ACCEPTED
01-15-00279-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
11/25/2015 4:09:07 PM
CHRISTOPHER PRINE
CLERK
No. 01-15-00279-CR
In the FILED IN
Court of Appeals 1st COURT OF APPEALS
HOUSTON, TEXAS
For the 11/25/2015 4:09:07 PM
First District of Texas CHRISTOPHER A. PRINE
At Houston Clerk
♦
No. 1344346
In the 338th District Court
Of Harris County, Texas
♦
Joseph Facundo
Appellant
v.
The State of Texas
Appellee
♦
State’s Appellate Brief
♦
Clinton A. Morgan Devon Anderson
Assistant District Attorney District Attorney
Harris County, Texas Harris County, Texas
State Bar No. 24071454
morgan_clinton@dao.hctx.net Justin Wood
Julie Fletcher
1201 Franklin St., Suite 600 Assistant District Attorneys
Houston, Texas 77002 Harris County, Texas
Telephone: 713.274.5826
Oral Argument Not Requested
Statement Regarding Oral Argument
The appellant requested oral argument, though he gave no
particular reason why. The State believes the briefs in this case
adequately apprise this Court of the issues and the law, and any
marginal benefit from oral argument does not justify the considerable
amount of time that preparation for oral argument requires of the
parties and the Court. Therefore, the State does not request oral
argument.
i
Identification of the Parties
Counsel for the State:
Devon Anderson
District Attorney of Harris County
Justin Wood & Julie Fletcher
— Assistant District Attorneys at trial
Clinton A. Morgan
Assistant District Attorney on appeal
Appellant:
Joseph Juan Facundo
Counsel for the Appellant:
Alvin E. Nunnery & Brennen Paul Dunn
— Counsel at trial
Patrick McCann & Dawn Zell Wright
— Counsel on appeal
Trial Court:
Frank Price
Presiding judge
ii
Table of Contents
Statement Regarding Oral Argument ................................................. i
Identification of the Parties .............................................................. ii
Table of Contents ................................................................................ iii
Index of Authorities ............................................................................. v
Statement of the Case .......................................................................... 1
Statement of Facts ................................................................................ 1
Reply to Points One, Two, Three, and Four
The only preserved objection to the admission of the appellant’s jail
calls is his Fifth Amendment complaint. However, because the
appellant was not being interrogated by anyone associated with law
enforcement, the Fifth Amendment has no application here. ................... 3
I. Background ....................................................................................................... 3
A. The State’s Evidence and the Jail Calls .............................................. 3
B. The Appellant’s Trial Objections ......................................................... 8
II. The Appellant’s Points ............................................................................... 10
A. Reply to Point Four: The appellant’s objection, made the day
after the evidence was admitted, was untimely and preserved
nothing for review............................................................................................ 10
B. Reply to Point One: Statements made on a phone call to
family members are not custodial statements for Fifth
Amendment purposes. ................................................................................... 14
C. Reply to Points Two and Three: The appellant’s Sixth-
Amendment and “due process” complaints were not timely
presented to the trial court and thus present nothing for this
Court’s review. ................................................................................................... 15
iii
Reply to Points Five and Six
The appellant’s points make sense only if one presumes all Hispanic
people live in ethnically segregated communities. Asking a venire
member for his opinion on law enforcement “in your community
where you live” is not a race-based question. ............................................... 16
I. Factual Background: The Appellant’s Batson Challenges .......... 17
II. Legal Background: The Familiar Batson Framework ................... 18
III. Argument: The trial court was within its discretion to believe
the State’s facially race-neutral question was, in fact, a race-neutral
question. ................................................................................................................... 19
Reply to Point Seven
The alleged hearsay the appellant complains about is so insignificant
that it could not possibly have affected the trial. ......................................... 21
Conclusion .......................................................................................... 25
Certificate of Compliance and Service ........................................... 26
iv
Index of Authorities
Cases
Banargent v. State
228 S.W.3d 393 (Tex. App.—
Houston [14th Dist.] 2007, pet. ref'd) .............................................................. 14
Beall v. Ditmore
867 S.W.2d 791 (Tex. App.—
El Paso 1993, writ denied) ............................................................................. 12, 13
Castrejon v. State
428 S.W.3d 179 (Tex. App.—
Houston [1st Dist.] 2014, no pet.) ...................................................................... 11
Garcia v. State
126 S.W.3d 921 (Tex. Crim. App. 2004) ........................................................... 24
Gibson v. State
144 S.W.3d 530 (Tex. Crim. App. 2004) .................................................... 18, 21
Jasper v. State
61 S.W.3d 413 (Tex. Crim. App. 2001) .............................................................. 21
Johnson v. State
878 S.W.2d 164 (Tex. Crim. App. 1994) ........................................................... 11
King v. State
953 S.W.2d 266 (Tex. Crim. App. 1997) ........................................................... 22
Lagrone v. State
942 S.W.2d 602 (Tex. Crim. App. 1997) ........................................................... 13
Moyer v. State
948 S.W.2d 525 (Tex. App.—
Fort Worth 1997, pet. ref’d) ................................................................................. 24
Purkett v. Elem
514 U.S. 765 (1995) ................................................................................................. 18
Smith v. State
420 S.W.3d 207 (Tex. App.—
Houston [1st Dist.] 2013, pet. ref’d) ................................................................. 22
v
State v. Scheineman
77 S.W.3d 810 (Tex. Crim. App. 2002) .............................................................. 15
Union City Body Co., v. Ramirez
911 S.W.2d 196 (Tex. App.—
San Antonio 1995) (orig. proceeding) ............................................................. 12
Rules
TEX. R. EVID. 103............................................................................................................... 15
TEX. R. EVID. 803 .............................................................................................................. 23
vi
Statement of the Case
The appellant was indicted for capital murder committed during
the course of a robbery. (CR 7). The appellant pleaded not guilty, but a
jury found him guilty as charged. (CR 99, 101). As the State had not
sought the death penalty, the trial court assessed punishment at
confinement for life without the possibility of parole. (CR 101). The trial
court certified the appellant’s right of appeal and the appellant filed a
notice of appeal. (CR 100, 104).
Statement of Facts
The appellant used to go to a vacant house and get high with his
friends Amber Thornton and Tony Escobar. (4 RR 55, 62). One day, they
decided to rob and kill their drug dealer, Russell Lopez, so that they
could get more drugs. (4 RR 72). The appellant called Lopez and
arranged to go over to Lopez’s house and trade a laptop for $60 worth of
cocaine. (4 RR 74, 77). When they arrived, Lopez was sitting in the
dining room; his 7-month old daughter was in a high chair, and the
cocaine was on the table. (4 RR 77). The appellant took out a hammer
that he was carrying in his pocket and struck Lopez on the head. (4 RR
78). Lopez wobbled a bit, then the appellant struck him again. (4 RR 78-
1
79). Lopez fell down, and the appellant continued to strike him
repeatedly with both the face and claw of the hammer. 1 (4 RR 79).
Escobar went into the back of the house and tied up Lopez’s other two
children in their bedroom. (4 RR 79-80). The robbers then ransacked
the house, looking for valuables to steal. (4 RR 82).
At some point while looking for valuables, the appellant and
Escobar dragged Lopez — who seems to have still be alive — from the
kitchen into the bedroom. (4 RR 84). The appellant found a decorative
sword and stabbed Lopez several times, including in the throat. (4 RR
84-86; 5 RR 50-51). The robbers loaded up a safe and a couple of
thousand dollars’ worth of items into Lopez’s SUV. (4 RR 87). They
dropped off the stolen goods at the vacant house, and then they dumped
the SUV in a secluded location. (4 RR 87-88). Lopez’s wife returned
home shortly thereafter and discovered the gruesome scene. (3 RR 34-
36, 205-06).
1The medical examiner testified that Lopez suffered “at least 16” blunt force
impacts, and “approximately eight” instances of “sharp force trauma” that were
consistent with being struck with the claw of a hammer. (5 RR 41-42, 48).
2
Reply to Points One, Two, Three, and Four
The only preserved objection to the admission of the appellant’s
jail calls is his Fifth Amendment complaint. However, because the
appellant was not being interrogated by anyone associated with
law enforcement, the Fifth Amendment has no application here.
The appellant’s first four points all relate to the admission of
recorded phone calls he made while he was in jail.
I. Background
A. The State’s Evidence and the Jail Calls
The State presented a fair amount of straight-forward evidence of
the appellant’s guilt. Thornton testified to the all of the events
surrounding the robbery and identified the appellant as the killer. (4 RR
74-88). Lopez’s young son, C.L., identified the appellant as one of the
robbers. (5 RR 142). And a jailhouse informant testified that the
appellant had confessed to the murder, and that the appellant’s
nickname in jail was “Hammer.” (5 RR 81-85).
The State also admitted evidence regarding the appellant’s actions
in the days after the murder. David Tillman testified that around that
time the appellant came to his house and asked if he knew of a chop
shop where he could get rid of a truck. (4 RR 177-78). Witnesses
testified that after the appellant became a suspect in the police
3
investigation, he attempted to flee to Mexico but was arrested in Laredo.
(4 RR 99-100; 5 RR 80).
While the appellant was in the Webb County jail, he made several
phone calls that were recorded. State’s Exhibit 111 is a CD containing
audio file recordings of four of these phone calls. Because the file names
on the exhibit are cumbersome and not helpfully descriptive, the State
will assign numbers to the calls. Nothing in the record indicates what
order these calls occurred in, but based on the content the State’s
appellate counsel would guess it is this order:
1. “JOSEPH FACUNDO DOB 11-17-1993.mp3” (6 minutes, 14
seconds)
2. “JOSEPH FACUNDO DOB 11-17-1993 2.mp3” (5 minutes, 43
seconds)
3. “13253675488328592674.wav” (11 minutes, 28 seconds)
4. “13254591348327662174.wav” (3 minutes, 4 seconds)
Phone call 1 is between the appellant and his mother. He starts off
by proclaiming his innocence and saying that she needs to believe he is
innocent. She asks if he did not do it, who did: “Because I know you
know.” He reiterates his innocence and then asks her to get him a lawyer.
She is surprised to learn that he is presently in jail, so she asks for
4
details about that. He says that he is in Laredo. He then asks her whether
she has gotten him a lawyer yet, and she details her efforts. The
appellant then begins proclaiming his innocence, stating that he has
people who will testify that he was “at the bayou” at the time of the
murder, which will prove that he is innocent. She replies that he needs to
wait until he has a lawyer and then tell “the detectives” about his alibi.
The appellant begins crying, telling her that he is innocent and he wants
to see her. His mother gets angry and tells him that he is going to have to
start with a court-appointed lawyer before she can hire one for him. The
appellant then detailed his arrest, and relayed the little bit of
information he had been provided by the authorities in Webb County.
His mother tells him that he needs to request a court-appointed lawyer
so that he can then provide the police with his alibi. The appellant states
that his alibi is that he and Escobar were at the bayou “with another
friend of ours.” The appellant says that he is working on finding out that
other person’s name. His mother replies that she knows that the
appellant “knows something” about the murder. She also tells him not to
talk to the police without his lawyer present.
Phone call 2 is between the appellant and Roy. The appellant tells
Roy that he needs Roy to get someone’s phone number, but he does not
5
know the name of the person. The appellant tells Roy that this unnamed
person was his alibi. The appellant says that, while he does not know the
person’s name, he knows him as “Blinky.” Roy says that he knows of
Blinky. Roy asks the appellant how he knows that Blinky will provide
him with an alibi, and the appellant says he knows because he talked
with Blinky about the matter before getting arrested. The appellant then
changed the topic and told Roy to pressure the appellant’s mother to get
him a lawyer. Roy— who the appellant calls “dad” at times on this call —
asks the appellant about his failed effort to escape to Mexico, and the
appellant explains that he was unable to cross the border because he
was “set up.” Roy then returns to talking about getting a lawyer for the
appellant. The appellant reiterates that he is innocent and has an alibi.
Roy says that he would need to explain that to the lawyer, and the
appellant entreats Roy to help his mother find a lawyer for him. Roy says
that he will “see what [he] can do.”
Phone call 3 is the appellant calling his mother. The conversation
begins at the 1:39 mark. The call begins with the appellant’s mother
telling him that these phone calls are expensive. The appellant asks if
she has hired a lawyer for him yet, and she says she has not. She advises
him to watch what he says because the calls are recorded. They discuss
6
the logistics of a relative visiting him, and then they turn the topic back
to the family hiring a lawyer for him. His mother gets upset at him and
demands that he “have patience with us” in his demands for a lawyer.
She advises him that if he’s innocent, he “better start praying,” after
which he insists that he is innocent and claims that the only evidence
against him was “that white girl” who said he was with her at the
murder, but he was not there. The appellant’s mother cautioned him
against talking about the case on the phone; the appellant responded by
claiming that police had not found his fingerprints at the scene. The
discussion turned back toward acquiring a lawyer for him. The appellant
said that Escobar had a lawyer, so he gave his mother information on
how to find out how to contact Escobar’s lawyer. The appellant’s mother
told the appellant that when he got a lawyer he needed to tell the lawyer
everything, and not try to protect others or cover up information. After
that, the conversation turned to mundane details of life from the
appellant’s mother. The call concludes with the appellant telling her he
loves her, and then pleading for help.
Phone call 4 is the appellant calling a male whose name is
inaudible. The conversation on call 4 begins at the 1:33 mark and lasts
7
less than half a minute. In this call, the appellant asks the other person
to “give Blinky’s number” to Roy.
At trial, the State also presented evidence that in the days after the
murder the appellant pressured Jimmy Whalen, aka Blinky, to lie and
state that he was the appellant’s alibi. (5 RR 17).
B. The Appellant’s Trial Objections
When the State offered the jail calls into evidence, the appellant
made numerous objections. First, defense counsel objected to “the
predicate,” claiming that no one had identified who the voices on the
recording were and “whether the person operating this equipment was
capable of doing it.” (4 RR 32). Then, defense counsel claimed that
recording inmates’ jail calls was “tantamount to a wire tap,” and, as there
was no authority for a wire tap, the recordings were illegally obtained
evidence that should be excluded. (4 RR 33). The trial court overruled
these objections. (4 RR 33).
Defense counsel then objected based on “the violation of the Fifth
Amendment.” (4 RR 34). The only explanation defense counsel offered of
this argument was that “[h]e’s in custody at that point.” (4 RR 34). A
prosecutor responded that the appellant “is not subject to counsel on
8
the phone. He has no right to privacy to that conversation in jail, and the
State would assert there’s no Fifth Amendment violation.” (4 RR 34-35).
The trial court overruled the objection and stated that State’s 111 was
admitted into evidence. (4 RR 35). The State, however, asked to play the
recordings “at a later time,” and the trial court said that would be fine. (4
RR 35).
The next day, defense counsel stated that he had additional
objections prior to the recordings being published to the jury. (5 RR 3).
I would object to those portion of those conversations
between my client and family members that deal with
specifically his parents’ efforts at retaining counsel on his
behalf, his admonitions or warnings from his mother about
not talking to law enforcement and everything pertaining to
that subject matter of representation and counsel and his
need not to talk to anyone, his need to immediately invoke
his rights to counsel, and that whole line of conversation as
being irrelevant. And since these are post arrest statements,
a jury could hear that to potentially infer comments on his
post-arrest right to silence. It is tantamount to an implicit
suggestion perhaps of his guilt, and I just think it’s
irrelevant, inflammatory, and prejudicial.
(5 RR 3).
The trial court overruled the objection. (5 RR 3). A prosecutor
then asked to “put something on the record,” and noted that the exhibit
was already in evidence and the objection was untimely. (5 RR 3-4). The
prosecutor addressed the merits of the appellant’s objection by noting
9
that none of the phone calls did involved law enforcement officers, thus
the Fifth and Sixth Amendments were not implicated. (5 RR 4-5). The
trial court replied by noting that the objection was overruled as “not
timely.” (5 RR 5).
II. The Appellant’s Points
Because of the disjointed manner in which the appellant’s
arguments were presented to the trial court, the threshold question
regarding the appellant’s first three points is what arguments, exactly,
were preserved. This is the matter addressed in his fourth point, which
asserts that the trial court erred in overruling his second objection,
made the day after the evidence was admitted, as untimely. The State
will address the appellant’s fourth point first.
A. Reply to Point Four: The appellant’s objection, made
the day after the evidence was admitted, was
untimely and preserved nothing for review.
In his fourth point of error, the appellant asserts that the trial
court erred by overruling his second objection as untimely. (See
Appellant’s Brief at 27-29). The normal rule is that an objection must be
raised as soon as the basis for objection becomes apparent, or else the
matter is forfeited. Johnson v. State, 878 S.W.2d 164, 167 (Tex. Crim. App.
10
1994). The appellant argues that this rule should not apply here because
his objection, though made well after the basis for the objection was
apparent, still occurred before the evidence was published to the jury.
This Court faced an almost identical situation in Castrejon v. State,
428 S.W.3d 179 (Tex. App.—Houston [1st Dist.] 2014, no pet.). There,
the State offered into evidence an audio recording and, over one
objection, the trial court admitted it into evidence. Castrejon, 428 S.W.3d
at 182-83. However, the State did not play the audio recording until
closing argument, at which time the defendant raise a second, separate
objection. Id. at 183. This Court held that, even though the second
objection was made prior to the audio recording being published to the
jury, the objection was untimely and presented nothing for review on
appeal. Id. at 186.
The State believes that Castrejon controls here. The appellant’s
second objection, though made prior to publication of the audio
recordings, was made well after the recordings were admitted into
evidence. Therefore that objection was untimely and preserved nothing
for review.
The only authority cited by the appellant to show that his second
objection was still timely is dicta from a 20-year-old civil case from the
11
Fourth Court of Appeals. (See Appellant’s Brief at 28). Upon closer
analysis, though, this case does not actually help the appellant.
The appellant quotes Union City Body Co., v. Ramirez, 911 S.W.2d
196 (Tex. App.—San Antonio 1995) (orig. proceeding). This case
involved multiple defendants. One of them moved for severance. The
trial court granted the severance, but the next day another defendant,
the Union City Body Company, objected to the severance. The trial court
held the objection to severance was untimely, and a mandamus action
ensued. In discussing the timeliness of the trial objection, the Union City
Body Co. court used the sentence that the appellant quotes in his brief:
‘Timeliness’ defies definition and generally the question of what is
timely or otherwise must be left to the sound discretion of the trial
judge, but such objection need not be immediate.” 911 S.W.2d at 201
(quoting Beall v. Ditmore, 867 S.W.2d 791, 795 (Tex. App.—El Paso 1993,
writ denied)). The Fourth Court then went on to hold that the trial court
was within its discretion to reject the objection as untimely. Id. at 202-
203. Thus, if the rule of Union City Body Co. is that a trial court has
discretion in determining whether a non-contemporaneous objection is
timely, that would weigh in favor of upholding the trial court’s
12
determination, in this case, that the appellant’s non-contemporaneous
objection was untimely.
The dicta in Union City Body Co. was a quote from another civil
case, this one from the Eight Court of Appeals. In Beall, the defendant’s
attorney seems to have accidentally elicited inadmissible evidence on
cross-examination, but then asked another, unrelated question and only
objected after this subsequent question was answered. Beall, 867 S.W.2d
at 793. The trial court seems to have treated the objection as timely
enough and ruled on it. On appeal, the Eighth Court rejected the
appellee’s preservation argument and held that, even though the
objection was not contemporaneous it was “timely” enough. Id. at 795.
The Eighth Court then rejected the appellant’s claim on the merits. Id. at
796.
Whatever the merits of the holding in Beall at the time and in the
context of when it was decided, modern Texas criminal law applies a
much stricter preservation requirement. See, e.g., Lagrone v. State, 942
S.W.2d 602, 618 (Tex. Crim. App. 1997) (where defense counsel did not
object until after objectionable question was answered, objection was
untimely and preserved nothing for review).
13
The appellant’s second objection was untimely, and none of the
arguments made in that objection are preserved for appeal. This Court
should reject the appellant’s fourth point (challenging the overruling of
his second objection), and in dealing with the appellant’s first three
points this Court should restrict itself to considering the matters
preserved in the appellant’s first, timely objection.
B. Reply to Point One: Statements made on a phone call
to family members are not custodial statements for
Fifth Amendment purposes.
In his first point, the appellant claims that the statements he made
on the phone calls were custodial statements, and thus they were
inadmissible because he was not mirandized. (Appellant’s Brief at 25;
see 4 RR 34-35). However, the Fifth Amendment right to counsel applies
only during interrogations with law enforcement agents; the appellant
was placing phone calls to family members who seem to have had no
connection with law enforcement, thus the Fifth Amendment has no
application. See Banargent v. State, 228 S.W.3d 393, 402 (Tex. App.—
Houston [14th Dist.] 2007, pet. ref’d) (recordings of phone calls made
by defendant from prison were not the product of custodial
interrogation); State v. Scheineman, 77 S.W.3d 810, 813 (Tex. Crim. App.
14
2002) (no custodial interrogation occurred when incarcerated
defendant spoke in bugged jail room with incarcerated co-defendant).
Because the objected-to statements were not the product of custodial
interrogation, this Court should overrule the appellant’s first point.
C. Reply to Points Two and Three: The appellant’s Sixth-
Amendment and “due process” complaints were not
timely presented to the trial court and thus present
nothing for this Court’s review.
In his second point of error, the appellant claims that recording
the phone calls violated his Sixth Amendment right to counsel.
(Appellant’s Brief at 23-24, 26). However, the only time the appellant
mentioned the Sixth Amendment at trial was during his second,
untimely objection to the evidence. (See 4 RR 32-35; 5 RR 3-5). Because
this argument was not presented to the trial court in a timely manner, it
cannot be the basis of reversal on appeal. TEX. R. EVID. 103(a).
In his third point, the appellant claims that recording his phone
calls violated “due process.” (Appellant’s Brief at 24-25, 27). This
argument was never presented to the trial court and thus presents
nothing for this court’s review.
15
Reply to Points Five and Six
The appellant’s points make sense only if one presumes all
Hispanic people live in ethnically segregated communities. Asking
a venire member for his opinion on law enforcement “in your
community where you live” is not a race-based question.
In his fifth and sixth points of error, the appellant complains about
the trial court’s denial of a Batson challenge he raised during voir dire.
The appellant separates this argument into two different points. In his
sixth point, the appellant claims that the State violated the ban on
striking jurors based on race announced in Batson v. Kentucky, 476 U.S.
79 (1986). (Appellant’s Brief at 35-37). In his fifth point, the appellant
argues that the State violated the Texas statutory ban on striking jurors
based on race contained in Code of Criminal Procedure Article 35.261.
(Appellant’s Brief at 34-37). But Article 35.261 is simply a state
codification of Batson. The State is not aware of any way in which
appellate review of these claims differs, and the appellant does not point
out any such distinctions in his brief. The State will brief this matter as a
Batson challenge, as that is the more regularly cited authority.
16
I. Factual Background: The Appellant’s Batson
Challenges
After the parties had made their strikes but before the jury was
sworn, defense counsel objected because the State had used two of its
peremptory strikes on venire members 26 and 34, who were Hispanic.
(2 RR 196-97). According to defense counsel, there were three Hispanic
members of the venire after the court had excused those who were
challengeable for cause, meaning the State had struck “66% or two-
thirds of the Hispanics on this panel.” (2 RR 197).
The trial court asked the State to explain why it had struck venire
members 26 and 34. (2 RR 197). The State explained that it had struck
venire member 26 because when a prosecutor asked him to rate, on a 1-
to-4 scale, his view of law enforcement, venire member 26 had selected
2. (2 RR 198, see 2 RR 81, 83). The State pointed out that it had struck
everyone who answered 2 to that question. (2 RR 198). The State also
said that venire member 26 had said he suffered from arthritis and
believed he would have a hard time focusing on the case because of the
pain. (2 RR 198).
Regarding venire member 34, the State explained that he, too, had
answered “2” on the law-enforcement question. (2 RR 198-99, see 2 RR
17
81, 84). In addition, the State pointed out that venire member 34 had
said he did not believe the State should prosecute capital murder cases.
(2 RR 199, see 2 RR 74, 77). The State also pointed out that venire
member 34 had said he did not find jailhouse informants credible. (2 RR
198, see 2 RR 65, 68). The trial court overruled the appellant’s Batson
challenge. (2 RR 199).
II. Legal Background: The Familiar Batson Framework
The three steps of a Batson hearing are well-known. First, the
opponent of a peremptory strike must make out a prima facie case of
racial discrimination. Second, the burden of production shifts to the
proponent of the strike to come forward with a race-neutral
explanation. Third, the trial court determines whether the opponent of
the strike has proved purposeful racial discrimination. The burden of
persuasion rests with, and never shifts from, the opponent of the strike.
Purkett v. Elem, 514 U.S. 765, 767 (1995).
The determination of whether the proponent's explanation is a
pretext “is solely a question of fact; there is no issue of law.” Gibson v.
State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004). Because the trial
court's fact finding will be based on factors not evident in the record,
18
such as the lawyers' courtroom demeanor and credibility, a reviewing
court will give great deference to the fact finding and reverse only if the
finding was clearly erroneous. Ibid.
III. Argument: The trial court was within its discretion to
believe the State’s facially race-neutral question was, in
fact, a race-neutral question.
The appellant does not dispute that the State, as it claimed,
actually struck all the remaining venire members who answered “2” to
the question regarding law enforcement. (Appellant’s Brief at 32).
Instead, the appellant claims that the question itself was a method of
racial discrimination because it inquired into the venire members’
opinion of law enforcement “in your community where you live”:
Since it is not uncommon for people of similar race,
nationalities, cultures and/or backgrounds to live in the
same area and share similar opinions, including opinions
about law enforcement, the answer solicited resulted in the
same outcome as if the State would have asked, “In you
Hispanic neighborhood, what is your opinion of law
enforcement.”
(Appellant’s Brief at 36) (footnote omitted).
There are several possible ways to address this assertion. The first
is to point out that it makes sense only if one assumes that all Hispanic
19
people live in ethnically segregated communities. That assumption is
incorrect 2 and without basis in the record.
Another possible response to the appellant’s assertion is that,
even if true, it would not show racial discrimination. Defense counsel
identified venire member 38 as the other Hispanic venire member. (2 RR
197). He answered “3” on the question about law enforcement and the
State did not strike him.3 (See 2 RR 81, 84). Accepting the appellant’s
assumption that all Hispanic people live in ethnically segregated
communities, the State’s failure to strike venire member 38 shows that
the State was willing to accept people who lived in Hispanic
communities where people had a more positive view of law
enforcement. This would prove that the State struck venire members 26
and 34 based on their view of law enforcement and not on the fact that
they lived in Hispanic communities.
The simplest and most basic response to the appellant’s assertion
is that the State provided a race-neutral explanation for its strikes, that
2See https://upload.wikimedia.org/wikipedia/commons/8/8a/Race_and_ethnicity_
2010-_Houston.png (map, based on 2010 Census data, showing racial makeup of
Houston).
3The State did not use all its strike, thus the prosecutors could have struck venire
member 38 if they had intended to strike all Hispanic people from the jury. (See 2 RR
197).
20
explanation is supported by the record, and the trial court observed the
demeanor of the prosecutors and believed the race-neutral explanation.
In such a situation, this Court must defer to the trial court’s finding and
overrule the appellant’s points. See, e.g., Jasper v. State, 61 S.W.3d 413,
422 (Tex. Crim. App. 2001); Gibson, 114 S.W.3d at 534.
Reply to Point Seven
The alleged hearsay the appellant complains about is so
insignificant that it could not possibly have affected the trial.
State’s Exhibit 3 is the report created by the paramedic who
responded to the scene and found Lopez dead. (3 RR 54-57). The author
of the report testified at trial. (3 RR 54). The State proffered it as a
business record, exempt from the hearsay rule. (3 RR 55). When it was
offered into evidence, the appellant objected that the narrative portion
of the report contained hearsay within hearsay. (3 RR 55-56). The trial
court overruled that objection. (3 RR 56). In his seventh point the
appellant asserts that the trial court erred. (Appellant’s Brief at 37-40).
The narrative portion of the report reads:
Upon arrival PT presented supine in bedroom of home. PT
was covered in blood, Pulse less and Apneic. PT was cold
and cyanotic with lividity. PT had sword laying across his
left chest and left arm. PT had brain matter and skull
21
fragments beside his body. PT had laceration to right chest
and throat. PT had penetrating trauma to right cheek
esposing bone and tissue. 6 second strip performed
showing Astyote. PT pronounced DOS due to unknown
downtime and injuries incompatible with life. House had
blood splatter on ceiling of bedroom just above the body as
well as in living room and kitchen. Kitchen pantry had
copious amounts of coagulated blood on floor. House
appeared to be ran sacked as TV in bedroom was upside
down on floor. Drawers in living room and bedroom were
overturned. TV in living room was missing. PT family was
taken to back bedroom awaiting SO arrival. Upon arrival of
SO report given to officer. Assistant chief and Medic 41
remained on scene to give report to homicide detective.
(State’s Ex. 3).
Error in the admission of evidence is non-constitutional error
subject to harm analysis under Rule of Appellate Procedure 44.2(b).
Smith v. State, 420 S.W.3d 207, 219 (Tex. App.—Houston [1st Dist.] 2013,
pet. ref’d). Under this standard, appellate courts must disregard any
error that did not affect the defendant’s substantial rights. Ibid. A
substantial right is affected when the error had a substantial and
injurious effector influence in determining the jury’s verdict. Ibid.
(quoting King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)). This
Court should affirm the conviction if, after reviewing the record, it has
fair assurance that the error did not influence the jury, or had but a
slight effect. Ibid.
22
Assuming, without conceding, that this was inadmissible hearsay,
the State notes that the appellant offers no explanation of how the
admission of the narrative paragraph harmed him. (See Appellant’s Brief
at 37-40). There was no dispute at trial over the fact that Lopez was
killed, or over the manner in which he was killed. The narrative
paragraph contains nothing that makes it more or less likely that the
appellant was involved with the murder. The only information in this
paragraph that was not admitted, without objection, through other
witnesses are a couple of minor medical details (e.g. “6 second strip
performed showing Astyote”) that had no bearing on any issue at trial.
This Court should reject the appellant’s seventh point because the
evidence of which he complained could not possibly have influenced the
jury.
On the merits, though, this paragraph is not even inadmissible
hearsay. All it contains is the observations of the paramedic who made
the record, and this is plainly what is allowed under the business-
records exception to the hearsay rule. See TEX. R. EVID. 803(6); Moyer v.
State, 948 S.W.2d 525, 528 (Tex. App.—Fort Worth 1997, pet. ref’d)
(paramedic’s report of observations admissible as business record). Had
the report contained information that someone else told the paramedic,
23
that would have been inadmissible hearsay within hearsay. See, e.g.,
Garcia v. State, 126 S.W.3d 921, 926 (Tex. Crim. App. 2004). There is no
indication that is the case here, however. The only example of supposed
hearsay-within-hearsay that the appellants specified in his objection
was the paramedic’s observation that a television was missing.
According to the appellant, “[s]omeone had to have told her” that there
had been a television at the house in order for the paramedic to infer
that a television was missing. But nothing in State’s Exhibit 3 or the
paramedic’s testimony implies that someone told her a television was
missing. According to another witness, there was a place in the living
room where “it appeared to have had at some time a television in that
location. There were cables coming out that … would have been going
into a television.” (3 RR 149 (describing crime scene photo, State’s
Exhibit 14, that is very difficult to make out in the appellate record)).
Anyone familiar with a typical home could observe a blank spot on the
wall or cabinet with wires going to it and conclude that a television was
missing.
This Court should reject the appellant’s seventh point. The
evidence he complains of was not hearsay, and even if it was it was so
insignificant that its admission does not warrant reversal.
24
Conclusion
The State respectfully submits that all things are regular and the
judgment of the trial court should be affirmed.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ C.A. Morgan
CLINTON A. MORGAN
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
713.274.5826
Texas Bar No. 24071454
25
Certificate of Compliance and Service
I certify that, according to Microsoft Word’s word counting
function, the portion of this brief for which Rule of Appellate Procedure
9.4(i)(1) requires a word count contains 5,132 words.
I also certify that I have requested that efile.txcourts.gov
electronically serve a copy of this brief to:
Patrick McCann
writlawyer@justice.com
Dawn Zell Wright
zellwright@zwlaw.us
/s/ C.A. Morgan
CLINTON A. MORGAN
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002-1923
713.274.5826
Texas Bar No. 24071454
Date: November 25, 2015
26