Omar Montemayor v. State ( 2015 )

ACCEPTED
13-14-00173-cr
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
3/23/2015 1:53:17 PM
DORIAN RAMIREZ
CLERK
CAUSE NO. 13-14-00173-CR
RECEIVED IN
13th COURT OF APPEALS
IN THE COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
3/23/2015 1:53:17 PM
THIRTEENTH JUDICIAL DISTRICT OFDORIAN
TEXAS E. RAMIREZ
Clerk
CORPUS CHRISTI - EDINBURG, TEXAS FILED
IN THE 13TH COURT OF APPEALS
CORPUS CHRISTI
03/23/2015
OMAR MONTEMAYOR,
DORIAN E. RAMIREZ, CLERK
Appellant BY smata
v.
STATE OF TEXAS,
Appellee.
On appeal from the 197th Judicial District Court
of Cameron County, Texas
Trial Court Cause Number 2013-DCR-00137-C
STATE’S APPELLATE BRIEF
Luis V. Saenz
Cameron County District Attorney
René B. González
Assistant District Attorney
964 East Harrison Street, 4th Floor
Brownsville, Texas 78520
Phone: (956) 544-0849
Fax:(956) 544-0869
Attorneys for the State of Texas
TABLE OF CONTENTS
Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Salutation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Argument and Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
State’s Response to Appellant’s First Issue. . . . . . . . . . . . . . . . . . . . . . . . . . 5
State’s Response to Appellant’s Second Issue. . . . . . . . . . . . . . . . . . . . . . . . 9
State’s Response to Appellant’s Third Issue. . . . . . . . . . . . . . . . . . . . . . . . 12
State’s Response to Appellant’s Fourth Issue. . . . . . . . . . . . . . . . . . . . . . . 13
State’s Response to Appellant’s Fifth Issue. . . . . . . . . . . . . . . . . . . . . . . . . 16
State’s Response to Appellant’s Sixth Issue.. . . . . . . . . . . . . . . . . . . . . . . . 18
State’s Response to Appellant’s Seventh, Eighth and Tenth Issue. . . . . . . 21
State’s Response to Appellant’s Ninth Issue. . . . . . . . . . . . . . . . . . . . . . . . 22
State’s Response to Appellant’s Eleventh Issue.. . . . . . . . . . . . . . . . . . . . . 24
State’s Response to Appellant’s Twelfth Issue. . . . . . . . . . . . . . . . . . . . . . 26
State’s Response to Appellant’s Thirteenth Issue. . . . . . . . . . . . . . . . . . . . 29
State’s Response to Appellant’s Fourteenth Issue. . . . . . . . . . . . . . . . . . . . 33
State’s Response to Appellant’s Fifteenth Issue.. . . . . . . . . . . . . . . . . . . . . 34
-i-
State’s Response to Appellant’s Sixteenth Issue. . . . . . . . . . . . . . . . . . . . . 37
State’s Response to Appellant’s Seventeenth Issue. . . . . . . . . . . . . . . . . . . 38
Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
-ii-
INDEX OF AUTHORITIES
Cases
Alvarado v. State,
912 S.W.2d 199 (Tex. Crim. App. 1995). . . . . . . . . . . . . . . . . . . . . 10, 23, 38
Anderson v. State,
633 S.W.2d 851 (Tex. Crim. App. [Panel Op.] 1982). . . . . . . . . . . . . . . . . . 7
Anderson v. State,
717 S.W.2d 622 (Tex. Crim. App. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Angleton v. State,
971 S.W.2d 65 (Tex. Crim. App. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Arevalo v. State,
943 S.W.2d 887 (Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Ash v. State,
420 S.W.2d 703 (Tex. Crim. App. 1967). . . . . . . . . . . . . . . . . . 30, 31, 32, 34
Avila v. State,
18 S.W.3d 736 (Tex. App.--San Antonio 2000, no pet.). . . . . . . . . . . . . . . 21
Banks v. State,
29 S.W.3d 642 (Tex. App.--Houston [14th Dist.] 2000, pet. ref’d). . . . . . . 39
Beck,
922 S.W.2d 181 (Tex. Crim. App. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Betancourt v. State,
657 S.W.2d 451 (Tex. App.--Corpus Christi 1983, pet. ref’d).. . . . . . . . . . 31
Bignall v. State,
887 S.W.2d 21 (Tex. Crim. App. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
-iii-
Brewer v. State,
572 S.W.2d 719 (Tex. Crim. App. [Panel Op.] 1978). . . . . . . . . . . 30, 32, 34
Briggs v. State,
789 S.W.2d 918 (Tex. Crim. App. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Brooks v. State,
990 S.W.2d 278 (Tex. Crim. App. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Chamberlain v. State,
998 S.W.2d 230 (Tex. Crim. App. 1999). . . . . . . . . . . . . . . . . . . . . . . . 33, 34
Clark v. State,
365 S.W.3d 333 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Cook v. State,
611 S.W.2d 83 (Tex. Crim. App. 1981). . . . . . . . . . . . . . . . . . . . . . 11, 23, 38
De La Garza v. State,
650 S.W.2d 870 (Tex. App.--San Antonio 1983, pet. ref’d). . . . . . . . . . . . 37
Delgado v. State,
235 S.W.3d 244 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Drake v. State,
65 Tex. Crim. 282, 143 S.W. 1157 (1912). . . . . . . . . . . . . . . . . . . . . . . . . . 31
Earley v. State,
855 S.W.2d 260 (Tex. App.--Corpus Christi 1993). . . . . . . . . . . . . . . . . . . 30
Edwards v. State,
551 S.W.2d 731 (Tex. Crim. App. 1977). . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Feldman v. State,
71 S.W.3d 738 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
-iv-
Fielding v. State,
719 S.W.2d 361 (Tex. App.--Dallas 1986, pet. ref’d). . . . . . . . . . . . . . . . . 30
Flores v. State,
871 S.W.2d 714 (Tex. Crim. App. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Forest v. State,
989 S.W.2d 365 (Tex. Crim. App. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Franklin v. State,
12 S.W.3d 473 (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Gagnon v. Scarpelli,
411 U.S. 778 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Garcia v. State,
201 S.W.3d 695 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Garner v. State,
848 S.W.2d 799 (Tex. App.--Corpus Christi 1993, no writ). . . . . . . . . . . . 19
Garner v. State,
939 S.W.2d 802 (Tex. App.--Ft. Worth 1997, pet. ref’d).. . . . . . . . . . . . . . 20
Ghahremani v. State,
No. 14–06–00729–CR, 2007 WL 3146723 (Tex. App.--Houston [14th Dist.]
Oct. 30, 2007, pet. ref’d) (mem. op., not designated for publication) .. . . . 27
Goss v. State,
826 S.W.2d 162 (Tex. Crim. App. 1992). . . . . . . . . . . . . . . . . . . . . . . . 27, 29
Hall v. State,
225 S.W.3d 524 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Hegar v. State,
11 S.W.3d 290 (Tex. App.--Houston [1st Dist.] 1999, no pet.). . . . . . . . . . . 8
-v-
Hopperwood v. State,
39 Tex. Crim. 15, 44 S.W. 841 (1898).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Jackson v. State,
115 S.W.3d 326 (Tex. App.--Dallas 2003), .. . . . . . . . . . . . . . . . . . . . . . . . 36
Jackson v. State,
968 S.W.2d 495 (Tex. App.--Texarkana 1998, pet. ref’d). . . . . . . . . . . . . . 19
Jenkins v. State,
912 S.W.2d 793 (Tex. Crim. App. 1993). . . . . . . . . . . . . . . . . . . . . . . . 27, 28
Johnson v. State,
967 S.W.2d 410 (Tex. Crim. App. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Jones v. State,
982 S.W.2d 386 (Tex. Crim. App. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Kemp v. State,
846 S.W.2d 289 (Tex. Crim. App. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Lagrone v. State,
942 S.W.2d 602 (Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Lankston v. State,
827 S.W.2d 907 (Tex. Crim. App. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . 26
McDonald v. State,
179 S.W.3d 571 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Medellin v. State,
617 S.W.2d 229 (Tex. Crim. App. [Panel Op.] 1981). . . . . . . . . . . . . . 19, 20
Mestiza v. State,
923 S.W.2d 720 (Tex. App.--Corpus Christi 1996, no pet.). . . . . . . . . . . . 32
-vi-
Mizell v. State,
119 S.W.3d 804 (Tex. Crim. App. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Montgomery v. State,
810 S.W.2d 372 (Tex. Crim. App. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Montoya v. State,
43 S.W.3d 568 (Tex. App.--Waco 2001, no pet.).. . . . . . . . . . . . . . . . . . . . 15
Moone v. State,
728 S.W.2d 928 (Tex. App.--Houston [14th Dist.] 1987, no writ). . . . . . . 19
Morales v. State,
32 S.W.3d 862 (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Moreno v. State,
900 S.W.2d 357 (Tex. App.--Texarkana 1995, no pet.). . . . . . . . . . . . . . . . 30
Morrison v. State,
845 S.W.2d 882 n. 10 (Tex. Crim. App. 1992). . . . . . . . . . . . . . . . . . . . . . 31
Munoz v. State,
485 S.W.2d 782 (Tex. Crim. App. 1972). . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Mutz v. State,
862 S.W.2d 24 (Tex. App.--Beaumont 1993, pet. ref’d). . . . . . . . . . . . . . . 15
Pena,
71 S.W.3d 336 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Peto v. State,
51 S.W.3d 326 (Tex. App.--Houston [1st Dist.] 2001, pet. ref’d). . . . . . . . 25
Ponce v. State,
68 S.W.3d 718 (Tex. App.--Houston [14th Dist.] 2001, pet. ref’d). . . . . . . 9
-vii-
Pondexter v. State,
942 S.W.2d 577 (Tex. Crim. App. 1996). . . . . . . . . . . . . . . . . . . . . . . . 18, 19
Rachal v. State,
917 S.W.2d 799 (Tex. Crim. App. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Resendez v. State,
160 S.W.3d 181 (Tex. App.--Corpus Christi 2005, no pet.). . . . . . . . . . . . 32
Richardson v. State,
865 S.W.2d 949 (Tex. Crim. App. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Roberts v. State,
220 S.W.3d 521 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Rousseau v. State,
855 S.W.2d 666 (Tex. Crim. App. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Sandoval v. State,
409 S.W.3d 259 (Tex. App.--Austin 2013, no pet.). . . . . . . . . . . . . . . . . . . . 6
Scales v. State,
380 S.W.3d 780 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 7
Seidel,
39 S.W.3d 221 (Tex. Crim. App. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Shaw v. State,
329 S.W.3d 645 (Tex. App.--Houston [14th Dist.] 2010, pet. ref’d). . . . . . 28
Shugars v. State,
814 S.W.2d 897 (Tex. App.--Austin 1991, no pet.). . . . . . . . . . . . . . . . 17, 22
Silva v. State,
635 S.W.2d 775 (Tex. App.--Corpus Christi 1982, pet. ref’d). . . . . . . . . . 30
-viii-
Silva v. State,
989 S.W.2d 64 (Tex. App.--San Antonio 1998, pet. ref’d). . . . . . . . . . . . . 20
Smith v. State,
450 S.W.2d 92 (Tex. Crim. App. 1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Sneed v. State,
209 S.W.3d 782 (Tex. App.--Texarkana 2006, pet. ref’d). . . . . . . . . . . . . 6, 9
State ex rel. Curry v. Gray,
599 S.W.2d 630 (Tex. Crim. App. 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . 39
State ex rel. Vance v. Hatten,
600 S.W.2d 828 (Tex. Crim. App. 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . 39
State v. Hardy,
963 S.W.2d 516 (Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Stone v. State,
794 S.W.2d 868 (Tex. App.--El Paso 1990, no writ). . . . . . . . . . . . . . . . . . 20
Taylor v. State,
268 S.W.3d 571 (Tex. Crim. App. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Thomas v. State,
723 S.W.2d 696 (Tex. Crim. App. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Thomas v. State,
886 S.W.2d 388 (Tex. App.--Houston [1st Dist.] 1994, pet. ref’d). . . . . . . 37
Turner v. State,
805 S.W.2d 423 (Tex. Crim. App. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Villarreal v. State,
590 S.W.2d 938 (Tex. Crim. App. 1979). . . . . . . . . . . . . . . . . . . . . . . . . . . 39
-ix-
Wagner v. State,
687 S.W.2d 303 (Tex. Crim. App. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Whitehead v. State,
437 S.W.3d 547 (Tex. App.--Texarkana 2014, pet. ref’d). . . . . . . . . . . . . . . 7
Wilson v. State,
71 S.W.3d 346 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Statutes
Tex. Code Crim. Proc. art. 33.011(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6
Tex. Code Crim. Proc. art. 38.05.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Tex. Code Crim. Proc. art. 38.36.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Tex. Penal Code §12.31.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Rules
Tex. R. App. P. 33.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Tex. R. App. P. 33.1(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Tex. R. App. P. 33.1(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26
Tex. R. App. P. 38.1(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Tex. R. App. P. 44.2(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 15, 29
Tex. R. Evid. 103(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Tex. R. Evid. 103(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Tex. R. Evid. 509(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
-x-
Tex. R. Evid. 602.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 21
Tex. R. Evid. 705(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28
Tex. R. Evid. 705(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Tex. R. Evid. 901.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 20
-xi-
CAUSE NO. 13-14-00173-CR
____________________________________
IN THE COURT OF APPEALS
THIRTEENTH JUDICIAL DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG, TEXAS
____________________________________
OMAR MONTEMAYOR, Appellant
v.
STATE OF TEXAS, Appellee
____________________________________
STATE’S APPELLATE BRIEF
____________________________________
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, Appellee, the STATE OF TEXAS, by and through the
Cameron County District Attorney, the Honorable Luis V. Saenz, and, pursuant to
Rule 38.2 of the Texas Rules of Appellate Procedure, files this, its Appellate Brief in
the above-styled and -numbered cause of action, and in support thereof, would show
this Honorable Court as follows:
SUMMARY OF ARGUMENT
Appellant raises seventeen issues on appeal. In his first issue on appeal,
Appellant argues that the trial court erred in improperly releasing a juror from service
State’s Brief Page 1
and replacing him with an alternate juror. The State responds by asserting the trial
court did not err in dismissing the juror from service as he had become disqualified
or unable to serve; or, in the alternative, even if the trial court did err in dismissing
said juror, no harm resulted to Appellant. In his second issue, Appellant complains
that the trial court erred in failing to exclude or limit evidence of extraneous offenses
or bad acts. The State responds by asserting that Appellant has failed to specify
where in the record the error occurred, and further, a trial court is not required to
provide, sua sponte, a limiting instruction. In his third issue, Appellant complains
that the trial court erred in failing to grant a mistrial upon the introduction of
extraneous character evidence. The State responds by asserting that the trial court did
not abuse its discretion in refusing to grant a mistrial. In his fourth issue, Appellant
complains that the 911 audio recording was improperly admitted into evidence,
thereby resulting in reversible error. The State responds by asserting that the 911
audio recording was properly admitted into evidence. In his fifth issue, Appellant
complains that his conviction should be set aside because the trial court allowed the
introduction of certain photographs without allowing Appellant to voir dire the
sponsoring witness as to the authenticity of the photos. The State responds by
asserting that the trial court did not err in refusing Appellant’s request to voir dire the
sponsoring witness to the authenticity of the photographs. In his sixth issue,
State’s Brief Page 2
Appellant complains that State’s Exhibit 9 was improperly admitted into evidence,
because the proper chain of custody was not established. The State responds by
asserting that said exhibit was properly admitted into evidence. In his seventh, eighth
and tenth issues, Appellant complains that his conviction should be set aside because
the trial court allowed the introduction of blood swabs and buccal swabs without
allowing Appellant to voir dire the sponsoring witness as to the authenticity of said
swabs. The State responds by asserting that the trial did not err in denying Appellant
the opportunity to voir dire said witness. In his ninth issue, Appellant complains that
his conviction should be set aside because the trial court improperly allowed the
admission of evidence which was not complete. The State responds by asserting that
Appellant’s complaint is not at all clear from the argument and the record. In his
eleventh issue, Appellant complains that the trial court erred in allowing a speech
pathologist to testify as to a privileged communication. The State responds by
asserting that there is no privilege protecting the communications between Appellant
and the witness herein. In his twelfth issue, Appellant complains that the trial court
erred in not allowing Appellant to conduct a voir dire examination of two expert
witnesses. The State responds by asserting that Appellant has failed to preserve this
issue for appellate review. In his thirteenth issue, Appellant complains that the trial
judge commented on the weight of the evidence and conveyed her opinion of the case
State’s Brief Page 3
to the jury. The State responds by asserting that the trial court did not comment on
the weight of the evidence nor did the trial judge convey her opinion of the case to
the jury. In his fourteenth issue, Appellant complains that the trial court’s assisting
the State, by suggesting predicates for the submission of evidence, had sufficient
cumulative effect to deprive Appellant of his constitutional rights. The State
responds by asserting that Appellant has failed to demonstrate how non-errors can in
their cumulative effect cause error. In his fifteenth issue, Appellant complains that
the trial court erred by failing to provide the jury with a lesser included charge on the
offense of aggravated assault. The State responds by asserting that Appellant was not
entitled to the lesser included charge. In his sixteenth issue, Appellant complains that
the State committed reversible error by making improper comments during closing
argument. The State responds by asserting that it is not at all clear what Appellant
is talking about. In his seventeenth issue, Appellant complains that the trial court
erred in re-sentencing him after he had already been sentenced. The State responds
by asserting that the trial court was within its authority to pronounce a legal sentence,
after the court had previously pronounced a sentence that was not authorized by law.
State’s Brief Page 4
ARGUMENT & AUTHORITIES
State’s Response to Appellant’s First Issue
In his first issue on appeal, Appellant argues that the trial court erred in
improperly releasing a juror from service and replacing him with an alternate juror.
The State responds by asserting the trial court did not err in dismissing the juror from
service as he had become disqualified or unable to serve; or, in the alternative, even
if the trial court did err in dismissing said juror, no harm resulted to Appellant.
The trial court has discretion to determine whether a juror has become disabled
and to seat an alternate juror. Scales v. State, 380 S.W.3d 780, 783 (Tex. Crim. App.
2012). In deciding to remove a juror, the trial court must make a finding, sufficiently
supported by the record, that the juror was disqualified or unable to perform the
duties of a juror. Id.; see Tex. Code Crim. Proc. art. 33.011(b). This Court may not
substitute its own judgment for that of the trial court. Instead, this Court is to assess
whether, after viewing the evidence in the light most favorable to the trial court’s
ruling, the ruling was arbitrary or unreasonable. Scales, 380 S.W.3d at 784. The
ruling must be upheld if it is within the “zone of reasonable disagreement.” Id.
Absent an abuse of discretion, no reversible error will be found. Id.
The record demonstrates, and therefore, this Court should presume that the trial
court concluded that the juror in question was unable or disqualified to perform his
State’s Brief Page 5
duties under Article 33.011(b) of the Texas Code of Criminal Procedure. See Tex.
Code Crim. Proc. art. 33.011(b). Article 33.011(b) of the Texas Code of Criminal
Procedure states that, before a jury renders a verdict regarding a defendant’s guilt or
innocence, alternate jurors “shall replace jurors who ... become or are found to be
unable or disqualified to perform their duties... .” Tex. Code Crim. Proc. art.
33.011(b). Although the statute does not define “unable to perform,” appellate courts
have concluded that “unable” as used in Article 33.011 is indistinguishable from
“disabled” as used in Article 36.29. See Scales, 380 S.W.3d at 783; Sandoval v.
State, 409 S.W.3d 259, 279 (Tex. App.--Austin 2013, no pet.); Sneed v. State, 209
S.W.3d 782, 786 (Tex. App.--Texarkana 2006, pet. ref’d) (“one must strain to
recognize real differences in the meaning of the two words in this context”). The
term “disability,” as utilized in Article 36.29, has been interpreted to require that the
juror is suffering from a “ ‘physical illness, mental condition, or emotional state that
would hinder or inhibit the juror from performing his or her duties as a juror,’ or that
the juror [is] suffering from a condition that inhibit[s] him from ‘fully and fairly
performing the functions of a juror.’” Scales, 380 S.W.3d at 783. To support its
decision that a juror is disabled, the trial court must make a finding, sufficiently
supported by the record, that the juror was disqualified or unable to perform the
duties of a juror. Id. The trial court may not dismiss a juror for reasons related to that
State’s Brief Page 6
juror’s evaluation of the sufficiency of the evidence. Id. at 783; see also Whitehead
v. State, 437 S.W.3d 547, 554-55 (Tex. App.--Texarkana 2014, pet. ref’d).
The trial court has a great deal of discretion in determining if one is biased or
prejudiced for or against a defendant. Normally, this issue is presented when the trial
court fails to grant a challenge for cause after a venireperson has presented some
information that could be considered as more favorable to one side than the other, but
has not clearly stated that he or she is biased. In the present case, the parties did not
have the opportunity to question the dismissed juror, as this issue was brought to the
trial court’s attention after the jury selection process was completed. Nevertheless,
even if bias or prejudice was not established as a matter of law herein, the trial court
still retained discretion to determine whether bias or prejudice actually exists to such
a degree that the juror is disqualified. Anderson v. State, 633 S.W.2d 851, 853-54
(Tex. Crim. App. [Panel Op.] 1982). In Anderson, a venireperson answered that she
knew the prosecuting witnesses and initially stated that she could serve fairly. Later,
she admitted that it “would be difficult” and “knowing them I would be more biased.”
Id. at 854. The defendant argued these statements showed that this venireperson was
biased and the court erred in failing to excuse her. Id. at 853.
Here, the juror told the trial court that he discovered that Appellant’s sister is
a co-worker and a good friend. The juror further stated that Appellant’s sister
State’s Brief Page 7
coaches his daughter and step-daughter in gymnastics. (R.R. Vol. 8, pp. 14-15).
Based on the friendship, and the level of interconnectedness of the juror with
Appellant’s sister, there is at least some evidence for the trial court to have concluded
the juror was biased as a matter of law.
Further, there is no constitutional impediment in a procedure allowing the
replacement of one fully qualified juror with another, even without the establishment
that the first is physically disabled or even unable to serve. This is an issue that
regularly occurs in courtrooms across the State of Texas. When jurors are summoned
to serve, they come into an environment that is foreign and intimidating to many. It
is not uncommon, particularly in smaller counties, for a juror to recognize someone
involved in the case after he or she sees that person (after being seated on the jury).
See Franklin v. State, 12 S.W.3d 473 (Tex. Crim. App. 2000). Additionally, family
emergencies occur, as well as a myriad of events, that may in fact interrupt jury
service.
With that said, even were this Court to find that the trial court abused its
discretion in excusing the juror, said error is not reversable. To embody a
constitutional violation, the trial court’s error would have to produce a biased jury.
Neither the United States nor the Texas Constitution prescribes the manner in which
juries are selected. See Hegar v. State, 11 S.W.3d 290, 295 (Tex. App.--Houston [1st
State’s Brief Page 8
Dist.] 1999, no pet.). This error involves the application of a statutory scheme and
is a nonconstitutional error. Ponce v. State, 68 S.W.3d 718, 722 (Tex. App.--Houston
[14th Dist.] 2001, pet. ref’d). Rule 44.2(b) of the Texas Rules of Appellate Procedure
provides that any nonconstitutional error, defect, irregularity, or variance that does
not affect substantial rights must be disregarded. Tex. R. App. P. 44.2(b). The record
here does not show any taint from the substituted juror. The juror was subjected to
the same selection process, was properly sworn, and heard all of the evidence. In an
analogous situation, if the trial court erroneously grants a challenge for cause for the
State, reversal only occurs if the defendant shows that he or she was deprived of a
lawfully constituted jury. Feldman v. State, 71 S.W.3d 738 (Tex. Crim. App. 2002);
Jones v. State, 982 S.W.2d 386, 394 (Tex. Crim. App. 1998). Appellant has not
shown that he was deprived of a lawfully constituted jury or that any of his
substantial rights have been affected. Therefore, in accordance with Rule 44.2(b),
said error, if any, should be disregarded. Tex. R. App. P. 44.2(b); see also Sneed, 209
S.W.3d at 788.
Accordingly, Appellant’s first issue should be overruled.
State’s Response to Appellant’s Second Issue
In his second issue, Appellant complains that the trial court erred in failing to
State’s Brief Page 9
exclude or limit evidence of extraneous offenses or bad acts. The State responds by
asserting that Appellant has failed to specify where in the record the error occurred,
and further, a trial court is not required to provide, sua sponte, a limiting instruction.
Appellant complains that the trial court improperly failed to exclude or limit
certain evidence of extraneous offenses or bad acts; however, Appellant has not
indicated where in the record this alleged error is found. The State asserts that
Appellant has not complied with Rule 38.1(i) of the Texas Rules of Appellate
Procedure by failing to state concisely the facts relating to issue two, supported by
record references, and by failing to state clearly and concisely the argument with
citations to the record. See Tex. R. App. P. 38.1(i) (“The brief must contain a clear
and concise argument for the contentions made, with appropriate citations to
authorities and to the record.”); see also Roberts v. State, 220 S.W.3d 521, 527 (Tex.
Crim. App. 2007) (“A party has an obligation to make appropriate citations to the
record in support of his argument. If the notes [relating to a particular witness] are
in the record, appellant has failed to include the proper record references. If, as seems
more likely, the notes are not in the record, then appellant procedurally defaulted
error by failing to include a matter in the record necessary to evaluate his claim.”);
Alvarado v. State, 912 S.W.2d 199, 210 (Tex. Crim. App. 1995) (“As an appellate
court, it is not our task to pore through hundreds of pages of record in an attempt to
State’s Brief Page 10
verify an appellant’s claims.”); Cook v. State, 611 S.W.2d 83, 87 (Tex. Crim. App.
1981) (“This court with its tremendous caseload should not be expected to leaf
through a voluminous record hoping to find the matter raised by appellant and then
speculate whether it is that part of the record to which appellant had reference.”).
Alternatively, should this Court determine that Appellant has adequately
briefed his complaint concerning evidence of extraneous bad acts, then the State
would respond by asserting that the law does not require the trial court to provide, sua
sponte, a limiting instruction at the guilt-innocence stage of trial. The Court of
Criminal Appeals has previously held that, if a defendant does not request a limiting
instruction under Rule 105 at the time that evidence is admitted, then the trial judge
has no obligation to limit the use of that evidence later in the jury charge. Delgado
v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007). But even when a party
properly requests a limiting instruction at the time the evidence is first offered, the
trial judge need not give an instruction on the burden of proof at that time. Id.
Instead, a trial court must provide a limiting instruction concerning the use of
extraneous offense evidence in the guilt-stage jury charge only if the defendant
requested a limiting instruction at the time the evidence was first admitted. Id.
In light of the foregoing authority, this Court should overrule Appellant’s
second issue which complains of the trial court’s failure to sua sponte limit the use
State’s Brief Page 11
of extraneous offense evidence.
State’s Response to Appellant’s Third Issue
In his third issue, Appellant complains that the trial court erred in failing to
grant a mistrial upon the introduction of extraneous character evidence. The State
responds by asserting that the trial court did not abuse its discretion in refusing to
grant a mistrial.
Article 38.36(a) states:
“In all prosecutions for murder, the state or the defendant shall be
permitted to offer testimony as to all relevant facts and circumstances
surrounding the killing and the previous relationship existing between
the accused and the deceased, together with all relevant facts and
circumstances going to show the condition of the mind of the accused
at the time of the offense.”
Tex. Code Crim. Proc. art. 38.36. The nature of the relationship - such as whether the
victim and the accused were friends, were co-workers, were married, estranged,
separated, or divorcing - is clearly admissible under this Article. Further, in some
situations, prior acts of violence between the victim and the accused may be offered
to illustrate the nature of the relationship. Garcia v. State, 201 S.W.3d 695, 702 (Tex.
Crim. App. 2006). The evidence which is the subject of Appellant’s second issue was
admissible under article 38.36, as it illustrated the nature of the relationship between
State’s Brief Page 12
Appellant and the victim of the murder. Accordingly, the trial court did not err in
admitting this evidence.
In the present case, Appellant complains that the State questioned Sarah
Williams concerning the relationship between Appellant and victim Sarah
Montemayor. Specifically, Williams was asked if Appellant was abusive to Sarah
Montemayor. It is well established that testimony referring to or implying extraneous
offenses can be rendered harmless by an instruction to disregard unless it is so clearly
calculated to inflame the minds of the jury and is of such a nature as to suggest the
impossibility of withdrawing the harmful impression from the jury’s mind. Kemp v.
State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992). This Court should conclude that
the witness’s unembellished statements concerning the nature of the relationship
between the victim and Appellant was not so inflammatory as to undermine the
efficacy of an instruction to disregard, had one been requested. Because the error
could have been cured by an instruction to disregard had one been requested, the trial
court did not abuse its discretion by denying Appellant’s motion for mistrial.
Therefore, Appellant’s third issue should be overruled.
State’s Response to Appellant’s Fourth Issue
In his fourth issue, Appellant complains that the 911 audio recording was
State’s Brief Page 13
improperly admitted into evidence, thereby resulting in reversible error. The State
responds by asserting that the 911 audio recording was properly admitted into
evidence.
Appellant argues that this issue is governed by Edwards v. State, 551 S.W.2d
731, 733 (Tex. Crim. App. 1977). The Court of Criminal Appeals, in Angleton v.
State, 971 S.W.2d 65, 68-69 (Tex. Crim. App. 1998), overruled the holding set forth
in Edwards, and noted that the admission of audio recordings is now governed by
Rule 901 of the Texas Rules of Evidence.
Rule 901(a) is entitled, “General provision”, and states: “The requirement of
authentication or identification as a condition precedent to admissibility is satisfied
by evidence sufficient to support a finding that the matter in question is what its
proponent claims.” (Emphasis added). Furthermore, Rule 901(b), entitled
“Illustrations.”, provides: “By way of illustration only, and not by way of limitation,
the following are examples of authentication or identification conforming with the
requirements of this rule:.. .” (Emphasis added). It is clear that the “illustration”
contained in (b)(5) of Rule 901 (which allows recordings to be authenticated by voice
identification) is not to be given talismanic power. Read correctly, illustrations
contained under 901(b) are by no means exclusive of the methods of proof sufficient
to authenticate or identify the types of evidence to which they refer. They are
State’s Brief Page 14
illustrations only, and not limitations. See Mutz v. State, 862 S.W.2d 24, 29 (Tex.
App.--Beaumont 1993, pet. ref’d).
In the present case, the witness testified that the 911 audio was an accurate
recording of her conversation with the 911 operator. (R.R. Vol. 9, p. 62). In other
words, the witness testified that it was what it purported to be. Further, the audio was
authenticated by a business records affidavit, which reflected that the recording was
made in the normal course of business of the City of Brownsville. Therefore, the
audio was admissible under the business record exception to the hearsay rule, under
Texas Rule of Evidence 901. See Montoya v. State, 43 S.W.3d 568, 570-71 (Tex.
App.--Waco 2001, no pet.) (holding that a 911 tape was properly authenticated and
admissible when the custodian testified that the tape was made in the ordinary course
of business and was made at or near the time of the event recorded).
Further, even assuming that the 911 audio was improperly admitted because
it contained hearsay, this Court should nevertheless find that it is not reversible error.
The erroneous admission of hearsay is non-constitutional error. Johnson v. State,
967 S.W.2d 410, 417 (Tex. Crim. App. 1998). This Court must disregard
non-constitutional errors that do not affect a criminal defendant’s “substantial rights.”
See Tex. R. App. P. 44.2(b). Under this standard, an error is reversible only when it
had a substantial and injurious effect or influence in determining the jury’s verdict.
State’s Brief Page 15
Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008). This Court should not
overturn a conviction if the Court has fair assurance from an examination of the
record as a whole that the error did not influence the jury, or had but slight effect. Id.
Additionally, erroneous admission of evidence is not reversible error if the same or
similar facts are proved by other properly admitted evidence. Brooks v. State, 990
S.W.2d 278, 287 (Tex. Crim. App. 1999); Anderson v. State, 717 S.W.2d 622, 627
(Tex. Crim. App. 1986).
In the present case, the sponsoring witness also testified as to what she told the
911 operator at the time that she called. (R.R. Vol. 9, p. 57). Therefore, the
statements contained on the 911 audio were also admitted into evidence through the
testimony of witness Sarah Williams. Accordingly, the error herein, if any, is not
reversible, and Appellant’s fourth issue should be overruled.
State’s Response to Appellant’s Fifth Issue
In his fifth issue, Appellant complains that his conviction should be set aside
because the trial court allowed the introduction of certain photographs without
allowing Appellant to voir dire the sponsoring witness as to the authenticity of the
photos. The State responds by asserting that the trial court did not err in refusing
Appellant’s request to voir dire the sponsoring witness to the authenticity of the
State’s Brief Page 16
photographs.
Appellant fails to cite to any legal authority to support his argument that the
trial court erred in failing to allow Appellant to take the sponsoring witness on voir
dire. Accordingly, this issue should be overruled as it is inadequately briefed. Tex.
R. App. P. 38.1(i).
Alternatively, the State acknowledges that all testimony must be based on the
personal knowledge of the witness. Tex. R. Evid. 602. When there is some reason
to doubt whether the witness possesses the requisite personal knowledge, it may be
appropriate for the court to afford the opposing party a chance to take the witness on
voir dire. But it is neither reasonable nor practical to permit such voir dire when there
is no apparent reason for doubting that the witness is testifying from personal
knowledge. Shugars v. State, 814 S.W.2d 897, 898 (Tex. App.--Austin 1991, no
pet.).
In the instant cause, counsel did not object that the witness lacked personal
knowledge nor did he state any basis for doubting that the witness had personal
knowledge. Appellant’s brief does not refer this Court to anything in the record that
suggests a want of personal knowledge. The trial court did not abuse its discretion
by overruling the apparently baseless request to voir dire the witness.
Accordingly, Appellant’s fifth issue should be overruled.
State’s Brief Page 17
State’s Response to Appellant’s Sixth Issue
In his sixth issue, Appellant complains that State’s Exhibit 9 was improperly
admitted into evidence, because the proper chain of custody was not established. The
State responds by asserting that said exhibit was properly admitted into evidence.
The admission of evidence is a matter within the discretion of the trial court.
See Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990)(opinion on
reh’g). Accordingly, the trial court’s admission of evidence is reviewed under an
abuse of discretion standard. See id. at 379–80. As long as the trial court’s ruling
was within the “zone of reasonable disagreement,” there is no abuse of discretion and
the trial court’s ruling will be upheld. See Rachal v. State, 917 S.W.2d 799, 807 (Tex.
Crim. App. 1996); Montgomery, 810 S.W.2d at 391. The trial judge does not abuse
his discretion when he admits evidence based on the belief that a reasonable juror
could find that the evidence has been authenticated or identified. See Pondexter v.
State, 942 S.W.2d 577, 586 (Tex. Crim. App. 1996).
Appellant contends that the trial court erred in admitting into evidence a buccal
swab that was submitted to the D.P.S. Lab for forensic testing. He specifically
complains that the State failed to establish a proper chain of custody.
Texas Rule of Evidence 901 governs authentication. See Tex. R. Evid. 901.
As a predicate to admissibility, Rule 901 requires a party who offers an item into
State’s Brief Page 18
evidence to establish to the trial judge’s satisfaction that the item is what the party
represents it to be. See id. When the evidence being introduced does not have any
unique characteristics, a chain of custody may be required to prove that the item
presented in trial is the same one involved in the events at issue. See Jackson v. State,
968 S.W.2d 495, 500 (Tex. App.--Texarkana 1998, pet. ref’d). Likewise, to admit the
results of scientific testing, a proper chain of custody must be established. See, e.g.,
Smith v. State, 450 S.W.2d 92, 94 (Tex. Crim. App. 1970); Garner v. State, 848
S.W.2d 799, 803 (Tex. App.--Corpus Christi 1993, no writ); Moone v. State, 728
S.W.2d 928, 930 (Tex. App.--Houston [14th Dist.] 1987, no writ).
The chain of custody is conclusively established if an officer testifies that he
seized the item of physical evidence, tagged it, placed an identifying mark on it,
placed it in evidence storage, and retrieved the item for trial. Lagrone v. State, 942
S.W.2d 602, 617 (Tex. Crim. App. 1997). Similarly, when evidence is sent to a
laboratory for analysis, to conclusively establish the chain of custody, the proponent
must introduce testimony showing the laboratory handled the evidence the same way.
See Medellin v. State, 617 S.W.2d 229, 232 (Tex. Crim. App. [Panel Op.] 1981).
However, when the State completes the chain of custody from the initial collection
of the evidence to inside the laboratory, most questions concerning care and custody,
including gaps and minor theoretical breaches, go to the weight of the evidence, not
State’s Brief Page 19
its admissibility. See Medellin, 617 S.W.2d at 232; Silva v. State, 989 S.W.2d 64, 68
(Tex. App.--San Antonio 1998, pet. ref’d); Stone v. State, 794 S.W.2d 868, 870 (Tex.
App.--El Paso 1990, no writ).
This Court has before it the following evidence concerning the chain of
custody of the Appellant’s buccal swab:
1) Officer Yanes obtained a buccal swab from the Appellant at Valley
Baptist Medical Center and placed it in a sealed envelope;
2) Officer Yanes submitted the swab to the Texas Department of Public
Safety laboratory in Weslaco;
3) It was retrieved and brought to court by Harlingen Police Department
evidence technician Rick Vela. (R.R. Vol. 12, pp. 112-116).
In this regard, Appellant essentially asserts that the State did not prove the all
the links in the chain of custody and therefore the trial judge abused his discretion in
admitting the results of the analysis. However, the witness did testify to a complete
chain of custody, from initial collection to inside the laboratory. Further, Rule 901
only requires a showing that satisfies the trial judge that the item in question is what
the State claims. See Tex. R. Evid. 901; Garner v. State, 939 S.W.2d 802, 805 (Tex.
App.--Ft. Worth 1997, pet. ref’d). Accordingly, this Court should conclude the
information elicited from the State was sufficient for the trial judge to have found that
the items the State’s expert relied upon in drawing his conclusions about the DNA
State’s Brief Page 20
evidence were what they purported them to be. See Avila v. State, 18 S.W.3d 736,
739-40 (Tex. App.--San Antonio 2000, no pet.). Because there is no abuse of
discretion, this Court should overrule Appellant’s sixth issue.
State’s Response to Appellant’s Seventh, Eighth and Tenth Issues
In his seventh, eighth and tenth issues, Appellant complains that his conviction
should be set aside because the trial court allowed the introduction of blood swabs
and buccal swabs without allowing Appellant to voir dire the sponsoring witness as
to the authenticity of said swabs. The State responds by asserting that the trial did not
err in denying Appellant the opportunity to voir dire said witness.
Appellant fails to cite to any legal authority to support his argument that the
trial court erred in failing to allow Appellant to take the sponsoring witness on voir
dire. Accordingly, this issue should be overruled as it is inadequately briefed. Tex.
R. App. P. 38.1(i).
Alternatively, the State acknowledges that all testimony must be based on the
personal knowledge of the witness. Tex. R. Evid. 602. When there is some reason
to doubt whether the witness possesses the requisite personal knowledge, it may be
appropriate for the court to afford the opposing party a chance to take the witness on
voir dire. But it is neither reasonable nor practical to permit such voir dire when there
State’s Brief Page 21
is no apparent reason for doubting that the witness is testifying from personal
knowledge. Shugars v. State, 814 S.W.2d 897, 898 (Tex. App.--Austin 1991, no
pet.).
In the instant cause, counsel did not object that the witness lacked personal
knowledge nor did he state any basis for doubting that the witness had personal
knowledge. Appellant’s brief does not refer this Court to anything in the record that
suggests a want of personal knowledge. The trial court did not abuse its discretion
by overruling the apparently baseless request to voir dire the witness.
Accordingly, Appellant’s seventh, eighth, and tenth issues should be overruled.
State’s Response to Appellant’s Ninth Issue
In his ninth issue, Appellant complains that his conviction should be set aside
because the trial court improperly allowed the admission of evidence which was not
complete. The State responds by asserting that Appellant’s complaint is not at all
clear from the argument and the record.
Appellant complains that at the time the State offered text messages, the trial
court did not allow into evidence additional text messages under the rule of optional
completeness; however, Appellant has not indicated where in the record this alleged
error is found. The State asserts that Appellant has not complied with Rule 38.1(i)
State’s Brief Page 22
of the Texas Rules of Appellate Procedure by failing to state concisely the facts
relating to issue two, supported by record references, and by failing to state clearly
and concisely the argument with citations to the record. See Tex. R. App. P. 38.1(i)
(“The brief must contain a clear and concise argument for the contentions made, with
appropriate citations to authorities and to the record.”); see also Alvarado, 912
S.W.2d at 210 (“As an appellate court, it is not our task to pore through hundreds of
pages of record in an attempt to verify an appellant's claims.”); Cook, 611 S.W.2d at
87 (“This court with its tremendous caseload should not be expected to leaf through
a voluminous record hoping to find the matter raised by appellant and then speculate
whether it is that part of the record to which appellant had reference.”).
Alternatively, the State notes that at the time the State offered the record of the
text messages into evidence, Appellant’s counsel was allowed to take the State’s
witness on voir dire, and then objected to the admission of the evidence pursuant to
Rule 107, arguing that all text messages should be offered. The trial court overruled
the objection, but noted that she would consider the admission of the rest of the text
messages at a later time. (R.R. Vol. 11, pp. 220-24). Appellant did indeed recall the
State’s sponsoring witness and did move to admit the missing text messages, and said
messages were admitted by the trial court, without objection. (R.R. Vol. 14, p. 17).
Accordingly, the “missing” text messages were, in fact, considered by the jury, and
State’s Brief Page 23
they are a part of the appellate record herein. (R.R. Vol. 18, DX 2).
Because the trial court did admit the text messages offered by Appellant, there
is nothing to review on appeal. Therefore, Appellant’s ninth issue should be
overruled.
State’s Response to Appellant’s Eleventh Issue
In his eleventh issue, Appellant complains that the trial court erred in allowing
a speech pathologist to testify as to a privileged communication. The State responds
by asserting that there is no privilege protecting the communications between
Appellant and the witness herein.
In the present case, the State called speech pathologist Lorie Ann Watson to
testify concerning certain communications made by Appellant to Ms. Watson.
Appellant objected on the grounds that these communications were privileged under
the physician-patient privilege. (R.R. Vol. 12, p. 251). The trial court overruled
Appellant’s objection and allowed the speech pathologist to testify.
Appellant urges that the physician-patient privilege was violated. There is,
however, no physician-patient privilege in Texas criminal proceedings except under
limited circumstances not here applicable. See Tex. R. Evid. 509(b). See also State
v. Hardy, 963 S.W.2d 516, 523 (Tex. Crim. App. 1997); Richardson v. State, 865
State’s Brief Page 24
S.W.2d 949, 953 n. 7 (Tex. Crim. App. 1993); Peto v. State, 51 S.W.3d 326, 327
(Tex. App.--Houston [1st Dist.] 2001, pet. ref’d). Thus, there is no physician-patient
privilege in Texas criminal cases upon which Appellant may rely to support his
contention on appeal.
Appellant further argues that the testimony of the speech pathologist should
have been excluded because Appellant was never given his Miranda warnings prior
to communicating with her. However, Appellant did not object in the trial court on
these grounds.
To preserve error for appellate review, the Texas Rules of Appellate Procedure
require that the record show that the objection “stated the grounds for the ruling that
the complaining party sought from the trial court with sufficient specificity to make
the trial court aware of the complaint, unless the specific grounds were apparent from
the context.” Tex. R. App. P. 33.1(a)(1)(A). The point of error on appeal must
comport with the objection made at trial. Clark v. State, 365 S.W.3d 333, 339 (Tex.
Crim. App. 2012); Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986).
Therefore, if a party fails to properly object at trial, even constitutional errors can be
forfeited. Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990).
Because these grounds on appeal do not comport with the objection made at
trial, these grounds were not preserved for appellate review. Accordingly,
State’s Brief Page 25
Appellant’s eleventh issue should be overruled.
State’s Response to Appellant’s Twelfth Issue
In his twelfth issue, Appellant complains that the trial court erred in not
allowing Appellant to conduct a voir dire examination of two expert witnesses. The
State responds by asserting that Appellant has failed to preserve this issue for
appellate review.
To preserve error for appellate review, the record must show that the party
made a specific objection on the record and received an adverse ruling on that
objection. See Tex. R. App. P. 33.1(a); Turner v. State, 805 S.W.2d 423, 431 (Tex.
Crim. App. 1991). To make a specific objection, a party must “let the trial judge
know what he wants, why he thinks himself entitled to it, and ... do so clearly enough
for the judge to understand him at a time when the trial court is in a proper position
to do something about it.” Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App.
1992). Notwithstanding a party’s failure to make a specific objection, error will be
preserved if a specific objection was apparent from the context. See Tex. R. App. P.
33.1(a)(1)(A); see also Tex. R. Evid. 103(a)(1).
A party in a criminal case has a procedural right to voir dire an expert under
Rule 705(b) of the Texas Rules of Evidence. Under this rule, a trial court must grant
State’s Brief Page 26
a party’s “request to conduct a voir dire examination directed to the underlying facts
or data upon which the opinion is based,” and this examination is conducted outside
the presence of the jury. Tex. R. Evid. 705(b). The purpose of this examination is
twofold: (1) it allows the defendant to determine the foundation of the expert’s
opinion without the fear of eliciting inadmissible evidence in the jury's presence, and
(2) it may supply the defendant with “sufficient ammunition to make a timely
objection to the expert’s testimony on the ground that it lacks a sufficient basis for
admissibility.” Goss v. State, 826 S.W.2d 162, 168 (Tex. Crim. App. 1992); see also
Tex. R. Evid. 705(c) (“If the court determines that the underlying facts or data do not
provide a sufficient basis for the expert’s opinion under Rule 702 or 703, the opinion
is inadmissible.”).
A party’s argument that the trial court failed to conduct a properly requested
Rule 705(b) hearing is a distinct argument from one challenging the qualifications of
an expert. See Jenkins v. State, 912 S.W.2d 793, 814 (Tex. Crim. App. 1993); see
also Ghahremani v. State, No. 14–06–00729–CR, 2007 WL 3146723, at *5, *8 (Tex.
App.--Houston [14th Dist.] Oct. 30, 2007, pet. ref’d) (mem. op., not designated for
publication) (addressing separately the issues of whether the expert was qualified and
whether the court improperly denied appellant’s request for a Rule 705(b) hearing).
Thus, an objection based on an expert’s lack of qualifications does not preserve for
State’s Brief Page 27
our review the issue of whether the court erred in denying a proper request for a Rule
705(b) hearing. Jenkins, 912 S.W.2d at 814; Shaw v. State, 329 S.W.3d 645, 655-56
(Tex. App.--Houston [14th Dist.] 2010, pet. ref’d).
In the present case, while the State’s pathologist Dr. Elizabeth Miller was
testifying, Appellant objected and complained that she was not qualified to testify as
an expert in ballistics or ammunition. (R.R. Vol. 13, pp. 30, 37-38, 45-46). However,
nowhere in these sections of the record (which Appellant cites in his brief) does
Appellant request a Rule 705(b) hearing; and therefore, Appellant has not preserved
this issue for appellate review. Jenkins, 912 S.W.2d at 814. Moreover, while the
State’s expert witness on gun residue was testifying, Appellant objected to the
witness’s testimony concerning certain exhibits, but did not state the basis of his
objection. (R.R. Vol. 11, 110). Appellant then asked to voir dire the witness,
apparently to question him concerning the exhibits. Said request was denied. (R.R.
Vol. 11, 110). At no time did Appellant “request to conduct a voir dire examination
directed to the underlying facts or data upon which the opinion is based,” outside the
presence of the jury. Tex. R. Evid. 705(b). Therefore, this Court should find that
Appellant has failed to preserve his request to voir dire said witness under Rule
705(b).
Assuming, however, that the trial court did err in denying Appellant’s voir dire
State’s Brief Page 28
request, this Court must then determine whether the error was “so harmful as to
require reversal.” Goss v. State, 826 S.W.2d 162, 168 (Tex. Crim. App. 1992).
Because the error is not constitutional, this Court should only reverse if it affected
Appellant’s substantial rights; otherwise, the error must be disregarded. Tex. R. App.
P. 44.2(b); Tex. R. Evid. 103(a). In making this determination, this Court should
consider the entire record to decide whether the error had a substantial or injurious
effect on the verdict of guilt. Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App.
2000). Where the reviewing court has fair assurance that the error did not influence
the jury or had but a slight effect, the conviction will stand. Id.; McDonald v. State,
179 S.W.3d 571, 578 (Tex. Crim. App. 2005).
In the present case, Appellant has failed to make any argument as to how the
error (if any) had a substantial or injurious effect on the verdict of guilt. Therefore,
this Court should find that Appellant has failed to adequately brief this issue of harm.
Tex. R. App. P. 38.1(i).
Accordingly, Appellant’s twelfth issue should be overruled.
State’s Response to Appellant’s Thirteenth Issue on Appeal
In his thirteenth issue, Appellant complains that the trial judge commented on
the weight of the evidence and conveyed her opinion of the case to the jury. The
State’s Brief Page 29
State responds by asserting that the trial court did not comment on the weight of the
evidence nor did the trial judge convey her opinion of the case to the jury.
Due process requires a neutral and detached hearing body or officer. Gagnon
v. Scarpelli, 411 U.S. 778, 786 (1973). The Texas Constitution requires no less.
Earley v. State, 855 S.W.2d 260, 262 (Tex. App.--Corpus Christi 1993), pet. dism’d,
improvidently granted, 872 S.W.2d 758 (Tex. Crim. App. 1994). This Court should
presume the trial court was neutral and detached absent a clear showing to the
contrary. See id.; Fielding v. State, 719 S.W.2d 361, 366 (Tex. App.--Dallas 1986,
pet. ref’d). Trial courts have the right to manage the trial, including the order of
proof. Silva v. State, 635 S.W.2d 775, 778 (Tex. App.--Corpus Christi 1982, pet.
ref’d). When courts ask witnesses questions during jury trials, they must avoid
conveying their opinion on the facts to the jury and becoming an advocate for a
particular position. Moreno v. State, 900 S.W.2d 357, 359 (Tex. App.--Texarkana
1995, no pet.).
A trial judge is permitted to question a witness when seeking information only,
to clarify a point, or to get the witness to repeat something that the judge could not
hear. See Brewer v. State, 572 S.W.2d 719, 721 (Tex. Crim. App. [Panel Op.] 1978);
Ash v. State, 420 S.W.2d 703, 705 (Tex. Crim. App. 1967); Hopperwood v. State, 39
Tex. Crim. 15, 44 S.W. 841, 842 (1898). There are two dangers when the judge goes
State’s Brief Page 30
beyond this permissible questioning: (1) the judge may somehow convey his or her
opinion of the case to the jury and ultimately influence the jury’s decision (Morrison
v. State, 845 S.W.2d 882, 886 n. 10 (Tex. Crim. App. 1992)); and (2) the judge in the
zeal of his or her active participation may become an advocate in the adversarial
process and lose the neutral and detached role required for the fact finder and the
judge.
There are numerous Texas cases dealing with the first danger. Munoz v. State,
485 S.W.2d 782, 784 (Tex. Crim. App. 1972); Ash, 420 S.W.2d at 705; Drake v.
State, 65 Tex. Crim. 282, 143 S.W. 1157, 1158 (1912); Betancourt v. State, 657
S.W.2d 451 (Tex. App.--Corpus Christi 1983, pet. ref’d).
Appellant complains in his brief about two instances in which the trial court
made comments from the bench. (R.R. Vol. 13, pp. 67, 75-76). Appellant claims that
these comments violate article 38.05, which reads in part, “the judge shall not ... make
any remark calculated to convey to the jury his opinion of the case.” Tex. Code Crim.
Proc. art. 38.05. The trial record demonstrates Appellant’s counsel failed to object
specifically to these comments, in connection with the first incident. (R.R. Vol. 13,
p. 67). In order to preserve an error for appellate review, a party must make an
objection to the court and the court must explicitly or implicitly make an adverse
ruling or refuse to rule on that objection. Tex. R. App. P. 33.1; see Flores v. State,
State’s Brief Page 31
871 S.W.2d 714, 723 (Tex. Crim. App. 1993). Thus, Appellant has waived this
complaint by not stating his objection with specificity and preserving it for appeal.
See Resendez v. State, 160 S.W.3d 181, 189-90 (Tex. App.--Corpus Christi 2005, no
pet.) (holding that without a specific objection, a defendant waives his complaint that
a judge has conveyed his opinion about the case to the jury); see also Mestiza v. State,
923 S.W.2d 720, 724 (Tex. App.--Corpus Christi 1996, no pet.) (“[a] timely proper
objection is necessary to preserve error concerning a trial judge’s comment”).
Further, it is clear from the record that the comments made in connection with the
second incident do not violate this section of the code of criminal procedure, as they
do not convey the judge’s opinion about the case. (R.R. Vol. 13, pp. 75-76). The
question asked by the trial judge was merely seeking clarification as to whether the
witness’s training or education qualified her to answer a question about gunshot
wounds and the trajectory of such wounds. (R.R. Vol. 13, pp. 75-76). This type of
questioning is permissible, as the judge was merely seeking information only, or
clarification of her training, or to get the witness to repeat a summary of her training,
which the judge did not hear. Brewer, 572 S.W.2d at 721; Ash, 420 S.W.2d at 705.
Accordingly, Appellant’s thirteenth issue should be overruled.
State’s Brief Page 32
State’s Response to Appellant’s Fourteenth Issue
In his fourteenth issue, Appellant complains that the trial court’s assisting the
State, by suggesting predicates for the submission of evidence, had sufficient
cumulative effect to deprive Appellant of his constitutional rights. The State
responds by asserting that Appellant has failed to demonstrate how non-errors can in
their cumulative effect cause error.
Although Appellant does not specify the incidents which are the basis of his
complaint in issue fourteen, the State would assume that Appellant complains of the
same incidents which are the basis of issue thirteen. (R.R. Vol. 13, pp. 67, 75-76).
Appellant complains that the cumulative effect of these incidents constitute error. In
support of this issue, Appellant cites two cases, Wilson v. State, 71 S.W.3d 346 (Tex.
Crim. App. 2002), and Chamberlain v. State, 998 S.W.2d 230 (Tex. Crim. App.
1999). Neither of these cases support the relief that Appellant seeks through this
issue. The Court of Criminal Appeals in Wilson noted that “in order to preserve error
for appellate review, the complaining party must make a specific objection and obtain
a ruling on the objection.” Wilson, 71 S.W.3d at 349. As previously noted, Appellant
failed to object to the first incident. (R.R. Vol. 13, pp. 67).
Further, the Court in Chamberlain stated that it is conceivable that a number
of errors may be found harmful in their cumulative effect; however, the Court went
State’s Brief Page 33
on to state, “we are aware of no authority holding that non-errors may in their
cumulative effect cause error.” Chamberlain, 998 S.W.2d at 238. As previously
noted, the comments made by the trial judge in connection with the second incident
do not violate this section of the code of criminal procedure, as they do not convey
the judge’s opinion about the case. (R.R. Vol. 13, pp. 75-76). The question asked by
the trial judge was merely seeking clarification as to whether the witness’s training
or education qualified her to answer a question about gunshot wounds and the
trajectory of such wounds. (R.R. Vol. 13, pp. 75-76). This type of questioning is
permissible, as the judge was merely seeking information only, or clarification of her
training, or to get the witness to repeat a summary of her training, which the judge did
not hear. Brewer, 572 S.W.2d at 721; Ash, 420 S.W.2d at 705. Accordingly, the
cumulative effect of this non-error cannot cause error. Chamberlain, 998 S.W.2d at
238.
Accordingly, Appellant’s fourteenth issue should be overruled.
State’s Response to Appellant’s Fifteenth Issue
In his fifteenth issue, Appellant complains that the trial court erred by failing
to provide the jury with a lesser included charge on the offense of aggravated assault.
The State responds by asserting that Appellant was not entitled to the lesser included
State’s Brief Page 34
charge.
In determining whether a defendant is entitled to a charge on a lesser included
offense, the Court of Criminal Appeals set forth a two-step test in Hall v. State, 225
S.W.3d 524, 535-36 (Tex. Crim. App. 2007). The first step in the
lesser-included-offense analysis, determining whether an offense is a lesser-included
offense of the alleged offense, is a question of law. It does not depend on the
evidence to be produced at the trial. It may be, and to provide notice to the defendant
must be, capable of being performed before trial by comparing the elements of the
offense as they are alleged in the indictment or information with the elements of the
potential lesser-included offense. Id.
The second step in the analysis should ask whether there is evidence that
supports giving the instruction to the jury. “A defendant is entitled to an instruction
on a lesser-included offense where the proof for the offense charged includes the
proof necessary to establish the lesser-included offense and there is some evidence
in the record that would permit a jury rationally to find that if the defendant is guilty,
he is guilty only of the lesser-included offense.” Bignall v. State, 887 S.W.2d 21, 23
(Tex. Crim. App. 1994) (citing Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim.
App. 1993). In this step of the analysis, anything more than a scintilla of evidence
may be sufficient to entitle a defendant to a lesser charge. Bignall, 887 S.W.2d at 23.
State’s Brief Page 35
In other words, the evidence must establish the lesser-included offense as “a valid,
rational alternative to the charged offense.” Forest v. State, 989 S.W.2d 365, 367
(Tex. Crim. App. 1999) (quoting Arevalo v. State, 943 S.W.2d 887, 889 (Tex. Crim.
App. 1997, overruled on other grounds Grey v. State, 298 S.W.3d 644 (Tex. Crim.
App. 2009)).
Without conceding that the first step of this two-step test, the State would note
that Appellant has not cited to anywhere in the record that would demonstrate that the
jury heard some evidence that would have permitted a rational jury to find that if
Appellant was guilty, he was guilty only of the lesser-included offense.
Alternatively, the State would argue that Appellant presented evidence that he
blacked out and had not recollection of having murdered the two victims. (R.R. Vol.
14, pp. 80-82). Appellant argues that based on this evidence a jury could have
concluded that he did not have the intent to kill the victims, but rather only injure
them. (R.R. Vol. 15, pp. 5-6). The State responds by noting that the Texas Court of
Criminal Appeals has held that a defendant’s “lack of normal impulse control is
simply not a circumstance recognized by the Legislature to diminish the criminal
responsibility of an accused or reduce his crime to a lesser included offense.”
Wagner v. State, 687 S.W.2d 303, 312 (Tex. Crim. App. 1984) (op. on reh’g). It is
clear that there is no “diminished capacity” defense to defeat the element of mens rea
State’s Brief Page 36
during the guilt-innocence phase of trial. Id.; Jackson v. State, 115 S.W.3d 326, 330
(Tex. App.--Dallas 2003), aff’d, 160 S.W.3d 568 (Tex. Crim. App. 2005); Thomas v.
State, 886 S.W.2d 388, 391 (Tex. App.--Houston [1st Dist.] 1994, pet. ref’d); De La
Garza v. State, 650 S.W.2d 870, 876 (Tex. App.--San Antonio 1983, pet. ref’d).
Accordingly, Appellant has failed to establish that he was entitled to a charge on the
lesser included offense of aggravated assault.
Appellant’s fifteenth issue should be overruled.
State’s Response to Appellant’s Sixteenth Issue
In his sixteenth issue, Appellant complains that the State committed reversible
error by making improper comments during closing argument. The State responds
by asserting that it is not at all clear what Appellant is talking about.
Appellant complains of certain statements made by counsel for the State during
closing argument. Specifically, Appellant alleges that counsel for the State made
reference to the Appellant being away for three and one-half years, and that he was
helped by his family. (Appellant’s Brief, p. 67). Appellant argues that these
statements are a comment on Appellant’s failure to testify or offer evidence.
(Appellant’s Brief, p. 68). It is not at all clear what Appellant means by these
arguments, because Appellant did testify! (R.R. Vol. 14, pp. 58-153). Further,
State’s Brief Page 37
Appellant makes reference to these statements supposedly made by the State during
closing argument; however, Appellant provide record cites which are to voir dire
proceedings. (See Appellant’s Brief, p. 67-68, citing R.R. Vol. 7, pp. 66, 76).
Without the proper citation to the record, it is impossible to determine the context of
these statements, and therefore, it is impossible to determine whether Appellant’s
complaint has any merit. Because Appellant has failed to include proper record cites,
this issue should be overruled. Tex. R. App. P. 38.1(i) (“The brief must contain a
clear and concise argument for the contentions made, with appropriate citations to
authorities and to the record.”); see also Alvarado, 912 S.W.2d at 210 (“As an
appellate court, it is not our task to pore through hundreds of pages of record in an
attempt to verify an appellant's claims.”); Cook, 611 S.W.2d at 87 (“This court with
its tremendous caseload should not be expected to leaf through a voluminous record
hoping to find the matter raised by appellant and then speculate whether it is that part
of the record to which appellant had reference.”).
Accordingly, Appellant’s sixteenth issue should be overruled.
State’s Response to Appellant’s Seventeenth Issue
In his seventeenth issue, Appellant complains that the trial court erred in re-
sentencing him after he had already been sentenced. The State responds by asserting
State’s Brief Page 38
that the trial court was within its authority to pronounce a legal sentence, after the
court had previously pronounced a sentence that was not authorized by law.
A sentence that is outside the maximum or minimum range of punishment is
unauthorized by law and therefore illegal. Ex parte Pena, 71 S.W.3d 336 n. 2 (Tex.
Crim. App. 2002) (“[a] ‘void’ or ‘illegal’ sentence is one that is not authorized by
law”); Ex parte Seidel, 39 S.W.3d 221, 225 n. 4 (Tex. Crim. App. 2001) (“this Court
has long held that a sentence is void when the punishment is unauthorized”); Ex parte
Beck, 922 S.W.2d 181, 182 (Tex. Crim. App. 1996). A defendant may obtain relief
from an unauthorized sentence on direct appeal or by a writ of habeas corpus. See Ex
parte Pena, 71 S.W.3d at 337 n. 4, 338. Traditionally, the State could seek
mandamus relief to rectify an illegal or unauthorized sentence. See State ex rel.
Vance v. Hatten, 600 S.W.2d 828, 831 (Tex. Crim. App. 1980); State ex rel. Curry
v. Gray, 599 S.W.2d 630, 632 (Tex. Crim. App. 1980). In these instances, the State
could even seek a resentencing by filing a motion to reopen punishment in the trial
court, long after that court had lost plenary jurisdiction over the case. See Villarreal
v. State, 590 S.W.2d 938, 938-39 (Tex. Crim. App. 1979); Banks v. State, 29 S.W.3d
642, 645 (Tex. App.--Houston [14th Dist.] 2000, pet. ref’d) (holding that State was
entitled to file a motion for resentencing in trial court because defendant’s original
sentence was “illegal and void”). There has never been anything in Texas law that
State’s Brief Page 39
prevented any court with jurisdiction over a criminal case from noticing and
correcting an illegal sentence. Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App.
2003).
In the present case, Appellant was found guilty of the offense of capital murder
and was initially sentenced to a life sentence. (R.R. Vol. 15, p. 64). The Texas Penal
Code requires that Appellant be sentenced to a life sentence, without the possibility
of parole. Tex. Penal Code §12.31. On February 24, 2014, ten days after Appellant’s
sentence was initially pronounced in open court, Appellant was brought back into
court and the trial judge clarified that Appellant was sentenced to a life sentence,
without parole. (R.R. Vol. 16, p. 4). In light of the foregoing authorities, the trial
court did not err in bringing Appellant back to pronounce the sentence required by
law.
Accordingly, Appellant’s seventeenth issue should be overruled.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that
this Court will overrule Appellant’s issues on appeal, and affirm both the judgment
of conviction and the sentence herein.
State’s Brief Page 40
Respectfully Submitted,
LUIS V. SAENZ
Cameron County District Attorney
964 East Harrison Street, 4th Floor
Brownsville, Texas 78520
Phone: (956) 544-0849
Fax: (956) 544-0869
By: /s/ René B. González
René B. González
Assistant District Attorney
State Bar No. 08131380
rgonzalez1@co.cameron.tx.us
Attorneys for the State of Texas
CERTIFICATE OF COMPLIANCE
I certify that this document contains 9,546 words (excluding the cover, table
of contents and table of authorities). The body text is in 14 point font, and the
footnote text is in 12 point font.
/s/ René B. González
René B. González
State’s Brief Page 41
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing State’s Appellate Brief was e-mailed to
Mr. Alfredo Padilla, Attorney at Law, 777 East Harrison Street, Brownsville, Texas
78520, at apad130478@aol.com on the 23th day of March, 2015.
/s/ René B. González
René B. González
State’s Brief Page 42