Alicia Esquivel Delgado v. State

ACCEPTED
13-15-00004-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
9/11/2015 4:02:51 PM
Dorian E. Ramirez
CLERK

Cause No. 13-15-00004-CR

IN THE COURT OF APPEALS FILED IN
13th COURT OF APPEALS
FOR THE THIRTEENTH SUPREME JUDICIAL DISTRICT
CORPUS CHRISTI/EDINBURG, TEXAS
AT CORPUS CHRISTI-EDINBURG, TEXAS
9/11/2015 4:02:51 PM
DORIAN E. RAMIREZ
Clerk
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ALICIA DELGADO, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
----------------------------------------------------------------------------------------------------

APPEAL OF TRIAL COURT CAUSE NO. CR-3545-13-C
FROM THE 139TH DISTRICT COURT
HIDALGO COUNTY, TEXAS
The Honorable Roberto ‘Bobby’ Flores, Presiding
----------------------------------------------------------------------------------------------------

FIRST AMENDED BRIEF OF THE STATE OF TEXAS/APPELLEE

----------------------------------------------------------------------------------------------------
Ricardo Rodriguez, Jr.
Criminal District Attorney
Hidalgo County, Texas

Glenn W. Devino
State Bar No. 24012525
Lead Counsel for Appellee

Office of the Criminal District Attorney
100 N. Closner Blvd.
Edinburg TX 78539
Telephone 956-318-2300
Facsimile 956-380-0407
glenn.devino@da.co.hidalgo.tx.us

FOR THE STATE OF TEXAS, APPELLEE
IDENTIFICATION OF PARTIES AND COUNSEL

Appellee certifies that the following is a complete list of the parties, attorneys, and all
other interested persons regarding this matter:

1.) The Appellant is:
Alicia Delgado

2.) Appellant was represented in the trial court by:
Carlos A. Garcia, Esq. 1305 E. Griffin Parkway, Mission TX 78572
Johnathan Ball, Esq. 6521 N. Tenth St., suite F, McAllen TX 78504

3.) Appellant is represented on appeal by:
Johnathan Ball, Esq. 6521 N. Tenth St., suite F, McAllen TX 78504

4.) The Appellee is:
The State of Texas
by and through Ricardo Rodriguez, Jr., Hidalgo County Criminal District Attorney

5.) Appellee was represented in the trial court by:
Rene Guerra, Hidalgo County Criminal District Attorney1
100 N. Closner, 3rd floor, Edinburg TX 78539
by his Assistant Criminal District Attorneys Magdalena Hinojosa, Graciela Reyna and
Orlando Esquivel

6.) Appellee is represented on appeal by:
Ricardo Rodriguez, Jr., Hidalgo County Criminal District Attorney
100 N. Closner, 3rd floor, Edinburg TX 78539
by his Assistant Criminal District Attorney Glenn W. Devino

1
The term of office of Rene Guerra ended December 31, 2014.

2
NOTE AS TO THE FORM OF CITATION

A.) Citation to the Clerk’s Record will be to page number, e.g. CR47 refers to Page
47 of the Clerk’s Record. Citation to the Supplemental Clerk’s Record will be to
page number, e.g. SCR5 refers to Page 5 of the Supplemental Clerk’s Record.

B.) Citation to testimony in the Reporter’s Record will be to volume and page
number, e.g. 3RR56 refers to page 56 of volume 3 of the Reporter’s Record.

C.) Citations to exhibits will be to volume and, e.g. 25RR State’s Exhibit 1 refers
to State’s Exhibit 1 within volume 25 of the Reporter’s Record.

3
TABLE OF CONTENTS
Title Page…………………………………………………………………………...1

Identification of Parties and Counsel……………………………………………….2

Note as to the Form of Citation……………………………………..……………...3

Table of Contents…………………………………………………………………...4

Index of Authorities………………………………………………………………...5

Statement of the Case………………………………………………………………7

Issues Presented………………………………………………………………….....8

Statement of Facts……………………………………………………………….....9

Summary of Arguments……………………………………………………….......28

Note as to Oral Argument…………………………………………………………29
Arguments and Authorities………………………………………………………..30

Issue One: Appellant is not entitled to reversal on her claims of error in the

admission of challenged evidence …..…………………………………...30

Conclusion………………………………………………………………………...47

Prayer……………………………………………………………………………...47
Certificate of Compliance…………………………………………………………48

Certificate of Service……………………………………………………………...48

4
INDEX OF AUTHORITIES
Cases
Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010, cert denied)…32, 35,

………………………………………………………..36, 38, 40, 41, 42, 43

Davis v. State, 329 S.W.3d 798 (Tex. Crim. App. 2010)…………………………30

De La Torre Olivares v. State, 1997 Tex. App. Lexis 3062 (Tex. App.—Corpus

Christi 1997, no pet.)(memorandum opinion—not designated

for publication)…………………………………………………………...35

Gallo v. State, 239 S.W.3d 757 (Tex. Crim. App. 2007, cert. denied)…………...47

Greene v. State, 287 S.W.3d 277 (Tex. App.--Eastland. 2009, pet. ref’d)………..44

Hodge v. State, 940 S.W.2d 316 (Tex. App.—Eastland 1997, pet. ref’d)………..45

Johnson v. State,967 S.W.2d 410 (Tex. Crim. App. 1998).31, 36, 38, 40, 41, 42, 43

Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002)…….36, 38, 40, 41, 42, 43

Pondexter v. State, 942 S.W.2d 577 (Tex. Crim. App. 1996, cert. denied)………43

Saenz v. State, 2009 Tex. App. Lexis 2254 (Tex. App.—Corpus Christi 2009, no

pet.)……………………………………………………………………….46

Smith v. State, 5 S.W.3d 673 (Tex. Crim. App. 1999)…. …………………..31fn23

Smith v. State, 2014 Tex. App. Lexis 13705 (Tex. App.—San Antonio 2014, no

pet.)(memorandum opinion—not designated for publication)…………...46

Trevino v. State, 228 S.W.3d 729 (Tex. App.—Corpus Christi 2006, pet. ref’d)...30

Wyatt v. State, 23 S.W.3d 18 (Tex. Crim. App’. 2000, cert. denied)…………….44

5
Statutes
Tex. Code Crim. P. Art. 38.36…………………….30, 33, 34, 35, 36, 37, 39, 40, 41

Rules
Tex. R. App. P. 44.2………………………………………31, 36, 38, 40, 41, 42, 43

Tex. R. Evid. 401……………………………………………………………...31, 46

Tex. R. Evid. 403…………………………………………………….31, 31fn23, 46

Tex. R. Evid. 404………………………………………………………31fn23, 46

6
STATEMENT OF THE CASE

Appellant was charged by Indictment with the offense of Murder, in an

Indictment alleging three distinct manners and means. CR7. The jury rendered

verdict of guilt as to Manslaughter as a lesser offense. CR159, 12RR12-13.

Appellant initially elected to have punishment fixed by the jury in the event

of conviction; however, with the consent of the State, Appellant changed her

election. The trial court imposed sentence of ten years’ imprisonment. CR53;

CR116; CR226; 13RR80.

Appellant did not file a motion for new trial. Appellant timely filed Notice

of Appeal. CR231.

Pertinent to issues on appeal are the following pleadings of the defense:

Defendant’s Request for Notice of State’s Intention to Introduce Evidence of

Other Crimes, Wrongs or Acts Pursuant to Texas Rules of Evidence 404(b). CR30.

Defendant’s Motion to Exclude Any Suggestion, Questioning and/or

Argument by the State that Defendant Failed to Call the Police and/or Call for

Medical Assistance for the Deceased After the Fight Between the Defendant and

the Deceased Occurred. CR90.

Defendant’s Motion to Exclude Testimony of Zulema Rose Delgado, Diana

Vasquez, Ruby Lee Olguin. CR118.

The trial court did not render any written order on any of the referenced motions.

7
ISSUES PRESENTED

Issue One:

Appellant is not entitled to reversal on her claims of error in the admission of

challenged evidence.

8
STATEMENT OF FACTS2

A. Adjudicative facts3

Officers were dispatched to the home of Appellant’s father in response to an

‘assault’ report. 10RR46-47. The home appeared as if a struggle had taken place

in multiple rooms. 10RR54; 169, 231-232; State’s Exhibit 154. Upon initial contact

with officers, “She (Appellant) told me that she had been assaulted by her father

(the decedent). Her father had been drinking and he approached her while she was

in the kitchen.” 10RR48. Appellant also told the officer that “[s]he went out

through the back door, she started yelling for aid. Then she went back in and

closed the door behind her.” 10RR55. Appellant had bruises on her face, which

appeared to be fresh. 10RR48. Appellant advised the initial officer that she did not

wish to pursue criminal charges. 10RR51.

The victim, Rudy Delgado, who was Appellant’s father, was alive upon the

officer’s arrival. 10RR49. He was found lying on a bedroom floor, wearing only a

2
Physical objects admitted into evidence are not within the bound volumes of the Reporter’s
Record.
3
As Appellant does not challenge the sufficiency of the evidence, this subsection is intended as
an overview of the facts of the offense rather than a summary of all evidence supporting the
verdict of guilt.
4
This exhibit, a video recording depicting the scene of the offense, is not within the bound
volumes of the Reporter’s Record. The investigator’s testimony regarding the making of this
recording and essentially narrating the video is in the record at 10RR80-94.
9
pair of shorts. 10RR49. The first responding officer described the victim’s

appearance as follows: “He also had small cuts on his face, massive swelling to the

left eye and the right eye, bruising. He was bleeding. He had blood all over his

face…He was also bleeding from the back of the head. Like I said, he had

sustained severe injuries to his face.” 10RR49-50. The injuries the victim sustained

appeared substantially more significant than those of Appellant. 5 10RR63.

Appellant offered a different explanation as to the origin of his injuries, telling an

officer repeatedly that “[h]e fell down and he told me nobody assaulted him and he

just wanted to go to the hospital…He didn’t want to cooperate (with the

investigation).”6 10RR50, 64. The victim was unable to explain the origin of an

injury to his leg. Id. He emitted a strong odor of alcohol. 10RR59.

Appellant’s recorded statement was admitted into evidence without objection.

10RR182; State’s Exhibit 52.7 Therein, Appellant avers that it was the victim who

5
The victim’s injuries are depicted in the following exhibits, among others: 16RR State’s
Exhibits 3, 4, 79, 80, 82. A photograph of Appellant depicting Appellant’s appearance
immediately after the killing is in the record at 16RR State’s Exhibits 54. 10RR61-62.
6
The victim’s widow testified at sentencing as to her belief that the victim misled officers to
protect Appellant: “No, I think he was saying, like – he never thought he was going to die, you
know. He thought he was going to be, again, okay, like – like I tell you that’s he’s been in the
hospital for nine or ten times and he makes it, you know.” 12RR20.
7
This exhibit, a recording of Appellant’s statement, is not within the bound volumes of the
Reporter’s Record; the recording was played for the jury, the memorialization of which is in the
record at 10RR183-208. Although the recording was stopped before reaching the conclusion of
10
struck the first blow, after Appellant taunted him, “Hit me then, you hear me?

Because I’ve been hit before by men…” 10RR190-191. According to Appellant,

her son (the victim’s grandson) was, during this melee, saying, “Get off of her. Get

off of – Grandpa, get off my mom. Get off my mom” and then struck the victim.

10RR191. Appellant goes on to assert that “[h]e got me outside or I ran outside,

and then he was coming like following me to really get me. And I was able to run

back into the house, so I locked the doors so I didn’t think he was going to break

the windows to come in and still get me.”8 10RR192. Appellant concedes having

stomped, kicked and hit her father while he was on the floor, and admits that she

continued this attack even though the victim had been rendered helpless and unable

to fight back. 10RR193-199. The victim’s wife, Zulema Delgado, testified as to the

victim being physically debilitated due to a series of strokes and several

motorcycle accidents. 10RR283-290. As a result of the strokes, the victim

experienced weakness and tremors; as a result of the crashes, the victim limped

and experienced pain in the legs.9 10RR295-296. Appellant herself said, about the

the recorded interview, the parties elected, after discussion, to not play the remainder of the
recording for the jury. 10RR208-214.
8
The victim was determined to be the source of blood found on the frame of this broken
window. 10RR153, 233.
9
The defense adduced testimony that the victim continued to ride a motorcycle and engage in
other physical activities despite these infirmities. 10RR319; 11RR28, 50-52. The victim’s
brother testified that the victim had strength adequate to defend himself. 11RR56.

11
victim, “He’s real slow. And he gets real tired easily. He – He’ll do work around

the house and then he’ll, for like, 15, 20 minutes he will go in the room and he

takes his breaks.” 10RR201-202; State’s Exhibit 52.

The interviewing investigator authorized the release of Appellant at the conclusion

of this first interrogation; upon receiving information that the pathologist who

performed the autopsy discovered injuries to the victim’s neck, however, the

investigator “[t]alked to her and asked her if she had hit him or kicked him on the

head which she replied that she had done.” 10RR216-217. Appellant was then

released, and a warrant for her arrest was issued after issuance by the pathologist of

the autopsy report more than two weeks after the victim’s death. 10RR221-224.

An injury diagram prepared by the pathologist who performed the victim’s autopsy

memorializes numerous and extensive injuries over virtually the entirety of the

victim’s body, both front and back.10 11RR117; 14RR State’s Exhibit 104. The

cause of the victim’s death was determined to be ‘complication from blunt-force

abdominal trauma.’ 16RR State’s Exhibit 78. The abdominal injuries, while

conceivably having resulted from a punch, more likely were the product of “a kick

or a stomp.” 11RR120.

10
Some of the bruising apparently resulted from resuscitation efforts; the cuts on the legs were
surgical incisions made to allow bloodflow. 11RR98, 109-113.
12
B. Testimony subject of Appellant’s claims

The trial court and the parties, at one of the several pretrial hearings, took up

certain motions of the defense seeking to preclude inquiry and testimony in

specified areas. 8RR5-9; CR90, 96, 100, 104, 118. The State acquiesced in grant of

Appellant’s motions to bar reference to the decedent in the case as the ‘victim’ and

to bar reference to or mention of any prior involvement of Appellant in trafficking

narcotics; and stipulated that the prosecution would not offer into evidence a

certain letter discovered in Appellant’s home. 8RR5-6. None of the proposed

written orders submitted to the trial court were rendered.

In proceedings outside the presence of the jury, the trial court explained its

admission of certain challenged testimony. 11RR80.

Evidence subject of Appellant’s first Issue

Outside the presence of the jury, the parties and the Court discussed the

permissible parameters of the testimony of Zulema Delgado, the victim’s widow.

10RR270 – 273. Before this discussion, however, Appellant herself offered into

evidence and secured admission of the victim’s medical/psychiatric records11,

11
The compact discs containing the medical/psychiatric records of various institutions regarding
the victim were admitted as Defense Exhibits 45, 46, 47. 10RR226-227. These records were
later reduced to printed form, and are in volumes 16-21 of the Reporter’s Record. The discussion
13
10RR226-227; within the records, particularly as set forth in pages 18 – 23 of

Defense Exhibit 48, is documentation of the ongoing conflict between the Zulema

Delgado and Appellant. Appellant’s counsel apprised the trial court as to his intent

vis-à-vis evidence of the relationship between Zulema Delgado and Appellant:

The medical records, the psychiatric records that were admitted (note:
in the first trial of the case, which ended by mistrial). That I had
shown in my closing the last time saying that Rudy tells his
psychiatrist ‘my wife hates my daughter, or my wife hates my
granddaughter and treats her like a maid.’ Just basically says things
that are unkind about her. All I want to do is be able to use those
documents to say, ‘Do you recall Rudy saying this? Did Rudy ever
say this? Is it true?’ I’m not going to ask her medical opinions,
anything like that, but I don’t want -- .12
10RR271.
During Appellant’s case-in-chief, a defense witness testified in cross-examination,

without objection, that Appellant’s medical records reflected that “[t]here were

some conflicts with his second wife and his second wife didn’t like having another

family move in.”13 11RR209.

of this procedure of offering into evidence the printed form of the records previously admitted in
electronic form is memorialized in the record at 11RR81-83.
12
During this discussion, the prosecutor indicated the State would not object to such questions
“since the records are already in.” 10RR272. When during the testimony of Zulema Delgado the
prosecutor began posing questions as to intra-family relationships, Appellant sought and
obtained a running objection to ‘this line of questioning’ without further elaboration. 10RR278.
13
As noted elsewhere, Appellant’s two children moved with her into her father’s home.
14
The testimony that is apparently the subject of Appellant’s complaints in this Issue

developed as follows:

The prosecutor: Now, when Alicia got there (to take up
residence in the home of Zulema Delgado and the victim), did you get
along with her?
The witness (Zulema Delgado): At first, yes, because she
was always being nice with me, calling – she even called me ‘mom.’
The kids called me ‘grandma’ and they were doing okay.
The prosecutor: Okay. When was it that you all started to not
get along?
The witness: When she started calling me ‘B’ and ‘F.’ I
told her to talk to my husband.
The prosecutor: Can you say those words? What do you
mean by ‘B’ and what do you mean by ‘F’?
…
The witness: She called me a fucking bitch….And then
she didn’t – she didn’t let the kids talk to me no more…I got scared of
her, you know….The way she yelled. The way she talks to me.
10RR299-301.
This witness testified that she herself moved from the home because of the ongoing

conflict between her and Appellant. 10RR301-302. Within Appellant’s medical

records was the notation that, “His wife left home because she wants her

stepdaughter (Appellant) out of the house…He is still supporting his daughter

(Appellant) in this situation.” 11RR218; 16RR Defense Exhibit 48 page 23.

15
After the third question in the colloquy set forth above, Appellant’s counsel

interjected to raise objection on grounds of relevance. 10RR299. The trial judge

overruled the objection, advising the prosecutor “I’m going to give you a little bit

of leeway…” and granted Appellant a running objection to the testimony.

10RR300. Ultimately, a further objection was sustained before the witness could

proffer a complete explanation of the circumstances prompting her to move from

the home; the prosecutor did not pursue this line of inquiry further. 10RR303-304.

In cross-examination, despite his previous objection as to this area of questioning,

Appellant posed numerous questions to Zulema Delgado regarding the nature and

tenor of the relationship between the two. 10RR320-321.

Evidence subject of Appellant’s second Issue

Two days after the killing, Zulema Delgado and her daughter-in-law went to the

home to clean up. 10RR314-315. The following testimony was admitted without

objection:

The witness (Zulema Delgado): And by the time I got
there, she (Appellant) was there with some friends…
As I understand it that she says she was going to clean up
the house because it was her father’s.
(Appellant was ejected from the property by the police)
[b]ecause she said that she was going to stay there because it was her
father’s house and that I was – that – that she said ‘That bitch has to
16
get out of here because it’s my father’s house.’ And the police said,
‘This is his wife. This lady is married to him. This lady has a marriage
license. She has every proof of the house and everything else.’ And
she got mad, but the police had to tell them to leave.
10RR315-316.
This witness then testified that certain property was missing from the residence,

including a collection of compact discs, a motorcycle helmet, a lamp, a bag of

clothing, and his motorcycle. 10RR316. The motorcycle had been there the day

before. Id. When the prosecutor posed a question as to what had become of the

motorcycle, Appellant, through her counsel, then raised objection on grounds of

relevance. Id. The trial court made no express ruling on this objection, but granted

Appellant a running objection to such testimony. Id. at 317. According to the

witness, “she (Appellant) called a friend of hers to come pick it up and take it away

because it was hers…The police told her to tell them where was the motorcycle

and she get them the address and they went to pick it up. My son went to pick it up

and drove it to the house.” Id.

Evidence subject of Appellant’s third Issue

Francisco Nuno, Appellant’s friend, testified without objection that he had never

seen the victim exhibit violence toward Appellant’s children: “No, not violent like

hitting.” 11RR23.

17
Evidence subject of Appellant’s fourth Issue

Ruby Olguin, half-sister of Appellant, testified without objection that “No, we

didn’t get along” in response to a question regarding her relationship with

Appellant. 11RR60. Only upon inquiry as to the cause of this discord did Appellant

object; the asserted ground of objection was a claim that “(Appellant’s)

relationship to Ms. Olguin is not relevant.” Id. The Court granted a running

objection to such questions and testimony after Appellant’s initial objection. Id.

Olguin then testified as to apparent jealousy/sibling rivalry as to the relationship

she and Appellant had with the victim. Id. at 61-63.

Evidence subject of Appellant’s fifth Issue14

In his case-in-chief, Appellant adduced testimony from her mother, who formerly

was married to the victim, that she supported Appellant’s decision to relocate to

the Rio Grande Valley to be with her father, and “[H]e (the victim) was very happy

that she decided to be with him.”15 11RR162-163. Although this witness claimed to

have been abused by the victim, when asked “Did you ever witness him being

abusive with his children, with either Alicia or Rudy, Jr.,”, the witness responded,

14
Appellant herself conceded that evidence of “[H]er (Appellant’s) relationship with her dad
may have been (relevant).” 11RR81.
15
At the time of Appellant’s return to Texas, the victim had not seen her for the previous two
decades. 11RR209; 16RR Defense Exhibit 48 page 79.

18
“Never. Never. He loved his kids.” 11RR166. She further testified that the victim

was a supportive father to Appellant after Appellant’s return to live with the

victim. 11RR168. Appellant never conveyed to her mother that the victim had ever

become violent to her or mistreated her children in any way. 16 11RR168-169.

Ruby Olguin testified as to the victim’s sense of duty to Appellant: “He felt like he

was obligated because he hadn’t been there all her life, that he owed it to her to try

to get along with her, try to get to know who she was because she hadn’t been in

his life…” 11RR65.

When Olguin began to testify regarding Appellant’s treatment of and toward their

father, the victim, Appellant objected on relevance grounds. 17 11RR75-76. The

trial court granted Appellant’s request for a running objection to such evidence. Id.

at 76. Within the exchange between Olguin and the prosecutor, the following

testimony was adduced:

The prosecutor: What were the things that – that you
witnessed yourself in how Alicia Delgado treated her dad Rudy?
The witness: A lot of foul language, disrespect. I had
never heard anybody talk to him like that…

16
This testimony was admitted without objection.
17
Appellant also cited to ‘403’ in articulating his objection, but did not elaborate as to how the
application of that rule would support a ruling denying admission of the challenged testimony.
19
Profanity. That he didn’t have the balls to stand up, you
know, to my mom. He didn’t have – he didn’t have the balls for him
to act like a man up to, you know, tell us things for him…A lot of
times she would call him, ‘quit being a faggot. Have the balls. You’re
a man. You should be able to control your bitch.’
11RR76-77.
The victim never reacted in a violent manner to these tirades. Id. at 77. “He was

mostly – he would walk away and cry because he was hurt.” Id.

Appellant exerted such apparent control over her father, the victim, that he

instructed his medical-care team to delete from the ‘next of kin’ listings in his

records the names of his wife and of Ruby Olguin, and to replace those contacts

with the name and contact information for Appellant. 11RR213; 16RR Defense

Exhibit 48 page 72.

Evidence subject of Appellant’s sixth Issue

Numerous ‘Facebook’ social media website page printouts were admitted into

evidence. 11RR67-68; 14RR State’s Exhibits 72-77. Appellant raised no objection

to the admission of State’s Exhibits 73 and 76; as to the other proffered exhibits,

Appellant, in addition to claiming lack of proper predicate, cited in his objections

Rule 401 and Rule 403, Tex. R. Evid. 11RR66. Appellant did not elaborate as to

20
how application of the referenced evidentiary rules would militate for refusing to

admit the exhibits into evidence.

In none of these Facebook ‘posts’ does Appellant disparage or make any threat

against the victim or any other person. To the contrary, the thrust of Appellant’s

comments through the various ‘posts’ is her longing to reunite with her father and

that Appellant decided to return in order to ‘lead him (her father, the victim) to the

Lord.’ 14RR State’s Exhibits 72-77.

Evidence subject of Appellant’s seventh Issue

As to the motion of Appellant seeking exclusion of evidence regarding the failure

of Appellant to promptly seek medical attention or other assistance following the

infliction of the injuries that killed him, the following exchange between the parties

and the trial court transpired:

Johnathan Ball (counsel for Appellant in trial and on appeal):
And the last one [note: motion urged by the defense at this hearing],
Judge, which was – that I had previously was part of the State’s case
was that they were referring to the fact that the, or their allegation is
that the Defendant did not call EMS18 in a timely and proper manner.
And we’re asking that they not be able to discuss calling EMS or

18
A reference to ‘emergency medical services.’
21
referring to that as some sort of bad act because they presented that as
a bad act and it formed the basis -- .
The trial court: It is what it is, Mr. Ball. I mean, you can’t
prevent them from saying that a lot of time passed. I mean, it’s in the
rules.
The prosecutor: It’s part of the facts, Your Honor.
The trial court: It’s part of the facts, I mean.
Johnathan Ball: I disagree. Because what happened, Judge,
is that they charged her with First-Degree Murder with doing an act
that was clearly dangerous to human life by kicking, stomping and
punching. There is no mention in the indictment whatsoever that she
was negligent or reckless in any way that had to do with failing to call
--.
The trial court: You, as well as I, know that you don’t have
to allege everything in the indictment. I mean, that would be ludicrous
from them to allege everything that they – they are going to introduce.
It makes no sense.
Johnathan Ball: I agree there, Judge.
The trial court: It’s not – it’s just part of the circumstances
surrounding the alleged killing.
Johnathan Ball: The problem, though, Judge, is that it is
something that occurred after. And they want to bring in evidence of
things that occurred after the fight occurred, the actions they’re
charging her with they said are what caused this man’s death.
So what they’re saying is ‘we’re going to bring in those
bad acts of the kicking and the punching, and then we are going to

22
continue to run the timelines and we’re going to say that she also
contributed to his death by not calling EMS.’
That wasn’t alleged in the indictment, though, so there is
a separate and distinct charge that they’re trying to bring in which is a
recklessness or a negligence.
The trial court: I disagree completely on that.
Johnathan Ball: Okay.
The trial court: I completely disagree. I’m going to deny
that.
8RR6-8
The trial court granted Appellant’s request for a ‘running objection’ to such

evidence. 8RR8. When in opening remarks the prosecutor began describing the

condition of the decedent after the attack, Appellant’s trial counsel renewed his

objection that “[a]nything that involves circumstances that occurred after the fight

are irrelevant”; the trial court overruled this objection and again granted

Appellant’s request for a ‘running objection’ to such evidence. 10RR23.

At midnight or so on the night of the killing, Appellant placed a telephone call to

Francisco Nuno, a close friend of Appellant. 11RR9-11, 146-147. This witness

overheard the victim asking for help to get up. 11RR15. Appellant instead berated

her father and made comments akin to, “Oh, now I’m ‘mija’ or now I’m your

daughter after you hit me. Now you want me to help you.” 11RR16-17. Nuno

advised Appellant to call the authorities; however, as set forth below, she did not
23
immediately heed this advice. 11RR18. During this 20-minute conversation, Nuno

could hear that the victim was still alive. Id. Concerned for Appellant’s well-being,

Nuno cut short his South Padre Island visit and returned, and picked up Appellant.

Id.

A recording of the 911 emergency call made by Appellant at approximately 1:00

a.m., an hour after her call to Nuno, was admitted into evidence. 10RR172, 175;

11RR41; State’s Exhibit 71.19,20. Appellant placed this call from the home of her

uncle, Francisco Delgado, who was the victim’s brother and who lived near the

victim. 11RR41-43. The following are excerpts from this conversation:

The dispatcher: Okay. Tell me what happened, ma’am?
Appellant: My dad has been drinking and he – he started
hitting me and I fought back and he tried – so then he needs medical
attention.
The dispatcher: He fell down or what happened to him?
Appellant: No, my dad, he punched me first and then I kicked.
He tried socking me and I got up and started fighting back.
…

19
This exhibit, an audio recording depicting the scene of the offense, is not within the bound
volumes of the Reporter’s Record. This recording was played in the presence of the jury; the
memorialization thereof is in the record at 10RR172-175.
20
When the State offered this recording into evidence, the only objection to admission raised by
Appellant was “[t]he proper predicate has not been laid for its admission’; the trial court
admitted the exhibit over objection. 10RR172. As the Court later explained, Appellant did not, at
the time of the offer of this exhibit, raise any objection on a confrontation ground. 11RR80.
24
Appellant: But he needs medical attention because he told me
he needs it. My dad has all kinds of health problems.
…
The dispatcher: Okay. When did this happen?
Appellant: Like two hours ago.
10RR173-175.

In her statement, Appellant recounts the following as to the actions she claims to

have taken at the conclusion of the physical altercation:

He – I went and called the cops. That’s when I went and came back,
you know, ‘mija’ help me. I said, ‘Why did you do this, Dad? Why?’
He says, ‘I can’t feel my legs. I can’t feel my legs.’21 I was like, ‘Oh,
my God. All right, Dad.’ I’m trying to help pick him up because we
were outside in the area. I couldn’t lift him. I was dragging and
pulling him underneath like underneath here and pulling him and then
I see him – I pulled him into my room and I seen his face bleeding. So
I grabbed a towel, a rag to wipe his face, and I grabbed a frozen fruit,
a frozen vegetable to put on his eye.
10RR198.

21
The pathologist who performed the victim’s autopsy testified that this lack of feeling in the
legs was most probably caused by lack of blood flow which resulted from the dislodging and
movement of existing blood clots from the abdomen to vessels which supply blood to the legs
when the victim was struck or kicked in the abdomen. 11RR122-123, 141
25
C. Closing argument

The greater portion of the State’s closing argument was dedicated to addressing

Appellant’s claim that her actions were in self-defense.

The prosecutor commented in closing argument that the victim “[l]oved and adored

his daughter. He loved, adored her, adored his grandkids. He loved her so much

that he gave up the last 20 years of his life because he felt he owed it to his

daughter.” 11RR253. As to the delay between the deadly altercation and the 911

call, the prosecutor commented as follows:

They (the dispatcher) asked her (Appellant), “How long has he been
down?”. She herself says, “Two hours.”

Now, ask yourself, why did she wait two hours? What was the
purpose of waiting for two hours? Before, when he was suicidal back
on January 2013, she called for an emergency for him right away
when he was suicidal. Why didn’t she call emergency this time? He
was down on the floor, couldn’t feel his legs and was in pain. What
was the reason for her waiting two hours?

I will tell you what the reason was. She was trying to figure out what
she was going to say. What kind of defense she was going to say.
11RR273-274.

26
The prosecutor then noted Appellant’s failure to promptly heed Nuno’s advice to

call 911 for assistance; and then later again referenced the two-hour delay between

the altercation and seeking emergency help. 11RR275, 277, 279.

27
SUMMARY OF ARGUMENTS

The trial court did not err in the evidentiary rulings subject of Appellant’s

complaints. Evidence regarding the relationships between and among various

members of the victim’s family was properly admitted as going Appellant’s state

of mind. One of Appellant’s complaints is waived because Appellant herself

offered into evidence records documenting the matters regarding which Appellant

contends the trial court should not have admitted testimony. Evidence of

Appellant’s two-hour delay in summoning assistance for the victim was properly

admitted as same-transaction evidence, and no notice of intent to introduce is

required as to such evidence. It was perfectly proper for the prosecution to make

reference to the admitted evidence in closing argument.

As all of Appellant’s claims rest solely on grounds of alleged violation of

evidentiary rules only, any error in admission of the challenged evidence must be

disregarded unless it is found to have had an adverse impact on her substantial

rights. Appellant does not, as to any of her claims, make a showing of entitlement

to reversal.

28
NOTE AS TO ORAL ARGUMENT

Appellant has requested oral argument. The State of Texas respectfully submits

that oral argument in the case at bar would not serve to enlighten the Court further

or illuminate the issues in that, because the facts and legal arguments are

adequately presented in the briefs and record, the decisional process of the Court

would not be significantly aided by oral argument. The State of Texas, therefore,

respectfully submits that oral argument in the instant case is not necessary and that

the request for oral argument should be denied.

The State of Texas reserves the right to present oral argument should the Court

grant the request of Appellant for oral argument.

29
ARGUMENTS AND AUTHORITIES

Issue One: Appellant is not entitled to reversal on her claims of error in the

admission of challenged evidence. 22

Argument:

A. General principles

The decision of a trial court regarding admission of evidence is reviewed on an

‘abuse of discretion’ standard. See, e.g. Davis v. State, 329 S.W.3d 798 (Tex.

Crim. App. 2010). “A trial court abuses its discretion when its decision is so

clearly wrong as to lie outside that zone of reasonable disagreement within which

reasonable persons might disagree.” Trevino v. State, 228 S.W.3d 729, 734 (Tex.

App.—Corpus Christi 2006, pet. ref’d).

Tex. Code Crim. P. Art. 38.36(a) provides that:

In all prosecutions for murder, the state or the defendant shall be
permitted to offer testimony as to all relevant facts and circumstances
surrounding the killing and the previous relationship existing between
the accused and the deceased, together with all relevant facts and

22
As all of Appellant’s claims relate to admission of evidence, the State of Texas will herein
address all of Appellant’s stated Issues in this single responsive Issue.

The various claims of Appellant are not addressed in the precise order they are set forth in her
Brief.
30
circumstances going to show the condition of the mind of the accused
at the time of the offense.23

Even if error in evidentiary rulings subject of Appellant’s complaints is found, this

alone, without more, does not establish entitlement to reversal. All of Appellant’s

complaints rest solely on claims that the trial court should have denied admission

of the challenged evidence pursuant to certain evidentiary rules including but not

necessarily limited to Rule 401 and Rule 403, Texas Rules of Evidence;

Appellant’s claims in no way implicate any constitutional right. Error in admission

of evidence in violation of an evidentiary rule is non-constitutional in nature; thus,

it must be disregarded unless the substantial rights of the accused are thereby

adversely affected. Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998); Tex.

R. App. P. 44.2(b). As the Court of Criminal Appeals has explained:

A substantial right is affected when the error had a substantial and
injurious effect or influence in determining the jury's verdict. But if
the improperly admitted evidence did not influence the jury or had but
a slight effect upon its deliberations, such non-constitutional error is
harmless. In making a harm analysis, we examine the entire trial

23
Evidence admissible under this section may nevertheless be excluded under evidentiary rules
prohibiting admission of evidence for the purpose of showing conformity with character and
permitting exclusion of evidence if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues or misleading the jury, if it is cumulative, or if its
admission would cause undue delay. Smith v. State, 5 S.W.3d 673 (Tex. Crim. App. 1999); Tex.
R. Evid. 403, 404(b).
31
record and calculate, as much as possible, the probable impact of the
error upon the rest of the evidence.
Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010, cert
denied).

In its opinion on another case, the Court of Criminal Appeals set out the proper

approach to and considerations in determining such claims:

In assessing the likelihood that the jury's decision was adversely
affected by the error, the appellate court should consider everything in
the record, including any testimony or physical evidence admitted for
the jury's consideration, the nature of the evidence supporting the
verdict, the character of the alleged error and how it might be
considered in connection with other evidence in the case. The
reviewing court may also consider the jury instructions, the State's
theory and any defensive theories, closing arguments and even
voir dire, if applicable. We have also recognized that whether the
State emphasized the error can be a factor.
Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App.
2002)(footnotes omitted)

32
B. Relationship evidence in general (Appellant’s issues 1, 3, 4, 5 and 6)24

Among other complaints, Appellant contends that the trial court erred in its

admission of evidence as to the following25:

 The relationship between Appellant and her stepmother, wife of the
victim (Appellant’s Issue 1)
 The relationship between the victim and Appellant’s children
(Appellant’s Issue 3)
 The relationship between Appellant and her step-sister (Appellant’s
Issue 4)
 The relationship between Appellant and victim (Appellant’s Issue 5)
 ‘Facebook’ posts by Appellant expressing affection for the victim
(Appellant’s Issue 6)

Art. 38.36, Tex. Code Crim. P. not only permits evidence as to the relationship

between accused and victim, but also evidence showing the state of mind of the

accused. The actions of Appellant essentially taking over all aspects of the victim’s

care, driving a wedge between him and his wife, and making her stepmother’s

home life so intolerable that the woman actually moved away from her own

husband demonstrate an intent to ensure that Appellant alone had access to and

24
The general discussion in this Subsection B addresses legal principles concerning
determination of error as to the claims raised in Appellant’s Issues 1, 3, 4, 5, and 6. Each of these
Issues is addressed individually below.
25
The discussion in this subsection addresses the issues, as framed by Appellant, which are
properly categorized as involving claims connected with evidence of the relationships between
and among various people associated with the case.
33
control over her father. 10RR299-302; 11RR213, 218; 16RR Defense Exhibit 48

pp.’s 23, 72. Although no direct evidence was adduced as to the exchange or

actions that precipitated the altercation that ended in the victim’s death26, it was

reasonable for a jury to infer that it may well have been initiated upon the victim’s

indication of refusal to tolerate any longer the vile language and insults directed at

him and members of his family by Appellant or his rejection of Appellant’s

ongoing campaign to isolate him from every other member of his family.

1.) Evidence regarding the relationship between Appellant and the victim’s

wife (Appellant’s Issue 1)

Appellant centers this complaint on the testimony of Zulema Delgado, widow of

the victim, as to Appellant’s treatment of and attitude toward her.

The trial court did not err in its ruling admitting the challenged evidence because

the evidence fell within the parameters of Art. 38.36 in that it went, albeit

indirectly, to the relationship between accused and victim; the nature of a

relationship between a person’s daughter and the person’s wife necessarily affects

the relationship between the person and his daughter. This, in turn, goes to

26
Appellant, through her statement to authorities, said merely that, “So while we were talking, I
don’t know what triggered my dad.” 10RR190; State’s Exhibit 52.

34
showing the state of mind of the accused. Such evidence is properly admitted

pursuant to the ‘previous relationship’ and ‘condition of mind’ provisions of Art.

38.36.

Appellant overlooks the fact that, well before this witness was summoned to the

stand, Appellant herself secured the admission into evidence of medical records of

the victim which documented the existence of the ongoing conflict between

Appellant and this witness. 10RR226-227; 16RR Defense Exhibit 48 pp.’s 18-23.

The testimony of Zulema Delgado in this regard was substantively identical to the

notations in the records sponsored by the defense. In essence, this testimony did

nothing more than put before the jury in oral form evidence that had already been

admitted in written form. In Coble, the Court of Criminal Appeals stated, “We

often held that erroneously admitting evidence ‘will not result in reversal when

other such evidence was received without objection, either before or after the

complained-of ruling.’” (quoting Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim.

App. 1998)). Moreover, “When a defendant offers the same testimony as that

objected to, or the same evidence is introduced from another source, without

objection, the defendant is not in position to complain on appeal.” Womble v.

State, 618 S.W.2d 59, 62 (Tex. Crim. App. 1981); accord De La Torre Olivares v.

35
State, 1997 Tex. App. Lexis 3062 (Tex. App.—Corpus Christi 1997, no

pet.)(memorandum opinion—not designated for publication).

Notwithstanding that Appellant herself sponsored documentary evidence of the

areas of testimony of which she now complains, noting again that this offer of

records was made before the testimony subject of her complaint was adduced, and

likewise notwithstanding the admissibility thereof under Art. 38.36, Appellant in

any event cannot make the showing of harm required to warrant reversal assuming

arguendo error by the trial court as claimed. As discussed above, the entirety of the

record is to be considered in conducting harm analysis. Coble, 330 S.W.3d 253.

Given Appellant’s own admission that she struck, stomped and kicked the victim

while he lay helpless on the floor, it is clear that the ‘prior relationship’ testimony

had no appreciable effect on the jury in its deliberations. 10RR193-196, 207;

State’s Exhibit 52. Even erroneous admission of such testimony would have had no

adverse affect on Appellant’s substantial rights; thus, Appellant is not in any event

entitled to reversal on this claim. See, Coble, 330 S.W.3d 253; Motilla v. State, 78

S.W.3d 352 (Tex. Crim. App. 2002); Johnson v. State, 967 S.W.2d 410 (Tex.

Crim. App. 1998); Tex. R. App. P. 44.2(b).

36
2.) Testimony regarding the relationship between the victim and Appellant’s

children (Appellant’s Issue 3)

The trial court did not err in its ruling admitting the challenged evidence because

the evidence fell within the parameters of Art. 38.36 in that it went, albeit

indirectly, to the relationship between accused and victim; the nature of a

relationship between a person’s daughter and the children of his daughter

necessarily affects the relationship between the person and his daughter. Restated,

the relationship between a man and his grandchildren necessarily affects the

relationship between the man and the mother of those grandchildren. Such

evidence is properly admitted pursuant to the ‘previous relationship’ and

‘condition of mind’ provisions of Art. 38.36.

Should error be found, reversal is nonetheless not warranted. Appellant makes no

showing that this evidence had more than a de minimis effect on the jury’s

deliberations, if it indeed had any effect at all. The testimony about the victim’s

relationship with Appellant’s children was extremely brief. The passage of

testimony excerpted by Appellant in her Brief extends over only four lines of the

trial transcript.27 The testimony from another witness regarding this issue is

27
Although the passage set forth on page 23 of the Brief of Appellant recites that it is
memorialized in the record at 11RR253, this passage is actually memorialized in the record at
11RR65 lines 14-17.
37
contained within less than forty lines of trial record, and much of this brief passage

is interspersed with objections, responses thereto, and rulings. 11RR23 line 3 – 24

line 12. This relationship was in no way made a focal point of the State’s

presentation of its case or its argument. As discussed above, the entirety of the