that whole
organization. You see that?
That’s what I heard. I heard both sides.
If you feel that way, one way or the other,
raise your hand up high. High, high, high.
Keep it up. First row? Okay. First row
can put them down.
Second row? Second row here?
Nobody?
Okay. Third row?
Fourth row?
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Okay. You may put your hands down.
PROSPECTIVE JUROR 54: I have a question.
THE COURT: Sure.
PROSPECTIVE JUROR 54: Has there ever been any retaliation of the
jury if there is an organization involved?
THE COURT: If you’re asking a question as to whether
or not there’s ever been a retaliation out
of my court, the answer is: No. If you’re
asking me whether you will be provided
protection: All jurors throughout the
county, whether you’re serving on a
criminal case or a civil case, are treated
the same. You are provided security.
You are provided a safe workplace
because you’re actually working. You’ll
be working for the county. And that’s all
I can tell you. All right?
PROSPECTIVE JUROR 8: I think also -- to add on to her question --
how accessible are our names?
THE COURT: You are Mr. [name of juror]; right? . . .
PROSPECTIVE JUROR 8: To the public.
THE COURT: [Name of juror], . . . I did that on purpose.
And the reason I did it on purpose is this:
Proceedings are public. If you are
selected on the jury, the Court is able to
protect --
PROSPECTIVE JUROR 8: Well, no --
THE COURT: -- identities, addresses, things like that
from the general public. But do the
defense lawyers, and the State’s
lawyers, and everyone else involved in
the legal process have access to it? Yes.
But the general public can be excluded
from that information.
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Any other questions?
All right. You may proceed.
B. Commitment Questions
In his third issue, Alvarez contends that the trial court erred in overruling his
objection to the State’s questions regarding Alvarez’s potential connection to the Gulf
Cartel. Alvarez argues that the questions were improper commitment questions.
1. Applicable Law
“[A]n attorney cannot attempt to bind or commit a prospective juror to a verdict
based on a hypothetical set of facts.” Standefer v. State, 59 S.W.3d 177, 180 (Tex. Crim.
App. 2001). “A commitment question is a question that commits a prospective juror to
resolve or to refrain from resolving an issue a certain way after learning of a particular
fact.” Davis v. State, 349 S.W.3d 517, 518 (Tex. Crim. App. 2011). The Texas Court of
Criminal Appeals has explained as follows:
These types of questions tend to require a “yes” or “no” answer, in which
one or both of the possible answers commits the jury to resolving an issue
a certain way. These questions can also ask the venire person to refrain
from resolving an issue on the basis of a fact that may be used to resolve
the issue, for example, the party could attempt to secure a commitment to
refrain from resolving the punishment issues in a capital case on the basis
of victim impact evidence. Commitment questions include those questions
that ask a prospective juror to set the hypothetical parameters for his or her
own decision-making. For example, the following question is a commitment
question asking the venire person to explain the parameters of his decision-
making: “What circumstances in your opinion warrant the imposition of the
death penalty?” Also, commitment questions may contain words such as
“consider,” “would,” and “could.”
A commitment question can be proper or improper, depending on whether
the question leads to a valid challenge for cause. Commitment questions
are improper when (1) the law does not require a commitment or (2) when
the question adds facts beyond those necessary to establish a challenge
17
for cause. When the law requires certain types of commitments from jurors,
attorneys may ask the prospective jurors whether they can follow the law in
that regard. For example, one could ask prospective jurors whether they
could follow a law that required them to: disregard illegally obtained
evidence; follow instructions requiring corroboration of accomplice witness
testimony; consider the full range of punishment available, or follow a law
that precludes them from holding against defendant his failure to testify.
Lydia v. State, 109 S.W.3d 495, 498 (Tex. Crim. App. 2003) (citations omitted).
The Texas Court of Criminal Appeals has also explained as follows:
One way a question can be relevant is if it seeks to uncover grounds for a
challenge for cause. A venire member may be challenged for cause if: (1)
he possesses a bias or prejudice in favor of or against the defendant, Tex.
Code Crim. Proc. art. 35.16(a)(9); (2) he possesses a bias against a phase
of the law upon which the State or the defendant is entitled to rely, Tex.
Code Crim. Proc. art. 35.16(b)(3) & (c)(2); or (3) he has already decided the
defendant’s guilt or punishment, Tex. Code Crim. Proc. art. 35.16(a)(10).
We have also held questions to be proper for the purpose of intelligently
exercising peremptory challenges. See, e.g., Hernandez v. State, 508
S.W.2d 853, 854 (Tex. Crim. App. 1974). Reliance on this basis provides
no meaningful limit on questions to be asked for the intelligent use of
peremptory challenges. The more intelligent or effective the question, the
more likely it is that the question will commit the venire member to decide
the case, or to refrain from deciding the case, on a basis not required by
law.
Barajas v. State, 93 S.W.3d 36, 39 (Tex. Crim. App. 2002).
2. Standard of Review
“The trial court has broad discretion over the process of selecting a jury.” Id. at 38
(citing Allridge v. State, 762 S.W.2d 146, 167 (Tex. Crim. App. 1988)). “The main reason
for this is that voir dire could go on forever without reasonable limits.” Id. (citing Faulder
v. State, 745 S.W.2d 327, 334 (Tex. Crim. App. 1987)). “We leave to the trial court's
discretion the propriety of a particular question and the trial court's discretion will not be
disturbed absent an abuse of discretion.” Id. (citing Allridge, 762 S.W.2d at 163; Faulder,
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745 S.W.2d at 334). “A trial court’s discretion is abused only when a proper question
about a proper area of inquiry is prohibited.” Id. (citing Allridge, 762 S.W.2d at 163).
3. Discussion
During voir dire, the State asked whether any of the prospective jurors would
decide the case based on Alvarez’s alleged connection to the Gulf Cartel regardless of
the other evidence presented at trial. As set forth above, the Texas Court of Criminal
Appeals has explained that commitment questions include those “that ask a prospective
juror to set the hypothetical parameters for his or her own decision-making.” Lydia, 109
S.W.3d at 498. In this sense, the State’s questions about whether any of the prospective
jurors would decide the case based on Alvarez’s purported connection to the Gulf Cartel
regardless of the other evidence were commitment questions because they “ask[ed] the
[prospective] jurors how particular facts would influence their deliberations.” Davis, 349
S.W.3d at 519.
However, the State’s questions were not necessarily improper for this reason. In
fact, in this instance, the questioning was proper because it was calculated to uncover
grounds for a challenge for cause. The State argues, and we agree, that the questions
were narrowly tailored to determine whether any of the prospective jurors possessed a
bias or prejudice in favor of or against Alvarez, see TEX. CODE CRIM. PROC. ANN. art.
35.16(a)(9) (West 2006), or would decide his guilt or innocence based on his alleged
connection to the Gulf Cartel. See id. art. 35.16(a)(10). Therefore, the questions were
not improper. See Lydia, 109 S.W.3d at 498 (“A commitment question can be proper or
improper, depending on whether the question leads to a valid challenge for cause.”).
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Furthermore, although Alvarez objected to the State’s line of questioning, the trial
court subsequently asked essentially the same questions without any objection from
Alvarez. See TEX. R. APP. P. 33.1(a)(1). Moreover, on appeal, Alvarez has not
complained about the trial court’s questions or accounted for them in his assertion that
the error asserted was harmful. Therefore, even if we were to conclude that the trial court
erred in overruling Alvarez’s objection, the record does not support a conclusion that the
error was reversible. See TEX. R. APP. P. 44.2(b). Accordingly, we overrule Alvarez’s
third issue.
C. Comments by the Trial Court
In his fourth issue, Alvarez contends that the trial court erred in stating that “security
would be provided to the jury [because it] . . . was a comment that prejudiced the jurors’
minds against [Alvarez] . . . [by] inadvertently communicat[ing] to the jury that [Alvarez] .
. . was connected to a dangerous criminal organization and that the jurors would need
protection.” As set forth above, Alvarez made no objection to this comment when it was
made by the trial court. See TEX. R. APP. P. 33.1(a); Unkart v. State, 400 S.W.3d 94, 99
(Tex. Crim. App. 2013) (“Ordinarily, a complaint regarding an improper judicial comment
must be preserved at trial.”).
Furthermore, even assuming that the issue was preserved or did not need to be
preserved, we disagree that the judge’s comment communicated to the jury that they
would need protection because Alvarez was connected to a dangerous criminal
organization. A fair reading of the transcript reveals that the trial judge addressed the
jurors’ concerns about safety with great care and thoughtfulness, avoiding any suggestion
that Alvarez was connected to the Gulf Cartel or that the jurors’ service in this case would
20
require special protection to ensure their safety: “[W]hether you’re serving on a criminal
case or a civil case, [you] are treated the same. You are provided security. You are
provided a safe workplace because you’re actually working. You’ll be working for the
county. And that’s all I can tell you.” Accordingly, we overrule Alvarez’s fourth issue.
III. EVIDENTIARY RULINGS
In his fifth issue, Alvarez contends that the trial court violated his fundamental right
to present witnesses in his defense. See Washington v. Texas, 388 U.S. 14, 19 (1967)
(“The right to offer the testimony of witnesses, and to compel their attendance, if
necessary, is in plain terms the right to present a defense, the right to present the
defendant's version of the facts as well as the prosecution’s to the jury so it may decide
where the truth lies. Just as an accused has the right to confront the prosecution’s
witnesses for the purpose of challenging their testimony, he has the right to present his
own witnesses to establish a defense. This right is a fundamental element of due process
of law.”).
A. Relevant Facts
Alvarez’s complaint concerns the testimony of German Alvarez and Filomena
Baez. During their testimony, the trial court sustained certain hearsay objections made
by the State. Alvarez’s complaint also concerns the testimony he gave during the
punishment phase of trial. During his testimony, the trial court sustained a number of
hearsay objections made by the State.
B. Issue on Appeal
In his appellate brief, Alvarez argues in relevant part as follows:
[I]t was clear that the defense was attempting to elicit statements that were
made in the furtherance of a conspiracy. These statements were central to
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the defensive theory that the Defendant committed the offense under
duress. The primary evidence for the defense was through the statements
of the co-conspirators who threatened him. The trial court shut down the
defense and did not allow this crucial evidence into the trial. These
statements clearly fell under the hearsay exception of a statement of a co-
conspirator and thus were admissible and deprived the Appellant of his right
to present a defense.
C. Applicable Law
“In our criminal justice system, the proponent of evidence ordinarily has the burden
of establishing the admissibility of the proffered evidence.” Vinson v. State, 252 S.W.3d
336, 340 (Tex. Crim. App. 2008). “If no objection is made, the evidence is generally
deemed admissible.” Id. “However, once an objection is made, the proponent must
demonstrate that the proffered evidence overcomes the stated objection.” Id.; see also
Taylor v. State, 268 S.W.3d 571, 578–79 (Tex. Crim. App. 2008) (“Once the opponent of
hearsay evidence makes the proper objection, it becomes the burden of the proponent of
the evidence to establish that an exception applies that would make the evidence
admissible in spite of its hearsay character.”).
D. Standard of Review
The Texas Court of Criminal Appeals has explained the applicable standard of
review as follows:
In determining whether a trial court erred in admitting or excluding hearsay
evidence under . . . the hearsay rule, a reviewing court looks to see whether
the trial court clearly abused its discretion; before the reviewing court may
reverse the trial court’s decision, it must find the trial court’s ruling was so
clearly wrong as to lie outside the zone within which reasonable people
might disagree.
Taylor, 268 S.W.3d at 579.
E. Discussion
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Alvarez contends that the trial court erred in granting the State’s hearsay
objections because the testimony at issue fit within the scope of Rule 801(e)(2)(E) of the
Texas Rules of Evidence, which states that “[a] statement is not hearsay if . . . [t]he
statement is offered against a party and is . . . a statement by a co-conspirator of a party
during the course and in furtherance of the conspiracy.” TEX. R. EVID. 801(e)(2)(E). We
disagree.
First, as a matter of procedural default, Alvarez never attempted to overcome the
State’s hearsay objections. See Vinson, 252 S.W.3d at 340. In each instance in which
the trial court sustained the State’s hearsay objections, Alvarez failed to assert that the
testimony was not hearsay. See TEX. R. EVID. 801(d) (“‘Hearsay’ is a statement, other
than one made by the declarant while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted.”). In fact, in several instances, Alvarez’s attorney
instructed the witness to answer the question without testifying about what the other
person said, thus indicating to the trial court that he agreed with, or at least did not dispute,
the State’s assertion that the testimony was inadmissible hearsay. See TEX. R. EVID. 802.
Second, and more fundamentally, the statements that were excluded by the trial
court based on the State’s hearsay objections do not fit within the scope of Rule
801(e)(2)(E) of the Texas Rules of Evidence. See TEX. R. EVID. 801(e)(2)(E). To fit within
the scope of Rule 801(e)(2)(E), the statements had to be offered against a party, in this
case, the State, and had to have been made by a coconspirator of the State during the
course and in furtherance of a conspiracy. Id. In this case, each of the excluded
statements was made by one of Alvarez’s coconspirators. There was no evidence or
assertion that the State was a party to the conspiracy such that the statements would be
23
excluded from the definition of hearsay. Cf. Hughes v. State, 4 S.W.3d 1, 6 (Tex. Crim.
App. 1999) (“A statement qualifies as an admission by party opponent if it is offered
against a party and it is the party’s own statement.”) (citing TEX. R. EVID. 801(e)(2)).
Accordingly, we conclude that the trial court did not abuse its discretion in making these
evidentiary rulings. Therefore, we overrule Alvarez’s fifth issue.
IV. CLOSING ARGUMENT
In his sixth issue, Alvarez contends that the trial court erred in overruling his
objection to the State’s closing argument regarding Alvarez’s alleged connection to the
Gulf Cartel.
A. Relevant Facts
During the punishment phase of trial, Alvarez took the stand in his own defense.
The State subsequently cross-examined him, and Alvarez denied being a member of the
Gulf Cartel. The State persisted in questioning Alvarez about his alleged membership in
the Gulf Cartel. The State’s questioning of Alvarez sought to establish that he was
affiliated with the Gulf Cartel and that the aggravated kidnappings and attempted capital
murders of the peace officers that took place in this case were an operation of the Gulf
Cartel.
Subsequently, during closing arguments, the prosecutor argued in relevant part as
follows:
Today, the defendant chose to take the stand. You heard his testimony.
Defense counsel, at his opening, got up here and told you that he respected
you all’s verdict, but that’s not really what he was doing.
The defendant takes the stand, and he comes up with a story. He
remembers calling his wife right after he’s shot in the head, supposedly
totally injured, and he’s dialing on his Blackberry, or hitting speed dial, or
whatever with one hand on the Blackberry talking to his wife. But in the
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video, the version that Noel Herold from Quantico prepared, you can see
where Investigator Roel Guajardo is bent over, talking to him, kneeling next
to him for a long time. . . . He’s talking to Roel Guajardo. And he tells Roel
Guajardo that this is part of El Cartel del Golfo. That’s where that
information came from. That only came out because he chose to take the
stand. Had he not chosen to take the stand, you wouldn’t have heard
anything about the Cartel del Golfo.
At this point, Alvarez’s attorney interrupted: “Objection, Your Honor, as being --
when he responded to that question, he said ‘no.’ He denied it, Your Honor . . . .” The
trial court sustained the objection. Then, there was a discussion off the record, and the
prosecutor continued his argument as follows: “Again, you would not have heard about
El Cartel del Golfo, ‘El Comandante,’ or any of that if the defendant had not taken the
stand.” Again, Alvarez’s attorney objected, “Objection, Your Honor. That’s self-serving
on the part of the prosecutor.” The trial court overruled the objection, and the prosecutor
continued his closing argument:
You see, I stayed away from it throughout the guilt/innocence. I didn’t bring
Roel Guajardo in to testify about that. We tried it straight up. One of the
things -- If his life was in danger, if he did this out of pressure, out of threat
-- You saw him testify. Serious the whole time. The minute I started
questioning him about that, he started laughing, smiling . . . .
Again, counsel for Alvarez objected, “Objection, Your Honor. That was - - That’s a
mischaracterization of the defendant, Your Honor.” The court then ruled, “Your objection
is overruled. The jury will determine how they observed the witness. I’m not the fact[-
]finder in this case.”
B. Applicable Law
“The law provides for, and presumes, a fair trial, free from improper argument by
the prosecuting attorney.” Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991).
“Permissible jury argument generally falls into one of four areas: (1) summation of the
25
evidence; (2) reasonable deduction from the evidence; (3) an answer to the argument of
opposing counsel; or (4) a plea for law enforcement.” Berry v. State, 233 S.W.3d 847,
859 (Tex. Crim. App. 2007). “[C]ounsel is allowed wide latitude in drawing inferences
from the evidence so long as the inferences drawn are reasonable, fair, legitimate, and
offered in good faith.” Shannon v. State, 942 S.W.2d 591, 597 (Tex. Crim. App. 1996)
(en banc).
C. Standard of Review
“Error exists when facts not supported by the record are interjected in the
argument, but such error is not reversible unless, in light of the record, the argument is
extreme or manifestly improper.” Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App.
1999). “[I]n most cases, if error occurs, . . . an instruction to disregard will cure any error
committed.” Shannon, 942 S.W.2d at 597. “[A] defendant’s failure to object to a jury
argument or a defendant’s failure to pursue to an adverse ruling his objection to a jury
argument forfeits his right to complain about the argument on appeal.” Cockrell v. State,
933 S.W.2d 73, 89 (Tex. Crim. App. 1996).
D. Discussion
As set forth above, counsel made three different objections to the State’s closing
argument. The first and most relevant objection was that the prosecutor was interjecting
a fact not in evidence. The trial court sustained this objection; however, because Alvarez
did not pursue the objection to an adverse ruling, he cannot complain about it on appeal.
See id. Counsel’s second objection was that the prosecutor’s argument was “self-
serving.” This does not comport with the issue raised on appeal, which is that counsel
interjected a fact not in evidence. Therefore, it is not properly before us. See Ibarra v.
26
State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999) (“Because his trial objection does not
comport with the issue raised on appeal, he has preserved nothing for review.”).
Counsel’s third objection was that the prosecutor mischaracterized Alvarez’s demeanor
on the witness stand. Again, this is different than the issue raised by Alvarez on appeal.
Therefore, it is not properly before us. See id. Accordingly, we overrule Alvarez’s sixth
issue.
V. CUMULATIVE ERROR
In his seventh issue, Alvarez contends that he was denied a fair and impartial trial
by the cumulative harmful effect of the trial court’s various errors asserted in this appeal.
However, we have addressed each assertion of error raised in this appeal and overruled
them for the reasons set forth in this opinion. See TEX. R. APP. P. 47.1. Accordingly,
Alvarez’s seventh issue presents nothing further for this Court to decide. See id. We
therefore overrule Alvarez’s seventh issue.
VI. CONCLUSION
We affirm the trial court’s judgment.
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
13th day of February, 2014.
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