Opinion issued June 3, 2014.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00372-CR
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MANUEL RICHARD PENA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Case No. 1320965
OPINION
A jury found Manuel Pena guilty of the offense of murder and sentenced
him to life confinement in the institutional division of the Texas Department of
Criminal Justice. Pena appeals, arguing that the evidence was legally insufficient
to support his conviction, that he was deprived of his right to a public trial under
the Sixth Amendment to the United States Constitution, and that the trial court
erroneously admitted testimony by a witness who lacked personal knowledge of
the subject matter to which he testified. Finding no error, we affirm.
Background
A. The death of Sherri Strong
On June 16, 1982, paramedics responded to a report of a suicide in Pena’s
Harris County residence. On their arrival, a male answered the door and escorted
the paramedics to the garage, where they found a young, unclothed woman lying
face down on the floor with a rope around her neck, which the paramedics cut off.
The woman, Sherri Strong, was dead. When the paramedics turned her over, they
discovered that blood was pooling in the front of her body, a post-death condition
known as lividity.
Harris County Sherriff’s Office Detective D. Parsons was dispatched to the
scene to investigate. Detective Parsons testified that he noticed a series of injuries
on Strong’s body, including two sets of bruises on her neck: one in an upward line
toward her ears, and the other a horizontal line around her neck. Parsons
interviewed Pena at the scene. Pena disclosed that he and Strong had been the only
people in the house that night. He and Strong were not married, but had been
involved in a romantic relationship, and Pena stated that he believed that Strong
was two months pregnant with his child at the time of her death. Pena, however,
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was engaged in a contentious divorce proceeding with his wife and, on his
attorney’s advice, had previously evicted Strong from the home that they were
sharing. Strong had become upset after intercepting a telephone message from
Pena’s wife, in which the latter expressed a desire to reconcile with Pena.
Nonetheless, according to both Pena and Strong’s brother, Strong had been a
happy person; neither believed her to be suicidal.
During his interview with Parsons, Pena described the events of the night of
Strong’s death. According to Pena, the couple went to dinner, returned home, and
had sex in his bed before going to sleep. Pena later woke up, discovered that
Strong was not there, and saw a light in the kitchen. On reaching the kitchen, he
followed the light to the garage, where he found Strong hanging by her neck on a
rope tied to a hook in the ceiling that also supported a large punching bag. Pena
retrieved a knife and cut down Strong’s body.
Parsons did not find this story credible and testified as to several
inconsistencies between his own observations and Pena’s version of the facts.
First, Pena’s bed was neatly made except for the side where Pena had slept.
Second, Parsons noticed the lividity in Strong’s body; the lividity was not in her
feet or legs, as Parsons expected, but only in the front of her body. Parsons also
noticed bruises on Strong’s leg and face and the two sets of markings on Strong’s
neck. In addition, he noticed significantly less bodily waste immediately under the
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hook in the garage than he expected in the context of a hanging. From these
observations, Parsons developed the belief that “someone actually strangled
[Strong] facedown somewhere, possibly with the same rope, and then used it to
hang her.” Parsons considered Pena a suspect in Strong’s death, but Pena was not
arrested that night.
B. The autopsy of Strong’s body
Dr. Aurelio Espinola, then a deputy chief medical examiner for the Harris
County Medical Examiner, performed an autopsy of Strong’s body. Dr. Espinola
testified that he had performed “hundreds to probably thousands” of autopsies of
persons who had committed suicide by hanging. Dr. Espinola observed petechial
hemorrhages—small breaks in the blood vessels—in Strong’s upper eyelids, which
he testified happens routinely in the context of manual strangulation but not in the
context of death by hanging. In the latter, the weight of the body cuts off blood
flow both to and from the head, preventing the pressure buildup that causes such
hemorrhages. By contrast, there were no petechial hemorrhages in Strong’s legs,
which Dr. Espinola would have expected if the body had been hanging for several
hours.
Dr. Espinola also observed the two sets of markings on Strong’s neck. He
testified that the fatal wound was the horizontal one on the front and sides of the
neck, which was consistent with a rope being wrapped around the neck, but was
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not consistent with or indicative of a hanging, which would have left a mark on the
back of her neck.
Dr. Espinola testified that Strong had many pre-death injuries that were
consistent with a physical struggle but not with a hanging, including: an abrasion
on Strong’s chin consistent with a blow; a hemorrhage in the inside of her lips
consistent with a blow; an abrasion on her shoulder consistent with “some kind of
force being directed at or on the top surface of her shoulder;” injuries to her ankles,
knees, right elbow, and knuckles consistent with striking, fighting, or kicking;
bruises to her wrists consistent with someone grabbing them and pulling; a bruise
on her right hand; and a bite mark on her breast.
Dr. Espinola observed hemorrhaging around muscles and connective tissue
around the cornu of the hyoid bone in the front of Strong’s neck. According to Dr.
Espinola, such hemorrhaging is a “hallmark of the ligature strangulation,” as
opposed to death by hanging. Further, Dr. Espinola testified that it is impossible
for a person to strangle herself, due to the fact that the individual would lose
consciousness and blood flow would resume before the strangulation became fatal.
Finally, Dr. Espinola observed lividity in Strong’s back, but not in the back
of her legs. Based on this fact, Dr. Espinola concluded that Strong was not
hanging when she died; even if she had died from hanging and been moved, he
would still have found lividity in her feet and legs. Dr. Espinola also testified that
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lividity does not set in for two hours after death and that the presence of lividity
when paramedics arrived at Pena’s home indicated that Strong had been lying on
the ground for some time before their arrival.
Based on the totality of his observations during the autopsy, rather than any
one fact, Dr. Espinola ruled that Strong “came to her death as a result of asphyxia
due to ligature strangulation, Homicide.”
C. “Cold case” reexamination
Although Pena was not charged in the months after Strong’s death, the case
remained an open and unsolved homicide. In 2011, Harris County Sheriff’s Office
Sergeant E. Clegg reviewed the case, attempted to obtain evidence from the
original investigation, visited the scene of Strong’s death, and conducted follow-up
interviews of Pena and several other witnesses. Clegg found several
inconsistencies in Pena’s retelling of events. Pena changed his story regarding
how he found a knife to cut Strong down. He also told Clegg that he had used the
rope on which Strong hung herself to lift the punching bag out of the way of cars in
the garage, but Clegg testified and photographs introduced in evidence showed no
pulley or other means by which the bag could have been moved or hoisted. Pena
also told Clegg that he attempted CPR on Strong, but Clegg testified that this was
inconsistent with physical evidence at the scene.
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The case was reopened and a grand jury indicted Pena for murder. After a
trial, the jury found him guilty as charged, sentencing him to life confinement.
Pena timely appealed.
Legal Insufficiency of the Evidence
Pena first argues that the evidence was legally insufficient to support his
conviction.
A. Standard of Review
When a defendant challenges the sufficiency of the evidence, this Court
“must consider all of the evidence in the light most favorable to the verdict and
determine whether, based on that evidence and any reasonable inferences
therefrom, a rational fact finder could have found the essential elements of the
crime beyond a reasonable doubt.” Gear v. State, 340 S.W.3d 743, 746 (Tex.
Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct.
2781, 2788–89 (1979)). The Court may not substitute its judgment for that of the
jury by reevaluating the weight or credibility of the evidence, but must defer to the
jury’s resolution of conflicts in the evidence, weighing of the testimony, and
drawing of reasonable inferences from basic facts to ultimate facts. Isassi v. State,
330 S.W.3d 633, 638 (Tex. Crim. App. 2010). We apply the same standard to
circumstantial and direct evidence. Id. Circumstantial evidence may be as
probative as direct evidence, and circumstantial evidence alone can be sufficient to
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establish a defendant’s guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
2007). The facts need not all point directly and independently to the defendant’s
guilt, but the cumulative effect of all incriminating facts must be sufficient to
support the conviction. Id.
B. Analysis
Pena argues that no eyewitnesses or direct evidence established that he
murdered Strong. Specifically, he complains that no DNA evidence or fingerprints
were introduced, that there was insufficient evidence that Strong was murdered and
did not commit suicide, and that there no evidence that, assuming Strong was
murdered, Pena was the murderer.
As legal authority for his legal insufficiency arguments, Pena relies entirely
on Reedy v. State, 214 S.W.3d 567 (Tex. App.—Austin, 2006, pet. ref’d),
abrogated by Hooper, 214 S.W.3d at 15–17. In Reedy, the Austin Court of
Appeals applied an incorrect legal sufficiency “inference stacking” analysis under
which “[t]he stacking of an inference upon an inference is not considered
evidence.” Id. at 585 (citations omitted). The Court of Criminal Appeals has
expressly rejected this mode of analysis, abrogating Reedy and explaining that
“inference stacking has not been used in this Court’s sufficiency of the evidence
jurisprudence in over 50 years.” Hooper, 214 S.W.3d at 15. “Inference stacking is
not an improper reasoning process; it just adds unnecessary confusion to the legal
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sufficiency review without adding any substance.” Id. The correct test is that
found in “Jackson v. Virginia, [under which] courts of appeals assessing legal
sufficiency are to consider all the evidence in the light most favorable to the
verdict and determine whether, based on that evidence and reasonable inferences
therefrom, a rational juror could have found the essential elements of the crime
beyond a reasonable doubt.” Id. at 15 (citing Jackson, 443 U.S. at 318–19, 99 S.
Ct. at 2788–89).
Applying the Jackson standard, there was ample evidence upon which the
jury could have based its verdict. The forensic evidence, including Dr. Espinola’s
testimony as to the significance of each injury in classifying a death as a homicide,
was sufficient to allow a rational juror to conclude that Strong’s death was caused
by ligature strangulation rather than hanging. Further, both Pena’s statements to
law enforcement and Strong’s brother’s testimony reflected that Strong was a
“very happy,” non-suicidal person at the time of her death.
The evidence regarding Pena’s relationship with Strong—including evidence
of Strong’s pregnancy and Pena’s wife’s desire to reconcile with Pena—would
have permitted a rational juror to draw the inference that Pena’s relationship with
Strong was troubled. Further, the physical evidence contradicted Pena’s account of
a consensual sexual encounter with Strong the night of her death. This evidence
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was sufficient to permit a rational juror to find that Pena had a motive to kill
Strong.
Pena himself admitted that no one else was present in his home the night that
Strong died. In light of these facts, having concluded that Strong had not
committed suicide, the jury could have rationally inferred that Pena was the only
person present when she died.
Further, Pena’s statements to law enforcement were, in many details,
contradicted by Pena’s other statements or by the officers’ observations of the
scene of Strong’s death. For example, he gave statements that officers testified
were inconsistent with the physical evidence, such as where Strong slept and why
there was a rope on the hook in Pena’s garage. Such contradictions allow a
reasonable juror to doubt Pena’s version of events and conclude that Pena
murdered Strong and then posed the scene to attempt to indicate a suicide. See,
e.g., Cantu v. State, 395 S.W.3d 202, 209 (Tex. App.—Houston [1st Dist.] 2012,
pet. ref’d) (citing “inconsistencies in Cantu’s statements” and statements
inconsistent with physical evidence as bases for rational juror to doubt Cantu’s
defensive assertion).
The absence of DNA or fingerprint evidence at trial does not render the
other evidence insufficient to support the conviction. First, Texas law does not
require such evidence to support a criminal conviction. See, e.g., Garcia v. State,
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563 S.W.2d 925, 928 (Tex. Crim. App. [Panel Op.] 1978) (victim’s testimony
alone was sufficient to sustain rape conviction, despite lack of physical evidence);
Sims v. State, 84 S.W.3d 768, 774 (Tex. App.—Dallas 2002, pet. ref’d) (conviction
upheld when victim’s testimony identified defendant as attacker, despite absence
of “scientific evidence”). This is especially true when the scene of the crime was
the defendant’s home—where one would expect to find the defendant’s
fingerprints and DNA—and the defendant’s narrative of innocence includes
physical contact with the deceased. Dr. Espinola testified that DNA testing first
became available as a forensic tool in 1986, four years after Strong’s death; it was
not standard to preserve potential DNA evidence prior to that time. The mere
absence of DNA and fingerprint evidence does not affect the legal sufficiency of
the evidence actually introduced at trial. See, e.g., Garcia, 563 S.W.2d at 928;
Sims, 84 S.W.3d at 774; Padilla v. State, 278 S.W.3d 98, 105 (Tex. App.—
Texarkana 2009, pet. ref’d).
Because the evidence was legally sufficient to support Pena’s conviction of
murder, we overrule Pena’s first argument.
Sixth Amendment Violation
Pena next argues that the trial court failed to hold a public trial because it
closed the drape over the courtroom’s windows to block the public’s view of the
trial, in violation of Pena’s rights under the Sixth Amendment to the United States
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Constitution. Specifically, during Dr. Espinola’s testimony, the State introduced
into evidence graphic photographs from the autopsy, and the following exchange
occurred between one of the prosecutors and the trial court:
MS. ALLEN: Your Honor, may we approach just for a real quick—
THE COURT: Yes.
(At the Bench, on the record.)
MS. ALLEN: Earlier there had been some media stuff about this. I
don’t know why they’re interested [in] it, but could we have the
drape closed if we’re about to do the autopsy photos? I just
don’t want—I don’t mind doing it, if that’s okay with you.
THE COURT: I’ll have Frank do it.
Pena’s counsel did not object at any point during this discussion or otherwise raise
a Sixth Amendment argument in the trial court. The record does not reflect the
nature of the drape in question, whether Frank in fact closed the drape, what the
drape would have concealed, if anything, whose view would have been obstructed,
if anyone’s, or how long the drape was closed. Pena argues that the drape covered
windows to the courtroom and its closure violated the rights of the public and the
press to attend Pena’s trial. See, e.g., Lerma v. State, 172 S.W.3d 219, 228 (Tex.
App.—Corpus Christi 2005, pet. ref’d) (in general, Sixth Amendment right to
public trial includes requirement that media have access as “an extension of the
public body”).
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A. Standard of Review
The Sixth Amendment of the United States Constitution provides, in
relevant part, that “[i]n all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial.” U.S. CONST. amend. VI. This right is a structural
requirement of the Constitution and is therefore a structural right, such that Sixth
Amendment errors are “categorically exempt from harm analysis.” McEntire v.
State, 265 S.W.3d 721, 722 (Tex. App.—Texarkana 2008, no pet.) (citing Arizona
v. Fulminante, 499 U.S. 279, 309, 11 S. Ct. 1246, 1264–65 (1991); Salinas v. State,
980 S.W.2d 219, 219 (Tex. Crim. App. 1998)). Nonetheless, “[w]here a defendant,
with knowledge of the closure of the courtroom, fails to object, that defendant
waives his right to a public trial.” United States v. Hitt, 473 F.3d 146, 155 (5th Cir.
2006); see also Turner v. State, 413 S.W.3d 442, 447 (Tex. App.—Fort Worth
2012, no pet.) (because “a complaint that the right to a public trial was violated
is . . . subject to procedural error preservation rules,” defendant must object to
closure of courtroom with sufficient clarity “to provide the trial court and opposing
counsel an opportunity to address and, if necessary, correct the purported error”);
Lilly v. State, 365 S.W.3d 321, 326 (Tex. Crim. App. 2012) (refusing to address
appellant’s right to public trial claims under the Texas Constitution and Code of
Criminal Procedure because appellant failed to brief those arguments and
authorities separately from his arguments under the United States Constitution);
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McEntire, 265 S.W.3d at 722–23 (holding that defendant failed to preserve Sixth
Amendment public-trial argument where his counsel stated that he had no
objection to closing part of trial to public).
Assuming a defendant has preserved a Sixth Amendment argument, “the
first step for a reviewing court when analyzing whether a defendant’s right to a
public trial was violated is to determine if the trial was, in fact, closed to the
public.” Lilly, 365 S.W.3d at 329. “Once it is determined that the defendant’s trial
was closed to the public, the reviewing court decides whether that closure was
proper.” Id. The Court of Criminal Appeals is currently reviewing this
requirement. See Cameron v. State, 415 S.W.3d 404, 409–10 (Tex. App.—San
Antonio 2013, pet. granted). In Cameron, two justices interpreted Lilly not as
requiring a showing that someone was excluded from a trial, but characterized Lilly
as a requirement that a court of appeals review “the totality of the evidence and
determine whether the trial court fulfilled its obligation ‘to take every reasonable
measure to accommodate public attendance’ . . . .” Id. at 409.
The Sixth Amendment does not confer a right upon the media or anyone else
to record courtroom proceedings. Rather, the public’s right of access is
constitutionally satisfied when members of the public and the media are able to
attend the trial and report on their observations. Nixon v. Warner Commc’ns, Inc.,
435 U.S. 589, 610, 98 S. Ct. 1306, 1318 (1978); see also Estes v. Texas, 381 U.S.
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532, 584, 85 S. Ct. 1628, 1654 (1965) (Warren, C.J., concurring) (“[A] trial is
public, in the constitutional sense, when a courtroom has facilities for a reasonable
number of the public to observe the proceedings, . . . when the public is free to use
those facilities, and when all those who attend the trial are free to report what they
observed at the proceedings.”).
B. Analysis
By failing to object to the alleged closing of the trial to the public or
otherwise raise the issue with the trial court, Pena has waived his Sixth
Amendment argument. Lilly, 365 S.W.3d at 326; McEntire, 265 S.W.3d at 722–
23. Even if Pena had preserved this argument, he has failed to demonstrate that his
trial was closed to the public, as required by Lilly, or that the trial court did not
accommodate public viewing of the trial, as required by Cameron. The record
does not even reveal that the drape was closed or what the impact of its closure
would have been on anyone’s ability to attend or view the proceedings inside the
courtroom. On the contrary, it appears that the drape in question, if it was closed,
would merely have prevented photography or videotaping by persons outside the
courtroom, which would not have violated Pena’s Sixth Amendment rights. Nixon,
435 U.S. at 610, 98 S. Ct. at 1318.
We hold that Pena has waived his second argument.
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Improper Admission of Evidence
Finally, Pena next argues that the trial court erred in admitting testimony by
Sergeant Clegg regarding inconsistencies in Pena’s narrative of events. During the
trial, the following exchange took place:
Q. During your interviews with the original officers, being [D.]
Parsons and [L.] Kincaid, were there inconsistencies between
what they said Mr. Pena said and what Mr. Pena was telling
you?
MR. McDONALD [Pena’s counsel]: Judge, I’m going to
object. He’s testifying to – no personal knowledge of
what my client told two officers back in 1982.
THE COURT: Overruled.
A. There were inconsistencies, yes, ma’am.
Pena argues that this testimony should have been excluded under Texas Rule of
Evidence 602, which provides, “A witness may not testify to a matter unless
evidence is introduced sufficient to support a finding that the witness has personal
knowledge of the matter.” TEX. R. EVID. 602. Specifically, Pena argues, “There
was no testimony introduced at trial to show that Clegg personally heard what Pena
told Parsons and Kincaid.” For this reason, Pena argues that Clegg “lacked
personal knowledge of his testimony.”
A. Standard of Review
We review a trial court’s evidentiary rulings under an abuse of discretion
standard. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). We will
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not disturb the ruling if it “was within the zone of reasonable disagreement and
was correct under any theory of law applicable to the case.” Winegarner v. State,
235 S.W.3d 787, 790 (Tex. Crim. App. 2007); see also Willover v. State, 70
S.W.3d 841, 845 (Tex. Crim. App. 2002) (“[T]he appellate court must uphold the
trial court’s ruling if it is reasonably supported by the record and is correct under
any theory of law applicable to the case.”).
B. Analysis
At issue is whether Clegg had sufficient personal knowledge to testify
regarding differences between what Pena told him and earlier officers. Pena
argues that Clegg’s testimony should have been excluded because Clegg did not
personally hear what Pena told Parsons and Kincaid, and thus lacked personal
knowledge to support his testimony. But Clegg was not asked what Pena told
Parsons and Kincaid. Rather, he was asked about “what they said Mr. Pena said.”
Clegg testified that he, along with one other officer, interviewed Pena in
2011 and recorded the entire conversation by both video and audio. This
testimony was sufficient to establish that Clegg had personal knowledge of what
Pena told him in 2011. Clegg also testified that he interviewed Parsons and
Kinkaid in 2011 regarding what Pena told them in 1982. In addition, Clegg
reviewed the written record of Parsons’s 1982 interview of Pena. This evidence
was sufficient to show that Clegg had personal knowledge of what Parsons and
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Kincaid had reported to Clegg that Pena had said. There being no other objection
to the question, we hold that the trial court’s admission of Clegg’s testimony is
reasonably supported by the record. See Winegarner, 235 S.W.3d at 790; Willover,
70 S.W.3d at 845. Accordingly, we overrule Pena’s final argument.
Conclusion
We affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Keyes, Bland, and Brown.
Publish. TEX. R. APP. P. 47.2(b).
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