Esau Alejandro Rodriguez-Flores v. State ( 2011 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-09-00433-CR
Esau Alejandro Rodriguez-Flores, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. D-1-DC-08-200834, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING
OPINION
A jury convicted Esau Alejandro Rodriguez-Flores of aggravated kidnapping and
assessed his punishment at twenty-nine years’ imprisonment and a $5,000 fine. See Tex. Penal
Code Ann. § 20.04 (West 2011). On appeal, Rodriguez-Flores challenges (1) the trial court’s failure
to allow voir dire questions about whether jurors could consider the affirmative defense of duress
regardless of the age of the alleged victim, (2) the trial court’s denial of his challenge for cause of a
juror, (3) the trial court’s admission of testimony from a pretrial services officer about an interview with
Rodriguez-Flores, and (4) the legal sufficiency of the evidence supporting the jury’s finding that the
victim was not released in a safe place. We will affirm the judgment of conviction.
BACKGROUND
The record shows that on the morning of February 7, 2008, Lizbeth Suarez and her
two children, ten-year-old Z.J. and five-year-old A.J., were preparing to drive to school when four men
in a light-colored Volkswagen Passat stopped behind Suarez’s car, blocking it from leaving the
driveway.1 Two of the men ran up to Suarez’s car. One of them opened the back passenger door and
grabbed A.J. by the waist. Suarez, who was in the driver’s seat, grabbed A.J.’s hand and struggled to
keep him in the car. Z.J. tried to help from the front passenger seat by hitting the man with her hands.
When the man pulled A.J. from the car, he took him to the Passat. Suarez and Z.J. followed, screaming
and trying to open the passenger doors of the Passat. Suarez ran to the front of the car to block it from
leaving, but it swerved around her and sped off.
A.J., who was seven years old by the time of trial, testified that he was taken to an
apartment to which he had never been. Although he was not harmed while he was there, he testified
that he was scared that the men were going to hurt him. Later in the day, while it was still light outside,
the kidnappers took A.J. to a house and left him with another man whom he did not know.2 This man
made soup for A.J., and he told A.J. that he would take him to his mother at 3:00 p.m., but he did not,
which A.J. testified made him sad. A.J. was at this house for a long time. He watched a movie, and
later, after it was dark, the man took him to another apartment building where A.J. had never been. The
man told A.J. to climb up the stairs to the second floor because A.J.’s aunt’s apartment was there. A.J.
did not know anyone in those apartments. After the man drove off, A.J. went back down the stairs to
look for help. He testified that he felt sad and scared. He never before had been out alone in a strange
place at night. He was found in the dimly lit stairwell between 7:00 and 8:00 p.m. and reunited with
his parents that night.
1
The facts recited herein are taken from the testimony and exhibits admitted at trial.
2
This man was never identified by the police.
2
The evidence shows that Rodriguez-Flores, who was seventeen at the time of the
kidnapping, was recruited to participate in the kidnapping by his sixteen-year-old cousin, Marco Flores
(“Marco”), who had been recruited by Modesto Vences Garcia (“Vences”), the live-in boyfriend
of Marco’s mother.3 Vences organized the kidnapping to collect money that he believed he was owed
by A.J.’s father.4 Rodriguez-Flores and Marco testified that Vences had threatened to harm Marco’s
family (his mother, younger brother, girlfriend, and month-old daughter) if Marco would not do this for
him. Both Rodriguez-Flores and Marco testified that they are like brothers to each other, and
Rodriguez-Flores has always watched out for Marco and protected him when necessary. Marco testified
that Vences is a drug dealer and a violent man, who once shot up Marco’s mother’s house. Both
Marco and Rodriguez-Flores testified about an incident a few months before the kidnapping
when Rodriguez-Flores was at Marco’s mother’s house, and Vences and two of his friends jumped
Rodriguez-Flores and started hitting him.
Marco also testified that Vences told him he would pay him $10,000 for the kidnapping,
but that he did not do it for the money, he did it to protect his baby. Rodriguez-Flores testified that
Vences had mentioned the $10,000 to him, but that he also did the kidnapping to protect his family and
Marco’s family, not for the money. At trial, Rodriguez-Flores testified that the night before the
kidnapping he told Vences he did not want to do it, and Vences hit him with a gun and pointed it in his
3
To avoid confusion with Rodriguez-Flores, we will refer to Marco Flores as “Marco.”
4
A jury convicted Vences of aggravated kidnapping and assessed his punishment at
fifty years’ imprisonment. Morales v. State, No. 03-09-00474-CR, 2010 WL 3058623, at *1
(Tex. App.—Austin Aug. 3, 2010, pet. ref’d) (mem. op., not designated for publication) (affirming
Vences’s conviction for aggravated kidnapping).
3
face and told him that he had to do it because he knew too much already and Vences knew where his
family lived.5
Rodriguez-Flores also recruited two of his friends, at Vences’s request, to help with the
kidnapping. He told them that Vences would pay them “good money,” and he told them on the morning
of the kidnapping that it would be $10,000. On the morning of the kidnapping, Vences gave Marco
keys to the Passat, which Marco drove during the kidnapping. Marco acted as a lookout, while the other
three got out. Rodriguez-Flores grabbed A.J., and they took him back to Marco’s mother’s apartment.
During the two weeks before the kidnapping, Vences drove Marco and Rodriguez-Flores
to A.J.’s neighborhood several times in Marco’s mother’s blue Oldsmobile Alero to observe the
children’s routine. They once followed Z.J. and A.J. home from school, which frightened the children
enough that they reported it to their parents and to the school principal, who reported it to the police and
recommended that Z.J. and A.J.’s parents drop them off and pick them up each day, which they began
doing. Suarez testified that sometime after this incident, she noticed a navy blue car parked in front of
her house one morning when she was leaving to take the children to school. There were two men in
the car watching the house. Suarez testified that the men were wearing red hooded jackets and “kind
of laying back” in the car and she only saw them from a distance. She testified that the back of the car
“said Balero (sic) or something like that.” Although Vences, Marco, and Rodriguez-Flores parked a
few houses away on their trips to observe the family routine, their suspicious behavior was noticed by
5
When Rodriguez-Flores was brought in for questioning two days after the kidnapping, the
police interviewed him for six hours, and he eventually signed a written statement. Despite spending
six hours talking to the police about the kidnapping, he never mentioned this incident until trial.
4
other neighborhood residents, one of whom wrote down the Alero’s license-plate number. After the
kidnapping, these neighbors reported what they had seen to the police.
The police stopped Vences in the Alero on the day of the kidnapping and brought him
in for questioning. They eventually brought in Marco, who admitted his own role in the kidnapping and
also implicated Vences as the planner and Rodriguez-Flores as a participant. Rodriguez-Flores initially
went voluntarily to the police station to discuss the kidnapping. Although he originally denied having
knowledge of the kidnapping, after calling Marco from the police station, he admitted to participating
in it. Both his interview with the police and his written statement were admitted into evidence without
objection.6 The jury saw a substantial portion of the police-interview video.
Rodriguez-Flores was charged by indictment with aggravated kidnapping. See id. He
pled not guilty. There was a week-long jury trial, in which both the State and the defense presented
evidence, and Rodriguez-Flores testified in his own defense. The trial court instructed the jury on the
affirmative defense of duress. See id. § 8.05 (West 2011). The jury rejected that defense and found
Rodriguez-Flores guilty. During the punishment phase of the trial, the jury found that Rodriguez-Flores
did not release A.J. in a safe place. See id. § 20.04(d). The jury assessed punishment at twenty-nine
years’ imprisonment and a $5,000 fine. This appeal followed.
6
In his police interview, Rodriguez-Flores stated that he felt like his and Marco’s lives were
in danger if they did not help Vences and that he felt like Marco’s family was in danger, too.
Rodriguez-Flores indicated in his written statement that on the night before the kidnapping, “[Marco]
said he had to do it because he didn’t have a ride back home, and [Vences] had threatened his baby.
I agreed to help [Marco]. We felt like we didn’t have a choice anymore. I felt like the family would
be in danger.”
5
DISCUSSION
Rodriguez-Flores raises four issues on appeal. First, he contends that the trial court erred
because it did not allow certain voir dire questions about whether prospective jurors could consider the
affirmative defense of duress no matter what the age of the alleged victim. Second, he argues that the
trial court erred by denying his challenge for cause of a juror who indicated that she could not consider
the full range of punishment and also equivocated about her view on duress and her ability to believe
an accomplice witness. Third, Rodriguez-Flores challenges the trial court’s admission of a pretrial
services officer’s testimony about her interview of Rodriguez-Flores, arguing that his substantial rights
were violated, given that the trial court found that the pretrial services officer was a Travis County
employee and that Rodriguez-Flores was in custody. Finally, he contends that the evidence is legally
insufficient to support the jury’s finding that the victim was not released in a safe place.
Denial of voir dire questions
In his first issue, Rodriguez-Flores contends that his trial counsel properly attempted to
ask prospective jurors whether or not they could follow the law on the affirmative defense of duress
regardless of the alleged victim’s age. Rodriguez-Flores asserts that the trial court’s denial of this
proper voir dire question violated his constitutional right to be heard. See Tex. Const. art. I, § 10 (“In
all criminal prosecutions the accused . . . . shall have the right of being heard by himself or counsel, or
both . . . .”); see also Jones v. State, 223 S.W.3d 379, 381-82 (Tex. Crim. App. 2007) (holding denial
of proper voir dire question is error of constitutional magnitude). The State responds that the trial court
properly upheld its objections that Rodriguez-Flores’s questions were improper commitment questions.
See Standefer v. State, 59 S.W.3d 177, 179-83 (Tex. Crim. App. 2001).
6
Defense counsel indicated early in his voir dire that he wanted to talk to the prospective
jurors about whether they would be biased against the affirmative defense of duress. He explained that
to assert the affirmative defense, the defense would have to admit every element of the offense, say “we
intentionally abducted a child for ransom,” and then put on evidence “that the reason it was done was
under a compulsion of threat of serious bodily injury or death to the actor or another person.” The State
objected that this was a commitment question, “asking them about a guy [who] kidnapped a kid; that’s
not an element of the offense -- [it’s] a fact and not appropriate for this stage” of the proceedings. The
trial court overruled the State’s objection.
Defense counsel then questioned the panel about a number of other issues. He later
returned to the issue of duress, explaining again that Rodriguez-Flores would have to admit that he
committed the kidnapping to raise the defense and asking whether the panelists would be able to
set aside the bias that they would obviously have against kidnappers. Defense counsel began
questioning the panel by asking whether they could follow the law and find Rodriguez-Flores not guilty
if the defense stipulated to the kidnapping and then put on evidence that it was more likely than not that
Rodriguez-Flores was subject to a threat of imminent, serious bodily injury or death. Panelist number 2
answered that question by stating that he would have difficulty in a case where a child was the victim,
prompting the State to object that the facts were being impermissibly tied to the question.7 The trial
court sustained the State’s objection. Defense counsel argued that he had not brought that into the fact
situation; it was the venire panelist who had said “there were certain scenarios where he would not be
7
Panelist number 2 stated, “[I]n certain situations I can definitely see the duress case.
However, I will say that me, personally, in a case with an adult and a child, that would be a very,
very tough case for the defense to present to me.”
7
able to follow the law.” The trial court clarified the law of duress for the panelists and explained that
the issue was whether they could follow the law. After further discussion with the panel about the
mechanics of the law on duress and asking several panelists if they could follow the law, defense
counsel included in his question the fact that Rodriguez-Flores would be admitting that he intentionally
and knowingly abducted a child, and the question drew no objection.8
Defense counsel then returned to asking the panelists whether they would “be able to
avail the defendant of the duress defense if he meets his burden” of proof, and a series of panelists
agreed that they could.9 When panelist number 25 answered that she would not be able to follow the
law because the victim was a child, the State objected to asking jurors to commit based on a specific
fact. Rather than ruling, the trial court said, “[n]ext question.” Defense counsel responded that he
believes that prospective jurors who say they could not find a defendant acted under duress under
8
Defense counsel: I just have to make sure you understand exactly
how the mechanics of it may work, and so there was the exact
example I gave you, if he gets on the stand and says, yes, I admit
every element of the offense, that I did intentionally and knowingly
abduct a child, but I did so under the threat of serious bodily injury,
or imminent serious bodily injury or death to myself or another
person, that you would be able to find that person --
Panelist number 6: That makes sense to me.
Defense counsel: -- not guilty?
9
Panelist number 10 indicated that she might have difficulty with the duress defense if the
victim was a child, stating that “it’s hard to believe that -- for a person would go, you know, the
extent of kidnapping or do some kind of thing to a child.” Her statement drew no objection, and
defense counsel next questioned another juror about the topic of a threat or compulsion as it related
to duress. He later returned to questioning the jurors about their ability to follow the law on duress
if the defendant met his burden of proof.
8
certain facts with certain types of victims are challengeable for cause. The trial court asked defense
counsel to move on to the next panelist.10
Defense counsel rephrased his question, asking the next panelist (number 27) whether
“there are certain types of victims where you would not be able to consider the duress defense.” The
State objected that asking about certain types of victims was a commitment question. The trial court
sustained the objection and agreed that it was an improper question. Defense counsel rephrased the
question again, asking the panelist whether he would “be able to follow the law of duress and acquit
regardless of the age of the victim.” The panelist answered “yes,” and defense counsel asked everyone
on the first row whether they could “follow the law regardless of the age of the victim.” The State
objected “to adding the age of the victim as part of following the law,” and the trial court sustained the
objection. Defense counsel objected, and the trial court interrupted to state: “And overruled and
preserved. Next question -- question to the others.”
Defense counsel continued questioning the remainder of the panelists in sequence about
their ability to follow the law on duress. As will be discussed in more detail below, two additional
panelists, numbers 41 and 57, indicated that they would not be able to follow the law on duress. None
of the panelists who indicated that they had a problem with the duress defense served on the jury.
Defense counsel used a peremptory challenge on panelist number 2. Both sides challenged panelists
10 and 57 for cause, and the trial court granted the challenges. Defense counsel challenged
10
The next panelist was panelist number 27. It appears from the record that panelist
number 26 was not present for voir dire.
9
panelists 25 and 41 for cause, based on their answers to the duress questions, and the trial court granted
those challenges.
Standard of review for voir dire questions
The defendant in a criminal case has a constitutional right to a trial by “an impartial
jury.” Sanchez v. State, 165 S.W.3d 707, 712 (Tex. Crim. App. 2005) (quoting U.S. Const. amend. VI;
Tex. Const. art. I, § 10). Thus, one purpose of the voir dire process is to determine if grounds exist for
challenging any venire panelists for cause because they are biased for or prejudiced against one of the
parties or the relevant law. See id. at 710-11. A proper voir dire question attempts to discover any
preexisting bias or prejudice of the panelists, while an improper commitment question seeks to create
a bias or prejudice in the panelists before they have heard the evidence. Id. at 712. Accordingly,
questions that require a venire panelist to promise that he will base his decisions on some specific set
of facts before he has heard any evidence should be allowed only when the law requires such a
commitment.11 Id. The reason for prohibiting improper commitment questions is to ensure that the jury
will listen to the evidence with an open mind and render a verdict based upon all the evidence heard in
its proper context. Id.
The trial court has broad discretion over the jury-selection process because “voir dire
could go on forever without reasonable limits.” Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim.
11
Some examples of commitments that the law requires jurors to make include commitments
to: consider the full range of punishment, follow the law requiring disregard of illegally obtained
evidence, follow the court’s instruction requiring corroboration of accomplice witness testimony,
and follow the law precluding them from holding defendant’s failure to testify against him.
Standefer v. State, 59 S.W.3d 177, 181 & n.16. (Tex. Crim. App. 2001).
10
Ohio App. 2002). We review a trial court’s restrictions on particular questions for an abuse of discretion.
Id. at 38. A trial court abuses its discretion when it prohibits a proper question about a proper area of
inquiry. Id.
Standefer analysis of commitment questions
We determine whether a question propounded to venire panelists is a proper commitment
question using a three-part inquiry. See Standefer, 59 S.W.3d at 179-83. We first must decide whether
the propounded question is a commitment question—that is, whether it asks “a prospective juror to
resolve, or to refrain from resolving, an issue a certain way after learning a particular fact.” Id. at 179-
81. Here, by asking the venire panelists whether they would be able to follow the law on duress and
acquit regardless of the victim’s age, defense counsel in essence asked the panelists whether they would
resolve the issue of duress based upon a fact included within the question (i.e., that the victim was a
child).12 See id. at 179-80. Therefore, we conclude the question is a commitment question.
We next address the second part of the Standefer test: whether the question
includes facts that lead to a valid challenge for cause.13 Id. at 181-82. The State contends that
Rodriguez-Flores’s questions were improper because the law does not require a commitment from
12
Although the final version of the question posed to the panel, whether they would “be able
to follow the law of duress and acquit regardless of the age of the victim,” arguably contains no facts,
we note that the trial court had allowed the introduction of the fact that the victim was a child early
in voir dire.
13
“A challenge for cause is an objection made to a particular juror, alleging some fact which
renders the juror incapable or unfit to serve on the jury.” Tex. Code Crim. Proc. Ann. art. 35.16(a)
(West 2006). The defense may challenge a venire panelist for cause on the grounds that “he has a
bias or prejudice against any of the law applicable to the case upon which the defense is entitled to
rely . . . as a defense to some phase of the offense for which the defendant is being prosecuted . . . .”
Id. art. 35.16(c)(2).
11
the jury to follow the law on the issue of duress when the victim’s age is considered. In other words,
the State argues that the questions did not lead to a valid challenge for cause. We disagree with the
State’s contention.
Here, Rodriguez-Flores was entitled to rely on duress as an affirmative defense during
the guilt-innocence phase of the trial. If the defendant meets his burden of proof on the affirmative
defense of duress, a juror must be able to apply the defense regardless of who the victim is or
any facts about the victim. See Tex. Penal Code Ann. § 8.05. The commitment questions posed by
Rodriguez-Flores’s counsel sought to discover whether any venire panelists had a disqualifying bias or
prejudice against the affirmative defense of duress when a child was the victim. The court of criminal
appeals has stated that a proper area of inquiry for a commitment question is whether the victim’s age
would create a bias against the law applicable to the case during the guilt-innocence phase of the trial.14
Barajas, 93 S.W.3d at 39. When addressing whether it was appropriate for the appellant to determine
whether venire panelists would consider the nine-year-old victim’s age during the guilt phase of a trial
for indecency with a child, the court concluded that:
The victim’s age is not a fact of consequence that tends to prove or disprove the
appellant’s guilt, except that, in this case, the State had to prove that the victim was
14
In Barajas, the appellant had been indicted for indecency with a child, and the victim was
nine years old at the time of the offense. Barajas v. State, 93 S.W.3d 36, 37 (Tex. Crim. App. 2002).
The trial court had denied defense counsel’s request to ask the venire panelists whether they could
be fair and impartial in a case in which the victim was eight to ten years old, or alternatively, nine
years old. Id. at 37-38. The court of criminal appeals ultimately concluded the question was
improper because it was too broadly worded and thus could have been asked for both proper and
improper purposes. Id. at 39-40. The court held that the trial court was within its discretion to
require parties to phrase questions in a way precise enough to glean only relevant information from
the venire panelists’ answers. Id.
12
under the age of seventeen. If a venire member stated that she would resolve the
appellant’s guilt on the basis of the victim’s age, that venire member would be
challengeable for cause.
Id. at 39 (emphasis added) (citation omitted). Similarly, in this case, the victim’s age is not “a fact
of consequence” that tends to prove or disprove the affirmative defense of duress. Thus, it was
proper for Rodriguez-Flores to challenge for cause a panelist who responded that he could not follow
the law of duress and acquit regardless of the victim’s age.15 Consequently, the questions posed by
Rodriguez-Flores’s counsel were potentially proper commitment questions because one of the possible
answers to those questions would “give rise to a valid challenge for cause.” Standefer, 59 S.W.3d
at 182; see also Tex. Code Crim. Proc. Ann. art. 35.16(c)(2) (West 2006).
The final step in the Standefer analysis is to determine whether a potentially proper
question includes only those facts that lead to a valid challenge for cause.16 59 S.W.3d at 182-83.
Inclusion of additional facts renders a question improper because the question is then an attempt to
15
We again note that the trial court sustained Rodriguez-Flores’s challenge for cause of
panelist number 25 on the grounds that she could not follow the law on duress. Rodriguez-Flores
used a peremptory challenge on panelist number 2. Both sides challenged panelist number 10, and
the court granted the challenge.
16
An example of a proper commitment question that includes only those facts necessary for
a valid challenge for cause (but facts that are not contained in the indictment) is a question about
whether potential jurors would automatically disbelieve a witness’s testimony because of
the witness’s status as a convicted felon or having some criminal history. See Vann v. State,
216 S.W.3d 881, 886 (Tex. App.—Fort Worth 2007, no pet.); Tijerina v. State, 202 S.W.3d 299, 303
(Tex. App.—Fort Worth 2006, pet. ref’d); Lydia v. State, 117 S.W.3d 902, 905-06 (Tex. App.—Fort
Worth 2003, pet. ref’d). The questions determined to be proper in Vann, Tijerina, and Lydia:
(1) asked venire panelists to resolve issues of witness credibility based on particular facts about those
witnesses (their status as a convicted felon or having some criminal history), (2) sought to elicit
automatic bias toward a witness based on that witness’s status, and (3) included only the fact of the
witness’s status. See Vann, 216 S.W.3d at 886; Tijerina, 202 S.W.3d at 303; Lydia, 117 S.W.3d
at 905-06.
13
create a bias or prejudice in the panelists before they have heard the evidence, rather than an attempt
to discover preexisting bias or prejudice. See Sanchez, 165 S.W.3d at 712. In this case, the only fact
made known to the venire panel during the discussion about duress was that the victim was a child.
Rodriguez-Flores’s questions did not include any extraneous details about the victim, such as his exact
age or his gender, or about the charged offense, such as the specific manner and means by which the
kidnapping occurred.17 See Cardenas v. State, 325 S.W.3d 179, 189 (Tex. Crim. App. 2010) (holding
commitment question proper that limited facts included in question to statutory elements or statutory
manners and means). The questions did not attempt to bind jurors to Rodriguez-Flores’s version of
the facts of the pending case. See Standefer, 59 S.W.3d at 182 (distinguishing Atkins v. State,
17
Although the court stated in Cardenas that a commitment question that includes
“evidentiary facts or non-statutory manners and means remains improper under the Standefer test,”
we believe that when read in context, the court is referring to commitment questions about jurors’
ability to consider the entire range of punishment for the particular statutory offense. Cardenas
v. State, 325 S.W.3d 179, 184, 189 (Tex. Crim. App. 2010) (analyzing question about ability to
consider minimum punishment for aggravated sexual assault of child); see also Barajas, 93 S.W.3d
at 38 n.1 (“We held in Standefer v. State, 59 S.W.3d 177, 181 (Tex. Crim. App. 2001), that the
parties may not ask whether venire members can consider probation under the particular facts of the
case beyond the offense as charged in the indictment.”). As the court explained in Standefer and has
held in a number of other cases, commitment questions about jurors’ ability to consider the full range
of punishment that include facts outside those contained in the indictment usually will be improper
because typically these questions do not lead to a challenge for cause. See 59 S.W.3d at 181-82;
seealso Atkins v. State, 951 S.W.2d 787, 795 (Tex. Crim. App. 1997) (Keller, J., dissenting) (noting
that almost every case in which commitment questions have been held improper has involved “an
attempt to evaluate the impact of various facts on punishment deliberations”). For example, jurors
may—but are not required to—give mitigating effect to particular types of evidence when
considering probation, to victim impact evidence in answering the mitigation special issue in a
death-penalty case, and to potential rehabilitation in answering the future dangerousness special
issue. Compare Standefer, 59 S.W.3d at 181-82 & nn.19, 20 (citing cases in which facts included
in question did not lead to challenge for cause) with Cardenas, 325 S.W.3d at 184 & n.22 (same).
14
951 S.W.2d 787 (Tex. Crim. App. 1997)).18 Therefore, it appears that Rodriguez-Flores’s questions
satisfy the third prong of the Standefer test because he sought to elicit any automatic bias that the
panelists might have had against the duress defense if the victim was a child, and the only fact included
in the question was the victim’s status as a child. See Standefer, 59 S.W.3d at 182; Vann v. State,
216 S.W.3d 881, 886 (Tex. App.—Fort Worth 2007, no pet.); Tijerina v. State, 202 S.W.3d 299, 303
(Tex. App.—Fort Worth 2006, pet. ref’d); Lydia v. State, 117 S.W.3d 902, 905-06 (Tex. App.—Fort
Worth 2003, pet. ref’d). We need not decide this issue, however, because even if we assume that the
question was proper and the trial court erred by denying Rodriguez-Flores the right to ask it, we
conclude that any error was harmless.
Harm analysis
We conduct a harm analysis to determine whether the potential error would call
for reversal of the judgment. See Tex. R. App. P. 44.2; Gonzales v. State, 994 S.W.2d 170, 171
(Tex. Crim. App. 1999) (holding that impermissible exclusion of proper question during voir dire is
subject to harm analysis). The trial court’s denial of a defendant’s right to ask a proper question
18
The court explained that the commitment question in Atkins had been rendered improper
by the inclusion of “facts in addition to those necessary to establish a challenge for cause.”
Standefer, 59 S.W.3d at 182. In Atkins, the State sought a commitment that jurors would follow the
law and convict a person of possession if the evidence showed that a person was arrested with a
crack pipe in their pocket and it had a residual amount of cocaine in it. 951 S.W.2d at 789. The
court clarified in Standefer that it would be proper to ask venire panelists about their ability to follow
the law and convict a person of possession when the possession involves only a residual amount of
the drug in question (even though the fact that only a residual amount of the drug was possessed does
not appear to have been a fact included in the indictment). See 59 S.W.3d at 182. It was the addition
of other facts beyond those necessary to sustain a challenge for cause (i.e., arrest, possession of a
crack pipe, item found in the defendant’s pocket) that rendered improper what would have been a
proper question. Id.
15
during voir dire is an error of constitutional magnitude, violating the right to be heard found in article I,
section 10 of the Texas Constitution. E.g., Jones, 223 S.W.3d at 381-82; see also Tex. Const., art. I,
§ 10. Therefore, we must reverse the judgment unless we determine beyond a reasonable doubt that the
potential error did not contribute to the conviction or punishment. See Tex. R. App. P. 44.2(a).
When conducting a harm analysis, we focus on the integrity of the process leading to the
conviction, not on the propriety of the outcome of the trial. See Wesbrook v. State, 29 S.W.3d 103, 119
(Tex. Crim. App. 2000). We must calculate, as nearly as possible, the probable impact of the error on
the jury in light of the evidence adduced at trial. McCarthy v. State, 65 S.W.3d 47, 55 (Tex. Crim. App.
2001) (citing Wesbrook, 29 S.W.3d at 119). “If there is a reasonable likelihood that the error materially
affected the jury’s deliberations, then the error is not harmless beyond a reasonable doubt.” Id. The
critical inquiry is whether there is “a reasonable possibility that the error, either alone or in context,
moved the jury from a state of nonpersuasion to one of persuasion as to the issue in question.”
Wesbrook, 29 S.W.3d at 119.
In this case, we assume, without deciding, that the trial court erred by
denying Rodriguez-Flores the opportunity to ask about the panel members’ ability to apply the
duress defense regardless of the victim’s status as a child. We must evaluate whether there is a
reasonable likelihood that the denial of this opportunity, either alone or in context, moved the jury from
a state of nonpersuasion to one of persuasion that the duress defense did not apply, thus affecting
Rodriguez-Flores’s conviction. See id. at 119-20 (holding no reasonable likelihood that inadmissible
portion of testimony containing additional incriminating information moved jury to state of persuasion
on issue of future dangerousness when jury possessed details about defendant’s “killing spree that left
16
five people dead” and his solicitation of further murders). When analyzing harm from the prohibition
of a proper question that a party seeks to ask the entire venire panel, we review the entire record, and
to the extent applicable, use the following factors as context for our consideration of the error’s effect
on the jury’s deliberations: (1) any testimony or physical evidence admitted for the jury’s consideration;
(2) the nature of the evidence supporting the verdict; (3) the character of the alleged error and how it
might be considered in connection with other evidence in the case; (4) the jury instructions; (5) the
State’s theory and any defensive theories; (6) closing arguments; (7) voir dire; and (8) whether the State
emphasized the error.19 See Rich v. State, 160 S.W.3d 575, 577-78 (Tex. Crim. App. 2005) (citing
Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim. App. 2002) (setting forth factors to consider in
harm analysis and applying relevant factors to analysis of erroneous admission of evidence)).
19
In Rich v. State, the court of criminal appeals did not state that the harm analysis for denial
of a proper jury voir dire question should be conducted under rule 44.2(b), which governs
non-constitutional error, but it assumed that rule 44.2(b) applied because the court of appeals had
concluded that it did and the appellant did not contest that conclusion. 160 S.W.3d 575, 577
(Tex. Crim. App. 2005). The court later explained in Jones v. State, that “[a] long line of cases
has held that the ‘right to counsel’ under the Texas Constitution includes the right to pose
proper questions during voir dire examination.” 223 S.W.3d 379, 381 (Tex. Crim. App. 2007).
Although the dissent in Jones suggested that the cases were wrongly decided, the majority stated that
“the state constitutional right in question has been recognized for over ninety years” and that re-
examination of whether the right was a constitutional one had not been raised by the State. Id. at
382. Consequently, the court declined to re-examine the issue and clarified that the Rich opinion
did not change prior precedent holding that denial of the opportunity to ask a proper voir dire
question is an error of constitutional magnitude. Id. Thus, the harm analysis is conducted under the
heightened rule 44.2(a) standard of review. Id. at 382-83 (discussing State’s attempt to limit scope
of constitutional right to ask proper question). In cases decided after Jones, courts have continued
to apply the Rich factors while using the heightened rule 44.2(a) standard of review. See, e.g., id.,
remanded to 264 S.W.3d 26, 28 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d); Lancaster
v. State, 319 S.W.3d 168, 171-72 (Tex. App.—Waco 2010, pet. ref’d).
17
We first consider the potential error’s effect in the context of the remainder of the
voir dire because we find that factor to be most important under the facts of this case. When we
consider the entire voir dire discussion about duress, we cannot say that there is a reasonable likelihood
that the trial court’s potentially erroneous prohibition of the proper question materially affected the
jury’s deliberations. Rodriguez-Flores engaged in extensive discussion with and questioning of the
venire panel about the application of the duress defense and different aspects of the defense’s burden
of proof to show duress. The victim’s age was raised by three different panelists’ responses to questions
about their ability to follow the law on duress that did not include the victim’s age in the question.
None of these panelists (numbers 2, 10, and 25) served on the jury. It was only after panelist number
25 (the third panelist to raise the issue) stated that she could not consider the duress defense because
the victim was a child that defense counsel attempted to question panelist number 27 and then the entire
panel about their ability “to follow the law of duress and acquit regardless of the age of the victim.”20
After sustaining the State’s final objection “to adding the age of the victim as part of following the law,”
the trial court allowed Rodriguez-Flores to continue his sequential questioning of the remaining
members of the panel about their ability to follow the law on duress with the next panelist, number 28.
Defense counsel asked the remaining jurors: “If we show the threat -- that threat of
imminent death or serious bodily injury, if we meet our burden and we didn’t recklessly put ourselves
in that position, would you be able to follow the law of duress and acquit . . . ?” Two of the remaining
20
After asking panelist number 27 this question, defense counsel continued his questioning,
stating: “And the same question I’ll ask everybody -- I guess I’ll phrase it, is everybody still the
same question on row one, they could follow the law regardless of the age of the victim?” This
question drew the State’s final objection “to adding the age of the victim as part of following
the law.”
18
panelists said that they would not be able to follow the law on duress. Panelist number 41 said “no”
without giving a reason, and panelist number 57 said she “could take [it] into consideration in
sentencing, but I don’t understand not being charged -- being -- saying you’re not guilty and admitting
you did the crime.” The defense’s challenge to number 41 was granted because of his answer to the
duress question, and the challenge to number 57 was granted because both sides challenged her. As a
result, every person who sat on the jury answered “yes” to the question of whether he or she could
follow the law on duress after hearing that the victim was a child. In sum, given these facts, we
conclude that there is no reasonable likelihood that the trial court’s potentially erroneous denial of the
question about the victim’s age moved the jury from a state of nonpersuasion to persuasion that the
duress defense should not apply to Rodriguez-Flores.
In addition, the character of the error is an important consideration. If we had concluded
that denial of the proper voir dire question potentially had led to the seating of impermissibly biased
jurors, that would be the sort of error that would defy analysis. See Gonzales v. State, 2 S.W.3d 600,
606 (Tex. App.—Texarkana 1999, pet. ref’d) (noting that this type of error can “skew every act taken
by counsel in connection with the denied questions because counsel has been improperly denied
the right to have any insight into the juror’s reaction to that area”). Instead, we concluded that all the
seated jurors had the opportunity to consider whether they could follow the law of duress after hearing
that the victim was a child.21 Thus, the trial court’s potential error had no effect on the jury’s
21
This case also differs from those cases in which denial of a proper voir dire question
makes it “almost impossible to determine how the error affected ‘the way in which a defense counsel
would [have] conduct[ed] the trial’” because of the nature of the question. Tijerina, 202 S.W.3d
at 305 (alteration in original) (quoting Gonzales v. State, 2 S.W.3d 600, 606 (Tex. App.—Texarkana
1999, pet. ref’d) (noting that prudent defense counsel would not attempt to present evidence of a
19
consideration of the evidence admitted at trial. Consequently, the other Rich factors have no bearing
on the harm analysis.22
We hold that there is not a reasonable likelihood that the trial court’s potential error
contributed to Rodriguez-Flores’s conviction or punishment because the seated jurors all had the
opportunity to consider whether they could follow the law on duress after hearing that the victim was
a child. Every panelist who indicated that he or she could not follow the law on duress was struck from
the panel. Given the facts of this case, we conclude that the trial court’s potential error in prohibiting
the proposed question about the victim’s age was harmless. Therefore, we overrule Rodriguez-Flores’s
first issue.
Denial of challenge for cause
In his second issue, Rodriguez-Flores contends that the trial court erred by denying his
challenge for cause to venireperson Unberhagen (panelist number 38). Rodriguez-Flores asserts that
specific defense to jury if prevented from questioning jurors about that defense)). Here, the victim’s
age was a fact that would be introduced at trial whether or not Rodriguez-Flores had the opportunity
to ask the venire panelists about its effect on their ability to apply the duress defense. In addition,
Rodriguez-Flores had the opportunity to fully explain different aspects of the duress defense and ask
all the jurors about their ability to follow the law and apply it if he carried his burden of proof. In
contrast, the questions asked in the cases finding harm have involved topics such as witness
credibility or the applicability of a specific defense, and the courts have found that the error created
harm by precluding the defendant “from making an intelligent decision” about a particular trial
strategy. E.g., id. at 305-06 (holding that denial of defendant’s ability to learn whether potential
jurors could impartially judge credibility of convicted felon precluded intelligent decision about
exercising substantial right to testify on own behalf).
22
We note that although “the presence of overwhelming evidence supporting the finding in
question [i.e., that the duress defense does not apply] can be a factor in the evaluation of harmless
error,” in this case, the nature of the evidence supporting the verdict on the duress defense is
sufficient, but not overwhelming, and thus a neutral factor. Wesbrook v. State, 29 S.W.3d 103, 119
(Tex. Crim. App. 2000).
20
he challenged venireperson Unberhagen for cause based on her answers and equivocations about
whether she could follow the law on the range of punishment, on duress, and on accomplice witnesses.
The State responds that Rodriguez-Flores failed to preserve any alleged error for review because he did
not make a timely, specific challenge for cause to venireperson Unberhagen upon which the trial court
ruled adversely. Alternatively, the State contends that the trial court did not err in denying the purported
challenge for cause because Unberhagen affirmatively stated that she could consider the full range
of punishment.
We review the trial court’s denial of a challenge for cause for abuse of discretion.
Swearingen v. State, 101 S.W.3d 89, 98 (Tex. Crim. App. 2003). When reviewing the trial court’s
decision, we consider the venireperson’s voir dire as a whole. Id. at 99. We accord great deference to
the trial court’s decision because the trial judge had the opportunity to observe the venireperson’s
demeanor and to listen to her tone of voice. Id.; see also Feldman v. State, 71 S.W.3d 738,
744 (Tex. Crim. App. 2002), superseded by statute on other grounds, Tex. Code Crim. Proc.
Ann. art. 37.071 (West Supp. 2010), as recognized in Coleman v. State, No. AP-75,478,
2009 WL 4696064, at *11 & n.46 (Tex. Crim. App. Dec. 9, 2009) (per curiam) (not designated for
publication). We give particular deference to the decision when the venireperson’s answers are
vacillating, unclear, or contradictory. Feldman, 71 S.W.3d at 744. The proponent of a challenge for
cause bears the burden of establishing that his challenge is proper. Id. at 747. Rodriguez-Flores must
show that Unberhagen “understood the requirement of the law and could not overcome [her] prejudice
well enough to follow it.” Id.
21
The trial court addressed both sides’ challenges for cause after they had finished their
voir dire of the venire panel. After a recess, the trial court informed the panel that he would have a
conference with the lawyers and then would call some panelists for follow-up questions. When the
trial judge conferred with counsel for both sides about their lists of challenges for cause, he informed
counsel that if his notes were consistent with their challenges, then they would not need to talk to the
venire panelists.23 As the trial judge went through the list of panelists, when he reached Unberhagen
(panelist number 38), he stated:
The Court: I show on 38 that she’s not sure about probation. So we’ve got
to bring her up. Okay.
Defense counsel: Do you want to agree to that?
Prosecutor: No.
23
It is clear from the context of the discussion in the record that Rodriguez-Flores challenged
Unberhagen for cause and the trial court’s notes reflected that she was not sure about probation. See
Tex. R. App. P. 33.1(a)(1)(A) (requiring for preservation of error timely objection that states ground
for ruling sought “with sufficient specificity to make the trial court aware of the complaint, unless
the specific grounds were apparent from the context” (emphasis added)); see also Feldman v. State,
71 S.W.3d 738, 744 (Tex. Crim. App. 2002) (explaining steps for preserving error on denied
challenge for cause), superseded by statute on other grounds, Tex. Code Crim. Proc. Ann. art.
37.071 (West Supp. 2010), as recognized in Coleman v. State, No. AP-75,478, 2009 WL 4696064,
at *11 & n.46 (Tex. Crim. App. Dec. 9, 2009) (per curiam) (not designated for publication).
As discussed in more detail below, when Unberhagen was brought up to the bench, the trial
court allowed Rodriguez-Flores to question her about her answers on several topics. The State
alternatively argues that if Rodriguez-Flores preserved error, he only preserved it on the issue of the
challenge for cause based on Unberhagen’s answer to the question of whether she could consider the
full range of punishment. The State contends that error was preserved only on this issue based on
a discussion that defense counsel had with the trial court after voir dire when seeking an additional
peremptory strike. Defense counsel identified Unberhagen as a juror upon whom he had to use one
of his peremptories when his challenge for cause was denied, but only mentioned the issue of
whether Unberhagen could consider probation as grounds for his challenge for cause. The trial court
denied defense counsel’s request for an additional peremptory strike. We will assume, without
deciding, that Rodriguez-Flores preserved error and preserved it on all the topics upon which he
questioned Unberhagen at the bench.
22
Later, when preparing to call a group that included Unberhagen, the trial court stated: “I think 38 is
close but we need to bring her up.”24
When Unberhagen was brought up to the bench, defense counsel, the State, and the trial
court all questioned Unberhagen extensively about her answers to various questions. When defense
counsel questioned her about her ability to follow the law on certain issues, she stated that she leaned
toward not considering probation, she would have a hard time applying the duress defense, and it
would be harder for her to believe an accomplice witness. After the State reminded Unberhagen that
aggravated kidnapping could mean a number of different scenarios and asked whether she could
consider the full range of punishment from probation to life in prison, Unberhagen agreed that she could
assess a sentence somewhere in that range and consider both ends of the spectrum. When defense
counsel revisited the question with her, she stated “I don’t think I said I could consider probation.” The
court and the State both reminded her that she had said she could consider the full range of punishment,
and the State further discussed the issue with her as follows:
Prosecutor: Okay. Well, the question was the full range of punishment
which is from probation, five years probation all the way to life,
and it’s all of those fact situations including the father who’s
rescuing his son.
....
So, what that means is that it could -- the facts could include --
remember we’re not asking you what you’re going to give Esau
Rodriguez --
24
When defense counsel had asked Unberhagen if she could consider giving a term of
probation to someone found guilty of aggravated kidnapping, she said, “I don’t -- I don’t think so.”
23
Ms. Unberhagen: Right.
Prosecutor: We’re asking you whether you can consider the full range of
punishment for the offense of aggravated kidnapping which can
mean many different things. It can mean something terrible. It
can mean the example that I gave. It can mean whatever else you
can come up with.
Ms. Unberhagen: Okay.
Prosecutor: Okay. And your answer was that you could -- and being able to
consider the full range of punishment is, what that means is that
you haven’t already made a decision, that and you’re going to
wait to hear all the evidence, and after that you will set
punishment somewhere in that range, that you might consider the
full range of punishment and say, you know what, I think
probation is appropriate, or you may consider the full range of
punishment and say, you know what, I think 50 years
is appropriate.
So, if you have already made up your mind and ruled something
out, that’s one thing; but if you’re willing to keep an open mind
and wait to make a decision once you’ve heard the evidence, then
you’re qualified.
The Court: Request an answer.
Ms. Unberhagen: I would rather listen to the evidence and make my decision,
listen to everything.
....
Defense counsel: Ma’am, if you find somebody guilty of aggravated kidnapping --
Ms. Unberhagen: Yes.
Defense counsel: -- can you consider probation?
Ms. Unberhagen: Yes.
24
The State also reminded Unberhagen that they had discussed the law that the jurors can
evaluate witnesses and decide whether to believe all, some, or none of what a witness says, and
Unberhagen agreed that although she might be more skeptical of an accomplice witness, she would
“not completely” automatically disbelieve one. The State further discussed the law of duress with
Unberhagen, who appears to have struggled with the defense’s explanation about compulsion and the
distinction between the defendant’s recklessly or negligently placing himself in a situation where he
would be subject to compulsion.25 The trial court then offered additional explanation about the law of
duress and questioned Unberhagen about her ability to follow the law. After its explanation, the
trial court stated:
The Court: It is possible to disagree with the particular law in this country in
which we live in but still follow it, and that’s really what I’m
getting at. You will be told the law, and that’s my job; and if I
don’t tell it right and I put it in writing, then it’s reviewed later,
and if I make a mistake, then I’m held accountable.
I do not really want you to answer a question in any particular
way. The reason I started asking is that I didn’t know if you
were one of the people who try to get off, and I’m not -- I’m
certain you’re not; I just want to make certain that you
understand what the issues are.
....
Whatever the law is on duress, if I give it to you, if you see it and
you disagree with it, can you follow it?
Ms. Unberhagen: Yes.
25
The defense of duress “is unavailable if the actor intentionally, knowingly, or recklessly
placed himself in a situation in which it was probable that he would be subjected to compulsion.”
Tex. Penal Code Ann. § 8.05 (West 2011).
25
The Court: Okay.
Defense counsel: And that means finding not guilty if --
Ms. Unberhagen: Right.
Rodriguez-Flores argues that Unberhagen should have been excused for cause,
contending, without reference to any supporting authority, “that the efforts of the State and the Court
to rehabilitate the juror amounted to coercion.” A prospective juror is properly challengeable if he has
a bias or prejudice against any phase of the law upon which the defense is entitled to rely, and
the bias or prejudice would substantially impair the prospective juror’s ability to carry
out his oath and instructions in accordance with the law. Before a prospective juror can
be excused for cause on this basis, however, the law must be explained to him and he
must be asked whether he can follow that law regardless of his personal views.
Id. at 744 (citations omitted) (emphasis added). Consequently, if a prospective juror answers a question
in a way that makes him challengeable for cause, the judge or the opposing party may “explain the law
further in the hope of having the juror reconsider his position.” Cardenas, 325 S.W.3d at 187.
After reviewing Unberhagen’s voir dire as a whole, we conclude that her answers were,
at most, vacillating, but after additional discussion with the parties and the court, ultimately clear. The
trial court was in the best position to evaluate Unberhagen’s responses and was entitled to believe
that she could follow the law. See Feldman, 71 S.W.3d. at 747. Therefore, we must defer to the
trial court’s discretion to deny Rodriguez-Flores’s challenge for cause. We overrule Rodriguez-Flores’s
second issue.
26
Admission of pretrial services officer’s testimony
In his third issue, Rodriguez-Flores challenges the trial court’s admission of
Lana Ewing’s testimony. Ewing was an officer with Travis County Pretrial Services who interviewed
Rodriguez-Flores for a personal bond after Rodriguez-Flores was in custody and charged with
aggravated kidnapping. Rodriguez-Flores contends that the use of Ewing’s testimony at trial violated
his substantial rights because the interview was a custodial interrogation by an agent of the State who
did not inform him of his Miranda rights, given the trial court’s findings that Ewing was a Travis
County employee and Rodriguez-Flores was in custody when he talked to her.26 The State argues that
the record establishes that Ewing’s interview with Rodriguez-Flores did not constitute a custodial
interrogation because Ewing was not a law-enforcement officer and no law-enforcement agency
compelled Rodriguez-Flores to speak with Ewing.
We review a trial court’s ruling admitting or excluding evidence for abuse of discretion.
Ramos v. State, 245 S.W.3d 410, 417-418 (Tex. Crim. App. 2008) (analyzing trial court’s admission
of statement taken after defendant arguably asserted Fifth Amendment right to remain silent). We will
uphold the trial court’s ruling if it is reasonably supported by the record and is correct under any theory
of law applicable to the case. Id. at 418.
26
Rodriguez-Flores presents this issue as a violation of his substantial rights, but asserts in
his reply brief that we should analyze harm under the constitutional-error rule because his
“complaint is one of constitutional dimensions.” We agree that because he asserts a violation of his
Fifth Amendment right against self-incrimination, we would analyze any finding of error under
the constitutional-error rule. See Ramos v. State, 245 S.W.3d 410, 419 (Tex. Crim. App. 2008)
(remanding case to appellate court for harm analysis under Texas Rule of Appellate Procedure
44.2(a) after holding police did not honor appellant’s assertion of his Fifth Amendment right to
remain silent); see also Tex. R. App. P. 44.2(a).
27
At trial, Rodriguez-Flores challenged whether Ewing’s testimony about an admission
against penal interest made by Rodriguez-Flores should be admitted, arguing both that he had not
received proper notice that Ewing would be a witness and that the interview was “a custodial
interrogation by an agent of the State who did not inform Mr. Rodriguez of his right to remain silent
nor the possibility that whatever he said might be used against him in court.”27 At a hearing outside the
presence of the jury, after hearing Ewing’s proposed testimony, the trial court made a finding of fact
on the record that:
[Ewing] is an employee of the County of Travis, a division . . . of the county created by
the state government of the State of Texas. The defendant was in custody. Those are
facts that cannot be disputed. And she did question him. The question is, is she
required in her role to give any warnings. The question also is, was it interrogation.
And it clearly is custodial contact. But is it custodial interrogation as that has been
defined and described in law? I don’t know if it is or is not. This is a new issue. . . . I
have entered those findings of fact.
After argument by counsel for both sides, the trial court reserved its ruling on both this issue and
the issue of whether defense counsel had received proper notice of the witness. The court indicated
during discussion of the custodial-interrogation issue with counsel that “[w]e are having this discussion
because I want you to know I am probably inclined to rule against you.” During the discussion
about reserving its ruling until the following morning, the trial court also stated that the State had
established to the court’s satisfaction that it had given defense counsel adequate notice of the witness.
The following morning, immediately after defense counsel informed the court that he had not found
any case law on point on the custodial-interrogation issue, the court granted defense counsel’s
27
Rodriguez-Flores does not challenge the trial court’s ruling on the notice issue on appeal.
28
request for a running objection to the testimony, stating “The Court’s ruling is the same. The objection
is overruled.”28
Ewing testified at trial about what Rodriguez-Flores told her in his interview.
Rodriguez-Flores told Ewing that his cousin Marco had asked him to help kidnap a five-year-old boy
because Marco could not do it alone and Vences had asked Marco to do it. Rodriguez-Flores told
Ewing that Vences was fighting with someone unknown to Rodriguez-Flores over money and planned
the kidnapping to get back at that person. He told her the little boy was not hurt or injured and that
he last saw the child with Vences, but could not remember where. Ewing testified that she had
explained to Rodriguez-Flores that the purpose of the interview was for her to make a recommendation
about whether he should be released from jail on a personal bond. She stated that therefore there was
some motivation for him to make himself look as good as possible when explaining to her the
circumstances of his offense. Ewing testified that Rodriguez-Flores did not tell her that he had been
forced, threatened, or coerced into committing the kidnapping or that his own life or his family’s life
had been threatened or that he feared for his own or their safety.
28
The State argues that there was no adverse ruling (or any ruling at all) on the
custodial-interrogation issue, and therefore, Rodriguez-Flores did not preserve error on this issue.
The State, citing Heidelberg v. State, also complains that Rodriguez-Flores’s argument on appeal
does not correspond with his objections at trial because on appeal Rodriguez-Flores does not
mention “custodial interrogation” and he uses different arguments and analogies than he presented
to the trial court. 144 S.W.3d 535, 537-38 (Tex. Crim. App. 2004) (analyzing preservation of error
when defendant asserted federal, but not state, constitutional error at trial and asserted state
constitutional error on appeal). We note that Rodriguez-Flores bases his appellate argument on the
constitutional concerns raised by a county employee’s interview of him while in custody without
warning him and then having those statements used against him at trial. We will assume without
deciding that Rodriguez-Flores adequately preserved error and that his issue presented for review
is the same as his objection at trial.
29
Rodriguez-Flores argues that a defendant cannot be forced to forfeit his constitutional
right against self-incrimination to assert his constitutional right to bail. See Simmons v. United States,
390 U.S. 377, 393-94 (1968) (holding that defendant’s testimony offered in support of motion to
suppress evidence may not later be admitted against him at trial on issue of guilt because one
constitutional right should not have to be surrendered in order to assert another); see also Lykins
v. State, 784 S.W.2d 32, 36-37 (Tex. Crim. App. 1989) (holding that defendant need not invoke
his privilege against self-incrimination and did not waive privilege by answering corrections
officer’s questions because corrections department imposed direct penalty for failure to answer
corrections officer’s questions). The Fifth Amendment right against self-incrimination protects an
individual from being compelled by the state to be a witness against himself. U.S. Const. amend. V.
The Supreme Court has established procedural safeguards to secure an individual’s privilege against
self-incrimination during custodial interrogation and has held that the prosecution may not use
statements stemming from custodial interrogation of the defendant unless it demonstrates the effective
use of those procedural safeguards. Miranda v. Arizona, 384 U.S. 436, 444 (1966). The State contends
that the right against self-incrimination is not implicated here because Rodriguez-Flores’s statements
to Ewing were not the product of custodial interrogation.
Custodial interrogation is “questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his freedom of action in any significant
way.” Id. A custodial interrogation occurs, and the Miranda safeguards must be used, when a
defendant is in custody and is exposed “to any words or actions on the part of the police . . . that
the police should know are reasonably likely to elicit an incriminating response.” Rhode Island v. Innis,
30
446 U.S. 291, 301 (1980). The court of criminal appeals has established that Miranda generally
only applies to questioning by law-enforcement officers or their agents. Wilkerson v. State,
173 S.W.3d 521, 527 (Tex. Crim. App. 2005) (holding trial court did not abuse its discretion when it
implicitly concluded child protective services investigator was not acting as law-enforcement agent for
Miranda purposes and admitted investigator’s testimony about defendant’s statement to her). The State
argues that Ewing’s interview was not a custodial interrogation because the record affirmatively
established that Ewing was not a law-enforcement officer and that no law-enforcement agency
compelled Rodriguez-Flores to speak with Ewing.
The trial court found that Ewing was a county employee who questioned
Rodriguez-Flores while he was in custody. Although “all those who are employed by any state
agency are, by definition, ‘state agents,’ . . . only those who are working for or on behalf of police are
law-enforcement ‘state agents.’” Id. at 528. Different types of state employees serve different roles,
and law enforcement’s role is “to ferret out crime, investigate its commission, arrest the perpetrator, and
gather evidence for a possible prosecution.” Id. Ewing testified that the purpose of the pretrial services
interview is to “interview individuals that are looking to get out of jail on their own recognizance
without having to put forth any money as long as they are able to come back to court and comply with
any stipulations that are set,” not for any law-enforcement purposes. She gathers information from
defendants who independently choose whether they want to be interviewed for a personal bond so that
she can make a recommendation to the judge about whether they should be approved for a personal
bond. The information she gathers includes the defendant’s address, phone number, employment
31
information, references, “anything that they want to say about the allegations that happened, [and] how
they got brought to jail.”
We must examine the entire record to determine whether a particular state agent is
working for or on behalf of the police in a particular case. Id. at 529-30. We must evaluate the actions
and perceptions of the parties involved: the police, Ewing, and Rodriguez-Flores. See id. at 530. We
first consider the relationship between the police and Ewing. See id. Ewing testified that no one from
the Austin Police Department, the district attorney’s office, or any law-enforcement agency had asked
her to speak with Rodriguez-Flores about the offense. It appears from the record that there was no
relationship between Ewing and the police: the police did not arrange the meeting, they were not
present during the interview, they did not provide Ewing with questions to ask or give her instructions
to obtain certain information from Rodriguez-Flores, and there was no “‘calculated practice’ between
the police and [Ewing] that was likely to evoke an incriminating response from [Rodriguez-Flores]
during the interview.” Id. Nothing in the record shows that the police were using Ewing’s interview
to obtain information that they could not lawfully obtain themselves. See id.
Next, we review the record of Ewing’s actions and perceptions about the purpose of the
interview. See id. As described above, Ewing’s primary reason for questioning Rodriguez-Flores was
to determine whether she should recommend that he be granted a personal bond, and her questions were
aimed at gathering information for that purpose, not to assist with his criminal prosecution. See id. She
interviewed Rodriguez-Flores at his request after she asked him if he would like to be interviewed for
a personal bond. See id. Ewing testified that her five-to-ten minute interview with Rodriguez-Flores
was a routine part of her job and that she regularly conducts similar interviews with people who are
32
arrested for various offenses. She testified that this was the first time that she has ever been asked to
testify in court about something a defendant told her. She testified to the jury that she is not a police
officer or a peace officer; she testified in the hearing outside the presence of the jury that she is not a
law-enforcement officer. Nothing in the record indicates that Ewing believed that she was acting as a
law-enforcement agent. See id.
Finally, we examine the record for Rodriguez-Flores’s perceptions of the encounter. See
id. Rodriguez-Flores did not testify about Ewing’s interview of him, so we have no direct evidence
about whether he believed he was talking to “a law-enforcement agent, someone cloaked with the actual
or apparent authority of the police.” Id. Accordingly, we must evaluate the likely belief of a reasonable
person in Rodriguez-Flores’s position. See id. at 531. Ewing testified that when she interviews
defendants for a personal bond, she calls them up and identifies herself as being with pretrial services
and asks if they understand what a personal bond is. If they do not, she explains it to them and asks if
they would like to apply for it. It is not mandatory that a defendant interview with pretrial services; the
defendant must choose whether to do it. Based on these facts, we cannot conclude that a reasonable
person in Rodriguez-Flores’s position would have believed Ewing was a law-enforcement agent. See
id. at 533.
On the other hand, Ewing testified that the information she gathers from defendants,
which includes information about the offense for which they have been arrested, provides the basis for
her recommendation to the judge about whether they should be granted a personal bond or not. The
usual purpose of the interview is to enable the court to determine whether a defendant should be
allowed out on a personal bond. While under ordinary circumstances Ewing would not be considered
33
to be acting as a law-enforcement agent for Miranda purposes when she interviewed Rodriguez-Flores,
and the interview she conducted would not be a custodial interrogation requiring Miranda warnings,
the State’s attempt to rely on the unwarned statements that Rodriguez-Flores made to Ewing
raises Fifth Amendment concerns similar to those addressed by the United States Supreme Court in
Estelle v. Smith, 451 U.S. 454 (1981). In Estelle, a court-appointed psychiatrist had interviewed the
defendant in jail to determine his competency to stand trial, and the State later used the defendant’s
unwarned statements against him during the penalty phase of a capital murder trial to prove
future dangerousness. Id. at 457-60. The Supreme Court held that the admission of the psychiatrist’s
testimony at the penalty phase violated the defendant’s Fifth Amendment rights. Id. at 466-68. The
Court explained that “[w]hen [the psychiatrist] went beyond simply reporting to the court on the issue
of competence and testified for the prosecution at the penalty phase on the crucial issue of [defendant’s]
future dangerousness, his role changed and became essentially like that of an agent of the State
recounting unwarned statements made in a postarrest custodial setting.” Id. at 467. “In essence, an
agent of the trial judge, himself a state agent, was used to collect incriminating evidence for the
prosecution.” Wilkerson, 173 S.W.3d at 527 n.17 (discussing Estelle). We conclude that the State’s
use of Ewing’s testimony at trial had the same effect, changing her role from reporting to the court on
the issue of Rodriguez-Flores’s suitability for personal bond to that of a state agent used to collect
incriminating evidence for the prosecution.29
29
Although the situation in this case differs from Estelle because Rodriguez-Flores was not
compelled to talk to Ewing, the interview is nevertheless a practice that is reasonably likely to evoke
an incriminating response from a suspect, as “incriminating response” has been defined by the
Supreme Court. See Rhode Island v. Innis, 446 U.S. 291, 301-02 & n.5 (1980). An “incriminating
response” is “any response—whether inculpatory or exculpatory—that the prosecution may seek to
34
Accordingly, after considering the whole record, we will assume without deciding that
the trial court abused its discretion by admitting Ewing’s testimony about Rodriguez-Flores’s statements
in his interview. But even assuming error by the trial court, we find it to be harmless error. Our review
of the entire record indicates that there is no reasonable possibility that admitting this testimony moved
the jury from a state of nonpersuasion to one of persuasion that Rodriguez-Flores was not entitled to
the duress defense. See Wesbrook, 29 S.W.3d at 119. The jury heard testimony from Rodriguez-Flores
and Marco about their fear that Vences would harm them and Marco’s family if they did not help
him with the kidnapping, and they saw most of Rodriguez-Flores’s six-hour police interview. The
State obtained an admission from Rodriguez-Flores that he had never mentioned to police that
Vences threatened him with a gun the night before the kidnapping. Although Ewing testified that
Rodriguez-Flores did not mention being threatened or fearing for his life in her interview with him, she
also acknowledged that the interview lasted approximately “five or ten minutes” and that she does not
usually get too much into the details with the inmates. Neither side mentioned the interview in its
closing argument. Given the substantial amount of other testimony about the details of the threats
from Vences, there is no reasonable likelihood that the jury was moved to a state of persuasion that
introduce at trial.” Id. at 301 n.5. The Supreme Court held in Innis that “the Miranda safeguards
come into play whenever a person in custody is subjected to either express questioning or its
functional equivalent,” and that “its functional equivalent” refers to “any words or actions on the part
of the police (other than those normally attendant to arrest and custody) that the police should
know are reasonably likely to elicit an incriminating response from the suspect.” Id. at 300-01. As
discussed above, a pretrial services officer’s report to the court for the limited purpose of
determining a defendant’s suitability for personal bond ordinarily would not raise Fifth Amendment
concerns because the pretrial services officer’s role is not normally that of a law-enforcement agent.
It is the prosecution’s decision in this case to subpoena Ewing and introduce her testimony that
transformed her into a state agent used to collect incriminating information and the interview into
a custodial interrogation.
35
Rodriguez-Flores did not act under duress based on Ewing’s interview, considered either alone or in
context. See id. at 120; see also Clay v. State, 240 S.W.3d 895, 904-05 (Tex. Crim. App. 2007)
(analyzing harm from evidence admitted in violation of constitutional right). Thus, any error from the
admission of Ewing’s testimony would be harmless. We overrule Rodriguez-Flores’s third issue.
Legal sufficiency of evidence
In his fourth issue, Rodriguez-Flores contends that the evidence supporting the jury’s
failure to find release of the victim in a safe place was legally insufficient. See Tex. Penal Code Ann.
§ 20.04(d). If a defendant proves by a preponderance of the evidence that he voluntarily released
the victim in a safe place, aggravated kidnapping is reduced from a first-degree to a second-degree
felony at the punishment stage. Id. After the trial court submitted this question to the jury, it found
that Rodriguez-Flores did not release A.J. in a safe place. The State argues that there was substantial
evidence in the record supporting the jury’s finding.
Although the court of criminal appeals has not directly addressed the issue, most courts
of appeals allow defendants to challenge the legal sufficiency of the evidence supporting a jury’s
rejection of an issue for which the defendant bore the burden of proof.30 See, e.g., Ballard v. State,
161 S.W.3d 269, 271-72 (Tex. App.—Texarkana 2005) (collecting cases), aff’d, 193 S.W.3d 916
(Tex. Crim. App. 2006); Howard v. State, 145 S.W.3d 327, 330-32 (Tex. App.—Fort Worth 2004,
no pet.); but see Naasz v. State, 974 S.W.2d 418, 421 (Tex. App.—Dallas 1998, pet. ref’d) (holding
courts of appeals have no jurisdiction to review legal sufficiency of evidence supporting jury’s rejection
of issue for which defendant bore burden of proof). When conducting such a legal-sufficiency
30
See also Morales, 2010 WL 3058623, at *1 n.2 (noting same in Vences’s appeal).
36
review, an appellate court reviews the evidence in a light most favorable to the verdict and
reverses only when the evidence conclusively establishes the opposite. Perez v. State, 323 S.W.3d 298,
304 (Tex. App.—Amarillo 2010, pet. ref’d); Wheat v. State, 165 S.W.3d 802, 807 n.6
(Tex. App.—Texarkana 2005, pet. ref’d, untimely filed) (citing Ballard, 161 S.W.3d 269); Howard,
145 S.W.3d at 334. In this situation, we apply a two-part test. See Clark v. State, 190 S.W.3d 59, 62
(Tex. App.—Amarillo 2005, no pet.); Ballard, 161 S.W.3d at 272; Nolan v. State, 102 S.W.3d 231, 238
(Tex. App.—Houston [14th Dist.] 2003, pet. ref’d); Howard, 145 S.W.3d at 334. First, we examine
the record for evidence that supports the negative finding on the defendant’s issue, while ignoring
evidence to the contrary. Howard, 145 S.W.3d at 334. If the evidence supports the jury’s rejection of
the issue, our analysis ends here. If, however, there is no evidence to support the finding, we examine
the entire record to determine whether the evidence establishes the defendant’s affirmative defense or
issue as a matter of law. Id.
The parties do not dispute that A.J. was voluntarily released; the only issue is whether
he was released in a safe place. The factors we consider when making this determination include: the
remoteness of the location, the proximity of persons who could aid or assist the victim, the time of
day, the climatic conditions, the victim’s condition, the character of the location or surrounding
neighborhood, and the victim’s familiarity with the location or neighborhood. Nolan, 102 S.W.3d
at 238.
Ciriolo Mora testified that he found A.J. in a stairwell in his apartment complex between
7:00 and 8:00 p.m. on the night of February 7, 2008. He asked A.J. if he could help him, and after A.J.
told him what had happened to him, Mora called the police. Mora had a child the same age as A.J., and
he testified that he was concerned about A.J. because he was a small child who could not really help
37
himself and because of the weather. Although Mora testified that “[i]t was a little cool” that night, he
also testified that his wife suggested that they get a blanket to put around A.J. Mora testified on cross-
examination that there are a lot of families with young children in the apartment complex and that the
children play outside in the courtyard there during the daytime. But he does not let his own children
play there without supervision, and he testified to his opinion that “there is no such thing as a safe place
anywhere for a five-year-old child on his own.”
Sergeant Kurt Thomas, one of the police officers assigned to the kidnapping
investigation, immediately went to the apartment complex where A.J. had been found after the
police officer who responded to the 911 call confirmed A.J.’s name. He met with Mora and inspected
the scene where A.J. was found. He described the stairwell as “very dark” and testified that it was not
a safe place for a five-year-old child to be alone after dark. Although the man who released A.J. had
told A.J. that his aunt lived in one of the apartments, the police canvassed the entire building to identify
the residents, and they did not find that any relatives of A.J. lived there.
Rodriguez-Flores emphasizes that A.J. was found quickly in a well-occupied
multi-family apartment complex and needed no medical treatment. He also points out that although A.J.
was left alone in the stairwell after dark, it was early evening and the stairwell led to occupied
apartments. But we must review the evidence in the light most favorable to the verdict, considering
only supporting evidence and ignoring evidence contrary to the verdict. See Clark, 190 S.W.3d at 62-63
(finding evidence legally sufficient to support jury’s rejection of safe release). The State presented
evidence that a five-year-old boy was left alone in a dark stairwell of an unfamiliar apartment complex
on a cold February night. As this Court stated in Vences’s appeal, which involved the same material
facts concerning A.J.’s safe release, “A.J.’s good fortune in being found by Mora and safely returned
38
to his family does not mean that the apartment complex was a safe place for the boy under the
circumstances.” Morales v. State, No. 03-09-00474-CR, 2010 WL 3058623, at *2 (Tex. App.—Austin
Aug. 3, 2010, pet. ref’d) (mem. op., not designated for publication) (affirming Vences’s conviction for
aggravated kidnapping). Our review of the evidence presented in this case shows that it supports the
jury’s verdict and does not conclusively establish the opposite.31 We overrule Rodriguez-Flores’s
fourth issue.
CONCLUSION
Having overruled all of Rodriguez-Flores’s issues on appeal, we affirm the judgment
of conviction.
__________________________________________
Diane M. Henson, Justice
Before Chief Justice Jones, Justices Henson and Goodwin
Affirmed
Filed: October 28, 2011
Publish
31
Although we are not bound by “the law of the case” doctrine here because this is not
a subsequent proceeding in the same case involving the same parties, see Jordan v. State,
576 S.W.2d 825, 828 (Tex. Crim. App. 1978), we note that the Court in Morales stated that the
evidence was legally sufficient to support the jury’s adverse finding on the release issue, although
Vences had not challenged the finding on legal-sufficiency grounds. Morales, 2010 WL 3058623,
at *2 n.3. While not binding upon us, the conclusion reached in Morales is certainly persuasive. See
Jordan, 576 S.W.2d at 828.
39