Anthony Whitney Norman, Jr. v. State ( 2012 )

Affirmed and Memorandum Opinion filed September 20, 2012.
In The
Fourteenth Court of Appeals
NO. 14-11-00433-CR
ANTHONY WHITNEY NORMAN, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 1248767
MEMORANDUM OPINION
Appellant, Anthony Whitney Norman, Jr., appeals his conviction for murder. In
six issues, appellant contends (1) the evidence is legally insufficient to support the
conviction, (2) the indictment was based on improper grand-jury proceedings, (3) he was
denied choice of counsel, (4) the trial court erred by denying appellant’s motion to
suppress, (5) the prosecutor committed misconduct, and (6) the trial court committed
various “judicial errors.” We affirm.1
1
Appellant, who appears pro se on appeal and has filed a handwritten brief, presents some issues
that are not entirely clear or are multifarious. We have tried to discern his numerous complaints; but, as
I. BACKGROUND
Appellant was convicted of murdering his twenty-five-year-old wife, Leydis Viche
Hernandez, on December 1, 2008 at their house in Houston. Appellant met Leydis in her
native country, Cuba, when she was about twenty-years old. Shortly thereafter, Leydis
moved to Houston, and the couple married. At the time of Leydis’s death, they had three
young children, including a two-week-old infant. As we will discuss, the State presented
evidence that appellant was physically and verbally abusive and domineering toward
Leydis.
It is undisputed that appellant and the couple’s four-year old son were in the
Dallas area for part of the weekend immediately before Leydis was found dead early on a
Monday morning. Leydis remained home with their infant son and three-year-old
daughter. According to appellant, he stayed with his brother, Marcus Norman, in
McKinney while performing construction work on a project they jointly owned.2
Appellant asserted that he left Marcus’s home after 11:00 p.m. on Sunday night, arrived
home shortly after 5:00 a.m., found Leydis dead on the kitchen floor, and called 9-1-1
within fifteen minutes. In contrast, the State contended appellant arrived home earlier
and killed Leydis.
In any event, appellant did call 9-1-1 at 5:12 a.m. According to the State’s
evidence, EMTs and officers with the Harris County Sheriff’s Department arrived at
we will discuss, some issues are inadequately briefed to the extent appellant has waived appellate review.
See Kindley v. State, 879 S.W.2d 261, 264 (Tex. App.—Houston [14th Dist.] 1994, no pet.) (stating pro se
litigant is held to same standards as attorney and must comply with briefing rules). Further, in appellant’s
sixth issue, contending the trial court committed various “judicial errors,” appellant reiterates some
arguments included in other issues, as well as advancing additional contentions. Thus, we have combined
our analysis of some contentions in his sixth issue with our analysis of other issues.
2
Appellant did not testify at trial, but the State presented recordings and transcripts of his
statements to investigating officers and grand-jury testimony. Our references to appellant’s accounts of
various facts and his claims regarding Leydis’s death (other than contentions in his appellate brief) are
gleaned from his statements to officers and grand-jury testimony. To the extent there were internal
inconsistencies in appellant’s accounts, we recite the version most favorable to the verdict because the
jury was free to believe that version. See Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011)
(citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)); Isassi v. State, 330 S.W.3d 633, 638 (Tex.
Crim. App. 2010).
2
various times. They found Leydis dead on the kitchen floor, lying in a pool of blood with
what the medical examiner later described as a “perforating” gunshot wound to the head,
inflicted from a gun pressed against the skin. Leydis was naked except for wearing
mismatched men’s socks, with one placed on “sideways.” Near the body was a diaper
bag containing typical baby items as well as nine one-ounce gold bars. A semi-automatic
Glock pistol, which undisputedly was owned by appellant, lay near Leydis’s feet. A
casing, which forensic experts determined was fired from the Glock pistol, was on the
kitchen counter. A bullet projectile was recovered from sheetrock in the breakfast-room
ceiling, but testing was inconclusive on whether it was fired from the Glock pistol. In the
couple’s upstairs master bedroom was a box for a gun with the make, model, and serial
number of the Glock pistol. The upstairs master bedroom and bathroom were soaked
with water, which caused the garage ceiling below to partially collapse and damaged a
common wall between the living room and the garage. The shower floor and garden bath
in the master bathroom were wet, and a robe and female undergarments were on the
floor. Two lamps on the interior wall of the living room were unplugged, as though
someone sought to avoid electrical shock or damage to the lamps. It was not immediately
clear to officers whether the death was suicide, accidental, or homicide. However, the
medical examiner ultimately classified the death as a homicide.
The first responding officer, Deputy Ben Katrib, encountered appellant standing in
the garage holding the infant, and the older children were in their upstairs bedrooms. At
the scene, appellant consented to testing of his hands for gunshot residue. Deputy Katrib
placed bags on appellant’s hands to preserve any residue, secured the bags with
handcuffs, and placed appellant in a patrol car, but he was not under arrest. The
handcuffs were eventually removed. Sergeant Henry Palacios, a homicide investigator,
then asked appellant to accompany him to the homicide-division office in Sergeant
Palacios’s vehicle, to give a statement. Appellant obliged and was also not under arrest
at that time. During the ride, Sergeant Palacios and appellant engaged in conversation,
which was partially audio recorded. Appellant was at the homicide office for
3
approximately six hours while Sergeant Palacios and Sergeant Eric Clegg conducted an
interview, which was partially audio and video recorded, and administered a polygraph
test, but again appellant was not under arrest. Appellant eventually terminated the
interview and left the office.
As we will further discuss, the State presented evidence that appellant engaged in
threatening, abusive, and aggressive behavior towards officers that day. In these
statements, appellant claimed Leydis accidently shot herself. Subsequently, appellant’s
aggressive behavior continued, and he was uncooperative in Sergeant Palacios’s
investigation or suggested various theories that a third party killed Leydis.
Approximately four months after Leydis’s death, Sergeant Palacios asked another
homicide investigator, Sergeant Craig Clopton, to obtain an additional statement because
of a “breakdown in communication” between Sergeant Palacios and appellant. Sergeant
Clopton requested that appellant come to the homicide office, but he insisted they meet at
his home. On April 1, 2009, Sergeant Clopton and two other officers video and audio
recorded a “walk-through” of the home, while appellant explained his actions when he
purportedly found Leydis’s body. The officers then took an additional statement from
him. In late May 2009, appellant informed Sergeant Clopton he found another spent shell
casing at his home. Sergeant Clopton collected the casing from the floor of the upstairs
laundry room, and forensics experts determined it was fired from the Glock pistol.
In January 2010, appellant testified before a grand jury relative to investigation of
Leydis’s death. Shortly thereafter, the grand jury indicted appellant for murder. A jury
found appellant guilty and assessed punishment of twenty-two years’ confinement.
II. SUFFICIENCY OF THE EVIDENCE
In his first and sixth issues, appellant contends the evidence is legally insufficient
to support his conviction and the trial court erred by denying his motion for an instructed
verdict. We address a challenge to the denial of a defendant’s motion for instructed
verdict as a challenge to legal sufficiency of the evidence. See Cook v. State, 858 S.W.2d
4
467, 470 (Tex. Crim. App. 1993). When reviewing sufficiency of the evidence, we view
all of the evidence in the light most favorable to the verdict and determine, based on that
evidence and any reasonable inferences therefrom, whether any rational fact finder could
have found the elements of the offense beyond a reasonable doubt. Gear v. State, 340
S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–
19 (1979)). We do not sit as the thirteenth juror and may not substitute our judgment for
that of the fact finder by re-evaluating weight and credibility of the evidence. Isassi v.
State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Rather, we defer to the
responsibility of the fact finder to fairly resolve conflicts in testimony, weigh the
evidence, and draw reasonable inferences from basic facts to ultimate facts. Id.
This standard applies equally to both circumstantial and direct evidence. Id.
Circumstantial evidence is as probative as direct evidence and alone can be sufficient to
establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Each fact
need not point directly and independently to the defendant’s guilt, as long as the
cumulative effect of all incriminating facts is sufficient to support the conviction. Id.
Our duty as reviewing court is to ensure the evidence presented actually supports a
conclusion that the defendant committed the crime. Williams v. State, 235 S.W.3d 742,
750 (Tex. Crim. App. 2007).
A person commits murder if he “intentionally or knowingly causes the death of an
individual” or “intends to cause serious bodily injury and commits an act clearly
dangerous to human life that causes the death of an individual.” Tex. Penal Code Ann. §
19.02(b)(1)–(2) (West 2011). The gist of appellant’s contentions is that the State failed to
prove Leydis’s death was a murder, the State failed to prove appellant committed the
murder or possessed the requisite culpable mental state, and he had an alibi.
A. Proof that death was a murder
On appeal, appellant suggests Leydis committed suicide because she was suffering
from post-partum depression. However, in his statements to officers, appellant
emphasized Leydis would not have committed suicide and claimed the death was
5
accidental: she heard a noise downstairs while running water upstairs, went downstairs
with her infant and the gun to investigate, and accidently shot herself.
Regardless, the jury could have reasonably concluded Leydis did not shoot herself,
purposely or accidently. Forensic testing or officers’ testimony established the following:
there was no gunshot residue on Leydis’s right hand (she was right-handed, according to
appellant); a lone particle of residue on her left hand was characterized as “negative” or
“inconclusive” because many more particles will be present when a wound is self
inflicted and the lone particle could have resulted from secondary transfer; blood-drop
patterns on Leydis’s body were inconsistent with a self-inflicted gunshot wound; and
blood splatter on her right arm was consistent with her raising the arm in an attempt to
push the gun away.
Further, witnesses characterized Leydis as a devoted mother, who seemed excited
to show off her new baby on the weekend of her death—attitudes inconsistent with
suicidal behavior. Moreover, the jury could have rationally rejected the proposition that
Leydis left water running with her three-year-old daughter upstairs and ventured
downstairs naked with her infant and a gun to confront a possible intruder, instead of
calling the police, much less that she would have pointed the gun toward her own head.
Rather, the jury could have determined, as argued by the State, that appellant
staged the scene to support his accidental-death claim. The fact the gun was found near
Leydis’s feet indicated it was deliberately placed there to present an appearance the
wound was self-inflicted. The fact that lamps on the water-damaged living-room wall
were unplugged in an apparent attempt to avoid electrocution or damage to the lamps
supported an inference that water was intentionally left running in order to stage an
accident scene—whether Leydis truly was running water and appellant left it running
after the murder; or whether he turned on the water to stage the scene.
B. Evidence that appellant committed the murder
The jury could have reasonably concluded that appellant murdered Leydis, based
6
on the couple’s tumultuous relationship and appellant’s treatment of Leydis, physical
evidence, lack of evidence to support appellant’s alibi, evidence negating involvement of
any other person, and appellant’s actions and statements after the murder.
1. The couple’s relationship
Leydis was not fluent in English and financially depended on appellant, who was
fifteen years her senior. After appellant withheld financial support in 2007, Leydis began
working as a dancer at gentlemen’s clubs, which admittedly upset appellant when he
discovered this fact. In 2007, he was also disturbed to discover she was using cocaine.
That year, each spouse filed for divorce. During divorce proceedings, Leydis moved into
an apartment and had brief relationships with two men she met at the gentlemen’s clubs.
Appellant and Leydis reconciled later that year, and she returned home.
Several of the State’s witnesses testified about the couple’s tumultuous
relationship. Kathleen Bunge and Vanessa Castillo, who befriended Leydis during 2007,
and Michael Munivar and Edward Jacobson, with whom Leydis had the romantic
relationships, used various terms to describe Leydis’s feelings about her marriage: “not
happy”; “cage[d]”; “trapped”; “sheltered”; and “manhandled.” These persons also
witnessed appellant’s abusive behavior or evidence of such abuse. Bunge saw bruises
and “finger” or “claw” marks on Leydis. At times, Leydis approached Bunge and was
crying because she feared appellant. Leydis told Castillo that appellant “abuse[d],” “hit,”
and “tied . . . up and beat” her. Castillo saw scars on Leydis’s arms and legs. Leydis
once left Castillo a voicemail, which consisted of “screaming like [Leydis] needed help.”
When Castillo further inquired, Leydis said she and appellant had argued but she was
fine. On one occasion, when Castillo drove Leydis to retrieve her children from
appellant, he threw the daughter’s shoe out of Castillo’s car in anger. According to
Munivar, appellant once appeared at the gentleman’s club where Leydis was working,
was “loud,” “obnoxious,” and disruptive, and yelled at Leydis, who seemed submissive.
Munivar also described an incident in which appellant “pound[ed]” on the door of
7
Leydis’s apartment for at least forty-five minutes, yelling, “open this fucking door,” but
she did not comply.
Additionally, the couple’s neighbor, Mary Ortiz, met Leydis while Leydis was
walking in the subdivision. Leydis said her husband “kicked” her out and she had “no
place to go.”3 Ortiz called the police who advised that Leydis, as an owner, could legally
enter the home, so Leydis broke a window to gain access. After the officer left, appellant
arrived home, retrieved a gun, and entered the home. Mrs. Ortiz then heard screaming
from the home and called the police. Mrs. Ortiz and her husband saw frequent
altercations between appellant and Leydis, involving volatile behavior by both spouses,
and the police were called multiple times. On one occasion when Helen Grace, an
employee of Leydis’s divorce attorney, accompanied Leydis to the courthouse, she
became “very nervous and kind of in a frenzy” when she saw appellant, seemed
frightened of him, and wanted to prevent him from following her home.
Further, some of these witnesses described how appellant was threatened by their
relationships with Leydis. At one point, appellant appeared at Bunge’s home, which
surprised her, because she had just moved in and did not know how he could have
discovered her address. Appellant had surveillance equipment, knew information about
Bunge’s family and her social security number, accused Bunge of having a sexual
relationship with Leydis, and mentioned numerous persons with whom Leydis was
purportedly having a sexual relationship. Appellant offered Bunge $1,000-1,200 to
refrain from seeing Leydis again, which Bunge accepted. During phone conversations,
appellant threatened Munivar to stay away from Leydis and commented, “you don’t
know who the fuck you’re dealing with. You’re messing with the wrong fucking person.
I can find you.” Appellant sent Jacobson phone calls and text messages, instructing him
3
As appellant notes, the trial court sustained appellant’s hearsay objection regarding Leydis’s
statements to Ortiz. However, Ortiz had already relayed the contents of the statements and appellant did
not request an instruction to disregard; therefore, the evidence was before the jury for consideration. See
Estrada v. State, 313 S.W.3d 274, 313 (Tex. Crim. App. 2010).
8
to refrain from seeing Leydis. Mrs. Ortiz eventually terminated her friendship with
Leydis because appellant threatened Mrs. Ortiz and her children.
Appellant acknowledged the couple’s past marital problems but denied he was
abusive. Rather, he characterized Leydis as volatile, spoiled, and a heavy spender until
he curtailed her allowance and emphasized he worked hard to provide her with “nice”
material possessions. Appellant also claimed the relationship was “great” after they
reconciled and Leydis had started “acting right.” To the contrary, the State’s evidence
indicated the relationship remained troubled and the abuse continued. Leydis told
Jacobson she reconciled with appellant only for the sake of her children and requested
Jacobson to resume their relationship, but he declined. After Leydis and appellant
reconciled, Castillo sometimes visited Leydis at the couple’s home. During one visit,
Leydis, who was five or six-months pregnant (i.e., about three months before her death)
had a cut on her eyebrow “like she had been hit.”
Moreover, appellant admitted he tried unsuccessfully to call Leydis from the
Dallas area several times over the weekend just before her death and during his trip
home, which the jury could have inferred reminded appellant of the previous year when
he did not know Leydis was working in gentlemen’s clubs and she had broken away from
him. Appellant also admitted he was irritated when he arrived home that Leydis had left
in the driveway a nice bicycle he bought for her. Further, the gold bars in the diaper bag
supported an inference Leydis planned to leave appellant or otherwise was hiding
valuables from him; appellant acknowledged picking up the diaper bag, albeit
purportedly to feed the infant after finding Leydis’s body. These factors individually
might not establish a motive to kill Leydis; and, as the State argued, the jury would never
know exactly what transpired in the home that morning because the evidence was
circumstantial. However, these factors, together with all the evidence, supported an
inference appellant was angry when he arrived home and his controlling nature and
mindset that Leydis was unappreciative surfaced, resulting in the altercation leading to
her death.
9
2. Physical evidence
Moreover, physical evidence supported a finding that appellant murdered Leydis.
The jury could have determined that appellant’s Glock pistol was used in the killing,
considering the spent shell casing found on the counter was fired from this gun. Testing
revealed Leydis was the major contributor to DNA found on the grip of the pistol and
appellant and/or one or more of the couple’s sons were the other (minor) contributor[s].
The jury could have concluded that the four-year-old and infant sons did not handle the
gun; thus, this DNA evidence indicated no person other than appellant was involved in
the death. Additionally, this DNA evidence, coupled with the absence of gunshot-residue
on Leydis’s hands, indicated she touched the gun while attempting to protect herself
and/or, after the murder, appellant tried to stage a self-inflicted wound by attempting to
place the gun in Leydis’s hand or at least transferring her DNA to the gun.4 We
recognize appellant’s hands tested negative for gunshot residue, but a forensics witness
testified residue is easy to remove.
3. Appellant’s Alibi
Appellant has continually claimed Leydis died while he was in the Dallas area or
traveling to Houston. Appellant claimed that he left Marcus’s home after 11:00 p.m. on
Sunday night, stopped at a Sonic in McKinney, stopped at a gas station, stopped at the
first rest station south of Dallas where he slept from 1:00 a.m. to 3:00 a.m., and then
continued to Houston, arriving home shortly after 5:00 a.m., in order to attend a 6:00 a.m.
business appointment.
4
The State cites evidence demonstrating Leydis was a contributor to DNA obtained from
scrapings under her fingernails and asserts appellant was the other contributor, thereby indicating the
couple struggled. However, the DNA expert could not exclude one or more of the couple’s sons as the
other contributor. The medical examiner agreed the scrapings could test positive for the children’s DNA
by virtue of Leydis caring for them. Nonetheless, as we have explained, the blood spatter evidence raised
an inference there was a struggle, to the extent Leydis attempted to protect herself by pushing the gun
away; and the DNA on the gun grip was probative to the extent it either further confirmed a struggle or
indicated that appellant staged a self-inflicted wound.
10
Appellant asserted the following transpired when he arrived home: after driving
into the garage, he noticed water damage on the ceiling; he left his son in the car while he
entered the house from the garage; he saw Leydis’s body on the kitchen floor with their
infant lying next to her; he pushed on Leydis’s chest to determine if she were alive; he
made a bottle for the infant; he called for his three-year-old-daughter who appeared at the
top of the stairs and told her to return to bed; he took his four-year-old son upstairs; he
turned off running water in the master bathroom sink and shower; he checked Leydis’s
cell phone for battery life; and, at some point, he called 9-1-1—within fifteen minutes
after arriving home.
Appellant further emphasized that, when he arrived home, Leydis’s body was in
full rigor mortis, which, according to appellant, takes twelve hours to set in and he heard
one EMT remark Leydis had been dead at least twelve hours. In his appellate brief,
appellant asserts that the EMT testified he detected full rigor mortis and the medical
examiner opined Leydis died four to six hours before her body was found. Therefore,
appellant contends the State’s own evidence proved appellant’s alibi—she died before
1:00 a.m., and he could not have been in Houston at that time.
However, at trial, the EMT denied making any statement regarding time of death
and testified he lacked expertise to make such a determination. Further, the EMT
testified he detected some rigor mortis in one arm when he checked for a pulse but did
not determine full body rigor mortis. Additionally, the medical examiner did not testify
Leydis died four to six hours before she was found. Rather, when explaining that onset
of rigor mortis is a variable process relative to determining time of death, the medical
examiner testified she has seen instances of rigor mortis four to six hours after a death.
The medical examiner further explained that, absent an eyewitness, it is difficult to
determine time of death with complete accuracy. However, examining glucose levels
may be useful because it is typically metabolized out of the body within twenty-four
hours after death, subject to certain variables. The level of glucose can be determined
only by examining vitreous fluid in the eyes. During the autopsy (28 hours after the body
11
was found), the medical examiner found a very low level of glucose. Based on this
traceable level, the medical examiner opined Leydis died “fairly close” to—no more than
“a few hours” before—the time her body was found. Significantly, Mrs. Ortiz testified
she heard a “bang” at approximately 4:00 a.m. on Monday morning.
Evidence verified that appellant indeed traveled south from McKinney to Houston
on Sunday night and into Monday morning: in appellant’s car, officers found a receipt for
a Sonic in McKinney dated 11:19 p.m. on Sunday night and appellant’s cell phone
records reflected he made calls at 12:40 a.m. and 12:41 a.m. near Ennis—south of Dallas.
However, there was no evidence substantiating appellant’s claim that he stopped at the
first rest station south of Dallas from 1:00 a.m. to 3:00 a.m. Sergeant Palacios visited the
station, which was located in Corsicana—south of Ennis, but it lacked recording
equipment to verify appellant’s presence. Further, appellant made no other calls that
morning, which might document his whereabouts, until he later phoned 9-1-1. Sergeant
Palacios calculated the distance from the rest station to appellant’s home as 180 miles and
at least 160 miles was via interstate. Because no evidence substantiated appellant
stopped at the rest station at 1:00 a.m., the jury could have concluded that, driving at least
160 miles at a typical interstate speed and another twenty miles at typical city speeds,
appellant arrived home within the window of time Leydis died (according to the medical
examiner) and certainly by 4:00 a.m. (when Mrs. Ortiz heard the “bang”).
4. Theories that a third person killed Leydis
Despite his initial statements claiming the death was accidental, appellant
subsequently provided the following claims to investigating officers and/or the grand
jury: Leydis was killed by Michael Munivar, Ed Jacobson, or “J.D. Tran,” the son of
appellant’s neighbor, because Leydis rejected his romantic overtures; Leydis feared both
Munivar and Jacobon; appellant’s daughter told him “Ed” killed Leydis; and later the
daughter indicated that she saw Leydis die while fighting over a gun with a woman,
whom appellant claimed was Vanessa Castillo, and the woman then undressed the body.
12
The jury could have reasonably rejected these theories. At trial, Munivar,
Jacobson, and the neighbor’s son, who was actually named “Ed Harris,” all denied killing
Leydis, Harris denied making any romantic overtures to Leydis, and the jury was free to
believe their testimony. EMTs who assumed care of the children at the scene testified the
toddlers did not speak about Leydis’s death or appear traumatized, thereby negating
appellant’s claim that his daughter saw “Ed” or Castillo kill Leydis. The blood pool
under Leydis’s body was undisturbed, negating appellant’s claim that his daughter saw
Castillo undress the body after allegedly killing Leydis. There was no indication of any
conflict between Leydis and any of these alleged suspects at the time of her death.
Castillo testified Leydis had a good relationship with Munivar and Jacobson and did not
fear either man. There was no evidence of forced entry—when officers arrived, the front
and back doors of the home were locked and deadbolted, and the doors from the garage
to the home and the garage to the outside, through which appellant and officers had
passed, were undamaged. Even appellant asserted the door from the garage to the home
was locked when he arrived home. Mrs. Ortiz looked out her window after hearing the
“bang” but noticed nothing unusual on the cul-de-sac or any unfamiliar vehicles. Finally,
it is a rational inference that an intruder would not have left the gun at the scene.
5. Appellant’s actions and statements after Leydis’s death
Moreover, numerous actions and statements of appellant were inconsistent with a
husband who was shocked and bereaved over his wife’s death or otherwise demonstrated
consciousness of guilt: appellant showed, for the most part, lack of emotion over the
death, behaved in an aggressive, threatening, or abusive manner towards persons
investigating the death, attempted to deflect attention from himself, and made incredible
claims regarding the death and surrounding circumstances.
Specifically, when the first responding officer, Deputy Katrib, encountered
appellant standing in the garage holding the infant, appellant seemed “very calm,” just
motioned toward the house, and stated, “she[’s] inside.” After Deputy Katrib visually
inspected inside the house and returned outside, appellant insisted that Deputy Katrib
13
cover Leydis’s body with a blanket. When Deputy Katrib calmly explained such action
would contaminate the scene, appellant became belligerent and called Deputy Katrib a
“fucking asshole,” “idiot cop,” and “ignorant.” When Deputy Katrib expressed concern
about the infant, who was underdressed for the cold weather, appellant responded with
additional cursing. When Deputy Katrib approached appellant to bag his hands and
preserve any gunshot residue, appellant was speaking via phone to his brother Marcus (an
attorney). Appellant again cursed at Deputy Katrib and told Marcus, “I’ve got an asshole
cop standing in front of me.” When Deputy Katrib placed appellant in the patrol car,
appellant said, “You better watch out because I will find you. If you touch me, I will sue
the shit out of you.”
When Sergeant Palacios approached appellant at the scene, he was “very
aggressive.” Similarly, during the interview later at the homicide office, appellant
eventually became “very agitated and very aggressive.” Only a day after the death,
appellant called Sergeant Palacios, was “very hostile,” and demanded the homicide office
immediately close the case. Over the next week, appellant called the sheriff’s office
twenty-eight times, insisting the case be closed or providing names of various suspects,
but none of this information proved helpful. Appellant remained uncooperative with
Sergeant Palacios during the investigation. Appellant continually threatened to, and did
indeed eventually, sue the sheriff’s department.
When appellant accompanied Sergeant Palacios to the homicide office after
Leydis’s body was found, he immediately said, “I don’t want [the coroner] taking out her
eyes.” This statement confused Sergeant Palacios at the time but supports an inference
appellant had researched that glucose levels obtainable only from eye fluid can be
utilized to determine time of death. Appellant admittedly researched information
regarding rigor mortis—the phenomenon on which he heavily relied to support his alibi
claim.
14
Appellant not only advanced various implausible theories, such as accidental death
or murder by one of the persons mentioned above, but he also changed his theories over
time and even involved his three-year-old daughter as a witness in some of the claims.
Appellant failed to claim Leydis’s body until thirty days after the autopsy, which
the medical examiner considered unusual, considering the couple was married and had
children together. After claiming the body, appellant did not hold a funeral.
At one point, appellant requested a meeting with medical-examiner personnel
because he was dissatisfied with the progress of the investigation. The personnel
requested that Sergeant Palacios or other officers attend the meeting because the
personnel were intimidated by, and feared, appellant.
During grand-jury proceedings, appellant insisted the sheriff’s department was
retaliating against him for lodging complaints against Sergeant Palacios and suing the
department. Appellant also made aggressive and insulting remarks to the prosecutor and
accused her of misleading the grand jury.
Appellant’s claimed actions after allegedly returning home and discovering
Leydis’s body were inconsistent with having found one’s spouse dead of a gunshot
wound; i.e., that appellant would have performed any actions before immediately calling
9-1-1, taken his four-year-old son into the home, where danger might exist, or left both
toddlers in the home while waiting outside for the police.
Finally, with respect to the culpable mental state, the fact that appellant shot
Leydis in the head at close range supported the finding he “intentionally or knowingly”
caused her death. See Womble v. State, 618 S.W.2d 59, 64–65 (Tex. Crim. App. 1981);
Draper v. State, 335 S.W.3d 412, 415 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).
In summary, the evidence is legally sufficient to support appellant’s conviction for
murder. We overrule his first issue and the pertinent portion of his sixth issue.
III. GRAND-JURY PROCEEDINGS
In his second and sixth issues, appellant contends the trial court erred by denying
15
appellant’s motion to dismiss the indictment because it was based on improper grand-jury
proceedings. He suggests the grand jury “failed to act independently of the prosecutor”
because it did not conduct an adequate investigation and request exculpatory evidence
and the prosecutor misled the grand jury by failing to present exculpatory evidence.
In his original brief, appellant cites no record references to support this issue. See
Tex. R. App. P. 38(i) (providing appellant’s brief must contain clear and concise
argument for contentions made, with appropriate citations to authorities and the record).
Indeed, we have no record of the entire grand-jury proceedings, from which to evaluate
appellant’s complaints. The only portion of the proceedings in the record is appellant’s
testimony because it was admitted at trial. We have no duty to pore through the 247-page
transcript of appellant’s testimony to verify his complaints. See Alvarado v. State, 912
S.W.2d 199, 210 (Tex. Crim. App. 1995), overruled on other grounds by Warner v. State,
245 S.W.3d 458 (Tex. Crim. App. 2008). In his reply brief, appellant cites two pages of
this testimony. However, in the referenced portion, grand jurors actually implored
appellant to provide proof of his stop at the rest station, emphasizing such evidence
would be significant toward establishing his alibi. The grand jurors also indicated they
planned to discuss obtaining additional evidence. Accordingly, this isolated reference
does not support appellant’s contention the grand jury failed to obtain pertinent evidence
or the prosecutor misled the grand jury.
Further, appellant essentially challenges sufficiency of the evidence to support the
indictment by suggesting the grand jury lacked adequate information. A defendant may
not challenge sufficiency of the evidence to support an indictment by grand jury. Brooks
v. State, 642 S.W.2d 791, 795 (Tex. Crim. App. 1982); State v. Hart, 342 S.W.3d 659,
666–67 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). An indictment returned by a
legally constituted and unbiased grand jury, if valid on its face, mandates trial of the
charge on the merits. Brooks, 642 S.W.2d at 795; Hart, 342 S.W.3d at 667.
Accordingly, we overrule appellant’s second issue and the pertinent portion of his sixth
issue.
16
IV. CHOICE OF COUNSEL
In his third issue, appellant contends the trial court violated appellant’s
constitutional right to assistance of counsel by denying appellant’s choice of counsel—
his brother Marcus. The State filed a pre-trial motion to disqualify Marcus on the
grounds he was a material witness and his representation would prejudice the State.
After hearing arguments, the trial court orally remarked that it granted the State’s motion
because, among several other reasons which the court did not specifically articulate,
Marcus was a material alibi witness and would be placed in a “very untenable position.”
Marcus had emphasized he was representing appellant pro bono because he could not
afford other counsel. The trial court ensured that, if appellant filed a proper pauper’s
oath, it would immediately appoint an attorney experienced in defending cases of this
level. The court did appoint other counsel.
A. Applicable Law and Standard of Review
The Sixth Amendment right to assistance of counsel contemplates the right to
counsel of a defendant’s own choice, but this latter right is not absolute. Gonzalez v.
State, 117 S.W.3d 831, 836–37 (Tex. Crim. App. 2003); see Brink v. State, 78 S.W.3d
478, 483 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d); see also U.S. Const. amend.
VI. The strong presumption in favor of the right to counsel of choice may be overridden
by other important considerations relating to integrity of the judicial process and fair and
orderly administration of justice. Gonzalez, 117 S.W.3d at 837; see Brink, 78 S.W.3d at
483. However, when a trial court unreasonably or arbitrarily interferes with a
defendant’s right to counsel of choice, its actions rise to the level of a constitutional
violation. Gonzalez, 117 S.W.3d at 837. Therefore, courts must exercise caution in
disqualifying a defense attorney, especially if less serious means would adequately
protect the State’s interests. Id. In moving to disqualify a defendant’s counsel of choice,
the State bears a heavy burden of establishing that disqualification is justified. Id.
In determining whether counsel should be disqualified because he is a potential
witness, Texas courts utilize rule 3.08 of the Texas Disciplinary Rules of Professional
17
Conduct as a guideline. Id.; see Tex. Disciplinary Rules Prof’l Conduct R. 3.08,
reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (West 2005) (stating that,
subject to certain exceptions, “[a] lawyer shall not accept or continue employment as an
advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the
lawyer knows or believes that the lawyer is or may be a witness necessary to establish an
essential fact on behalf of the lawyer’s client . . .”). This rule does not prescribe the
disqualification standard but provides considerations relevant to the determination.
Gonzalez, 117 S.W.3d at 837–38. Counsel may be disqualified under the disciplinary
rules when a party can demonstrate actual prejudice resulting from opposing counsel’s
service in the dual role of advocate-witness. Id. at 837.
We review a trial court’s decision on a request to disqualify defense counsel under
an abuse-of-discretion standard. See id. at 839. We defer to implied findings that are
supported by the record. Id. We uphold the ruling if it is correct on any theory of law, as
long as the ruling lies within the zone of reasonable disagreement. Id.
B. Analysis
To support its motion for disqualification, the State presented two documents
obtained by appellant with respect to other proceedings or pre-trial matters relative to the
murder charge. First, the State presented a letter from a pathologist, whom appellant had
requested to provide an opinion regarding the time of Leydis’s death. According to this
pathologist, the death occurred between Sunday morning and approximately 2:30 a.m.
Monday morning. The State also presented Marcus’s affidavit, in which he averred
appellant was in the Dallas area from Friday evening before the murder until
approximately 11:00-11:30 p.m. on Sunday night, effectively asserting appellant was in
the Dallas area or traveling to Houston when Leydis was killed. Consequently, the trial
court did not abuse its discretion by determining Marcus was a material alibi witness.
Indeed, Marcus did testify at trial regarding appellant’s presence in the Dallas area that
weekend and the travel time and route from Dallas to Houston.
18
Consequently, if Marcus had served a dual role as counsel and witness, the State
would have been prejudiced by the undue weight jurors might have assigned to Marcus’s
testimony and likely confusion during argument regarding whether Marcus was
summarizing evidence or further testifying from personal knowledge. See id. at 840.
Marcus argued at the disqualification hearing, and appellant reiterates on appeal, that it
was speculation Marcus would even testify and his testimony was not necessarily
required because of other evidence placing appellant in the Dallas area at pertinent times.
However, when a trial court considers a pre-trial disqualification motion based on a
conflict of interest, some speculation is necessarily involved regarding whether counsel
will actually serve a dual role and whether the dual role will result in actual prejudice to
the State. Id. at 844. Therefore, the presumption in favor of counsel of choice may be
overcome by a showing of “serious potential for conflict,” although the trial court’s
speculation cannot be “unsupported or dubious.” See id. In the present case, the State
raised more than “unsupported or dubious” speculation and demonstrated “serious
potential for conflict” because it was appellant who placed Marcus in the potential dual
role as counsel and appellant’s alibi witness.
Appellant suggests the trial court should have used less serious means than
disqualification to protect the State’s interests. See id. at 837. It is unclear what
alternative appellant proposes should have been utilized although he suggests the trial
court could have ensured that Marcus not testify. However, the State demonstrated it
would suffer actual prejudice even if Marcus did not testify. It was clear from the
evidence at trial that appellant claimed he was in the Dallas area with Marcus or traveling
home at the time of Leydis’s death. Thus, even if Marcus did not testify, his personal
knowledge might imply to the jury that his questions to witnesses regarding the alibi
represented the truth, but the State could not clarify Marcus’s “testimony” through cross-
examination or impeach his credibility. See id. at 840. Accordingly, the record supports
an implied finding that the State would suffer actual prejudice from Marcus’s
representation of appellant.
19
Even if the State had not met its burden, “the trial court has an independent duty to
ensure criminal defendants receive a fair trial that does not contravene the Sixth
Amendment’s central aim of providing effective assistance of counsel once issues are
raised which indicate a concern.” See id. at 840. The trial court could have determined
that Marcus’s dual role might prejudice appellant, especially if the State effectively
impeached Marcus on the stand. See id. Moreover, Marcus’s detailed affidavit and the
fact he was the relative with whom appellant stayed in the Dallas area indicated Marcus
was most knowledgeable about appellant’s whereabouts over the weekend. Thus, the
trial court could have determined that if Marcus remained as counsel with the proviso he
not testify, appellant would be deprived of an essential alibi witness. Accordingly, the
trial court did not abuse its discretion by ensuring appellant would have full benefit of all
favorable witnesses while enjoying effective assistance of counsel. We overrule
appellant’s third issue.
V. MOTION TO SUPPRESS
In his fourth and sixth issues, appellant suggests the trial court erred by denying
appellant’s motion to suppress (1) his statements to Sergeant Palacios while traveling to
the homicide office, (2) appellant’s interview at the office, and (3) his statements at his
home approximately four months after the murder.
We must uphold the denial of a motion to suppress if it is reasonably supported by
the record and is correct under any applicable theory of law. Hereford v. State, 339
S.W.3d 111, 117–18 (Tex. Crim. App. 2011). We will reverse only if the ruling is
outside the zone of reasonable disagreement. Id. at 118. When, as in the present case, a
trial court enters findings of fact after denying a motion to suppress, we first determine
whether the evidence, viewed in the light most favorable to the trial court’s ruling,
supports these fact findings. Keehn v. State, 279 S.W.3d 330, 334 (Tex. Crim. App.
2009). We give almost total deference to the trial court’s finding of historical facts and
determinations on “mixed questions of law and fact” that depend on credibility of
witnesses. Hereford, 339 S.W.3d at 118. We review de novo pure questions of law and
20
“mixed questions of law and fact” that do not depend on credibility determinations. Id.
During a hearing on a motion to suppress, the trial court is the sole judge of witness
credibility and the weight to give their testimony. Id.
A. Applicable Law and Standard of Review
Appellant generally cites Texas Code of Criminal Procedure article 38.21, which
provides, “[a] statement of an accused may be used in evidence against him if it appears
that the same was freely and voluntarily made without compulsion or persuasion under
the rules hereafter prescribed.” Tex. Code Crim. Proc. Ann. art. 38.21 (West 2005).
Appellant then seems to rely on both federal constitutional law and Texas Code of
Criminal Procedure article 38.22 by suggesting (1) the statements were inadmissible
because appellant was in custody but officers failed to give the Miranda/statutory
warnings, deprived him of the right to counsel, and did not properly record the
statements, and (2) the statements were generally involuntary.
In Miranda v. Arizona, the United States Supreme Court held that “the prosecution
may not use statements, whether exculpatory or inculpatory, stemming from custodial
interrogation of the defendant unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination.” 384 U.S. 436, 444 (1966).
These safeguards are codified in article 38.22 of the Texas Code of Criminal Procedure.
See Tex. Code Crim. Proc. Ann. art. 38.22 (West 2005). Article 38.22, section 3(a)
provides that no oral statement of an accused “made as a result of custodial interrogation”
shall be admissible against him in a criminal proceeding unless an electronic recording
satisfying certain requisites is made of the statement, the accused is given the Miranda
warnings and one additional warning prescribed in article 38.22, and the accused
knowingly, intelligently, and voluntarily waives the rights set out in the warnings. Id. art.
38.22, §3(a); see Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007).
The Miranda and article 38.22, section 3(a) safeguards apply only to custodial
interrogation. See Miranda, 384 U.S. at 444; Tex. Code Crim. Proc. Ann. art. 38.22,
§3(a); Herrera, 241 S.W.3d at 526. Contrary to appellant’s suggestion, he had not been
21
formally arrested before any statements at issue. Thus, the “custody” inquiry involved
determining whether “under the circumstances, a reasonable person would believe that
his freedom of movement was restrained to the degree associated with a formal arrest.”
Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996) (citing Stansbury v.
California, 511 U.S. 318, 322, 325 (1994)); see Nguyen v. State, 292 S.W.3d 671, 677–78
(Tex. Crim. App. 2009). The “custody” determination must be made on a case-by-case
basis considering all objective circumstances. Stansbury, 511 U.S. at 323; Dowthitt, 931
S.W.2d at 255. Subjective intent of law enforcement officials to arrest is irrelevant
unless that intent is somehow communicated or otherwise manifested to the suspect.
Dowthitt, 931 S.W.2d at 254 (citing Stansbury, 511 U.S. at 324–25). Additionally,
station-house questioning does not automatically constitute custody. Id. at 255. The
defendant bears the initial burden of proving that a statement was the product of
“custodial interrogation.” Herrera, 241 S.W.3d at 526. In the present case, the trial court
made written findings supporting its conclusion that appellant was not in custody when
he made all the statements at issue.
Although appellant does not cite the specific provision, he apparently also invokes
the general voluntariness statute—Texas Code of Criminal Procedure article 38.22,
section 6. See Tex. Code Crim. Proc. Ann. art. 38.22, §6; Oursbourn v. State, 259
S.W.3d 159, 169 (Tex. Crim. App. 2008). Section 6 applies to both an accused’s
custodial and non-custodial statements because it provides that only “voluntary”
statements may be admitted. Oursbourn, 259 S.W.3d at 171. If the defendant produces
evidence of involuntariness, the State must prove by a preponderance of the evidence that
the defendant’s statement was voluntary. State v. Terrazas, 4 S.W.3d 720, 725 (Tex.
Crim. App. 1999). Additionally, if an accused raises a question as to voluntariness of his
statement, the court “must make an independent finding in the absence of the jury as to
whether the statement was made under voluntary conditions” and “enter an order stating
its conclusion as to whether or not the statement was voluntarily made, along with the
specific finding of facts upon which the conclusion was based . . . .” Tex. Code Crim.
22
Proc. Ann. art. 38.22, §6. In the present case, the trial court made written findings
supporting its conclusion that all the statements at issue were voluntary.
B. Analysis
To support his complaint that his statements were the product of custodial
interrogation and involuntary, appellant generally asserts he was “deprived of his only
means of communicating with his attorney, handcuffed, placed in the back of a patrol car,
detained by officers, and finally forced to accompany Sgt. Palacios to his ‘office’ without
shoes, currency, identification, or access to communication with any party not under
control of the [sheriff’s department] for a combined approximately 10.5 hours” and
Sergeant Palacios exercised “brute force.” However, the State’s evidence proffered at the
suppression hearing contradicted some of the facts cited above by appellant. Even the
facts cited by appellant which are supported by the record did not support a finding he
was in custody or his statements were involuntary.
1. Statements while traveling to the homicide office
Although appellant did not seek to suppress his statements to the first responding
officer, Deputy Katrib, appellant nevertheless suggests Deputy Katrib’s actions at the
scene demonstrated appellant was denied his right to counsel and was in custody
throughout the day. Appellant apparently refers to Deputy Katrib’s actions while
appellant was speaking by telephone to Marcus. At the suppression hearing, Deputy
Katrib testified that he requested appellant to “kindly” cooperate and terminate the
telephone conversation as soon as possible so that officers could bag his hands, to
preserve any gunshot residue. We conclude Deputy Katrib’s request did not constitute a
deprivation of any right to counsel, simply because Marcus happened to be an attorney.
Instead, Deputy Katrib testified that appellant never invoked any right to counsel during
their interaction.
Appellant also suggests the fact he was handcuffed and placed in the back of a
patrol car at the scene demonstrated he was under arrest at the scene and during his
subsequent statements that day. However, Deputy Katrib testified appellant was
23
handcuffed solely to hold the bags in place—not because he was under arrest; another
officer then placed appellant in the back of a patrol car—again not because he was under
arrest, but consistent with standard procedure of separating witnesses and keeping them
in a contained environment.
Significantly, the first statements that appellant sought to suppress were made
while traveling to the homicide office in Sergeant Palacios’s vehicle—after the handcuffs
were removed. Sergeant Palacios testified appellant was not under arrest during the ride.
At the suppression hearing, appellant acknowledged he rode in the front seat and was not
handcuffed. Nonetheless, appellant testified he refused to go to the homicide office but
Sergeant Palacios was “adamant” it was “not an option” and his conduct indicated
appellant was under arrest. However, the trial court was free to believe Sergeant
Palacios’s testimony that appellant willingly accompanied him to the office. Indeed, the
trial court rendered findings that both Deputy Katrib and Sergeant Palacios gave credible
testimony regarding all their interactions with appellant that day and appellant did not
give credible testimony.
Sergeant Palacios further testified, and the recording confirms, the interaction
during the ride was conversational; appellant even assisted Sergeant Palacios with
directions. The entire conversation was not recorded because the tape became full at
some point. Regardless, in light of Sergeant Palacios’s testimony, the trial court was free
to believe that the nature of the interaction during the unrecorded portion was consistent
with the nature of the interaction during the recorded portion.
Sergeant Palacios acknowledged that appellant did not have his shoes, cell phone,
or wallet during the ride. Appellant requested his shoes, which were in his car, but
Sergeant Palacios did not comply in order to avoid disturbing the crime scene. However,
Sergeant Palacios retrieved appellant’s jacket because of the cold weather. We conclude
the fact that appellant lacked the other items did not transform his decision to accompany
Sergeant Palacios to the homicide office into a custody situation or indicate his
statements were involuntary.
24
Instead, the evidence supports the trial court’s findings that appellant was not
under arrest either before or during the ride to the homicide office, he was “free to go at
any time,” he did not fear he was under arrest, he was not “coerced” or “hassled,” his
encounter with Sergeant Palacios was “consensual,” and he freely and voluntarily spoke
with Sergeant Palacios. Accordingly, based on all the circumstances, the trial court did
not err by concluding a reasonable person would not believe “his freedom of movement
was restrained to the degree associated with a formal arrest” during the ride and
appellant’s statements were voluntary. See Dowthitt, 931 S.W.2d at 254; see also
Nguyen, 292 S.W.3d at 677–78.
2. Interview at the homicide office
The next statement appellant sought to suppress was his interview by Sergeants
Palacios and Clegg at the homicide office. Sergeant Palacios testified as follows
regarding events at the office: when they arrived, appellant was given an opportunity to
use the restroom and have a drink, which he accepted; Sergeant Palacios then placed
appellant in as interview room, where he waited thirty to forty-five minutes while
Sergeant Palacios briefed Sergeant Clegg on this matter and an unrelated case; during his
time at the office, appellant was not under arrest and could have left if he had asked; at
some point, Sergeant Palacios offered appellant the opportunity to take a polygraph test,
which appellant accepted, and Sergeant Palacios then returned appellant to the interview
room; before the polygraph test, appellant asked for an opportunity to speak with Marcus,
which the officers allowed, but appellant never invoked his right to have an attorney
present during the interview; subsequently, there was a time period when appellant was
alone in the interview room, was free to come and go, and did leave the room several
times; the officers did not threaten, coerce, promise anything to, or “lay a hand on”
appellant, and he spoke with them voluntarily, even after he became agitated; and later,
appellant expressed his wish to terminate the interview and was allowed to leave.
In contrast, at the suppression hearing, appellant described the interaction as
follows: he was essentially locked in the interview room from 9:30 a.m. to 4:00 p.m. and
25
felt he was not free to leave; he said “a couple of times” that he did not wish to speak
with the officers; they prevented him from using a phone although he requested an
opportunity to speak with Marcus, including before the polygraph test; the officers
seemed “offended” that appellant asked to speak with an attorney; at 4:00 p.m., appellant
insisted Sergeant Palacios take him home, but the officer refused; appellant yelled out to
a lobby where other persons were gathered that he had been there all day and was
prohibited from using a phone or contacting an attorney; Sergeant Palacios was irritated
by this action and threatened to arrest appellant for trespassing; another officer escorted
appellant out of the building; and appellant was able to “escape” only by embarrassing
Sergeant Palacios in this manner.
However, the trial court was free to believe Sergeant Palacios’s testimony.
Moreover, the recording of the interview confirms Sergeant Palacios’s account and
further demonstrates that, at the outset of the interview, the officers informed appellant he
was not under arrest and they merely wished to obtain a statement. We recognize the
entire interview was not recorded because, apparently unbeknownst to the officers, the
equipment was deactivated at some point. Appellant testified that during the unrecorded
portion, the officers were “menacing” as though they planned to “fight” appellant and
said he could not leave “without going through” them. However, in light of Sergeant
Palacios’s testimony, the trial court was again free to believe that the officers’ demeanor
and behavior toward appellant during the unrecorded portion were consistent with their
demeanor and behavior during the recorded portion.
Therefore, the evidence again supports the trial court’s findings that appellant was
not under arrest during the interview at the homicide office, he was “free to go at any
time,” he did not fear he was under arrest, he was not “coerced” or “hassled,” the
encounter was “consensual,” and he freely and voluntarily spoke with the officers.
Accordingly, based on all the circumstances, the trial court did not err by concluding a
reasonable person would not believe “his freedom of movement was restrained to the
degree associated with a formal arrest” during the interview and appellant’s statements
26
were voluntary. See Dowthitt, 931 S.W.2d at 254; see also Nguyen, 292 S.W.3d at 677–
78.
Appellant also suggests Sergeant Palacios acted in “bad faith” by deliberately
destroying portions of recordings made in his car and at the homicide office. However,
appellant cites no instance where he raised this “bad faith” claim in the trial court.
Nevertheless, there is no evidence Sergeant Palacios destroyed recordings; rather, as
mentioned above, these encounters were not entirely recorded in the first place.
Finally, in his sixth issue, appellant presents two additional grounds for exclusion
of his statements in the car and at the homicide office: they constituted testimony from
appellant although he did not testify at trial; and the trial court failed to redact portions
constituting evidence of extraneous offenses. However, appellant does not cite any
authority prohibiting admission of an appellant’s out-of-court statement for the sole
reason that he does not testify at trial. Further, appellant has waived his complaint
regarding admission of extraneous offenses by failing to identify any portions of his
statements which were allegedly inadmissible on this ground, much less cite an instance
in which he objected on this ground; again, we have no duty to pore through both
statements to attempt to discern his complaint. See Tex. R. App. P. 38(i); Alvarado, 912
S.W.2d at 210.
3. Statements at appellant’s home
Appellant also sought to suppress the statements made at his home on April 1,
2009—approximately four months after Leydis’s death. However, on appeal, appellant
merely asserts that admission of the recording violated the Texas Code of Criminal
Procedure because appellant’s counsel was not “consult[ed]” and appellant was not given
Miranda warnings. Appellant fails to cite any facts or present argument showing the
encounter was a custodial interrogation and thus Miranda warnings were required.
Nevertheless, at the suppression hearing, Sergeant Clopton testified, and the recording
confirms, that appellant invited the officers to his home, appellant was not under arrest or
physically restrained, officers did not threaten, coerce, or promise anything to appellant,
27
the interaction was cordial, and appellant’s children were even present. The trial court
rendered a finding that Sergeant Clopton was credible. Therefore, the evidence again
supports the trial court’s findings that appellant was not under arrest during the encounter
at his home and it was consensual.5 Accordingly, based on all the circumstances, the trial
court did not err by concluding a reasonable person would not believe “his freedom of
movement was restrained to the degree associated with a formal arrest” during the
encounter at appellant’s home and his statements were voluntary. See Dowthitt, 931
S.W.2d at 254; see also Nguyen, 292 S.W.3d at 677–78. Finally, appellant also fails to
cite any authority demonstrating officers were required to consult appellant’s attorney,
and Sergeant Clopton testified appellant never invoked any right to counsel during the
encounter.
We overrule appellant’s fourth issue and the pertinent portion of his sixth issue.
VI. ALLEGED PROSECUTORIAL MISCONDUCT
In his fifth issue, appellant contends the prosecutor committed various acts of
misconduct.
First, appellant contends that, during closing argument, the prosecutor misstated
testimony from the State’s DNA witness. Although appellant fails to cite any record
references, we noted only one instance during closing argument in which appellant
objected to the prosecutor’s citation of DNA evidence. The prosecutor remarked that
DNA under Leydis’s fingernails “wasn’t a combination of Leydis and [appellant] and
their kids and some unknown person. Uh-uh. It was combination of Leydis and
[appellant].” Appellant objected that the prosecutor misstated evidence because the
State’s DNA expert could not exclude the couple’s sons as contributors. However,
appellant failed to preserve error because he did not obtain a ruling on the objection or
5
In its findings, the trial court referred to the first interview at appellant’s home as occurring on
May 1, 2009 when it actually occurred on April 1, 2009. Nonetheless, we construe the court’s finding as
applicable to the encounter on April 1, 2009 because it is undisputed the first interview at appellant’s
home occurred that day, and the “re-interview[]” on May 28, 2009 referenced in the court findings was
Sergeant Clopton’s return visit to collect the casing appellant had found.
28
object to the lack of a ruling. See Tex. R. App. P. 33.1(a); McBride v. State, 359 S.W.3d
683, 689 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). The trial court simply
responded, “The jury will recall the evidence.” See Grayson v. State, 192 S.W.3d 790,
793 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (stating that trial court’s response to
the appellant’s jury-argument objection—“Let’s proceed.”—was not a ruling). Appellant
asserts the trial court sustained the objection but failed to give an instruction to disregard.
To the extent the court’s response may be construed as sustaining the objection, appellant
did not preserve his further complaint because he failed to request an instruction to
disregard and thus obtained all relief requested. See Cruz v. State, 225 S.W.3d 546, 548
(Tex. Crim. App. 2007); Cockrell v. State, 933 S.W.2d 73, 88–89 (Tex. Crim. App.
1996).
Appellant also argues the prosecutor misstated DNA evidence when responding to
appellant’s motion for instructed verdict. Appellant again failed to preserve error via an
objection. See Tex. R. App. P. 33.1(a). Nonetheless, any misstatement was harmless
because it was made outside the jury’s presence and could not have influenced its verdict.
See id. 44.2(b).
Next, appellant posits that the prosecutor prejudiced appellant during voir dire by
incorrectly referring to the charge as a “domestic violence case.” Appellant advances a
similar complaint in his sixth issue by contending the trial court permitted such
purportedly false statements. Appellant fails to cite record references, much less any
instances in which he preserved error by objecting to the statements. See id. 33.1(a);
Beltran v. State, 99 S.W.3d 807, 811–12 (Tex. App.—Houston [14th Dist.] 2003, pet.
ref’d). Regardless, the State presented evidence appellant committed domestic violence
and Leydis’s murder resulted from such conduct. Therefore, the prosecutor did not
commit misconduct by inquiring, for purposes of obtaining a fair and impartial jury,
whether panel members might be influenced by the domestic-violence aspect.
Finally, appellant complains the prosecutor mentioned a federal suit filed by
appellant against Harris County and improperly indicated it was dismissed for lack of
29
merit. Although, once again, appellant cites no record references, we noted while
reviewing the State’s cross-examination of Marcus, that the State elicited testimony
appellant filed a federal suit against several officers relative to the murder investigation
but Marcus was unaware the court had dismissed the suit. During closing argument, the
prosecutor asserted appellant filed a federal suit in order to curtail the murder
investigation and the court dismissed the suit. However, appellant failed to preserve error
on his contention because he did not object to the State’s questions or closing argument.
See Tex. R. App. P. 33.1(a).
We overrule appellant’s fifth issue and pertinent portions of his sixth issue.
VII. ALLEGED “JUDICIAL ERRORS”
Finally, we address the remaining contentions in appellant’s sixth issue that do not
overlap with previous issues.
Appellant argues the trial court erred by admitting the recording and transcript of
appellant’s grand-jury testimony and allowing the recording to be played for the jury.
However, appellant failed to preserve error because he expressly represented, “We have
no objection” when the State proffered the tape and transcript during trial. See Estrada v.
State, 313 S.W.3d 274, 302 (Tex. Crim. App. 2010).
Next, appellant contends the trial court allowed “incompetent” evidence to be read
to the jurors absent a disagreement concerning the testimony. However, the sole instance
during deliberations in which the trial court instructed the court reporter to read certain
testimony occurred in response to the jury’s note that there was a disagreement
concerning the testimony.
Finally, appellant’s remaining complaints are bare contentions that the trial court
failed to (1) limit voir dire to “general” rather than “case specific” questions, (2) “control
and excuse” panel members who were “disruptive and prejudicial,” (3) rule on all
motions, and (4) compel the State “to produce all evidence.” These contentions are far
too general to present any complaint for our review, considering voir dire consisted of
30
ninety pages of reporter’s record, appellant filed a myriad of pre-trial motions, and the
State possessed voluminous evidence. Appellant has waived these arguments by failing
to identify the specific instances of which he complains or provide supporting authority.
See Tex. R. App. P. 38(i); Alvarado, 912 S.W.2d at 210.
We overrule all remaining contentions in appellant’s sixth issue.
VIII. CONCLUSION
Having overruled all of appellant’s issues, we affirm the trial court’s judgment.
/s/ Charles W. Seymore
Justice
Panel consists of Chief Justice Hedges and Justices Seymore and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).
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