COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
JESUS EDUARDO SANCHEZ, §
No. 08-14-00012-CR
Appellant, §
Appeal from the
v. §
Criminal District Court No. One
THE STATE OF TEXAS, §
of El Paso County, Texas
Appellee. §
(TC# 20120D00479)
§
OPINION
Jesus Eduardo Sanchez was convicted of two counts of unlawful delivery of a controlled
substance. He was sentenced to probated, three-year prison terms for each offense, and fined
$10,000. Appellant contends on appeal that the trial court: (1) abused its discretion in limiting
his cross-examination of a prosecution witness; (2) erred in submitting a jury charge that denied
his constitutional right to a unanimous verdict; and (3) improperly commented on the weight of the
evidence during the punishment phase of trial. Finding no error, we affirm.
BACKGROUND
While working as an undercover narcotics agent, Detective Jaime Flores obtained a cell
phone number from a Victor Ortega, for an individual that Ortega identified as “Krusty,” for
purposes of purchasing narcotics. On November 10, 2011, using that number, Flores contacted
“Krusty,” whom he later identified as Appellant, and arranged to purchase “ecstasy pills”1 from
him at Ortega’s residence on Alcott Road in El Paso that same day.
Flores went to the Alcott residence and was allowed to enter the residence by Appellant.
While at the residence, Flores purchased “four small white tablet pills” from Appellant for $10 per
pill. Flores observed Appellant take the pills from his pocket, and testified Appellant gave him
the pills in a “hand-to-hand exchange.” Flores did not arrest Appellant because his department
was conducting an ongoing narcotics investigation involving the Alcott residence. After
obtaining the four pills, Flores returned to the police station, where he tested and weighed them,
determining that he had purchased 1.18 grams of MDMA. An independent forensic lab analysis
confirmed those results.
Flores’s second encounter with Appellant came a month later, on December 9, 2011, at a
different residence located on Homestead in El Paso County. Flores had contacted Ortega earlier
that same day by phone and arranged to purchase narcotics at the Homestead location. Flores
parked in front of the residence, and both Appellant and Ortega walked out of the residence to his
vehicle, where the two men spoke to him about the purchase. After negotiating a price, Flores
purchased two “dubs” or “bindles” of cocaine for $40. Flores observed Appellant hand the two
bindles of cocaine to Ortega, who then handed the bindles to Flores. Once again, Flores declined
to arrest either Appellant or Ortega, due to the ongoing investigation. After making this purchase,
Flores took the bindles to the police station where he had them tested and weighed, determining
1
Ecstasy is the street name for methylenedioxymethamphetamine, or MDMA. MDMA is a “Penalty Group 2”
controlled substance. TEX. HEALTH & SAFETY CODE ANN. § 481.103(a)(1) (West Supp. 2015).
2
that they contained 1.1 grams of cocaine.2 An independent forensic lab analysis confirmed those
results.
Both times Flores purchased the narcotics, he was working with another undercover agent,
Detective Luis Soto, who was assigned to observe the purchases from a distance in order to help
ensure Flores’s safety and to verify that a narcotics purchase had taken place. Soto testified that
he had observed Flores enter the Alcott residence on November 10, 2011, and had also observed
Flores leave the residence approximately a minute later. Soto did not actually observe the
narcotics purchase on that occasion, because it occurred inside the home. Soto also confirmed
that he observed Flores’s encounter with Appellant and Ortega outside the Homestead residence
on December 9, 2011. Soto was parked a few hundred feet away from the residence when he saw
Appellant and another individual exit the Homestead residence and approach Flores’s vehicle that
was parked in front of the residence. At trial, Soto testified he was certain that Appellant was the
same individual he observed approach Flores’s vehicle that day.
Flores testified that on January 6, 2012, his department set up surveillance at the Alcott
residence, in part to determine Appellant’s identity. They observed Appellant leave the residence
early that morning. Shortly thereafter, Appellant was pulled over by another officer as part of a
routine traffic stop, who took a photograph of Appellant with his cell phone, which he sent to
Flores in order to confirm Appellant’s identity. Flores testified at trial that, after reviewing the
photograph and observing Appellant at trial, he was 100 percent certain that Appellant was the
same person he had purchased narcotics from in November and December 2011.
2
Cocaine is a “Penalty Group 1” controlled substance. TEX. HEALTH & SAFETY CODE ANN. § 481.102(3)(D) (West
2010).
3
After the traffic stop, Appellant was taken to the police station, where he was placed under
arrest on charges stemming from the two incidents in which he had allegedly sold narcotics to
Flores. Later, a search was conducted of the Alcott residence, and twenty grams of cocaine were
found.
Appellant was initially charged with three counts: including two counts of unlawful
delivery of a controlled substance based on the incidents in November and December 2011, and
one count of possession of a controlled substance based on the cocaine found in the Alcott
residence during the January 6, 2012 search. Shortly before trial, however, the State moved to
dismiss the third count. After that count was dismissed at a pretrial conference, the State
prosecuted Appellant only on the first two counts in the indictment concerning the unlawful
deliveries occurring in November and December 2011.
DISCUSSION
The Trial Court did not Abuse its Discretion in Limiting Cross-Examination
In his first issue, Appellant contends the trial court abused its discretion when it limited the
scope of his cross-examination of Detective Flores, by not allowing him to question Flores
regarding certain misstatements Flores allegedly made in the complaint affidavit he swore out in
support of Appellant’s arrest for the third count in the indictment, which had been dismissed prior
to trial. We conclude the trial court did not abuse its discretion in limiting the cross-examination
of Flores, because Appellant’s proposed cross-examination sought to impeach Flores’s credibility
on a collateral matter.
Background
This issue has its genesis in the pretrial conference that took place shortly before trial at
which the trial court granted the State’s motion to dismiss Count Three in the indictment, which
4
charged Appellant with possession of the narcotics that were found during the search of the Alcott
residence on January 6, 2012. After Count Three was dismissed, Appellant moved to exclude any
reference to that count, as well as to the narcotics that were found during the search of the Alcott
residence. The trial court granted Appellant’s motion, initially ruling that the State would not be
permitted to “get into anything that happened on January 6th of 2012[.]” However, at the parties’
urging, the trial court amended its ruling, stating that the parties would be allowed to refer to the
January 6 traffic stop as far as it related to Flores’s identification of Appellant as the person from
whom Flores had previously purchased narcotics. The trial court emphasized, however, that
“nothing that has to do with the possession of the drugs on January 6th of 2012 comes in.”
Appellant’s defense at trial primarily consisted of attempting to establish that Flores had
mistakenly identified Appellant as the person from whom he had purchased narcotics in November
and December 2011, and that Flores had instead purchased the narcotics from the mysterious
individual known as “Krusty.” In his attempt to discredit Flores’s credibility and to cast doubt on
Appellant’s identification by Flores, Appellant pointed out to the jury certain errors that Flores had
made in his sworn complaint affidavit in support of Appellant’s arrest for the November 2011
narcotics purchase, as well as in his police report pertaining to that incident.
Appellant next turned his attention to the affidavit that Flores had sworn out in support of
the warrant for the search that took place at the Alcott residence on January 6, 2012. Although
arguably in violation of the trial court’s ruling on the motion in limine, the State did not object to
this line of questioning. In particular, Appellant elicited testimony from Flores regarding the
following errors that were contained in that affidavit:
Flores stated that Appellant had sold him ecstasy on more than one
occasion. At trial, Flores clarified that he had intended to report
5
that Appellant had sold him narcotics on more than one occasion,
i.e., ecstasy in November 2011 and cocaine in December 2011.
Flores mistakenly stated that the November 2011 sale took place
outside the Alcott residence, when in fact it took place inside the
residence.
Appellant also asked Flores, without objection from the State, whether he was present
when the search warrant was executed at the Alcott residence on January 6, 2012. Flores
explained that he was not present at the search due to a department policy that prohibited
undercover agents from attending searches in order to protect their identities.
Appellant then began questioning Flores about the complaint affidavit he had sworn out for
Appellant’s arrest on the already-dismissed third count in the indictment, which had charged
Appellant with possession of the cocaine found in the Alcott residence during the January 6 search
(hereinafter the “complaint affidavit”), hoping to point out a factual inconsistency contained in
that affidavit whether Appellant was present at the Alcott residence when the search took place.
At that point, the State objected that Appellant’s questioning violated the trial court’s earlier ruling
on Appellant’s motion in limine prohibiting the admission of any evidence relating to the search of
the Alcott residence.
The trial court held a hearing outside the presence of the jury on the State’s objection, at
which Appellant explained that he believed Flores’s complaint affidavit contained an inherent
factual inconsistency that he wished to point out to the jury for impeachment purposes. In
particular, Appellant noted that on the first page of the affidavit, Flores stated that Appellant was
arrested after he left the Alcott residence on the morning of the search (before the search warrant
was executed), but on the second page of the affidavit, Flores stated that Appellant and Ortega
were observed to be in bed together at the Alcott residence at the time the search warrant was
6
executed. Appellant’s attorney contended this error demonstrated Flores’s deficient memory and
his poor recordkeeping abilities. Appellant explained that he wanted to question Flores on a
limited basis regarding that error to further impeach Flores’s credibility, to call into question
Flores’s ability to accurately recall and record events, and to cast doubt on Flores’s ability to
reliably identify Appellant as the person from whom he had purchased narcotics on the two prior
occasions.
The State objected to the admission of any evidence pertaining to the complaint affidavit,
asserting that it would violate the court’s motion in limine order and because it related only to the
already-dismissed third count in the indictment, and was therefore irrelevant to the two counts for
which Appellant was being prosecuted.
The trial court ultimately ruled that it would not permit either party to present any
additional evidence pertaining to the complaint affidavit or to the search of the Alcott residence,
because it believed that any such evidence was relevant only to the already-dismissed third count
in the indictment, and was not relevant to the two counts for which Appellant was standing trial.
Standard of Review and Applicable Law
A criminal defendant has a constitutional right to present a complete and meaningful
defense at trial, and is denied that right when a “trial court’s clearly erroneous ruling results in the
exclusion of admissible evidence that forms the vital core of a defendant’s theory of defense and
effectively prevents him from presenting that defense.” See Easley v. State, 424 S.W.3d 535, 540
(Tex.Crim.App. 2014) (quoting Walters v. State, 247 S.W.3d 204, 219 (Tex.Crim.App. 2007)); see
also Rock v. Arkansas, 483 U.S. 44, 61, 107 S.Ct. 2704, 2714, 97 L.Ed.2d 37 (1987) (State’s
evidentiary rule that excluded all post-hypnotic testimony prevented a defendant from testifying in
7
her own behalf at trial, and from thereby telling her own “version of the events for which she is on
trial,” deprived the defendant of her constitutional rights to a fair trial and to testify in her own
defense).
This right, however, is not unlimited. As the United States Supreme Court cautioned in
Rock, the “right to present relevant testimony is not without limitation[,]” and that right “‘may, in
appropriate cases, bow to accommodate other legitimate interests in the criminal trial process[,]’”
so long as the restrictions are not “arbitrary or disproportionate to the purposes they are designed to
serve.” Rock, 483 U.S. at 55-56, 107 S. Ct. at 2711. The Texas Court of Criminal Appeals has
similarly recognized that a defendant’s constitutional right to confront witnesses, including the
right to cross-examine witnesses and to impeach witnesses with relevant evidence, is not
unlimited, and a trial court “maintains broad discretion to impose reasonable limits on
cross-examination to avoid harassment, prejudice, confusion of the issues, endangering the
witness, and the injection of cumulative or collateral evidence.” Lopez v. State, 18 S.W.3d 220,
222 (Tex.Crim.App. 2000). “Each Confrontation Clause issue must be weighed on a
case-by-case basis, carefully taking into account the defendant’s right to cross-examine and the
risk factors associated with admission of the evidence.” Id. In determining whether evidence
must be admitted under the Confrontation Clause, the court must balance the probative value of the
evidence sought to be introduced against the risk its admission may entail. Id.
A trial court’s admission or exclusion of evidence is reviewed for an abuse of discretion.
Torres v. State, 71 S.W.3d 758, 760 (Tex.Crim.App. 2002). We will not reverse unless the trial
court’s evidentiary determination falls outside the zone of reasonable disagreement, or unless the
trial court has acted without reference to any rules or guiding principles. Id.; Montgomery v.
8
State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990).
Impeachment on a Collateral Matter
The primary reason Appellant sought to cross-examine Flores regarding the complaint
affidavit was to impeach his credibility by convincing the jury Flores was a poor “historian,” who
displayed “marginal competence” in his work, and who was therefore not to be believed when it
came to identifying Appellant as the person from whom he purchased narcotics in November and
December 2011. While a party is entitled to impeach a witness’s credibility with relevant
evidence, the “general rule [is] that a witness may not be contradicted or impeached as to
immaterial or collateral matters.” Sherman v. State, No. 08-13-00105-CR, 2015 WL 1962815, at
*3-4 (Tex.App. – El Paso April 30, 2015, pet. ref’d) (not designated for publication) (citing
Ramirez v. State, 802 S.W.2d 674, 675 (Tex.Crim.App. 1990)); see TEX.R.EVID. 608(b); see also
Bates v. State, 587 S.W.2d 121, 141-42 (Tex.Crim.App. 1979) (op’n on rehearing) (when
cross-examining to “try the credit of a witness, only general questions can be put, and [the witness]
cannot be asked as to any collateral and independent fact merely with a view to contradict him
afterwards by calling another witness”).
The test to determine whether a matter is collateral is “whether the cross-examining party
would be entitled to prove it as part of the case.” Sherman, 2015 WL 1962815, at *3-4; see also
Ramirez, 802 S.W.2d at 675 (“The test as to whether a matter is collateral is whether the
cross-examining party would be entitled to prove it as a part of his case tending to establish his
plea.”). The subject matter of Appellant’s proposed cross-examination related to a mistake that
Flores made in drafting the complaint affidavit for Appellant’s arrest on the third count in the
indictment, which was dismissed prior to trial. Any mistakes Flores made in that complaint
9
affidavit were irrelevant to the two counts for which Appellant was being prosecuted, and
Appellant would not have been entitled to present evidence of those mistakes in his case in chief.
Therefore, the matters Appellant proposed to raise on cross-examination were collateral matters
and not the subject of proper impeachment.
There are exceptions to the general rule that a party is not entitled to impeach a witness on
a collateral matter. For example, when a witness testifies gratuitously as to some matter that is
irrelevant or collateral to the proceeding, the witness may be impeached by evidence contradicting
that testimony showing he is in error as to that particular matter. Sherman, 2015 WL 1962815, at
*4. In such instances, the witness is said to have opened the door to impeachment, by
“gratuitously raising the collateral matter,” thereby allowing the opposing party to “impeach the
witness on the matter so raised.” Id. (citing Hammett v. State, 713 S.W.2d 102, 106 n.4
(Tex.Crim.App. 1986)). A similar exception exists when a witness leaves a false impression
concerning a collateral matter. In that case, the opposing party is allowed to correct the false
impression regardless of its collateral nature. Ramirez, 802 S.W.2d at 675-76.
In the present case, however, the State never questioned Flores about any issues relating to
the complaint affidavit. Therefore, no errors existed in his testimony for which he could be
impeached. Further, Flores did not gratuitously bring up any issues relating to the complaint
affidavit in his testimony, and thus he did not create any false impressions about the affidavit that
required correction.3 Therefore, neither of those exceptions applies.
3
We disagree with Appellant’s contention that the allegedly contradictory statements contained in Flores’s affidavit
could be considered “prior inconsistent statements,” which would have been admissible for impeachment under the
Texas Rules of Evidence. The rules allowing a witness to be impeached by a prior inconsistent statement are directed
at impeaching a witness’s trial testimony. See Lopez v. State, 86 S.W.3d 228, 230 (Tex.Crim.App. 2002). Flores did
not testify at trial about what occurred when the search warrant of the Alcott residence was executed. Therefore, any
inconsistent statements contained in his affidavit would not be admissible for impeachment purposes.
10
A defendant also generally has a broad right to impeach the credibility of a prosecution
witness based on matters that involve possible “ill feeling, bias, motive, interest, or animus”
against a defendant, and such matters are never considered “collateral or irrelevant” to a
defendant’s inquiry. Billodeau v. State, 277 S.W.3d 34, 42–43 (Tex.Crim.App. 2009); see also
Carroll v. State, 916 S.W.2d 494, 497 (Tex.Crim.App. 1996) (defendants are generally entitled to
cross-examine a witness by inquiring into any area which is reasonably calculated to show a
witness’s motive, bias, or interest in testifying). There is an important distinction, however,
between an attack on the general credibility of a witness and a more particular attack on credibility
that reveals possible bias, prejudice, or ulterior motive of the witness. Hammer v. State, 296
S.W.3d 555, 562 (Tex.Crim.App. 2009). In the present case, Appellant does not suggest that
Flores had any bias or prejudice against him or any ulterior motives in testifying against him.
Instead, Appellant’s argument focused solely on whether Flores was a “poor historian” or a
marginally competent record keeper, which called into question his general credibility.
Therefore, there is no basis for applying this exception.
Accordingly, we conclude that Appellant’s proposed cross-examination of Flores involved
a collateral matter, and was not subject to any exceptions to the rule that a witness may not be
impeached on a collateral matter. We therefore conclude that the trial court did not abuse its
discretion in limiting Appellant’s cross-examination of Flores.
Any Error did not Deprive Appellant of his Substantial Rights
Even if we were to conclude the trial court erred in limiting Appellant’s cross-examination,
the trial court’s decision would not constitute reversible error. Rule 44.2(b) provides different
standards for reversal depending on whether an error is constitutional. If the “appellate record in
11
a criminal case reveals constitutional error that is subject to harmless error review, the court of
appeals must reverse a judgment of conviction or punishment unless the court determines beyond a
reasonable doubt that the error did not contribute to the conviction or punishment.” TEX. R. APP.
P. 44.2(a). However, when evidence is excluded in a manner that does not implicate a
defendant’s constitutional rights, any error in excluding the evidence is reviewed under the
standards set forth in Rule 44.2(b). See Walters v. State, 247 S.W.3d 204, 219 (Tex.Crim.App.
2007). Under this Rule, an appellate court must disregard non-constitutional error that does not
affect the appellant’s substantial rights. TEX.R.APP.P. 44.2(b). Substantial rights are not
affected if the appellate court, after examining the record as a whole, has fair assurance that the
error did not influence the jury, or had but a slight effect. See Coble v. State, 330 S.W.3d 253, 280
(Tex.Crim.App. 2010); Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002).
The erroneous exclusion of evidence generally constitutes non-constitutional error and is
reviewed under Rule 44.2(b). Walters, 247 S.W.3d at 219. An error in excluding evidence only
rises to the level of constitutional error when the excluded evidence “forms such a vital portion of
the case that exclusion effectively precludes the defendant from presenting a defense.” Id.
Appellant contends the exclusion of his proposed cross-examination of Flores regarding the
mistakes he made in the complaint affidavit formed a vital portion of his case, and effectively
deprived him of his right to present a complete or meaningful defense of whether Flores
misidentified him as the person from whom he had purchased narcotics. We disagree. To the
contrary, Appellant was permitted to extensively cross-examine Flores with regard to his
identification of Appellant as the person from whom he had purchased narcotics in November and
December 2011, and was further permitted to extensively cross-examine Flores’s partner,
12
Detective Soto, regarding his identification of Appellant as the individual he observed selling
narcotics to Flores in December 2011. Appellant was also permitted to extensively
cross-examine Flores regarding the errors he made in his police reports and affidavits with regard
to the two incidents for which Appellant was tried.4 Also, the trial court gave Appellant wide
latitude to attack Flores’s credibility during his opening statement and in his closing arguments,
allowing counsel to go so far as to refer to Flores as being a “professional liar in his undercover
operations.” We conclude that any error in excluding Flores’s testimony did not deprive
Appellant of his right to present a meaningful defense, and that any error in excluding Flores’s
testimony was therefore non-constitutional.
Applying the standard for non-constitutional error as set forth in TEX.R.APP.P. 44.2(b),
we conclude Appellant’s substantial rights were not affected by the trial court’s refusal to allow
Appellant to cross-examine Flores concerning the mistakes he made in the complaint affidavit on
the dismissed count. Appellant was allowed to repeatedly attempt to impeach Flores’s credibility
with the mistakes that he made in his paperwork with regard to the charges for which he was
prosecuted, and to thereby call into question Flores’s identification of Appellant as the individual
4
For example, Appellant elicited testimony at trial from Flores as follows:
In his sworn complaint affidavit, Flores initially stated that the purchase occurred in January
2011, rather than in November 2011. At trial, Flores explained that he had likely used a
template to type up the complaint affidavit, which had the January date in it, and that he had
simply forgotten to change the month in one portion of the affidavit. He pointed out that he
had consistently used the correct November 2011 date in the remainder of the affidavit.
In that same affidavit, Flores listed the wrong address for the Alcott residence where the
November narcotics purchase allegedly took place, mistakenly stating that the address was
12860 Alcott Road, rather than 12869 Alcott Road. Flores avowed at trial that this was
simply a typographical error.
In his police report pertaining to the November 2011 narcotics purchase, Flores failed to
state that a ten-year-old child was purportedly present at the Alcott residence at the time of
the purchase, despite testifying to that at trial.
13
from whom he purchased narcotics in both November and December 2011. Further, the State
presented ample evidence establishing that Appellant was the individual from whom Flores
purchased narcotics. Flores identified Appellant as that individual from the photograph taken
during the traffic stop on January 6, 2012, and testified that he was 100 percent certain that
Appellant was the individual from whom he had purchased narcotics in November and December
2011. Detective Soto also was able to confirm Flores’s identification of Appellant as being the
person he observed participate in the narcotics sale in December 2011.
More important, the excluded testimony regarding what occurred during the January 6
search was unrelated to Flores’s identification of Appellant as the person he purchased the
narcotics from on those prior occasions in November and December 2011. Moreover, Flores
testified that he was not even present when the January 6 search of the Alcott residence took place.
Therefore, any erroneous statements that Flores made in the complaint affidavit concerning
Appellant’s whereabouts at the time of the search were not related to his ability to identify
Appellant. At most, the statements were a mischaracterization of events that were reported to him
by other law enforcement agents who were in fact present at the search. While the excluded
testimony may have provided additional evidence that Flores was a sloppy record keeper, prone to
making mistakes in his paperwork, it had nothing to do with whether Flores was able to correctly
identify Appellant as the person from whom he had previously purchased narcotics. After
reviewing the entire record, we can say with fair assurance that the trial court’s decision to exclude
Flores’s testimony did not influence the jury’s verdict. Issue One is overruled.5
5
We reject the State’s contention that Appellant failed to preserve error on this issue by failing to make an offer of
proof containing either the complaint affidavit or a bill containing both the questions counsel would have asked Flores
and Flores’s answers. Appellant’s counsel provided a concise statement to the trial court in which he explained that
he intended to ask Flores about the two conflicting statements contained in the complaint affidavit in an attempt to
14
The Trial Court’s Jury Charge did not Deny Appellant his Right to a Unanimous Verdict
In his second issue, Appellant contends the trial court violated his constitutional right to a
unanimous verdict by charging the jury in the disjunctive that it could convict Appellant of
delivery of a controlled substance if it found that Appellant had committed that offense in any of
three alternate ways, i.e., by an actual transfer of a controlled substance to Flores, by a constructive
transfer of a controlled substance to Flores, or by making an offer to sell a controlled substance to
Flores. Appellant contends the prosecutor compounded this problem when she advised the jury
during closing argument that they were not required to agree on which of the three alternate
methods Appellant used to commit the crime, and that their verdict did not have to be unanimous
on any particular means, but that instead they simply had to agree that he committed the offense of
delivery, regardless of the means used.
We conclude the jury was not required to reach a unanimous verdict with regard to which
of the three alternate means Appellant used to commit the offense of delivery, and was instead
required only to unanimously agree that Appellant committed the offense of delivery. Therefore,
Appellant’s right to a unanimous verdict was not violated either by the trial court’s instruction or
by the prosecutor’s comments.
Standard of Review and Applicable Law
Appellant did not object to the trial court’s jury charge or to the prosecutor’s argument, and
impeach Flores’s credibility and to raise a question in the jurors’ minds regarding Flores’s ability to identify him as the
person from whom he purchased narcotics. This was sufficient to preserve error. See Moosavi v. State, 711 S.W.2d
53, 56 (Tex.Crim.App. 1986) (trial counsel made a sufficient offer of proof where he made a recitation of the
testimony he expected to elicit from a witness, and where it was “clear from the colloquy in the trial court that the trial
judge knew precisely what he was excluding”). We further conclude that Appellant is not “estopped” from raising
this issue on appeal based on invited error. Appellant did not invite the trial court to make the specific ruling about
which he is now complaining. Accordingly, the doctrine of invited error does not bar Appellant from complaining
about this ruling on appeal. See Heidelberg v. State, 36 S.W.3d 668, 671 (Tex.App. – Houston [14th Dist.] 2001, no
pet.) (appellate review was not precluded where party was not shown to have invited the trial court to commit the
specific error raised on appeal).
15
never raised any issue at trial regarding whether his right to a unanimous verdict had been violated.
Although an objection is generally required in the trial court to preserve error for appellate review,
an exception exists when a defendant raises an issue regarding the jury charge. See Kirsch v.
State, 357 S.W.3d 645, 649 (Tex.Crim.App. 2012). Any allegations involving “jury-charge error
must be considered on appellate review regardless of preservation in the trial court.” Id.
Appellate review of a purported error in a jury charge involves a two-step process. The
first step is to determine whether the jury instruction is erroneous. Id. Second, if error occurred,
then an appellate court must analyze that error for harm. Id. Upon finding error in the jury
charge, there are separate standards of review depending on whether the defendant timely
objected. Marshall v. State, 479 S.W.3d 840, 843 (Tex.Crim.App. 2016) (citing Almanza v.
State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984)). If the defendant timely objected to the jury
instruction, reversal is required if there was some harm to the defendant. Id. However, if the
defendant did not timely object, then reversal is required only if the error was so egregious and
created such harm that the defendant did not have a fair and impartial trial. Id.; see also Bluitt v.
State, 137 S.W.3d 51, 53 (Tex.Crim.App. 2004).
Before conducting an egregious harm analysis for the unobjected-to jury instruction, we
must first decide whether the instruction itself was actually erroneous. See, e.g., Tolbert v. State,
306 S.W.3d 776, 779 (Tex.Crim.App. 2010). If the jury charge is not found to be erroneous, we
need not conduct a harm analysis. Cortez v. State, 469 S.W.3d 593, 598 (Tex.Crim.App. 2015).
The Jury Charge did not Deprive Appellant of his Right to a Unanimous Verdict
“Under our state constitution, jury unanimity is required in felony cases, and, under our
state statutes, unanimity is required in all criminal cases.” Ngo v. State, 175 S.W.3d 738, 745
16
(Tex.Crim.App. 2005); Pollock v. State, 405 S.W.3d 396, 404 (Tex.App. – Fort Worth 2013, no
pet.). In order to satisfy the jury unanimity requirement, every juror must agree that “the
defendant committed the same, single, specific criminal act.” Pollock, 405 S.W.3d at 404 (citing
Ngo, 175 S.W.3d at 745).
However, this does not mean the jury must unanimously agree that the defendant
committed the crime in “one specific way.” Holton v. State, __S.W.3d__, 2015 WL 4878608, at
*3 (Tex.App. – El Paso Aug. 14, 2015, no pet.) (citing Pollock, 405 S.W.3d at 404); see also
Landrian v. State, 268 S.W.3d 532, 535 (Tex.Crim.App. 2008). It is well-settled that a jury is
only required to unanimously agree on each “element” of the offense, and is not required to agree
on the “manner and means” by which the defendant committed the offense. Holton, 2015 WL
4878608, at *3 (citing Jefferson v. State, 189 S.W.3d 305, 311 (Tex.Crim.App. 2006)).
Therefore, the “unanimity requirement is not violated by instructing the jury on alternate theories
of committing the same offense[.]” Id. (citing Saenz v. State, 451 S.W.3d 388, 390
(Tex.Crim.App. 2014)); see also Jourdan v. State, 428 S.W.3d 86, 94 (Tex.Crim.App. 2014);
Martinez v. State, 129 S.W.3d 101, 103 (Tex.Crim.App. 2004). A trial court may therefore
submit alternate theories of committing the same offense to the jury in the disjunctive, and the jury
may return a general verdict without reaching “agreement on the preliminary factual issues which
underlie the verdict.” Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991).
Appellant was charged with violating two separate provisions in Chapter 481 of the Texas
Health & Safety Code, both of which allowed a conviction if a person delivers a controlled
substance listed in Penalty Group 1 or 2. TEX. HEALTH & SAFETY CODE ANN. §§ 481.112,
481.113 (West 2010 & Supp. 2015). The Code defines the term “deliver” to mean “to transfer,
17
actually or constructively, to another a controlled substance,” as well as “offering to sell a
controlled substance[.]” TEX. HEALTH & SAFETY CODE ANN. § 481.002(8) (West 2010).
The question in this case is whether, when the Legislature provided these three alternate
definitions of “deliver,” it intended to create three alternate “manner and means” of committing the
single offense of delivery of a controlled substance, or whether it intended for the alternate
methods of delivery to be considered separate “elements” of the offense itself. Appellant
contends the Legislature intended for them to be separate elements, and that the trial court
therefore erred in treating these separate “elements” as being “alternative means,” when it
instructed the jury in the disjunctive. See Richardson v. United States, 526 U.S. 813, 818-20, 119
S.Ct. 1707, 1710-11 (1999) (a defendant is deprived of his constitutional right to a unanimous
verdict if a trial court mistakenly treats separate violations as merely being “alternative means”).
We disagree.
Our sister court has rejected a similar argument in Rodriguez v. State, 89 S.W.3d 699, 701
(Tex.App. — Houston [1st Dist.] 2002, pet. ref’d). In Rodriguez, the defendant was charged with
delivery of a controlled substance (marijuana), and the trial court instructed the jury in the
disjunctive that the defendant could be found guilty of “delivery,” based on “actually transferring,
constructively transferring or offering to sell marijuana.” Id. at 701 (emphasis in the original).
The defendant argued that the trial court’s instruction raised the possibility that the jury may have
reached a “non-unanimous jury verdict,” because the jurors may have disagreed on the method by
which he had allegedly committed the offense. The court in Rodriguez concluded, however, that
the statute simply set forth three alternative methods for committing the single offense of delivery,
and that “the jury need not agree on the method of delivery to convict” the defendant, and instead
18
need only reach a “unanimous verdict of a single delivery of a controlled substance.” Id. at 702.
In particular, the court noted that “[e]ven if half the jury convicted appellant for offer to sell while
the other half convicted appellant for constructive transfer, the jury had a unanimous verdict of a
single delivery of a controlled substance.” Id. Accordingly, the court concluded that the trial
court properly instructed the jury in the disjunctive that it could convict the defendant of the single
offense of delivery under any of the three alternative theories alleged by the State, and that the
defendant’s right to a unanimous verdict was not violated when the jury returned a general verdict
finding the defendant guilty of the offense of delivery without specifying which of the three
methods it believed the defendant utilized to commit that offense. Id. at 701 (citing Kitchens, 823
S.W.2d at 258).
The Texas Court of Criminal Appeals favorably cited Rodriguez for the proposition that
the offense of delivery of a controlled substance may be committed by any of the alternate means
set forth in the Texas Health and Safety Code. Lopez v. State, 108 S.W.3d 293, 299-300
(Tex.Crim.App. 2003). In approving the holding in Rodriguez, the Court noted that the jury in
Rodriguez rendered a “permissible general verdict” because the defendant was charged with
alternate theories of committing the same offense. Id. at 299. The Court further noted that the
means set forth in the statute for committing the offense of delivery, i.e., actual transfer,
constructive transfer, and the offer to sell, are merely “points along a continuum in the line of drug
distribution,” that the “gravamen of the offense of delivery is driven by the particular quantity of a
particular contraband substance.” Id. at 297, 299.
In the present case, we similarly conclude that the trial court properly instructed the jury in
the disjunctive that it could convict Appellant based on any of the three alternate theories alleged
19
by the State for accomplishing the delivery offenses, and that it properly allowed the jury to return
a general verdict, finding Appellant guilty of delivery, without requiring the jury to unanimously
agree on which of the alternate theories he was alleged to have committed the offense.6
Sufficient Evidence Supported the Jury Charge and the Jury’s General Verdict
Although Appellant does not raise the sufficiency of the evidence as a separate issue on
appeal, he makes a related argument that because the jury was not required to agree on which of
the three alternate means Appellant utilized to commit the delivery offense, his conviction cannot
stand unless there was sufficient evidence to support a finding that he committed the offense using
all three means. He contends that if the evidence does not support a conviction on even one of
those theories, he is entitled to an acquittal.
In support of his argument, Appellant correctly points out that the evidence presented at a
defendant’s trial “must be sufficient to prove that a particular offense occurred, and the particular
offense must be that for which the defendant was tried.” Miles v. State, 357 S.W.3d 629, 633
(Tex.Crim.App. 2011) (emphasis in the original). Appellant’s conviction, however, does not rest
on a theory that was not presented to the jury. To the contrary, the jury was adequately apprised
by both the trial court’s jury charge and the prosecutor’s closing arguments that the State was
seeking a conviction based on any one of the three alternate theories of committing a delivery, as
alleged in the indictment. Appellant’s argument instead rests on the premise that the State was
required to present evidence in support of each and every alternate means with which it charged
Appellant.
6
Finding no error in the jury charge, we reject Appellant’s argument that the prosecutor made an improper jury
argument that encouraged the jury to return a non-unanimous verdict. To the contrary, the prosecutor correctly stated
the law when she explained to the jurors that they were not required to unanimously agree on which of the alternate
means Appellant utilized to commit the delivery offenses.
20
Our sister court has rejected a similar argument involving a defendant convicted of
delivery of a controlled substance. See Payan v. State, 199 S.W.3d 380, 383-85 (Tex.App. –
Houston [1st Dist.] 2006, pet. ref’d). In Payan, the trial court instructed the jury it could find the
defendant guilty of delivery of a controlled substance by the three alternate means available under
the Texas Health and Safety Code, including delivery by actual transfer, constructive transfer, or
by offer to sell. The court concluded the verdict must stand if the evidence supported “any of the
three alternative manners of delivery,” as set forth in the jury charge and as alleged in the
indictment. Id. at 384 (emphasis added); see also Kitchens, 823 S.W.2d at 258 (when a jury is
properly instructed on alternate theories of committing a single offense, and the evidence is
sufficient to support a finding under any of the counts submitted, no error is shown).
In the present case, we find more than ample evidence to support Appellant’s conviction of
both delivery offenses based on one or more of the three alternate theories that were submitted to
the jury. First, with regard to the November 2011 offense, there was sufficient evidence to
support a finding that Appellant delivered a controlled substance to Flores through an “actual
transfer,” as Flores positively identified Appellant as the individual who directly handed him the
four ecstasy pills in the Alcott residence on November 10, 2011. See Heberling v. State, 834
S.W.2d 350, 354 (Tex.Crim.App. 1992) (“[A]n actual transfer or delivery, as commonly
understood, contemplates the manual transfer of property from the transferor . . . or to the
transferee’s agents or to someone identified in law with the transferee.”). With regard to the
December 2011 incident, there was sufficient evidence to support a finding that Appellant
delivered a controlled substance to Flores through a “constructive transfer,” based on Flores’s
testimony that Appellant handed the bindles of cocaine to Ortega, who then handed the bindles to
21
Flores for purchase in Appellant’s presence outside the Homestead residence. See Sims v. State,
117 S.W.3d 267, 277 (Tex.Crim.App. 2003) (noting that a constructive transfer may take place
when the transferor had either direct or indirect control of the substance transferred prior to the
alleged delivery, and the transferor knew of the existence of the transferee).
Because the jury was properly instructed on all three possible means under which it could
have found Appellant guilty of delivery, and because the evidence supported a conviction on at
least one of those theories, we decline to address whether Appellant could have been found guilty
based on any of the other alternate theories alleged by the State. We therefore overrule
Appellant’s second issue.7
The Trial Court did not make an Improper Comment on the Evidence in its
Supplemental Jury Instruction
In his third issue, Appellant contends that, when the trial court responded to questions from
the jury during its deliberations in the punishment phase of the trial, it improperly commented on
the evidence and misled the jury regarding its duties to assess Appellant’s punishment. We
disagree and conclude the trial court’s response to the jury properly stated the law and did not
mislead the jury.
During their deliberations in the punishment phase of trial, the jury sent a written note to
the trial court:
Please clarify that the time for both counts as well as fines would be added for a
total number. Also, in the case of fines, how long does the defendant have to pay?
The trial court discussed the note with the attorneys before responding. During this discussion,
the prosecutor expressed her opinion that the jury was asking whether any sentence would be
7
Having found no error in the trial court’s instruction, it is unnecessary to conduct a harm analysis. Cortez, 469
S.W.3d at 598.
22
served consecutively or concurrently. The prosecutor pointed out that neither this, nor the
amount of time Appellant had to pay a fine, was a matter for the jury’s consideration.8 Defense
counsel agreed, but asked the trial court to respond to the jury only by referring the jury back to the
court’s original jury charge and advising the jury to continue its deliberations by informing the jury
that the applicable law had already been submitted to them in the jury charge. Instead over
Appellant’s objection, the trial court gave the following written instruction to the jury:
In response to your questions, these are matters that are not for your consideration.
Please continue with these instructions along with those already given to you and
continue your deliberations.
While defense counsel’s objection at trial was not entirely clear,9 it appears that he objected only
to the first sentence in the jury instruction, which advised the jury that the matters it inquired into
were not any of its concern, since the remainder of the instruction merely referred the jury back to
the original charge, as defense counsel had requested the court to do.
When the trial court responds substantively to a question from the jury during
deliberations, that communication amounts to a supplemental jury instruction, and the trial court
must follow the same rules for impartiality and neutrality that generally govern jury instructions.
See Daniell v. State, 848 S.W.2d 145, 147 (Tex.Crim.App. 1993). Accordingly, “the trial court,
as a general rule, must limit its answer to setting forth the law applicable to the case; it must not
express any opinion as to the weight of the evidence, sum up the testimony, discuss the facts, or
use any response calculated to arouse the sympathy or excite the passions of the jury.” Lucio v.
8
The trial court has the exclusive right to decide whether multiple sentences will run consecutively or concurrently.
See Barrow v. State, 207 S.W.3d 377, 380 (Tex.Crim.App. 2006).
9
We reject the State’s argument that we should decline to consider whether the instruction was erroneous because
Appellant did not state a clear legal basis for his objection. Allegations involving “jury charge error must be
considered on appellate review regardless of preservation in the trial court.” See Kirsch, 357 S.W.3d at 649.
Accordingly, we must consider whether the instruction was erroneous, and if so, we must then analyze any such error
for harm under the proper standard. Id.
23
State, 353 S.W.3d 873, 875 (Tex.Crim.App. 2011). Appellant acknowledges that the jury
inquired about sentencing matters that were not within the jury’s province, and that the trial court’s
response that those matters were “not for your consideration” was both facially neutral and legally
accurate. Appellant points out, however, that even an instruction that is otherwise legally
accurate, may nevertheless constitute an improper comment on the weight of the evidence. See,
e.g., Kirsch, 357 S.W.3d at 652. Appellant apparently believes that by not simply referring the
jury back to the original charge, and by instead responding directly to the jury’s questions, the trial
court made an improper comment on the evidence.
It is well established that when a jury inquires about a matter that has already been the
subject of a prior jury charge, it is proper for the trial court to simply refer the jury to the charge
already given and advise the jury to continue its deliberations. See, e.g., Gamblin v. State, 476
S.W.2d 18, 20 (Tex.Crim.App. 1972) (where jury asked for a definition of the terms “murder with
malice and murder without malice” the trial court properly referred the jury to the charge already
given); Sanchez v. State, 243 S.W.3d 57, 67 (Tex.App. – Houston [1st Dist.] 2007, pet. ref’d)
(when jury asked for clarification on gun enhancement issue, the trial court properly referred the
jury to the charge previously given on that subject). The jury here, however, inquired about a
specific matter that was not covered by the jury charge. When a jury inquires about matters not
already covered in the original jury charge, the trial court has the discretion to provide additional
clarifying instructions to the jury, subject to the restriction that the additional instruction not
constitute an improper comment on the weight of the evidence or otherwise mislead the jury.
Lucio 353 S.W.3d at 877.
In Lucio v. State, the jury, during its deliberations in the punishment phase, inquired why
24
the defendant’s family had not testified on his behalf, asking if there were any laws that prohibited
a family member from testifying on the defendant’s behalf. In response, the trial court instructed
the jury that: “The law does not prohibit a family member from testifying on behalf of a
defendant so long as the witness has relevant evidence related to an issue in the case. You have
heard all of the witnesses who have been called to testify. Please continue your deliberations.”
Id. at 874. On appeal, the defendant argued that the trial court’s instruction was an improper
comment on the evidence because it singled out that defendant’s family members did not testify on
his behalf at trial. Id. at 875-76. The Court of Criminal Appeals disagreed, holding that the
“general rule that prohibits the court from singling out a particular piece of evidence in its
instructions to the jury given prior to jury deliberations does not necessarily apply when the court
merely responds to the jury’s question concerning a subject identified by the jury alone.” Id. at
877. The Court noted that “[n]othing in the trial court’s answer focused the jury on the fact that
none of appellant’s family members had testified during the punishment phase[,]” but rather it was
the “jury alone [that] focused on that fact, which prompted its note to the trial court[.]” Id.
Finding no error in the trial court’s response, the Court held that the trial court’s instruction merely
provided a “correct statement of law that family members with relevant evidence were not
prohibited from testifying.” Id.; see also Green v. State, 912 S.W.2d 189, 193 (Tex.Crim.App.
1995) (trial court did not err by providing a “narrow and straightforward answer” to the jury’s
question whether a witness had stated the defendant had “emotional problems[,]” when it advised
the jury that the witness did not use that term, because the response was “an objective conclusion
based on the record concerning a dispute among the jury about the testimony of a witness”).
Likewise, Appellant has failed to point to any particular piece of evidence or evidentiary
25
issue that the trial court focused on when it gave its supplemental instruction to the jury. To the
contrary, the trial court merely responded to the jury’s question, and did so in a neutral,
straightforward, narrow, and legally-correct manner, advising the jury that the questions it posed
did not concern proper matters for the jury’s consideration, without expressing any opinion on any
other issues relating to Appellant’s punishment. We therefore conclude that the trial court’s
supplemental instruction did not amount to an improper comment on the evidence.
We also reject Appellant’s contention that the supplemental instruction conflicted with
the trial court’s original jury charge which instructed the jurors that they were the “exclusive
judges of the facts proved” in assessing Appellant’s punishment. The trial court properly
instructed the jury in its original charge that it was the exclusive judge of the facts in assessing the
length of any prison sentence, but that it was required by statute to set Appellant’s sentence
between two and twenty years, with the possibility of assessing a probated sentence for any prison
term of ten years or less.10 The trial court further advised the jury that it had the discretion to
assess a fine not to exceed $10,000 for each offense. In its supplemental instruction, the trial
court did not give any instruction that conflicted with the original charge. In effect, the
supplemental instruction only clarified that the jury was not to concern itself with whether any
sentence imposed would run concurrently or consecutively and with how long Appellant would be
given to pay any assessed fine. In short, no conflict existed between the two instructions.
We also reject Appellant’s argument that the supplemental instruction may have misled the
jury in assessing Appellant’s punishment, or that it caused the jury to believe it had been relieved
10
Both offenses were second degree felonies for which the penalty range was between two and twenty years and a fine
not to exceed $10,000. TEX. HEALTH & SAFETY CODE ANN. §§ 481.112(c), 481.113(c) (West 2010 & Supp. 2015);
TEX. PENAL CODE ANN. § 12.33 (West 2011).
26
of its duties to determine his punishment. There is nothing confusing about the supplemental
instruction, and the original charge informed the jury not only that it was required to impose a
prison sentence for each offense, but also that it could order the sentences probated. This is
precisely what the jury did when it returned its verdicts, assessing three-year probated prison terms
for both offenses—terms that, as instructed, were well within the statutory range and below the
maximum possible sentence allowed under the statute. Further as instructed, the jury also
imposed a fine within the statutorily-permitted range that was well below the statutory maximum.
We therefore conclude that the jury was not misled by the trial court’s supplemental instruction.11
We overrule Appellant’s third issue.
CONCLUSION
The trial court’s judgment is affirmed.
STEVEN L. HUGHES, Justice
May 4, 2016
Before McClure, C.J., Rodriguez, and Hughes, JJ.
(Do Not Publish)
11
Because there is no error in the trial court’s instruction, it is unnecessary to conduct a harm analysis. Cortez, 469
S.W.3d at 598.
27