Cruz-Garcia, Obel

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-77,025

OBEL CRUZ-GARCIA, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL
FROM CAUSE NO. 1384794 IN THE 337th DISTRICT COURT
HARRIS COUNTY

K ELLER , P.J., delivered the opinion of the Court in which M EYERS, J OHNSON,
K EASLER, A LCALA, R ICHARDSON and Y EARY, JJ., joined. HERVEY and NEWELL, JJ.,
concurred.

In June 2013, appellant was convicted of capital murder and sentenced to death.1 Direct

1
TEX . PENAL CODE § 19.03(a)(2); TEX . CODE CRIM . PROC. art. 37.071. Unless otherwise
indicated, all future references to articles refer to the Code of Criminal Procedure.
 CRUZ-GARCIA–2

appeal to this Court is automatic.2 Appellant raises twelve points of error. Finding no reversible

error, we affirm the conviction and sentence.

I. Background

On September 30, 1992, two masked intruders broke into an apartment shared by Arturo

Rodriguez, Diana Garcia, and Diana Garcia’s six-year-old son, Angelo Garcia, Jr. Diana was

awakened by a loud sound coming from her living room. Her husband, Arturo, walked toward the

sound but was quickly met by a large male wearing a mask and pointing a gun at him. Both Diana

and Arturo testified that this man spoke to them, but neither could understand him because he spoke

in an unknown accent. Additionally, they both described the man as “black” or dark-complexioned.

When the initial responding officer made his report about this case, he described Diana’s and

Arturo’s assailants as “black” but testified at trial that he meant “black Hispanics.”

The masked man instructed Diana to turn face down on her bed and then began beating

Arturo. After Diana complied with the instruction to lie face down, a second man entered the room

holding a gun, and one of the intruders tied up Diana. Arturo was tied up with the cord from his

alarm clock, a rag was put in his mouth, and he was beaten on his head with a gun while he knelt by

his bed. At this point, Angelo, who had been sleeping on a pallet by the bed, began crying out for

Diana.

The second intruder then started touching Diana on her buttocks, turned her over so that she

was lying on her back, and put a blanket over her face. The second intruder removed Diana’s panties

and sexually assaulted her. Diana testified that the assailant ejaculated during the sexual assault.

Arturo testified that he saw an unknown male sexually assaulting his wife before the other assailant

2
Art. 37.071, § 2(h).
 CRUZ-GARCIA–3

placed a pillowcase over his head. All the while, Angelo was present in the room and crying.

Once the sexual assault ended, the two men ransacked the bedroom and then left. Arturo

testified that his passport and a bracelet were missing after the incident. After the men left, Diana

got up and untied Arturo’s hands. Diana and Arturo then noticed that Angelo was missing and

walked into their living room to look for him. Upon entering their living room, they saw the first,

tall, masked intruder returning to the apartment. When Diana and Arturo saw this man, they turned

and walked back into their bedroom, and the masked man turned and left the apartment.

After both intruders left, Diana and Arturo left their apartment and began looking for Angelo.

They called out his name at their own apartment complex and across the street but received no

response. At some point, Diana’s neighbor called 911. Houston Police Department (“HPD”)

responded to a 911 call claiming that a child had been kidnapped from Diana and Arturo’s

apartment. Upon arriving, officers found Arturo injured and Diana distraught. An inspection of the

apartment revealed the bedroom to be in disarray, with drawers pulled out of dressers and items of

clothing strewn about. Officers found a cigar in the living room, although at trial both Diana and

Arturo testified that neither one of them smoked.

Police officers interviewed Diana and Arturo on-scene and asked them whether they sold

drugs. Both were untruthful. Diana was transported to a hospital for a sexual assault examination.

A Sexual Assault Nurse Examiner (SANE), Gloria Kologinczok, testified that she performed a

sexual assault examination on Diana Garcia during the early morning hours of October 1 and

produced a sexual assault kit containing evidence from Diana.

On October 1, 1992, police interviewed Diana at the police station, and she came clean about

her and Arturo’s drug dealing. She also told police that appellant was her drug supplier until
 CRUZ-GARCIA–4

recently, when she and Arturo had told appellant that they no longer wanted to sell drugs for him.

Officer U.P. Hernandez interviewed both Diana and Arturo. Arturo testified that, when he spoke to

police, he never lied about his drug dealing, but Officer Hernandez testified to the contrary.

During their investigation, officers also met with or interviewed Leonardo German (friend

of Diana and Arturo), Rogelio Rendon, Carmelo Martinez Santana3 (also known as “Rudy;” friend

of appellant), and Angelita Rodriguez (appellant’s wife).

At trial, Diana and Arturo both testified about their relationship with appellant. Arturo and

Diana sold cocaine for appellant for several years when all three lived in Houston. They also

associated socially with appellant and his wife, Angelita, on several occasions. Arturo testified that

he considered his relationship with appellant to be a friendly one, and Diana testified that Angelita

was her friend. A few months prior to Angelo’s kidnapping, Arturo and Diana told appellant they

no longer wanted to sell drugs for him, and Arturo testified that this upset appellant.

Angelita also testified about her relationship with appellant. Her cousin, Rudy, was good

friends with appellant, and the three of them moved to Houston from Puerto Rico around the same

time in 1989. Angelita and appellant shared an apartment in Humble, a suburb of Houston. Angelita

testified that appellant smoked both cigarettes and cigars and that he owned a gold Oldsmobile and

a blue Thunderbird. Angelita met Diana and Arturo through appellant because of appellant’s drug

dealing.

Angelita learned of Angelo’s disappearance on the news on the afternoon of October 1.

Upon hearing of his disappearance, she immediately approached appellant in their apartment and told

3
Several witnesses are referred to throughout the record by their nicknames. We will do the
same.
 CRUZ-GARCIA–5

him that Angelo had gone missing. Angelita told appellant she wanted to go see Diana and Arturo,

but he refused to go with her. Angelita testified that appellant seemed calm and “normal” upon

hearing the news that Angelo had disappeared, despite the fact that Diana and Arturo were their

friends and their child had gone missing. Appellant then told Angelita that he was leaving Houston

for Puerto Rico immediately and began to pack his bags.

Angelita testified that, due to his sudden departure from Houston, appellant missed a

scheduled court date. He had never missed one prior to that. After appellant left for Puerto Rico,

Angelita could not afford to continue paying rent in their Humble apartment, so she moved to a hotel

in Pasadena. Some time later, Angelita went to the Dominican Republic, where appellant was then

living, to ask him for a divorce. Appellant refused. Angelita then asked him about Angelo, and

appellant confessed to her that he had killed him.

Rudy, Angelita’s cousin, testified that he met appellant when they were both living in Puerto

Rico, prior to their initial move to Houston. Both are originally from the Dominican Republic. Rudy

and appellant moved to Houston to sell drugs in the late 1980s, and Angelita followed them shortly

thereafter. Rudy and appellant worked together selling drugs until Rudy’s drug addiction became

too severe for him to continue dealing. At that point, appellant took over the operation. Rudy

testified that appellant was a violent, angry, and controlling person. Once when appellant thought

Rudy was stealing drug customers from him, he assaulted Rudy and threatened to kill him.

Rudy testified that appellant owned three cars: a blue Chevrolet, a blue Thunderbird, and a

gold Oldsmobile. Appellant routinely lent the Oldsmobile to Bienviendo Melo (also known as

“Charlie”). On September 30, appellant drove his blue Chevrolet to Diana and Arturo’s apartment

to collect his drugs and money. Rudy and Rogelio Aviles (also known as “Roger”) went with him.
 CRUZ-GARCIA–6

Rudy described Roger as tall, strongly built, and dark-complexioned. Appellant parked his car

behind Diana and Arturo’s apartment complex and instructed Rudy to sit in the passenger seat while

he and Roger went inside. Appellant took a .45 caliber pistol with him, Roger carried a knife, and

both appellant and Roger wore black stocking masks.

Approximately thirty minutes after appellant and Roger left the car, appellant came back with

a child in his arms. Rudy recognized the child as Angelo Garcia, Jr. When Rudy asked why

appellant was carrying Angelo, appellant responded, “He saw me.”

Rudy tried to persuade appellant to retrieve Diana to care for Angelo. Appellant left the car

for the apartment again, leaving Angelo with Rudy, but returned with Roger instead of Diana. When

appellant returned, he told Rudy to sit in the back seat with Angelo. Appellant maintained a grip on

his gun while he drove Rudy, Angelo, and Roger to Baytown. Appellant stopped the car not far into

Baytown, and all three men exited the car. Rudy testified that by this time he was very scared and

had grown convinced appellant was going to kill Angelo.

Appellant told Roger, “You already know what you have to do.” Rudy testified that he

walked away from the two other men and then became ill, defecating nearby. As Rudy was walking

away, he heard Angelo scream. Rudy returned to the car where he saw Angelo with blood on his

chest. Appellant ordered Rudy and Roger to put Angelo’s body in the backseat, and they complied.

Appellant drove them to another location in Baytown near a waterway and ordered Rudy and

Roger to put Angelo’s body in the water. The two men once again complied. Rudy and Roger piled

rocks on top of Angelo’s body to make it sink. Rudy testified that appellant had his gun with him

the entire time. The three men then left Baytown and drove to Pasadena. On their way there, several

of their tires blew out.
 CRUZ-GARCIA–7

They managed to make it to a hotel where appellant made Rudy and Roger swear they would

never tell what had happened to Angelo. At the hotel, the men attempted to make other

transportation arrangements by calling Charlie. Appellant, Rudy, and Roger eventually went to

Charlie’s apartment in a taxi, where they retrieved appellant’s car. There, Rudy saw Charlie and his

girlfriend, Linda.

Linda also testified about appellant’s phone call to Charlie. In the early morning hours of

October 1, 1992, Linda and Charlie were staying together at Linda’s mother’s house when they

received several phone calls from appellant. Linda and Charlie were both familiar with appellant

because Charlie sold drugs for appellant. Linda described appellant as controlling.

When Charlie finally answered the phone around 2:00 a.m., appellant asked Charlie to pick

him up. Charlie declined. Approximately thirty minutes later, appellant and Rudy appeared at

Charlie’s house to borrow a car. Linda testified that, while Rudy appeared nervous, appellant did

not. After October 1, 1992, Linda never saw appellant again. Prior to that date, appellant visited

Linda and Charlie’s residence several times a week.

Later in the day on October 1, Rudy and appellant took appellant’s blue Chevrolet to

Rendon’s Garage to have the tires changed. At this time, appellant told Rudy that appellant was

leaving Houston. Rudy helped appellant wash Angelo’s blood and vomit from the interior of the car.

Appellant then sold the car and used the money to buy a plane ticket to Puerto Rico. Rudy drove

appellant to the airport the following day, October 2, 1992, and he did not see appellant again until

they both returned to Houston for appellant’s capital murder trial.

Agent William Ebersole testified that he interviewed Rudy while Rudy was in a federal

prison in Pennsylvania. Agent Ebersole obtained a statement from Rudy about what happened the
 CRUZ-GARCIA–8

night of September 30, 1992, and about appellant’s involvement in Angelo’s murder.

On cross-examination of both Rudy and Agent Ebersole, defense counsel highlighted

inconsistencies between Rudy’s trial testimony and the statement he gave to Agent Ebersole while

imprisoned. Rudy omitted from his story to Agent Ebersole any reference to him defecating while

Angelo was being killed. Rudy told Agent Ebersole that he was familiar with the Baytown area

because he had sold drugs there prior to September 30, 1992, but Rudy denied this at trial. Rudy told

Agent Ebersole that Roger took Angelo to the rear of the driver’s side of the car and that is where

he killed him while appellant stood near the front of the car, but this did not exactly comport with

Rudy’s trial testimony.

While Rudy testified at trial that appellant threatened him and ordered him not to tell anyone

what the three of them did to Angelo, Agent Ebersole’s notes reflected that the three merely made

a pact to keep their secret. Additionally, Rudy’s recollection of how long appellant and Roger were

in Diana and Arturo’s apartment and how many tires blew out on their car once they left Baytown

was inconsistent with the recollection given to Agent Ebersole.

During their investigation into Angelo’s kidnapping, local police officials learned that Diana

and Arturo had rented an apartment in Humble for appellant and his wife. When HPD officers went

to that apartment to look for appellant on October 5, 1992, they found it vacated. Additionally,

officers learned that, prior to it being vacated, the apartment had been occupied by two “black-

Hispanic males” and one light-skinned Hispanic female.

One of the men who had occupied the Humble apartment had been seen wearing a shirt from

Rendon’s Garage with the name Luis on it. Upon learning this, officers went to Rendon’s Garage

where they met with Juanita Rendon, the wife of the owner, Rogelio Rendon. Rogelio was initially
 CRUZ-GARCIA–9

unavailable to speak with officers. Officer Hernandez returned to the garage and observed Rogelio

driving up in a blue Thunderbird. Rogelio was accompanied by a man who identified himself as

Candido Lebron. While Officer Hernandez was speaking with Rogelio, Angelita and Rudy came

to the garage to claim the blue Thunderbird.

The next day, on October 6, HPD received a tip that a Hispanic male was seen at the Humble

apartment. HPD officers returned to the apartment, knocked on the door, and were met by an

individual who again identified himself as Candido Lebron. They later learned his true name was

Rogelio Aviles (also known as “Roger,” the third adult male with appellant and Rudy on the night

of September 30, 1992). HPD officers continued to look for appellant in Houston and surrounding

cities but were unable to locate him.

FBI Agent Eric Johnson testified that he became involved in the current case in 1992 because

it involved the kidnapping of a child under the age of twelve. The FBI worked in conjunction with

local authorities in an attempt to locate Angelo. Appellant was a suspect early on in the FBI’s

investigation. During his investigation, Agent Johnson learned that on October 8, 1992, appellant

was set to appear in a Harris County district court on an unrelated felony drug case.

Agent Johnson testified from court documents that reflected that appellant was scheduled to

appear in court on October 8, 1992, that appellant failed to appear in court on that date, and that his

bond was subsequently forfeited for this failure to appear.

On the afternoon of November 4, 1992, a fisherman walking the banks of Goose Creek in

Baytown discovered Angelo’s body. Because of a cold front that had blown through the area, eight

to ten feet of beach that was normally submerged was exposed; this is where Angelo’s body was

found. Baytown Police Corporal Randy Rhodes was dispatched to the waterway.
 CRUZ-GARCIA–10

Upon arriving, he observed the skeletal remains of a small child on the sandy part of the

beach. The skeleton was mostly intact, but the skull had disconnected from the torso, and some rib

bones and vertebrae had been disturbed. From the same area, officers also recovered a pair of shorts

with a Batman logo and a t-shirt. Diana testified that Angelo had been wearing Batman pajamas on

the night he was kidnapped.

An autopsy was performed on Angelo’s remains in 1992 by Dr. Vladimir Parungao. Dr.

Parungao was no longer employed by the Harris County Institute of Forensic Sciences at the time

of trial, so Harris County Deputy Chief Medical Examiner, Dr. Dwayne Wolf, testified at trial. After

reviewing photographs and Angelo’s autopsy report, Dr. Wolf testified that Angelo’s manner of

death was homicide and that his body appeared in a state that was consistent with it having been

submerged for several weeks. The fact that Angelo was abducted, that his body was found in an

advanced state of decomposition, and that his body was found many miles from his home all

contributed to Dr. Wolf’s opinion that Angelo was murdered.

Dr. Wolf also examined the clothing found near Angelo’s body and testified that any blood

that may have been on the clothing would have washed away after the clothing was submerged in

water. On cross-examination, Dr. Wolf confirmed that he did not find any injuries to any of

Angelo’s bones and that he could not rule out drowning as a cause of death.

DNA evidence was also presented at trial. Sergeant Eric Mehl worked in the cold case

division of HPD in 2007 when this case was reopened. As part of his investigation, Sergeant Mehl

submitted several pieces of evidence to a private forensics lab called Orchid Cellmark4 for DNA

testing. Sergeant Mehl sent the cigar that was collected from the crime scene, Diana’s sexual assault

4
Orchid Cellmark was called “Cellmark Forensics” at the time of trial.
 CRUZ-GARCIA–11

kit, and a cutting from the pair of panties Diana was wearing the night of her sexual assault. The

cutting from Diana’s panties was a cutting from the crotch area. From that cutting, Orchid Cellmark

cut away a small piece on which they performed their testing. Orchid Cellmark developed an

unidentified male DNA profile from these pieces of evidence.

Matt Quartaro, a supervisor of forensics at Orchid Cellmark, testified about the DNA testing

his lab performed after it received evidence from Sergeant Mehl. After testing the cigar, Orchid

Cellmark was able to generate a full DNA profile of an unknown male. This profile was compared

to the profiles of Diana and Arturo, but it did not match either of them.

Orchid Cellmark also tested vaginal swabs from the sexual assault kit. The vaginal swabs

contained a mixture of epithelial cells and sperm cells. The epithelial cells belonged to Diana, and

the sperm cells belonged to more than one male individual. Arturo could not be excluded as a

contributor to the sperm-cell fraction from the vaginal swab. Additionally, the unknown male whose

DNA was found on the cigar could not be excluded as a contributor to the sperm-cell fraction from

the vaginal swab.

When Orchid Cellmark tested the portion of the panties they had received, they once again

found Diana’s epithelial cells and a sperm-cell fraction with more than one contributor. The

unknown male from the cigar DNA sample could not be excluded as a major contributor to the

sperm sample in the panties. Additionally, Arturo could not be excluded as a contributor to that

sperm sample.

Later, in December 2007, Orchid Cellmark received DNA samples from Roger, Charlie,

Leonardo German, and Rudy to compare to the DNA profiles they had obtained from the cigar,

sexual assault kit, and panties. Roger, Charlie, and Leonardo were all excluded as contributors to
 CRUZ-GARCIA–12

any of the DNA evidence found on the cigar, sexual assault kit, and panties.

The first sample received from Rudy was not sufficient to compare to the DNA profiles

Orchid Cellmark had obtained. In June of 2011, Orchid Cellmark received a second DNA sample

from Rudy and at that time was able to exclude him as a contributor to any of the DNA on the

evidence that Orchid Cellmark tested.

In early 2008, Sergeant Mehl learned that appellant was in Puerto Rico. Sergeant Mehl,

working in conjunction with the FBI in Puerto Rico, obtained a DNA sample from appellant on May

23, 2008. He then sent that DNA sample to Orchid Cellmark. On May 28, 2008, Orchid Cellmark

received a sample of appellant’s DNA. The sample arrived in a sealed envelope with appellant’s

name written on it.

Appellant’s DNA matched the profile that had been obtained from the cigar found in Diana

and Arturo’s apartment in September of 1992. Additionally, appellant’s DNA could not be excluded

as a contributor to the unknown male profile found on the vaginal swabs from Diana’s sexual assault

kit. Lastly, appellant’s DNA matched the unknown male profile that was the major contributor to

the DNA in the sperm-cell fraction from Diana’s panties.

Quartaro also discussed the quality-control procedures in place at Orchid Cellmark to prevent

contamination of the evidence they receive and the profiles they obtain. Quartaro acknowledged that

Orchid Cellmark cannot implement or monitor quality-control procedures at other labs. But on

redirect, Quartaro testified that none of the evidence that he received appeared to be contaminated.

All the evidence appeared to be in good condition; it was packaged separately to prevent cross-

contamination, and all containers were sealed. Quartaro also testified that it would be impossible

to contaminate a sample in such a way that appellant’s DNA would appear on that sample unless the
 CRUZ-GARCIA–13

contaminator had some of appellant’s DNA.

Moreover, Quartaro testified that cross-contamination between the cigar and the sexual

assault kit or panties was not possible because appellant’s epithelial cells were found on the cigar,

while appellant’s sperm cells were found on the swabs from the sexual assault kit and the panties.

Additionally, no epithelial cells belonging to appellant were found in the samples from the sexual

assault kit or panties.

The Houston Police Department Crime Lab was also involved in DNA analysis in the instant

case. Courtney Head, an analyst from the crime lab, testified that in February 2010 she received a

known DNA sample from appellant. This sample was collected separately from the sample collected

and sent to Orchid Cellmark in 2008. From this sample, Head performed her own DNA extraction

to create a DNA profile. She then compared that profile to the profiles obtained by Orchid Cellmark

from the cigar, the sexual assault kit, and the panties.

Appellant could not be excluded as a contributor to the male DNA profile found on the cigar

and the vaginal swabs from the sexual assault kit. Additionally, appellant could not be excluded as

the major contributor to a male DNA profile in the sperm-cell fraction obtained from Diana’s

panties. Head testified that, to a reasonable degree of scientific certainty, appellant was the source

of the DNA profile on the cigar and the panties.

Pursuant to his cold case investigation, Sergeant Mehl interviewed Diana, Arturo, Linda

Hernandez, and Angelita Rodriguez. A Spanish-speaking officer interviewed Rudy. Sergeant Mehl

attempted to locate Charlie for an interview but was unable to find him. At the conclusion of his

investigation, Sergeant Mehl filed charges against appellant. Appellant was later tried and convicted

of capital murder and sentenced to death.
 CRUZ-GARCIA–14

II. Guilt

A. Sufficiency of the Evidence

In his third point of error, appellant challenges the sufficiency of the evidence to support his

conviction for capital murder. Appellant highlights the following areas in which he claims the

evidence is insufficient: Rudy’s credibility and motive to testify, Diana’s and Arturo’s descriptions

of their intruders, Diana’s and Arturo’s dishonesty about their drug dealing, Angelita’s potential

ulterior motive to testify against appellant, whether a sexual assault or consensual sexual encounter

occurred, the chain of custody for the forensic evidence, and Angelo’s cause of death. We review

these complaints specifically, in addition to reviewing the totality of the evidence supporting

appellant’s conviction.

This Court does not engage in a factual-sufficiency review. Instead, we engage only in the

legal-sufficiency review enunciated in Jackson v. Virginia.5 In so doing, we review the entire record

in the light most favorable to the verdict to determine whether any rational fact-finder could have

found the elements of the offense beyond a reasonable doubt.6 If a rational fact-finder could have

so found, the verdict will not be disturbed on appeal.7

Here, appellant was convicted of capital murder, having intentionally or knowingly caused

5
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). See also Jackson v.
Virginia, 443 U.S. 307, 318-19 (1979) (holding that the relevant inquiry for appellate courts
reviewing the sufficiency of the evidence to support a conviction 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.” (emphasis in original)).
6
Jackson, 443 U.S. at 319.
7
See id. at 319 (upholding conviction where evidence was legally sufficient). See Temple
v. State, 390 S.W.3d 341, 363 (Tex. Crim. App. 2013) (affirming judgment because evidence was
legally sufficient to support a conviction).
 CRUZ-GARCIA–15

the death of another during the course of committing a kidnapping.8 Circumstantial evidence is just

as probative as direct evidence in establishing guilt.9 Every piece of circumstantial evidence need

not point directly to appellant’s guilt.10 Instead, we examine the cumulative effect of all the evidence

when determining whether such evidence is sufficient to sustain a conviction.11

Further, we permit juries to draw reasonable inferences from the facts they are presented, so

long as their inferences are supported by the evidence adduced at trial.12 After a thorough review of

the record, we conclude that the evidence is sufficient to support appellant’s conviction.

1. Appellant’s Specific Sufficiency Complaints

The jury heard testimony from twenty witnesses, including Diana Garcia, Arturo Rodriguez,

and Rudy. Although appellant attacks the credibility of these three witnesses in particular, all

credibility determinations are solely within the province of the jury.13 The jury is the sole judge of

credibility and of the weight to be attached to the testimony of witnesses.14

The jury was free to believe Rudy’s account of September 30, 1992, at trial and disregard any

inconsistencies with previously-made statements. Rudy’s testimony presented compelling evidence

of appellant’s direct involvement in the kidnapping and killing of Angelo. Rudy’s testimony about

8
See TEX . PENAL CODE § 19.03(a)(2).
9
Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013); Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007).
10
Hooper, 214 S.W.3d at 13.
11
Id.
12
Temple, 390 S.W.3d at 360; Hooper, 214 S.W.3d at 15.
13
Temple, 390 S.W.3d at 363.
14
Id. at 360.
 CRUZ-GARCIA–16

the events of September 30, 1992, was corroborated by Diana’s and Arturo’s accounts that two

masked men entered their apartment and left with their child and by the location where Angelo’s

body was discovered. Appellant also highlights the fact that Rudy was in federal prison when he was

first approached by law enforcement officers during their cold case investigation into Angelo’s death.

This fact goes to Rudy’s credibility, a determination left to the jury.

Additionally, the jury was free to find credible Diana’s and Arturo’s testimony, despite

evidence of previous dishonesty or inconsistent testimony about the disclosure of their drug dealing.

Diana testified that two masked men broke into her apartment, that one sexually assaulted her, and

that when they left, her child was gone. Diana’s testimony was corroborated by Rudy’s testimony

that appellant and Roger, while wearing masks, went to Diana and Arturo’s apartment to retrieve

their drugs and money and left that apartment with Angelo.

Further, Diana’s claim that she was sexually assaulted on the night in question is

corroborated by the DNA results from the evidence in her sexual assault kit. Diana testified that she

and appellant had never had a consensual sexual relationship, yet appellant’s DNA was found in

sperm from vaginal swabs obtained the night that Diana claims she was sexually assaulted.

Appellant also complains that the evidence is insufficient to support his conviction because

of the descriptions Diana and Arturo gave the police of their intruders. Diana, Arturo, and various

police officers testified that Diana and Arturo both described their intruders as “black.” Appellant

is not African-American and therefore contests the applicability of this description to him.

At trial, however, numerous witnesses testified that Mexican Hispanics routinely use the

descriptor “black” to describe dark-complexioned Hispanics who are not from Mexico. The jury was

free to believe this explanation and could reasonably infer from the testimony they heard that Diana
 CRUZ-GARCIA–17

and Arturo were describing dark-complexioned Hispanic males, not African-American males.

Appellant also contests Angelita’s motive to testify and claims her testimony was

untrustworthy. But Angelita’s credibility was for the jury alone to decide. Angelita testified that

appellant was a drug dealer who sold drugs to Diana and Arturo. On October 1, 1992, the night after

Angelo was abducted, appellant abruptly told Angelita he was moving back to Puerto Rico and

expressed no concern over Angelo’s abduction, despite appellant’s friendship with Diana and Arturo.

Angelita’s testimony as to appellant’s flight presented circumstantial evidence of appellant’s guilt,

and the jury was free to believe that testimony and draw reasonable inferences regarding appellant’s

guilt therefrom.

Appellant complains that there was insufficient evidence of the chain of custody of the

forensic evidence admitted by the State. Absent a showing of tampering, discrepancies in the chain

of custody go to the weight to be given a piece of evidence, not its admissibility.15 The jury is the

sole decider of the weight to be given a piece of evidence.

Here, the jury heard testimony that the forensic evidence at issue was stored in sealed plastic

bags. Quartaro testified that, when he received the evidence for testing, he observed no signs of

tampering or contamination. The jury was free to lend credence to Quartaro’s examination of the

evidence and the state it was in based on his training and experience and disregard implications from

defense counsel that the evidence had been compromised.

Lastly, appellant complains of insufficient evidence to support a determination that Angelo

was murdered. But the jury heard evidence from Dr. Wolf, the Deputy Chief Medical Examiner in

Harris County, that, based on all the circumstances surrounding the case, he believed Angelo’s death

15
Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997).
 CRUZ-GARCIA–18

to be a homicide. Dr. Wolf’s testimony, combined with the circumstances surrounding Angelo’s

kidnapping and the discovery of his body, was sufficient for a rational juror to determine that Angelo

had been murdered. The jury was free to believe Dr. Wolf’s testimony and disregard evidence to the

contrary.

Appellant also alludes to an argument that there was insufficient evidence for a fact-finder

to determine Angelo came to his death “as alleged in the indictment.” But here, the State alleged

two separate manner and means for how Angelo died: first, that Angelo was stabbed to death, and

second, that Angelo died by unknown means. Rudy’s testimony provided sufficient evidence, if

believed, that Angelo was stabbed to death. Dr. Wolf’s testimony provided sufficient evidence, if

believed, that at the very least, Angelo was murdered, even if the particular manner and means were

unknown.

It was within the purview of the jury to lend credence to the testimony of Rudy and Dr. Wolf

about how Angelo died. Viewing the evidence in the light most favorable to the verdict, there was

sufficient evidence to support the jury’s verdict that Angelo died at the behest of appellant, in a

manner alleged in the indictment.

2. Other Evidence Supporting Appellant’s Conviction

Beyond appellant’s specific sufficiency complaints, we hold that there is sufficient evidence

in the record for a rational trier of fact to find every element of capital murder beyond a reasonable

doubt. Appellant knew Diana and Arturo through his drug business. When Diana and Arturo

withdrew from appellant’s drug business, appellant became upset with them. Shortly thereafter, two

dark-complexioned males broke into Diana and Arturo’s apartment on the night of September 30,

1992, and assaulted Arturo and sexually assaulted Diana. A sexual assault examination was
 CRUZ-GARCIA–19

performed on Diana that very night and a sexual assault kit was created with the biological material

collected. Subsequent DNA testing revealed that that evidence contained sperm from appellant.

Rudy testified that he saw appellant carry Angelo from Diana and Arturo’s apartment to their

car on the night of September 30, 1992. Appellant then drove to a remote area of Baytown where

he ordered Roger to kill Angelo. Rudy saw Angelo’s body lifeless and covered in blood immediately

after this order and helped Roger dispose of the body in a nearby waterway while appellant looked

on.

One day later, on October 1, 1992, appellant told his wife, Angelita, that he was leaving

Houston to return to Puerto Rico. Angelita testified that this trip was sudden and unplanned.

Appellant cleaned out the interior of the car he had been driving on September 30, sold the car, and

used the proceeds to purchase a plane ticket to Puerto Rico. The next time Angelita saw appellant

was in the Dominican Republic, when he confessed to her that he had killed Angelo.

Appellant was scheduled to appear in a Harris County district court on October 8, 1992, on

a pending drug case. Appellant failed to appear on that date and subsequently forfeited his bond.

Appellant had been present at every court setting prior to the October 8 setting. In November 1992,

Angelo’s body was found in a waterway in Baytown, and Rudy testified that he and Roger had left

Angelo’s body in a Baytown waterway a month prior. We conclude that the evidence is sufficient

to support appellant’s conviction for capital murder. Appellant’s third point of error is overruled.

B. Motion to Suppress

In his first point of error, appellant contends that the trial court denied him due process when

it denied his motion to suppress DNA and other forensic evidence that had been stored by the “old”

Houston Police Department Crime Lab (“old HPD crime lab”). We review a trial court’s ruling on
 CRUZ-GARCIA–20

a motion to suppress under a bifurcated standard of review.16 We afford almost total deference to

the trial court’s determination of historical facts and mixed questions of law and fact that turn on the

evaluation of credibility and demeanor.17 Questions of law and mixed questions of law and fact not

turning on credibility are reviewed de novo.18 We will not disturb the trial court’s ruling if it is

supported by the record and correct under any theory of law applicable to the case.19

At the hearing on appellant’s motion to suppress, appellant argued against the admission of

forensic evidence that had been stored by the old HPD crime lab. Specifically, the pieces of

evidence to which appellant objected were (1) a cigar found at the crime scene, (2) a sexual assault

kit performed on Diana Garcia on the morning after Angelo was kidnapped, and (3) a cutting from

the pair of panties Diana wore the night of the instant offense.

Appellant also argued against the admission of results from DNA testing performed on the

cigar, sexual assault kit, and panties, despite the fact that the proffered test results were not generated

by the old HPD crime lab. In support of his motion, appellant argued that the mere fact that the

forensic evidence at issue had been stored by HPD, and subsequent to that storage the old HPD crime

lab was shut down because of quality-control problems, provided sufficient indicia that the evidence

had been contaminated and was therefore untrustworthy to put before a jury.

The State countered with testimony from three witnesses. First, Eric Mehl, a retired police

sergeant, testified that he had worked on appellant’s case as a member of the cold case squad in the

16
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
17
Id.
18
Id.
19
State v. Ross, 32 S.W.3d 853, 855-56. (Tex. Crim. App. 2000).
 CRUZ-GARCIA–21

homicide division of the Houston Police Department. Pursuant to that role, in October 2007,

Sergeant Mehl obtained the cigar and sexual assault kit that had been collected as evidence in 1992.

At the time it was retrieved, the cigar was being stored in the HPD property room on Goliad Street.

The sexual assault kit was being stored in the property room annex on the 24th floor on Travis Street.

Both the cigar and the sexual assault kit were sealed in separate plastic bags. Sergeant Mehl testified

that both pieces of evidence appeared to be in good condition and neither appeared to have been

damaged.

On October 2, 2007, Sergeant Mehl shipped the cigar and sexual assault kit to Orchid

Cellmark, a private forensics lab that contracted with HPD, for testing. Subsequently, Sergeant Mehl

obtained the cutting of the crotch from the panties that had belonged to Diana, a biological sample

from Diana, and a biological sample from Arturo, that had all been stored in the crime lab. Each

piece of evidence was stored separately in its own sealed plastic bag. Additionally, Sergeant Mehl

obtained stored blood samples of various known associates of appellant.

On May 23, 2008, Sergeant Mehl received a sample of appellant’s DNA after Mehl’s

colleague, Sergeant Stephens, informed Mehl that appellant was in custody in Puerto Rico. An FBI

agent in Puerto Rico obtained appellant’s DNA sample and sent that sample to Sergeant Mehl.

Sergeant Mehl did not open the package containing appellant’s DNA sample but instead repackaged

it and shipped it to Orchid Cellmark for comparison with the evidence already in its possession.20

At the time Sergeant Mehl sent appellant’s DNA sample to Orchid Cellmark, Orchid

20
While the record is clear that Sergeant Mehl sent the cigar and sexual assault kit to Orchid
Cellmark on October 2, 2007, the record is unclear as to when Sergeant Mehl sent the panties and
the known DNA samples from Diana, Arturo, and appellant’s associates. Sergeant Mehl testified
only that, by the time he obtained appellant’s DNA sample from Puerto Rico (May 23, 2008), he had
already sent “all of the original evidence that might contain biological material” to Orchid Cellmark.
 CRUZ-GARCIA–22

Cellmark already had all the original evidence that potentially contained biological material. Later,

Sergeant Mehl received the results of Orchid Cellmark’s testing and comparison. After learning of

Orchid Cellmark’s results, Sergeant Mehl arrested appellant for capital murder.

Second, the State called Matt Quartaro, a supervisor at Orchid Cellmark. Quartaro testified

to his qualifications and to the procedures he employs when he analyzes DNA evidence. Orchid

Cellmark received evidence connected to appellant’s case on October 3, 2007. The evidence arrived

in a sealed box. Within the box were several manilla envelopes and within those envelopes were

sealed plastic bags, each containing an individual piece of evidence. Quartaro testified that nothing

appeared to have been tampered with or contaminated.

Ultimately, Orchid Cellmark took possession of the cigar, the sexual assault kit, Diana’s

panties, DNA extractions that had already been performed on several pieces of evidence, and the

known DNA samples from Angelo’s family and appellant’s associates. Instead of relying on the

existing DNA extractions it received, that were generated by the old HPD crime lab, Orchid

Cellmark performed its own DNA extractions and analyses on the panties, the cigar, and the vaginal

swabs from the sexual assault kit.

An unknown male DNA profile was found on the cigar. That DNA profile could not be

excluded as a contributor to an unknown male DNA profile from sperm found on a vaginal swab in

the sexual assault kit. Additionally, an unknown male DNA profile was discovered on the panties

that was consistent with the unknown male DNA profile found on the cigar and the vaginal swab.

The DNA on the cigar was single-source; only one individual’s DNA was present. The

vaginal swab contained Diana’s epithelial cells, Arturo’s DNA in the form of sperm cells, and an

unknown male contributor’s DNA, also in the form of sperm cells. This unknown male profile
 CRUZ-GARCIA–23

matched the profile obtained from the cigar. Diana’s epithelial cells were also found on her panties

along with sperm from two contributors. The major contributor to the sperm-cell fraction in the

panties matched the unknown male DNA profile found on the cigar. Arturo, Diana’s husband, could

not be excluded as the minor contributor to the sperm-cell fraction in the panties.

On May 28, 2008, Orchid Cellmark received a sample of appellant’s DNA. From that

sample, it obtained a full DNA profile for appellant, which matched the DNA profile found on the

cigar and the major contributor profile obtained from the sperm-cell fraction of the panties.

Appellant could not be excluded as a contributor to the sperm-cell fraction from the vaginal swabs

in the sexual assault kit. Orchid Cellmark eliminated as contributors all of appellant’s associates for

whom they had known DNA samples.

On the topic of contamination, Quartaro testified that without a sample of appellant’s DNA

in the crime lab where the evidence at issue was stored, it would be difficult to contaminate the

evidence with appellant’s DNA. Put another way, it is highly unlikely under existing circumstances

that appellant’s DNA would appear on the evidence at issue if he did not put it there himself.

Quartaro also quelled fears regarding cross-contamination between the cigar and the panties or

sexual assault kit because the cells containing appellant’s DNA on the cigar were saliva and skin

cells, while the cells on the panties and vaginal swabs were sperm cells.

Finally, Quartaro noted that contamination from excess moisture, heat, or other

environmental factors would manifest itself as a degradation of the biological sample found on a

particular piece of evidence. Such contamination would not result in the manifestation of an

otherwise-absent DNA profile.

Third, the State called Courtney Head, a criminalist specialist with the “new” Houston Police
 CRUZ-GARCIA–24

Department crime lab (“new HPD crime lab”).21 Head testified to her qualifications as a DNA

analyst and then testified about the involvement of Genetic Design Lab in the instant case. Genetic

Design Lab is an independent, California-based lab that received DNA extractions from evidence

in appellant’s case in the 1990s. Head testified that her notes indicated that in 1992 the old HPD

crime lab extracted DNA from evidentiary samples and sent those extractions to Genetic Design Lab

for testing. There is no indication that any pieces of actual evidence, as opposed to mere extractions,

were sent to Genetic Design Lab.

Head also testified to analyses she performed at the new HPD crime lab. After receiving a

buccal swab from appellant, Head extracted appellant’s DNA and obtained his DNA profile. Head

then compared that profile to the profiles that had been generated by Orchid Cellmark from the cigar,

the panties, and the vaginal swab. According to Head’s tests, appellant could not be excluded as the

contributor to the DNA on the cigar, appellant could not be excluded as the contributor to the major

DNA profile on the panties, and appellant could not be excluded as a contributor to the DNA found

on the vaginal swab in the sexual assault kit.

Appellant cross-examined all three of the State’s witnesses, focusing on the time each piece

of evidence spent at the old HPD crime lab. Appellant also emphasized the fact that some of the

evidence at issue had even been tested by the old HPD crime lab when it first reached the lab in

1992, including one of the vaginal swabs from the sexual assault kit. Appellant argued to the trial

court that the evidence was contaminated as a result of the time it spent at the old HPD crime lab.

Absent evidence of tampering, allegations or questions regarding the care and custody of a

21
Some years after the closure of the old HPD Crime Lab, HPD opened a new crime lab.
 CRUZ-GARCIA–25

piece of evidence go to the weight to be given that evidence, not its admissibility.22 Here, the only

evidence appellant put forth regarding contamination of the evidence is the fact that it was stored by

the old HPD crime lab. Although appellant offered evidence challenging the reliability of the old

HPD crime lab as a whole, he offered no evidence that the particular evidence at issue in the instant

case had been tampered with or contaminated. In response to appellant’s claims, the State

introduced testimony to support the reliability of the evidence at issue.

The trial court made oral findings of fact on the record.23 The court found Mehl, Quartaro,

and Head to be credible witnesses, qualified to testify in their areas of expertise. The trial court then

recited findings of fact adopting the testimony of the State’s witnesses as it is summarized above.

The court explicitly found that there was no indication that any of the evidence at issue in appellant’s

case had been contaminated or mishandled during the time it was stored by the old HPD crime lab.

Ultimately, the court ruled the cigar, sexual assault kit, and panties admissible as reliable and

relevant evidence. The court determined that the results of the DNA tests performed by Orchid

Cellmark on the cigar, sexual assault kit, and panties were also admissible as reliable and relevant

evidence. Lastly, the court ruled that the DNA comparison performed by Head at the new HPD

crime lab was admissible.

The record supports the trial court’s conclusion that the DNA evidence was reliable. The

trial court heard evidence about how and where each piece of evidence at issue was stored. Quartaro

and Sergeant Mehl both testified that the evidence appeared to have been stored appropriately,

22
Lagrone, 942 S.W.2d at 617.
23
See State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006) (stating that findings
of fact rendered after a ruling on a motion to suppress can be in written form or stated orally on the
record).
 CRUZ-GARCIA–26

separated and sealed in individual containers. Additionally, the trial court found that the locations

where the evidence in this case was stored were not the locations described as being deficient in any

of the reports critical of the old HPD crime lab.

The record also supports the trial court’s conclusion that the DNA evidence was relevant.

Evidence is relevant if it makes any fact of consequence more or less probable than it would be

without the evidence.24 Here, the DNA evidence makes appellant’s presence at Diana and Arturo’s

apartment the night Angelo was kidnapped more probable.

Because we defer to the trial court’s factual determinations so long as those determinations

are supported by the record, we will not disturb the trial court’s findings on appeal. The trial court

did not abuse its discretion in admitting the forensic evidence, and appellant’s due process rights

have not been violated. Appellant’s first point of error is overruled.

In his second point of error, appellant contends that the trial court erred when it limited his

ability to present a defense by excluding evidence critical of the old HPD crime lab and limiting his

cross-examination of witnesses with respect to testimony critical of the old HPD crime lab. We will

address each complaint in turn.

Although defense exhibits 2-9 were offered into evidence at the motion-to-suppress hearing,

they were not the subject of the defense’s motion to suppress. Instead, they were offered in support

of the defense’s motion to suppress, and the trial court included a ruling on their admissibility at trial

in its findings of fact. Because the trial court’s ruling on defense exhibits 2-9 was an evidentiary

ruling, separate from its ruling on the defense’s motion to suppress the State’s evidence, we review

24
TEX . R. EVID . 401 (West 2014). We cite to the version of the Rules of Evidence that was
in effect at the time of appellant’s trial. Although the Rules of Evidence have been amended,
effective April 1, 2015, we note no substantive changes to the rules pertinent to this case.
 CRUZ-GARCIA–27

the denial of exhibits 2-9 for an abuse of discretion only.25

First, appellant complains of the trial court’s exclusion of defense exhibits 2-9 as a violation

of his right to compel the attendance of witnesses in his favor and a limitation on his ability to

present a defense. Absent an abuse of discretion, a trial court’s evidentiary ruling will not be

disturbed on appeal.26 A trial court abuses its discretion only if its ruling lies outside the zone of

reasonable disagreement.27

Defense exhibits 2-9 were offered at the hearing on the motion to suppress the State’s DNA

evidence. At that hearing, the trial court ruled that defense exhibits 2-9 were inadmissible at trial.

Defense exhibits 2-7 consisted of a report termed the “Bromwich Report.” The Bromwich Report

was initiated in response to the closure of the old HPD crime lab in 2003 and heavily criticized the

lab in the areas of quality assurance, internal auditing, training, and standard operating procedure.

The trial court determined that nothing in the Bromwich Report related to the specific

evidence being offered by the State and, as such, was irrelevant under Rule 401 and inadmissible

under Rule 402. Alternatively, the court held that, even if some portions were relevant, the probative

value substantially outweighed the danger of unfair prejudice, confusion of the issues, and the

misleading of the jury under Rule 403.

Defense exhibits 8 and 9 consisted of misconduct reports and criminal histories for three

former HPD crime lab employees, J. Chu, B. Sharma, and D. Wallace, who dealt with the forensic

25
Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000) (“An appellate court
reviewing a trial court’s ruling on the admissibility of evidence must utilize an abuse-of-discretion
standard of review.”); Prystash v. State, 3 S.W.3d 522, 527 (Tex. Crim. App. 1999).
26
Weatherred, 15 S.W.3d at 542.
27
Id.
 CRUZ-GARCIA–28

evidence offered by the State when it was first collected and sent to HPD in 1992. None of these

employees were called to testify in appellant’s trial. Additionally, none of the results of tests

performed by any old HPD crime lab employees were offered into evidence. That being true, the

trial court determined that evidence concerning any misconduct on the part of Chu, Sharma, or

Wallace was irrelevant under Rule 401 and inadmissible under Rules 402, 403, 404, 608, and 609.

Evidence is relevant only if it tends to make a fact of consequence more or less probable than

it would be without the evidence.28 Based on the fact that none of the old HPD crime lab employees

were called to testify for the State, coupled with the fact that results from the tests each performed

were not offered into evidence, it was not outside the zone of reasonable disagreement to determine

that evidence regarding these witnesses was irrelevant. Additionally, because these exhibits did not

comprise the entire substance of appellant’s defense, we cannot say that their exclusion prevented

him from presenting a defense.29 Finding support in the record for the trial court’s ruling, we hold

that the trial court did not abuse its discretion in refusing to admit defense exhibits 2-9.

Appellant also complains in his second point of error that the trial court erred when it limited

his cross-examination as it related to the State’s DNA evidence and the old HPD crime lab.

Specifically, appellant complains that his cross-examination of Sergeant Mehl, FBI Agent Griselle

Guzman, Matt Quartaro, and Courtney Head was impermissibly limited. Appellant’s claim in this

Court is grounded in the Confrontation Clause of the Sixth Amendment. As a threshold matter, the

State asserts that appellant has not preserved a confrontation objection for review. A party must

object in the trial court, and obtain a ruling on his objection, before he can present his complaint for

28
TEX . R. EVID . 401 (West 2014).
29
See infra Part III.A.
 CRUZ-GARCIA–29

appellate review.30 Because appellant did not object in the trial court on Confrontation Clause

grounds, he has not preserved that claim for review in this Court.

At the hearing on the motion to suppress, the trial court ruled that appellant would not be

permitted to go into the Bromwich Report, the closure of the old HPD crime lab, the reasons for that

closure, or the misconduct of former HPD crime lab employees who were not going to testify. The

trial court explicitly stated it would allow cross-examination on the issues of where the evidence was

stored, whether those locations were proper, to whom the evidence was taken, and whether the

storage conditions were proper for reducing or preventing contamination.

At trial, on direct examination, Sergeant Mehl testified that law enforcement officers did not

consider the presence of DNA as evidence when they investigated crimes in 1992, the year of the

instant offense. In order to correct the impression that DNA evidence and analysis was not utilized

by law enforcement in 1992, the trial court permitted appellant to cross-examine Sergeant Mehl on

the fact that the existence of DNA testing was known by police agencies in 1992 and that some of

the evidence relevant to the case at bar had been submitted to the old HPD crime lab for DNA

analysis.

Prior to beginning his cross-examination, defense counsel attempted to re-urge his objection

to the trial court’s ruling at the hearing on his motion to suppress limiting his cross-examination on

the topics of the Bromwich Report and the old HPD crime lab’s closure. Specifically, defense

counsel stated:

[Defense counsel]: Yes, Your Honor. You know I want to go into all that other stuff?

[The court]: I understand that.

30
TEX . R. APP . P. 33.1.
 CRUZ-GARCIA–30

[Defense counsel]: Just so my record is clear, I’m not withdrawing my attempt to go
into it. I’m just–

[The court]: I’m not allowing you to go into the other stuff. Genetic Design, any of
the HPD crime lab studies or anything that’s contained in that study or anything
about its closure. Okay?

[Defense counsel]: Yes ma’am.

Appellant’s objection does not in fact make his record clear. “[T]o preserve an issue for

appeal, a timely objection must be made that states the specific ground for the objection, if the

specific ground is not apparent from the context.”31 An objection must be sufficiently specific to tell

the trial court what a party wants and why he feels himself entitled to it. The trial colloquy excerpted

above does not specifically indicate the legal basis for appellant’s objection to the trial court’s

limitation on his cross-examination. Indeed, appellant specifies no grounds for his objection.

Even without a specific objection, error may be preserved if the grounds for the objection are

apparent from its context, such that context can save an otherwise ambiguous objection.32 But even

when the above exchange is read in the context of the motion to suppress, we cannot discern a

Confrontation Clause objection. In his written motion to suppress, appellant contests the admission

of the State’s forensic evidence and related testimony on Fourth Amendment grounds. Then, at the

hearing on the motion to suppress, where the trial court first ruled on the extent of appellant’s cross-

examination, the focus was on the relevance of the testimony sought to be elicited, not on the

Confrontation Clause. Because appellant did not specifically state he was objecting on

31
Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim. App. 2006).
32
Id. See Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009) (holding that the
circumstances surrounding the defendant’s objection and the trial court’s ruling made it clear that
the trial court was aware of the basis of the defendant’s objection).
 CRUZ-GARCIA–31

Confrontation Clause grounds at the hearing on the motion to suppress or at trial, an objection on

that basis with regard to Sergeant Mehl’s cross-examination is not preserved for our review.33

Second, appellant complains that his cross-examination of FBI Agent Griselle Guzman was

erroneously limited. During the State’s direct examination of Agent Guzman, the State introduced

two buccal swabs taken from appellant. In response to the State’s offer, appellant informed the court

that the swabs were covered by his motion to suppress and indicated that he had no “further

objections.” When given the opportunity to cross-examine Agent Guzman, appellant declined, and

Guzman was released. Appellant lodged no Confrontation Clause objection to the trial court’s

limitation on his cross-examination at trial or during the hearing on his motion to suppress, so his

Confrontation Clause claim as it relates to the cross-examination of Agent Guzman is not preserved

for our review.

Third, appellant complains that his cross-examination of Matt Quartaro was limited. During

the State’s direct examination of Quartaro, it offered the cigar, sexual assault kit, and panties into

evidence. Appellant objected to the admission of this evidence on chain of custody grounds. The

trial court overruled appellant’s objection and at the same time reiterated its limitation on appellant’s

cross-examination to questions about apparent contamination or degradation. At no point did

appellant object on the basis of the Confrontation Clause. Appellant made no Confrontation Clause

objection during the hearing on his motion to suppress either. Again, because appellant did not

specifically state an objection based on the Confrontation Clause, this claim is not preserved for our

review.

33
Cf. Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000) (holding that a hearsay
objection does not preserve a Confrontation Clause objection for appellate review).
 CRUZ-GARCIA–32

Lastly, appellant complains of the limitations placed on his cross-examination of Courtney

Head. During Head’s direct examination the State offered several items into evidence. Each time

appellant said, “No additional objections,” and the State’s evidence was admitted. During his cross-

examination, defense counsel approached the trial court and asked to expand the scope of his cross-

examination to include quality-control issues at the old HPD crime lab. The following colloquy

ensued:

[Defense counsel]: I’m thinking, if you’ll allow me to go into the quality control that
existed on other things when they were ran by the crime lab because of what–she
didn’t work there, number one. And, number two, the old crime lab–I want to do
that, but I don’t want to do it if you’ve told me not to.

[The court]: Do not go into that.

[Defense counsel]: Okay.

Nothing further was said on the subject, and Head was released. Appellant lodged no Confrontation

Clause objection to the trial court’s limitation of his cross-examination of Head at trial or at the

hearing on his motion to suppress. Accordingly, his Confrontation Clause claim has not been

preserved for our review.

An appellant forfeits his confrontation complaint if he fails to object at trial.34 In this case,

appellant never objected on the basis of the Confrontation Clause at trial or during his pretrial

motion-to-suppress hearing. We have previously emphasized the importance of specifying

34
Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990) (“We hold that in failing
to object at trial, appellant waived any claim that admission of the videotape violated his rights to
confrontation and due process/due course of law.”); Fuller v. State, 253 S.W.3d 220, 232 (Tex.
Crim. App. 2008) (“[A]lmost all error–even constitutional error–may be forfeited if the appellant
failed to object. We have consistently held that the failure to object in a timely manner during trial
forfeits complaints about the admissibility of evidence. This is true even though the error may
concern a constitutional right of the defendant.”).
 CRUZ-GARCIA–33

constitutional bases for objections because of the stricter harm analysis performed on appeal.35

Because appellant failed to lodge a Confrontation Clause objection in the trial court, this claim has

not been preserved and we do not reach the merits of appellant’s Confrontation Clause complaint

as it relates to the limitations placed on his cross-examination. Appellant’s second point of error is

overruled.

C. Extraneous Offense Evidence

In his fourth and fifth points of error, appellant complains that the trial court erred when it

admitted evidence of an extraneous offense. Appellant’s objection is two-fold: the actual extraneous

offense appellant complains of is a drug charge, unrelated to the capital murder, but his objection

encompasses the admission of the fact of the drug charge along with the admission of the fact of his

subsequent bond forfeiture on that charge when he failed to appear at a scheduled court date.

We note at the outset that the trial court did not admit any evidence as to the character of the

underlying offense for which appellant was on bond. Instead, the trial court limited the evidence to

the mere fact that appellant forfeited a bond by failing to appear on an unrelated criminal offense.

Therefore, our analysis will address only the admission of evidence of appellant’s bond forfeiture

and flight as shown by appellant’s failure to appear in an unrelated, unnamed criminal case.

In his fourth point of error, appellant contends this evidence was inadmissible under Rule

404(b). In his fifth point of error, appellant contends the evidence was inadmissible under Rule 403.

Because our analysis is the same for both complaints, we will address them together.36 We review

35
Clark v. State, 365 S.W.3d 333, 340 (Tex. Crim. App. 2012).
36
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g).
 CRUZ-GARCIA–34

a trial court’s evidentiary ruling for an abuse of discretion.37 We will affirm an evidentiary ruling

unless it lies outside the zone of reasonable disagreement.38

During trial, the State sought to introduce evidence that appellant failed to appear at a

scheduled court date on an unrelated drug charge approximately one week after the instant offense

occurred. Through FBI Agent Eric Johnson, the State attempted to introduce testimony that, at the

time of Angelo’s kidnapping, appellant had a pending felony drug case in Harris County for which

he had posted a bond, that appellant forfeited that bond when he failed to appear for a scheduled

court date, and that, subsequent to his failure to appear, a federal warrant for unlawful flight to avoid

prosecution was issued.

Appellant objected to the admission of Agent Johnson’s testimony on Rule 404(b), Rule 403,

and hearsay grounds. Ultimately, the trial court allowed Agent Johnson to testify to the fact that

appellant had a pending criminal case in Harris County at the time of the commission of the instant

offense and that, approximately one week after the instant offense took place, appellant failed to

show up at a scheduled appearance for his pending case. Agent Johnson also testified that, at the

time of his flight, appellant was a suspect in Angelo’s kidnapping. The trial court specifically

excluded evidence about the federal flight warrant and about the type of case for which appellant

failed to appear.

Additionally, the court admitted a docket sheet that indicated appellant had been present at

all of his previous court appearances in his pending drug case–approximately twelve settings over

37
Id; Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005).
38
Montgomery, 810 S.W.2d at 391; Cantrell v. State, 731 S.W.2d 84, 90 (Tex. Crim. App.
1987) (“[T]he trial judge’s discretion in admitting an extraneous offense is to be given due
deference.”).
 CRUZ-GARCIA–35

fifteen months. The trial court found consciousness of guilt as indicated by flight to be a permissible

use for the extraneous offense evidence under Rule 404(b) and found that the probative value of the

evidence was not outweighed by its prejudicial effect.

“Extraneous-offense evidence is admissible under both Rules 403 and 404(b) if that evidence

satisfies a two-pronged test: (1) whether the extraneous-offense evidence is relevant to a fact of

consequence in the case aside from its tendency to show action in conformity with character; and (2)

whether the probative value of the evidence is not substantially outweighed by unfair prejudice.”39

The first prong of this test requires us to determine (a) whether the evidence is relevant at all and (b)

whether the evidence is relevant to something other than a showing of character conformity.

Rule 401 governs relevance and provides, “‘Relevant evidence’ means 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.”40 Generally, evidence of

flight is a relevant circumstance from which a jury can infer guilt.41 This is true specifically in the

context of bail-jumping.42 Indeed, flight is admissible “even though it may show the commission

39
Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006); Johnston v. State, 145
S.W.3d 215, 220 (Tex. Crim. App. 2004).
40
TEX . R. EVID . 401 (West 2014).
41
Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994) (“Evidence of flight or
escape is admissible as a circumstance from which an inference of guilt may be drawn.”); Burks v.
State, 876 S.W.2d 877, 903 (Tex. Crim. App. 1994) (same); Foster v. State, 779 S.W.2d 845, 859
(Tex. Crim. App. 1989) (same).
42
Cantrell, 731 S.W.2d at 93 (“The forfeiture of an accused’s bail bond may be proved as
tending to show flight....And flight, in the context of bail-jumping, may be construed as evidence of
guilt.”). See Wockenfuss v. State, 521 S.W.2d 630, 632 (Tex. Crim. App. 1975) (holding that
evidence of defendant’s bond forfeiture was admissible absent the defendant showing the bond
(continued...)
 CRUZ-GARCIA–36

of other crimes.”43 But before evidence of flight can be admitted, it must appear the flight has some

legal relevance to the case being prosecuted.44

Here, the timing of appellant’s flight from prosecution on his drug case is a relevant

circumstance of guilt in the instant case. Appellant fled the jurisdiction only one week after Angelo

was kidnapped and killed. The docket sheet for appellant’s drug offense indicated appellant had

never missed a court date until the court date immediately following the date of the instant offense

and that appellant forfeited his bond when he fled. The trial court did not abuse its discretion in

finding that appellant’s flight one week after Angelo was kidnapped and killed was relevant.

After relevance has been established, the burden shifts to appellant to make an affirmative

showing that the flight is not connected with the offense on trial and is instead connected to some

other transaction.45

Appellant argues that any evidence of flight from the drug prosecution was unrelated to the

capital murder prosecution and showed only consciousness of guilt as to the drug charge. Further,

appellant argues that, because he was not yet charged in the instant case at the time he forfeited his

bond on the drug case, such forfeiture cannot be construed as an act designed to avoid prosecution

(...continued)
forfeiture was related to another offense).
43
Cantrell, 731 S.W.2d at 92; McWherter v. State, 607 S.W.2d 531, 534-35 (Tex. Crim.
App. 1980) (“The fact that circumstances of flight incidentally show the commission of another
crime does not render the evidence inadmissible.”).
44
Hodge v. State, 506 S.W.2d 870, 873 (Tex. Crim. App. 1974) (op. on reh’g). See
Wockenfuss, 521 S.W.2d at 632.
45
Burks, 876 S.W.2d at 904; Hodge, 506 S.W.2d at 873. See Wockenfuss, 521 S.W.2d at
632.
 CRUZ-GARCIA–37

in the instant case. We disagree.

While appellant’s failure to appear for his drug case could have been motivated by his desire

to avoid prosecution in that case alone, there is evidence to support the trial court’s conclusion that

appellant’s failure to appear related to the instant capital murder prosecution. The timing of

appellant’s absence, combined with his status as a suspect in Angelo’s kidnapping and the fact that

he had been present at all prior court dates, supports the finding that appellant’s failure was, at least

in part, motivated by a desire to avoid arrest and prosecution for Angelo’s murder.46

Evidence of appellant’s absence from court one week after the commission of the capital

murder meets the low threshold for relevance imposed by Rule 401, but this is not the end of our

inquiry, because Rule 401 is limited by Rule 404(b). Rule 404(b) provides:

Evidence of other crimes, wrongs or acts is not admissible to prove the character of
a person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident, provided
that upon timely request by the accused in a criminal case, reasonable notice is given
in advance of trial of intent to introduce in the State’s case-in-chief such evidence
other than that arising in the same transaction.47

Therefore, Rule 404(b) tempers what would otherwise be admissible under Rule 401 by

distinguishing between acceptable and unacceptable uses of relevant extraneous-offense evidence.

Rule 404(b) prohibits the use of extraneous-offense evidence to show character conformity. And

while the latter half of Rule 404(b) provides a list of potential permissible uses of extraneous-offense

evidence, it does not contain an exhaustive list of the “other purposes” for which extraneous-offense

46
In Burks, we stated, “Since appellant was already identified as a suspect in the case, his
flight when confronted by the police was relevant to the issue of whether or not he committed the
instant crime.” Burks, 876 S.W.2d at 903-04.
47
TEX . R. EVID . 404(b) (West 2014).
 CRUZ-GARCIA–38

evidence can be used.48

It follows, then, that once extraneous-offense evidence meets Rule 401’s test, it will be

admitted if it serves any relevant purpose–whether listed in 404(b) or not–other than showing

character conformity.

“[C]riminal acts that are designed to reduce the likelihood of prosecution, conviction, or

incarceration for the offense on trial are admissible under Rule 404(b) as showing ‘consciousness

of guilt.’”49 Here, appellant failed to appear in court on an unrelated drug charge. Failure to appear

at a scheduled court date is a criminal act.50 Based on the timing of appellant’s bond forfeiture, there

is evidence to support the trial court’s conclusion that such forfeiture was motivated by a desire to

reduce the likelihood of arrest and prosecution for Angelo’s murder, making evidence of the

forfeiture admissible under Rule 404(b).

Furthermore, evidence of appellant’s flight was not used to show conformity with a general

criminal disposition. Instead, the evidence of appellant’s failure to appear was used to show a

disruption in appellant’s normal course of attending his scheduled court dates after the commission

of the offense in this case. The trial court did not abuse its discretion in finding that evidence of

appellant’s bond forfeiture was admissible under Rule 404(b).

Next, we determine whether the extraneous-offense evidence was barred by Rule 403. Rule

48
Banda v. State, 768 S.W.2d 294, 296 (Tex. Crim. App. 1989) (“Whether or not it neatly
fits one of [the 404(b)] categories, an extraneous transaction will be admissible so long as it logically
tends to make the existence of some fact of consequence more or less probable.”); Johnston, 145
S.W.3d at 220 (“This list is illustrative, not exhaustive.”).
49
Ransom v. State, 920 S.W.2d 288, 299 (Tex. Crim. App. 1996) (op. on reh’g).
50
TEX . PENAL CODE § 38.10(a).
 CRUZ-GARCIA–39

403 provides, “Although relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, or needless presentation of cumulative evidence.”51

Rule 403’s prohibition against the admission of evidence whose probative value is

substantially outweighed by the danger of unfair prejudice is not intended to keep out all evidence

that tends to prejudice the opponent’s case.52 Instead, it aims to prevent only the admission of

evidence that promotes a jury decision on an improper basis.53

Here, the court determined that the probative value of the extraneous-offense evidence was

that it made a showing of flight and potentially provided evidence of guilt. Additionally, the court

took steps to ameliorate the prejudicial effect of the extraneous-offense evidence by redacting the

name of the offense. We cannot say that the prejudicial effect of the extraneous-offense evidence

substantially outweighed its probative value. The trial court did not err in finding that this evidence

was admissible under Rule 403.

The trial court’s decision to admit Agent Johnson’s testimony concerning appellant’s bond

forfeiture does not lie outside the zone of reasonable disagreement as to its admissibility, so the trial

court did not abuse its discretion in admitting the evidence under Rule 404(b) or Rule 403.

Appellant’s fourth and fifth points of error are overruled.

51
TEX . R. EVID . 403 (West 2014).
52
See Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010) (“All testimony and
physical evidence are likely to be prejudicial to one party or the other. It is only when there exists
a clear disparity between the degree of prejudice of the offered evidence and its probative value that
Rule 403 is applicable.”) (internal citations omitted).
53
Montgomery, 810 S.W.2d at 389. See Davis, 329 S.W.3d at 806.
 CRUZ-GARCIA–40

D. Improper Jury Argument

In points of error eight and nine appellant contends that the State engaged in improper jury

argument during the guilt phase of trial. In his eighth point of error, appellant complains of the

following statements made by the prosecutor as being outside the record:

[The State]: Let me give you another example, another example of half the story.
The SANE nurse. She came here and she said: Well there were no injuries. Wow,
that must mean Obel Cruz-Garcia is guilty–is not guilty of capital murder according
to the defense attorneys. No. Let’s talk about what else the SANE nurse said. And
I want to say she said 95%–it is a very high percentage–of rape cases that she does
SANE nurse examinations on–

[Defense counsel]: Objection. Outside the record.

[The State]: –do not have any injuries.

The trial court overruled appellant’s objection and stated, “But I will remind the jury that you recall

the testimony from the witness stand and that is–that will be your guide in your deliberations.

Arguments of counsel is not evidence.”

The State concedes that the prosecutor mischaracterized the SANE nurse’s testimony. At

trial Gloria Kologinczok, the SANE nurse who examined Diana, testified that she does not see

physical injuries resulting from sexual assaults in most of the sexual assault exams she performs.

Kologinczok did not further quantify how often she sees physical injuries during sexual assault

exams, as the prosecutor did during her closing argument.

Jury argument generally serves at least four permissible purposes: summation of the

evidence, reasonable deductions from the evidence, answers to arguments of opposing counsel, and

pleas for law enforcement.54 It is error to insert facts into closing argument that are not supported

54
Davis, 329 S.W.3d at 821.
 CRUZ-GARCIA–41

by the record.55 Because her statement was not supported by the record, the prosecutor’s

quantification of Kologinczok’s testimony was improper, and the trial court erred when it overruled

appellant’s objection.

“However, every inappropriate remark made during closing arguments does not require the

reversal of a conviction.”56 A reversal will be required only if the improper argument is harmful.57

To determine whether the argument was harmful, we must engage in a harm analysis.58 The Rules

of Appellate Procedure provide two avenues for harm analysis, depending upon the type of error

committed: constitutional or nonconstitutional.59

We have held that jury argument that injects facts outside the record is nonconstitutional

error.60 As such, it is governed by Texas Rule of Appellate Procedure 44.2(b).61 Rule 44.2(b)

provides, “Any other error, defect, irregularity, or variance that does not affect substantial rights must

55
Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999) (“Error exists when facts not
supported by the record are injected in the argument....”); Freeman v. State, 340 S.W.3d 717, 728
(Tex. Crim. App. 2011).
56
Lagrone, 942 S.W.2d at 619 (citing Hernandez v. State, 819 S.W.2d 806, 820 (Tex. Crim.
App. 1991)).
57
Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).
58
Id.
59
Compare TEX . R. APP . P. 44.2(a) and TEX . R. APP . P. 44.2(b).
60
Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000) (“Comments upon matters
outside the record, while outside the permissible areas of jury argument, do not appear to raise any
unique concerns that would require us to assign constitutional status. We shall therefore apply the
standard of harm for nonconstitutional error.”). See Brown v. State, 270 S.W.3d 564, 572 (Tex.
Crim. App. 2008) (stating improper-argument error that arose when prosecutor “delved into matters
that were well outside the record” was nonconstitutional in nature).
61
Martinez, 17 S.W.3d at 692.
 CRUZ-GARCIA–42

be disregarded.”62 Therefore, unless the State’s improper jury argument error affected appellant’s

substantial rights, it will not call for a reversal of appellant’s conviction.63

To determine whether the error affected a substantial right, and was therefore harmful, this

Court looks at three factors: (1) the severity of the misconduct, (2) any curative measures employed

to correct the misconduct, and (3) the certainty of conviction without the misconduct.64

First, we examine the severity of the misconduct. The error arose during the State’s final

closing argument in the guilt phase of trial. After objection, the prosecutor immediately moved on

from the topic of the SANE nurse. The error did not relate directly to the act of kidnapping or killing

Angelo, but instead related only to the sexual assault alleged to have taken place prior to the

kidnapping. The SANE nurse did indeed testify that, in most of the sexual assault exams that she

performs, she does not see injuries, so the prosecutor erred only in assigning a numerical value to

the nurse’s testimony.

Additionally, viewing the misconduct in light of the entire record of jury arguments, the

statement was not extreme or manifestly improper. The statement was made in the middle of a

closing argument that spans twenty-one pages of the record, and the prosecutor never emphasized

the statement or returned to the topic of the sexual assault after appellant’s objection. We find the

severity of the misconduct to be slight.

With respect to curative measures, the trial court immediately reminded the jury that

statements made in closing arguments are not evidence, decreasing the likelihood that jurors would

62
TEX . R. APP . P. 44.2(b).
63
Id.; Martinez, 17 S.W.3d at 692.
64
Mosley, 983 S.W.2d at 259; Martinez, 17 S.W.3d at 692-93.
 CRUZ-GARCIA–43

attach significance to the improper statement. Although this does not amount to a curative

instruction, it weighs in favor of the error being harmless.65

Lastly, appellant’s conviction was relatively certain, even without the misconduct. As

discussed extensively above, there was direct and circumstantial evidence connecting appellant to

Angelo’s kidnapping and murder. Based upon the evidence before the jury, it is highly unlikely that

the prosecutor’s misstatement impacted appellant’s conviction. Appellant’s eighth point of error is

overruled.

In his ninth point of error, appellant complains that the prosecutor injected her personal

beliefs into her closing argument. Appellant contends that the following argument was improper:

[The State]: We ask you to find him guilty as a party because what we believed
happened is the defendant directed and encouraged–

[Defense counsel]: Objection to putting beliefs into argument, Your Honor. It’s
improper.

[The court]: That will be overruled.

It is improper for a prosecutor to inject her opinion into statements made before the jury.66 However,

it is proper for a prosecutor to argue her opinion where that opinion is based upon evidence in the

record.67

As stated above, permissible jury argument generally falls into one of four categories:

summation of the evidence, reasonable deductions from the evidence, answers to arguments of

65
Freeman, 340 S.W.3d at 728-29.
66
Johnson v. State, 698 S.W.2d 154, 167 (Tex. Crim. App. 1985).
67
Wolfe v. State, 917 S.W.2d 270, 281 (Tex. Crim. App. 1996) (quoting McKay v. State, 707
S.W.2d 23, 37 (Tex. Crim. App. 1985)).
 CRUZ-GARCIA–44

opposing counsel, and pleas for law enforcement.68

We conclude that the prosecutor’s discussion of what the State believed happened was a

summation of the evidence presented at trial. Rudy testified that appellant kidnapped Angelo, drove

him to Baytown, and then ordered Roger to kill to him. After Angelo’s death, appellant ordered

Rudy and Roger to submerge Angelo’s body. Even if the prosecutor’s statement injected her opinion

into her argument, her opinion was sufficiently supported by the evidence presented at trial.

Even assuming arguendo that the prosecutor’s argument was improper, it was harmless. Jury

argument error is analyzed for harm under Texas Rule of Appellate Procedure 44.2(b).69 Under the

44.2(b) standard, error will not require reversal unless it affects a substantial right.70 To determine

whether error affects a substantial right in the improper-jury-argument realm, we weigh the three

factors discussed above: the severity of the misconduct, any curative measures taken, and the

likelihood of conviction absent the misconduct.71

Here, any possible misconduct was not severe. After reading the prosecutor’s statement in

the context of the entire record of jury arguments, we conclude the prosecutor was merely

summarizing the State’s theory of the case and not suggesting to the jury that she had outside

knowledge about contested facts.

Further, while the trial court did not take any steps to cure the error, the prosecutor

immediately rephrased her statement and said, “What the evidence supports is that the defendant

68
Davis, 329 S.W.3d at 821.
69
Martinez, 17 S.W.3d at 692.
70
TEX . R. APP . P. 44.2(b).
71
Mosley, 983 S.W.2d at 259.
 CRUZ-GARCIA–45

directed and encouraged Roger to kill the little boy.” This quasi-curative measure works in favor

of the error being harmless.72

Additionally, appellant’s conviction was relatively certain, even absent the prosecutor’s

statement. Appellant’s ninth point of error is overruled.

III. Punishment

A. Mitigating Evidence in Punishment

In his sixth and seventh points of error, appellant complains that the trial court erred when

it sustained the State’s hearsay objections to two items of evidence he offered during the punishment

phase of trial. The first piece of evidence, complained of in point of error six, was a series of Bible

study certificates that appellant earned while incarcerated in Puerto Rico. The second piece of

evidence, complained of in point of error seven, was testimony that appellant worked as an informant

for several American federal agencies. Appellant now complains that the trial court’s exclusion of

these pieces of evidence violated his right to put forth a complete defense. Assuming without

deciding that appellant preserved this complaint, we overrule appellant’s sixth and seventh points

of error.

We review a trial court’s evidentiary ruling for an abuse of discretion.73 So, if the trial

court’s determination falls within the zone of reasonable disagreement, we will not disturb it on

72
Hawkins v. State, 135 S.W.3d 72, 85 (Tex. Crim. App. 2004) (“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.”). See Canales v. State, 98 S.W.3d 690, 695-
96 (Tex. Crim. App. 2003) (holding that a prosecutor’s misstatement of the law was harmless when,
immediately following the misstatement, the prosecutor corrected his mistake).
73
Weatherred, 15 S.W.3d at 542.
 CRUZ-GARCIA–46

appeal.74 We begin with appellant’s sixth point of error. Appellant attempted to offer his own Bible

study certificates through his brother, Joel Cruz-Garcia. The State objected that the certificates were

hearsay, and the trial court sustained the objection. Appellant now complains that the trial court’s

ruling excluding the certificates from evidence violated his right to put forth a complete defense.

A criminal defendant’s right to present relevant evidence is not absolute.75 Instead, it is

subject to reasonable restrictions that accommodate other legitimate interests in the criminal trial

process.76 Where mitigating evidence comes in an objectionable form, neither the Texas nor the

United States Constitutions require its admission.77 The Constitution is implicated only if the

evidentiary rule being employed to exclude evidence is applied arbitrarily or unjustly and its

application effectively precludes a defendant from putting forth a defense.78

Here, appellant’s proffered evidence was limited by the application of the hearsay rule. The

rule against hearsay prohibits the admission of out-of-court statements offered to prove their truth.79

74
Id.
75
United States v. Scheffer, 523 U.S. 303, 308 (1998) (“A defendant’s right to present
relevant evidence is not unlimited, but rather is subject to reasonable restrictions.”); Lewis v. State,
815 S.W.2d 560, 568 (Tex. Crim. App. 1991) (“Although the Eighth Amendment to the United
States Constitution assures that no person shall be put to death without the opportunity to bring
before the sentencing authority all evidence of mitigating circumstances, the Constitution does not
assure that the evidence be received in a form which is otherwise objectionable.”).
76
Scheffer, 523 U.S. at 308.
77
Id.; See Renteria v. State, 206 S.W.3d 689, 697 (Tex. Crim. App. 2006) (concluding that
admission of constitutionally relevant evidence is not required if it is otherwise objectionable under
state law).
78
Potier v. State, 68 S.W.3d 657, 662 (Tex. Crim. App. 2002).
79
TEX . R. EVID . 801(d) (West 2014).
 CRUZ-GARCIA–47

Appellant’s certificates were indeed hearsay because they each contained out-of-court statements that

appellant was offering for their truth. As hearsay, the evidence was inadmissible unless it fit within

an exception or exclusion.80 Appellant, as the proponent of the evidence, bore the burden of

articulating an exception or exclusion under which the Bible study certificates would be properly

admissible.81 Appellant offered no such exceptions.

Appellant now asserts that the Bible study certificates were admissible under Texas Rules

of Evidence 803(11), 803(13), 803(19), and 804(3). Without deciding whether appellant has

forfeited his error by failing to allege his hearsay exceptions in the trial court, we hold that none have

merit.

First, appellant’s certificates do not qualify as Records of a Religious Organization under

Rule 803(11) because they are not statements of birth, marriage, divorce, death, legitimacy, ancestry,

relationship, or other fact of personal history. Second, appellant’s certificates do not qualify as

Family Records under Rule 803(13) because they are not statements of fact concerning personal or

family history, nor are they contained in any of the documents listed in Rule 803(13). Third,

appellant’s certificates do not meet the requirements in Rule 803(19) because they do not concern

a person’s birth, adoption, marriage, divorce, death, legitimacy, relationship, ancestry, or other fact

of personal or family history. Lastly, appellant’s certificates do not qualify under Rule 804(b)(3)

because appellant has failed to establish the unavailability of the certificates’ declarant. Further, the

certificates do not contain any statements about the declarant’s own birth, adoption, marriage,

80
Valle v. State, 109 S.W.3d 500, 505 (Tex. Crim. App. 2003).
81
Martinez v. State, 178 S.W.3d 806, 815 (Tex. Crim. App. 2005) (“The State, as the
proponent of the evidence, had the burden of demonstrating the applicability of that exemption or
exception.”).
 CRUZ-GARCIA–48

ancestry, or fact of personal or family history, nor do they contain statements about any of the

foregoing with respect to a person related to or intimately associated with the declarant.

Additionally, appellant’s Bible study certificates do not bear “persuasive assurances of

trustworthiness,” which weighs in favor of the trial court’s exclusion.82

The rule excluding hearsay that does not fit within an exception or exclusion is not an

arbitrary rule, nor was it arbitrarily or unjustly applied to appellant.83 Instead, the rule represents a

reasonable restriction on the admission of evidence that accommodates other legitimate criminal-trial

interests, namely, ensuring the reliability of evidence.84

While appellant contends that the hearsay rule should give way in favor of his right to put

on a defense, “[t]he fact that appellant was not able to present his case in the form he desired does

not amount to constitutional error when he was not prevented from presenting the substance of his

82
See Valle, 109 S.W.3d at 506 (affirming the exclusion of hearsay evidence because it did
not meet an exception to the hearsay rule and did not bear persuasive assurances of trustworthiness).
83
Potier, 68 S.W.3d at 662 (“These cases show that the exclusion of relevant, material,
important evidence by the application of particular rules that are arbitrary or disproportionate to their
purposes may offend the Constitution. They also show that courts are free to apply evidentiary rules
that are not arbitrary and unjustified.”).
84
Id. at 666 (holding that the hearsay rule, when properly applied, is a valid limitation on
a defendant’s evidence). See Renteria, 206 S.W.3d at 697. (“[S]tate and federal rulemakers have
broad latitude under the Constitution to establish rules excluding evidence from criminal trials. Such
rules do not abridge an accused’s right to present a defense so long as they are not ‘arbitrary’ or
‘disproportionate to the purposes they are designed to serve.’ Moreover, we have found the
exclusion of evidence to be unconstitutionally arbitrary only where it has infringed upon a weighty
interest of the accused.”). See Valle, 109 S.W.3d at 506 (holding that defendant’s hearsay evidence
that was not within an exception and that did not bear “persuasive assurances of trustworthiness” was
properly excluded).
 CRUZ-GARCIA–49

defense to the jury.”85 Because appellant was not prevented from presenting the substance of his

defense, the trial court did not abuse its discretion when it sustained the State’s hearsay objection and

excluded appellant’s Bible study certificates. Appellant’s sixth point of error is overruled.

Turning now to appellant’s seventh point of error, appellant once again contends that the trial

court violated his right to put forth a meaningful defense when it sustained the State’s hearsay

objection to testimony about whether appellant worked as an informant for various federal law

enforcement agencies in the United States. But again, appellant’s right to the admission of evidence

in his defense is not absolute.86 If defense evidence is presented in a form that violates the rules of

evidence, and those rules are not being arbitrarily applied, it is not properly admissible.87

The testimony appellant attempted to elicit through Puerto Rican police officer, Agent Juan

DeJesus Rodriguez, about appellant’s work as a federal informant was hearsay because Agent

Rodriguez had no personal knowledge of appellant’s work and had learned about this alleged work

only through conversations with other agents. Because the testimony about what other agents told

Agent Rodriguez was an out-of-court statement being offered for its truth, the State’s hearsay

objection was proper.88

In response to the State’s objection, appellant offered no applicable exceptions or exclusions

85
Valle, 109 S.W.3d at 507; See Potier, 68 S.W.3d at 665 (“We hold that the exclusion of
a defendant’s evidence will be constitutional error only if the evidence forms such a vital portion of
the case that exclusion effectively precludes the defendant from presenting a defense.”).
86
Scheffer, 523 U.S. at 308; Lewis, 815 S.W.2d at 568.
87
See Potier, 68 S.W.3d at 666 (holding that the hearsay rule is a valid limitation on a
defendant’s evidence when it is correctly applied).
88
TEX . R. EVID . 801 (West 2014).
 CRUZ-GARCIA–50

to the hearsay rule. Appellant now asserts that Agent Rodriguez’s testimony was admissible under

Texas Rule of Evidence 803(21). Again, without deciding whether appellant has forfeited this claim,

we hold that it lacks merit. Agent Rodriguez’s testimony did not concern appellant’s character

among appellant’s associates or within his community, so it does not meet the requirements of Rule

803(21).

The exclusion of Agent Rodriguez’s testimony as hearsay did not effectively preclude

appellant from putting on a defense, and the application of the hearsay rule was not arbitrary or

unjust. Consequently, the trial court did not abuse its discretion when it sustained the State’s

objection and excluded appellant’s evidence. Appellant’s seventh point of error is overruled.

B. Improper Jury Argument

In his tenth and eleventh points of error, appellant complains of improper jury argument

during the punishment phase of trial. In point of error ten, appellant complains that the trial court

erred when it overruled his objection to part of the State’s argument, which he contends went outside

the record. During her punishment summation, the prosecutor stated:

Who is orchestrating this deal? Who is orchestrating all the criminal conduct that
he’s involved in from all the evidence that you’ve heard? Him. He is the boss. And
that’s why when he told Roger to stab that little boy, he did. And Roger will pay the
price for that when his turn comes, but don’t take the blame off of the man who told
him to do it. Don’t excuse him. Because I will tell you right now, if it were up to
Roger alone, Angelo would still be alive.

Appellant objected that the last sentence was outside the record. The trial court overruled the

objection and instructed the jury that the arguments of counsel are not evidence. Appellant now

complains of this ruling on appeal. In response, the State contends appellant forfeited his error with

respect to this argument, or alternatively, that the statement was a proper deduction from the
 CRUZ-GARCIA–51

evidence.

Assuming without deciding that error was preserved, we agree with the State’s contention

that the statement was a proper deduction from the evidence. Throughout trial, the jury heard ample

evidence of appellant’s role as the ringleader of the violence that unfolded on the night Angelo died.

Rudy testified that appellant was in charge and ordered Angelo’s death because Angelo saw

appellant sexually assaulting Diana. The prosecutor’s statement that, if it were up to Roger, Angelo

would still be alive, was merely a restatement of what was already before the jury as the State’s

theory of its case and was a proper deduction from the evidence presented at trial. Appellant’s tenth

point of error is overruled.

In his eleventh point of error, appellant complains that the trial court erred when it denied his

motion for a mistrial after improper jury argument from the State during closing arguments in the

punishment phase of trial. Appellant complains that the State went outside the record when it

argued, “What else? They want to minimize the escape attempt. Justin talked to you about that.

What do you think happened after he attempted to escape? You think he might have wound up in

administrative segregation? I bet he did.”

Appellant objected, and the trial court sustained his objection. The trial court instructed the

jury to “disregard the last comment by [the prosecutor] and not consider it for any reason.”

Appellant then moved for a mistrial, which was denied. Appellant now complains of this denial.

We review a trial court’s refusal to grant a mistrial for an abuse of discretion.89 Unless the trial

89
Hawkins, 135 S.W.3d at 77.
 CRUZ-GARCIA–52

court’s ruling was outside the zone of reasonable disagreement, it will not be disturbed on appeal.90

A mistrial will be required only in extreme circumstances where the improper conduct is so

harmful that continuing with the trial would be wasteful and futile.91 We apply the same three-factor

test articulated in Mosley92 and extended in Martinez93 to evaluate “whether the trial court abused

its discretion in denying a mistrial for improper argument.”94

The first factor examines the severity of the misconduct. When determining the severity of

the misconduct, we look at the magnitude of the prejudicial effect and whether the misconduct was

extreme or manifestly improper.95 The misconduct here was slight, and its prejudicial effect was

minimal. The State’s reference to administrative segregation was brief and was perhaps the most

benign evidence offered against appellant during the punishment phase.

Second, we examine curative measures taken by the trial court. Here, the trial court sustained

appellant’s objection and instructed the jury to disregard the prosecutor’s statement. Ordinarily, an

instruction to disregard will sufficiently relieve harm, except with respect to the most inflammatory

90
Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007).
91
Hawkins, 135 S.W.3d at 77.
92
Mosley, 983 S.W.2d at 259 (establishing the three-factor test for determining when
improper jury argument during the guilt phase is harmful).
93
Martinez, 17 S.W.3d at 693 (extending the Mosley three-factor test to apply to improper
jury argument during the punishment phase of trial).
94
Hawkins, 135 S.W.3d at 77.
95
Mosley, 983 S.W.2d at 259; Brown, 270 S.W.3d at 573.
 CRUZ-GARCIA–53

statements.96 The statement at issue was not so inflammatory,97 and the trial court’s actions

“sufficiently ameliorated any potential harm.”98

Lastly, we examine the certainty of the punishment assessed, absent the improper argument.

During the punishment phase of trial, the jury heard evidence that appellant murdered another

individual for flirting with appellant’s girlfriend, and that appellant kidnapped, tortured, and held for

ransom two teenagers in Puerto Rico. Given the severity of the punishment evidence, we cannot say

that, absent the State’s reference to administrative segregation, appellant would have received a

different sentence. The trial court did not abuse its discretion when it denied appellant’s motion for

a mistrial. Appellant’s eleventh point of error is overruled.

C. Motion for New Trial

In his twelfth and final point of error, appellant asserts that the trial court erred when it denied

his motion for a new trial based on alleged jury misconduct during the punishment phase. Appellant

also contends that the trial court erred when it refused his request for an evidentiary hearing on his

motion. Although the trial court heard argument on appellant’s motion for new trial, testimony at

the hearing was restricted to affidavits. We review a trial court’s decision to hold a live hearing on

a motion for new trial, as well as the ruling on such motion, for an abuse of discretion.99 A trial court

96
Long v. State, 823 S.W.2d 259, 269 (Tex. Crim. App. 1991).
97
See Martinez, 17 S.W.3d at 691 (holding that the prosecutor’s statement about facts
outside the record was not so extreme that it could not be cured by an instruction to disregard).
98
Archie, 221 S.W.3d at 700 (holding that sustaining an objection to the prosecutor’s
comment on the defendant’s failure to testify combined with an instruction to disregard was
sufficiently ameliorative of any potential harm such that the error did not require reversal).
99
Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006); State v. Zalman, 400
(continued...)
 CRUZ-GARCIA–54

abuses its discretion in denying a motion for new trial only if no reasonable view of the record could

support the trial court’s ruling.100

The jury began its punishment deliberations on the afternoon of Thursday, July 18, 2013.

The following morning, Friday, July 19, the jurors resumed their punishment deliberations. At some

point during their discussion, juror Casey Guillotte asked her fellow jurors how they were going to

emotionally cope with their verdict. Ms. Guillotte testified by way of affidavit that her inquiry came

after the jury had already agreed on each of the special issues. The other affidavits received by the

trial court are ambiguous as to when her question was posed.

In response to this inquiry, several jurors offered words of encouragement. Then, jury

foreman Matthew Clinger pulled his Bible from his overnight bag and directed Ms. Guillotte to

several passages. Mr. Clinger told Ms. Guillotte that he felt comforted by passages in the book of

Romans. Both Mr. Clinger and Ms. Guillotte testified through their affidavits that Mr. Clinger never

read aloud from his Bible. Juror Angela Bowman’s affidavit indicates that Mr. Clinger “read

scriptures from the Bible,” but she does not indicate those scriptures were read aloud to the entire

jury.

At approximately 3:20 p.m., Ms. Bowman sent a note to the judge asking to speak with her

privately. After discussing the request with the attorneys for the State and defense, the judge spoke

with Ms. Bowman on the record in her chambers. During this conversation, Ms. Bowman expressed

her desire to be replaced with an alternate juror because she could not come to an agreement with

(...continued)
S.W.3d 590, 593 (Tex. Crim. App. 2013).
100
Holden, 201 S.W.3d at 763.
 CRUZ-GARCIA–55

the remaining eleven jurors. Ms. Bowman also expressed hesitancy at the idea of having to be

sequestered over the weekend. The trial judge told Ms. Bowman that she was unable to replace her

with an alternate simply because she was disagreeing with the other jurors and urged Ms. Bowman

to continue deliberating.

Approximately one hour later, the jury returned its punishment verdict in such a way that the

trial court would sentence appellant to death. The trial court polled the jury, and each juror

confirmed that the verdict rendered was his or her true and correct verdict.

Later that evening, Mario Madrid, one of appellant’s trial attorneys, received a phone call

from Ms. Bowman in which she told him that she had been pressured by the other jurors to return

a verdict that would result in a death sentence and that the verdict actually rendered was not her

personal verdict. Mr. Madrid brought this to the attention of the trial court by way of an affidavit

attached to appellant’s motion for new trial.

Appellant complains that alleged jury misconduct tainted the verdict on punishment because

of the foreman’s Bible reading during deliberations. Appellant asserts that this reading was an

outside influence that inappropriately impacted the verdicts of jurors Angela Bowman and Casey

Guillotte, so affidavits to that effect were admissible under Rule 606(b). At the hearing on the

motion for new trial, the State objected to the admission of any affidavits regarding jury

deliberations, but prepared affidavits from Mr. Clinger and Ms. Guillotte should the trial court

choose to admit affidavits.

Inquiring into the deliberative processes of a jury to ferret out misconduct has been prohibited
 CRUZ-GARCIA–56

in this country, save for a few, narrow exceptions.101 This state currently recognizes only two

exceptions to this general rule.102 First, jurors may testify about their deliberations to rebut an

accusation that a juror was unqualified to serve, and second, jurors may testify about whether an

outside influence was improperly brought to bear upon their deliberations.103

This Court has never determined whether reference to the Bible during jury deliberations is

an outside influence. Today we hold that it is not.

This Court first explained in McQuarrie v. State that an outside influence is one that

originates “from a source outside of the jury room and other than from the jurors themselves.”104

But, as we later explained in Colyer v. State, this does not necessarily encompass every influence

originating from outside the physical jury deliberation room.105 “The ‘outside influence’ exception

to Rule 606(b) does not include influences or information that are unrelated to trial issues.”106

Here, the alleged “outside influence” that appellant complains of is a scripture from the Bible

101
FED . R. EVID . 606(b)(2) (“A juror may testify about whether: (A) extraneous prejudicial
information was improperly brought to the jury’s attention; (B) an outside influence was improperly
brought to bear on any juror; or (C) a mistake was made in entering the verdict form.”); TEX . R.
EVID . 606(b)(2) (“A juror may testify: (A) about whether an outside influence was improperly
brought to bear on any juror; or (B) to rebut a claim that a juror was not qualified to serve.”).
102
TEX . R. EVID . 606(b)(2).
103
Id.
104
McQuarrie v. State, 380 S.W.3d 145, 154 (Tex. Crim. App. 2012).
105
Colyer v. State, 428 S.W.3d 117, 127 (Tex. Crim. App. 2014) (holding that a telephone
call from a juror’s physician that the juror’s daughter was sick did not qualify as an “outside
influence” for the purposes of Rule 606(b) despite the fact that it did indeed originate from a source
outside the jury room).
106
Id.
 CRUZ-GARCIA–57

that the jury foreman recommended to another juror in an effort to comfort her. While this scripture

did literally come from outside the jury room, as neither the Bible nor any of its contents were ever

offered into evidence, we cannot say that it meets the definition of “outside influence” this Court

established in McQuarrie.

When a jury has before it evidence that was not offered at trial, or subject to cross-

examination, a defendant’s right to a fair and impartial jury may be compromised. This compromise

occurs, however, only when the outside evidence or influence relates directly to a question of fact

left to the jury’s determination and improperly influences their verdict.

Referring to the Bible did not directly relate to a fact at issue before the jury in appellant’s

case, and the jury was not called upon to decide a fact issue based on anything other than the

evidence properly admitted before it. Had the foreman merely recited a Bible verse from memory,

we could not consider it an outside influence. Indeed, evidence of such a recitation would not have

even been admissible per the constraints of Rule 606(b).107

The fact that the foreman in this instance referred a juror to the Bible verse instead of quoting

it from memory is a distinction without a difference. Either way, there is no evidence that the

biblical reference related to the facts at issue in this case, and it was therefore not an outside

influence under Rule 606(b) and as interpreted by this Court in McQuarrie and Colyer.108

107
Our analysis is guided by the 4th Circuit’s analysis in Robinson v. Polk, where the court
was presented with a factually analogous situation and determined that, because the Bible reading
did not go to a fact at issue in the case, and because a juror merely quoting the Bible from memory
“assuredly would not be considered an improper influence,” there was no improper outside influence
in violation of Rule 606(b). Robinson v. Polk, 438 F.3d 350 (4th Cir. 2006).
108
We are mindful of the fact that the 5th Circuit has held that the Bible can be an external
influence on the jury, but the facts of that case distinguish it from this one.
 CRUZ-GARCIA–58

Because the Bible was not an outside influence, the trial court erred when it admitted State

and defense affidavits describing jury deliberations. Additionally, because the affidavits describing

the inner goings-on of the jury’s deliberations were improperly admitted, any live testimony to that

effect would have been inadmissible under Rule 606(b) as well. Even had the affidavits been

admissible, it was within the trial court’s discretion to rule on a motion for new trial on affidavits

without oral testimony.109 Either way, the trial court did not abuse its discretion when it denied

appellant’s request for an evidentiary hearing on his motion for new trial.

When citizens are selected for jury service, the law does not ask them to set aside every

personal or moral directive to which they adhere, nor will this Court do the same by holding that

reference to such a directive during jury deliberations is improper. If trial attorneys are troubled by

jurors who call upon such beliefs during their deliberations, this trouble is better addressed in voir

dire than it is in by way of a motion for new trial.

The jury foreman’s reference to his Bible in an attempt to comfort his fellow juror was not

an outside influence improperly brought to bear on the jury’s deliberations, and affidavits to that

effect were not properly admissible under Rule 606(b). Regardless, although the trial court erred

in admitting the affidavits, the trial court did not abuse its discretion when it overruled appellant’s

motion for new trial. Appellant’s twelfth point of error is overruled.

We affirm the judgment of the trial court.

Delivered: October 28, 2015
Do Not Publish

109
Holden, 201 S.W.3d at 763.