Ye
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-77,081
GUSTAVO TIJERINA SANDOVAL, Appellant
v.
THE STATE OF TEXAS
ON DIRECT APPEAL
FROM CAUSE NO. 2015-DCR-02443-C IN THE 197TH DISTRICT COURT
CAMERON COUNTY
KELLER, P.J., delivered the opinion of the Court in which RICHARDSON,
YEARY, KEEL, and SLAUGHTER, JJ., joined. HERVEY, NEWELL, WALKER, and MCCLURE,
JJ., concurred.
OPINION
Appellant was charged with the capital murder of Javier Vega, Jr. (“Harvey”),1 by
intentionally causing his death in the course of committing or attempting to commit the offense of
1
The victim was referred to by witnesses as “Harvey” at trial. The victim’s father, Javier
Vega, Sr., was referred to as “Javier” at trial. We will employ these designations.
SANDOVAL — 2
robbery.2 A jury found Appellant guilty of capital murder and answered the special issues in such
a manner that appellant was sentenced to death.3 Appeal to this court is automatic.4 Appellant raises
twenty-seven points of error. Finding no reversible error, we affirm the trial court’s judgment and
sentence.
I. BACKGROUND
On Sunday, August 3, 2014, Harvey Vega, a border patrol agent, and his family and one of
his son’s friends went to Harvey’s parents’ house for a barbeque. Afterwards, Harvey and some of
the others left to go target shooting. Later, they all decided to meet up again to go fishing. Harvey’s
parents drove their own truck. Harvey’s father, Javier, always carried his gun for protection when
he went somewhere, so along with their fishing gear, he brought his .40 caliber Sig Sauer, a .22
pistol, and a .22 rifle.
As the two vehicles traveled to the fishing spot, they passed a red SUV parked on the side
of the road with two men inside. Harvey’s mother noticed that the SUV was parked on an upslope.
That was unusual to her because, “No one ever parks on the upslope.” Harvey’s father got a good
look at the two men, and his mother made eye contact with them. Both parents waved at the two
men as they passed. The SUV started following them. After the Vega family arrived at and set up
2
See TEX. PENAL CODE § 19.03(a)(2) (“A person commits an offense if the person commits
murder as defined under Section 19.02(b)(1) and . . . the person intentionally commits the murder
in the course of committing or attempting to commit . . . robbery.”).
3
See TEX. CODE CRIM. PROC. art. 37.071, § 2(b), (e). All references to articles are to the
Code of Criminal Procedure unless otherwise indicated.
4
Id. § 2(h). Appellant was also charged with the attempted capital murder of Javier Vega,
Sr., and tried for that offense in the same proceeding as the capital murder. He was sentenced to life
on the attempt offense. Because that sentence is not a death sentence, the attempt offense is not the
subject of this appeal.
SANDOVAL — 3
the fishing site, the SUV drove to within 30 yards but then reversed and drove away.
Ten or fifteen minutes later, the SUV returned. Two men jumped out and began firing their
guns at the Vega family. The driver shot Harvey point blank and the passenger shot at the parents.
According to the parents, the driver shouted “Al suelo, cabron,” meaning “Down to the ground,
motherfucker.”5 After Appellant shot Harvey, the passenger shot Javier. Javier fell to the ground,
went for his gun, and shot at the passenger. When that happened, the two men got back into the
SUV and drove away, with the passenger hanging on to the door. Harvey’s parents identified
Appellant as the driver and testified that Appellant shot Harvey. The friend, Aric Garcia, testified
that the driver shot Harvey. Harvey’s wife testified that Appellant was one of the men in the SUV.
Harvey died, never regaining consciousness.
Around 2:00 the next morning, the SUV broke down and Appellant and his passenger were
forced to walk. They went to a house and asked for help. The woman who lived there let them in,
but she alerted border patrol agents after seeing a helicopter search light.
Appellant and his passenger were arrested. Swabs from testing Appellant’s hands tested
positive for gunshot residue. A .45 caliber Taurus pistol was later found near the scene of
Appellant’s arrest. Four .45 caliber cartridge casings found at the crime scene and the bullet that
killed Harvey were consistent with having been fired from the Taurus. Bloodstains on the driver’s
5
Harvey’s parents and one of Harvey’s sons testified that the two men jumped out and
started shooting. Javier testified that the two men began shooting before uttering the command to
get on the ground. The son testified that one of the men started yelling and then shot the victim.
This son testified that Harvey did not pick up the nearby AR-15 but did draw his service weapon.
Another of Harvey’s sons testified that the two men started yelling, the family responded, “Don’t.
No,” and the men started shooting. The friend, Aric Garcia, testified that the men yelled something,
the Vega family yelled back, the driver shot Harvey, the driver then shot at Harvey’s father, and
Harvey’s father then returned fire. Aric further testified that Appellant and Harvey’s father probably
exchanged two or three rounds.
SANDOVAL — 4
side seatbelt and the passenger seat backrest of the red SUV matched Appellant’s DNA.6
At the punishment stage of trial, the State introduced evidence that Appellant participated
in three other robberies against people fishing in the area. During these robberies, the victims were
ordered at gunpoint to get on the ground. One victim was struck twice in the head with the butt of
a gun. Appellant also had convictions for misdemeanor assault, unlawful carrying of a weapon, and
driving while intoxicated, as well as two convictions for possession of marijuana. And Appellant
had a federal conviction for illegal reentry after deportation.
Appellant presented the following mitigating evidence at punishment: The woman who lived
in the house where Appellant was arrested testified that Appellant did not mistreat, harm, or act
disrespectfully to her or her four children while he was there and that she did not feel threatened by
him. The evidence also showed that Appellant surrendered peacefully to border patrol agents when
they found him. And a director from the Texas Department of Criminal Justice testified that she saw
nothing in Appellant’s records that indicated he was part of a security threat group, though she
testified on cross-examination that he had previously been placed in administrative segregation.
II. GUILT
A. Venue
In point of error fourteen, Appellant complains that the trial court erred in refusing to grant
a change of venue due to prejudicial publicity. When a defendant seeks a change of venue based on
publicity about the case, he must show that the publicity was “pervasive, prejudicial, and
6
According to DNA analyst testimony, it was more than 200 quadrillion times more likely
that the DNA on these items came from Appellant than from an unrelated, unknown individual.
SANDOVAL — 5
inflammatory.”7 Widespread publicity is not by itself inherently prejudicial.8 The defendant must
show an actual, identifiable prejudice attributable to pretrial publicity on the part of the community
from which members of the jury will come.9 We review a trial court’s ruling on a motion to change
venue for abuse of discretion and will uphold the trial court’s decision if it is within the zone of
reasonable disagreement.10 The two primary methods of determining whether publicity is pervasive
are a hearing on the motion to change venue and the testimony of prospective jurors at voir dire.11
Appellant was indicted in Willacy County, where Harvey was killed. Appellant initially
sought and obtained an order restricting publicity. He later moved to change venue on the basis of
prejudicial pretrial publicity, requesting that venue be changed to a county outside the Rio Grande
Valley, towards Laredo, Nueces, or San Antonio. Defense counsel conducted an informal poll of
prospective jurors in Willacy and Cameron counties. In Willacy County, 20 out of 69 respondents
(29%) had not formed an opinion as to Appellant’s guilt. In Cameron County, 87 out of 130
respondents (67%) had not formed an opinion as to Appellant’s guilt. The trial court changed venue
to Cameron County on the basis of the evidence and because Cameron County had adequate facilities
for a capital murder prosecution while Willacy County did not.
Nevertheless, Appellant later moved to change venue again. In support, he introduced
testimony from two local criminal defense attorneys who thought Appellant could not get a fair trial
7
Tracy v. State, 597 S.W.3d 502, 509 (Tex. Crim. App. 2020).
8
Id.
9
Id.
10
Id. at 509-10.
11
Id. at 510.
SANDOVAL — 6
in Cameron County. On cross-examination, one of these attorneys said that he was not surprised by
poll results showing over 60% of respondents in Cameron County not having formed an opinion as
to guilt.12 The State introduced the testimony of two people—an administrative director of nursing
and the owner of a home health care company—who said that they believed Appellant could get a
fair trial in Cameron County. The trial court denied the motion.
Appellant points to the fact that, after an initial panel of 337 prospective jurors, the trial court
called two supplemental panels, one of 115 and one of 113. Appellant further contends that nine of
the people who actually served on the jury specifically recalled hearing about the case from local
news sources around the time the crime occurred. The State responds that none of the twelve jurors
indicated significant prior knowledge of the case and that all twelve said that they could render a
verdict based solely on the evidence heard in court.
After reviewing Appellant’s nine record citations, we find that most involved jurors who had
heard little if anything about the case. And as the State points out, all of the jurors said that they
could base their decisions about the case solely on the evidence offered at trial.
We conclude that the trial court was within its discretion to decide that Appellant could get
a fair trial in Cameron County. Point of error fourteen is overruled.
B. Jury Selection
1. Outside Appellant’s Presence
In points of error eleven and twelve, Appellant complains that the trial court erred in hearing
qualifications, excuses, and exemptions for three venire panels outside the presence of Appellant and
his attorney. He claims that the trial court’s conduct violated both constitution and statute.
12
That attorney served as a legal analyst for a news station.
SANDOVAL — 7
Prospective jurors can be summoned for jury service in general and sent to a central jury
room, to be sorted into panels later, or they can be summoned to a “special venire,” one that is
already assigned to a particular case.13 Appellant’s jury was selected from three special venires
called on three different days. The court reporter’s record indicates that Appellant and his attorney
were not present when the trial court conducted a general inquiry into the prospective jurors’
qualifications, excuses, and exemptions but arrived afterwards. We initially perceived a possible
conflict in the record because the docket sheets seemed to suggest that Appellant and his attorney
were present on these occasions. And in a hearing on Appellant’s motion for mistrial, the trial court
suggested that Appellant and his attorney were present:
Okay. Hold on. What I told you was, we had to qualify them just to make . . . certain
that, you know, they were—they were a U.S. citizen and a citizen of Texas, presiding
in . . . Just pre-qualifications. And I told you you didn’t need to be there. In fact, you
were there, though.14
Pursuant to our authority to have an inaccuracy in the record corrected,15 we remanded the
case to the trial court to determine if there was an inaccuracy in either the clerk’s record or the
reporter’s record.16 On remand, the trial court concluded that neither record was inaccurate. Rather,
the clerk’s record simply denoted the date and general time period for when Appellant and counsel
were present but did not pinpoint specific times they were present. The trial court found that
Appellant’s attorney observed—but did not participate in—a portion of the first qualifications,
13
See Arts. 33.09, 34.01; Jasper v. State, 61 S.W.3d 413, 422-23 (Tex. Crim. App. 2001).
14
Emphasis added.
15
See TEX. R. APP. P. 34.5(d), 34.6(e).
16
Sandoval v. State, No. AP-77,081, 2022 WL 610991 (Tex. Crim. App. March 2, 2022)
(not designated for publication).
SANDOVAL — 8
excuses, and exemptions proceeding. The trial court also found that the court’s questioning of
prospective jurors at this time was sotto voce, at a whisper, and that Appellant’s attorney could not
hear what was being said. The trial court further found the court reporter’s record to “be the most
reliable source for what occurred” and that Appellant, his attorney, and the interpreter were not
present during the second and third hearings on qualifications, excuses, and exemptions. The trial
court also found that all three hearings were held off the record.
Although the right to be present at trial is rooted to a large extent in the right to confrontation,
when the defendant is not confronting witnesses or evidence, the right to presence is rooted in due
process.17 A defendant has a due process right to be present “whenever his presence has a relation,
reasonably substantial, to the fulness of his opportunity to defend against the charge.”18 Under
Article 33.03, a defendant in a felony case must be personally present at the trial and, in fact, can
voluntarily absent himself only after the jury has been selected.19 The question here is whether the
hearings on general qualifications, excuses, and exemptions were part of his “trial” or otherwise had
a reasonably substantial relation to his opportunity to defend himself.
Article 35.03 provides:
[T]he court shall then hear and determine excuses offered for not serving as a juror,
including any claim of an exemption or a lack of qualification, and if the court
considers the excuse sufficient, the court shall discharge the prospective juror or
postpone the prospective juror’s service to a date specified by the court, as
appropriate.20
17
United States v. Gagnon, 470 U.S. 522, 526 (1985).
18
Id.
19
Art. 33.03.
20
Art. 35.03, § 1.
SANDOVAL — 9
And Article 35.04 provides:
Any person summoned as a juror who is exempt by law from jury service may
establish his exemption without appearing in person by filing a signed statement of
the ground of his exemption with the clerk of the court at any time before the date
upon which he is summoned to appear.
The fact that an exemption can be claimed in advance indicates that the defendant and his attorney
need not be present for the granting of an exemption. Even for mere “excuses,” the possible remedy
of postponing a prospective juror’s service suggests that excuses are meant to be heard before the
prospective juror is assigned to a particular case, and consequently, before a defendant’s or his
attorney’s presence would be expected.
In Jasper v. State, we explained that the hearing of general qualifications, excuses, and
exemptions ordinarily occurs before a prospective juror is assigned to a panel:
Generally, when prospective jurors are initially summoned, they are assembled in a
general jury pool or general assembly. Members of the general assembly are
qualified on their ability to serve and exemptions and excuses are heard and ruled on
by the judge presiding over the general assembly. Prospective jurors who are not
disqualified, exempt, or excused are divided into trial panels and sent to the
individual courts trying the cases. At that point, attorney voir dire will result in the
jury that will ultimately hear the case.21
We further explained that this “general assembly” portion of jury selection “is not considered part
of ‘the trial’ and therefore the accused is not entitled to be present.”22 We have reiterated that a
defendant does not have a constitutional right to be present or have counsel present during a general
assembly in which exemptions are determined.23
21
61 S.W.3d at 422-23.
22
Id. at 423.
23
Wells v. State, 611 S.W.3d 396, 430 (Tex. Crim. App. 2020).
SANDOVAL — 10
We noted in Jasper that the judge in that case was apparently presiding over a jury panel
assigned to that case.24 We “assume[d] that appellant’s trial had begun at the time of the exemptions,
excuses and qualifications,” for the purposes of addressing his point of error, but concluded that the
defendant’s absence from the proceeding was harmless beyond a reasonable doubt.25
Appellant relies on Jasper for the proposition that a trial court errs to hold a general
qualifications, excuses, and exemptions proceeding outside the defendant’s presence when the venire
is a special venire. Based on that case, the State concedes that the trial court erred. We disagree.
Jasper did not hold that a defendant’s presence is required if the trial court hears general
qualifications, excuses, and exemptions for a panel assigned to the defendant’s case. Jasper assumed
it for the sake of argument, and then found the assumed error to be harmless.
In Crutsinger v. State, this Court indicated that the defendant need not be present for excuses
unless the excuse is an economic one— even in a capital case.26 In so concluding, Crutsinger cited
Black v. State.27 In Black, outside the presence of the defendant and the attorneys for both sides, the
trial court excused a prospective juror because she was hard of hearing.28 We held that the trial court
24
61 S.W.3d at 423.
25
Id. at 423-24.
26
206 S.W.3d 607, 608-09 (Tex. Crim. App. 2006). See TEX. GOV’T CODE § 62.110(c)
(“The court or the court’s designee as provided by this section may not excuse a prospective juror
for an economic reason unless each party of record is present and approves the release of the juror
for that reason.”).
27
Crutsinger, supra. at 608 (citing Black v. State, 26 S.W.3d 895, 899 (Tex. Crim. App.
2000)).
28
26 S.W.3d at 899. This excusal was also done “off the record,” though the record did
show the reason for the excusal. Id.
SANDOVAL — 11
did not abuse its discretion in doing so.29 Crutsinger and Black appear to be cases in which the
prospective juror was excused from a panel assigned to the defendant’s case.30
In any event, the reasons we have given for permitting a judge to conduct this type of
proceeding outside the presence of the defendant and his attorney apply with equal force to special
venires. We have explained that the “process of hearing and granting juror exemptions and excuses
of this type lack the traditional adversarial elements of most voir-dire proceedings.”31 Further, the
“right to be excused from the venire belongs to each of its individual members, not to the
defendant.”32 And it seems nonsensical to suggest that a perfectly permissible procedure becomes
a constitutional violation based on how or where the prospective juror is first summoned. Whether
the prospective juror is assigned first to the central jury room or to a special venire, a preliminary
inquiry into his general qualifications, excuses, and exemptions is not the sort of proceeding that
needs to be conducted in the defendant’s presence. And nothing in the statute authorizing a special
venire for a capital case requires that an Article 35.03 proceeding be held in the presence of the
defendant.33 Points of error eleven and twelve are overruled.
2. Lack of Record
In point of error thirteen, Appellant contends that the failure to record the proceedings on
qualifications, excuses, and exemptions requires a new trial. He relies on the appellate rule regarding
29
Id. at 900.
30
See supra at nn. 26-29.
31
Black, 26 S.W.3d at 900.
32
Moore v. State, 999 S.W.2d 385, 399 (Tex. Crim. App. 1999).
33
See Art. 34.01.
SANDOVAL — 12
lost and destroyed records.34 His reliance on this rule is misplaced because the rule has historically
applied only when a record was made and later lost or destroyed.35 Nevertheless, an error might be
predicated on the failure to record proceedings, provided that the defendant lodged an objection to
preserve that claim.36 The trial court’s findings on remand suggest that defense counsel had no way
of knowing that the proceedings were not being recorded.
Assuming Appellant has not forfeited his complaint about the absence of a record, that
complaint is without merit. If instead of being summoned for a special venire, the prospective jurors
had first been summoned to a central jury room for such a proceeding, one would not expect that
proceeding to be recorded. Because we have held that these proceedings should be viewed the same
as proceedings conducted in a central jury room—not being a part of Appellant’s trial and him
generally having no right to be present—he would not have a right to have those proceedings
recorded.
As alluded to above, a defendant has a statutory right to be present to hear and object to an
economic excuse for not serving on a jury.37 That does not mean, however, that he is entitled to have
an Art. 35.03 proceeding recorded on the off-chance that the trial court would violate that right.
Otherwise, a defendant would have the right to have central jury room proceedings recorded for that
same reason. And Appellant points to nothing to suggest that a juror was in fact excused for an
34
See TEX. R. APP. P. 34.6(f).
35
See Williams v. State, 937 S.W.2d 479, 486 (Tex. Crim. App. 1996) (construing
predecessor rule).
36
Id. at 487.
37
TEX. GOV’T CODE § 62.110(c).
SANDOVAL — 13
economic reason.
Point of error thirteen is overruled.
C. Conflict of Interest
In points of error nine and ten, Appellant contends that he was denied his right to counsel and
his right to a fair and impartial tribunal. He claims that his attorneys gave the trial court confidential
information in ex parte hearings and improperly delegated decisions to Appellant in order to protect
themselves against possible ineffective assistance claims. He claims that the attorneys improperly
delegated to him the choice of what witnesses to call and what evidence to present. He talks about
his attorneys complaining that he wanted to control which witnesses they investigated, about his
attorneys affording him the decision on which witnesses would testify, and about the attorneys
affording him the decision on whether to present evidence of his criminal past at the guilt stage of
trial. Appellant claims that his attorneys’ conduct on these matters constituted a conflict between
Appellant’s interest in a favorable outcome for his case and his attorneys’ interests in protecting
themselves. He also claims that the trial court was not impartial because it acted to protect the
attorneys interests’ in contravention to Appellant’s own.
But in Monreal v. State, we held that this type of situation did not involve a conflict of
interest.38 There, we said that the attorney was “not required to make a choice between advancing
her client’s interest in a fair trial or advancing her own interest in avoiding a future claim of
ineffective assistance.”39 So her personal interest did not actually conflict with the defendant’s
38
Monreal v. State, 947 S.W.2d 559, 565 (Tex. Crim. App. 1997).
39
Id.
SANDOVAL — 14
interest.40 This was true even if the attorney was “less than artful in executing her personal interest”
and elicited unnecessary and potentially damaging information.41 So the claim that the attorney’s
action to protect herself from an ineffective assistance claim worked to the client’s detriment had to
be analyzed under the traditional Strickland framework for ineffective assistance claims.42
Citing a more recent case,43 Appellant contends that Monreal did not hold that Strickland
applies when a defendant alleges a conflict because the counsel was acting to protect his own
interests. We agree with this contention as far as it goes, but it does not go far enough. Monreal did
not suggest that Strickland applies any time the defendant alleges a conflict with counsel’s own
interests,44 but Monreal did find Strickland applicable to a claim similar to the one here—a claim
that the attorney’s own interest in protecting against an ineffective assistance claim created a conflict
because of inartful attempts to protect that interest. We see nothing about the facts of this case that
distinguishes it meaningfully from Monreal. At least ordinarily, an attorney’s own interests in
protecting against an ineffective assistance claim will not conflict with the client’s interests.
Overzealousness, mistakes, or malfeasance in protecting one’s own interest in that regard is not
sufficient to show a conflict; there has to be a showing that the interest itself is antithetical to the
client. The whole point of a conflict is that it impugns the attorney’s ability to represent the
40
Id.
41
Id.
42
Id. (citing Strickland v. Washington, 466 U.S. 668 (1984)).
43
Acosta v. State, 233 S.W.3d 349, 356 (Tex. Crim. App. 2007).
44
See id. at 355-56 & n.31 (discussing Monreal).
SANDOVAL — 15
defendant at all.45 All of Appellant’s contentions simply allege that counsel should have engaged
in different behavior to protect his otherwise non-conflicting interest of avoiding an ineffective
assistance claim. That does not show a conflict.
And because Appellant frames his challenge to his attorneys’ conduct solely as a conflict of
interest, he makes no attempt to show prejudice under Strickland.46
And even if we assume that the trial court was too deferential to Appellant’s attorneys in their
attempts to protect themselves, that does not establish that the trial court lacked impartiality. Judicial
rulings and a judge’s efforts at courtroom administration almost never constitute a valid basis for
finding bias or partiality.47 Absent an extrajudicial source of bias, a judge’s actions during trial can
show bias only if they reveal “such a high degree of favoritism or antagonism as to make fair
judgment impossible.”48 That cannot be shown when the trial judge’s manifest intent is to benefit
the defendant and protect his rights.49
Here, the trial judge’s conduct was manifestly intended for the defendant’s benefit. Because
45
See United States v. Bellille, 962 F.3d 731, 743-44 (3d Cir. 2020) (constitutional conflict
of interest disqualifies counsel from the case).
46
See Strickland, 466 U.S. at 687 (prejudice is a component of an ineffective assistance
claim; must show errors “so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable”).
47
Gonzalez v. State, 616 S.W.3d 585, 593 (Tex. Crim. App. 2020) (citing Liteky v. United
States, 510 U.S. 540 (1994)).
48
Gaal v. State, 332 S.W.3d 448, 454 (Tex. Crim. App. 2011).
49
See Unkart v. State, 400 S.W.3d 94, 101 (Tex. Crim. App. 2013) (“By contrast, the
remarks by the trial judge in the present case were made with the manifest intent to benefit the
defendant and to protect his rights. The remarks were part of an extended effort to hammer home to
the jurors that they should not hold a defendant's failure to testify against him.”).
SANDOVAL — 16
the jury, not the trial judge, was the factfinder at both guilt and punishment, the trial judge could
receive confidential information without the risk of tainting the factfinder’s decision-making. And
as Appellant acknowledges, these hearings were held ex parte, so that the State was not privy to the
discussions. The hearings involved explaining to Appellant the reasons behind his attorney’s
actions, explaining the advantages and disadvantages of various trial strategies, and ensuring that
Appellant was satisfied with the particular course of action being taken. Appellant’s own brief
acknowledges that his attorneys complained that Appellant wanted to control aspects of the
representation (what witnesses to investigate) that the attorneys did not think he could control.
Giving Appellant control over many trial choices is consistent with a conclusion that Appellant
wanted (and perhaps insisted on) as much control as possible.
Moreover, we have recognized that a trial judge is “obliged to respect the attorney-client
relationship”50 and that “any potential disruption of the relationship is subject to careful scrutiny.”51
A trial court’s refusal to inject itself into the attorney-client relationship is not by itself a sign of bias
or partiality on the trial court’s part. Points of error nine and ten are overruled.
D. Recorded Statements
In points of error three through seven, Appellant contends that the trial court erred in failing
to suppress his recorded custodial statements to the Texas Rangers. He claims that parts of the
statements were inadmissible because they were obtained in violation of Miranda v. Arizona52 and
Article 38.22 after he invoked his right to silence. He also claims that the statements were coerced
50
Buntion v. Harmon, 827 S.W.2d 945, 948 (Tex. Crim. App. 1992).
51
Id. at 948 n.3.
52
384 U.S. 436 (1966).
SANDOVAL — 17
or involuntary in violation of constitutional and statutory protections and that constitutional and
statutory requirements were violated because he did not knowingly, intelligently, and voluntarily
waive his rights prior to the statements. In point of error eight, Appellant contends that the trial court
should have instructed the jury on voluntariness under Section 7 of Article 38.22.
1. General Law on Confessions, Standard of Review, and Standard of Harm
Ordinarily, for an electronically recorded statement made by a defendant in custody to be
admissible under Article 38.22, the officers taking the statement must, prior to the statement and on
the recording, convey certain warnings outlined in the statute or their fully effective equivalent.53
And the statute requires that the suspect knowingly, intelligently, and voluntarily waive the rights
set out in the warnings.54 The statute outlines the following warnings to be conveyed to the suspect:
(1) he has the right to remain silent and not make any statement at all and that any
statement he makes may be used against him at his trial;
(2) any statement he makes may be used as evidence against him in court;
(3) he has the right to have a lawyer present to advise him prior to and during any
questioning;
(4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to
advise him prior to and during any questioning; and
(5) he has the right to terminate the interview at any time.55
Miranda has a warnings and waiver requirement that is consistent with the Article 38.22
53
See Art. 38.22, § 3(a)(2), (e)(2). But see id. § 3(c).
54
Id. § 3(a)(2).
55
Id. § 2(a).
SANDOVAL — 18
requirements.56 Giving the Article 38.22 warnings and waiving rights in accord with the statute is
sufficient to comply with the Miranda requirements regarding the giving of warnings and the initial
waiver of rights.57 Other confession issues, such as whether Miranda rights are scrupulously
honored and whether a confession is voluntary under due process or other aspects of state law, will
be addressed later in this opinion when those issues are discussed.
Constitutional and statutory confession claims are evaluated under the bifurcated standard
set out in Guzman v. State,58 with questions of historical fact and questions that turn on credibility
and demeanor being reviewed with deference to the trial court’s ruling and application-of-law-to-fact
questions that do not turn on credibility and demeanor being reviewed de novo.59
If a statement has been found to be admitted in violation of Miranda or due process, we apply
the constitutional-error harm analysis, which requires the error to be found harmful unless the
appellate court “determines beyond a reasonable doubt that the error did not contribute to the
conviction or punishment.”60 If a statement has been found to be admitted only in violation of a
statute, then the harm analysis for non-constitutional errors applies, requiring the error to be found
56
See 384 U.S. at 444-45.
57
See id.
58
955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
59
State v. Lujan, 634 S.W.3d 862, 865-66 (Tex. Crim. App. 2021) (Article 38.22 claims);
Lopez v. State, 610 S.W.3d 487, 494 (Tex. Crim. App. 2020) (due-process involuntariness claim);
Alford v. State, 358 S.W.3d 647, 652 (Tex. Crim. App. 2012) (Miranda violation claims); Maestas
v. State, 987 S.W.2d 59, 62-63 (Tex. Crim. App. 1999) (regarding whether Miranda rights were
“scrupulously honored”).
60
TEX. R. APP. P. 44.2(a).
SANDOVAL — 19
harmless if it did not affect the defendant’s substantial rights.61 A substantial right is affected only
if the error had “a substantial and injurious effect or influence” on the jury’s verdict.62 Stated another
way, a substantial right is not affected if the appellate court has “fair assurance from an examination
of the record as a whole that the error did not influence the jury, or had but a slight effect.”63 A
different harm analysis applies to jury-charge errors, which we shall address in our discussion of
Appellant’s jury-charge claim.
2. The Interviews
Appellant was arrested at about 2:00 a.m. While still at the scene, Appellant’s hands were
tested for gunshot residue. Before taking custody of Appellant for purposes of transporting him to
jail and before frisking him, State Trooper Jason Vela asked him if he had any weapons or guns or
anything that could poke the officer. Appellant responded that he had “thrown the gun away
already.” He was then taken to the Willacy County Jail. At about 5:40 a.m., a DNA sample was
obtained from Appellant.
Two Texas Rangers—Donato Vela and Patrick O’Connor—sat in an interview room with
Appellant. Ranger Vela interviewed Appellant in Spanish. A transcript with an English translation
was before the trial court as an exhibit at the suppression hearing, and a redacted version of the
transcript was admitted at trial. The first interview began on August 4, 2014, at 6:37 a.m. The
61
Id. 44.2(b).
62
Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018).
63
Id.
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second interview occurred about two hours after the first interview ended.64
a. First Interview
After asking and receiving from Appellant his name and date of birth,65 Ranger Vela read
Article 38.22 warnings.66 When asked if he understood the rights that were read, Appellant nodded
in agreement. Ranger Vela then read from a document with a signature line that said that Appellant
knowingly, intelligently, and voluntarily waived his rights. Ranger Vela asked Appellant again if
he understood his rights, and Appellant responded, “Yes, yes. That what I speak here, can be used
against me?” Ranger Vela explained that these were official documents and that he needed “to know
if you understood your rights, to begin with, and if you voluntarily want to speak with us.” After a
moment, Appellant responded, “Let’s talk,” and nodded affirmatively. Ranger Vela then directed
Appellant to the signature line of the waiver document, and Appellant signed it. Ranger Vela asked,
“Are you sure you don’t want water or anything?”67 and the interview began.
Appellant admitted to driving the red SUV. He claimed that he and the passenger were going
to fish when he was shot at. He characterized the shots as being like marbles on the front glass
window and said that he was hit in the eye and saw only black. He said they drove away after that
to get away from being shot at. He said that they wandered aimlessly for awhile, not knowing the
64
A review of the videos shows that the combined length of all oral interviews was
approximately 2 hours and 25 minutes.
65
Appellant was born on December 22, 1983, making him 30 years old at the time of the
interviews in 2014. On the video at the beginning of the first interview, Appellant appears to be
chewing something.
66
The warnings, along with the rest of the interview, were in Spanish. Appellant does not
claim that the Spanish-language warnings failed in any way to comply with Article 38.22.
67
The transcript has Appellant’s response as “(Unintelligible).”
SANDOVAL — 21
area, and then arrived at a woman’s house and asked for water. Appellant said that they were
arrested, that the officers hit him on the head and back with a gun and kicked him, and that Appellant
was ultimately brought to where the Rangers were interviewing him.
At this point in the interview, Appellant stated, “I want to go to sleep already.” Ranger Vela
responded that they needed to talk further, and the interview continued. Ranger Vela began going
back through Appellant’s story and confirming what he had previously said. He also confirmed that
Appellant had an injury to his head and eye that appeared to be from a bullet graze. Appellant also
mentioned his eye and said that the bullets “were coming in through the front window glass.” Then
Ranger Vela asked, “What else do you remember?” Appellant said he did not remember anything
else and that “I am going to try to remember so that I can tell you everything.”
Regarding Appellant’s story, Ranger Vela then stated,“But we know that, that is not how
things happened.” Ranger Vela then launched into a long statement saying that some of what
Appellant said was true but that he was not being honest about all of it, that they had already talked
to others, including Appellant’s passenger,68 and that the Rangers already knew how things had
happened. Appellant asked, “Then how did it happen?” Ranger Vela responded that something else
happened and that Appellant and his friend “didn’t just arrive there and people began to shoot you
(both) just because.”69
68
For a discussion of that particular part of Ranger Vela’s explanation in connection with
a different point of error, see infra at part II.E.2.
69
Unlike English, Spanish distinguishes between singular and plural forms of the word
“you.” The word used by Ranger Vela in Spanish was “ustedes”—the plural “you”—which was
translated as “you (both).”
SANDOVAL — 22
Ranger Vela asked Appellant if he needed water.70 Appellant responded, “I want to
remember everything.” Ranger Vela asked if Appellant wanted to be given time, and Appellant said
that he did. Ranger Vela asked, “Why?” Appellant responded, “I can’t,” and that his head did not
feel well. Ranger Vela continued to press Appellant for what really happened, and Appellant made
various responses, including, “I don’t remember,” “I was drugged up, I think,” and “Something is
happening to me.” At some point, Ranger Vela said, “We know for a fact that you were in the truck.
We know for a fact that you (both) were involved in this shooting. Okay? We know for a fact that
you shot somebody and we know the motive. Again, I am not saying that it was you, that, that was
your intention. But, if things turned out bad, we need to know that. We need to know what exactly
happened.”
Shortly after that, Ranger Vela told Appellant that he was facing a capital felony charge, and
the following colloquy occurred:
RANGER VELA: Do you know who the person whom you (both) shot is?
APPELLANT: No.
RANGER VELA: The person whom you and Ismael tried to rob?
APPELLANT: I don’t know.
RANGER VELA: Do you know what the punishment for a capital felony is?
APPELLANT: I will be killed.
RANGER VELA: .—and jail for life. It doesn’t matter that you are Mexican. It
doesn’t matter that you are an illegal (alien) here. The punishment is going to—the
70
At some point, the interview video shows a bottle of water next to Appellant.
SANDOVAL — 23
punishment is going to take place here (overlap)—in the United States.71
APPELLANT: It has to be punished.
But then Appellant reiterated his original story: “That we arrived and they started shooting.”
Ranger Vela urged Appellant to tell the truth. At one point he said, “[W]e are going to reach a point
in court when we are going to talk to them before trial and they are going to say: ‘When you spoke
to Gustavo and with other guys—the other guy, Ismael; were they honest with you; did they tell
you?’ Our answer will be: ‘Yes or no.’ I am not saying that this is going to affect you or not; it may
or may not affect you in court.” In response to this and further admonitions to tell the truth,
Appellant said that he “took a pill” and he did not remember.
Ranger Vela asked about “the pistol” and whether he was carrying it on his waist. Appellant
replied, “No, I didn’t have it with me.” When asked if the passenger had it, Appellant responded,
“I think so, yes. I am not sure; I don’t want to lie to you. Isn’t it in the truck?” After further
questioning, Ranger Vela said, “Going back to the pistol. You stated that you remember that Ismael
had it. When you got off the truck, at the time the truck stalled—And I thank you, Gustavo, that you
are remembering, I thank you for that.” Appellant responded, “Yes, but I don’t want to continue
talking (unintelligible) anymore right now, please.” Ranger Vela then responded, “Let me ask you
a question; only answer me this: Do you think that you all threw it in the brush?” Appellant replied,
“I don’t know. I would imagine that maybe it is in the brush. I don’t know.” Ranger Vela then
asked if Appellant was positively sure he did not have it, and Appellant responded that he did not
know but then admitted that he had the pistol for a while. When asked if he remembered having the
71
Throughout this opinion, in quoting from the transcripts, we have replaced ellipses with
dashes to avoid confusion because the ellipses denoted pauses in the discussion rather than the
omission of material.
SANDOVAL — 24
pistol in his vehicle, Appellant responded, “Yes, I—like I told you; I don’t want to continue talking
right now.” Ranger Vela then asked, “Why?” and Appellant responded that he did not know and
could not remember. After that Ranger Vela suggested taking a break, and Appellant responded that
he wanted to sleep. The rangers terminated the interview.72
b. Second Interview
At the beginning of the second interview, Ranger Vela asked Appellant if he understood his
rights, and Appellant said, “Yes.” Ranger Vela asked if Appellant wanted the rights read to him
again, and he responded, “No. I already understood them.” But Ranger O’Connor interjected, “Read
them one more time,” and Ranger Vela read the Article 38.22 warnings. He also read a statement
that Appellant had waived the rights “in this document” of his “full knowledge, intelligence, and free
will,” and Appellant acknowledged his signature to a waiver-of-rights form.
When asked what he remembered, Appellant responded, “I did fire” but that “they fired first.”
When asked to clarify “they,” Appellant responded, “There were two there. They fired and I fired
back; and, well, I am guilty.” When asked what he and his passenger were in agreement to do,
Appellant responded, “To go there with them. Not to kill anybody or anything.” When asked if
Appellant and his passenger went only to rob a person, Appellant responded, “Because they
threatened me.” When asked who threatened him, Appellant said that they were people in Weslaco
to whom he owed money who told him that, if he did not give them the truck, they would kill his
parents. He also suggested that his wife was afraid and that the people threatening him threatened
to kill his family in Mexico. After being questioned a while about this particular story, Appellant
72
Between the time Appellant said that he did not want to continue talking and the end of
the interview was 1½ pages of the 47-page transcript.
SANDOVAL — 25
said, “It was a mistake, I have to pay the price.” While Ranger Vela continued pressing for
Appellant to tell the truth, Appellant said, “I don’t want to talk about this anymore, sir,” and, “I want
to talk to my family.” Ranger Vela responded, “Okay. Tell me only one thing. What happened to
the gun?” Appellant replied, “It got lost in the parcel (track of land). I don’t know where we
dropped it; we dropped it.” In response to subsequent questions, Appellant said that the gun was
“dropped in the brush,” and when asked what caliber the gun was, Appellant said it was a “.45.”73
c. Suppression Hearing Testimony about the
Circumstances Surrounding the Interviews
A suppression hearing was held before trial and another one was held during trial. Appellant
testified that he was initially detained in a small office by a police sergeant and kept on the floor and
that he was not given food or water. He said that he told the sergeant that he did not want to talk to
anyone but that the sergeant said, “Talk to me. I will help you.” Appellant testified that he was later
moved to another room and told by officers that they had received calls from individuals threatening
to kill Appellant. He affirmed that he had not slept for 24 hours at the time of the interviews.
Appellant also testified that while he was handcuffed, an officer punched him in the stomach so hard
that he vomited.
Appellant acknowledged that he was given Article 38.22 warnings, but he claimed that he
did not understand that he had a right to remain silent and a right to an attorney at the time of
questioning. Appellant claimed that his tiredness affected his rational thinking. Appellant also said
that he was not informed of his right to contact the Mexican consulate.
When asked about Ranger Vela’s statement in the first interview that certain information may
73
The interview continued for a substantial period of time, followed by three more recorded
interviews, but none of the recorded interviews past this point were admitted before the jury.
SANDOVAL — 26
or may not affect Appellant in court, Ranger O’Connor replied that such a statement did not comport
with the Miranda warnings. Both rangers testified that Appellant was taken back to his cell and slept
between the interviews. Appellant, however, testified that he was taken to another room to speak
with officers and did not sleep. When asked why Appellant was not taken for treatment for his
injuries, Ranger O’Connor testified that he thought that Appellant’s injury did not seem serious.
d. Trial Court’s Findings of Fact
When we originally received the record, there were no findings of fact regarding the
voluntariness of Appellant’s recorded statements. Appellant’s fifth sub-argument under point of
error seven contends that the case should be remanded for findings. Footnote eleven of the State’s
brief says that the State has “no opposition to remanding this issue to the trial court should this Court
deem additional factual development necessary.”
Section 6 of Article 38.22 requires written findings when the voluntariness of a confession
is litigated and the trial court finds the confession to be voluntary and admissible.74 We have held
that the statute requires written findings even when they are not requested because “written findings
are required in all cases concerning voluntariness” and “[t]he statute has no exceptions.”75
We requested findings from the trial court, and those findings have now been made and
74
Art. 38.22, § 6 (“If the statement has been found to have been voluntarily made and held
admissible as a matter of law and fact by the court in a hearing in the absence of the jury, the court
must enter an order stating its conclusion as to whether or not the statement was voluntarily made,
along with the specific finding of facts upon which the conclusion was based, which order shall be
filed among the papers of the cause.”).
75
Vasquez v. State, 411 S.W.3d 918, 920 (Tex. Crim. App. 2013).
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forwarded to us.76
The trial court concluded that Appellant “fully understood his constitutional and statutory
rights” and that he “freely, knowingly, intelligently, and voluntarily waived his constitutional and
statutory rights” before making any statements to Ranger Vela. The court further found that “[n]o
force was used or promises made in order to persuade” Appellant to waive his rights or make
statements and that Appellant made his statements “free of any threats, compulsion, or coercion.”
The trial court also found that Appellant was not deprived of basic necessities or questioned for an
unreasonable amount of time and that he did not at any time during this interview assert his right to
remain silent, request counsel, or ask to terminate the interview. Addressing several statements by
Appellant regarding his desire to sleep, to not continue talking, or to talk to family members, the trial
court concluded that they were at best ambiguous and equivocal with respect to any desire to end
interrogation.
The trial court also concluded that Appellant was given an opportunity to sleep for
approximately two hours between the first and second interviews.
3. Honoring the Right to Silence
Appellant contends that parts of his recorded statements were inadmissible because they
were made after he invoked his right to remain silent and to terminate the interview and that their
admission violated Miranda.77
76
Judge Lopez, who had presided over the suppression hearing and trial, is not the current
judge of the trial court, but it was determined that Judge Lopez was eligible to make findings and
she was assigned to do so. Because Judge Lopez was in fact the trial judge during the suppression
hearing and at trial, we will hereafter refer to her findings as those of the trial court.
77
Appellant also claims a violation of Article 38.22 but does not claim that Article 38.22
provides different or more expansive protection than provided by Miranda with respect to honoring
SANDOVAL — 28
Under Miranda, law enforcement officers are required to respect a defendant’s invocation
of his right to remain silent by cutting off questioning.78 A suspect’s right to cut off questioning
must be “scrupulously honored.”79 But a suspect’s invocation of this right must be unambiguous,
and there is no requirement that law enforcement clarify ambiguous remarks.80 A statement that a
person “needs to rest” is not an unambiguous invocation of the right to cut off questioning.81
Once a person has unambiguously invoked his right to cut off questioning, a resumption of
questioning is permissible only if it is consistent with scrupulously honoring the defendant’s
invocation.82 That inquiry depends on the balancing of five factors: (1) whether the suspect was
informed of his right to remain silent prior to the initial questioning; (2) whether the suspect was
informed of his right to remain silent prior to the subsequent questioning; (3) the length of time
between initial questioning and subsequent questioning; (4) whether the subsequent questioning
focused on a different crime; and (5) whether police honored the suspect’s initial invocation of the
right to remain silent.83 We have held that resumption of questioning after two hours was
the right to cut off questioning. Consequently, we focus only on Appellant’s Miranda claim. See
Ex parte Ingram, 533 S.W.3d 887, 891 n.4 (Tex. Crim. App. 2017) (because the defendant did not
argue that state constitutional provisions provided greater or different protection than their federal
counterparts, court did not separately address state constitutional claims). We need not and do not
address whether Article 38.22 even has an equivalent to the Miranda “scrupulously honored”
requirement. See infra at nn.78-79 and accompanying text.
78
Michigan v. Mosley, 423 U.S. 96, 103-04 (1975).
79
Id.
80
Berghuis v. Thompkins, 560 U.S. 370, 381 (2010).
81
Dowthitt v. State, 931 S.W.2d 244, 257 (Tex. Crim. App. 1996).
82
Maestas, 987 S.W.2d at 60-62.
83
Id. at 62.
SANDOVAL — 29
permissible when the defendant requested “a little more time” before talking and was given a new
set of Miranda warnings before the second interrogation.84
Appellant’s statement in the first interview that he wanted to sleep was not an unambiguous
invocation of his right to cut off questioning. We will assume that his later statement, “I don’t want
to continue talking anymore right now,” was an unambiguous invocation and that the subsequent
statement, “Like I told you; I don’t want to continue talking right now” was a reiteration of that
invocation. This would make some parts of the first interview inadmissible: his admission that he
possessed the pistol for a while, that he imagined the pistol was in the brush, and that he remembered
the pistol being in the SUV. We will also assume that his later statement in the second interview,
“I don’t want to talk about this anymore, sir,” was an unambiguous invocation of his right to cut off
questioning. That would render inadmissible the later statements about what happened to the gun
and the caliber of the gun.
But this did not render all of the statements in the second interview inadmissible. Appellant
was informed of his rights before both the first and second interviews. Although the passage of two
hours might not seem to be a long time, Appellant’s statements in the first interview that he did not
want to continue talking “right now” and that he wanted sleep suggested that a brief pause to get
some sleep was what he wanted. Although Ranger Vela did not immediately honor this request,
Appellant was given a two-hour break during which he could sleep. Appellant testified that he was
not permitted to sleep, but the trial court was free to believe the rangers’ testimony to the contrary
84
Phillips v. State, 701 S.W.2d 875, 891 (Tex. Crim. App. 1985), overruled on other
grounds by, Hernandez v. State, 757 S.W.2d 744 (Tex. Crim. App. 1988) (defendant asked for “a
little more time,” was removed from the interview room, and was approached for resumed
interrogation two hours later). See also Murphy v. State, 766 S.W.2d 246, 249-50 (Tex. Crim. App.
1989) (discussing Phillips).
SANDOVAL — 30
and in fact found that Appellant was given the opportunity to sleep for two hours. And the warnings
were read again before the second interview even though Appellant indicated that they were not
necessary. And Appellant gave new information in the second interview, not traceable to his earlier
admissions, when he talked about firing a gun, being “guilty,” and trying to rob the Vega family
because he had been threatened.
The question then is whether the errors in admitting the latter portion of the first interview
and the latter portion of the second interview were harmless. Before Appellant invoked his right to
cut off questioning the first time, he had already admitted to the following incriminating facts: (1)
he was the driver of the red SUV, (2) he encountered the Vega family, (3) shots were fired (by the
Vega family), (4) Appellant had thrown away a gun or that a gun had been possessed by the
passenger, and (5) there was a crime that “ha[d] to be punished.” Appellant also said that he had
taken drugs and did not remember things. Facts (1) through (3) established unequivocally that
Appellant was present during the crime and was the driver. This eliminated any possible defense
based on mistaken identity. And if the jury believed the eyewitness testimony that the driver shot
Harvey, it meant that Appellant was the one who killed Harvey. Facts (4) and (5) further tended to
incriminate Appellant by suggesting that he did more than just run away from being shot.
At worst, the allegedly inadmissible admissions made in the latter part of the first interview
and the latter part of the second interview were minor points: admitting to personally possessing a
firearm, knowing the firearm’s location, and knowing that the firearm was a .45. This is especially
true when one considers that Appellant tested positive for gunshot residue. And he had already at
least impliedly admitted to possessing a gun and knowing its location when he told a state trooper
that he had already thrown the gun away.
SANDOVAL — 31
And then there were the more incriminating facts admitted in the early part of the second
interview: that Appellant fired the gun, was “guilty,” and tried to rob the Vega family because he was
threatened. This further attenuates any significance attaching to the allegedly inadmissible
statements. We conclude beyond a reasonable doubt that any error in admitting the latter portion of
the first interview and the latter portion of the second interview did not contribute to the jury’s
determination of his guilt or punishment and, therefore, was harmless.
But what if the incriminating facts in the earlier part of the second interview were added to
Appellant’s side of the ledger instead of to the State’s? That is, what if we were to hold that the
entire second interview was inadmissible due to Ranger Vega’s delay in honoring Appellant’s
request to pause the first interview? The errors would still be harmless beyond a reasonable doubt.
Although the facts elicited in the second interview were far more incriminating than the facts elicited
in the latter part of the first interview, the facts elicited in the earlier part of the first interview were
of primary importance. The jury had undisputed evidence that Harvey was shot and killed, and it
had the testimony of three eyewitnesses that the driver of the red SUV was the shooter. Plus, it had
the evidence of gunshot residue on Appellant’s hands. With the second interview, Appellant at least
had his self-serving claim that he did not shoot first but shot back. Without that interview in
evidence, Appellant’s position would appear to have been that only the Vega family did the shooting.
That was a totally implausible position, given the undisputed fact of Harvey’s death, the injury
suffered by Harvey’s father, and the gunshot residue on Appellant’s hands. And while Appellant
admitted to being “guilty” in the second interview, he was claiming what might have amounted to
self-defense.85 Regardless, Appellant admitted during the first interview that there was a crime that
85
The guilt-stage jury charge had a self-defense instruction.
SANDOVAL — 32
“ha[d] to be punished,” also an arguable admission of guilt.
Appellant argues that the second interview was crucial because it supplied the only evidence
that the shooting occurred during a robbery or attempted robbery. We disagree. Although it would
seem helpful to the State to have evidence that accosting the Vega family was part of a robbery or
attempted robbery, what else could it have been? We have said that it is an “unlikely supposition”
that there exists “a motive-less killer.”86 Appellant’s statements in the earlier part of the first
interview did not supply any possible motive other than greed. Appellant did not know the victim
or any of the other people with him. It is apparent from the interview that he did not even know that
Harvey was a border patrol agent. The red SUV initially following the Vega family vehicles,
backing away, and then returning later is consistent with casing the Vega family and the fishing site
for a robbery. Commanding the Vega family to get on the ground is consistent with attempting to
facilitate the theft of property (and thus a robbery). Appellant was not able to do more to effectuate
a robbery because the intended victims did something he did not expect—they shot back. We do not
harbor any reasonable doubt about what the jury would conclude this was—an attempt to rob the
Vega family that was thwarted by the Vega family fighting back.
4. Coercion
Appellant contends that his recorded statements were inadmissible in their entirety because
they were coerced, in violation of due process.87 He contends that his statement bears the hallmarks
86
Butler v. State, 769 S.W.2d 240 (Tex. Crim. App. 1989), overruled on other grounds by,
Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991).
87
Appellant does point to broader protection conferred by statute beyond what is conferred
by due process. We address that claim of broader protection in connection with his statutory
involuntariness claim later in this opinion.
SANDOVAL — 33
of coercion because he was physically attacked by border patrol officers, did not receive medical
care, was told that people had threatened to kill him, was in fear of his life, had not been given food,
and had not been allowed to sleep. He also complains that he was not informed of his right to
contact the Mexican consulate in violation of Article 36 of the Vienna Convention on Consular
Relations. And he claims that the Rangers’ failure to honor his right to cut off questioning created
a coercive environment.
A confession is coerced in violation of due process if the suspect’s “will has been overborne
and his capacity for self-determination critically impaired.”88 Factors taken into account in
addressing this question are “the youth of the accused, his lack of education or his low intelligence,
the lack of any advice about constitutional rights, the length of detention, the repeated and prolonged
nature of the questioning, and the use of physical punishment such as the deprivation of food or
sleep.”89 But even with these factors, an essential element of any due-process involuntariness claim
is law-enforcement overreaching.90 A suspect’s lack of sleep, alone, does not make a statement
coercive in violation of due process.91
Most of the factors do not favor a conclusion that Appellant’s will was overborne. Appellant
was not young—he was 30 years old at the time he gave the statement—and he does not point to
anything suggesting that he lacked education or intelligence. It does appear that his primary, and
perhaps sole, language was Spanish, but the interviews were conducted in Spanish. The elapsed time
88
Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973).
89
Id. at 226 (citations omitted).
90
Colorado v. Connelly, 479 U.S. 157, 163-64 (1986).
91
Contreras v. State, 312 S.W.3d 566, 575 (Tex. Crim. App. 2010).
SANDOVAL — 34
for all interviews combined was approximately 2 hours and 25 minutes, which does not seem
particularly long, especially for a capital murder case. Appellant was given complete Article 38.22
warnings at the beginning of each of the two recorded interviews, and while Ranger Vela continued
the first interview after Appellant first said he did not want to continue talking, this continued
questioning was brief, and questioning did cease after Appellant reiterated his request.
Appellant’s claims of mistreatment are based solely on his own testimony, which the trial
court was free to disbelieve. And in fact, the findings indicate that the trial court did not believe
Appellant’s testimony in this regard.92
As for lack of sleep, some lack of sleep was inevitable given that Appellant appears to have
fled until law enforcement caught up with him at 2:00 in the morning. But the claim that he was
not allowed sleep between the two interviews is based solely on his own testimony, which the trial
court was free to disbelieve and did disbelieve. Also, tiredness by Appellant does not by itself show
that his will was overborne so that his capacity for self-determination was impaired.
As for lack of medical care, Appellant acknowledges that Ranger O’Connor did not believe
the injury to be serious. Appellant has not shown that Ranger O’Connor’s assessment was incorrect,
nor has he shown that this purported injury pressured him to make incriminating statements. We
conclude that Appellant has not shown that his will was overborne by official misconduct.
As for Appellant’s claim that he was not informed of his rights under Article 36 of the
92
On the video, Appellant can be seen chewing at the beginning of the first interview, which
suggests that he had something to eat. But even if one believed that Appellant had nothing to eat
prior to the first interview, Appellant does not point to anything in the record showing that he asked
for food during that time, and the interview was not held during a normal mealtime. The transcript
and the video show that Appellant was offered water. And even if Appellant was told about threats
on his life and was assaulted by border patrol agents, he does not show how that would persuade him
to confess to the Texas Rangers, whom he does not claim physically assaulted or threatened him.
SANDOVAL — 35
Vienna Convention on Consular Relations, the Supreme Court has held that exclusion of evidence
is not an appropriate remedy in that situation.93 And the Supreme Court has said that a failure to
inform an accused of his right under Article 36 “is unlikely, with any frequency, to produce
unreliable confessions” and that “there is likely to be little connection between an Article 36
violation and evidence or statements obtained by police.”94 Given the other voluntariness factors we
have discussed above, the failure to inform Appellant of his right to contact the consulate did not
cause otherwise voluntary statements to become coerced.
It is true that the Rangers continued to interview Appellant after his statement in the second
interview that he did “not want to talk about this anymore.” That fact is not sufficient, under the
circumstances of this case, to cause what was said afterwards to have been coerced in violation of
due process. Regardless, little was admitted into evidence after this statement. The only information
not found earlier in the recordings was Appellant’s admission that he knew the gun was a .45. Even
assuming that this part of his statement was inadmissible, any error was harmless for reasons we
have stated earlier.
5. Knowing, Intelligent, and Voluntary Waiver
a. Voluntariness and Understanding of Initial Warnings
Appellant contends that his waiver of his rights was not voluntary because he was subject to
food and sleep deprivation, physical violence by Border Patrol agents who arrested him, lack of care
for his physical injury, and threats against him. These arguments are the same arguments he made
for finding the recorded statements to be coerced, and the same reasons for rejecting them in
93
Sanchez-Llamas v. Oregon, 548 U.S. 331, 347-50 (2006).
94
Id. at 349.
SANDOVAL — 36
connection with that claim apply here. He also claims that officers told him that they could not go
to the District Attorney without information from him, that he signed the Miranda waiver because
he thought he had to, and that threats had been made against his family. These additional arguments
depend on statements made by Appellant—during the suppression hearing or in the recorded
interviews—which the trial court was free to disbelieve. Given the findings, it is clear that the trial
court did not in fact believe these statements from Appellant.95
Appellant also contends that he did not understand that, by signing the waiver, he was
waiving his right to remain silent and his right to a lawyer, and he claims that he did not understand
specific terms in Spanish read out to him from the Miranda waiver. These arguments also depend
on Appellant’s testimony, which the trial court was free to disbelieve and did disbelieve, given the
findings. Moreover, Appellant indicated on the first recording that he understood his rights, and on
the second recording, he said that the warnings need not be re-read because he understood them.
b. Effect of Subsequent Events on Understanding of Warnings
Appellant claims that Ranger Vela undermined the validity of his waiver of rights with
respect to the second recorded interview when he disregarded Appellant’s invocation of his right to
cut off questioning. This argument is really just another way of stating his contention that the failure
to scrupulously honor his right to cut off questioning during the first statement extended to the
95
Also, the only evidence of threats against Appellant’s family appears to be Appellant’s
statement in the second recorded interview that he tried to rob the Vega family because people he
owed money to had threatened his own family. We fail to see how Appellant would feel pressured
to confess to the police because he or his family had been threatened by non-law-enforcement
creditors at some time in the past. In connection with another claim, Appellant speculates that these
could have been the same people that he alleges called the police to threaten his own life. He made
no such assertion during the recorded interviews, and we find it unlikely that, early in the morning,
less than half a day after the shooting, non-law-enforcement creditors found out he was incarcerated
and called the police to threaten Appellant.
SANDOVAL — 37
second statement. We addressed and rejected that contention under the “Honoring the Right to
Silence” subsection of this opinion. Moreover, the sequence of events shows that Appellant was able
to successfully terminate the first interview by asserting his right to cut off questioning a second
time. At worst, that sequence would have conveyed that Appellant could have his right to cut off
questioning honored if he persistently asserted it. Consequently, we have no reason to think that he
did not understand that he did not have to agree to the second interview.
Appellant also claims that Ranger Vela undermined the waiver with respect to the second
recorded interview by saying, contrary to the Miranda and Article 38.22 warnings, “I am not saying
this is going to affect you or not; it may or may not affect you in court.” Saying that a confession
can be used “for or against you” is an improper warning that does not comply with Article 38.22.96
Appellant does not dispute that all of the warnings given at the beginning of each recorded interview
complied with Article 38.22. Rather, he claims that Ranger Vela’s statement here was an additional
statement in the middle of the first interview that was contrary to the Article 38.22 warning that a
statement may be used against the defendant.97 Ranger Vela’s “may or may not affect you in court”
statement, however, was talking about the Rangers telling the prosecutor whether or not the
defendant was honest during the interview. Ranger Vela was saying that such a statement by the
Rangers to the prosecutor “may or may not affect” Appellant in court. This in no way undermined
the Article 38.22 warning that whatever Appellant said might be used against him.
But even if the waiver as to the second interrogation were rendered invalid for the reasons
96
Dinkins v. State, 894 S.W.2d 330, 348-49 (Tex. Crim. App. 1995).
97
See Art. 38.22, § 2(a)(1) (“ . . . and that any statement he makes may be used against him
at his trial”), (2) (“any statement he makes may be used as evidence against him in court”).
SANDOVAL — 38
Appellant suggests, any error in admitting the second recorded statement was harmless for reasons
stated earlier in the “Honoring the Right to Silence” subsection. And even if we went back to the
first interview and held that Ranger Vela’s “may or may not affect” statement rendered inadmissible
what was said afterwards, facts (1), (2), (3), and (5) from the first interview would still have been
admitted, along with the first half of fact (4) from Appellant’s arrest-scene statement, and our
conclusion that any error is harmless would still be valid.
6. State-of-Mind Voluntariness Under Article 38.22
Appellant further claims that his recorded statements were involuntary under state law due
to his state of mind. He claims that he was “sleep-deprived, injured, ill, and intoxicated from drugs.”
He also claims that he feared for his life and his family’s life prior to and during his statements. A
state-law claim of involuntariness under Article 38.22 may, but need not, be predicated on law-
enforcement overreaching.98 A confession can be involuntary under state law if it is given “under
the duress of hallucinations, illness, medications, or even a private threat.”99 A confession can be
involuntary under state law if the suspect lacked the mental capacity to understand his rights or if,
due to a temporary mental condition, he did not understand what he was confessing to.100 But
“youth, intoxication, mental retardation, and other disabilities are usually not enough, by themselves,
to render a statement inadmissible.”101
Appellant claimed both lack of sleep and that he was on drugs. As we indicated earlier, some
98
Oursbourn v.State, 259 S.W.3d 159, 172 (Tex. Crim. App. 2008).
99
Id.
100
See id. at 172-73.
101
Id. at 173.
SANDOVAL — 39
lack of sleep was inevitable given the lateness of the arrest, though how much that affected Appellant
was something the factfinder could decide. The finder of fact was free to disbelieve the drug claim.
And even if the finder of fact believed that Appellant was tired and under the influence of drugs, that
would not alone require a conclusion that Appellant lacked the mental state needed to make a
voluntary confession. Appellant said that he understood his rights and agreed to waive them. He
specifically noted his understanding that what he said could be used against him. At the beginning
of the second interview, he insisted that the warnings did not need to be read again because he
understood them. Appellant’s statements during the interviews suggested that he could think
rationally. Without being told, Appellant understood that a capital offense carried the death penalty.
And he was able to articulate a coherent and exculpatory version of events in both
interviews—claiming in the first interview that he was the victim of an unprovoked attack by the
Vega family and claiming in the second interview that he shot at the Vega family but only in
response to them shooting first. The trial court was well within its discretion to conclude that
Appellant was not suffering from a mental condition that would have caused his statement, or his
waiver of rights, to be involuntary.
As for Appellant’s claim that private threats rendered his statement involuntary, that claim
depended on Appellant’s suppression-hearing testimony and recorded-interview statements, all of
which the trial court was free to disbelieve.102
But even if all of Appellant’s recorded statements were admitted in violation of statute, we
are convinced that any possible error did not influence the jury or had but slight effect and thus was
102
Even if we believed that private actors called in threats to the police or that pre-offense
threats were made against Appellant’s family, we would find those insufficient to render Appellant’s
statement involuntary under state law. See supra at nn.92, 95.
SANDOVAL — 40
harmless under the standard for non-constitutional errors. Even without his statements, Appellant
was connected to the abandoned red SUV by bloodstains in the vehicle matching his DNA. Three
witnesses identified Appellant as one of the two men who attacked the Vega family, two of those
witnesses identified Appellant as both the driver and the person who shot Harvey, and an additional
witness testified that Harvey was shot by the driver. Two witnesses testified that Appellant
instructed the Vega family to get down on the ground. A gun that was consistent with the bullet that
killed Harvey and with shells at the crime scene was found near the scene of Appellant’s arrest.
Appellant had gunshot residue on his hands. And without Appellant’s recorded statements, there
would be no evidence that the Vega family shot first or that Appellant was defending himself. The
testimony that Appellant and his accomplice fired shots without provocation would have been
uncontroverted.
Having rejected all of Appellant’s claims regarding the admission of his recorded statements,
we overrule points of error three through seven.
7. Jury Instruction
In point of error eight, Appellant contends that the trial court erred in failing to include an
Article 38.22 warnings instruction in the jury charge pursuant to Section 7. Article 38.22, Section
7 provides: “When the issue is raised by the evidence, the trial judge shall appropriately instruct the
jury, generally, on the law pertaining to such statement.”103 We have held that the phrase “the issue”
refers to compliance with statutory warnings and the voluntariness of the defendant’s waiver of
rights.104 For the issue to be “raised by the evidence,” there must be a “genuine factual dispute” on
103
Art. 38.22, § 7.
104
Oursbourn, 259 S.W.3d at 176.
SANDOVAL — 41
a material issue.105
Appellant contends that the evidence raised two factual disputes. First, he contends that there
is a factual dispute about whether Ranger Vela “contradicted the Miranda warnings and told
Appellant that information he provided in his statement ‘may or may not affect him in court.’” He
points to testimony from Ranger O’Connor that he thought that Ranger Vela was talking about
punishment. Second, he contends that there was a factual dispute about whether Appellant clearly
invoked his right to cut off questioning. He points to testimony by both Rangers Vela and O’Connor
that Appellant did not clearly invoke this right. He claims that the Rangers’ testimony on both these
points created a fact issue because it conflicted with what was shown to have happened on the
recordings.
We see no factual disputes. Appellant does not contend that there was a dispute about the
accuracy of the English translation of the recorded statements, and none of the testimony he points
to suggests that there was a translation error. Consequently, we accept the translation as definitive
on what was actually said during the recording, and once that is done, what was actually said is not,
and cannot, be in dispute.106
Moreover, even if the Rangers’ testimony could create a factual dispute by contradicting what
is reflected on the recording, we see no factual conflict between their statements and the recording.
In both instances, the testimony did not dispute what was actually said but gave what amounted to
an opinion about the legal effect of what was said. Whether the “may or may not” statement related
105
Id.
106
See Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000) (referring to a
videotape as presenting “indisputable visual evidence” that contradicted a witness’s testimony and
precluded us from according probative weight to that testimony).
SANDOVAL — 42
to guilt or punishment and whether Appellant’s “I don’t want to talk anymore right now” statement
was an unambiguous invocation were legal questions, not factual disputes.107
Appellant did create factual disputes at the suppression hearing through his testimony, but
he did not testify at trial, so none of those disputes were before the jury. Consequently, we have no
occasion to determine whether any of those disputes would have been material.
Even if there were error, it would be harmless. Appellant concedes that he did not raise these
complaints at trial, and so he could obtain a reversal only on a showing of egregious harm.108
“Egregious harm is a difficult standard to meet.”109 It is a more difficult standard than the harm
standard for constitutional error, and we have already held that, even if everything Appellant said
after the two events in question was inadmissible, error in admitting the evidence would be harmless
under the constitutional standard.110 Point of error eight is overruled.
E. Other Evidentiary Complaints
1. Extraneous Offense
107
See Robinson v. State, 377 S.W.3d 712, 720 (Tex. Crim. App. 2012) (“[W]e perceive no
material factual dispute in this case, only a dispute among the witnesses with respect to the legal
signficance of what are, in essence, undisputed facts.”) (emphasis in original).
108
Oursbourn, 259 S.W.3d at 165.
109
Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016).
110
See supra at part II.D.3 and part II.D.5.b. We also note that Appellant’s guilt stage jury
charge included a general instruction on voluntariness pursuant to Article 38.22, Section 6, to wit:
“You are instructed that under our law a statement of a Defendant made while under arrest or in
custody, may not be used in evidence against the defendant unless it appears that the statement was
freely and voluntarily made without compulsion or persuasion. Now, therefore, if you find from the
evidence, or if you have a reasonable doubt thereof, that the Defendant’s statement, if any, was not
voluntary, then you will completely disregard such statement as evidence for any purpose nor will
you consider any evidence obtained as a result thereof.”
SANDOVAL — 43
In point of error nineteen, Appellant contends that the trial court erred in denying a mistrial
after a witness testified to seeing, on a phone described as Appellant’s, photographs of bundles of
marijuana. At trial, the State questioned Ranger O’Connor about a cell phone that was collected at
the time of Appellant’s arrest. When asked who the phone belonged to, Ranger O’Connor responded
that he believed it to be Appellants’s and that “[t]here were numerous photographs of him in the
phone, also large bundles of marijuana.” Defense counsel objected to the marijuana remark. Outside
the jury’s presence, the State responded that Ranger O’Connor’s remark was unanticipated. The trial
court denied Appellant’s request for a mistrial, but, when the jury was called back in, it gave the jury
an instruction to disregard “the last statement made by this witness.”
Assuming the reference to bundles of marijuana would have been inadmissible as a reference
to an extraneous offense, we conclude that the trial court did not err in denying the mistrial. The trial
court gave an instruction to disregard, and ordinarily a prompt instruction to disregard will cure error
associated with an improper question and answer.111 And generally, such an instruction will cure
prejudice from a witness’s inadvertent reference to an extraneous offense112 or from a nonresponsive
answer.113 An instruction to disregard is more likely to cure prejudice when the improper reference
is isolated.114 Ranger O’Connor’s reference to bundles of marijuana was an isolated, nonresponsive
answer and the trial court’s instruction to disregard was prompt, occurring immediately after the jury
111
Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003).
112
Young v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009).
113
Lackey v. State, 638 S.W.2d 439, 456 (Tex. Crim. App. 1982).
114
See Shannon v. State, 942 S.W.2d 591, 598 (Tex. Crim. App. 1996) (improper
prosecutorial comment that the defendant was a sociopath was isolated and cured by prompt
instruction to disregard).
SANDOVAL — 44
was brought in after the hearing outside its presence.
Appellant contends that the extraneous offense would have stood out in the jurors’ minds
because no other extraneous offenses were admitted. We decline to draw an inference that a single
inadvertently mentioned extraneous offense must have had an outsized influence despite the
instruction to disregard.
Appellant contends that harm was shown because the jury sent out a note during penalty
deliberations asking if he was affiliated with a gang or cartel. But this note at the punishment stage
does not show that the jury was concerned about whether he had such affiliations at the guilt stage.
At punishment, the State introduced a judgment of conviction for possession of marijuana in the
amount of 2000 pounds or less but more than 50 pounds. That judgment connected Appellant to a
large amount of marijuana, which would have been a far more substantial basis for a concern about
gang or cartel involvement than the brief remark at the guilt stage that the jury was instructed to
disregard. Also, whether Appellant was a member of a cartel would more naturally be relevant at
the punishment stage of trial than at the guilt stage.
Appellant also contends that there were significant questions about whether he had the
requisite mental state for capital murder because he admitted to firing a gun but denied knowing at
whom he had fired. He points to his second recorded interview in which he claims that he did not
remember who he fired at. That lack of memory would in no way undermine a conclusion that he
fired at one of the Vega family members with the intent to kill him. Appellant also points to the
testimony indicating that the bullet that struck Harvey first ricocheted off the magazine of Harvey’s
own firearm. Even assuming such a richochet, we do not see this evidence as raising a substantial
question about Appellant’s guilt. Appellant also points to his statement that the Vega family shot
SANDOVAL — 45
first, and he claims that there is an absence of any evidence that he or the co-defendant took or
attempted to take any of the Vega family’s possessions. As we explained in connection with the
points of error relating to his recorded statements, Appellant or possibly his passenger commanded
the Vega family to get down on the ground while shooting at them. The fact that nothing was stolen
is explained by the fact that the Vega family fired back, forcing Appellant and his passenger to flee.
And Appellant’s second statement admits that he intended to rob the family. Even if that second
statement were excluded from consideration, that would leave the story of the Vega family doing the
only shooting, which was not a credible story given Harvey’s death, the father’s injuries, and the
gunshot residue on Appellant’s hands. But even if Appellant had a credible defensive position, that
would not invalidate our conclusion that the trial court’s instruction to disregard would have cured
any error. Point of error nineteen is overruled.
2. Co-Defendant’s Statement
In point of error twenty, Appellant contends that the trial court erred in admitting a reference
by Ranger Vela, in Appellant’s first recorded interview, to a statement made by Appellant’s
passenger, who was a co-defendant. He claims that, because the passenger did not testify and
therefore could not be cross-examined, the admission of this reference violated his Sixth Amendment
right to confrontation.
The trial court had ordered redactions of the English translation of the first recorded interview
to take out statements allegedly made by the passenger. Defense counsel objected that the redactions
were incomplete and pointed to a particular passage. He did not request a limiting instruction. The
passage at issue reads as follows:
This guy also talked. He already told me his version of how things happened. We are
not trying to play games with you, or trying to play tricks on you, or trying to put
SANDOVAL — 46
things on your head, nor anything like that. Okay? Simply, Gustavo—it is simply
that we already know how the events happened. Look, if you (both) went there, you
were going to try to—Let’s say how things are. Okay?—to attack those people or
you needed money, or I don’t know; I don’t know what your motives were and—Hey,
things turned out wrong because sometimes things turn out wrong and shit hit the fan
there; the shooting began and all that shit and then, obviously that you have to run
away.
This passage was part of the long explanation that Ranger Vela had given Appellant for saying, after
hearing Appellant’s initial story, that the rangers “know . . . that is not how things happened.”115
The passage was relevant to show the context in which Appellant made various statements
in the recorded interview. It was also relevant to the issue of the voluntariness of Appellant’s
recorded interview as a whole, an issue that was submitted to the jury.116 These were non-hearsay
purposes, as they do not involve proving the truth of any matters asserted by the passenger,117 and
even a non-testifying co-defendant’s statement can be admitted for a non-hearsay purpose without
violating the Confrontation Clause.118 Because the passenger’s statements were part of Ranger
Vela’s questioning, it is manifest that the State was not attempting to introduce the statements to
show that the passenger was giving a true account of what occurred. The record does not reflect
115
See supra at part II.D.2.a. See also supra at n.68 and surrounding text.
116
See supra at n.110.
117
See TEX. R. EVID. 801(d) (part of the definition of hearsay is that the statement is offered
“to prove the truth of the matter asserted in the statement”).
118
See Langham v. State, 305 S.W.3d 568, 577 n.26 (Tex. Crim. App. 2010) (citing
Tennessee v. Street, 471 U.S. 409 (1985)). Langham suggested that there was no constitutional
problem at all if the relevance of the statement derives “solely” from the fact that it was made, id.
at 576, but as we explain below, it would follow that, for a statement relevant for both hearsay and
nonhearsay purposes (that is, both for what it contains and for the fact that it was made), a proper
limiting instruction could obviate the constitutional concerns associated with the impermissible
hearsay purpose. See infra at n.120 and accompanying text.
SANDOVAL — 47
whether the rangers even talked to the co-defendant, let alone what he told them if they did. It is not
an unheard-of tactic for law enforcement to dissemble about what a suspected accomplice has told
them as a ruse to elicit incriminating statements from the accused.119 And the passage at issue here
does not even recite what the passenger allegedly said happened. At worst, Ranger Vela conveyed,
in a vague way, that the passenger gave a different story than Appellant.
A limiting instruction could have properly limited the jury’s consideration of this passage to
the permissible purpose for which it was relevant. Under Rule 105, a party claiming error in
admitting evidence “that is admissible . . . for a purpose . . . but not . . . for another purpose” has
preserved the claim only if the party had requested the trial court “to restrict the evidence to its
proper scope and instruct the jury accordingly.”120 The jury could have been instructed that any
alleged statements by the passenger were not admitted for the truth of those statements but to show
the context in which Appellant’s statements were made and for the purpose of assessing the
voluntariness of Appellant’s statements. Because the passage was relevant for non-hearsay purposes
and Appellant did not request a limiting instruction to restrict the evidence to the non-hearsay
purposes, he failed to preserve error as to the possible hearsay effects of the evidence. Point of error
twenty is overruled.
F. Jury Instructions
119
See Oursbourn, 259 S.W.2d at 182 (“Although appellant notes that Investigator Guidry
lied to him about some witnesses having identified him in the photo spread, it is well established that
lying about the state of the evidence is not the sort of ‘overreaching’ that implicates the Due Process
Clause, as long as the subterfuge used is not one likely to produce an untrue statement.”); Green v.
State, 934 S.W.2d 92, 100 (Tex. Crim. App. 1996) (“[A] misrepresentation relating to an accused's
connection to the crime is the least likely to render a confession involuntary.”).
120
TEX. R. EVID. 105(b)(1).
SANDOVAL — 48
In points of error twenty-one and twenty-two, Appellant contends that the jury charge was
erroneous when it instructed the jury to first find the defendant not guilty of capital murder before
considering lesser-included offenses. He contends that this violated his rights under the Eighth
Amendment and as articulated by this Court in Barrios v. State.121
1. The Jury Charge and the Charge Conference
With respect to the offense of capital murder, the jury charge stated:
[I]f you believe from the evidence beyond a reasonable doubt that the
defendant, GUSTAVO TIJERINA SANDOVAL, on or about August 3, 2014, in
Willacy County, Texas, intentionally caused the death of JAVIER VEGA, JR. by
shooting JAVIER VEGA, JR. with a firearm, in the course of committing or
attempting to commit robbery of JAVIER. VEGA, JR., then you will find the
defendant guilty of the offense of Capital Murder, as alleged in Count I of the
indictment, and so say by your verdict.
But if you do not so believe, or if you have a reasonable doubt thereof, you
will acquit the defendant of the offense of Capital Murder as alleged in Count I of
the indictment, say by your verdict “Not Guilty,” and proceed to consider whether
the defendant is guilty of the lesser included offense of murder.
The verdict form for capital murder had two signature lines: the first line for not guilty of capital
murder and the second line for guilty of capital murder. Below the second signature line was the
following passage: “Unless you so find from the evidence beyond a reasonable doubt, or if you have
a reasonable doubt thereof, you will acquit the defendant of Capital Murder and next consider
whether the defendant is guilty of the lesser offense of murder.”122
Jury instructions that tell the jury when and how to proceed from deliberating about a greater
offense to deliberating about a lesser-included offense are sometimes called “transitional
121
283 S.W.3d 348 (Tex. Crim. App. 2009).
122
The jury charge and verdict forms included parallel instructions for the offense of murder
vis-a-vis the lesser-included offense of manslaughter.
SANDOVAL — 49
instructions.”123 The type of transitional instruction that the trial court gave in this case is often
referred to as an “acquittal first” instruction, because it requires the jury to acquit the defendant of
the greater offense before deliberating on the lesser-included offense.124
Appellant’s defense attorneys submitted their own proposed jury charge. It had a different
type of transitional instruction:
If you all agree the state has proved, beyond a reasonable doubt, both of the two
elements listed above [for capital murder], you must find the defendant “guilty” of
capital murder and so indicate on the attached verdict form, titled “Verdict-Guilty of
Capital Murder.” If you all agree that state has failed to prove, beyond a reasonable
doubt, one or both of the elements 1 and 2 listed above, you must find the defendant
“not guilty” of capital murder. If you find the defendant is not guilty of capital
murder, or if after all reasonable efforts to do so you are not able to reach a
unanimous verdict on the charged offense of capital murder, you should next address
whether the stated have proved to lesser included of murder [sic].125
This type of transitional instruction is often referred to as an “unable to agree” or “reasonable effort”
instruction.126 After the instructions on the various lesser-included offenses, Appellant’s proposed
jury charge contained a “benefit of the doubt” instruction that was not included in the charge
submitted to the jury:
If you believe from the evidence, beyond a reasonable [sic], that the defendant is
guilty of either capital murder or murder, but you have a reasonable doubt about
which offenses he is guilty of, you must resolve the doubt in the defendant’s favor.
In that situation, you must find him guilty of the lesser offense of murder.
At the jury charge conference, the judge confirmed that defense counsel had reviewed the
123
State v. Lewis, 433 P.3d 276, 285 (N.M. 2018).
124
Id.
125
Emphasis added. Appellant’s proposed charge included similar instructions for the lesser
offense of manslaughter.
126
Id.
SANDOVAL — 50
charge of the court and asked, “Do you have any objections other than that it’s not exactly the way
yours was written?” One of the defense attorneys responded, “Judge, it appears to be correct,
however, there was some other matters that were on my charge that I would have preferred on it.”127
As part of his discussion of what parts of the defense’s proposed charge he thought should be
included, the defense attorney referred to a part that provided, “[I]f they cannot decide a verdict . .
. they could consider the lesser-included offenses.” The defense attorney claimed that “McClung”
prescribed such an instruction.128 The trial court, apparently looking through “McClung,” responded,
“I don’t see it here, so you find it for me, because maybe I’m looking in the wrong section.” The
trial court further asked the defense, “Anything else on the charge other than that?” Defense counsel
responded, “Other than I prefer my charge? . . . No, Your Honor.” The trial court responded, “No?
Okay. Then I’ll give you a few minutes to look at it.” Later, the parties discussed the fact that the
court’s jury charge, as drafted, could result in a jury deadlocked on capital murder, would allow for
an “Allen charge” to encourage the jury to break the deadlock,129 and could result in a mistrial
without the jury addressing the lesser offense of murder. The State took the position that it was
entitled to jury unanimity on either conviction or acquittal of the charged capital murder, with a
mistrial if the jury could not agree, while the defense took the position that the jury should be
permitted to return a verdict on the lesser offense of murder if the jurors could not agree on the
127
Emphasis added.
128
This appears to be a reference to one of the editions of pattern jury charges by Paul J.
McClung and others. Appellant’s brief on appeal does not cite any work from McClung.
129
See Balderas v. State, 517 S.W.3d 756, 790 n.99 (Tex. Crim. App. 2016) (citing Allen
v. United States, 164 U.S. 492 (1896) as “permitting a supplemental jury instruction that reminds
the jury that if it is unable to reach a verdict, a mistrial will result, the case will still be pending, and
there is no guarantee that a second jury would find the issue any easier to resolve”).
SANDOVAL — 51
greater offense of capital murder. The trial court agreed with the State. After this discussion, the
trial court asked the defense attorneys, “Did you find anything?” The defense attorney who had not
been talking responded, “I haven’t been able to find it, Your Honor.” The trial court then said that
its ruling would stand.
2. Constitutional Claim (Beck)
Appellant’s Eighth Amendment argument is based on Beck v. Alabama.130 In Beck, the jury
was instructed solely on capital murder because a statute prohibited an instruction on felony murder
even though felony murder was logically a lesser-included offense.131 The Supreme Court held that
Alabama’s preclusion of a lesser-included offense was unacceptable under the circumstances:
For when the evidence unquestionably establishes that the defendant is guilty of a
serious, violent offense—but leaves some doubt with respect to an element that
would justify conviction of a capital offense—the failure to give the jury the “third
option” of convicting on a lesser included offense would seem inevitably to enhance
the risk of an unwarranted conviction. Such a risk cannot be tolerated in a case in
which the defendant’s life is at stake.”132
This case is not like Beck. Here, lesser-included offense instructions were submitted. The
jury was not faced with having to choose between conviction for capital murder and an outright
acquittal of any offense. It had the third option of conviction for murder (and a fourth option of
conviction for manslaughter). The “acquittal first” instruction for capital murder explicitly informed
the jury that murder was an available lesser offense if the jury did acquit of capital murder. And
prior to closing arguments and deliberations, the jury charge was read to the jury in its entirety, so
130
447 U.S. 625 (1980).
131
Id. at 628-30.
132
Id. at 637.
SANDOVAL — 52
in deliberating on whether Appellant was guilty of capital murder, the jury knew not only that there
was a lesser-included offense of murder, but it knew exactly what the elements of that lesser-
included offense were.
Citing several out-of-state cases, Appellant contends that the “acquittal first” instruction put
him in the same position as the defendant in Beck. Those cases are not binding on us, but in any
event they do not support his position. He cites State v. Mays for the proposition that “the concerns
that underlay the Supreme Court’s decision in Beck have the same ‘force when a jury is instructed
in how it should proceed in considering the offenses charged.’”133 But Mays did not say that the
concerns underlying Beck have the “same” force in an “acquit first” instruction situation; it said that
the concerns “still have force.”134 Mays also recognized that the appropriateness of an “acquittal
first” instruction has been debated across the country, with some jurisdictions requiring such an
instruction.135 Appellant also cites State v. Thomas136 and State v. Allen,137 but while both cases said
that an “acquittal first” instruction poses the potential for a coerced verdict, neither claimed that such
an instruction runs afoul of Beck.138 Appellant points to a quote in Mays from State v. Leblanc,139
but Leblanc acknowledged that its rejection of an “acquittal first” instruction was a “court-created
133
See Appellant’s brief at 179, quoting from Mays, 582 S.E.2d 360, 366 (N.C. App. 2003).
134
Mays, supra.
135
Id. at 367.
136
533 N.E.2d 286 (Ohio 1988).
137
717 P.2d 1178 (Or. 1986).
138
See Thomas, 533 N.E.2d at 292 and passim; Allen, 717 P.2d at 1181 and passim.
139
924 P.2d 441 (Ariz. 1996).
SANDOVAL — 53
procedure, not an interpretation of constitutional text, statutory provision, or substantive common
law principle,”140 and it made its new procedure prospective only, affirming the conviction of the
defendant before it under an “acquit first” instruction.141
And the Oregon legislature has since passed a law requiring an “acquittal first” instruction,
superseding the Oregon Supreme Court’s holding in Allen.142 When confronted with whether the
new Oregon law violated Beck, the Oregon Supreme Court held that it did not:
Contrary to defendant’s position, however, there is a difference—one of
constitutional significance—between the statute that Beck invalidated and the Oregon
statute that defendant challenges here.
***
The Alabama statute at issue in Beck precluded the jury from considering the
lesser-included offense of felony murder. The issue did not involve the order of
deliberations and when a jury could consider the lesser offense instead of the charged
offense; rather, the jury could not consider the lesser offense at all.143
New Mexico’s Supreme Court has observed that a number of jurisdictions require an
“acquittal first” instruction and that there are at least four distinct positions in the various
jurisdictions regarding what type of transitional instruction should be given.144 Appellant does not
cite, nor are we aware of, any case holding that an “acquittal first” instruction runs afoul of Beck or
the United States Constitution. We conclude that it does not. Point of error twenty-one is overruled.
3. Non-Constitutional Claim (Barrios)
Appellant complains that the jury charge contravened our holding in Barrios when it required
140
Id. at 443.
141
Id. at 444.
142
See State v. Turnidge, 374 P.3d 853, 930 (Ore. 2016).
143
Id. at 931-32 (citation omitted, emphasis in original).
144
Lewis, 433 P.3d at 285.
SANDOVAL — 54
the jury to reach a unanimous verdict of not guilty of the greater offense before it was permitted to
discuss Appellant’s potential culpability for a lesser-included offense. He contends that this
prevented the jury from having a free discussion and interchange of opinions critical to rendering a
proper verdict. He complains that, unlike in Barrios, which included a benefit-of-the-doubt
instruction, “the trial court gave no instructions similar to the instruction in Barrios that the jury
could have interpreted to permit it to consider one of the charged lesser-included offenses before
reaching a verdict on the greater offense.”
a. Texas Statute and Caselaw
Article 37.08 provides:
In a prosecution for an offense with lesser included offenses, the jury may find the
defendant not guilty of the greater offense, but guilty of any lesser included
offense.145
We construe a statute by the plain meaning of its text unless the text is ambiguous or the plain
meaning leads to results that the legislature could not have possibly intended.146 We agree with an
observation by the First Court of Appeals that the statutory wording of Article 37.08 necessarily
means that “a unanimous finding of guilt on a lesser-included offense necessarily requires a
unanimous acquittal on the higher offense.”147 The legislature contemplated that a conviction on a
lesser-included offense would necessarily be a verdict of acquittal on the greater offense, not simply
a situation where the jury could not agree on the greater offense.
145
Art. 37.08.
146
Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
147
Harris v. State, 287 S.W.3d 785, 790-91 (Tex. App.—Houston [1st Dist.] 2009, no pet).
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In Boyett v. State, this Court explicitly approved the use of an “acquittal first” instruction.148
The Court agreed with Boyett that the transitional instruction in a jury charge should “explicitly
instruct[] the jurors that if they did not believe, or if they had reasonable doubt of appellant’s guilt
of the greater offense, they should acquit appellant and proceed to consider whether appellant was
guilty of the lesser included offense.”149 The transitional instruction did not quite conform to the
approved instruction, saying, “Unless you so find, or if you have a reasonable doubt thereof, you
should consider whether or not the defendant is guilty of the lesser included offense.”150 The Court
held that the instruction was not a model charge because it did not use the word “acquit” but that it
essentially instructed the jurors to acquit, so the defendant (having not objected at trial) was not
harmed under the standard for fundamental error.151
In Barrios, the transitional instruction mostly conformed to the language suggested in Boyett,
using the word “acquit”:
Unless you so find from the evidence beyond a reasonable doubt, or if you have a
reasonable doubt thereof, you will acquit the defendant of capital murder and next
consider whether the defendant is guilty of robbery.152
The jury charge in that case also included a “benefit of the doubt instruction”:
If you believe from the evidence beyond a reasonable doubt that the defendant is
guilty of either capital murder on the one hand or robbery on the other hand, but you
have a reasonable doubt as to which of said offenses he is guilty, then you must
resolve that doubt in the defendant’s favor and find him guilty of the lesser offense
148
692 S.W.2d 512, 516 (Tex. Crim. App. 1985).
149
Id.
150
Id. at 515.
151
Id. at 516.
152
283 S.W.3d at 349.
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of robbery.153
The defendant in Barrios contended that the “acquittal first” instruction conflicted with the
“benefit of the doubt” instruction, but the Court disagreed, saying that the defendant’s conclusion
was based on a narrow interpretation of the jury charge.154 The Court explained that unanimous
verdicts are final decisions and that juries make many decisions in the jury room that are not
announced to the court.155
Barrios also noted that the instruction sanctioned in Boyett “has been in regular use in Texas
for many decades, going back as far as Childress v. State,” decided in 1909.156 Nevertheless, Barrios
said that the use of the word “acquit” was “inartful” and “at odds with the context of the instruction,”
which was intended to guide jury deliberations.157 The Court suggested that it might be a better
practice to substitute for “you will acquit . . . and next consider” the phrase “or if you are unable to
agree, you will next consider” the lesser offense.158 The Court suggested that it might be the better
practice for a transitional instruction to be the “unable to agree” type rather than the “acquit first”
type, but it declined to say that an “acquit first” instruction was erroneous, at least as long as a
“benefit of the doubt” instruction was also included.
Barrios found no error in the instruction given, and said merely that an “unable to agree”
153
Id. at 349-50.
154
Id. at 352.
155
Id.
156
Barrios, 283 S.W.3d at 351 n.1 (citing Childress v. State, 55 Tex. Crim. 186, 115 S.W.
582 (Tex. Crim. App. 1909)).
157
Id. at 353.
158
Id.
SANDOVAL — 57
approach “may” be a better practice instead of requiring that approach. As such, the statement about
what might be the better practice was dictum.
b. Approaches to Transitional Instructions
As we explained earlier in connection with Appellant’s Beck claim, the New Mexico
Supreme Court has suggested that there are at least four approaches to transitional instructions. They
are: (1) requiring an “acquittal first” instruction, (2) requiring a “modified acquittal first” instruction,
allowing a jury to deliberate in the order it sees fit but requiring that it acquit the defendant of the
greater offense before returning a verdict on the lesser offense, (3) requiring an “unable to agree” (or
“reasonable effort”) instruction, and (4) an “optional approach” that allows the defendant to choose
between an “acquittal first” instruction and an “unable to agree” instruction.159
As we discussed earlier, the plain language of Article 37.08 bars an “unable to agree”
instruction—precluding the “unable to agree” and “optional” approaches. And given the fact that
numerous other jurisdictions reject those two approaches, we find nothing absurd about following
the statutory language.
Even if the language of Article 37.08 could somehow be construed as ambiguous in that
regard, other factors would still require a rejection of those two approaches. Boyett and the
longstanding Texas common law preceding it support the “acquittal first” approach. In Texas, our
statute specifically provides that conviction on a lesser-included offense constitutes an acquittal of
the greater offense (absent a jurisdictional defect).160 This statute further reinforces the conclusion
that in Texas, a jury must be required to agree on an acquittal of the greater offense before it can
159
Lewis, 433 P.3d at 285.
160
Art. 37.14.
SANDOVAL — 58
return a conviction on a lesser-included offense.
Article 37.08 does not clearly dictate whether to adopt the “acquittal first” or “modified
acquittal first” approach. The statute contemplates that a jury’s conviction of the lesser offense will
also be an acquittal of the greater offense but it says nothing about how deliberations must proceed.
Given our discussion, we now disavow the suggestion in Barrios that a transitional
instruction can or should be framed as an “unable to agree” instruction. We consequently reject the
“unable to agree/reasonable effort” and “optional” approaches to transitional instructions. We will
assume, without deciding, that the jury charge should have included an explicit “modified acquittal
first” instruction and a “benefit of the doubt” instruction.
c. Harm
The next question is harm. If error in the jury charge is not preserved, it is reviewed only for
“egregious harm.”161 If the error is preserved, then it is reviewed for “some harm.”162
Regardless of the standard of harm employed,163 any error was harmless. Under the jury
161
French v. State, 563 S.W.3d 228, 229-30 (Tex. Crim. App. 2018) (citing Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)).
162
Id.
163
Arguably, Appellant failed to preserve error. Although the “benefit of the doubt”
instruction was in the defense’s proposed jury charge, defense counsel said the court’s jury charge
was correct except for matters the defense wanted to discuss, and defense counsel did not discuss
the absence of a “benefit of the doubt” instruction from the court’s charge. And although the defense
did discuss the absence of its proposed “unable to agree” instruction, the defense’s contention that
the instruction could be found in McClung’s collection of pattern jury instructions was arguably not
a legal basis for submitting the instruction, and in any event, when asked, defense counsel could not
find his proposed instruction in McClung’s. We have indicated that a defendant must specify a
sufficient legal reason for a requested jury instruction for the claim to be preserved. Mays v. State,
318 S.W.3d 368, 384 & n. 52 (Tex. Crim. App. 2010) (citing Wilson v. State, 80 Tex. Crim. 266, 189
S.W. 1071, 1072 (Tex. Crim. App. 1916)). See also French v. State, 563 S.W.3d 328, 234 & n.5
(Tex. Crim. App. 2018) (to preserve error in jury charge, party must “clearly identify why it was
SANDOVAL — 59
instructions, the only difference between the charged capital murder and the lesser-included offense
of murder was that a robbery or attempted robbery is required for capital murder but not for
murder.164 Although it is theoretically possible for a lesser-included offense of murder to differ from
the pled theory of capital murder in other ways,165 Appellant has not contended that the jury
instructions were in error for failing to include these other possible differences, so we will assume
that the instructions were correct in that regard.166
As is standard in Texas, the guilt-stage jury charge was read in its entirety before closing
arguments and jury deliberations. Before deliberations began, the jury was well aware that the lesser
offense of murder did not require it to believe that Appellant committed a robbery or attempted
robbery. A robbery or attempted robbery was an explicit element of capital murder, so the
transitional instruction effectively required the jury to acquit of capital murder, and consider the
lesser offense of murder, if it had a reasonable doubt about that one element, which was the sole
element that distinguished the two offenses. We see no practical difference between what these
objectionable”) (citing Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)).
164
Compare TEX. PENAL CODE § 19.03(a)(2) with id. § 19.02(b). The sole culpable mental
state as to death for both capital murder and murder in the jury charge was “intentionally.”
165
See id. § 19.02(b)(1) ( “knowingly”), (2) (“intends to cause serious bodily injury”), (3)
(felony murder).
166
In a given case, a defendant might forfeit reliance on a theory of murder not encompassed
by his request for the lesser-included offense. See Tolbert v. State, 306 S.W.3d 776, 781 (Tex. Crim.
App. 2010) (jury instruction on lesser-included offense not “applicable to the case” absent a defense
request for inclusion in the jury charge). Or the evidence might not raise other legal theories of
murder. See Cavazos v. State, 382 S.W.3d 377, 384 (Tex. Crim. App. 2012) (citing Bell v. State, 693
S.W.2d 434, 442 (Tex. Crim. App. 1985)) (defendant entitled to submission of lesser-included
offense only if raised by the evidence); Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App.
1993) (lesser-included offense raised by the evidence only if a jury could rationally find the
defendant guilty only of the lesser offense).
SANDOVAL — 60
instructions required of the jury and what a “modified acquittal first” and Appellant’s proposed
“benefit of the doubt” instruction would have required. At least in this case, the “acquittal first”
instructions required the jury to deliberate, as part of deciding guilt for capital murder, on the one
element that distinguished capital murder from murder, while knowing it was the distinguishing
element between those two offenses, and knowing that a reasonable doubt on that element required
an acquittal of capital murder. Point of error twenty-two is overruled.
III. PUNISHMENT
A. Jury Selection
In points of error fifteen and seventeen, Appellant contends that the trial court erred in
granting the State’s challenges for cause against prospective jurors Garza and Tamayo respectively.
He contends that these jurors were improperly removed on the basis of their scruples about the death
penalty in violation of Wainwright v. Witt.167 In point of error eighteen, he contends that the trial
court improperly denied him the right to examine Tamayo. In point of error sixteen, Appellant
contends that the trial court erred in denying his challenge for cause against Prospective Juror
Ramirez. He contends that Ramirez was unable to consider life without parole for specific capital
murder offenses, including murder in the course of a robbery, and thus was an automatic vote for
death in violation of Morgan v. Illinois.168
1. Jury-Selection Law
Under Witt, a prospective juror who has conscientious scruples about the death penalty is
challengeable for cause only if his views “would prevent or substantially impair the performance of
167
469 U.S. 412 (1985).
168
504 U.S. 719 (1992).
SANDOVAL — 61
his duties as a juror in accordance with his instructions and his oath.”169 We review a trial court’s
ruling on this issue with considerable deference “because the trial court is in the best position to
evaluate a prospective juror’s demeanor and responses.”170 We accord particular deference to a trial
court’s decision if the prospective jurors answers “are vacillating, unclear, or contradictory.”171
Morgan is the flip side of Witt: A juror is challengeable for cause if his views in favor of the death
penalty would prevent or substantially impair the performance of his duties in accordance with his
instructions and his oath.172
2. Prospective Juror Garza
At the beginning of her voir dire, Garza stated that there was no reason she could not serve
as a fair and impartial juror but added, “it’s a lot to have a person’s life in your hands. I mean, that’s
a big deal.” When asked if being fair and impartial sounded like something she “might want to do,”
Garza responded, “Again, I mean, it’s a lot of pressure to have somebody’s life in your hands.” The
prosecutor referred the prospective juror to her answers on a questionnaire, where she answered “no”
to the question, “Are you in favor of the death penalty?” Garza acknowledged that she went on to
say, “The guilty party should not be able to live with our society. However, killing the guilty party
169
Hernandez v. State, 390 S.W.3d 310, 317 (Tex. Crim. App. 2012) (quoting Witt, 469 U.S.
at 433).
170
Id.
171
Id.
172
Colburn v. State, 966 S.W.2d 511, 518 (Tex. Crim. App. 1998) (“We upheld the trial
court’s decision to sustain the challenge for cause, pointing to Morgan v. Illinois, where the Supreme
Court said that jurors, ‘whether they be unalterably in favor of or opposed to the death penalty in
every case—by definition are ones who cannot perform their duties in accordance with the law, their
protestations notwithstanding.’”) (citation omitted).
SANDOVAL — 62
because they killed is an easy way to pay for a debt.” She affirmed that she still felt that way. Garza
went on to say that she thought a life sentence was a harsher penalty than the death penalty because
the convicted person would have to think about what he did.
The questionnaire offered several options regarding views about the death penalty and
criminal trials. The option chosen by Garza said, “Although I do not believe that the death penalty
should ever be imposed, as long as the law provides for it, I could assess it under the proper set of
circumstances.” When asked if that option was the most accurate description, she responded, “I
mean, I would think so. I think I’m pretty open-minded. I mean, it’s not—you know, I know that
this is a capital murder case. I know that what he’s being accused of is, like you said, immoral. And
so I understand where the State is coming from. I mean, I get that point. I understand.”
The prosecutor asked Garza under what set of circumstances could she assess the death
penalty. Garza responded, “[J]ust based on the evidence . . . the facts are the facts and whatever
happened happened.” She also said she would want information that would make it so “maybe I
would feel that the death penalty was okay. I just feel that you need to make it okay for me. I want
to know that the punishment fits the crime.”
The prosecutor asked Garza if it was fair to say that deciding on the death penalty was
“something that you would not want to do.” She answered, “Pretty much. I mean, like I said, it’s
a big—it will weigh heavy on my conscience, I think, you know.” The prosecutor asked, “[I]s it a
big enough deal that you would not be able to assess the death penalty in a case even if it’s one of
these types of cases” for which the capital-murder statute says the death penalty is an available
punishment. Garza responded, “Again, I don’t—I would need to hear your side, I guess. I don’t
know. I don’t know how to explain it, other than I would need to see what it is that you are wanting
SANDOVAL — 63
to justify, I suppose.”173 The prosecutor then said, “We kind of need to know now whether or not
you can do it. And if you are—it’s too late for us to find out after you have taken the oath that you’re
going to do it and then you realize to yourself, “You know what? I thought I could. I really want
to be able to do my job, but I can’t.” Garza responded, “And I think that’s where I’m at. I mean, I
want to do my civil duty. And that’s where I’m kind of conflicted, is that I want to do my civil duty.
But I don’t think I could do that. That would be hard.” Later the prosecutor pointed out jurors were
needed who could impose the death penalty and asked, “Now, is that something you can do?” Garza
responded, “I don’t think, no not to take somebody’s life. I don’t think I could.”
When asked by defense counsel, “You could not render a verdict because it’s a capital
murder case?” Garza responded, “No I could. I didn’t say I couldn’t. I just don’t know that I could
take his life.” When asked whether she would automatically grant a life sentence over a death
sentence, she responded, “I just don’t think that I could—if I’m just answering the questions yes or
no, and the judge is making the decision whether its going to be a death penalty or life in prison, if
I’m just answering yes or no to those questions, of course, I can do that.” After a lengthy discussion
by defense counsel, when asked if she could listen to the evidence and decide the case based on the
evidence and based on the instructions given by the trial court, Garza responded, “Yes.”
The trial court then explained to Garza that she would be asked two questions but that she
would know the effect of the answer to those two questions, and that if those questions were
answered a certain way, the trial court would impose the death penalty. The trial court asked, “Could
you do that?” Garza responded, “I—I don’t think so. Not in that—you know, he made it sound a
little different, but—.” The trial court then asked Garza to step outside the courtroom. The State
173
All emphasis in voir dire testimony has been added.
SANDOVAL — 64
challenged Garza for cause, and the trial court granted the challenge.
The trial court was within its discretion to grant the challenge for cause. At best, Garza was
a vacillating juror with respect to whether her views about the death penalty would substantially
impair the performance of her duties as a juror in accordance with her instructions and her oath. In
fact, though not required to uphold the trial court’s challenge for cause, the record in this case clearly
favors the conclusion that she could not in fact perform her duties because of her death-penalty
views. Point of error fifteen is overruled.
3. Prospective Juror Tamayo
During its general instructions to the special venire on which Tamayo sat, the trial court
explained that a jury would not be asked to deliver a verdict on life or death. Rather, a jury would
decide “special issues, questions that are asked of them.” The trial court said the jurors “don’t
answer . . . those questions because they want somebody to get the death penalty or because they
don’t want somebody to get the death penalty. They answer the questions because they believe the
evidence proves to them that the question should be answered in a certain way.” The trial court
further explained:
Under the law, a juror, to be fair, must say, “I’m going to listen to the evidence, and
I’m going to answer the questions honestly as I believe was proved under whatever
burden the Court gives me, if any. And I’m going to answer them based upon the
facts of the case and the law in this case, not on a predisposition that I like or not like
the death penalty. And whatever the answers are, the answers are.”
The trial court explained that the jurors would know the effect of their answers but are nevertheless
required to answer the questions based on the evidence and not to require a certain verdict.
The trial court then discussed three statutory special issues that could arise in Appellant’s
SANDOVAL — 65
case: the future dangerousness issue, the anti-parties issue, and the mitigation issue.174 The trial court
quoted these special issues and explained them in some detail. The trial court explained that the
State had the burden of proof beyond a reasonable doubt on the first two special issues and that no
one had a burden of proof on the mitigation special issue.
After explaining the special issues, the trial court then asked the venire members to raise their
card numbers if their beliefs prevented them from following the law:
[I]s there anyone present that says, “Judge, as a juror, because of my position with
respect to—respect to a philosophy about the death penalty, I could not serve as a
juror in that case, and I could not and would not fairly answer the questions as was
proven to me by the evidence in a way that would result in assessing the death
penalty. I would violate my oath as a juror. I would answer them a different way just
to make sure that the death penalty was not assessed. Even if the State proved the
answers should be answered in a certain way, I’d answer them a different way to
make sure that a life sentence was imposed as opposed to the death penalty”? If you
feel that way, please raise your card in number.
The judge then listed off the card numbers of the jurors that raised their hands, the first of which was
number 5. The master index of the court reporter’s record has Tamayo listed as the fifth juror
questioned in individual voir dire.
During her individual voir dire, the trial court asked Tamayo if it was correct that she had
stated on a written jury questionnaire that she could “never under any circumstances return a verdict
which assessed the death penalty.” Tamayo responded that that was correct. The trial court asked
the prospective juror, “So you’re strongly opposed to it?” Tamayo responded, “Strongly opposed
to the death penalty, yes.” The trial court then asked, “And it doesn’t matter what I tell you or what
you hear, you could not assess it?” Tamayo answered, “I cannot.” At that point, the trial court
indicated that it would excuse the prospective juror. Defense counsel responded that he might be
174
See TEX. CODE CRIM. PROC. art. 37.071, § 2(b)(1), (2), (e)(1).
SANDOVAL — 66
able to rehabilitate the juror. The trial court further asked Tamayo if her opposition to the death
penalty was due to religious beliefs, and she responded, “It is because of my religious beliefs. Uh-
huh. I don’t think I can play God and do that to someone.” The trial court again indicated that it
would excuse her. Defense counsel objected and said that he could ask questions to rehabilitate the
prospective juror, but the trial court excused Tamayo without permitting questioning by either of the
parties.
The record supports the trial court’s decision to excuse Tamayo. The Texas system of special
issues was explained to her during the trial court’s general instructions to the venire. Moreover, the
record supports the conclusion that she raised her card number when asked who among the venire
would not follow the law and answer the special issues fairly because of the person’s views against
the death penalty. Whether or not she raised her card number during general voir dire, however, she
indicated in individual voir dire that she would never under any circumstances be able to assess the
death penalty. Point of error seventeen is overruled.
Appellant, however, also claims that the trial court erred in refusing to allow his attorney to
question the juror. The State concedes that the trial court erred in this regard but, relying upon
Simpson v. State,175 contends that the error was harmless.
In Simpson, we held that Article 35.17 requires the trial court, upon demand of either party,
to permit that party to individually question the prospective juror on principles already discussed by
the trial court.176 But we held that such error was subject to a harm analysis and was harmless under
175
119 S.W.3d 262 (Tex. Crim. App. 2003).
176
Id. at 266. See also Art. 35.17, § 2 (“. . . on demand of the State or defendant, either is
entitled to examine each juror on voir dire individually . . . and may further question the juror on the
principles propounded by the court.”).
SANDOVAL — 67
the facts of that case.177 We said that the trial court explained the special issues to the venire member
and that she at first said she could answer the special issues according to the evidence even if it
meant imposing a death sentence.178 But when questioned about her answers to a written
questionnaire, the prospective juror ultimately said that she was against the death penalty and that
her personal feelings would override any evidence that was presented at trial and prevent her from
returning a verdict of death.179 She also explained that she held religious beliefs against the death
penalty.180 We held that it was highly unlikely that the defendant would have been able to convince
the juror to say otherwise or that the trial court would have abused its discretion in dismissing her
for cause.181 We held that the error was harmless.182
Appellant contends that Simpson is distinguishable because Tamayo was not specifically
questioned about whether she could consider the evidence and apply it to the law to answer the
special issues. But the trial court did conduct such questioning during general voir dire, and the
record supports a conclusion that Tamayo raised her card number to affirmatively indicate that she
could not follow the law. And regardless of whether she raised her card number, the special issues
had been explained to her, and she definitively stated that she would never under any circumstances
return a verdict that assessed the death penalty. Unlike the prospective juror in Simpson, Tamayo
177
Simpson, supra at 266-267.
178
Id.
179
Id. at 267.
180
Id.
181
Id.
182
Id.
SANDOVAL — 68
did not vacillate at all, and she indicated that she could not impose the death penalty regardless of
the evidence at trial or the trial court’s instructions. As was the case in Simpson, Tamayo indicated
that her opposition to the death penalty was based on religious beliefs. And the trial court here
clearly indicated multiple times that it would excuse Tamayo regardless of what else she might say,
presumably because her initial answers would at most render her a vacillating juror. Because the
trial court would have been justified in excusing Tamayo as a vacillating juror, the error was
harmless. Point of error eighteen is overruled.
4. Prospective Juror Ramirez
When questioned by the prosecutor, Ramirez acknowledged that he was in favor of the death
penalty. When asked if he could return a verdict of life without parole if the facts say that
punishment is appropriate or a verdict of death if the evidence indicated that was appropriate, he
responded, “Yes, sir.” He agreed that the death penalty was not automatic.
When questioned by the defense, Ramirez said that he was strongly in favor of the death
penalty. Defense counsel asked Ramirez a number of questions about whether certain types of
capital murders would be the kind of cases in which he could consider life without parole. These
included murder in the course of committing or attempting to commit robbery. Ramirez answered
all of these questions, “No, sir.” He also said that laws on criminal punishments treated defendants
too leniently.
After the defense questioning, the trial court referred Ramirez back to his answers to the
kinds of cases for which Ramirez believed life without parole would not be an appropriate penalty.
Shortly after that, referring to the punishments of the death penalty and life without parole, the trial
court asked, “After you hear all the evidence and you’re with your fellow jurors, would you consider
SANDOVAL — 69
both ranges of punishment, or would you only want the death penalty?” Ramirez responded, “I will
consider both.” The trial court then asked the prospective juror if, even with his personal feelings,
he would, throughout the whole trial, have an open mind as to either punishment. Ramirez said that
was correct.
The defense resumed questioning and, after pointing out that capital murder trials can be
emotional with distraught family members, asked whether Ramirez could give a life sentence if he
saw evidence that was sufficient to be mitigating. Ramirez responded, “Yes.” When defense
counsel asked how that answer could be consistent with his earlier responses to defense counsel,
Ramirez responded that he understood the question after the judge explained it to him. Defense
counsel responded that Ramirez seemed to have changed his answer 180 degrees and asked, “So
which one should I believe?” Ramirez responded, “The last answer that I gave.”
Defense counsel challenged Ramirez for cause. The trial court denied the challenge for
cause, and Ramirez ultimately sat on the jury.
We conclude that Ramirez was a vacillating juror and that there was sufficient support in the
record for the conclusion that he would keep an open mind on the punishment of life without parole
in a capital murder case. Point of error sixteen is overruled.
B. Evidence
1. Ineffective Assistance of Counsel – Opinion about Appropriate Punishment
In point of error twenty-five, Appellant contends that counsel was ineffective for failing to
object to improper victim-impact testimony. Specifically, he complains about an opinion elicited
from the victim’s father regarding the appropriate punishment for killing his son. Appellant argues
that a family member’s opinion as to the appropriate sentence is inadmissible in a death-penalty case
SANDOVAL — 70
under Booth v. Maryland and subsequent Supreme Court cases.183 He claims that there is “no
conceivable sound trial strategy” for defense counsel’s failure to object because it was apparent from
the State’s questioning that it was attempting to elicit testimony that violated Booth and because this
type of testimony is inherently inflammatory.
a. The Testimony, Closing Arguments, and Jury Notes
Appellant complains about the following exchange with the victim’s father during the
punishment phase:
Q. What kind of justice do you want or do you think this jury should give you?
A. I think they should give me, to be honest, dude, an eye for an eye. That’s what I
want. And not because of me but because of my baby.
Q. What were the last words that Harvey ever said to you?
A. “He got me, Dad. Get him.” That’s what he told me.
Defense counsel did not object to this testimony.
In closing argument at punishment, defense counsel discussed Harvey’s father’s “eye for an
eye” testimony and referred to Jesus’s “turn the other cheek” sermon in the Bible:
Mr. Vega, Sr., took the stand and he was asked what he wanted. He said an eye for
an eye. But, you know, if you read that passage in the Bible, Jesus said to not
succumb to an eye for an eye and a tooth for a tooth, to ignore that evil or set aside
that evil and, in fact, turn the other cheek. That’s what – that’s what that whole
passage says. So eye for an eye is not justice. An eye for an eye is vengeance. I
understand Mr. Vega’s desire for vengeance. I understand. He has every right. But
that’s not what the law is. The law is based on what the evidence is.
In its rebuttal closing argument, one of the prosecutors responded:
183
He cites Bosse v. Oklahoma, 137 S. Ct. 1 (2016); Payne v. Tennessee, 501 U.S. 808, 830
n.2 (1991); and Booth v. Maryland, 482 U.S. 496, 509 (1987), overruled on other grounds by Payne
v. Tennessee.
SANDOVAL — 71
[Defense counsel] came up here and told you that Jesus said to turn the other cheek.
I normally don’t get into religious verses in closing argument, but I will tell you this.
The Bible also says in Proverbs 21:15, “When justice is done, it is a joy to the
righteous but it is a terror to evildoers.” Punishment is justice for the unjust. The first
duty of any society is justice, ladies and gentlemen. You, basically, have to do three
things now. You have to answer two special issues and you have to decide the
punishment for the attempted capital murder case.
During punishment deliberations, the jury sent out two notes that Appellant claims are
relevant. The first of these notes asked: “May we meet with Mr. & Mrs. Vega to offer our
condolences after we the jury sentence Gustavo Tijerina Sandoval?”184 The second asked if two life
sentences would run concurrently or consecutively.185
b. Deficient Performance Not Shown
For a defendant to prevail on a claim of ineffective assistance of counsel, the record must
show that counsel’s performance was deficient and that the defendant was prejudiced.186 Direct
appeal is usually an inadequate vehicle for raising such a claim because the record is generally
undeveloped.187 Ordinarily, trial counsel should be afforded an opportunity to explain his conduct
before being denounced as ineffective.188 Absent such an opportunity, an appellate court should not
find deficient performance unless the challenged conduct was “so outrageous that no competent
184
The trial court responded that it was “not the time to respond to this question.”
185
The trial court responded that the question was a legal issue that the trial court would
decide.
186
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (citing Strickland v.
Washington, 466 U.S. 668 (1984)).
187
Id.
188
Id.
SANDOVAL — 72
attorney would have engaged in it.”189
Trial counsel has not been given an opportunity to respond to Appellant’s claim. Appellant
has argued that there is no conceivable sound trial strategy, but we disagree. Counsel could have
reasonably believed that the victim’s father being in favor of a death sentence would be no surprise
to the jury and decided that objecting would emphasize the issue. Counsel might have thought that
the “eye for an eye” statement was a good springboard for a Biblical plea for mercy. In closing
argument counsel responded to the “eye for an eye” statement by referring to Jesus’s statement to
“turn the other cheek.” There may be other reasons. We do not know why counsel did not object,
and this is not a situation where the failure to object would necessarily constitute deficient conduct.
Point of error twenty-five is overruled.
2. Extraneous-Offense Victim-Impact Evidence
In points of error twenty-six and twenty-seven, Appellant contends that the trial court erred
in admitting extraneous-offense victim-impact testimony. He contends that the admission of this
evidence violated the Eighth Amendment and due process. He complains about testimony from four
victims of the extraneous robberies about the impact of the incidents on their lives. He complains
about the following questions and responses:
Q. How did it make you feel going through that?
A. Mostly, very angry, scared for my family, and happy they didn’t do anything to us.
***
Q. How has your life changed as a result of this?
A. When that happened, I couldn’t sleep for two weeks. I would call the Sheriff’s
Department for any little noise that I would hear. We would sleep on the floor just
189
Id.
SANDOVAL — 73
thinking that they were out there.
***
Q. How did being robbed at gunpoint make you feel?
A. I got anxiety all the time after that. I wasn’t scared while it was happening, but
after it happened, I was, like, really scared for my friend, especially. And then I got
really nervous after that. Just the thought of it is crazy, you know what I mean? I
never thought that I would go through that. And it wasn’t a good feeling at all.
***
Q. What effects, if any, has it had in your lives from that point on?
A. Well, I always remember, and my chest burns out of anger that I wasn’t able to do
anything.
The record citations provided by Appellant reveal no objection to any of this testimony, and
Appellant does not claim in his brief that he preserved error. A party must timely object to preserve
error in admitting evidence.190 This rule applies to victim-impact evidence.191 Error has not been
preserved. Points of error twenty-six and twenty-seven are overruled.192
C. “Without Parole” and “Parole” Jury Instructions
190
TEX. R. EVID. 103(a)(1)(a); TEX. R. APP. P. 33.1(a)(1).
191
Mays, 318 S.W.3d at 391-92.
192
Appellant acknowledges that our decision in Roberts v. State, 220 S.W.3d 521 (Tex.
Crim. App. 2007), is contrary to his position. There, we differentiated between testimony about the
effect of a crime on the victim and testimony about the secondary effect of the crime on third persons
(e.g. the effect a victim’s death has on his family members). We held that “victim impact” evidence
“is evidence of the effect of an offense on people other than the victim.” Id. at 531. In Roberts, as
here, the victim of an extraneous offense testified about the effect on her of the crime against her.
It was not victim-impact testimony because she was the victim of the crime about which she
testified, and we indicated that her testimony was admissible. Id. Appellant claims that Roberts
should be overruled, but we have no occasion to address that claim because Appellant failed to
preserve error. And although the State did not raise preservation, it is a systemic requirement that
a first-level appellate court can (and before reversing must) address, regardless of whether the issue
is raised by the parties. Dixon v. State, 595 S.W.3d 216, 223 (Tex. Crim. App. 2020).
SANDOVAL — 74
In points of error one and two, Appellant contends that the trial court failed to clearly instruct
the jury on his parole ineligibility. He claims that this failure amounted to a violation of due process
and the Eighth Amendment’s prohibition against cruel and unusual punishments. He relies upon
Simmons v. South Carolina.193 He concedes that he did not raise his complaint at trial.
A plurality of the Supreme Court held in Simmons that, “where the defendant’s future
dangerousness is at issue, and state law prohibits the defendant’s release on parole,” the jury must
“be informed that the defendant is parole ineligible.”194 Appellant advances four arguments for why
he thinks the jury instructions failed to properly inform the jury of his parole ineligibility. First, he
contends that the trial court failed to instruct the jury on the meaning of a sentence of life without
parole as required by Article 37.071 § 2(e)(2)(B) of the Texas Code of Criminal Procedure. Second,
he contends that the jury instructions and the verdict form on the mitigation issue omitted the
language “without parole” and instead identified “life” as the alternative sentence to the death
penalty. Third, he contends that the trial court affirmatively instructed the jury on his eligibility for
parole and good conduct time on his sentence for attempted capital murder. Finally, he points to the
general instructions at the end of the jury charge that the jury should not consider the length of time
he would be required to serve on his sentence because such matters were the province of the parole
board and the Governor. Appellant also points to the jury note asking whether two life sentences
would be consecutive or concurrent to show that the jury was confused about what a life without
parole sentence meant in a capital murder case.
Part I of the jury charge said: “You are instructed that the punishment for Capital Murder is
193
512 U.S. 154 (1994) (plurality op.).
194
Id. at 156.
SANDOVAL — 75
either death or imprisonment in the Institutional Division of the Texas Department of Criminal
Justice for life without the possibility of parole.” This was a clear statement that the only possible
sentences for capital murder were death and life without parole.
The mitigation issue was worded in the punishment jury charge as follows:
Whether, taking into consideration all of the evidence, including the circumstances
of the offense, the defendant’s character and background, and the personal moral
culpability of the defendant, there is a sufficient mitigating circumstance or
circumstances to warrant that a sentence of life imprisonment rather than a death
sentence be imposed.
It is true that this statement of the mitigation issue omitted the required words “without parole” after
“life imprisonment.”195 But any ambiguity created by the wording of the mitigation issue was
clarified by an instruction that immediately followed:
You are instructed that if a jury answers that a circumstance or circumstances warrant
that a sentence of life imprisonment rather than a death sentence be imposed, the
Court will sentence the defendant to imprisonment in the Institutional Division of the
Texas Department of Criminal Justice for life without possibility of parole.196
A later instruction stated that life without parole was the consequence of an answer to either special
issue in the defendant’s favor:
If the jury returns a negative finding on either of Special Issues Number 1 or an
affirmative finding to Special Issue Number 2, the Court shall sentence the Defendant
to confinement in the Institutional Division of the Texas Department of Criminal
Justice for life without the possibility of parole.197
Appellant is correct that the jury charge omitted an instruction required by Article 37.071,
§ 2(e)(2)(B). That statute requires that the jury be instructed that “a defendant sentenced to
195
See Art. 37.071, § 2(e)(1).
196
Emphasis added.
197
Emphasis added.
SANDOVAL — 76
confinement for life without parole under this article is ineligible for release from the department on
parole.”198 Nevertheless, the jury charge included language in three places that the life sentence
would be without the possibility of parole, which indicates that TDCJ would not be permitted to
release the sentenced individual on parole.
Appellant is also correct that there were instructions on parole law in connection with the
attempted-capital-murder charge that indicated eligibility for good time and parole. Appellant
contends that these instructions were in error because he was not eligible for parole on the capital
murder charge. But he was eligible for parole on the attempted capital murder charge, and statute
mandated that the instruction be given for a noncapital offense.199 If the capital-murder conviction
were later overturned (and not reinstated), he would at some point be eligible for release on parole
on the attempted-capital-murder conviction.
Appellant is also correct that a noncapital parole-law instruction was mingled with general
instructions that applied to both the capital-murder and attempted-capital-murder offenses. The jury
charge did not clearly mark when the attempted-capital-murder instructions ended and the general
instructions began. Nevertheless, even if the placement of the instruction was somewhat confusing,
it did not change the fact that the jury was clearly instructed that, as to the capital-murder charge, a
sentence of life was “without the possibility of parole.”
This case is not like Simmons. In Simmons, the jury was not instructed that a life sentence
would be without parole.200 In the case before us, the jury was instructed that a life sentence would
198
Art. 37.071, § 2(e)(2)(B).
199
See Art. 37.07, § 4 (2013).
200
Simmons, 512 U.S. at 158-60.
SANDOVAL — 77
be without the possibility of parole. Appellant claims that Simmons was violated because the
instructions did not unambiguously convey that a life sentence for the capital murder charge would
be without parole. We disagree. In multiple places, the instructions explicitly stated that a life
sentence for capital murder is without parole.
Even if we thought the instruction contained ambiguity, when the claim is that an instruction
is ambiguous and subject to an interpretation that would violate the constitution, the proper inquiry
is whether there “is a reasonable likelihood that the jury has applied the challenged instruction in a
way” that violates the constitution.201 Jury instructions should be reviewed with “commonsense
understanding of the instructions in the light of all that has taken place at the trial,” and reviewing
courts should avoid “technical hairsplitting.”202 We should view the instructions in light of how the
jury as a whole likely perceived them rather than how a “single hypothetical ‘reasonable’ juror could
or might have interpreted the instruction.”203
As we have previously explained, the jury instructions said in three places that a life sentence
for capital murder was without the possibility of parole. In addition, every single person who
participated as a juror was told in individual voir dire that the only possible punishments for capital
murder were the death penalty and life without parole. Also, the TDCJ official who testified at the
punishment stage talked about the prison classification of inmates who were sentenced to life
without parole. And in closing arguments, defense counsel told the jury that it could sentence
201
Boyde v. California, 494 U.S. 370, 380 (1990).
202
Id. at 381.
203
Id. at 380.
SANDOVAL — 78
Appellant on the capital murder charge “to prison for the rest of his natural life.”204 Given the
entirety of the record, we conclude that there is not a reasonable likelihood that the jurors construed
the instructions in a manner inconsistent with the Simmons requirement that jurors be informed that
a life sentence for the capital-murder charge would be without parole.
Appellant contends that the third jury note asking about whether life sentences could be
stacked indicated that the jury did not understand that Appellant would never be released from prison
if sentenced to life on the capital murder charge. We disagree. Although it might seem odd to stack
a life sentence and a life-without-parole sentence, the only authority we are aware of that limits such
an occurrence is the statute preventing most offenses from being stacked if they arise from the same
criminal episode and are prosecuted in a single criminal action.205 That would prevent stacking in
this case, but it is understandable that the jurors would be unaware of the same-criminal-episode
statute. If the sentences could be stacked, doing so would have consequences if a life-without-parole
204
Appellant points out that one of the prosecutors argued that justice demands and the
evidence proves that Appellant “should spend the rest of his life paying for” shooting the victim’s
father and “should receive the death penalty for” the capital murder of the victim. He suggests that
the prosecutor’s argument muddied the distinction between a life sentence in a noncapital case and
a life without parole sentence in a capital case. We disagree. Saying that the defendant should “pay”
for the rest of his life is not necessarily the same as saying he will be in prison for the rest of his life.
A defendant on parole is still “paying for” his crime because he is under supervision. See TEX.
GOV’T CODE §§ 508.002 (“Neither parole nor mandatory supervision is a commutation of sentence
or any other form of clemency.”); 508.142 (c) (“The period of parole is computed by subtracting
from the term for which the inmate was sentenced the calendar time served on the sentence.”);
508.143(a) (“A releasee while on parole is in the legal custody of the division.”); 508.221 (“A parole
panel may impose as a condition of parole or mandatory supervision any condition that a court may
impose on a defendant placed on community supervision.”).
205
See TEX. PENAL CODE §3.03 (concurrent sentencing for offenses arising from same
criminal episode that are prosecuted in single criminal action; capital murder and attempted capital
murder not among exceptions). See also Art. 42.08(a) (trial court discretion to impose a sentence
concurrently or consecutively with a prior sentence).
SANDOVAL — 79
sentence were ever reformed or commuted to something less, such as life with parole. The jurors’
stacking question does not necessarily suggest that the jurors misunderstood the nature of a life
without parole sentence in a capital case. Points of error one and two are overruled.206
D. Closing Argument
In points of error twenty-three and twenty-four, Appellant contends that the prosecutor
impermissibly commented on his silence in violation of the Fifth Amendment.207 Appellant was
voluntarily absent during the punishment stage of trial. In his punishment-stage closing argument,
one of the prosecutors commented:
Ladies and gentlemen, the best predictor of future behavior is past behavior. Fact,
the defendant does not respect the law. Fact, the defendant does not respect human
life. Fact, the defendant does not respect these proceedings. Fact, the defendant does
not respect you. Is he here? Has he been here through these entire proceedings? Has
he sat and faced the punishment trial? Has he looked you in the eyes? Fact, the
defendant does not respect authority. Fact, the defendant does not respect your
206
If constitutional error in the jury charge were established, we would need to conduct a
harm analysis. The usual standard of harm for unobjected-to jury-charge error is the Almanza
egregious-harm standard, even when the error is constitutional. Jimenez v. State, 32 S.W.3d 233,
237-38 (Tex. Crim. App. 2000). Citing Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993),
Appellant contends that he did not forfeit a constitutional harm analysis because the error involves
range of punishment, a waivable-only right. But we have suggested that unobjected-to jury-charge
error relating to a waivable-only right is still evaluated under the Almanza framework, see Woodard
v. State, 322 S.W.3d 648, 657-58 (Tex. Crim. App. 2010) (applying egregious-harm standard to
unobjected-to jury-charge error that violates the grand-jury guarantee), and more specifically, that
unobjected-to range-of-punishment errors in the jury instructions are evaluated under the egregious-
harm standard. See Bell v. State, 635 S.W.3d 641, 646 (Tex. Crim. App. 2021) (error in omitting
element of enhancement provision subject to Almanza harm framework); Kucha v. State, 686 S.W.2d
154, 155 (Tex. Crim. App. 1985) (egregious-harm standard applied to unobjected-to failure of jury
charge to include range of punishment in the event an enhancement was found to be untrue). Having
found no constitutional violation, we need not address the issue of harm.
207
He also claims a violation of Article 38.08 of the Code of Criminal Procedure. Because
he does not claim that the statute provides different or more expansive protection than the Fifth
Amendment, we focus only on the constitutional claim. See supra at n.77.
SANDOVAL — 80
verdict.208
Defense counsel objected that the prosecutor was “making comments as to my client not testifying.”
The prosecutor responded that he was “not speaking about the defendant testifying, Judge. The fact
that the defendant is not here, is he’s not here.” The trial court then responded, “Let’s move along.”
Defense counsel stated, “Well, for the record, Your Honor, he has a legal right not to be here and it’s
improper to comment as to that.” The trial court responded, “That is correct. He has a legal right.”
Defense counsel then requested a mistrial, and the trial court denied that request.
In determining whether a prosecutor’s comment during closing argument was an
impermissible comment on the defendant’s failure to testify in violation the Fifth Amendment, we
must view the prosecutor’s argument from the jury’s standpoint and resolve any ambiguities in favor
of the argument being permissible.209 A prosecutor’s comment is not an impermissible comment on
the defendant’s failure to testify if the language in the comment could be reasonably construed as
merely an implied or indirect allusion to the failure to testify.210 A prosecutor’s comment is
considered a comment on the failure to testify only if the language was manifestly intended to be
such or was of a character that the jury would necessarily and naturally take it as such.211
The prosecutor’s comment was not a comment on Appellant’s failure to testify. It was a
comment on Appellant’s absence during the punishment-stage proceedings.212 A defendant could
208
Emphasis added.
209
Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim. App. 2011).
210
Id.
211
Id.
212
See Resnover v. Pearson, 965 F.2d 1453, 1465 (7th Cir. 1992) (“Similarly, the
prosecutor’s comments regarding Resnover’s refusal to be present in the courtroom during the
SANDOVAL — 81
be present and still not testify, or he could testify and be absent part of the time, so a comment on
a defendant’s absence from the proceedings is not itself a direct comment on the failure to testify.
Points of error twenty-three and twenty-four are overruled.
The judgment of the trial court is affirmed.
Delivered: December 7, 2022
Publish
penalty phase of the trial do not amount to error. Indeed, the excerpts are not comments on
Resnover’s refusal to testify. Instead, they refer to the fact that Resnover and Smith boycotted the
penalty phase of the trial. There was no constitutional violation. The prosecutor’s statements merely
pointed out that the defendants were absent from the courtroom; they did not comment on either
defendant’s exercise of his privilege against self-incrimination.”); cf. Wead v. State, 129 S.W.3d 126,
128, 130 (Tex. Crim. App. 2004) (comment on defendant’s outward demeanor in the courtroom not
a comment on the failure to testify).
Sandoval, Gustavo Tijerina
Combined Opinion