ACCEPTED
13-14-00457-CR
FILED THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
IN THE 13TH COURT OF APPEALS 9/18/2015 2:52:01 PM
CORPUS CHRISTI Dorian E. Ramirez
CLERK
09/18/15
DORIAN E. RAMIREZ, CLERK CAUSE NO. 13-14-00457-CR
BY cholloway
RECEIVED IN
13th COURT OF APPEALS
IN THE COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
9/18/2015 2:52:01 PM
THIRTEENTH JUDICIAL DISTRICT OFDORIAN
TEXAS E. RAMIREZ
Clerk
CORPUS CHRISTI - EDINBURG, TEXAS
VICTOR HERNANDEZ,
Appellant
v.
STATE OF TEXAS,
Appellee.
On appeal from the 357th Judicial District Court
of Cameron County, Texas
Trial Court Cause Number 2013-DCR-01953-E
STATE’S APPELLATE BRIEF
Luis V. Saenz
Cameron County District Attorney
René B. González
Assistant District Attorney
964 East Harrison Street, 4th Floor
Brownsville, Texas 78520
Phone: (956) 544-0849
Fax: (956) 544-0869
Attorneys for the State of Texas
TABLE OF CONTENTS
Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Salutation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Argument and Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
State’s response to points of error one through 18. . . . . . . . . . . . . . . . . . . . . 3
State’s response to points of error 19 through 26.. . . . . . . . . . . . . . . . . . . . . 6
State’s response to points of error 27 through 44.. . . . . . . . . . . . . . . . . . . . 10
State’s response to points of error 45 and 46. . . . . . . . . . . . . . . . . . . . . . . . 14
State’s response to points of error 47 and 48. . . . . . . . . . . . . . . . . . . . . . . . 17
State’s response to points of error 49 and 50. . . . . . . . . . . . . . . . . . . . . . . . 22
State’s response to point of error 51. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
-i-
INDEX OF AUTHORITIES
Cases
Anderson v. State,
633 S.W.2d. 851 (Tex. Crim. App. 1982).. . . . . . . . . . . . . . . . . . 8, 10, 11, 12
Brooks v. State,
961 S.W.2d 396 (Tex. App.--Houston [1st Dist.] 1997, no writ).. . . . . 23, 24
Cardenas v. State,
325 S.W.3d 179 (Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . . . . . 5, 13, 14
Cortez v. State,
683 S.W.2d 419 (Tex. Crim. App. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Cumbo v. State,
760 S.W.2d 251 (Tex. Crim. App. 1988). . . . . . . . . . . . . . . . . . . . . . . . . 5, 12
Dewberry v. State,
4 S.W.3d 735 (Tex. Crim. App. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Dinkins v. State,
894 S.W.2d 330 (Tex. Crim. App. 1995). . . . . . . . . . . . . . . . . . . . . . . . 15, 17
Doyle v. Ohio,
426 U.S. 610 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Duncan v. Louisiana,
391 U.S. 145 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Faulder v. State,
745 S.W.2d 327 (Tex. Crim. App. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Faulkner v. State,
940 S.W.2d 308 (Tex. App.--Fort Worth 1997, pet. ref’d). . . . . . . . . . . . . 15
-ii-
Feldman v. State,
71 S.W.3d 738 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Fletcher v. State,
852 S.W.2d 271 (Tex. App.--Dallas 1993, pet. ref’d). . . . . . . . . . . . . . 19, 20
Hernandez v. State,
563 S.W.2d 947 (Tex. Crim. App. 1978). . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Hudson v. State,
675 S.W.2d 507 (Tex. Crim. App. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Johnson v. State,
83 S.W.3d 229 (Tex. App.--Waco 2002, pet. ref’d). . . . . . . . . . . . . . . . . . . 22
Jones v. State,
982 S.W.2d 386 (Tex. Crim. App. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Jordan v. State,
635 S.W.2d 522 (Tex. Crim. App. 1982). . . . . . . . . . . . . . . . . . . . . . . . . 5, 12
Ladd v. State,
3 S.W.3d 547 (Tex. Crim. App. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Little v. State,
758 S.W.2d 551 (Tex. Crim. App. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Mendoza v. State,
959 S.W.2d 321 (Tex. App.--Waco 1997, pet. ref’d). . . . . . . . . . . . . . . . . . 20
Moore v. State,
999 S.W.2d 385 (Tex. Crim. App. 1999). . . . . . . . . . . . . . . . . . 5, 6, 9, 13, 14
Moreno v. State,
38 S.W.3d 774 (Tex. App.--Houston [14th Dist.] 2001, no pet.).. . . . . . . . 24
-iii-
Patton v. Yount,
467 U.S. 1025 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Peoples v. State,
874 S.W.2d 804 (Tex. App.--Fort Worth 1994, no pet.). . . . . . . . . . . . . . . 24
Pierce v. State,
696 S.W.2d 899 (Tex. Crim. App. 1985). . . . . . . . . . . . . . . . . . . . . . . . . 5, 12
Reynolds v. United States,
98 U.S. 145 (1879). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Robinson v. State,
851 S.W.2d 216 (Tex. Crim. App. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Rodriguez v. State,
649 S.W.2d 329 (Tex. App.--Corpus Christi 1983, no pet.). . . . . . . . . 15, 16
Ross v. Oklahoma,
487 U.S. 81 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Sanchez v. State,
707 S.W.2d 575 (Tex. Crim. App. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Shaver v. State,
280 S.W.2d 740 (Tex. Crim. App. 1955). . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Spaulding v. State,
656 S.W.2d 538 (Tex. App.--Corpus Christi 1983, pet. ref’d).. . . . . . . . . . 16
Stavinoha v. State,
808 S.W.2d 76 (Tex. Crim. App. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Veteto v. State,
8 S.W.3d 805 (Tex. App.--Waco 2000, pet. ref’d). . . . . . . . . . . . . . 19, 20, 21
-iv-
Wainwright v. Witt,
469 U.S. 412 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Waldo v. State,
746 S.W.2d 750 (Tex. Crim. App. 1988). . . . . . . . . . . . . . . . . . . . . 19, 20, 21
Walter v. State,
267 S.W.3d 883 (Tex. Crim. App. 2008). . . . . . . . . . . . . . . . . . . . . 25, 26, 27
Wilkerson v. State,
510 S.W.2d 589 (Tex. Crim. App. 1974). . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Williams v. State,
417 S.W.3d 162 (Tex. App.--Houston [1st Dist.] 2013, . . . . . . . . . . . . . . . 16
Williams v. State,
565 S.W.2d 63 (Tex. Crim. App. 1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Williams v. State,
773 S.W.2d 525 (Tex. Crim. App. 1988). . . . . . . . . . . . . . . . . . . . . . . . . 4, 12
Wood v. State,
18 S.W.3d 642 (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Woodall v. State,
77 S.W.3d 388 (Tex. App.--Fort Worth 2002, pet. ref’d). . . . . . . . . . . 14, 15
Zuliani v. State,
97 S.W.3d 589 (Tex. Crim. App. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Statutes
Tex. Const. art. I, § 10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Tex. Code Crim. Proc. art. 35.16(a)(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Tex. Code Crim. Proc. art. 35.16(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 4
-v-
Tex. Code Crim. Proc. art. 37.07 § 3(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Rules
Tex. R. App. P. 38.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Tex. R. Evid. 803(24). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26
-vi-
CAUSE NO. 13-14-00457-CR
____________________________________
IN THE COURT OF APPEALS
THIRTEENTH JUDICIAL DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG, TEXAS
____________________________________
VICTOR HERNANDEZ,
Appellant
v.
STATE OF TEXAS,
Appellee
____________________________________
STATE’S APPELLATE BRIEF
____________________________________
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, Appellee, the STATE OF TEXAS, by and through the
Cameron County District Attorney, the Honorable Luis V. Saenz, and, pursuant to
Rule 38.2 of the Texas Rules of Appellate Procedure, files this, its Appellate Brief
in the above-styled and -numbered cause of action, and in support thereof, would
show this Honorable Court as follows:
State’s Brief Page 1
SUMMARY OF ARGUMENT
Appellant raises fifty-one points of error on appeal. In points of error one
through 18, Appellant argues that the trial court erred in failing to sustain a
challenge for cause to the eighteen panel members listed in these points, and
thereby violated article 35.16(c)(2) of the Texas Code of Criminal Procedure. The
State responds by asserting that Appellant has failed to demonstrate any error. In
points of error 19 through 26, Appellant complains that he was denied a fair and
impartial trial as guaranteed by the Sixth Amendment to the U.S. Constitution,
because the jury consisted of eight unqualified jurors. The State responds by
asserting that Appellant has not demonstrated that he has suffered a violation of
the Sixth Amendment. In points of error 27 through 44, Appellant argues that he
was denied his Sixth Amendment right to a fair and impartial jury when the trial
court re-qualified eighteen panel members. The State responds by asserting that
Appellant’s Sixth Amendment right has not been violated. In points of error 45
and 46, Appellant argues that the trial court erred in not granting a mistrial during
the State’s closing argument. The State responds by asserting that the trial court
did not err in denying Appellant’s request for a mistrial. In points of error 47 and
48, Appellant complains that the trial court erred in not granting a mistrial relating
to a comment on the Appellant’s post-arrest silence. The State responds by
State’s Brief Page 2
asserting that the trial court did not err in denying the request for mistrial. In
points of error 49 and 50, Appellant complains that the trial court erred in allowing
the victim’s father to testify to certain matters that amounted to victim impact
statements. The State responds by asserting that the trial court did not err in
allowing the victim’s father to testify concerning the foreseeable effects of
Appellant’s crime on the victim’s immediate family. In point of error 51,
Appellant complains that the trial court erred allowing the admission of hearsay
evidence before the jury. The State responds by asserting that the trial court did
not err in admitting said hearsay, and further, Appellant has failed to preserve this
issue for appellate review.
ARGUMENT & AUTHORITIES
State’s response to points of error one through 18
In points of error one through 18, Appellant argues that the trial court erred
in failing to sustain a challenge for cause to the eighteen panel members listed in
these points, and thereby violated article 35.16(c)(2) of the Texas Code of
Criminal Procedure. The State responds by asserting that Appellant has failed to
demonstrate any error.
Appellant’s first eighteen issues relate to the eighteen jury panel members
State’s Brief Page 3
whom he similarly challenged under “range of punishment” and whom the trial
court did not release from the jury list by either granting that challenge or
otherwise excusing the jurors through the State’s agreement or on other
challengeable grounds. Appellant argues that these panel members’ negative
responses to his question show that they could not follow the law by considering
the minimum punishment and that they were therefore challengeable for cause.
Tex. Code Crim. Proc. art. 35.16(c)(2); see also Faulder v. State, 745 S.W.2d 327,
339 (Tex. Crim. App. 1987) (explaining that it is “axiomatic that a prospective
juror who states that he cannot consider [the full range of punishment] is subject to
challenge for cause”) (citation omitted). However, the State responds by asserting
that the trial court did not err in refusing to sustain the challenges for cause as to
these panel members, because further questioning by the court indicated that they
were not subject to a challenge for cause.
The Court of Criminal Appeals has held that once a juror expressly admits
his bias against a phase of law upon which both the State and defense are entitled
to rely, a sufficient foundation has been laid to support a challenge for cause. See
Williams v. State, 773 S.W.2d 525, 536 (Tex. Crim. App. 1988) (holding that a
juror is biased as a matter of law if he unequivocally expresses an inability to
consider five years probation as possible punishment for the lesser-included
State’s Brief Page 4
offense of murder in a capital-murder trial); see also Jordan v. State, 635 S.W.2d
522, 523 (Tex. Crim. App. 1982) (reversible error to deny a defendant’s challenge
for cause against a juror who could not consider probation for the lesser-included
offense of murder in a capital murder case). Therefore, a juror who states that he
cannot consider the minimum punishment for a particular statutory offense is
subject to a challenge for cause. Cumbo v. State, 760 S.W.2d 251, 255–56 (Tex.
Crim. App. 1988); Pierce v. State, 696 S.W.2d 899, 902 (Tex. Crim. App. 1985)
(defendant has the right to challenge for cause any juror who could not give the
minimum punishment, including probation). Nevertheless, the Court of Criminal
Appeals has also explicitly stated that once a juror states he cannot consider the
minimum punishment for a particular offense, the “opposing party or trial judge
may then examine the juror further to ensure that he fully understands and
appreciates the position that he is taking.” Cardenas v. State, 325 S.W.3d 179,
185 (Tex. Crim. App. 2010); see also Moore v. State, 999 S.W.2d 385, 400 (Tex.
Crim. App. 1999) (“When the record reflects that a venireman vacillates or
equivocates on his ability to follow the law, the reviewing court must defer to the
trial court.”). Unless there is further clarification or vacillation by the juror, the
trial judge must grant a challenge for cause if the juror states that he cannot
consider the full range of punishment. Cardenas, 325 S.W.3d at 185.
State’s Brief Page 5
In the present case, numerous panel members stated that they could not
consider probation in the present case. (R.R. Vol. 2, pp. 45-46). Thereafter, these
panel members, being the panel members mentioned in points of error one through
18, were asked additional questions concerning their ability to follow the full
range of punishment. (R.R. Vol. 2, pp. 66-70). All of these panel members
clarified that they could consider the full range of punishment. Because there was
further clarification that these panel members could follow the law and could
consider the full range of punishment, this Court must defer to the trial court’s
decision to deny the challenge for cause. Moore, 999 S.W.2d at 400.
Therefore, Appellant’s points of error one through eighteen should be
overruled.
State’s response to points of error 19 through 26
In points of error 19 through 26, Appellant complains that he was denied a
fair and impartial trial as guaranteed by the Sixth Amendment to the U.S.
Constitution, because the jury consisted of eight unqualified jurors. The State
responds by asserting that Appellant has not demonstrated that he has suffered a
violation of the Sixth Amendment.
The Sixth Amendment does guarantee individuals the right to an impartial
State’s Brief Page 6
jury; however, the Courts have interpreted this right to mean that a challenge for
cause to a prospective juror, that is based on his views about the appropriateness
of a certain punishment, need not be granted unless the views of the prospective
juror would substantially impair the performance of his duties as a juror in
accordance with his instructions and oath. Wainwright v. Witt, 469 U.S. 412, 424
(1985); Robinson v. State, 851 S.W.2d 216, 228 (Tex. Crim. App. 1991). In other
words, neither peremptory challenges nor challenges for cause are of
constitutional dimension. See Ross v. Oklahoma, 487 U.S. 81, 88 (1988); Jones v.
State, 982 S.W.2d 386, 391 (Tex. Crim. App. 1998). So long as the jury that sits is
impartial, a mere error in ruling on a challenge for cause does not mean the Sixth
Amendment was violated. Ross, 487 U.S. at 88; Jones, 982 S.W.2d at 391.
As with any other trial situation where an adversary wishes to exclude a
juror because of bias, then, it is the adversary seeking exclusion who must
demonstrate, through questioning, that the potential juror lacks impartiality. See
Reynolds v. United States, 98 U.S. 145, 157 (1879). It is then the trial judge’s duty
to determine whether the potential juror is impartial. Wainwright, 469 U.S. at
423-24; see also Patton v. Yount, 467 U.S. 1025, 1036 (1984) (where a criminal
defendant sought to excuse a juror for cause and the trial judge refused, the
question was simply “did [the] juror swear that he could set aside any opinion he
State’s Brief Page 7
might hold and decide the case on the evidence, and should the juror’s
protestations of impartiality have been believed”). Therefore, when a defendant
complains that his Sixth Amendment right to a fair and impartial jury has been
violated, it is that defendant’s burden to demonstrate that the persons selected to
serve on the jury were not, in fact, fair and impartial. An impartial jury is one
which favors neither party, which is unprejudiced, disinterested, equitable, and
just and is composed of jurors who have not prejudged the merits of the case.
Shaver v. State, 280 S.W.2d 740, 742 (Tex. Crim. App. 1955). On the other hand,
bias exists, as a matter of law, when a prospective juror admits he is biased for or
against a defendant. Anderson v. State, 633 S.W.2d. 851, 854 (Tex. Crim. App.
1982). When bias is not established as a matter of law, the trial court then has
discretion to determine whether bias actually exists to a degree that the juror is
disqualified and should be excused from jury service. Id. at 853-54.
In the present case, jurors listed in points of error 19 through 26 first stated
that they could not consider the full range of punishment; however, on further
examination by the court, the jurors all stated that they could follow the law and
consider the full range of punishment. The trial judge then ruled that these jurors
were not subject to a challenge for cause, thus implicitly ruling that these jurors
were fair and impartial. Appellant has not demonstrated that the trial court abused
State’s Brief Page 8
its discretion in making such ruling.
The facts herein demonstrate that the jurors listed in points of error 19
through 26 all initially stated that they could not consider the full range of
punishment. (R.R. Vol. 2, pp. 45-46). Thereafter, these panel members, including
Esmeralda Valdez, Eddie Jaimes, Myrna Stockton, Roman Torres, Eduardo
Gonzalez, Maria Delourdes Liendo, Norberto Flores, Jr., and Belinda Zavala (the
jurors listed in points of error 19 through 26), were asked additional questions
concerning their ability to follow the full range of punishment. (R.R. Vol. 2, pp.
66-75). All of these panel members clarified that they could consider the full
range of punishment. Because there was further clarification that these panel
members could follow the law and could consider the full range of punishment,
this Court must defer to the trial court’s decision to deny the challenge for cause.
Moore, 999 S.W.2d at 400. Appellant has not provided any basis upon which to
find that the answers of these jurors are not to be believed, and therefore,
Appellant has failed to demonstrate that his case was not heard by a fair and
impartial jury.
Accordingly, Appellant’s points of error 19 through 26 should be overruled.
State’s Brief Page 9
State’s response to points of error 27 through 44
In points of error 27 through 44, Appellant argues that he was denied his
Sixth Amendment right to a fair and impartial jury when the trial court re-qualified
eighteen panel members. The State responds by asserting that Appellant’s Sixth
Amendment right has not been violated.
Appellant argues that based on the record the potential jurors listed in points
of error 27 through 44 were biased as a matter of law; therefore, the trial court was
required to excuse him even if he stated he could set aside his bias and provide a
fair trial. See Williams v. State, 565 S.W.2d 63, 65 (Tex. Crim. App. 1978).
Appellant does not argue that these persons were not rehabilitated - he argues only
that such rehabilitation was erroneously permitted, and that these persons should
have been excused for cause because they was biased as a matter of law.
Appellant relies on various authorities, including Anderson v. State, 633
S.W.2d 851 (Tex. Crim. App. 1982). Distilled, Appellant’s argument is that if a
challenged prospective juror is biased as a matter of law, the juror must be struck
and cannot be rehabilitated; and bias as a matter of law exists when the
prospective juror admits he is biased for or against the defendant. Id. at 854.
Hence, being biased as a matter of law, Appellant argues, these potential jurors
should have been struck and not subject to rehabilitation by the State. The State
State’s Brief Page 10
responds, however, that the initial statement of these potential jurors did not admit
they had any sort of “personal issue” or that the issue was a bias against Appellant.
Rather, these prospective jurors noted that they had a problem with the law, as it
had been explained to them.
The Sixth Amendment to the United States Constitution guarantees that in
all criminal prosecutions the defendant is entitled to a trial “by an impartial jury.”
This right is applicable to the States through the Fourteenth Amendment. Duncan
v. Louisiana, 391 U.S. 145 (1968); see also Hernandez v. State, 563 S.W.2d 947,
950 (Tex. Crim. App. 1978). A party may challenge any prospective juror who
demonstrates a bias or prejudice against the defendant. Tex. Code Crim. Proc. art.
35.16(a)(9). The test is whether the bias or prejudice would substantially impair
the prospective juror’s ability to carry out his oath and instructions in accordance
with the law. Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002). Bias
is established as a matter of law when a prospective juror admits he is biased for or
against the defendant. Anderson, 633 S.W.2d at 854. When a prospective juror is
shown to be biased as a matter of law, he must be excused when challenged, even
if he states he can set aside his bias and provide a fair trial. Anderson, 633 S.W.2d
at 854. When bias is not established as a matter of law, the trial court then has
discretion to determine whether bias actually exists to a degree that the juror is
State’s Brief Page 11
disqualified and should be excused from jury service. Id. at 853-54. It is left to
the discretion of the trial court, however, to initially determine whether such a bias
exists and the trial court’s decision will be reviewed in light of all of the answers
given. Id. Unless bias or prejudice is established as a matter of law, the appellate
court cannot overturn the trial court’s ruling. Little v. State, 758 S.W.2d 551, 556
(Tex. Crim. App. 1988).
The Court of Criminal Appeals has held that once a juror expressly admits
his bias against a phase of law upon which both the State and defense are entitled
to rely, a sufficient foundation has been laid to support a challenge for cause. See
Williams v. State, 773 S.W.2d 525, 536 (Tex. Crim. App. 1988) (holding that a
juror is biased as a matter of law if he unequivocally expresses an inability to
consider five years probation as possible punishment for the lesser-included
offense of murder in a capital-murder trial); see also Jordan v. State, 635 S.W.2d
522, 523 (Tex. Crim. App. 1982) (reversible error to deny a defendant’s challenge
for cause against a juror who could not consider probation for the lesser-included
offense of murder in a capital murder case). Therefore, a juror who states that he
cannot consider the minimum punishment for a particular statutory offense is
subject to a challenge for cause. Cumbo, 760 S.W.2d at 255–56; Pierce v. State,
696 S.W.2d 899, 902 (Tex. Crim. App. 1985) (defendant has the right to challenge
State’s Brief Page 12
for cause any juror who could not give the minimum punishment, including
probation). Nevertheless, the Court of Criminal Appeals has also explicitly stated
that once a juror states he cannot consider the minimum punishment for a
particular offense, the “opposing party or trial judge may then examine the juror
further to ensure that he fully understands and appreciates the position that he is
taking.” Cardenas v. State, 325 S.W.3d 179, 185 (Tex. Crim. App. 2010); see also
Moore, 999 S.W.2d at 400 (“When the record reflects that a venireman vacillates
or equivocates on his ability to follow the law, the reviewing court must defer to
the trial court.”). Unless there is further clarification or vacillation by the juror,
the trial judge must grant a challenge for cause if the juror states that he cannot
consider the full range of punishment. Cardenas, 325 S.W.3d at 185.
In the present case, the panel members listed in issues 27 through 44 all
stated that they could not consider probation in the present case. (R.R. Vol. 2, pp.
45-46). Thereafter, these panel members were asked additional questions
concerning their ability to follow the full range of punishment. (R.R. Vol. 2, pp.
66-70). All of these panel members clarified that they could consider the full
range of punishment. Because there was further clarification that these panel
members could follow the law and could consider the full range of punishment,
this Court must defer to the trial court’s decision to deny the challenge for cause.
State’s Brief Page 13
Moore, 999 S.W.2d at 400.
Appellant has not demonstrated that the trial court abused its discretion in
allowing the subject panel members to clarify their answers. Further, this type of
clarification has been specifically authorized by the Court of Criminal Appeals.
See Cardenas, 325 S.W.3d at 185. Therefore, Appellant’s issues 27 through 44
should be overruled.
State’s response to points of error 45 and 46
In his forty-fifth and forty-sixth points of error, Appellant argues that the
trial court erred in not granting a mistrial during the State’s closing argument. The
State responds by asserting that the trial court did not err in denying Appellant’s
request for a mistrial.
This Court must review the trial court’s denial of a defendant’s motions for
mistrial for an abuse of discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim.
App. 1999); Woodall v. State, 77 S.W.3d 388, 399 (Tex. App.--Fort Worth 2002,
pet. ref’d). A trial court may declare a mistrial when an error occurs that is so
prejudicial that the expenditure of further time and expense would be wasteful.
Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). Whether a trial court
abused its discretion in denying a motion for mistrial depends on whether the
State’s Brief Page 14
court’s instruction cured any prejudicial effect. Dinkins v. State, 894 S.W.2d 330,
357 (Tex. Crim. App. 1995); Faulkner v. State, 940 S.W.2d 308, 312 (Tex. App.-
-Fort Worth 1997, pet. ref’d). Generally, almost any improper argument may be
cured by an instruction to disregard. Faulkner v. State, 940 S.W.2d 308, 312 (Tex.
App.--Fort Worth 1997, pet. ref’d) (citing Dinkins, 894 S.W.2d at 357); see also
Woodall, 77 S.W.3d at 399. However, a comment may be so egregious or
inflammatory as to render the instruction ineffective in curing the prejudice.
Dinkins, 894 S.W.2d at 357; Woodall, 77 S.W.3d at 399.
Initially, this Court must determine whether the prosecutor’s comment
during closing argument was improper. Therefore, the question raised by these
points of error is whether the State’s argument falls in the category of asking the
jury to be the voice of the community-a proper plea for law enforcement-or of
asking the jury to lend its ear to the community-an improper argument directed at
the expectations of the community. See Cortez v. State, 683 S.W.2d 419, 421
(Tex. Crim. App. 1984). Arguments directed at what the community wants,
expects, is asking for, or desires are improper expectations of the community
arguments. Rodriguez v. State, 649 S.W.2d 329, 330 (Tex. App.--Corpus Christi
1983, no pet.). Arguments asking that the jury send a message to the community
are proper pleas for law enforcement. Id.
State’s Brief Page 15
Here, the arguments about which Appellant complains clearly asked the jury
to “send a message” that “we are not going to tolerate this...” (R.R. Vol. 5, pp.
100-101). Therefore, these arguments are proper pleas for law enforcement. See
Spaulding v. State, 656 S.W.2d 538, 541 (Tex. App.--Corpus Christi 1983, pet.
ref’d, untimely filed) (court held that the State’s argument, “the good people of
Jackson County are not going to tolerate this kind of conduct,” was a proper plea
for law enforcement).
Nevertheless, the trial court sustained Appellant’s objection to this
argument and then made a prompt instruction to disregard the comment. Under
similar circumstances, Texas courts have held that a prompt instruction to
disregard cures any resulting harm. See Wilkerson v. State, 510 S.W.2d 589,
591–92 (Tex. Crim. App. 1974). Appellant does not cite any cases in which
similar comments in closing argument were held to be incurable by a prompt jury
instruction.
From this record, this cannot conclude that the prosecutor’s statement was
so egregious or inflammatory that it was not cured by the trial court’s instruction
to disregard. See Williams v. State, 417 S.W.3d 162, 172-73 (Tex. App.--Houston
[1st Dist.] 2013, pet. ref’d). Accordingly, this Court should find that Appellant
has not demonstrated that the trial court abused its discretion and overrule
State’s Brief Page 16
Appellant’s forty-fifth and forty-sixth issues.
State’s response to points of error 47 and 48
In his forty-seventh and forty-eighth points of error, Appellant complains
that the trial court erred in not granting a mistrial relating to a comment on the
Appellant’s post-arrest silence. The State responds by asserting that the trial court
did not err in denying the request for mistrial.
A comment on a defendant’s post-arrest silence violates the rights of the
accused under the Fifth Amendment of the United States Constitution and article I,
section 10 of the Texas Constitution. See Doyle v. Ohio, 426 U.S. 610, 618
(1976); Dinkins v. State, 894 S.W.2d 330, 356 (Tex. Crim. App. 1995); Sanchez v.
State, 707 S.W.2d 575, 582 (Tex. Crim. App. 1986). Under the U.S. Constitution,
the State cannot use the post-arrest silence of an accused, after assurances such as
Miranda warnings, to impeach an explanation subsequently offered at trial. See
Doyle, 426 U.S. at 618. The Texas Court of Criminal Appeals has determined
that, in addition to the Doyle prohibition, post-arrest, pre-Miranda silence also
may not be used against an accused at trial. See Sanchez, 707 S.W.2d at 582.
During the State’s cross-examination of Appellant, the following exchange
occurred:
State’s Brief Page 17
Q. So, and just to be clear that when you and your lawyer turned you
over to the police at the bridge, you never gave a statement?
MR. STAPLETON: I’ll object, Your Honor. That’s -- we’ve
previously discussed that. It's a violation of 38.22, the right not to
testify. It's completely improper.
MR. GUZMAN: I didn't make any comment on the fact that he is the
reason why he did give a statement or not. I said did he give one or
not.
THE COURT: I am sustaining the objection.
MR. STAPLETON: And I ask that the jury be instructed to disregard.
THE COURT: Jury is instructed to disregard.
MR. STAPLETON: And I move for a mistrial.
THE COURT: It's denied. (R.R. Vol. 5, pp. 12-13).
At this time, Appellant’s counsel objected and the trial court sustained his
objection. The court then instructed the jury to disregard the question by the
prosecutor. Appellant’s request for a mistrial was denied by the court. The
prosecutor did not again comment on Appellant’s post-arrest silence during
cross-examination or closing argument.
The State concedes that the record clearly shows that the State improperly
commented on Appellant’s post-arrest silence in violation of the United States and
Texas Constitutions. This Court must now consider whether the trial court’s
State’s Brief Page 18
instruction cured the prejudice.
Potential prejudice resulting from a question concerning post-arrest silence
can be cured by an instruction to disregard. See Waldo v. State, 746 S.W.2d 750,
754 (Tex. Crim. App. 1988). An instruction to disregard will be presumed
effective unless the facts of the case suggest the impossibility of removing the
impression produced on the minds of the jury. Id.; see also Veteto v. State, 8
S.W.3d 805, 811 (Tex. App.--Waco 2000, pet. ref’d). The effectiveness of a
curative instruction is determined on a case-by-case basis. See Veteto, 8 S.W.3d at
811. Although not specifically adopted as definitive or exhaustive, the courts have
looked to several factors to determine whether an instruction to disregard cured
the prejudicial effect. See Waldo, 746 S.W.2d at 754; see also Veteto, 8 S.W.3d at
811; Fletcher v. State, 852 S.W.2d 271, 275 (Tex. App.--Dallas 1993, pet. ref’d).
They are as follows: 1) the nature of the error; 2) the persistence of the prosecution
in committing the error; 3) the flagrancy of the violation; 4) the particular
instruction given; 5) the weight of the incriminating evidence; and 6) the harm to
the accused as measured by the severity of sentence. Waldo, 746 S.W.2d at 754.
Nature of the Error
Although the nature of the error is not such that an instruction can never
cure it, the State concedes that a question infringing on Appellant’s
State’s Brief Page 19
constitutionally protected rights is serious in nature. See Veteto, 8 S.W.3d at 811.
Persistence and Flagrancy
Unlike the repeated improper comments in Veteto and Mendoza, the State
did not repeat its improper question concerning Appellant’s post-arrest silence.
Veteto, 8 S.W.3d at 811; Mendoza v. State, 959 S.W.2d 321, 324–25 (Tex. App.--
Waco 1997, pet. ref’d). The State did not broach this subject again during
cross-examination, nor did the State comment on Appellant’s post-arrest silence
during the remainder of the trial. Therefore, this Court should not find any
persistence or flagrancy by the State in the present case.
Particular Instruction Given
The trial court instructed the jurors as follows: “Jury is instructed to
disregard.” The courts have found similar instructions adequate to cure the error.
See Waldo, 746 S.W.2d at 755–56 (“Jury is instructed to disregard the last
comment of the witness.”); Mendoza, 959 S.W.2d at 324 (“I again instruct the jury
that they will not consider the last statement made by the State's attorney for any
purpose whatsoever.”); Fletcher, 852 S.W.2d at 275 (“It is going to be assumed by
the court that the jury is going to follow the court's instructions, not to consider
that, and that line of questions.”). Therefore, this Court should find the trial
court’s instruction adequate under the circumstances.
State’s Brief Page 20
Weight of the Evidence
The evidence is uncontradicted that Appellant shot the victim, and
Appellant judicially confessed to the commission of the offense. The question at
trial was solely one of punishment. As such, the totality of the evidence supports
the finding that the question on Appellant’s post-arrest silence was not of a
material character calculated to influence or affect the jury adversely to Appellant.
See Waldo, 746 S.W.2d at 756.
Severity of Punishment
After being found guilty of aggravated assault with an affirmative finding of
a deadly weapon, the jury sentenced Appellant to fifty (50) years’ imprisonment.
The range of punishment after affirmatively answering the special issue was five
(5) to ninety-nine (99) years’, or life, imprisonment. Considering the nature of the
offense of first-degree aggravated assault with the use of a firearm, this Court
should conclude that the improper question did not increase the severity of the
sentence. See Veteto, 8 S.W.3d at 812.
Summary of Factors
The improper question on Appellant’s post-arrest silence is serious in
nature, but not such that an instruction cannot cure it. Id. at 811. Because the
State did not repeat its question, the instruction was adequate, and there is no
State’s Brief Page 21
indication that the jury’s verdict or sentence was influenced by the improper
question, this Court must find that the instruction cured the prejudicial effect. See
Johnson v. State, 83 S.W.3d 229, 232-33 (Tex. App.--Waco 2002, pet. ref’d).
Accordingly, the trial court did not err by overruling the motion for mistrial.
Points forty-seven and forty-eight should be overruled.
State’s response to points of error 49 and 50
In his forty-ninth and fiftieth points of error, Appellant complains that the
trial court erred in allowing the victim’s father to testify to certain matters that
amounted to victim impact statements. The State responds by asserting that the
trial court did not err in allowing the victim’s father to testify concerning the
foreseeable effects of Appellant’s crime on the victim’s immediate family.
Specifically, Appellant complains of the testimony of the victim’s father on
direct examination, where he described the emotional effects that this offense had
on the victim’s immediate family. Appellant’s trial counsel objected to this
testimony as being irrelevant; however, the trial court overruled said objection.
(R.R. Vol. 3, pp. 20-21). Appellant now complains that this evidence was
irrelevant and amounted to improper victim impact statements.
In non-capital felony cases, the State may present evidence “as to any matter
State’s Brief Page 22
that the court deems relevant to sentencing.” See Tex. Code Crim. Proc. art. 37.07
§ 3(a). Where such evidence constitutes victim impact testimony, the Court of
Criminal Appeals has held that relevancy depends upon whether the testimony has
“some bearing on the defendant’s personal responsibility and moral guilt.”
Stavinoha v. State, 808 S.W.2d 76, 79 (Tex. Crim. App. 1991). Stated differently,
the relevance of victim impact testimony in a non-capital felony case requires that
such testimony have a “close, direct link to the circumstances of the case.” Brooks
v. State, 961 S.W.2d 396, 399 (Tex. App.--Houston [1st Dist.] 1997, no writ).
In Stavinoha, the defendant, a priest, pled guilty to the offense of aggravated
sexual assault of a nine year-old parishioner. See Stavinoha, 808 S.W.2d at 77.
During the punishment phase, the trial court admitted victim impact testimony
from a psychologist detailing the mental trauma suffered by complainant’s mother
as a result of the defendant’s act. Id. On appeal, the Court upheld this testimony
as relevant, reasoning that, because the defendant had cultivated the trust of
complainant’s mother and understood her vulnerabilities as a single parent, he
could easily have anticipated the impact his betrayal of trust would have on her.
Id. at 79.
Subsequently, the First Court of Appeals reached a similar result in Brooks
v. State, also a non-capital felony trial. See Brooks, 961 S.W.2d at 401. In
State’s Brief Page 23
Brooks, a jury found the defendant guilty of murdering William Wooten, brother
of Brenda Williams. During the punishment phase, Williams testified that as a
result of her brother’s death, she had been suffering from stress and that a
physician diagnosed her as being on the verge of a nervous breakdown. Id. at 397.
On appeal, the Brooks court upheld the impact testimony of the decedent’s sister
as relevant to sentencing. Id. at 401; see also Peoples v. State, 874 S.W.2d 804,
807 (Tex. App.--Fort Worth 1994, no pet.) (finding that impact testimony relating
a mother’s anguish as her son died in her arms bore on the defendant's personal
responsibility and moral guilt because he should have anticipated this).
Applying this to the present case, this Court should find that the trial court’s
admission of victim impact testimony from the victim’s father was a logical
extension of Stavinoha. Here, Appellant could easily have anticipated the
psychological impact of his crime on members of the victim’s extended family.
Accordingly, this Court should find that the effect of Appellant’s crime on the
victim’s immediate family, as testified to by the victim’s father, was foreseeable to
Appellant and thus relevant. See also Moreno v. State, 38 S.W.3d 774, 777-78
(Tex. App.--Houston [14th Dist.] 2001, no pet.). Accordingly, this Court should
overrule Appellant’s forty-ninth and fiftieth points of error.
State’s Brief Page 24
State’s response to point of error 51
In his fifty-first and final issue, Appellant complains that the trial court
erred allowing the admission of hearsay evidence before the jury. The State
responds by asserting that the trial court did not err in admitting said hearsay, and
further, Appellant has failed to preserve this issue for appellate review.
Appellant specifically complains of the admission of the testimony of
Officer Julian Ramirez concerning statements made by the Appellant’s mother.
These statements outlined the fact that Appellant’s mother visited Appellant while
in Mexico and assisted him with money, after the commission of the offense, but
before his surrender.
Appellant alleges that the above statements were admitted in violation of
Rule 803(24) of the Texas Rules of Evidence. Specifically, Appellant asserts that
the statements were not corroborated as required by the Rules of Evidence.
Generally speaking, the hearsay rule excludes any out-of-court statement
offered to prove the truth of the matter asserted. Walter v. State, 267 S.W.3d 883,
889 (Tex. Crim. App. 2008). Rule 803(24), however, provides an exception for
statements against interest. Id. at 890. The rationale behind this exception is that
people ordinarily do not make damaging statements about themselves unless they
believe that the statements are true. Id. The rule sets out a two-step protocol for
State’s Brief Page 25
the determination of admissibility. Id. First, the trial court must determine
whether the statement, considering all the circumstances, subjects the declarant to
criminal liability and whether the declarant realized this when he made the
statement. Id. at 890–91. Second, the court must determine whether there are
sufficient corroborating circumstances that clearly support the trustworthiness of
the statement. Dewberry v. State, 4 S.W.3d 735, 751 (Tex. Crim. App. 1999). A
trial court should consider a number of factors: (1) whether the guilt of the
declarant is inconsistent with the guilt of the defendant; (2) whether the declarant
was so situated that he might have committed the crime; (3) the timing of the
declaration; (4) the spontaneity of the declaration; (5) the relationship between the
declarant and the party to whom the statement is made; and (6) the existence of
independent corroborative facts. Id.
Statements that are directly against the declarant’s interest and collateral
“blame-sharing” statements may be admissible under Rule 803(24) if
corroborating circumstances clearly indicate their trustworthiness. Walter, 267
S.W.3d at 896. However, “blame-shifting” statements that minimize the speaker’s
culpability are not admissible, absent extraordinary circumstances. Id. Thus, the
trial judge is obligated to parse a generally self-inculpatory narrative and weed out
those specific factual statements that are self-exculpatory or that shift blame to
State’s Brief Page 26
another. Id. at 897. The trial court’s ruling on the admissibility of a hearsay
statement pursuant to an exception is reviewed under an abuse of discretion
standard. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003).
The statements at issue in the present case were statements made by
Appellant’s mother that were self-inculpatory or “blame-sharing”, in that she
admitted to having assisted Appellant evade apprehension by the police. The
statements were corroborated by Appellant’s testimony, who testified that his
mother did visit him while he was hiding out in Matamoros, Mexico, and that she
did assist him with money. (R.R. Vol. 5, p. 24). Therefore, the trial court did not
abuse its discretion in admitting this evidence.
Moreover, an error in admission of evidence is cured where substantially the
same evidence comes in elsewhere without objection. See Hudson v. State, 675
S.W.2d 507, 511 (Tex. Crim. App. 1984). Assuming, arguendo, that the
complained-of evidence was inadmissible, Appellant did not preserve error
because the same or substantially the same evidence was admitted without
objection through testimony from Appellant himself. Id. Therefore, this Court
should overrule Appellant’s fifty-first issue.
State’s Brief Page 27
PRAYER
WHEREFORE, PREMISES CONSIDERED, the State of Texas prays
that this Court will overrule Appellant’s issues on appeal, and affirm both the
judgment of conviction and the sentence herein.
State’s Brief Page 28
Respectfully Submitted,
LUIS V. SAENZ
Cameron County District Attorney
964 East Harrison Street, 4th Floor
Brownsville, Texas 78520
Phone: (956) 544-0849
Fax: (956) 544-0869
By: /s/ René B. González
René B. González
Assistant District Attorney
State Bar No. 08131380
rgonzalez1@co.cameron.tx.us
Attorneys for the State of Texas
CERTIFICATE OF COMPLIANCE
I certify that this document contains 6,131 words (excluding the cover, table
of contents and table of authorities). The body text is in 14 point font, and the
footnote text is in 12 point font.
/s/ René B. González
René B. González
State’s Brief Page 29
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing State’s appellate Brief was served upon
Mr. Edmund K. Cyganiewicz, Attorney at Law, 1000 East Madison Street,
Brownsville, Texas 78520, edcyganiewicz@rgv.twcbc.com on the 18th day of
September, 2015.
/s/ René B. González
René B. González
State’s Brief Page 30