AP-77,036
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 6/24/2015 4:56:49 PM
Accepted 6/24/2015 5:00:42 PM
June 24, 2015 ABEL ACOSTA
CLERK
No. AP-77,036
In the
Court of Criminal Appeals of Texas
At Austin
♦
No. 1412826
In the 179th District Court
Of Harris County, Texas
♦
JUAN BALDERAS aka APACHE
Appellant
v.
THE STATE OF TEXAS
Appellee
♦
State’s Appellate Brief
♦
Clinton A. Morgan Devon Anderson
Assistant District Attorney District Attorney
Harris County, Texas Harris County, Texas
State Bar No. 24071454
morgan_clinton@dao.hctx.net Caroline Dozier
Traci Bennett
1201 Franklin St., Suite 600
Houston, Texas 77006 Mary McFaden
Telephone: 713.755.5826 Assistant District Attorneys
Harris County, Texas
Oral Argument Requested
Statement Regarding Oral Argument
The appellant requested oral argument and so does the State.
Identification of the Parties
Counsel for the State:
Devon Anderson
District Attorney of Harris County
Caroline Dozier, Traci Bennett, & Mary McFaden
— Assistant District Attorneys at trial
Clinton A. Morgan
Assistant District Attorney on appeal
Appellant:
Juan Balderas aka Apache
Counsel for the Appellant:
Jerome Godinich, Alvin Nunnery, Bob Scott & R. Scott Shearer
— Counsel at trial
R. Scott Shearer
— Counsel on appeal
Trial Judges:
Kristen M. Guiney & Doug Shaver
Presiding judges
i
Table of Contents
Statement Regarding Oral Argument ................................................. i
Identification of the Parties ................................................................ i
Table of Contents ................................................................................. ii
Index of Authorities ............................................................................. v
Statement of the Case .......................................................................... 1
Summary of the Facts .......................................................................... 1
Statement of Facts ................................................................................ 1
Summary of the Argument .................................................................. 5
Reply to Point One
The evidence is sufficient to support the appellant’s conviction. His
only argument to the contrary is that one of the State’s witnesses was
not credible, but this Court does not reweigh the jury’s credibility
determinations on appeal......................................................................................... 8
Reply to Point Two
The trial court did not err in denying the appellant’s mid-trial motion
to dismiss that was based upon a supposed speedy-trial violation. ... 10
I. Legal Background: Barker’s attempt to assess an “amorphous”
right ............................................................................................................................ 11
II. Factual Background: Testimony at the hearing explaining the
delay ........................................................................................................................... 12
III. Argument: The appellant’s right to a speedy trial was not
violated because he did not assert it in a timely manner..................... 16
A. Length of the Delay................................................................................. 17
B. Reason for the Delay .............................................................................. 17
C. Defendant’s Assertion of the Right .................................................. 20
D. Prejudice ..................................................................................................... 22
E. Balancing the Factors ............................................................................ 23
ii
Reply to Points Three, Four, Five, and Six
Point Three: The trial court did not violate the Sixth Amendment
when it allowed Wendy to testify through an interpreter........................ 25
I. Factual Background: Wendy wanted to testify through an
interpreter, but the appellant sought to cross-examine her in
English. ...................................................................................................................... 25
II. Argument: Allowing Wendy to testify through an interpreter
did not violate the Sixth Amendment. ......................................................... 27
A. Allowing a witness to testify through an interpreter does not
implicate the right to confrontation. ........................................................ 28
B. Even if the use of interpreters implicates some of the
concerns of the Sixth Amendment, the use of an interpreter here
would still not be a constitutional violation because the Sixth
Amendment is not absolute and the trial court’s decision to use a
translator was reasonable. ........................................................................... 31
Point Five: The trial court did not violate state statutory law by
allowing Wendy to testify through an interpreter. ...................................... 34
Point Four: The trial court did not abuse its discretion in refusing to
admit an audio recording because it was improper impeachment on
an uncontested matter. Moreover, because the audio recording was
cumulative, any error in excluding it should not result in reversal. .... 35
Point Six: The appellant’s claim is that the trial court violated Rule 615
by not admitting the recording, but Rule 615 is a rule of discovery, not
admissibility. The trial court’s ruling on admissibility did not implicate
Rule 615. ....................................................................................................................... 39
Reply to Point Seven
The jurors were not unduly influenced when someone waived at
them. ............................................................................................................................... 41
iii
Reply to Point Eight
The photo lineup was not impermissibly suggestive................................. 45
I. Factual Background .................................................................................... 45
II. Legal Background ........................................................................................ 50
III. Argument ........................................................................................................ 52
A. The appellant did not “st[i]ck out like a sore thumb” in the
photo lineup. ...................................................................................................... 52
B. The totality of the circumstances does not show a substantial
likelihood of misidentification.................................................................... 55
Reply to Point Nine
The jury’s note to the trial court did not indicate a point of
disagreement, therefore the trial court was correct in its decision not
to have testimony read back in response to that note. .............................. 58
Conclusion .......................................................................................... 63
Certificate of Compliance and Service ........................................... 64
Appendix: State’s Exhibit 56
iv
Index of Authorities
Cases
Anderson v. State
717 S.W.2d 622 (Tex. Crim. App. 1986) ........................................................... 39
Balterierra v. State
586 S.W.2d 553 (Tex. Crim. App. 1979) ........................................................... 34
Barker v. Wingo
407 U.S. 514 (1972) ........................................................................... 11, 17, 18, 22
Barley v. State
906 S.W.2d 27 (Tex. Crim. App. 1995) .............................................................. 51
Cantu v. State
253 S.W.3d 273 (Tex. Crim. App. 2008) ........................................................... 11
Clayton v. State
235 S.W.3d 772 (Tex. Crim. App. 2007) .............................................................. 8
Cooks v. State
844 S.W.2d 697 (Tex. Crim. App. 1992) ........................................................... 51
Crawford v. Washington
541 U.S. 36 (2004) .................................................................................................... 29
Diaz v. State
491 S.W.2d 166 (Tex. Crim. App. 1973) ........................................................... 34
Dragoo v. State
96 S.W.3d 308 (Tex. Crim. App. 2003) ....................................................... 17, 21
Emery v. State
881 S.W.2d 702 (Tex. Crim. App. 1994) ........................................................... 16
Garcia v. State
149 S.W.3d 135 (Tex. Crim. App. 2004) ........................................................... 26
Gaskin v. State
353 S.W.2d 467 (Tex. Crim. App. 1961) ........................................................... 39
Harris v. State
827 S.W.2d 949 (Tex. Crim. App. 1992) ............................................ 17, 21, 51
v
Haugh v. Jones & Laughlin Steel Corp.
949 F.2d 914 (7th Cir. 1991)................................................................................. 43
Hernandez v. State
986 S.W.2d 817 (Tex. App.—
Austin 1999, pet. ref’d) ........................................................................................... 26
Howell v. State
175 S.W.3d 786 (Tex. Crim. App. 2005) ........................................................... 60
Janecka v. State
937 S.W.2d 456 (Tex. Crim. App. 1996) ........................................................... 20
Loserth v. State
963 S.W.2d 770 (Tex. Crim. App. 1998) ........................................................... 52
Martinez v. State
91 S.W.3d 331 (Tex. Crim. App. 2002) .............................................................. 40
Maryland v. Craig
497 U.S. 836 (1990) ................................................................................................. 29
McQuarrie v. State
380 S.W.3d 145 (Tex. Crim. App. 2012) ........................................................... 43
Merritt v. State
368 S.W.3d 516 (Tex. Crim. App. 2012) .............................................................. 8
Moore v. State
874 S.W.2d 671 (Tex. Crim. App. 1994) ........................................................... 60
Mosley v. State
983 S.W.2d 249 (Tex. Crim. App. 1998) ........................................................... 38
Neil v. Biggers
409 U.S. 188 (1972) ................................................................................................. 52
Robison v. State
888 S.W.2d 473 (Tex. Crim. App. 1994) ........................................................... 61
Romero v. State
173 S.W.3d 502 (Tex. Crim. App. 2005) .................................................... 31, 32
Shaw v. State
117 S.W.3d 883(Tex. Crim. App. 2003) ............................................................ 21
vi
Smith v. State
65 S.W.3d 332, 343 (Tex. App.—
Waco 2001, no pet.) ................................................................................................. 39
State v. Munoz
991 S.W.2d 818 (Tex. Crim. App. 1999) ........................................................... 23
State v. Wei
447 S.W.3d 549 (Tex. App.—
Houston [14th Dist.] 2014, pet. ref’d) .............................................................. 17
Stovall v. Denno
388 U.S. 293 (1967) ................................................................................................. 51
United States v. Carrion
488 F.2d 12 (1st Cir. 1973) .................................................................................... 27
Vermont v. Brillon
561 U.S. 81 (2009) ................................................................................................... 19
Weatherred v. State
15 S.W.3d 540 (Tex. Crim. App. 2000) .............................................................. 57
Webb v. State
760 S.W.2d 263 (Tex. Crim. App. 1988) .................................................... 50, 51
Willingham v. State
897 S.W.2d 351 (Tex. Crim. App. 1995) ........................................................... 37
Wyatt v. State
23 S.W.3d 18 (Tex. Crim. App. 2000).................................................................... 9
Zamorano v. State
84 S.W.3d 643 (Tex. Crim. App. 2002) ....................................................... 19, 22
Statutes
18 U.S.C. § 1827 .............................................................................................................. 28
18 U.S.C. § 1828 .............................................................................................................. 28
TEX. CODE CRIM. PROC. art. 27.08................................................................................. 10
TEX. CODE CRIM. PROC. art. 38.30.......................................................................... 28, 34
vii
Constitutional Provisions
U. S. CONST. amend. VI ................................................................................................... 11
Rules
TEX. R. EVID. 611............................................................................................................... 35
TEX. R. EVID. 615............................................................................................................... 40
Other Authorities
American Academy of Dermatology
“Different Kinds of Birthmarks”
https://www.aad.org/dermatology-a-to-z/for-kids/about-
skin/birthmarks/different-kinds-of-birthmarks ........................................ 56
Steven Goode, Olin Guy Wellborn III, & M. Michael Sharlot
1 TEXAS PRACTICE: GUIDE TO THE TEXAS RULES OF EVIDENCE. § 607.1 (3d ed.
2002) .............................................................................................................................. 38
viii
Statement of the Case
The appellant was indicted for capital murder. (CR 2). The
appellant pleaded not guilty. (24 RR 15-16). A jury found him guilty as
charged. (CR 3284, 3355). Based on the jury’s findings regarding special
issues that were submitted at the punishment phase, the trial court
sentenced the appellant to death. (CR 3342-45, 3355). The trial court
certified the appellant’s right of appeal and the appellant filed a timely
notice of appeal. (CR 3359, 3360).
Summary of the Facts
The appellant murdered a fellow gang member for being
insufficiently loyal to the gang.
Statement of Facts
In 2003, the appellant started his own small chapter of the La
Tercera Crips (“LTC”) street gang. (26 RR 133-34). Soon thereafter,
Eduardo Hernandez, then about 13-years old, began hanging around the
gang. (26 RR 136-36). Eventually, with the appellant’s sponsorship,
Hernandez became a full member of the gang. (26 RR 137-38).
1
In December, 2004, fellow LTC member Israel Diaz stole a car at
gunpoint and let Hernandez borrow it for a few days. (26 RR 140-41).
When police stopped Hernandez and arrested him for driving the stolen
car, he told them it was Diaz who had committed the carjacking. (26 RR
140-41). Diaz was eventually able to persuade Hernandez not to testify
against him, but the incident caused other LTC members to start
avoiding Hernandez. (26 RR 146).
Ostracized from his own gang, Hernandez began hanging out with
individuals from other gangs. (26 RR 146-48). In late 2005, LTC
members held a meeting regarding Hernandez. (26 RR 149). At the
meeting, pictures were circulated that showed Hernandez hanging out
with members of rival gangs and — even worse — flashing another
gang’s signs. (26 RR 149-52). The LTC members came to a consensus
that someone needed to find Hernandez and kill him. (26 RR 152-53).
A few days later, on December 6, 2005, Hernandez was hanging
out at an apartment on Corporate Drive with his girlfriend, Karen
Bardales, her sister Wendy, and Wendy’s boyfriend Edgar Ferrufino. (24
RR 44-45). That afternoon, an LTC member named Jose Vazquez
dropped by and had a conversation with Hernandez that left Hernandez
feeling worried. (24 RR 46-48; 27 RR 241-43). Vazquez left the
2
Corporate Drive apartment and placed a phone call to the appellant. (27
RR 10).
Hernandez, Ferrufino, and the Bardales sisters went out to
another friends’ house that evening. (24 RR 49-50). When they returned
to the Corporate Drive apartment, there was some LTC graffiti spray-
painted on the outside of the building. (24 RR 51-52; State’s Ex. 41).
Hernandez understood from this that “something was going to happen.”
(24 RR 53).
Ferrufino and Wendy had gone into the apartment first; Wendy sat
on the couch and Ferrufino sat down in front of him. (24 RR 241, 243).
When Hernandez and Karen came into the apartment, as soon as the
door shut behind them someone fired a gun immediately outside the
door. (24 RR 241-42). A gunman burst through the door and began
shooting into the apartment. (24 RR 54). Hernandez and Karen fell to
the ground, and the shooter began walking around the apartment,
apparently searching for something. (24 RR 54-55, 248). The gunman
walked up to where Hernandez was laying, shot him several times in the
head, and then left. (24 RR 56-57, 248). Hernandez was shot at least
nine times and died at the scene; no one else was injured. (24 RR 258;
27 RR 136, 172).
3
Shortly thereafter, word circulated among LTC members that
Hernandez was dead. (26 RR 155-57). The gang met across the street
from the Corporate Drive apartment and observed the emergency
vehicles at the murder scene. (26 RR 158). The gang members saw the
appellant lingering in the apartment complex near the scene. (26 RR
159). He crossed the street to join his gang members, and he joyfully
hugged them all. (26 RR 159). As the appellant loaded a new magazine
into his silver pistol, he said that he had “finally got him.” (26 RR 160).
Of the witnesses to the murder, only Wendy Bardales got a good
look at the gunman’s face. (24 RR 60, 254; 27 RR 207, 229-30). A few
days after the murder, police showed Wendy a photo lineup and asked if
she recognized anyone; she identified one of the photos as being of
Israel Diaz, but she said he was not the gunman. (27 RR 215, 220-21). A
few days later, police showed Wendy another photo lineup and she
immediately picked out a photo of the appellant and identified him as
the gunman. (27 RR 226, 229-30).
Houston police obtained a pocket warrant for the appellant and
went to arrest him on December 16, 2005. (25 RR 205-07; 27 RR 14-15).
Police staked out an apartment where they believed the appellant to be,
and eventually the appellant and an associate, Silder, came out. (25 RR
4
212). The appellant was carrying a large black bag and a green box, and
Silder was carrying a long box. (25 RR 212). Police arrested both of
them and discovered that the boxes and bag they were carrying
contained numerous firearms, magazines, and rounds of ammunition.
(25 RR 219-29; State’s Exs. 64-75). One of the guns recovered was a
silver .40-caliber Taurus pistol that forensic examination would later
reveal was the gun used to kill Hernandez. (25 RR 236-39; 28 RR 37-40).
On appeal, the appellant raises no complaint regarding the
punishment phase of trial. It is worth noting, though, that the State’s
extensive punishment-phase evidence showed that, between September
and December 2005, the appellant committed three other murders and
two aggravated assaults in which he shot people.
Summary of the Argument
The appellant raises nine points of error. In his first point, he
challenges the sufficiency of the evidence to support his conviction. His
only argument, however, relates to the credibility of a State’s witness
and thus does not undermine the legal sufficiency of the State’s
evidence.
5
In his second point of error, the appellant claims that the trial
court erred in denying his motion to dismiss based on a speedy trial
violation. However, the fact that the appellant did not file his motion to
dismiss until jury selection had begun — more than eight years after his
arrest — shows that he acquiesced to the lengthy pre-trial delay and his
right to a speedy trial was not violated.
In his third and fifth points the appellant complains that the trial
court erred by allowing Wendy Bardales to testify through an
interpreter. However, there is no authority — constitutional or statutory
— limiting a trial court’s discretion to appoint an interpreter for a
witness who requests one.
On a related subject, the appellant’s fourth and sixth points
complain about the trial court’s decision not to allow him to admit an
audio recording of Wendy speaking English. However, the sole relevance
of this evidence was to show that Wendy could speak English, and that
point was not in dispute. Therefore, the evidence was improper
impeachment and cumulative, therefore the trial court did not err in
excluding it.
In his seventh point, the appellant argues that the trial court
should have granted a mistrial after someone waved at the jurors as
6
they were leaving the courthouse. However, this wave conveyed no
information to the jurors, meaning there is nothing in the record to
suggest how or whether it exerted influence on the jury, thus this Court
should reject this point.
In his eighth point of error the appellant complains that Wendy’s
identification of him as the shooter was tainted by an impermissibly
suggestive photo lineup. However, the lineup was not impermissibly
suggestive, and, considering the totality of the circumstances, there is no
reason to believe the lineup created a substantial risk or
misidentification.
In his ninth point, the appellant complains about the trial court’s
decision not to read back testimony to the jury in response to a jury
note. However, that note did not specify that the jury had a dispute over
the testimony and, at any rate, the testimony the appellant wanted to
have read back was not responsive to the jury’s note, thus the trial court
did not abuse its discretion in not having the testimony read back.
7
Reply to Point One
The evidence is sufficient to support the appellant’s conviction. His
only argument to the contrary is that one of the State’s witnesses
was not credible, but this Court does not reweigh the jury’s
credibility determinations on appeal.
In his first point of error, the appellant claims that the evidence is
insufficient to support his conviction. The appellant’s argument consists
exclusively of questioning Wendy Bardales’s identification of the
appellant as the gunman. (See Appellant’s Brief at 22-24). This argument
repeats many of the themes of the appellant’s guilt-phase jury
argument. (See 30 RR 5-30).
When reviewing the sufficiency of the evidence, this Court
considers all of the evidence in the light most favorable to the verdict to
determine whether, based on that evidence and the reasonable
inferences therefrom, a jury was rationally justified in finding guilt
beyond a reasonable doubt. Merritt v. State, 368 S.W.3d 516, 525 (Tex.
Crim. App. 2012). Because the Texas legal system assigns to the
factfinder at trial the duty of resolving conflicting testimony, an
appellate court conducting sufficiency review must defer to the jury’s
credibility determinations. See Clayton v. State, 235 S.W.3d 772, 778
(Tex. Crim. App. 2007). The jury may choose to believe some testimony
8
and disbelieve other testimony. Wyatt v. State, 23 S.W.3d 18, 30 (Tex.
Crim. App. 2000). When the record supports conflicting inferences, this
Court presumes that the jury resolved the conflicts in favor of the
verdict, and will defer to that determination. Thomas v. State, 444 S.W.3d
4, 8 (Tex. Crim. App. 2014).
In this case, the appellant was charged with committing capital
murder during the commission of a burglary. (CR 2). Wendy Bardales
testified that as she sat on the floor of a friend’s apartment, she
observed the appellant break into the apartment, uninvited, and
intentionally shoot Eduardo Hernandez in the head. (25 RR 182-86). She
identified the appellant as the gunman to police officers during the
investigation, and in the court room. (25 RR 194-97).
The State supposes that a jury could have disbelieved Wendy’s
identification because, as the appellant points out in his brief, she did
not identify the appellant as the gunman until several days later.
However, the jury found Wendy credible and this Court must defer to
that determination. Viewing the evidence in the light most favorable to
the verdict, the evidence in this case is sufficient.
9
Reply to Point Two
The trial court did not err in denying the appellant’s mid-trial
motion to dismiss that was based upon a supposed speedy-trial
violation.
The appellant was arrested in December, 2005. Jury selection for
his trial did not begin until January, 2014. On the fifth day of jury
selection, the appellant filed a pro se “motion for speedy trial.” (State’s
Ex. 5). The motion did not request any particular relief, but instead the
prayer asked that the trial court “grant this Motion for Speedy Trail [sic]
in all things sought therein.” (State’s Ex. 5). The trial court made no
ruling on this motion and it is not mentioned in the docket.
On January 29, the eleventh day of jury selection, defense counsel
filed a “Motion to Dismiss the Indictment for Lack of a Speedy Trial.” (CR
3121). The subtitle of the motion invoked Code of Criminal Procedure
Article 27.08, which relates to exceptions to the substance of an
indictment. (CR 3121); see TEX. CODE CRIM. PROC. art. 27.08. On February
12 — after the jury had been selected but before it had been sworn —
the trial court held a hearing on this motion and denied it. (22 RR 5-81).
In his second point of error the appellant claims that trial court erred in
denying the motion. (Appellant’s Brief at 24-36).
10
I. Legal Background: Barker’s attempt to assess an
“amorphous” right
The Sixth Amendment to the federal constitution provides that
defendants “shall enjoy the right to a speedy … trial.” U. S. CONST. amend.
VI. This right, though, is a difficult one to assess because, among other
reasons, it is often the case that a criminal defendant would prefer not to
go to trial, or at least to have his trial delayed. Barker v. Wingo, 407 U.S.
514, 520-23 (1972). In an effort to vindicate defendants’ rights without
allowing them to easily game the system, the Supreme Court in Barker
established a now-familiar four-part test for assessing whether the pre-
trial delay in a particular case has violated the Sixth Amendment’s
guarantee. See Id. at 530-32. In short, the four factors are: 1) whether
the delay was long enough to trigger an inquiry; 2) what caused the
delay; 3) whether the defendant timely asserted his right to a speedy
trial; and 4) what harm was caused by the delay. Ibid.
On appeal, a trial court’s ruling on a speedy-trial motion is
reviewed for an abuse of discretion. Cantu v. State, 253 S.W.3d 273, 282
(Tex. Crim. App. 2008). Under this standard, the appellate court views
all of the evidence in the light most favorable to the trial court’s ruling.
Ibid. Because the trial court made no findings of fact related to this
11
motion (nor did the appellant request any), this Court will presume that
the trial court resolved all factual disputes in favor of the State and made
all reasonable fact-findings required to support its decision. Ibid.
II. Factual Background: Testimony at the hearing explaining
the delay
At the hearing in this case, the State presented the testimony of
Spence Graham and Paula Hartman, both of whom had been the chief
prosecutor for the 179th District Court in years past and had worked on
this case.
Graham became chief prosecutor of the 179th in May 2009, shortly
after a new judge had been elected to the bench. (22 RR 28). At the time,
more than a thousand cases were pending on the court’s docket, with
“almost 200” cases already set for trial. (22 RR 27-28, 34). At that point,
the State’s file for the appellant consisted of “approximately six to eight
… banker boxes, full of offense reports and evidence …”. (22 RR 9-10).
The appellant’s prosecution was part of a larger investigation into the La
Tercera Crips, and at that time the State’s file included “voluminous
offense reports [of] 11 total homicides that … were linked in some way
to [the appellant].” (22 RR 10).
12
When Graham took over the case, the State had not decided
whether to seek the death penalty, so Graham sent defense counsel a
“mitigation letter” asking for any mitigating evidence that might assist
the State in making its decision. (22 RR 11). Defense counsel submitted
the “mitigation packet” in late 2009 or early 2010. (22 RR 31). While the
case was pending, and the appellant was making his regular court
appearances, one of the appellant’s lawyers was attempting to persuade
the appellant to make a plea agreement in return for the State not
seeking death. (22 RR 13-14). This defense attorney urged Graham not
to present the case to the district attorney for a decision regarding the
death penalty because “that would get the ball rolling and make it much
more difficult for him to ever work this out [as a plea bargain].” (22 RR
16). Graham said that one of the appellant’s other lawyers seemed
resigned to the fact that this case would go to trial, but he never
requested a trial date. (22 RR 16-17).
In April 2011, the State filed its notice of intent to seek the death
penalty, and at that point Graham was ready to go to trial. (22 RR 19,
32). The case was set on the trial docket, with a pre-trial conference set
for May 10, 2012, and a jury-trial setting for August 9, 2012. (22 RR 20).
13
At the hearing, the next witness was Paula Hartman, who became
chief prosecutor of the 179th in January 2012. (22 RR 43). She said that
when she took over, she began preparing for the August trial date. (22
RR 44-45). However, on May 10 defense counsel filed a motion for
continuance asserting that the defense could not finish its investigation
in time to go to trial in August. (State’s Ex. 4). The trial court granted the
motion, but noted on the order that it was “[g]ranted over strong
opposition of the State.” (State’s Ex. 4). The case was reset for the
following year, but in the meantime another judge — who would
eventually be the trial judge in this case — was elected to the bench. (22
RR 49).
The appellant testified at the speedy-trial hearing. He explained
that he had been in the county jail non-stop since his December 2005
arrest, and that this had caused various problems in his life: he had to
call off his attempts to go to college and pursue a career in architectural
drafting; he had to go to court once every month or so; he had lost
contact with his “very Christian” relatives who “didn’t want to come visit
a[n] inmate accused of multiple capital murders”; and he had suffered
“severe stress” and had considered killing himself. (22 RR 61-64). He
said he had been in jail so long that the Houston Chronicle had written a
14
story about how long he had been in jail. (22 RR 64). Finally, the
appellant said that one of his brothers had died and he had not been
able to attend the funeral due to being in jail. (22 RR 63, 73). Though
there is no assertion anywhere in the record that the brother was a
witness to anything relevant to the trial, the appellant said that the
brother would have testified had he not died. (22 RR 73).
On cross-examination, the prosecutor asked the appellant why he
had filed a motion for speedy trial after trial had started. (22 RR 67).
The appellant said this was due to “[l]ack of ignorance of legal system,
not knowing procedure.” (22 RR 67-68). He explained that he had
become “educated” about speedy-trial law because of the article in the
Chronicle about his situation. (22 RR 68). The prosecutor asked why he
had not filed his motion until nine months after the Chronicle article was
published, and the appellant explained that, due to some medication
issues, he was “drowsy at times” during his regular visits to the jail’s law
library. (22 RR 68).
After testimony, defense counsel argued to the trial court that the
length of the pre-trial delay was so egregious that it outweighed any
other Barker factor, and asked the trial court to dismiss the case “as a
matter of equity, as a matter of setting the standard here in Harris
15
County, and to prevent this kind of thing happening in the future.” (22
RR 76-77). The State responded by looking at each of the Barker factors:
1) The delay was long enough to trigger an inquiry; 2) The delay was
either caused by neutral causes (such as changes in the trial judge) or by
delays from the defense; 3) The appellant never asserted his right to a
speedy trial until after trial started; and 4) The appellant was not
harmed, because the only supposed witness who was rendered
unavailable by the delay was the appellant’s brother, and there was no
evidence suggesting what that brother could have testified about. (22
RR 77-79). The State cited to Emery v. State, 881 S.W.2d 702, 709 (Tex.
Crim. App. 1994) for the proposition that an eight-and-a-half year delay
in a capital case did not violate the Sixth Amendment if the prosecution
was not responsible for the delay. (22 RR 78). The trial court denied the
motion. (22 RR 80-81).
III. Argument: The appellant’s right to a speedy trial was not
violated because he did not assert it in a timely manner.
The State will address all four of the Barker factors, but the
deciding issue in addressing the appellant’s claim is that he waited until
trial proceedings had started before asserting his right to a speedy trial.
Allowing a defendant who has waited in jail eight-and-a-half years
16
without complaint to file a speedy-trial claim in the middle of jury
selection and win a dismissal would fly in the face of Barker’s
admonitions against letting defendants game the system.
A. Length of the Delay
The total delay between the appellant’s arrest and the filing of his
motion was 97 months, slightly more than eight years. This is long
enough to trigger a speedy-trial inquiry. Dragoo v. State, 96 S.W.3d 308,
314 (Tex. Crim. App. 2003) (one year sufficient to trigger inquiry). 1
B. Reason for the Delay
As one might expect with a 97-month delay, the causes of the
delay in this case are numerous and complex. In a speedy-trial analysis,
the key issue in assessing the cause of the delay is to look at the
intentions of the State. Barker, 407 U.S. at 531. If the delay is caused by
1 There are at present two lines of cases in Texas, one holding that a speedy-trial
inquiry is triggered at the one-year point, the other holding that the inquiry is
triggered after eight months. See State v. Wei, 447 S.W.3d 549, 554 (Tex. App.—
Houston [14th Dist.] 2014, pet. ref’d) (citing Harris v. State, 827 S.W.2d 949, 956
(Tex. Crim. App. 1992) for eight-month threshold)). Neither of these lines of cases
mention the other, and there are no consistent factual differences between them that
would explain their coexistence. The State suggests that, since this is a matter of
federal law and the Supreme Court has used the one-year threshold, the one-year
threshold is a better statement of law. See Doggett v. United States, 505 U.S. 647, 652
n.1 (1992). At any rate, a brief statement from this Court clarifying the matter would
be of assistance to the bench and bar.
17
actions that are intended to aid the truth-seeking function of trial, then
the delay will not weigh in favor of dismissal. Ibid. If the delay is caused
by things like ordinary docket backlog or general neglect by the State in
pursuing a trial (causes that are generally referred to as “negligence”),
the delay will weigh somewhat in favor of a dismissal, though not
heavily. Ibid. And if the delay is due to an effort by the State to hinder the
defendant’s ability to mount a defense, the delay will weigh heavily in
favor of dismissal. Ibid.
In this case, the record is largely silent as to what occurred
between December 2005 and February 2009. At the hearing, the State
admitted into evidence 36 reset forms with dates ranging from 2006 to
2013. (State’s Ex. 1-2). Most of these resets give no reason for the reset,
but a few provide evidence that the State was still deliberating whether
to seek the death penalty. (See 46 RR 18 (case reset from October 3,
2007 to November 13, 2007, with note: “State to review case with Sgt.
[illegible] and make a decision”), 19 (case reset from April 10, 2008 to
May 1, 2008, with note: “Still waiting for pros to descide course of
prosecution”), 47 (case reset from an illegible date to March 29, 2010,
with note: “Waiting on word on mitigation packet”). To the degree this
reflects an honest effort by the State to reach a just decision on whether
18
to seek death, and perhaps an effort to allow defense counsel to talk his
client into striking a plea bargain to save his life, that portion of the
delay does not weigh in favor of dismissal. See State v. Munoz, 991
S.W.2d 818, 824 (Tex. Crim. App. 1999) (“good faith plea negotiations is
a valid reason for the delay and should not be weighed against the
prosecution”).
The appellant’s 2012 continuance in this case should be factored
into assessing the cause of any delay. While there are situations where a
defendant can move for a continuance without it necessarily reflecting
on his readiness for trial,2 this was not one of those. The appellant’s
motion for continuance explicitly states that defense counsel was still
investigating the case and was not prepared for trial. (State’s Ex. 4). This
motion was filed six years after the appellant’s arrest. In light of this
declaration that the appellant needed more than six years to gather
evidence and mount a defense, the State suggests that none of the delay
prior to the filing of this motion should weigh in favor of dismissal.
Vermont v. Brillon, 561 U.S. 81, 92 (2009) (delay caused by defense
2 See Zamorano v. State, 84 S.W.3d 643, 650 n.31 (Tex. Crim. App. 2002) (noting how
“medical, personal, and professional problems or conflicts” might cause a defendant
to announce “not ready” for particular trial dates, even though, generally speaking,
defense was prepared for trial).
19
counsel’s failure “to move the case forward” is not attributed to the state
and weighs against finding a Sixth-Amendment violation). Indeed,
depending on the nature of the defense investigation, it may well have
been an abuse of discretion for the trial court to have forced a trial at
any point earlier. See Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim.
App. 1996) (“Where denial of a continuance has resulted in
demonstrated prejudice, we have not hesitated to declare an abuse of
discretion.”).
In sum, though there was more than eight years of delay in this
case, there is no evidence that any of the delay was the result of any
effort by the State to hinder the defense. The amount of delay
attributable to “negligence” by the State in this case is negligible.
Instead, the vast majority of the delay seems to have been used by the
defense to assemble its case, thus this delay should not weigh in favor of
finding a Sixth-Amendment violation.
C. Defendant’s Assertion of the Right
The definitive issue in this speedy-trial analysis is the appellant’s
untimely assertion of his right to a speedy trial. The lack of a timely
demand for a speedy trial strongly indicates that a defendant did not
20
really want a speedy trial. Dragoo, 96 S.W.3d at 314. In this case, the
appellant waited 97 months before filing his speedy-trial motions;
delays far shorter than this have been held to be fatal to speedy-trial
claims. See ibid. (41-month delay in asserting right “weighs very heavily
against finding a violation of the speedy trial right”); Shaw v. State, 117
S.W.3d 883, 890 (Tex. Crim. App. 2003) (35-month delay in asserting
right weighed “very heavily” against finding violation).
It is not only the length of time that passed before the appellant
filed his motion that should weigh against him, it is the fact that he
waited until after trial proceedings had started. The State can find no
case involving a mid-trial speedy-trial motion, but day-of-trial and day-
before-trial motions have been held to indicate that the defendant
acquiesced to the delay and did not actually want a speedy trial. Harris v.
State, 827 S.W.2d 949, 957 (Tex. Crim. App. 1992) (day-of-trial motion
“indicates strongly that [defendant] did not really want a speedy trial”);
Dragoo, 96 S.W.3d at 314-15 (rejecting speedy-trial claim filed the day
before trial started). The presumption of acquiescence created by an
untimely assertion of the right should be particularly strong in a capital
case; a defendant looking at either a death sentence or a sentence of life-
21
without-parole may well have nothing whatsoever to lose from delay if
he knows that the State’s evidence is strong.
D. Prejudice
In most cases, a defendant must show some sort of actual harm
caused by the delay. Barker explained that the harm from delay will
normally fall into one of three categories: 1) pretrial incarceration; 2)
anxiety caused by pending charges; and 3) impairment of the
defendant’s ability to mount a defense. Barker, 407 U.S. at 532.
The State accepts that the appellant has shown some prejudice
from the pre-trial delay. He spent the entire time incarcerated on this
charge, and he testified that he suffered stress as a result of the pending
charge. (22 RR 61-64); see Zamorano, 84 S.W.3d at 654 (stress from
pending charges is “some evidence” of prejudice).
This “prejudice,” though, takes on a somewhat different light in a
capital context. A convicted capital defendant will be transferred either
to a high-security prison or to death row; it is likely that the appellant
will never again reside in a facility as pleasant as the Harris County jail.
Had the appellant’s trial occurred sooner, the result would have been to
22
reduce the prejudice of pre-trial incarceration by getting the appellant
to death row sooner.
The appellant testified that his brother died during the pre-trial
delay and that his brother would have testified for him. However, there
is no evidence of what his brother would have testified about. Nothing at
trial indicates that his brother had relevant evidence that the appellant
was not able to procure elsewhere. The appellant made no other claim
that his defense was hindered by the delay.
E. Balancing the Factors
In a Barker analysis, no one factor should be controlling. State v.
Munoz, 991 S.W.2d 818, 828 (Tex. Crim. App. 1999). In this case, the pre-
trial delay was certainly lengthy, but the record shows that the appellant
needed nearly all of that time in order to prepare his defense. The
appellant’s motion for continuance, filed more than 6 years after his
arrest and indicating that he had not yet finished with pre-trial
investigation, should serve to largely absolve the State from the
responsibility for the early portion of the delay. Even once the defense
team was ready for trial, though, the appellant did not file a motion for
speedy trial until proceedings had begun, indicating that he acquiesced
23
to the delay and received a trial precisely when he wished to. Though
the appellant was incarcerated during the entire delay, the fact that he
used that time to assemble his defense and the fact that he exhibited no
interest in a speedy trial should combine to show that his Sixth
Amendment right to a speedy trial was not violated, and the trial court
did not abuse its discretion in overruling the appellant’s motion to
dismiss. Thus, this Court should overrule his second point of error.
Reply to Points Three, Four, Five, and Six
The appellant’s third through sixth points all involve Wendy
Bardales’s ability, or lack thereof, to speak English, which the defense
made a focus of the trial. The appellant’s third and fifth points complain
of the trial court’s decision to allow Wendy to testify through an
interpreter. The appellant’s fourth and sixth points complain about what
he claims were limitations placed on his ability to impeach Wendy
regarding her ability to speak English.
24
Point Three: The trial court did not violate the Sixth Amendment
when it allowed Wendy to testify through an interpreter.
I. Factual Background: Wendy wanted to testify through an
interpreter, but the appellant sought to cross-examine her
in English.
Wendy’s testimony took place over two days, and both days she
testified through an interpreter. (25 RR 33; 26 RR 10). Wendy explained
that she was born in Honduras and did not begin learning English until
she came to the United State at age 12; at the time of Hernandez’s
murder, she was 15. (25 RR 35). At trial, some eight years later, she
requested to testify through an interpreter “to make sure [she]
understood everything.” (25 RR 35).
On the second day of her testimony, prior to beginning cross-
examination, the appellant filed a “Motion to Compel Witness to Provide
Cross-Examination Testimony in the English Language.” (CR 3230-
3233). In this motion, the appellant listed several facts tending to show
that Wendy spoke English. He then asserted that “the State is using the
interpreter as a shield to prevent the jury from noticing her deception
and lies. The interpreter is completely unnecessary.” (CR 3232). The
appellant objected to Wendy’s use of a translator because he believed it
hindered his ability to cross examine her: “The jury cannot notice or
25
detect the witness’[s] voice inflection, facial expressions, speech
patterns, etc. when the jury speaks English and the witness testifies in
Spanish through an interpreter.” (CR 3232). The appellant alleged that
this violated his “right to confront witnesses, [his] right to cross-
examinations, and [his] right to due process of law.” (CR 3232).
The trial court held a brief hearing on this motion. (26 RR 5-10).
The appellant offered as an exhibit a short recording that police had
made of their discussion (in English) with Wendy back in 2005. (Def.’s
Ex. 3). At the hearing, defense counsel accused the State of “improperly
using the interpreter as a shield to shield Ms. Bardaeles’[s] testimony so
that the jury can’t see that she is, in fact, not being truthful.” (26 RR 6).
In response, the State noted that the only law cited by the
appellant dealt with situations where the question was whether a trial
court was required to appoint an interpreter. (26 RR 6). The State cited
to Hernandez v. State, 986 S.W.2d 817 (Tex. App.—Austin 1999, pet.
ref’d) and Garcia v. State, 149 S.W.3d 135 (Tex. Crim. App. 2004) for the
proposition that that if there is a chance a defendant might not fully
understand English, the “best practice is to err on the side of caution”
and appoint an interpreter. (26 RR 7-8). The prosecutor said that she
could find no caselaw applying the same principle to witnesses, but also
26
noted that she could think of no reason why the same rule would not
apply. (26 RR 7). The prosecutor noted that Wendy had said she still
speaks Spanish in her home, and urged the court to “err on the side of
caution” and allow Wendy to continue testifying through an interpreter.
(26 RR 9).
The trial court noted that in listening to Bardeles speak at a
hearing the prior day it had noticed “an inherent language barrier.” (26
RR 9-10). The trial court stated its “belief that the jury will get a … more
accurate view of Ms. Bardeles’[s] testimony if allowed through a
translator. So the motion is overruled.” (26 RR 10).
II. Argument: Allowing Wendy to testify through an
interpreter did not violate the Sixth Amendment.
In his third point, the appellant claims that allowing Wendy to
testify through an interpreter violated his Sixth Amendment right to
confrontation. (Appellant’s Brief at 37-59). This is a novel claim. There
are numerous cases that stand for the proposition that the Sixth
Amendment right to confrontation requires that the trial court appoint
an interpreter for a non-English-speaking defendant. See, e.g., United
States v. Carrion, 488 F.2d 12, 14 (1st Cir. 1973). (“Clearly, the right to
confront witnesses would be meaningless if the accused could not
27
understand their testimony, and the effectiveness of cross-examination
would be severely hampered.”). There are statutes — both state and
federal — regulating the appointment of interpreters for defendants and
witnesses, and establishing guidelines for trial courts. See TEX. CODE
CRIM. PROC. art. 38.30; 18 U.S.C. § 1827, 1828. However, the State can find
no authorities discussing when, if ever, the appointment of an
interpreter violates a defendant’s right to confrontation; the appellant
has cited to no on-point authority and presents his argument only by
way of analogy.
The State’s response to this argument is two-fold. First, the use of
an interpreter does not implicate any of the essential elements that
constitute the right of confrontation. Second, even if the use of an
interpreter did implicate the right of confrontation, this Court would
still need to defer to the trial court’s findings that an interpreter was
appropriate in this trial.
A. Allowing a witness to testify through an interpreter
does not implicate the right to confrontation.
First, it is worth noting that the appellant’s point effectively
challenges the use, under any circumstances, of an interpreter in a
criminal trial. The appellant phrases his point such that he seems to
28
challenge the use of an interpreter only where the witness can speak
English. But the problems he describes with the use of interpreters are
not limited to those circumstances. If using an interpreter conceals a
witness’s demeanor such that it effectively prevents cross-examination,
it does so regardless of whether the witness can speak English.
If the use of interpreters so impedes a defendant’s ability to
confront witnesses that it violated the Sixth Amendment, this would
have the effect of prohibiting non-English speakers from testifying for
the prosecution in criminal cases. The State is aware of no authority
suggesting that this is the purpose of the Sixth Amendment. See
Crawford v. Washington, 541 U.S. 36, 43-50 (2004) (discussing
development of English and colonial American law prior to adoption of
the Sixth Amendment, and concluding that “the principal evil at which
the Confrontation Clause was directed was the civil-law mode of
criminal procedure, and particularly its use of ex parte examinations as
evidence against the accused”).
In Maryland v. Craig, 497 U.S. 836 (1990), the Supreme Court
analyzed the right of confrontation as comprising four elements:
“physical presence, oath, cross-examination, and observation of
demeanor by the trier of fact.” Craig, 497 U.S. at 846. None of these
29
elements are seriously implicated by the use of interpreters: the witness
is still physically present, under oath, subject to cross-examination, and
can be observed by the trier of fact.
The appellant claims that by speaking Spanish Wendy was able to
conceal from the jury her “voice inflection, facial expressions, speech
patterns, etc.” (Appellant’s Brief at 49), but that is incorrect. The jury
could see and hear Wendy speak just as they could any other witness,
only her words were in Spanish. Moreover, the appellant’s point begs the
question by assuming that her “voice inflections, facial expressions,
speech patterns, etc.” would have been accurately conveyed had she
been forced to testify in English, her second language. If one objective of
cross-examination is to get a gauge of the witness’s demeanor, surely
that demeanor is at least as well-conveyed by testimony in a native
language as it would be by testimony in a language in which the witness
must spend time mentally translating. 3
3Wendy testified that she thinks in Spanish, thus to speak in English she needed to
do her own translation, which sometimes meant she was not able to express herself
well in English. (25 RR 200).
30
B. Even if the use of interpreters implicates some of the
concerns of the Sixth Amendment, the use of an
interpreter here would still not be a constitutional
violation because the Sixth Amendment is not
absolute and the trial court’s decision to use a
translator was reasonable.
Even if the use of an interpreter implicated an element of the
confrontation right, that does not mean that using an interpreter
necessarily violates the confrontation right. In Romero v. State, 173
S.W.3d 502 (Tex. Crim. App. 2005), this Court was faced with a situation
where a witness testified while wearing sunglasses and a disguise that
concealed his “mouth, jaw, and the lower half of his nose. Romero, 173
S.W.3d at 503. This Court held that this implicated two of the elements
of confrontation. First, by obscuring the witness’s eyes, the physical
presence element was compromised because the defendant was not
able to look the witness in the eye. Id. at 505. Second, because most of
the witness’s face was concealed the observation-of-the-witness’s-
demeanor element was compromised. Id. at 505-06. This Court held that
the defendant’s confrontation right was violated because two elements
of that right had been compromised but there was no compelling reason
to justify those compromises. Id. at 506.
31
Here, the appellant alleges that allowing Wendy to testify through
an interpreter compromised the fact finder’s ability to view her
demeanor. Assuming that this is true, as this Court recognized in Romero
the confrontation right is not absolute. Id. at 505 (recognizing Craig’s
holding that an “important” interest could justify the complete denial of
the physical-presence element). Indeed, the element that may have been
compromised in this case — the viewing of the witness’s demeanor — is
the subject of the longest-standing and most well-known exception to
the confrontation right: the admission of former testimony of an
unavailable witness. See generally Mattox v. United States, 156 U.S. 237
(1895) (admission of deceased witness’s testimony from prior trial did
not violate Sixth Amendment). In cases like that, where testimony is
read back to the jury from a transcript, the fact finder has no ability
whatsoever to view the witness’s demeanor, thus it cannot be that slight
abrogation of the fact finder’s ability to view the witness’s demeanor
(which is what the appellant alleges in this case) necessarily violates the
right of confrontation.
As Craig and Romero accepted, elements of the confrontation right
can be compromised if there is a sufficiently good reason for doing so. In
this case, Wendy said that she was not sufficiently comfortable in
32
English to testify without an interpreter. Moreover, the trial court
personally interacted with Wendy and came away with the impression
that her testimony would be more accurate if Wendy testified through
an interpreter. If using an interpreter is enough to implicate the right of
confrontation, it must surely be the case that the trial court’s
determination that an interpreter is necessary to get accurate and useful
testimony from a witness would be a sufficient justification for the slight
abrogation of that right.
Both at trial and on appeal the appellant has pointed to evidence
in the record showing that Wendy had some ability to speak English.
The State does not dispute that evidence, but that does not mean that
the trial court was incorrect in believing other evidence — including its
own personal interactions with Wendy — over the evidence cited by the
appellant. And it would be inappropriate for this Court, after viewing
the cold record, to decide that the trial court was incorrect on a question
for which there is conflicting evidence.
This Court should overrule the appellant’s third point because
there is no authority for the proposition that using an interpreter
violates the Sixth Amendment, and it would be bad policy if this Court
were to create such authority. Even if using an interpreter implicates an
33
element of the confrontation right, the abrogation of that element is so
minor, and the importance of getting accurate testimony from witnesses
so important, that this does not constitute a violation of the appellant’s
right of confrontation.
Point Five: The trial court did not violate state statutory law by
allowing Wendy to testify through an interpreter.
In his fifth point, the appellant claims that the trial court abused
its discretion and violated Code of Criminal Procedure Article 38.30 by
allowing Wendy to testify through an interpreter. (Appellant’s Brief at
68-70). However, the appellant does not cite any case that supports the
proposition that a trial court can err by appointing an interpreter; all of
his cases deal only with the question of whether trial courts abused
their discretion in situations where they did not appoint interpreters.
(See Appellant’s Brief at 68, 70 (citing Balterierra v. State, 586 S.W.2d
553 (Tex. Crim. App. 1979) and Diaz v. State, 491 S.W.2d 166 (Tex. Crim.
App. 1973)).
Article 38.30 sets guidelines for when a court must appoint an
interpreter, but there is no state law establishing guidelines for when a
court is prohibited from appointing an interpreter. See TEX. CODE CRIM.
PROC. art. 38.30. The State submits that, aside from situations where a
34
trial court must appoint an interpreter, a trial court’s decision to use an
interpreter is strictly a matter of discretion in how a trial court manages
a trial,4 and there is little role for an appellate court to second guess that
decision.
Even if this Court were to second guess the trial court’s decision,
the evidence of Wendy’s English language skills was mixed: She seemed
capable of speaking English, but she said she was more comfortable in
Spanish, she spoke Spanish in her home, and the trial court found her
English phrases to be awkward. On such a fact-intensive question, this
Court should defer to the determination of the trial court and reject the
appellant’s fifth point.
Point Four: The trial court did not abuse its discretion in refusing
to admit an audio recording because it was improper impeachment
on an uncontested matter. Moreover, because the audio recording
was cumulative, any error in excluding it should not result in
reversal.
In his fourth point, the appellant purports to ask the question of
whether a defendant has a right to cross-examine and impeach a
witness “concerning her ability to speak English so that the jury might
4 Rule of Evidence 611 imposes on the trial court the obligation to “exercise
reasonable control over the mode and order of interrogating witnesses … so as to …
make the interrogation and presentation effective for the ascertainment of the truth
….” TEX. R. EVID. 611(a).
35
be made aware of her attempt to mask the extent of her fluency?”
(Appellant’s Brief at 59). However, that is not the substance of the
appellant’s point. The only adverse ruling that the appellant raises in his
fifth point is the trial court’s denial of his request to admit a brief audio
recording of Wendy speaking with police in 2005. (Appellant’s Brief at
59-67; see Def.’s Ex. 3).
On this recording, Wendy has a conversation, in English, 5 with
police officers and identifies “Apache” as the shooter; she also says that
before his death Hernandez told her that Apache committed another
murder. (Def.’s Ex. 3). Defense counsel proffered this recording at the
end of trial prior to the close of evidence. (29 RR 60-62). The trial court
asked why the recording should not be excluded as hearsay and defense
counsel replied that it was not being offered for the truth of the matter
asserted, but merely to show that Wendy could speak English. (29 RR
62). The State replied that Wendy had never denied being able to speak
5 The appellant asserts that Wendy speaks “perfect English” on the audio.
(Appellant’s Brief at 61). While this matter is not terribly important, the State
disputes that characterization. Most of her answers are “yes” or “no.” She speaks
with an accent that, combined with the softness of her voice, leaves some of her
comments inaudible. Near the end of the interview an officer asks her if Apache has
a car and Wendy says that he does. The officer then asks if Wendy has seen Apache
in his car lately, and Wendy says that no, he had sold it. This confusion regarding
tense is indicative of a certain lack of fluency and certainly was not an example of
“perfect English.”
36
English and had testified that she spoke to the police in English, so the
defense’s proposed use of this recording was improper impeachment.
(29 RR 62). The trial court excluded the recording:
I think it’s been made clear that [Wendy], both from her and
from cross[-examination] that she never did ask for an
interpreter [during the police interview] and one clearly
was not provided for her. So I will let the jury make any
conclusions about her ability to speak English from the
testimony from the live witnesses.
(29 RR 63).
The trial court’s description of the testimony was correct. Wendy
said that she spoke with police in English. (25 RR 189, 191-92; 26 RR
22-25, 32, 36, 49-50, 52). The police officer who interviewed Wendy
said that he spoke with her in English and had no difficulty
understanding her. (26 RR 238-39; 27 RR 33-34, 51). Another police
officer who spoke with Wendy testified that he spoke with her in English
and Wendy did not request an interpreter. (28 RR 27-28). Aside from
Eduardo Herndez’s death, Wendy’s ability to speak English was the most
well-established fact at this trial.
Impeaching a witness consists of introducing evidence that tends
to show that the witness is unworthy of belief or credit. Willingham v.
State, 897 S.W.2d 351, 358 (Tex. Crim. App. 1995). “The law authorizes
37
five basic methods of impeachment: character, bias, prior inconsistent
statements, lack of capacity, and contradiction.” Steven Goode, Olin Guy
Wellborn III, & M. Michael Sharlot, 1 TEXAS PRACTICE: GUIDE TO THE TEXAS
RULES OF EVIDENCE. § 607.1 (3d ed. 2002). Defendant’s Exhibit 3 does not
fall into any of those categories: Had it been admitted for the proffered
purpose, all it would have shown that was that Wendy spoke to the
police in English. Considering that there was no real contradiction in the
evidence on this point, the recording in no way impeached Wendy or
any other prosecution witness.
Even if this Court believes that the trial court should have
admitted the recording, the fact that the recording (if admitted for the
purpose of showing that Wendy spoke English) was cumulative of other
evidence means that reversal on this ground would be inappropriate. A
trial court’s erroneous exclusion of evidence will not result in reversal
unless the exclusion affects a party’s substantial rights. TEX. R. EVID.
103(a). The improper exclusion of evidence does not effect a party’s
substantial rights if the excluded evidence was cumulative of evidence
admitted elsewhere. See Mosley v. State, 983 S.W.2d 249, 258 (Tex. Crim.
App. 1998) (op. on reh’g) (explaining that the harm from the erroneous
exclusion of evidence may be mitigated by the admission of evidence
38
similar to what the appellant wished to offer); Anderson v. State, 717
S.W.2d 622, 628 (Tex.Crim.App.1986) (holding that to show harm, the
excluded evidence must be controlling on a material issue and not
cumulative of other evidence). The jury was repeatedly advised that
Wendy spoke English; the appellant could not have been harmed by the
trial court’s exclusion of evidence whose only purpose was to reiterate
that point. Accordingly, this Court should reject the appellant’s fourth
point.
Point Six: The appellant’s claim is that the trial court violated Rule
615 by not admitting the recording, but Rule 615 is a rule of
discovery, not admissibility. The trial court’s ruling on
admissibility did not implicate Rule 615.
In his sixth point, the appellant asks whether the trial court
“violat[ed] the rule of Gaskin v. State[, 353 S.W.2d 467 (Tex. Crim. App.
1961)] by preventing appellant from impeaching [Wendy] with the prior
audiotaped statement she gave to the police.” (Appellant’s Brief at 71).
As the appellant notes in his brief, Gaskin provided that the State must
provide to the defense any statements that witnesses made to the police
during the investigation; this has since become part of Rule of Evidence
615. Smith v. State, 65 S.W.3d 332, 343 (Tex. App.—Waco 2001, no pet.).
39
On its face, Rule 615 is not an independent ground for
admissibility. See TEX. R. EVID. 615. Rule 615(e) provides for the exclusion
of a witness’s testimony if the sponsoring party refuses to provide that
witness’s prior statement to the other party, but no other part of Rule
615 concerns the admission or exclusion of evidence. The purpose of the
rule is to provide parties with witnesses’ statements so that those
witnesses can be cross-examined, not to admit those statements in lieu
of testimony. If Rule 615 was a basis for admitting witnesses’ out-of-
court statements, it would do great damage to the general rule against
hearsay.
The appellant cites to no authority for the proposition that Rule
615 is an independent basis for admissibility, nor did the appellant raise
this argument in the trial court. See Martinez v. State, 91 S.W.3d 331, 336
(Tex. Crim. App. 2002) (appellate courts “usually may not reverse a trial
court's ruling on any theory or basis that might have been applicable to
the case, but was not raised [in the trial court]). This Court should reject
the appellant’s sixth point because it presents nothing for this Court’s
review and, if examined, is without merit.
40
Reply to Point Seven
The jurors were not unduly influenced when someone waived at
them.
At the end of the second day of deliberation, the jury was placed
on a bus to be taken to a hotel for sequestration. (32 RR 12). As the bus
was beginning to drive off, someone wearing a white sweatshirt waved
at the jurors while “smirking.” (32 RR 23-25). Because they had seen
this man in the courtroom, some of the jurors concluded that he was the
appellant’s brother. (32 RR 24).
The next morning, the jury resumed deliberations and reached a
verdict. After that, the trial court held a brief hearing into the waving
incident and what effect, if any, it had on the jury. (32 RR 12). One juror,
identified as A.B., testified that she thought the waving was “a tactic to
intimidate or threaten”; when asked if she felt threatened, she replied
that she felt “cautious.” (32 RR 18). After the waving incident, A.B. asked
for permission to contact her family “out of caution.” (32 RR 18). A.B.
said that the next day prior to deliberations, she asked other jurors
whether they thought the waver would be in the courtroom that day. (32
RR 20). However, A.B. said she did not know if the waver was in the
courtroom because she had not actually seen the waver, she had only
41
heard about him. (32 RR 20). A.B. said that she did not believe the
waving incident affected her ability to be fair and impartial in the
punishment phase. (32 RR 21).
The second juror to testify, D.T., said that she actually saw the
waver, though she did not know who he was. (32 RR 23-25). D.T. said
that she was concerned because she “thought they were supposed to
keep people away from us.” (32 RR 26). D.T. said that the next morning
she mentioned to the deputies guarding the jury that she was
concerned, and “[d]ue to the nature of the case … I was going to hold my
gun closer at night.” (32 RR 26). However, a conversation with one of the
deputies put D.T. at ease and she said she was feeling better. (32 RR 27).
D.T. said that the incident would not affect her going forward because
the incident had “nothing to do with [the appellant].” (32 RR 27).
After this hearing, the appellant moved for a mistrial based on his
claim that “the verdict was reached as a result of an outside influence”
(32 RR 28). The trial court denied the motion. (32 RR 29). The appellant
raises this matter in his seventh point of error. (Appellant’s Brief at 75-
79).
The standard for analyzing outside-influence claims was recently
discussed by this Court in McQuarrie v. State, 380 S.W.3d 145 (Tex. Crim.
42
App. 2012). This analysis consists of determining what outside influence
was exerted on the jury, and then determining whether “there is a
reasonable possibility that it had a prejudicial effect on the ‘hypothetical
average juror.’” McQuarrie, 380 S.W.3d at 154 (quoting federal caselaw).
This is an objective analysis performed by the courts in order to avoid
delving into jury deliberations as to whether the influence actually
affected the deliberations. Ibid.
In Manley v. AmBase Corp., 337 F.3d 237 (2d Cir. 2003), the Second
Circuit identified “the three categories [of outside influences] that most
frequently raise prejudice concerns”: extra-record information being
conveyed to jurors; advise to jurors on how to decide the case; and
coercion. Manley, 337 F.3d at 252. What distinguishes these categories
of influence from this case is that they involve the actual conveyance of
information to the jury, and it is information whose effect can be
analyzed objectively by a court. When, for example, a U.S. marshal tells a
jury that there is no such thing as a hung jury and that the jurors will be
held until they reach a verdict, it is obvious that this would have some
impact on the jury’s deliberations. See Haugh v. Jones & Laughlin Steel
Corp., 949 F.2d 914, 919 (7th Cir. 1991).
43
Here, someone who had been in the court room — perhaps the
appellant’s brother, perhaps not — waved at a bus full of jurors and
smirked. That conveyed no information to the jury, thus this Court
cannot make an objective determination of what effect, if any, it would
have on a hypothetical average juror. Indeed, the testimony from the
jurors established that they did not know what to make of this.
Whatever fear they had came from a generalized apprehension that was
created by the nature of this case. The testifying jurors said that the
wave would have no impact on their deliberations going forward, thus it
seems reasonable to assume that it had no impact on their guilt-phase
deliberations.6
The State can find no cases addressing the importance of a gesture
as an “outside influence.” The State urges this Court to hold that
ambiguous, non-verbal, non-communicative conduct from a non-party
would not influence a hypothetical average juror. The alternative
holding — that a wave and a “smirk” from a stranger on the street is
sufficient grounds to overturn a jury verdict — would open up too many
cases to claims of outside influence.
6 Had the jury interpreted the wave as a threat from the appellant’s family, and had
they allowed that threat to impact their deliberations, it seems that would have
pushed them toward acquittal, not conviction.
44
Reply to Point Eight
The photo lineup was not impermissibly suggestive.
Prior to trial, the appellant filed a boilerplate “Motion to Suppress
Identification” alleging that the State might attempt to introduce at trial
an identification that was tainted by impermissibly suggestive
procedures. (CR 2982-83). The trial court interpreted this motion as
challenging the admissibility of Wendy Bardales’s identification of the
appellant as the shooter. (25 RR 44). During Wendy’s testimony, but
before she identified the appellant as the killer, the trial court held a
hearing on the motion to suppress. (25 RR 44). After hearing from
Wendy, the police officer to whom she made the identification, and a
defense expert on eyewitness evidence, the trial court denied the
motion. (25 RR 178-79). In his eighth point the appellant asserts that
the trial court’s ruling was erroneous. (Appellant’s Brief at 79-90).
I. Factual Background
Houston Police Sergeant Tommy Ruland was the lead investigator
on this case. (25 RR 79). He first spoke with Wendy on December 6, the
night of the murder. (25 RR 80). Although Wendy had seen the shooter’s
45
face, his identity did not register with her and she told the police she did
not know who it was. (25 RR 48-51).
The next day, based on information that Israel Diaz had some
connection to Hernandez, police showed Wendy a photo lineup that had
a picture of Diaz; Wendy picked him out as someone she knew but said
that he was not the shooter. (25 RR 51-53, 84-86; State’s Ex. 57). That
day Wendy also gave a sworn statement to police detailing what she saw
and what she remembered about the shooter’s appearance. (State’s Ex.
160).
On December 12, police showed Wendy a different photo lineup,
this time including a picture of the appellant. (25 RR 88-89; State’s Ex.
56). Wendy “immediately” pointed out the picture of the appellant and
identified him as Apache. (25 RR 94-95). Wendy said that his face looked
“exactly like the shooter’s face.” (25 RR 95). This photo lineup is
attached to the State’s brief as an appendix.
Regarding what happened next, there are mixed accounts in the
record. Wendy testified that in that interview on the 12th she told Ruland
that she was positive that the appellant was the shooter. (25 RR 54).
This is supported by the handwritten notes on the identification, where
Wendy wrote her name and “12/12/05” on the picture of the appellant.
46
(State’s Ex. 56). On the back of the photo lineup card Wendy wrote a
note in Spanish that was translated to the trial court as stating, “I am
positive that he is the one that killed Eduardo.” (25 RR 55). That note is
not dated. Wendy testified that Ruland came back the next day to ask her
if she really was sure that the appellant was the shooter; Wendy testified
that there had probably been some lack of communication caused by her
limited English skills that had left Ruland confused to her degree of
certainty. (25 RR 56-57). At any rate, Wendy said that her identification
remained the same. (25 RR 56-57).
Ruland testified from a slightly different perspective. According to
Ruland, in the December 12 interview Wendy had said that the appellant
“looked like” the shooter, but Ruland was not certain what she meant by
this. (25 RR 95). Ruland asked her to clarify, and she responded that
“the face was the same and that [the appellant] could be the shooter.”
(25 RR 96). In his investigation notes, Ruland did not categorize this
identification as positive, negative, or tentative, but instead noted that
he was confused by what Wendy had said. (25 RR 96-97).
Ruland said that he spoke with Wendy again on December 13 to
clear up his confusion. (25 RR 97-98). Ruland said that when he told
Wendy that he wanted to clear up his own confusion, she repeated that
47
the appellant “had the same face” as the shooter. (25 RR 100). Wendy
told Ruland that the shooter was wearing a hood, which is why she kept
talking about the face. (25 RR 100). Ruland asked Wendy to look at the
photo spread again, this time covering up the hair on each picture to
simulate the effects of wearing a hood. (25 RR 100). According to
Ruland, Wendy’s “eyes became wide and she covered her mouth. Her
eyes started watering. She then said Apache did the killing. She stated
she was absolutely positive the male in the picture was the same male
that killed [Hernandez].” (25 RR 101). According to Ruland, it was at this
point that Wendy “wrote some things on the back [of the photo lineup].”
(25 RR 101).
After Ruland testified, the defense presented Roy Malpass, a
professor at the University of Texas — El Paso and an expert regarding
eyewitness identification. (25 RR 122-124). Malpass testified that he
had some “concerns” about the photo lineup from which Wendy
identified the appellant. (25 RR 137). He believed that the fillers on the
photo lineup were not sufficiently similar to the appellant: the appellant
was the only one with “a distinct mark on his left cheek,” the appellant
was the only one wearing a black hoodie, and three of the people did not
have haircuts that could be characterized as “fades,” which is how
48
Wendy originally described the suspect. (25 RR 138-39; see State’s Ex.
56). On a 10-point scale of quality, with 10 being the best, Malpass
characterized the lineup in this case as being a 2 or a 3, and stated that
there was “a substantial likelihood that a misidentification has been
made in this case.” (25 RR 150-51). However, Malpass later clarified this
comment by stating that he was not commenting on the actual accuracy
of Wendy’s identification, but rather he was commenting “about
whether the photo spread and the procedures used would lend
themselves towards error.” (25 RR 158-59).
Malpass provided some generalized testimony concerning
problems with eyewitness identifications. (25 RR 139-145). He then
said that when witnesses make multiple identifications, generally the
first identification is the most reliable and subsequent identifications
become more and more subject to outside pressures. (25 RR 145). In
this case, he said that because Ruland went back to speak with Wendy
on December 13, it signaled that something was wrong with the
December 12 identification and that is why Wendy’s identification
became more certain on the 13th. (25 RR 145-46).
After Malpass’s testimony, the trial court made findings of fact. It
found that the lineup did not appear impermissibly suggestive: “[T]he
49
suspect did not stand out in the six-phot photo array, all subjects … all
light-skinned Hispanic males, they were all of the same general build, all
of the same general age range, all had short haircuts.” (25 RR 178; see
State’s Ex. 56). The trial court then found that even if the photo lineup
were impermissibly suggestive, under controlling legal authority “the
totality of the circumstances reveals no substantial likelihood of
misidentification … and [Wendy’s] identification testimony is deemed
reliable after reviewing the five factors set out in [Webb v. State, 760
S.W.2d 263 (Tex. Crim. App. 1988)].” The trial court denied the
appellant’s motion to suppress. (25 RR 179).
Wendy testified in front of the jury, over the appellant’s objection,
regarding her pre-trial identification. (25 RR 191-95). She then
identified the appellant in the courtroom. (25 RR 197).
II. Legal Background
A pre-trial identification, and any ensuing in-court identification,
must be excluded if the procedure police use to obtain the pre-trial
identification is so overly suggestive and conducive to mistaken
identification that it infringes upon a defendant’s Fourteenth
Amendment right to due process of law. See Barley v. State, 906 S.W.2d
50
27, 32-33 (Tex. Crim. App. 1995). In determining whether an in-court
identification is properly admissible, courts assess: (1) whether the
police used an impermissibly suggestive identification procedure for the
pre-trial identification; and (2) whether the procedure resulted in a
substantial likelihood of irreparable misidentification. Barley, 906
S.W.2d at 33. This two-step analysis also depends upon an evaluation of
the totality of the circumstances. Stovall v. Denno, 388 U.S. 293, 302
(1967). Identification testimony is admissible if the totality of the
circumstances reveals no “substantial likelihood of misidentification.”
Cooks v. State, 844 S.W.2d 697, 731 (Tex. Crim. App. 1992); Webb, 760
S.W.2d 263, 269 (Tex. Crim. App. 1988). A defendant bears the burden to
demonstrate by clear and convincing evidence that the pre-trial
identification is unreliable. Cooks, 844 S.W.2d at 731; Harris v. State, 827
S.W.2d 949, 959 (Tex. Crim. App. 1992).
If a court believes that the procedure was suggestive, to determine
whether that procedure created a likelihood of false identification there
are five factors to look at: 1.) The opportunity of the witness to view the
criminal at the time of the crime; 2.) The witness’s degree of attention;
3.) The accuracy of the witness’s prior description of the criminal;
4.) The level of certainty demonstrated by the witness at the
51
confrontation; and 5.) The length of time between the crime and the
confrontation. Loserth v. State, 963 S.W.2d 770, 772-73 (Tex. Crim. App.
1998) (citing Neil v. Biggers, 409 U.S. 188, 199 (1972)).
Whether a photographic identification procedure was
impermissibly suggestive is a mixed question of law and fact that does
not turn on an evaluation of credibility and demeanor; therefore the
trial court’s decision is reviewed de novo. See Id. at 772-73. However,
whether, under the totality of the circumstances, there was a substantial
likelihood of misidentification is question of historical fact, and as such
an appellate court gives deference to the trial court’s findings. Id. at 773-
74.
III. Argument
A. The appellant did not “st[i]ck out like a sore thumb”
in the photo lineup.
The appellant claims that the photo lineup was “obviously
suggestive” for three reasons: “The Appellant’s photo was the only one
of the six with a mark on his face and the only person wearing a hoodie.
… Appellant was the only individual closely resembling the pre-
procedure description.” (Appellant’s Brief at 83-84). According to the
52
appellant, this made his picture “st[i]ck out like a sore thumb.”
(Appellant’s Brief at 84).
In her statement, Wendy gave the following description of the
shooter:
He was Hispanic and about 16-17 years old. He was around
5 foot 6 inches to 5 foot 7 inches tall. I remember him having
a dark birth mark on his face but I can’t remember exactly
where. He was very skinny and clean shaven. He had black
hair, it was short. He had a fade type haircut. He was
wearing a black sweat shirt hooded jacket and khaki pants.
(State’s Ex. 160).
Looking at the photo lineup, there are numerous similarities
between all six: They are all young, Hispanic men who might plausibly
be in their late teens; they all have short black hair; and, except for one
with a light mustache, are clean-shaven. Several of them might well
qualify as “skinny,” which is a fairly subjective term, particularly when
all that is shown is the face. In none of the six pictures is it apparent how
tall the individuals were. Additionally, at the time of the photo lineup
Wendy was admonished that individuals might be wearing different
clothing in the photo lineup, that their hair might be different, or that
their skin tone might be different depending on the lighting. (25 RR 91).
53
As to the supposed differences that the appellant points out in his
brief, the State disputes his assertion that none of the other individuals
were wearing a hoodie or had a mark on his face. The appellant’s picture
appears in the middle of the bottom row. In the left-hand picture on the
bottom row is an individual wearing a grey hoodie. In the right-hand
picture of the upper row is an individual wearing some sort of black
sweater or jacket with a thick collar that could be a hoodie with the
hood inverted. At any rate, Wendy was advised that the individuals could
be wearing different attire than on the night of the killing. (25 RR 91).
Regarding the mark on his face, the individual in the left side of
the top row has a mark on the left side of his neck and perhaps a mark
on the left side of his face. The individual in the middle of the top row
has some sort of injury or tattoo on the left side of his face that is at least
as prominent as the mark on the left side of the appellant’s face. For the
other three individuals, they all have parts of their faces obscured by
shadow or camera angle; because Wendy said she did not remember
which part of his face had a mark on it, it is possible that the mark could
have been in one of these obscured areas.
54
B. The totality of the circumstances does not show a
substantial likelihood of misidentification.
Reviewing the Biggers factors shows that there is adequate
support for the trial court’s finding that the totality of the circumstances
does not show a substantial likelihood of misidentification. Wendy
testified that she had a good opportunity to view the shooter when his
hood fell off. (25 RR 47-48). Wendy said that, though she was shocked
and could not move during the shooting, she kept her eyes on the
shooter. (25 RR 46).
Regarding the third Biggers factor, Wendy gave police a
description of the shooter that fairly well matches up with the appellant.
(State’s Ex. 160). In his brief, the appellant takes conflicting positions on
the accuracy of her description. In arguing that the lineup was too
suggestive, he asserts that the appellant was “the only individual closely
resembling the pre-procedure description.” (Appellant’s Brief at 84).
However, in his argument about the totality of the circumstances he
asserts that Wendy’s pre-identification description was “way off.”
(Appellant’s Brief at 87).
The State believes that the appellant was correct the first time.
The only inaccuracies he mentions from her pre-identification are
55
irrelevant. First, he points out that she originally said that the shooter
had a black gun, but the murder weapon turned out to be black.
(Appellant’s Brief at 87). This does not detract from the accuracy of her
description of the shooter; indeed, it could add to because it
demonstrates that she was looking at the shooter’s face and not the gun.
(See 25 RR 142-44 (defense expert describing how “weapon focus”
sometimes causes witnesses to focus on a gun rather than the shooter’s
face)).
The second inaccuracy that the appellant points to is that Wendy
originally told the police that the shooter had a “birth mark,” but at trial
she described the mark on the appellant’s face as a “mole.” (Compare
State’s Ex. 160 to 25 RR 71-72). Considering that English was not
Wendy’s first language, any failure on her part to grasp the difference
between a mole and a birthmark is such a minor thing that this Court
should disregard it. See American Academy of Dermatology, “Different
Kinds of Birthmarks,” https://www.aad.org/dermatology-a-to-z/for-
kids/about-skin/birthmarks/different-kinds-of-birthmarks (last visited
June 24, 2015) (“If you are born with a mole, it is considered a
birthmark.… But not all moles are birthmarks.”).
56
The third inaccuracy that the appellant points out is that Wendy
originally told police that the appellant fired at her repeatedly, but the
ballistics from the crime scene showed that this had not been the case.
(Compare State’s Ex. 160 to 28 RR 121, 123). However, the ballistics
testimony was not admitted until after the trial court ruled on the
motion to suppress, thus the appellant cannot use that fact to assert that
the trial court abused its discretion in denying his motion to suppress.
See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000)
(rulings on motion to suppress reviewed based on evidence before trial
court at time of ruling). Additionally, this inaccuracy does not
undermine Wendy’s identification of the shooter.
Regarding the fourth and fifth Biggers factors, Wendy made her
identification within a week of the shooting, and she was completely
certain in that identification, even if there was some confusion in how
that certainty was conveyed to the police.
In conclusion, the lineup in this case was not impermissibly
suggestive. Moreover, the trial court’s determination that, even if there
were a level of suggestiveness, the totality of the circumstances do not
show a substantial chance of misidentification is well-supported by the
57
record and this Court should defer to that determination and overrule
the appellant’s eighth point of error.
Reply to Point Nine
The jury’s note to the trial court did not indicate a point of
disagreement, therefore the trial court was correct in its decision
not to have testimony read back in response to that note.
The jury in this case was uncommonly communicative, sending
out no fewer than 22 requests for testimony to be read back to them, in
addition to numerous notes requesting physical evidence. (See CR 3285-
3319). The appellant’s ninth point of error relates to the trial court’s
determination that one of these notes did not reflect a disagreement
about testimony and thus there was no need to have the requested
testimony read back to the jury.
On the first day of deliberation, the jury sent out a note that
concerned the testimony of Sergeant Ruland and asked “to hear when
the defense asked Officer [Ruland] if he would question Wendy’s
credibility if she knew [the appellant] prior to the incident.” (CR 3295).
The trial court replied in writing that there was “no testimony in the
record that is specifically responsive to the question.” (CR 3296). The
trial court asked the jurors to “explain the dispute that you have among
58
yourselves” so that it could “find a responsive answer.” (CR 3296). The
next day the jury sent out a note requesting “to hear [Ruland’s]
testimony where the witness was asked if Wendy’s credibility would be
different if there was evidence that her relationship with [the appellant]
was more involved.” (CR 3297).
The parties held a discussion on the record concerning this
second note. (31 RR 4-7). The reporter’s record seems to pick up mid-
discussion, because defense counsel asked to have testimony read back
to the jury, though he did not specify what testimony he wished to have
read back. (31 RR 4-5). A prosecutor then replied that she believed the
question concerned different testimony than that which defense counsel
wished to have read back. (31 RR 5). The trial court said that it would
reply to the note by instructing the jurors “to be specific as to the point
in dispute.” (31 RR 5; see CR 3297). Defense counsel “vehemently
object[ed]” to this, stating that the trial court’s response was
“disrespecting the jury” because “[t]hey have clearly indicated what it is
that they want.” (31 RR 5). The trial court overruled this objection. (31
RR 6).
The defense then admitted into evidence Defendant’s Exhibit 9,
which is a portion of testimony in which Ruland explained that Wendy
59
said she had last seen the appellant “approximately six months” prior to
the shooting. (Def.’s Ex. 9). In the testimony, Ruland was asked whether
“if [Wendy] had later said to investigators or testified that it was two
weeks prior to the incident, would that cause you to question her
credibility or veracity?” (Def.’s Ex. 9). Ruland replied, “Yes.” (Def.’s Ex. 9).
On appeal, a trial court’s decision of whether to have testimony
read back to the jury in response to a question is reviewed only for an
abuse of discretion. Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App.
2005). Article 36.28 authorizes trial courts to have testimony read back
to the jury, but only if there is “disagree[ment] as to the statement.” TEX.
CODE CRIM. PROC. art. 36.28. The jury must indicate its disagreement to
the trial court so that the trial court will know what testimony is
responsive to that disagreement. Moore v. State, 874 S.W.2d 671, 674
(Tex. Crim. App. 1994). “[A] request for testimony, without more, is not
an indication of implicit disagreement.” Ibid.
The jury’s note in this case did not indicate disagreement. Even
after the trial court requested that the jury “explain the dispute,” the
jury’s note consisted only of a statement that they wanted to hear
particular testimony. (CR 3297). While it is true, as the appellant points
out, that the case law allows a trial court in this situation to infer a
60
dispute, nothing in the case law requires a trial court to do so. Cf.
Robison v. State, 888 S.W.2d 473, 481 (Tex. Crim. App. 1994) (where trial
court replies to jury note by instructing on need for disagreement and
jury sends back note not explicitly mentioning disagreement, trial court
does not abuse discretion by inferring disagreement). Here, because the
jury note did not describe a point that was in dispute, the trial court did
not abuse its discretion by not having testimony read back to the jury.
Moreover, it is worth noting that the testimony in Defendant’s
Exhibit 9 is not responsive to the jury’s request. The jurors asked for
testimony regarding how Wendy’s “relationship” with the appellant
would impact Ruland’s assessment of her credibility. In the context of
the trial, this “relationship” question was plainly a reference to Wendy’s
testimony that she had hung out at the appellant’s apartment a few
times and talked with the appellant. (See 26 RR 61). Defense counsel
asked Wendy if the appellant had grabbed Wendy by the hair and
thrown her out of his apartment and Wendy replied that she did not
recall that happening. (26 RR 61-62). Ruland did not testify to the
“relationship” between Wendy and the appellant; the testimony in
Defendant’s Exhibit 9 regards when Wendy had last seen the appellant,
not the depth of their relationship.
61
The trial court did not abuse its discretion in declining to have an
irrelevant section of testimony read back to the jury in response to a
note that did not indicate a point in dispute. This Court should reject the
appellant’s ninth point.
62
Conclusion
The State respectfully submits that all things are regular and the
judgment of the trial court should be affirmed.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ C.A. Morgan
CLINTON A. MORGAN
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
713.755.5826
Texas Bar No. 24071454
63
Certificate of Compliance and Service
I certify that, according to Microsoft Word’s word counting
function, the portion of this brief for which Rule of Appellate Procedure
9.4(i)(1) requires a word count contains 13,183 words.
I also certify that I have requested that efile.txcourts.gov
electronically serve a copy of this brief to:
R. Scott Shearer
shearerleagl@yahoo.com
/s/ C.A. Morgan
CLINTON A. MORGAN
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002-1923
(713) 755-5826
Texas Bar No. 24071454
Date: June 24, 2015
64
Appendix: State’s Exhibit 56