NUMBER 13-10-013-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
VICTOR MARTINEZ SOTO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 92nd District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Vela, and Perkes
Memorandum Opinion by Justice Vela
A jury found appellant, Victor Martinez Soto, guilty of one count of murder, see
TEX. PENAL CODE ANN. § 19.02(b) (West 2003), and three counts of aggravated assault.
See id. § 22.02(a)(2). The jury assessed punishment at fifty-eight years' imprisonment
for the murder conviction and five years' imprisonment for each count of aggravated
assault. The sentences are to run concurrently. In five issues, appellant contends the
trial court erred by: (1) denying his motion to suppress; (2) allowing improper
impeachment: (3) admitting an irrelevant exhibit; (4) allowing improper argument; and (5)
he claims the number of errors had a cumulative and harmful effect. We affirm.
I. FACTUAL BACKGROUND
This case involves the murder of Juan Vasquez, whom appellant befriended at a
party. In the early morning of June 22, 2003, Vasquez and appellant left the party
together, and Vasquez's body was found later that morning in the Lopezville area of San
Juan, Texas. He had been murdered by a close-range shotgun blast to his abdomen.
Vasquez's uncle, Alvaro Rivera, testified that during the party, Vasquez hit
appellant's cap. When Alvaro and appellant went to buy more beer, appellant told
Alvaro, "[T]his dude [Vasquez] hit me like this on my cap. And he better stop because
I'm going to hit him." After they returned with the beer, he saw appellant and Vasquez
walking together into the neighborhood. When they failed to return, Alvaro started
looking for Vasquez and saw appellant leaving an apartment, carrying a shotgun.
Appellant got into Alvaro's car and told him, "I already f***ed up the guy." Alvaro asked
what happened, and appellant said, "[T]he dude was screwing with me and he had a .38."
While Alvaro tried to find Vasquez, appellant asked him, "[W]hat was he to you?" Alvaro
told him, "[H]e is my nephew." Afterwards, appellant got out of the car. On
cross-examination, when defense counsel asked Alvaro, "Did you see any blood on his
hands, his face or anywhere at all?", he said, "No, but he told me that he had killed him."
Alvaro returned to the house where he and his two brothers, Santiago and Raul
Rivera, waited outside for the police. At that time, appellant arrived with a .22 pistol and
2
a shotgun. He stated, "[W]ho is next[?]" and pointed one of the guns at the three
brothers. Pointing the gun at Santiago, appellant said, "[Y]ou look like you're a cool guy
but I'm going to screw you over." When the prosecutor asked Santiago, "Were you
afraid that he might shoot you?", he said, "Yes, to anyone of us." Appellant told Alvaro,
"[I]f I already f***ed him up then why can't I f*** you up." At some point, Antonia Rivera
and Alvaro's wife got in front of the brothers and told appellant to leave.
Later that morning, Deputy Omar Salazar was dispatched to a residence where he
found Vasquez's body lying in the front yard. While securing the crime scene, he
received a second dispatch, advising him there was a shooting that morning and that the
person involved was located at a "second residence near by." Upon arriving at the
second residence, he saw that it was a lot with two homes, one on the left and one on the
right, separated by an open carport. Appellant lived in the home on the right, and
Merced Anaya1 lived in and owned the home on the left. Anaya gave Deputy Salazar
written permission to search his home. While inside the laundry room of the home,
Deputy Salazar saw a dresser with its top drawer open "about four inches." He looked in
the drawer and saw what appeared to be weapons. He said a person could enter the
laundry room through the carport.
Sandra Rangel, a crime-scene specialist, seized the guns from the laundry room,
along with an empty casing that was in the shotgun. The State's firearms expert testified
that in his expert opinion, the "shot wad" recovered from Vasquez's body had been fired
from the shotgun that Rangel recovered from the laundry room.
1
Merced Anaya died before he could testify at either the suppression hearing or the trial on the
merits.
3
Appellant did not testify at the guilt-innocence phase of trial, and the defense did
not call any witnesses to testify on his behalf.
II. DISCUSSION
A. Motion to Suppress
In issue one, appellant argues the trial court erred in denying his motion to
suppress. Defense counsel filed a pretrial motion to suppress the firearms and empty
casing seized during the warrantless search of Anaya's home.
1. Standard of Review
"In reviewing the trial court's denial of a motion to suppress, an appellate court
must uphold the trial court's ruling as long as it is reasonably supported by the record and
is correct under any applicable theory of law." Hereford v. State, 339 S.W.3d 111,
117–18 (Tex. Crim. App. 2011) (citing State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim.
App. 2002); Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990)). "The
appellate court must view the record in the light most favorable to the trial court's ruling
and reverse that ruling only if it lies outside the zone of reasonable disagreement." Id. at
118 (citing State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)).
Here, the trial court filed findings of fact and conclusions of law. In Guzman, the
court "clarified the levels of deference given to the trial court's findings of fact in a motion
to suppress." Id. (citing Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997)).
"In its review, the appellate court does not perform its own fact-finding mission, but limits
the scope of its factual review to determining whether the trial court's findings were
reasonable in light of the evidence presented. Id. (citing Romero, 800 S.W.2d at 543).
4
"If these findings are reasonable, the appellate court must defer to the trial court." Id.
(citing Romero, 800 S.W.2d at 543). However, as the Guzman court explained, "this
standard of almost total deference applies only to findings of historical fact and 'mixed
questions of law and fact' that rely upon the credibility of a witness." Id. (citing Guzman,
955 S.W.2d at 87). "It has long been recognized that, during a hearing on a motion to
suppress, the trial judge is the sole judge of the credibility of the witnesses and the weight
to be given their testimony." Id. (citing State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim.
App. 2000); Romero, 800 S.W.2d at 543). "The trial judge has the opportunity to view
the demeanor of the witnesses and is therefore in a better position to make those factual
determinations than appellate judges." Id.
"The trial judge's comparative advantage is lesser in review of pure questions of
law and in mixed questions of law and fact that do not depend on credibility
determinations. Such topics might include determinations of reasonable suspicion or
probable cause as well as other applications of the law of search and seizure." Id. (citing
Guzman, 955 S.W.2d at 87; Dixon, 206 S.W.3d at 590). "An appellate court reviews
these questions de novo;[2] 'Independent review is therefore necessary if appellate courts
are to maintain control of, and to clarify the legal principles.'" Id. (citing Guzman, 955
S.W.2d at 87). "This application requires a Fourth Amendment reasonableness review,
thus, the appellate court reviews it de novo." Id. (citing Carmouche v. State, 10 S.W.3d
323, 328 (Tex. Crim. App. 2000); Guzman, 955 S.W.2d at 87).
2
Citing Johnson v. State, 84 S.W.3d 658 (Tex. Crim. App. 2002).
5
2. Analysis
a. Consent To Search
In its findings of fact and conclusions of law, the trial court found that the search of
the laundry room was based on voluntary consent given by Merced Anaya, the owner of
the property where the weapons were found. The Fourth Amendment to the United
States Constitution prohibits unreasonable searches and seizures. Limon v. State, 340
S.W.3d 753, 756 (Tex. Crim. App. 2011); see Illinois v. Rodriguez, 497 U.S. 177, 179
(1990). "[T]he search of a residence without a judicially authorized warrant is
presumptively unreasonable.@ Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App.
2007).
Here, while Deputy Salazar did not have a warrant to search Anaya's house or to
seize the firearms and empty shell casing, consent is an exception to the warrant
requirement and is valid when it is voluntarily given. Id. at 686. AThe validity of a
consensual search is a question of fact, and the State bears the burden to prove by clear
and convincing evidence that consent was obtained voluntarily.@ Id. AThis burden
includes proving that consent was not the result of duress or coercion.@ Id. AConsent is
not established by >showing no more than acquiescence to a lawful authority.=@
Carmouche, 10 S.W.3d at 331 (quoting Bumper v. North Carolina, 391 U.S. 543, 548
(1968)). To determine whether the State met its burden, we look at the totality of the
circumstances. Gutierrez, 221 S.W.3d at 686–87. If the record supports a finding by
clear and convincing evidence that consent to search was free and voluntary, we will not
disturb that finding. Carmouche, 10 S.W.3d at 331.
6
During the pretrial suppression hearing, Deputy Salazar testified he asked Merced
Anaya for permission to look for the suspect in Anaya's house and that Anaya gave him
"written permission to search it." Deputy Salazar filled out the consent-to-search form,
and Anaya signed it "with an X." He said Anaya's son3 signed the form as a witness.
below where Anaya placed his "X."
The consent-to-search form was preprinted in the Spanish language. The
English-language version4 stated, in relevant part:
I Merced Anaya 3-2-22 hereby grant my consent to officers Omar Salazar
and F. Rodriguez[5] of the HIDALGO CO. SHERIFF's DEPT. to search the
following: Apartment/Home located at: RT-1 Box 210-53 San Juan, TX.
Red & White frame house. I understand that I have the right to refuse to
consent to the search described above and to refuse to sign this form.
I further state that no promises, threats, force, or physical or mental
coercion of any kind whatsoever have been used against me to get me to
consent to the search described above or to sign this form.
Nothing in the record shows that Deputy Salazar or any other person used duress,
threats, or coercion to obtain Anaya's consent. The record does not show Anaya was
under arrest or wearing handcuffs when he consented to the search. The
consent-to-search form made Anaya aware of his right to refuse consent to a search of
his home, and Deputy Salazar testified he explained to Anaya that he did not have to give
consent to search his house. With respect to the consent-to-search form, Deputy
Salazar testified Anaya understood what he was signing, and the record does not show
the State obtained Anaya's consent "by 'showing no more than acquiescence to a lawful
3
Merced Anaya's son did not testify at the suppression hearing.
4
An English-language version of the consent-to-search form was admitted into evidence during
the suppression hearing and is part of the appellate record.
5
Officer Rodriguez did not testify at the suppression hearing.
7
authority.'" See Carmouche, 10 S.W.3d at 331 (quoting Bumper, 391 U.S. at 548).
Consequently, Anaya's consent was valid because it was freely and voluntarily
given. See Gutierrez, 221 S.W.3d at 686. Looking at the totality of the circumstances,
we conclude the record supports a finding, by clear and convincing evidence, that
Anaya's consent to the search of his home was free and voluntary, and not the result of
duress or coercion. The trial court did not abuse its discretion by denying the motion to
suppress on this basis.
b. Apparent Authority
In its findings of fact and conclusions of law, the trial court found that even if Anaya
did not have actual authority to consent to a search of the location where the weapons
were found, he had "apparent authority to consent to a search of that location."
Recently, the court of criminal appeals stated that "consent may be validly obtained from
an individual with apparent authority over the premises." Limon, 340 S.W.3d at 756
(citing Rodriguez, 497 U.S. at 188). "Apparent authority is judged under an objective
standard: would the facts available to the officer at the moment warrant a man of
reasonable caution in the belief that the consenting party had authority over the
premises?" Id. (internal quotation marks omitted). The State must prove "apparent
authority by a preponderance of the evidence." Id. at 757. "On appeal, determinations
of . . . apparent authority are reviewed de novo as mixed questions of law and fact." Id.
(citing Hubert v. State, 312 S.W.3d 554, 562 (Tex. Crim. App. 2010)).
Deputy Salazar testified during the suppression hearing that when he arrived at
Anaya's home, "I encountered two old people, a male and a female. . . . I got their
8
names. And I asked to see if they were the owners of the property." Deputy Salazar
testified that the man's name was "Merced [Anaya]." When the prosecutor asked
Deputy Salazar, "And do you know if they were the owners of the property?", he said,
"They told me they were." Thus, under the facts available to Deputy Salazar at the
moment, we find that a person of reasonable caution could reasonably believe that Anaya
had the authority to consent to an entry and search of the home under those
circumstances.
c. Plain-View Doctrine
In its findings of fact and conclusions of law, the trial court found that the plain view
doctrine applied to the discovery of the weapons. Deputy Salazar testified at the
suppression hearing that while in the laundry room, he saw a dresser with its top drawer
partially open. Using his flashlight, he saw ―two weapons‖ inside the top drawer. Even
though he did not examine Vasquez's body for gunshot wounds, he testified ―the thing
that was talked about was the shooting, so I figured there was some kind . . . of firearm.‖
He pulled the dresser's top drawer open ―a couple of inches more to confirm that there
were weapons‖ and found ―a small shotgun and a revolver‖ inside the drawer.
During the suppression hearing, Sandra Rangel, the crime-scene specialist,
testified on cross-examination that when she entered the laundry room, the dresser
drawers "were partially open . . . maybe not even four inches." She "had to pull it [the
drawer with the weapons] open completely so that [she] could see the weapons." When
defense counsel asked her, "Otherwise, if you're just passing by the drawer you wouldn't
be able to notice that there was weapons inside; is that fair to say?", she said, "That's fair
9
to say, yes."
The plain-view doctrine is an exception to the Fourth Amendment's warrant
requirement. Horton v. California, 496 U.S. 128, 133 (1990). In State v. Dobbs, the
court of criminal appeals stated:
A police officer who is lawfully on private premises pursuant to a warrant (or
some legitimate exception to the Fourth Amendment requirement of a
warrant) may . . . seize anything he discovers in plain view on those
premises if it is "immediately apparent" to him—that is to say, if he has
probable cause to believe—that it constituted contraband, without the
necessity of obtaining a second warrant to justify the seizure.
323 S.W.3d 184, 187 (Tex. Crim. App. 2010).
Here, Deputy Salazar was lawfully on the private premises by virtue of the fact that
Anaya gave him written consent to search it. While in the laundry room, he saw a
partially opened dresser drawer. Before he opened it any further, he, by use of a
flashlight, saw "two weapons" inside. The fact that he intentionally looked into the
dresser drawer that was only partially open does not affect the application of the
plain-view doctrine because the Fourth Amendment does not require the discovery of
evidence to be inadvertent. Horton, 496 U.S. at 140; Johnson v. State, 469 S.W.2d 581,
584 (Tex. Crim. App. 1971) (finding that police did not conduct search when they looked
into a window through a two-inch gap between partially drawn draperies and saw stolen
goods). Furthermore, the fact that Deputy Salazar used a flashlight as a visual aid to see
into the drawer does not affect the application of the plain-view doctrine. A
vision-enhancement device such as a flashlight does not affect the application of the
plain-view doctrine. Texas v. Brown, 460 U.S. 730, 740 (1983) (stating, "the use of
artificial means to illuminate a darkened area simply does not constitute a search.").
10
In addition, when Deputy Salazar saw these weapons, he was aware of the
following facts and circumstances: (1) a dead body was at the first location; (2) while at
that location, dispatch advised him that the "suspect in the shooting was at the second
house;" (3) when he went to the second location, he saw two homes on the same
property; and (4) he was looking for appellant inside the home where the firearms were
located. These facts and circumstances gave him probable cause to believe the
firearms were connected to the shooting. Therefore, it was immediately apparent to him
that the firearms constituted contraband.
Even though Rangel testified she had to completely open the drawer to see the
weapons, it was within the trial court's province to believe Deputy Salazar's testimony that
he could see the weapons when the drawer was only "partially open." See Hereford, 339
S.W.3d at 118 (stating, "It has long been recognized that, during a hearing on a motion to
suppress, the trial judge is the sole judge of the credibility of the witnesses and the weight
to be given their testimony."). Consequently, the plain-view doctrine applies to seizure of
the firearms and empty casing. We hold that the trial court did not abuse its discretion by
denying the motion to suppress. Issue one is overruled.
B. Impeachment of State's Witness
In issue two, appellant argues that during the State's case-in-chief, the trial court
erred by allowing the prosecutor to improperly impeach its witness, Maria Maldonado.
1. First Complaint
While on direct examination, the prosecutor asked Maldonado several questions
about the statements she gave to the police regarding appellant's conduct surrounding
11
Vasquez's murder. During this line of questioning, the prosecutor asked her about
whether appellant told her to drive down Church Street. Next, the prosecutor asked her,
"Do you remember he [appellant] asked you to go real slow?" Defense counsel objected
that the question was "leading." The trial court overruled the objection and told the
prosecutor, "[Y]ou can ask her if she made a statement. If she says no then you can . . .
refresh her memory." Next, the prosecutor asked her, "Do you remember making a
statement that--[.]" At that point, the trial court sua sponte held a bench conference6 and
then held a hearing outside the jury's presence during which defense counsel objected
that "[t]he whole purpose of bringing her [Maldonado] as a witness is basically to get into
hearsay evidence by impeaching her with her own statement. . . ." The trial court
overruled the objection, and defense counsel did not request a running objection.
"A defendant must make a timely objection in order to preserve error in the
admission of evidence." Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997);
see TEX. R. APP. P. 33.1(a)(1). "An objection should be made as soon as the ground for
objection becomes apparent." Lagrone, 942 S.W.2d at 618. "If a defendant fails to
object until after an objectionable question has been asked and answered, and he can
show no legitimate reason to justify the delay, his objection is untimely and error is
waived." Id.
Here, defense counsel initially objected that the question was "leading."
Afterwards, the prosecutor was in the process of asking Maldonado another question
when the trial court interrupted him. Defense counsel did not make an objection
referencing improper impeachment until the hearing outside the jury's presence.
6
The bench conference was not reported.
12
Because defense counsel failed to urge the improper-impeachment objection until well
after an objectionable question had been asked and answered, and because he has
offered no reason, legitimate or otherwise, to justify the delay, his objection is untimely
and error, if any, is waived. See id. Furthermore, "[w]hether a party's particular
complaint is preserved depends on whether the complaint on appeal comports with the
complaint made at trial." Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009).
Defense counsel objected that the question was leading; however, the complaint on
appeal concerns improper impeachment. Thus, this complaint is not preserved. See
id.
2. Second Complaint
After the hearing outside the jury's presence, the prosecutor asked Maldonado,
"Do you recall making any statement that you took the Defendant to his stepfather's
house to get a gun?" To this, she said, "That I remember vaguely but I'm not sure."
Next, he asked her, "Do you remember making the statement to Noe Canales[7] and Fred
Lara that--". At that point, defense counsel stated, "I'm going to object to improper
impeachment." The trial court overruled the objection.
"Impeachment of a witness means adducing proof that such witness is unworthy of
belief or credit." Willingham v. State, 897 S.W.2d 351, 358 (Tex. Crim. App. 1995).
Rule 607 states that "[t]he credibility of a witness may be attacked by any party, including
the party calling the witness." TEX. R. EVID. 607. A prior inconsistent statement may be
admitted under rule 613. See TEX. R. EVID. 613(a); In re A.B., 133 S.W.3d 869, 874 (Tex.
App.—Dallas 2004, no pet.). However, under the Texas Rules of Evidence, the use of
7
Noe Canales was the lead investigator in this case.
13
extrinsic evidence of a prior inconsistent statement is contingent upon the witness's
response when confronted with the alleged inconsistent statement." Clark v. State, 881
S.W.2d 682, 695 n.11 (Tex. Crim. App. 1994); TEX. R. EVID. 613(a) (stating that extrinsic
evidence of an inconsistent statement is not admissible if the witness unequivocally
admits having made the statement).
Here, defense counsel objected to the question before the prosecutor could finish
asking it. Thus, we cannot determine whether the prosecutor was trying to establish the
proper predicate for impeachment by a prior inconsistent statement. Nevertheless, after
the trial court overruled the objection, the prosecutor asked a different question. 8 We
hold the trial court did not err by overruling the objection.
3. Third Complaint
During Maldonado's direct examination, the prosecutor asked her, "Do you recall
ever making any statements to the police that at about 3:00 in the morning or so he
[appellant] came home and that he told you that he had killed a brother or cousin of Alvaro
[Rivera]?" Without objection, she said, "No." Next, he asked her, "Is this your
signature? Let me show you what has been marked or what I have marked just for
identification purposes as State's Exhibit No. 19 and let me let you look at it." At that
point, the trial court told the prosecutor, "[T]hat's been asked and answered." After the
trial court said this, defense counsel stated, "I just renew my same objection that this is
improper impeachment of the witness." The trial court overruled the objection and
8
The question the prosecutor asked was: "You don't recall making this statement that between
3:30 and 4:00 a.m. that you and Hugo [appellant] went to his mom's house and that he went to his father's
room. And he spoke to his father, Magdaleno, and he asked him for a gun?" Without objection,
Maldonado replied, "I don't know. Truthfully I don't know."
14
stated, "But that has been asked and answered."
If defense counsel was objecting to the question about whether Maldonado
recalled making any statements to the police that appellant told her that he had killed
Alvaro's brother or cousin, the objection was untimely and error, if any, was waived. See
TEX. R. APP. P. 33.1(a)(1); Lagrone, 942 S.W.2d at 618. If defense counsel was
objecting to the question that followed it, the trial court had already prevented Maldonado
from answering the question by sua sponte ruling it had "been asked and answered."
Issue two is overruled.
C. Admission of Evidence
In issue three, appellant argues the trial court erred in admitting a crayon drawing
that was found in Vasquez's clothing at the time of his autopsy.
1. Background
During the State's case-in-chief at guilt-innocence, the trial court held a hearing
outside the jury's presence. The prosecutor told the trial court he wanted to introduce
State's exhibit 70,9 which included a crayon drawing, apparently made by a child. The
prosecutor told the trial court he was introducing State's exhibit 70 because "this is the
evidence that we recovered. . . . It was . . . in the victim's pockets. His items--his
personal items." Defense counsel objected that the exhibit is irrelevant and that "any
9
A copy of the complained-of exhibit is found and described in volume twenty-nine of the reporter's
record. It is also described in volume twenty-four at page 127. The inscriptions "832.877RD" and "5769,
28134283" appear at the top of the drawing. The word "AMERICA" is written below the inscriptions. A car
is drawn below the first "A" in "AMERICA," and a little donkey is drawn below the rear of the car. To the
right of the car is a drawing of a bug, and to the left of the car is the word "MAR" with the letters "LL"
underneath. Below the letters "LL" appears the date "4/Jun9." Under the word "AMERICA" appears the
date, "5/June/09." Under this date appears "03." The days of the week in Spanish appear on the back of
the drawing.
15
probative value is substantially outweighed by the prejudicial value. . . ." The trial court
overruled the objection.
2. Standard of Review
We review a trial court's ruling regarding the admissibility of evidence under an
abuse of discretion standard. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App.
2007). "In other words, as long as the trial court's decision was within the zone of
reasonable disagreement and was correct under any theory of law applicable to the case,
it must be upheld." Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007).
In considering whether the record reasonably supports a trial court's determination, we
view the evidence in the light most favorable to the trial court's determination. State v.
Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008).
3. Rule 401
Texas Rule of Evidence 401 defines relevant evidence as "evidence having any
tendency to make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the evidence." TEX.
R. EVID. 401; Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009). "Evidence
which is not relevant is inadmissible." TEX. R. EVID. 402. "Evidence need not by itself
prove or disprove a particular fact to be relevant; it is sufficient if the evidence provides a
small nudge toward proving or disproving some fact of consequence." Stewart v. State,
129 S.W.3d 93, 96 (Tex. Crim. App. 2004). In determining whether evidence is relevant,
courts should examine the purpose for which the evidence is being introduced. Layton,
280 S.W.3d at 240. "It is critical that there is a direct or logical connection between the
16
actual evidence and the proposition sought to be proved." Id.
Here, the prosecutor introduced exhibit 70 to show the jury the evidence of
personal items recovered in the victim's pockets. However, the crayon drawing does not
provide a small nudge toward proving or disproving some fact of consequence.
Accordingly, the crayon drawing is irrelevant and inadmissible. See TEX. R. EVID. 402.
4. Harm Analysis
"Texas Rule of Appellate Procedure 44.2(b) provides that a nonconstitutional error
'that does not affect substantial rights must be disregarded.'" Motilla v. State, 78 S.W.3d
352, 355 (Tex. Crim. App. 2002) (quoting TEX. R. APP. P. 44.2(b)). The court of criminal
appeals has "determined that substantial rights are not affected by the erroneous
admission of evidence 'if the appellate court, after examining the record as a whole, has
fair assurance that the error did not influence the jury, or had but a slight effect.'" Motilla,
78 S.W.3d at 355 (quoting Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001);
Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)); see Ex parte Martinez,
330 S.W.3d 891, 903 (Tex. Crim. App. 2011). "In assessing the likelihood that the jury's
decision was adversely affected by the error, the appellate court should consider
everything in the record, including any testimony of physical evidence admitted for the
jury's consideration, the nature of the evidence supporting the verdict, the character of the
alleged error and how it might be considered in connection with other evidence in the
case." Id. (citing Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000)). "The
reviewing court may also consider the jury instructions, the State's theory and any
defensive theories, closing arguments and even voir dire, if applicable." Id. at 355–56
17
(citing Morales, 32 S.W.3d at 867). The court of criminal appeals has "also recognized
that whether the State emphasized the error can be a factor." Id. at 356. (citing King v.
State, 953 S.W.2d 266, 272 (Tex. Crim. App. 1997)). In Motilla, the court held "that the
evidence of the defendant's guilt is a factor to be considered in any thorough harm
analysis." Id. at 358.
a. Evidence of Appellant's Guilt
The medical evidence showed that Vasquez died from a close-range shotgun blast
to the abdomen. During his autopsy, a shot wad was removed from his body. Shortly
after his murder, Rangel seized a shotgun from the laundry room of Anaya's house, which
was next door to where appellant was staying at the time of the murder. The laundry
room was accessible from the carport that separated the two houses. The evidence
showed that this shot wad was fired from the shotgun recovered from the laundry room.
In addition to the forensic evidence, other evidence showed that shortly before Vasquez's
murder, he had hit appellant's cap. Afterwards, appellant told Alvaro that if Vasquez did
not stop, he would hit Vasquez. Afterwards, eyewitnesses saw appellant and Vasquez
leaving the party together. While Alvaro was looking for Vasquez, appellant got into his
car, carrying a shotgun. He told Alvaro that he killed Vasquez. We note that appellant's
statements to Alvaro about killing Vasquez evidenced a complete lack of remorse on
appellant's part. A jury can rely on a defendant's lack of remorse to infer intent to commit
murder. See Darby v. State, 145 S.W.3d 714, 721 (Tex. App.—Fort Worth 2004, pet.
ref'd). When Alvaro asked appellant what happened, he said, "[T]he dude was screwing
18
with me and he had a .38."10 "Motive is a significant circumstance indicating guilt."
Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). After Vasquez's murder,
appellant absconded and could not be located by the authorities for several years. A
fact-finder may draw an inference of guilt from the circumstances of flight from the crime
scene. Clayton v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007). When appellant
was arrested for the murder, he gave law-enforcement authorities a false name. Giving
a false name to law-enforcement officers indicates a consciousness of guilt. Hargrove v.
State, 211 S.W.3d 379, 387 (Tex. App.—San Antonio 2006, pet. ref'd). In conducting a
review of the evidence admitted at trial, we find the evidence against appellant was
substantial.
b. The Character of the Alleged Error and How It Might Be
Considered in Connection with Other Evidence in the Case
The crayon drawing was recovered from Vasquez's clothing at the time of his
autopsy. The identity of the person who made the drawing is unknown, and it contains
no information, either linking appellant to, or exculpating him from, Vasquez's murder.
While the drawing was irrelevant, it was not so emotionally charged that it prevented the
jury from rationally considering the evidence before it.
c. State's Emphasis of the Error
During the State's rebuttal closing argument at guilt-innocence, the prosecutor
argued to the jury:
Prosecutor: Ladies and gentlemen, there is one person—my heart
sunk—
Defense Counsel: I'm going to object to—that goes against the Court's
10
Alvaro Rivera never testified that appellant told him he killed Vasquez in self defense.
19
ruling about asking for sympathy and showing a
picture.
The Court: It's part of the evidence.
Defense Counsel: I know, Judge, but it's improper argument—to be
asking for sympathy or—
The trial court overruled the objection and stated, "It's part of the evidence." After the
trial court stated this, defense counsel stated, "For the record, Judge, he [the prosecutor]
is showing a crayon picture that looks like it's done by a child." The trial court once again
overruled the objection. Defense counsel did not request a running objection.
Afterwards, the prosecutor argued to the jury:
The family needs justice. This man didn't deserve this. This is someone
[the person who made the crayon drawing] that won't get to see this person
[Juan Vasquez]. I need fairness. Yes, I want you to be fair to this
Defendant. I do. I really do. And I want you to be fair to this victim and to
their family. Thank you.
Defense counsel did not object to this argument. When a defendant fails to object
to jury argument, he forfeits his right to raise the issue on appeal, even if the issue is
constitutional in nature. Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App.
2004); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Therefore,
appellant waived any error in this portion of closing argument.
Nevertheless, we can tell from the objected-to portion of the argument that the
intended purpose for admitting the crayon drawing was to evoke the jury's sympathy and
therefore constituted improper argument. See Alejandro v. State, 493 S.W.2d 230, 231
(Tex. Crim. App. 1973) (stating that proper jury argument must fall within one of four
categories: (1) "summary of the evidence;" (2) "reasonable deduction from the
20
evidence;" (3) "answer to argument of opposing counsel;" and (4) "plea for law
enforcement.").
d. Jury Instructions
The court's guilt-innocence charge stated, in relevant part, "Do not let bias,
prejudice, or sympathy play any part in your deliberations." Nothing in the record shows
that the jury did not follow this instruction. The jury is presumed to follow the instructions
given in the court's charge. See Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App.
1996).
Once the evidence is fully considered, along with the other relevant factors, we
conclude that the error was harmless. We have fair assurance that the error did not
influence the jury or had but a slight effect. Issue three is overruled.
D. Closing Argument
In issue four, appellant argues the trial court erred in allowing at least two forms of
improper jury argument.
1. Applicable Law
In Alejandro v. State, the court of criminal appeals stated that "[i]t is the duty of trial
counsel to confine their arguments to the record; reference to facts that are neither in
evidence nor inferable from the evidence is therefore improper." Alejandro, 493 S.W.2d
at 231. "Thus, proper jury argument generally falls within one of four general areas: (1)
summation of the evidence; (2) reasonable deduction from the evidence: (3) answer to
argument of opposing counsel; and (4) plea for law enforcement." Brown v. State, 270
S.W.3d 564, 570 (Tex. Crim. App. 2008). "'The arguments that go beyond these areas
21
too often place before the jury unsworn, and most times believable testimony of the
attorney.'" Id. (quoting Alejandro, 493 S.W.2d at 231). "Consequently, 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." Id. (citing Allridge v. State, 762 S.W.2d 146, 155 (Tex. Crim. App. 1988)).
2. Analysis
Appellant calls our attention to various portions of the State's closing argument at
guilt-innocence. In the first instance, the prosecutor argued:
I started my opening argument with a Bible verse. And the reason for that
is because I've been doing that for almost nine years now because I believe
it. I believe in God's word. And there is a verse in the Bible that says do
not be deceived, God shall not be mocked and whatever a man sows that is
what he shall reap. . . . What is the truth? I know what the truth is in my
heart but you will tell us what the truth is. . . .
You can come up with a lot of these excuses or rabbit trails and you can
chase these as much as you want to, ladies and gentlemen, but the truth of
the matter is that there is only one truth here. It's that this man [appellant]
right here, a heartless man, took the life of Juan Vasquez. . . .
Defense counsel did not object to these complained-of remarks. Therefore,
appellant waived any error in this portion of closing argument. See Threadgile, 146
S.W.3d at 670; Cockrell, 933 S.W.2d at 89.
In the second instance, the prosecutor, after discussing the testimony of some of
the State's witnesses, argued:
Now, you could say, well—you know, some things they couldn't
remember and some things—ladies and gentlemen, it [the incident in
question] was in 2003 but I can tell you that I was impressed with this
testimony. I'm doing this—I was impressed with the consistency that I
heard from this family.
22
At that point, defense counsel objected to the prosecutor "making personal
opinions about the credibility of a witness." The trial court overruled the objection but
instructed the jury, "Ladies and gentlemen, you heard the facts and the evidence that has
been presented. What the attorneys argue and tell you is not evidence."
"[I]t is ordinarily improper for a prosecutor to vouch for the credibility of a witness
during his argument." Chapman v. State, 503 S.W.2d 237, 238 (Tex. Crim. App. 1974);
Sanders v. State, 191 S.W.3d 272, 275 (Tex. App.—Waco 2006, pet. ref'd). Thus, the
prosecutor's comments constituted an improper comment on the credibility of the State's
witnesses. The error warrants reversal if appellant's substantial rights were affected.
See Brown, 270 S.W.3d at 572 (providing that improper argument is nonconstitutional in
nature); Mosely v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (holding that
improper jury arguments are nonconstitutional violations analyzed pursuant to rule
44.2(b) of the Texas Rules of Appellate Procedure). To determine whether the State's
improper argument affected appellant's substantial rights, "we balance the severity of the
misconduct (i.e., the prejudicial effect), any curative measures, and the certainty of
conviction absent the misconduct." Brown, 270 S.W.3d at 573.
[I]n evaluating the severity of the misconduct, we must assess whether [the]
jury argument is extreme or manifestly improper [by] look[ing] at the entire
record of final arguments to determine if there was a willful and calculated
effort on the part of the State to deprive [appellant] of a fair and impartial
trial.
Id. at 573 (internal quotation marks omitted).
In examining the severity of the remarks, we note that after the trial court's curative
measure, the prosecutor told the jury, "Let me remind you that what I say is not evidence."
23
"Although a prosecutor's self-corrective action might not carry the same weight as a trial
court's instruction to disregard, it is nevertheless a relevant consideration in determining
harm, and can, in the appropriate circumstances, render an improper comment
harmless." Hawkins v. State, 135 S.W.3d 72, 84 (Tex. Crim. App. 2004).
Consequently, the severity of the misconduct was mild. After reviewing the entire record
of the State's final argument, we conclude that there was no willful or calculated effort to
deprive appellant of a fair and impartial trial.
Furthermore, the trial court made a curative measure by sua sponte telling the jury
"you heard the facts and the evidence that has been presented. What the attorneys
argue and tell you is not evidence." Finally, the certainty of conviction was high, absent
the improper comments. At trial, in addition to the Rivera family's testimony, a shotgun
and revolver were found in the laundry room, which was accessible from the carport that
separated Anaya's home from the home where appellant stayed. This corroborated the
testimony that appellant arrived at the house with a shotgun and a .22 pistol. Forensic
testimony showed that the shotgun, which was found in the laundry room, was the
weapon that killed Vasquez. After the murder and the incident where appellant pointed a
weapon at the three Rivera brothers, appellant fled the area. When he was arrested, he
gave authorities a false name. This is circumstantial evidence of guilt that corroborated
the testimony of the Rivera family members. Therefore, after reviewing the entire record
and final arguments, as a whole, and balancing the appropriate factors, we have fair
assurance that the error did not influence the jury, or had but a slight effect.
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Next, appellant complains about another incident during closing argument when
the prosecutor showed the crayon drawing to the jury and commented:
Ladies and gentlemen, there is one person—my heart sunk—
* * *
The family needs justice. This man didn't deserve this. This is someone
that won't get to see this person [Juan Vasquez]. I need fairness. Yes, I
want you to be fair to the Defendant. I do. I really do. . . .
Even though appellant did not object to the latter portion of this argument, the
record shows that the prosecutor was trying to evoke the jury's emotions and sympathy.
Thus, the argument was improper. See Brown, 270 S.W.3d at 570. In examining the
severity of the remarks, we note that the prosecutor made reference to the crayon
drawing only once during closing argument. Consequently, the severity of the
misconduct was mild. After reviewing the entire record of the State's final argument, we
conclude that there was no willful or calculated effort to deprive appellant of a fair and
impartial trial.
Even though the trial court did not instruct the jury to disregard either the crayon
drawing or the prosecutor's plea for sympathy, the court's charge stated: "Do not let
bias, prejudice, or sympathy play any part in your deliberations." Moreover, the certainty
of conviction was high, absent the prosecutor's improper comments and use of the crayon
drawing. Therefore, after reviewing the entire record and final arguments, as a whole,
and balancing the appropriate factors, we have fair assurance that the error did not
influence the jury, or had but a slight effect. Issue four is overruled.
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E. Cumulative Error
In issue five, appellant argues the number of errors had a cumulative, harmful
effect. The court of criminal appeals has stated that "[i]t is conceivable that a number of
errors may be found harmful in their cumulative effect." Chamberlain v. State, 998
S.W.2d 230, 238 (Tex. Crim. App. 1999).
Appellant reiterates the arguments he made in his first four issues. With respect
to issue one—the motion to suppress—and issue two—the alleged improper
impeachment of Maria Maldonado, we have previously held that the trial court did not
abuse its discretion by denying the motion to suppress and that error, if any, was waived
regarding Maldonado's alleged improper impeachment. These non-errors cannot
comprise cumulative error. See id. (stating "we are aware of no authority holding that
non-errors may in their cumulative effect cause error.").
Regarding the errors discussed in issues three and four, we conclude the
cumulative effect of those errors was not harmful. In Stahl v. State, the defendant was
charged with murder. 749 S.W.2d 826, 826 (Tex. Crim. App. 1988) (op. on reh'g).
During the guilt-innocence stage, the prosecutor, for the purpose of identifying the victim,
called the victim's mother to the witness stand and showed her a full-faced morgue photo
of her son, the victim. Id. at 828. Upon seeing the photo, she said, in the jury's
presence, "Oh, my God. . . . Oh, my God. My baby. My God. . . . May he rest in hell.
May he burn in hell. Oh, my baby." Id. The trial court instructed the jury "to disregard
the outburst." Id. The court of criminal appeals noted that "once the event [the outburst]
happened, the prosecutor sought to exacerbate its impact to the jury . . . in his closing
26
argument at the 'guilt' stage." Id. at 830. The court stated that the prosecutor's
"persistent appeals in the face of adverse rulings speak loudly of the prosecutor's desire
to use the outburst for inflammatory purposes." Id. The court reversed the defendant's
murder conviction and stated, "The factors suggesting harm lie in the cumulative effect of
the outburst and the improper arguments." Id. at 832. The court further stated that
"such appeals to abandon reason are improper. They distract the jury from the actual
evidence of whether or not the defendant committed the crime of which he is accused."
Id. (internal quotation marks omitted).
In the instant case, the trial court erred in (1) admitting the crayon drawing and in
(2) overruling defense counsel's objection when the prosecutor, during closing argument,
showed it to the jury, making a plea for sympathy, and (3) overruling defense counsel's
objection to the prosecutor's remarks about the credibility of the State's witnesses.
However, the facts in Stahl are distinguishable from those in the instant case. Here, the
crayon drawing did not evoke any reaction, much less an outburst, from any witness, and
it is far less inflammatory when compared to a full-faced morgue photo of a murder victim.
Rather than making "persistent appeals" to the jury, the prosecutor in the case before us
only called the jury's attention to the crayon drawing on one occasion during closing
argument. After considering the cumulative effect of these errors, we conclude that the
errors were harmless. We have a fair assurance that the errors did not influence the jury
or had just a slight effect.
As part of his fifth issue, appellant argues the trial court erred by sua sponte
resetting the punishment hearing in order to give the State additional time to provide
27
sufficient notice of a prior robbery conviction. However, appellant has cited no authority
to support this argument. Therefore, this contention is inadequately briefed and
presents nothing for review. See TEX. R. APP. P. 38.1 (i); Tong v. State, 25 S.W.3d 707,
710 (Tex. Crim. App. 2000) (stating that failure to cite relevant authority waives error).
Issue five is overruled.
III. CONCLUSION
We affirm the trial court's judgments.
ROSE VELA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
20th day of October, 2011.
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