Love, Kristopher ( 2021 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-77,085
KRISTOPHER LOVE, Appellant
v.
THE STATE OF TEXAS
ON DIRECT APPEAL FROM CAUSE NO. F15-76400-W
IN THE 363RD JUDICIAL DISTRICT COURT
DALLAS COUNTY
KEEL, J., delivered the opinion for a unanimous court.
OPINION
A jury convicted Appellant of capital murder committed on September 2, 2015,
for intentionally killing another in the course of committing or attempting to commit
robbery. See Tex. Penal Code § 19.03(a)(2). Pursuant to the jury’s answers to the special
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issues set forth in Texas Code of Criminal Procedure Article 37.071 sections 2(b) and
2(e), the trial court sentenced Appellant to death. Tex. Code Crim. P. art. 37.071, § 2(g).
Direct appeal to this Court is automatic. Id. art. 37.071, § 2(h). Appellant raises forty-six
points of error. After reviewing Appellant’s points of error, we find them to be without
merit. Consequently, we affirm the trial court’s judgment and sentence of death.
Throughout the remainder of this opinion, “Article” refers to the Code of Criminal
Procedure, and “Section” refers to the Penal Code. Except where otherwise noted, all
dates refer to the year 2015.
I. Overview
Brenda Delgado was obsessed with her ex-boyfriend, Dr. Ricardo “Ricky”
Paniagua, and his new girlfriend, Dr. Kendra Hatcher. Delgado offered to pay Appellant
and Crystal Cortes for their help in murdering Hatcher, and they accepted her offer.
After several meetings and phone conversations, they decided to make the murder look
like a robbery gone wrong. They followed Hatcher and learned how to get into her
apartment building’s garage, and Appellant got a gun.
On September 2, Delgado went to a restaurant to create an alibi for herself while
Cortes and Appellant waited in Hatcher’s apartment building’s garage in a borrowed
Jeep. When Hatcher parked, Appellant got out of the Jeep and shot her to death and took
some of her property, and then Cortes and Appellant fled the scene.
II. Sufficiency Challenges
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Appellant raises several challenges to the sufficiency of the evidence at the guilt
and punishment stages of trial.
II.A. Factual Sufficiency Challenges
In points of error twenty-five and thirty-five Appellant challenges the factual
sufficiency of the evidence to prove his guilt and to support the jury’s answer to the
future-dangerousness issue. We overrule these points of error because we do not review
the factual sufficiency of the evidence to support a defendant’s conviction or a future
dangerousness finding. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)
(guilt); Williams v. State, 270 S.W.3d 112, 138 (Tex. Crim. App. 2008) (future
dangerousness).
In point of error thirty-seven, Appellant claims he was “denied due process of
law” by our prior holdings that the jury’s answer to the mitigation special issue is not
reviewable on appeal. In point of error thirty-eight, he claims that the jury’s verdict on
the mitigation issue was “against the great weight and preponderance of the evidence.”
From his argument, we understand Appellant to: (1) ask the Court to review the factual
sufficiency of the jury’s negative answer to the mitigation special issue; and (2) assert
that a failure to do so renders the mitigation special issue unconstitutional because it
denies him meaningful appellate review. But the mitigation special issue is not amenable
to a sufficiency review. See Prystash v. State, 3 S.W.3d. 522, 536 (Tex. Crim. App.
1999). That does not deprive an appellant of a constitutionally meaningful appellate
review. See, e.g., id. Points of error thirty-seven and thirty-eight are overruled.
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II.B. Accomplice-Witness Corroboration
In point of error twenty-four, Appellant claims that the evidence is legally
insufficient to corroborate Cortes’s accomplice-witness testimony under Article 38.14.
Appellant refers to the Jackson v. Virginia constitutional standard for legal sufficiency,
see 443 U.S. 307, 319 (1979), but he does not apply it to his case. Instead, he challenges
Cortes’s credibility and the sufficiency of the evidence corroborating her testimony under
Article 38.14. We interpret this point of error as an argument that the evidence was
legally insufficient to corroborate Cortes’s testimony as required by Article 38.14. To the
extent Appellant intends to challenge the legal sufficiency of the evidence under the
Jackson standard, that challenge is inadequately briefed. See Tex. R. App. P. 38.1.
Article 38.14 provides: “A conviction cannot be had upon the testimony of an
accomplice unless corroborated by other evidence tending to connect the defendant with
the offense committed; and the corroboration is not sufficient if it merely shows the
commission of the offense.” In reviewing the sufficiency of corroborating evidence
under Article 38.14, we “eliminate from consideration the accomplice testimony and then
examine the other inculpatory evidence to ascertain whether the remaining evidence
tends to connect the defendant with the offense.” McDuff v. State, 939 S.W.2d 607, 612
(Tex. Crim. App. 1997). The non-accomplice evidence need not be sufficient by itself to
support a conviction. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).
Further, “a defendant’s presence at the scene and participation in the underlying offense
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[may] be sufficient to connect him to the capital murder for accomplice-witness rule
purposes.” Solomon v. State, 49 S.W.3d 356, 362 (Tex. Crim. App. 2001).
II.B.1. Guilt–Innocence Evidence
Hatcher was killed in her apartment building’s garage on September 2. Hashem
Saad, a resident of the building, testified that on that evening he exited the elevator onto
the lowest level of the complex’s parking garage and heard animal-like screaming and
one or two gunshots. He then heard a car door close and tires screech. Saad ran to his
Corvette and got inside. He saw a Jeep Cherokee speed down the ramp from the parking
level above, make a left, and pass behind his car. Saad backed out of his parking place
and drove up the ramp toward the garage’s exit. Meanwhile, the Jeep turned around on
the lower level where Saad had been parked, came up the ramp, and followed him out of
the garage. While Saad was driving up the ramp, he saw a woman lying on the floor of
the garage. She appeared to have been shot. Saad called 9-1-1.
Security camera footage corroborated Saad’s testimony. A dark-colored Jeep
Cherokee entered the garage’s unsecured visitor area at 7:13 p.m. and waited there until
7:17 p.m. when it followed another vehicle through the gate and parked in the secured
area of the garage. At about 7:42 p.m. Hatcher drove a white car into the garage’s
secured area and parked on the last row. A person wearing black immediately exited the
Jeep and walked down the ramp toward Hatcher’s car. Moments later, the Jeep’s lights
came on and began backing out of its parking spot. The person wearing black walked
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back up the ramp and got into the Jeep which then drove down the ramp to the garage’s
lower level. At 7:44 p.m., a silver Corvette exited the garage, followed by the Jeep.
First responders found Hatcher lying under the open driver’s side door of her
white Toyota Camry and blood on the floor. She had suffered trauma to her chin, and
they found a wound to the back of her head. A pistol magazine and a fired bullet
fragment were on the ground beside Hatcher’s body. A fired cartridge case was on her
car’s passenger side floorboard.
The medical examiner testified that Hatcher sustained a gunshot wound to the
back of her head with an exit wound under her chin. The bullet had traveled from back to
front and downward. Hatcher also had an abrasion on her chest, which suggested that her
chin was down and near her chest when she was shot. The bullet severed her spinal cord,
leaving her unable to breathe and causing death quickly.
A trace evidence examiner testified that gunshot residue collected from the back of
Hatcher’s hands was consistent with her hands having been raised and behind her head
when she was shot.
Cortes, who testified pursuant to a plea deal, said that she and Delgado had already
begun planning the murder when they met Appellant through a close friend of Cortes’s
brother at the end of August. They all met at the Mandalay Apartments, where Appellant
lived, and Delgado and Cortes explained their intention to murder Hatcher. Appellant
agreed to participate. They met between ten and fifteen times to plan Hatcher’s murder
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and communicated frequently by phone. They followed Hatcher in different cars,
including on at least one occasion Appellant’s blue Chrysler Sebring.
After discussing several potential plans, they ultimately agreed to kill Hatcher with
a gun and make the offense look like a “robbery gone bad.” Appellant suggested that
Cortes drive because she was more familiar with the area, and he volunteered to shoot
Hatcher and take her property. Appellant thereafter obtained a .40-caliber Smith &
Wesson pistol to use in the murder. At Cortes’s suggestion, Appellant wore gloves when
he handled and loaded the pistol. Delgado promised to pay Cortes $500 for driving and
promised to pay Appellant in drugs and money for shooting Hatcher.
Cortes testified that on the morning of September 2 she and Delgado picked up
Appellant at his apartment and stopped at a convenience store so that Appellant could
buy a black shirt. They then dropped Appellant off at a Jack in the Box while Delgado
and Cortes drove to a mechanic shop owned by Delgado’s friend, Jose Luis Ortiz.
Delgado led Ortiz to believe that her BMW needed work, and he let her borrow his black
Jeep Cherokee while he checked out her car. After leaving Ortiz’s shop in his Jeep,
Delgado and Cortes picked up Appellant, returned to the Mandalay Apartments, and put
stolen paper tags on the Jeep.
At about 11:45 a.m., Cortes and Appellant drove the Jeep to Hatcher’s apartment
complex, planning to follow her. They saw her pull out of the garage and anticipated that
she was going to her dental office but did not find her there. Cortes then drove them back
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to the Mandalay Apartments and left Appellant there while she picked up her son from
school, took him to Sonic, and dropped him off at her grandmother’s house.
Cortes picked Appellant up from his apartment again at 4:30 p.m. They initially
went to the dental office but then returned to Hatcher’s apartment complex. Cortes was
driving and Appellant was lying down in the back seat so that no one could see him.
Cortes pulled into the garage’s visitor section and waited for a vehicle to enter the
secured area so that they could follow it through the gate, a strategy they had used several
times before. The area where Hatcher usually parked was full, so they parked on the last
row.
After thirty minutes to an hour, they saw Hatcher enter the garage in her white
Toyota Camry. Appellant put on gloves, grabbed the pistol, and exited the Jeep. Cortes
testified that she heard Hatcher scream and then heard gunshots. Cortes backed out of the
parking spot, and Appellant got back in the Jeep with Hatcher’s purse, a camera, and the
pistol. Cortes drove down the ramp by mistake and then turned the Jeep around and
came back up to leave through the main entrance. As they drove up the ramp, she saw
Hatcher’s body lying on the floor of the garage.
Cortes and Appellant went to an abandoned house in Pleasant Grove, cleaned the
Jeep with disinfectant, and removed the paper tags. Cortes dropped Appellant off at the
Mandalay Apartments and then picked up her son at her grandmother’s house. Cortes
testified that Appellant kept the pistol he had used to shoot Hatcher.
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Cortes testified that Delgado called her between 8:00 and 9:00 p.m. using Ortiz’s
cell phone and asked whether “the task”—meaning the murder—“was complete.” Cortes
said that it was. Delgado, who was having dinner out with Ortiz, sent Ortiz’s home
address to Cortes so that they could meet there to return his Jeep and pick up the BMW.
Cortes and her son got to Ortiz’s house before Delgado and Ortiz did. She
retrieved from the back of the Jeep the shirt and gloves that Appellant had worn, the
hoodie that she had worn, the paper tags, and Hatcher’s purse. Moments later Delgado
and Ortiz arrived in the BMW. They exchanged cars, and Ortiz drove away in his Jeep.
Security-camera footage corroborated Cortes’s account of this exchange.
Delgado and Cortes then exchanged the BMW for Delgado’s Lexus at a parking
garage and went to Cortes’s grandmother’s house where they burned the clothing, paper
tags, and contents of Hatcher’s purse. Delgado paid Cortes $500 for driving Appellant to
murder Hatcher. The next day, Delgado paid Appellant with “Kush,” cocaine, and the
cash from Hatcher’s wallet.
Dallas Police Department Detective Eric Barnes, the lead investigator, testified
that a black Jeep Cherokee was a vehicle of interest based on Saad’s 9-1-1 call. After a
still image of the Jeep was released in connection with the offense, Ortiz contacted the
police and claimed ownership of it. He recognized it from its distinctive rims, hood
damage, and missing bumper cap. Ortiz told the police that he had loaned the Jeep to
Delgado on the day of the offense, and he consented to a vehicle and cell phone search.
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A crime scene analyst who processed the Jeep testified that he found a Sonic receipt for
September 2 at 3:53 p.m. in the center console area.
Investigators questioned Delgado on September 4, but she denied having driven
the Jeep, asserting that Cortes had used it on the day of the offense. After the interview
Delgado fled to Mexico.
Barnes questioned Cortes on September 4. After being confronted with evidence
that contradicted her initial statement, she eventually admitted that she had driven the
Jeep during the killing. She was arrested and charged with capital murder. In a later
interview, Cortes identified the shooter as a man named “Kris.” She described him and
his blue Chrysler Sebring bearing Tennessee license plates and identified the area of town
where he lived or was known to frequent.
Retired DPD detective James Thompson testified that investigators used Cortes’s
phone to identify a Metro PCS number that they believed belonged to the shooter. Other
testimony showed that Metro PCS only sells prepaid accounts, does not do credit checks,
and does not verify its subscribers’ identification information. The subscriber in this case
provided the name “Kasino Jackson” and listed his address as 7272 Marvin D. Love
Freeway, Dallas, Texas. This address corresponded to an area of South Dallas that
Appellant was known to frequent.
Police got a warrant to “ping” the Metro PCS number and determine its location.
On October 1 the phone was in an apartment complex in South Dallas, in the same area
where Cortes claimed the shooter lived or frequented. Thompson went to the apartment
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complex and looked for a blue Chrysler Sebring. After finding it Thompson and other
agents watched it and saw Appellant leave an apartment and drive away in the Sebring.
Appellant matched the physical description of the shooter that Cortes had provided. As
Appellant drove away, the phone’s ping location corresponded with the Sebring’s travel.
When Appellant parked at a nearby apartment complex the phone ping stopped at
that same location. Appellant got out of the car and met a man and a woman in the
parking lot. Thompson arranged for uniformed officers to approach the group and
request identification, and then Thompson approached them. He saw a cell phone sitting
on the Sebring’s trunk. Barnes called the Metro PCS number, and the phone on the trunk
rang. Appellant was taken to the police station for questioning.
Detective Barnes interviewed Appellant after giving him Miranda warnings. See
Miranda v. Arizona, 384 U.S. 436 (1966). The interview was videotaped, and the
relevant portions were published to the jury. Appellant said that he did not know his way
around town very well because he had recently moved to Dallas, and he stayed in one
general area around his apartment. Appellant acknowledged that the Sebring he had been
driving belonged to his girlfriend. He denied knowing Cortes or Delgado.
During the interview, authorities executed a search warrant on the Sebring and
found a .40-caliber Smith and Wesson pistol underneath the center console. DPD
firearms examiner Susan Kerr testified that the magazine found next to Hatcher’s body
would fit and could be used to fire the pistol found in the Sebring. Kerr further testified
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that the fired cartridge found on the floorboard of Hatcher’s car was fired from the pistol
found in the Sebring.
When Barnes confronted Appellant with Kerr’s findings, Appellant’s demeanor
changed. Appellant first claimed that he had bought the pistol from Cortes, but she was
already in jail on the date he named. Eventually he admitted that he had been present
during Hatcher’s murder, but he asserted that Cortes was the shooter. He claimed that the
offense was only supposed to be a robbery, but that Cortes shot Hatcher while he was
struggling with Hatcher over her property.
After he was booked into the Dallas County Jail on a capital murder charge
Appellant called his girlfriend who asked him why he would keep the gun. Appellant
responded, “I don’t know, man. Stupid as fuck.” She later said, “If you shot that girl
with that gun, you should’ve . . . [thrown] it away or something.” Appellant replied, “I
know, man, I know. Too late now though.”
DPD criminal intelligence analyst Michael Freeman used call-detail records and
data extracted from Appellant’s, Cortes’s, and Delgado’s cell phones to summarize cell
phone activity between the three co-defendants around the time of the offense. He also
mapped the cell towers that Appellant’s and Cortes’s cell phones hit on the day of the
offense.
At 10:36 a.m. on the day of the offense Appellant’s phone hit on a tower near a
Jack in the Box located at Interstate Highway 35 and Royal Lane. Cortes’s phone hit near
the same location at 10:34 a.m. At 11:31 a.m., Appellant’s phone hit on a cell tower near
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Hatcher’s apartment. Cortes’s phone hit near the same location at 11:37 a.m. But
Appellant’s phone was inactive between 3:29 p.m. and 7:47 p.m., and Cortes’s phone was
inactive between 4:17 p.m. and 7:40 p.m., suggesting that they had turned off their cell
phones during these periods. When Cortes turned her phone back on it pinged on a tower
close to Hatcher’s apartment. At 7:47 p.m. Cortes received a call from Ortiz’s cell
phone.
Between August 1 and September 30, Delgado contacted Cortes 131 times by call
or text, Cortes contacted Delgado 95 times by call or text, Appellant contacted Cortes 111
times by call or text and Cortes contacted Appellant 23 times by call or text. Appellant
last texted Cortes on September 4, asking, “Wats up wit da kush?”
Around the time Appellant met Delgado, he began communicating with a person
named “Mustang” in his phone’s contacts. This number did not match Delgado’s known
phone number. But because other evidence showed that Delgado often drove her
cousin’s Mustang, the State argued that “Mustang” was the number for a second phone
that Delgado had. Freeman testified that Mustang texted or called Appellant 23 times,
and that Appellant contacted Mustang one time by phone call or text.
The day after the shooting, Appellant searched the internet for “killings in Dallas”
and “Dallas news today”; clicked on the headline, “Woman murdered in Uptown Dallas
parking garage”; searched for a “gun shop in 75237”, his zip code; and looked up “Gold
& Gun Swap Shop” in Dallas. Over the next two weeks he continued to search the
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internet for “Dallas homicide” and for specific news articles about Hatcher’s murder.
His phone also contained images of the type of pistol that was used to murder Hatcher.
II.B.2. Analysis
Appellant argues that the corroborating evidence is insufficient because the
parking garage’s security video does not show that he pulled the trigger and “[t]here are
45 seconds in which nothing can be seen or heard.” He avers that Cortes stepped out of
the Jeep, shot Hatcher, turned the Jeep around, and exited the garage during this 45-
second interval. Appellant contends that Cortes’s testimony—that she drove around the
parking garage during this interval, trying to find an exit—is implausible because Cortes
had been to the garage many times.
Appellant’s videotaped admission that he was present at the scene of Hatcher’s
murder and actively participated in her robbery was sufficient by itself to connect him to
the crime. See Solomon, 49 S.W.3d at 362; Cook, 858 S.W.2d at 470. In addition, the
murder weapon was hidden in his girlfriend’s car, and Appellant was driving it
immediately before his arrest. His cell phone data showed his extensive contact with his
two co-defendants leading up to the offense, proximity to Hatcher’s apartment on the day
of the offense, and numerous post-offense web searches for information on Hatcher’s
murder. Two days after the shooting he texted Cortes to ask about the “Kush” which was
supposed to be one way to pay him for the killing, and he made damning admissions to
his girlfriend in his recorded conversation with her from jail. In sum, the evidence
satisfied Article 38.14.
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Point of error twenty-four is overruled.
II.C. Future Dangerousness
In point of error thirty-four Appellant claims that the evidence is legally
insufficient to support the jury’s affirmative answer to the future dangerousness special
issue. The issue requires the jury to determine “whether there is a probability that the
defendant would commit criminal acts of violence that would constitute a continuing
threat to society.” Article 37.071, § 2(b)(1). In deciding the future dangerousness special
issue, the jury is entitled to consider evidence admitted at both the guilt and punishment
phases of trial. Devoe v. State, 354 S.W.3d 457, 462 (Tex. Crim. App. 2011). We review
the evidence in the light most favorable to the verdict. Jackson, 443 U.S. at 319;
Williams v. State, 273 S.W.3d 200, 213 (Tex. Crim. App. 2008). Assessing the evidence
and reasonable inferences from it in this light, we ask whether any rational trier of fact
could have believed beyond a reasonable doubt that there is a probability the defendant
would commit criminal acts of violence that would constitute a continuing threat to
society. Williams, 273 S.W.3d. at 213.
The circumstances of the offense alone may be sufficient to support an affirmative
answer to the future dangerousness special issue. Buntion v. State, 482 S.W.3d 58, 66
(Tex. Crim. App. 2016). For example, a premeditated killing and general disregard for
human life will support a finding of future dangerousness. See Sonnier v. State, 913
S.W.2d 511, 517 (Tex. Crim. App. 1995) (premeditation); Ford v. State, 919 S.W.2d 107,
112 (Tex. Crim. App. 1996) (disregard for human life). Other relevant factors include a
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defendant’s criminal history, an escalating pattern of lawlessness and violence, lack of
remorse, and blame-shifting. See Jones v. State, 119 S.W.3d 766, 781 (Tex. Crim. App.
2003) (criminal history); Swain v. State, 181 S.W.3d 359, 370 (Tex. Crim. App. 2005)
(escalating pattern of violence); Smith v. State, 74 S.W.3d 868, 872 (Tex. Crim. App.
2002) (escalating lawlessness); Ford, 919 S.W.2d at 112 (remorselessness and blame-
shifting). These factors support the jury’s affirmative finding in this case.
II.C.1 Punishment Evidence
Appellant had a lengthy criminal history in Tennessee. On March 21, 2001,
Appellant, then a juvenile, committed: theft of an automobile; evading arrest by vehicle;
reckless endangerment; unlawful possession of a weapon; leaving the scene of an
accident; and reckless driving. He spent the next six months in the Youth Services
Bureau’s custody. After his release, he committed burglary of a habitation with the intent
to commit theft on September 9, 2002. In August 2003, he pled guilty to that burglary
and received two years’ probation as part of a judicial diversion program, but that
probation was revoked less than a year later.
On December 29, 2003, he evaded arrest. The next day he committed aggravated
robbery and aggravated assault against Cory Turner and aggravated assault against
Lequite Turner and was later sentenced to three years in prison for these crimes. On July
2, 2004, he committed aggravated robbery against Tracey Denton. He admitted using a
stolen vehicle to commit the robbery. He was later sentenced to eight years in prison for
the robbery of Denton.
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Following a March 2013 traffic stop he was charged with being a felon in
possession of a firearm after a gun was found hidden in the car he was driving. After that
arrest he sold another gun in Memphis that he had illegally possessed. An arrest warrant
was pending for his failure to appear on the felon-in-possession charge when he
committed the capital murder in Dallas.
Appellant also committed various unadjudicated crimes in Texas. He admitted to
Barnes that he had been selling drugs in Dallas before killing Hatcher, and his phone data
confirmed his drug dealing. His phone data also suggested that he was trying to become
a pimp; there were many entries for “Backpage,” a black-market website used for
soliciting sex and promoting prostitution.
Appellant’s tattoos were also telling: “Life or Death” surrounded by dollar signs
on his chest, a handgun on his left side, and an AK-47 with “One Man Army” on his
back. While in jail awaiting trial for capital murder, he added bullet holes and smoke to
the AK-47 tattoo, committing a major violation of the jail’s rules by having himself
tattooed while in custody.
Todd Harris, Senior Warden for the Texas Department of Criminal Justice’s
Polunsky Unit, testified about TDCJ’s inmate security classifications and how those
classifications affect inmates’ housing, job opportunities, and privileges. Harris stated
that, despite TDCJ’s best efforts to control inmate behavior, some inmates are still able to
obtain contraband, fashion weapons, and engage in violence.
II.C.2. Analysis
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Appellant murdered Hatcher with premeditation, calculation, and forethought for
payment, evidencing a disregard for human life. The same day that Appellant met
Delgado and Cortes, he agreed to help them murder Hatcher. He helped plan every detail
of the murder and helped watch and follow Hatcher to determine the best time to kill her.
He suggested shooting Hatcher, volunteered to do the shooting, and obtained the pistol
used in the shooting.
Appellant had many opportunities to disavow the plan, even on the day of the
shooting—in the morning when he and Cortes waited outside Hatcher’s office, in the
afternoon before Cortes returned from dropping off her son, and in the evening while he
lay in wait for Hatcher. Despite Hatcher’s screams, Appellant shot her in the back of the
head, took her belongings, returned to the Jeep, and fled the scene with Cortes. He did
these things for some money and drugs. His willingness to murder a stranger for a small
amount of money and drugs also demonstrated his disregard for human life.
In his interview with Barnes Appellant displayed no remorse over Hatcher’s death,
and he tried to shift blame for the offense. It seems that his only regret was that he had
not tossed the gun after killing Hatcher.
Appellant’s lengthy and violent criminal history supported the future
dangerousness finding, too. It also demonstrated an escalating pattern of violence and
disrespect for the law.
On this evidence, any rational jury could find against Appellant on the future
dangerousness issue.
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Point of error thirty-four is overruled.
III. Voir Dire—Challenges for Cause
In points of error one through twenty-one, Appellant claims the trial court erred in
denying twenty-one of his challenges for cause.
A juror is challengeable for cause by the defense if he has a bias or prejudice in
favor of or against the defendant or the law on which the defendant is entitled to rely.
Tex. Code Crim. P. art. 35.16(a)(9), (c)(2); see Gardner v. State, 306 S.W.3d 274, 295
(Tex. Crim. App. 2009). “The test is whether the bias or prejudice would substantially
impair the prospective juror’s ability to carry out his oath and follow instructions in
accordance with the law.” Tracy v. State, 597 S.W.3d 502, 512 (Tex. Crim. App. 2020).
The law must be explained to the juror, and he must be asked whether he can follow the
law regardless of his personal views. Id. The challenger bears the burden of establishing
that the challenge is proper. Id. The challenger does not meet this burden until he has
shown that the juror understood the law’s requirements and could not overcome his
prejudice well enough to follow the law. Id.When assessing a trial court’s decision to deny a challenge for cause, we review
the entire record to determine whether sufficient evidence exists to support the court’s
ruling. Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim. App. 2010). We reverse only
for a clear abuse of discretion. Id. Because the trial judge is in the best position to
evaluate a potential juror’s demeanor and responses, we review a trial court’s ruling on a
challenge for cause with considerable deference. Gardner, 306 S.W.3d at 295. When a
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prospective juror’s answers are vacillating, equivocating, ambiguous, unclear, or
contradictory, we accord particular deference to the trial court’s decision. Tracy, 597
S.W.3d at 512.
To prevail on a claim that the trial court erred in denying a challenge for cause, the
defendant must also show harm. Harms depends on “whether a peremptory challenge
was wrongfully taken from the defendant.” Newbury v. State, 135 S.W.3d 22, 30–31
(Tex. Crim. App. 2004) (internal quotation marks and alterations omitted). Therefore,
besides error, the defendant must also show that (1) he asserted a clear and specific
challenge for cause; (2) he used a peremptory challenge on the complained-of
veniremember; (3) his peremptory challenges were exhausted; (4) his request for
additional strikes was denied; and (5) an objectionable juror sat on the jury. Comeaux v.
State, 445 S.W.3d 745, 750 (Tex. Crim. App. 2014); see also Newbury, 135 S.W.3d at
31. The parties in capital cases are allotted fifteen peremptory challenges each. Article
35.15(a).
III.A. Byers, Parham, Slear, and Taylor
In points of error eighteen through twenty-one, Appellant complains about the
denial of his challenges for cause to jurors Byers, Parham, Slear, and Taylor. Appellant
still had peremptory strikes remaining when he challenged these jurors, but he did not
strike them. Since he could have used peremptory strikes on them but did not, he
suffered no harm from the trial court’s rulings even if they were erroneous. See
Newbury, 135 S.W.3d at 32. We overrule points of error eighteen through 21.
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III.B. Remaining Veniremembers
Appellant satisfied the conditions for showing harm from any error in the trial
court’s denial of his challenges for cause with respect to seventeen potential jurors.
Appellant challenged each for cause and, as those challenges were denied, he used his
peremptory strikes until he had none left. He requested and was granted two additional
strikes. After his challenge for cause to veniremember Niesman (point of error
seventeen) was denied, he identified Niesman as objectionable and requested but was
denied a third additional peremptory strike. Niesman became the twelfth juror.
Because the trial court granted Appellant two additional peremptory challenges,
Appellant cannot show harm unless he demonstrates that the trial court should have
granted at least three of his challenges for cause to these seventeen veniremembers. See
Comeaux, 445 S.W.3d at 749–50; Chambers v. State, 866 S.W.2d 9, 23 (Tex. Crim. App.
1993).
III.B.1. Thomas
Appellant asserts several reasons that Thomas should have been removed for
cause, but he only raised one of those reasons at trial. Thus, he failed to preserve for our
review those other reasons for his challenge. See Tex. R. App. P. 33.1(a) (stating that a
timely and specific objection at trial is required to preserve a complaint for appellate
review). In support of his preserved basis of review, Appellant cites Thomas’s responses
regarding the issue of venue and argues that Thomas would not have required the State to
prove each element of his case beyond a reasonable doubt.
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Under State questioning, Thomas testified that he would require the State to prove
every element of its case beyond a reasonable doubt and agreed that if the evidence
showed that the offense was committed in a county other than Dallas County, Appellant
would be entitled to a not-guilty verdict. Thomas stated he would “follow all the
evidence” and said he would follow the law.
Appellant emphasizes Thomas’s testimony in response to questions by the
defense. After drawing a distinction between “innocent” and “not guilty” that Thomas
did not buy into, the defense attorney asked him how he felt about the possibility of
having to say “not guilty” merely because the State failed to prove venue. Thomas
answered:
Based on that scenario you’re giving me right there, one instance being out
of area, then I would say -- I will not say the guy is totally innocent. I will
not say he’s not guilty. I would say that’s an error that can be discovered
later on, and the person has that right to bring that back up in an appeal to
say that was wrong. For me, in that point right there, being out of the
county, if the guy was found reasonable doubt [sic] he actually committed
the crime, in my mind as it stays right now, I still will find him guilty.
Defense counsel challenged Thomas for cause, arguing that he would not hold the
State to its burden to prove all the elements of the offense beyond a reasonable doubt.
Although the State must prove that an offense occurred in the county alleged in the
indictment, its burden on that point is by a preponderance of the evidence. See Article
13.17 (requiring the State to prove venue by a preponderance of the evidence); Schmutz v.
State, 440 S.W.3d 29, 34–35 (Tex. Crim. App. 2014) (concluding that venue error does
not render the evidence legally insufficient because venue is not an element of the offense
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that the State must prove beyond a reasonable doubt). No one explained this to Thomas,
and counsel did not ask Thomas if he could follow the law despite any personal
disagreement with it. See Tracy, 597 S.W.3d at 512.
In addition, Thomas stated during State questioning that he would require the State
to prove all the elements of the offense beyond a reasonable doubt. Thomas’s response to
defense counsel’s questions more reasonably evidenced confusion than a statement that
he would not hold the State to its burden. See Tracy, 597 S.W.3d at 512; see also Hogue
v. State, 711 S.W.2d 9, 20–23 (Tex. Crim. App. 1986) (finding that the veniremember’s
answers as a whole showed that he would follow the law and hold the State to its burden
of proving venue). To the extent Thomas’s answers were vacillating or ambiguous, we
defer to the trial court’s implicit determination that he could follow the law and render a
verdict based on the law and the evidence. See Tracy, 597 S.W.3d at 512; Burks v. State,
876 S.W.2d 877, 893 (Tex. Crim. App. 1994).
Point of error one is overruled.
III.B.2. Veniremember Rackard
Appellant argues that the trial court should have excused Rackard because she had
already determined his guilt due to media exposure, would not hold the State to its burden
of proving every element of the offense beyond a reasonable doubt, and would
automatically answer the special issues in a manner that resulted in a death sentence.
a. Presumption of Innocence
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Rackard stated in her questionnaire that she thought she had heard some facts of
Appellant’s case through the media. Appellant emphasizes that when the State asked if
she had formed an opinion about Appellant’s guilt or innocence based on what she had
heard, she answered, “I think I lean a little bit more to the guilty side.” Appellant
contends that this statement shows that Rackard was biased against him.
Rackard’s subsequent responses do not support Appellant’s contention. She
agreed that Appellant was entitled to a presumption of innocence. She stated that the
presumption of innocence meant that, if she were asked for a decision on Appellant’s
guilt or innocence right then, the verdict would have to be not guilty because the State
had not proven anything; Appellant had “just been arrested.” Rackard acknowledged the
importance of the presumption of innocence and stated that she could “remove [her]
emotion and just follow the law” which meant “listen[ing] to both sides” and answering
“fairly.”
Regarding her “leaning towards guilt” comment, Rackard explained, “Well, I
mean, I don’t know that it was him. That has to, obviously, be proven.” She said that, in
hearing about the case through the media, she had merely hoped that the perpetrators
would be caught and punished. Rackard denied that she had a predetermined opinion
about whether Appellant was one of the perpetrators. Rackard also repeatedly
emphasized the importance of keeping an open mind and listening to the evidence.
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Rackard was at most a vacillating juror. The trial court did not abuse its discretion
in denying Appellant’s challenge for cause based on the argument that Rackard had
predetermined his guilt. Gardner, 306 S.W.3d at 295–96.
b. Burden of Proof
Appellant contends that Rackard should have been dismissed because she would
not hold the State to its burden of proof regarding venue.
The prosecutor showed Rackard the indictment and emphasized that the State had
the burden of proving everything in it. When the prosecutor asked Rackard what the
result would be if the State failed to prove that the offense happened in Dallas County,
Rackard responded, “You would get a not guilty” verdict.
Defense counsel returned to this subject and asked Rackard if she would vote for
an acquittal if the State had proved everything alleged in the indictment beyond a
reasonable doubt except that the offense occurred in Dallas County. Rackard answered,
“Not if it was the county.” She understood that the law would entitle Appellant to an
acquittal under that circumstance, but she said that she “would probably let that slide” if
the State only failed to prove the county. She then stated that, although it would be very
difficult for her to acquit Appellant if only the proof of venue were lacking, she would
ultimately “have to do the right thing.”
As with veniremember Thomas, a failure to require the State to prove venue
beyond a reasonable doubt was not a proper basis for challenging Rackard. See Article
13.17; Schmutz, 440 S.W.3d at 34–35. Further, Rackard vacillated on this topic. She
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gave one answer during State questioning but an opposite answer during defense
questioning. She retreated from the answer she gave to the defense, stating that she
would ultimately follow the law. We accord particular deference to a trial court’s ruling
under these circumstances, and thus we defer to its determination. See Tracy, 597
S.W.3d at 512. The trial court did not abuse its discretion in denying the challenge on
this basis.
c. Automatic Death Penalty
Appellant contends that Rackard would automatically answer the special issues in
a way that resulted in the death penalty. He notes that on her questionnaire she said,
“[H]arm to a child (or death), planned and calculated death to someone,” was “the best
argument for the death penalty.” When defense counsel asked what she meant by
“planned and calculated death to someone,” Rackard explained: “Like, murder for hire.
If there is a planned attack seeking out some one individual, a particular individual.”
Rackard’s subsequent answers showed she meant that such a murderer should be eligible
for the death penalty, not that such a person should automatically receive the death
penalty.
Furthermore, the totality of Rackard’s questionnaire and voir dire responses does
not show that she would automatically answer the special issues in a manner that resulted
in a death sentence. Rackard stated in her questionnaire that she believed the death
penalty was appropriate in some cases, but not all, and that she did not believe in “an eye
for an eye.” From the stand she repeatedly emphasized that no two cases are the same,
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that the particular circumstances should control the punishment, and that she would
consider all the evidence presented at the punishment phase, if any, before answering the
special issues.
The trial court did not abuse its discretion in denying the challenge for cause on
the grounds that Rackard would automatically assess the death penalty.
Point of error two is overruled.
III.B.3. Kays
Appellant contends that Kays was challengeable for cause he would need to hear
evidence of remorse from Appellant. However, that complaint was not preserved
because Appellant did not challenge Kays for cause on this basis at trial. See Tex. R.
App. P. 33.1(a). Appellant’s preserved complaint about Kays was that he would not hold
the State to its burden of proof to show future dangerousness. He argued that Kays
would lower the State’s burden of proof on the future dangerousness special issue by
requiring it to prove a probability that Appellant would commit only a single act rather
than “acts” of violence. See Article 37.071, § 2(b)(1). The record does not support this
argument.
During the State’s questioning Kays averred that he would hold the State to its
burden to prove future dangerousness because, “That’s the law.” Kays agreed there were
no automatic answers to the future dangerousness special issue and that the answer might
very well be “no.”
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Defense counsel questioned Kays at length about his understanding of the first
special issue’s requirements, especially the phrase, “criminal acts of violence.” Kays
initially stated that the word “acts” “would be singular.” Defense counsel explained that,
because the future dangerousness special issue states “criminal acts of violence,” it “is
actually looking for more than one act.” When asked if proof of only one act would be
enough for him, Kays said it would “depend[] on the act.” Defense counsel re-
emphasized that the future dangerousness special issue required the State “to prove to
you there is a probability that he would commit acts that would constitute a continuing
threat to society.” Kays answered, “That’s correct.” Questioning continued:
Q. My question to you is, where I’m having a little bit -- I’m stuck. I get
the feeling you’re saying if they prove one act to you, that’s going to be
sufficient.
A. I don’t think anyone can prove one act whatsoever. They are trying
to do their best to show what the person might do down the road. To me -- I
don’t know. It’s hard to determine whether or not it’s going to be one or
more. I don’t know how you get to that point.
Q. That’s just it. That’s what they have to prove, and that’s what I’m
trying to make sure I get to.
A. That will be the next step in the process.
Q. It will be the next step in the process. That’s why I’m trying to see
where you are because I have to make sure we get 12 people on there to
make sure that they prove that there’s going to be a probability that the
defendant will commit criminal acts of violence that would constitute a
continuing threat to society. Not an act of violence.
You even -- a minute ago when I said if they prove a fight in prison, you
said, if there was one, there is going to be many. That begs the question, do
they even have to prove that to you? Because if you already assume if he’s
in prison there is going to be more than one fight, is that going to be an act
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of violence to you? If it is, is it going to be multiple? Are you going to be
predisposed to answering that simply because he’s going to prison?
A. I mean, what can I say?
Q. That’s just it. The only person that knows you is you. I’m trying to
get to know you.
A. It’s an unknown to me, as far as getting there, because I’ve never
been in any one of those seats.
Q. I understand. That’s why I said it’s difficult, because we have to get
you as close to being in that seat as we can to get what your thoughts are.
It’s their burden of proof on this special issue.
A. That’s what I said earlier, that each one of the cases have to be met.
Kays did not manifest an inability to require the State to prove beyond a
reasonable doubt a probability that Appellant would commit criminal acts of violence.
Instead, Kays’s responses evidenced a desire to follow the law but confusion about how
he was supposed to determine whether Appellant would commit criminal acts of violence
in the future. At most, Kays’s answers were unclear or equivocal about his ability to
follow the law. We defer to the trial court’s implicit determination that Kays was able to
set aside any reservations that he may have had and render a verdict based on the law and
the evidence. See Tracy, 597 S.W.3d at 512.
Moreover, we have interpreted the future dangerousness special issue as
“essentially a normative [question] as the Legislature declined to specify a particular
level of risk or probability of violence.” Coble v. State, 330 S.W.3d 253, 267–68 (Tex.
Crim. App. 2010); see Estrada v. State, 313 S.W.3d 274, 281–82 (Tex. Crim. App. 2010)
(discussing our “commonsense” or “core” interpretation of the future dangerousness
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inquiry). The future dangerousness special issue focuses on the degree to which a
defendant “poses a real threat of future violence.” See Coble, 330 S.W.3d at 268.
Defense counsel’s semantic wrangling with Kays did not compel the trial court to find
that Kays had a bias against the law that he was unable to set aside.
Point of error three is overruled.
III.B.4. Queen
Appellant argues that Queen would have required him to testify. However, he did
not challenge Queen for cause on that basis at trial, so he failed to preserve that
complaint. See Tex. R. App. P. 33.1(a). His preserved claim is that Queen was biased
against him because she had been the victim of an attempted carjacking that presented a
similar factual scenario to his case and because she favored the death penalty.
Queen disclosed on her juror questionnaire that she had been the victim of an
attempted carjacking, and she told the prosecutor that the perpetrator had not been
caught. She told the prosecutor that her emotions related to the incident would not affect
her decision-making as a juror. When defense counsel pressed her on whether the two
cases were similar, she explained that she did not think her would-be robber had intended
to hurt anyone, noting that he had been armed with a butter knife. She denied that the
experience would affect her as a juror at Appellant’s trial because the two offenses did
not seem comparable to her. Queen stated that the only lasting impression the incident
had made on her was “[n]ot to be a naive 16 year old in a dark parking lot.”
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On her questionnaire Queen said, “If you’re going to kill and carry a firearm, you
should be prepared for the consequences and justify your actions if called upon.” She
also said that a life sentence was appropriate for some capital murder cases, depending on
the evidence. During voir dire she said she felt the death penalty was appropriate for
premeditated murder. But she said she would not automatically apply the death penalty
and would consider all the evidence before answering the special issue, and she
acknowledged that the default sentence is life without parole.
The trial court did not abuse its discretion in denying Appellant’s challenge.
Queen’s responses supported a finding that her experience would not bias her against
Appellant, and she was at most vacillating in her responses on the death penalty. The
trial court was in the best position to assess her credibility. See Gardner, 306 S.W.3d at
295.
Point of error four is overruled.
III.B.5. Kohn
Appellant argues that the trial court should have removed Kohn for cause because
she would require Appellant to testify, and she would automatically answer “yes” to the
future dangerousness special issue if she found him guilty of capital murder.
a. Right Not to Testify
During State questioning, Kohn stated that it was “fair” that jurors cannot consider
a defendant’s decision not to testify. And when asked whether she could afford
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Appellant his Fifth Amendment right not to testify, Kohn answered, “Absolutely. It’s his
right.”
When defense counsel questioned Kohn, he focused on her questionnaire where
she said, “I believe a defendant should testify in his own defense even though the law
does not require it.” Kohn explained that she had responded “Agree” to that statement
because she had previously been a juror in a DWI case in which the defendant had
testified, and Kohn felt that his testimony had benefitted him, because the jury had
acquitted him.
Kohn continued, “So human nature makes me want to hear somebody speak and
how they carry themselves and just to get an understanding of, you know, nonverbal
language” and “just to add a human element to the person that you’re making -- whose
life you’re holding in your hands.” When defense counsel followed up by asking Kohn if
she would hold it against Appellant if he did not testify, she answered, “No. No. That’s
why he’s got a legal defense team to make that decision, and there [are] pros and cons,
I’m sure, both ways.”
The trial court was in the best position to assess Kohn’s demeanor and responses,
and we defer to its resolution of the issue. See Gardner, 306 S.W.3d at 295.
b. Future Dangerousness
In her questionnaire, Kohn disagreed with the statement, “The state prison system
in Texas can control inmates who have been convicted of violent offenses.” To the
question “What would be important to me in deciding whether a person received a death
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sentence rather than a life sentence” she answered “guilty beyond a reasonable doubt.”
At voir dire defense counsel asked her whether that answer meant that in the case of a
murder in the course of a robbery, she thought “that before getting to the special issues
that the defendant should be sentenced to death?” She answered “At this point, I don't
know.” When asked to hypothetically assume guilt beyond a reasonable doubt, she said,
“honestly, not necessarily, but, you know, I've got to hear more before I can form an
opinion.”
Kohn repeatedly stated or agreed that the imposition of the death penalty should
depend on the facts and circumstances of an individual case. Her answers further showed
her understanding that a life sentence could not lawfully change to death unless the State
proved beyond a reasonable doubt a probability that Appellant would commit criminal
acts of violence that would constitute a continuing threat to society. Kohn pledged to
keep an open mind and not assess any automatic answers to the special issues.
On this record, the trial court was within its discretion to reject Appellant’s
contentions that Kohn would automatically answer “yes” to the future dangerousness
special issue and hold a decision not to testify against him. See Gardner, 306 S.W.3d at
295.
Point of error five is overruled.
III.B.6. Veniremember Tijerina
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Appellant claims that Tijerina was not qualified to serve as a juror because he
would not hold the State to its burden to prove every element of the offense beyond a
reasonable doubt.
Under State questioning, Tijerina repeatedly affirmed that the jury would be
required to return a “not guilty” verdict if the State failed to prove every element beyond
a reasonable doubt.
When the defense questioned Tijerina, counsel asked him to imagine that the State
had proven the elements except that it had shown that the defendant used a knife to
commit the murder rather than a gun as the indictment alleged. Tijerina responded, “It’s
-- that’s a slippery slope, to say the least. It’s just the way the law says that, you know, I
guess it wouldn’t -- according to the law, it wouldn’t meet the capital murder type
scenario.” Defense counsel observed that some people would purposely overlook the
State’s failure to prove the manner and means if they thought the defendant committed
the crime. Tijerina explained that although in his opinion it would not be “right” for
someone to “get people out of – to blame for what they’ve done” but that if that was what
the law required, “then that’s what we’ll do.” Counsel asked if that meant that Tijerina
was saying that he “would still go along and follow the law in that situation,” and
Tijerina responded, “Yeah, I follow the law. I try to follow all the laws. Do we agree
with them all? Like I said in the beginning, no, I do not.”
At the end of questioning, defense counsel referred to Tijerina’s responses to the
gun/knife hypothetical and challenged him for cause on the ground that “he would find
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someone guilty regardless of whether the State proved all the elements of the offense.”
The trial court denied the challenge.
Jurors are not required to agree with the law. See Tracy, 597 S.W.3d at 512.
Jurors are only required to follow the law. See Article 37.071, § 2(e)(1). Tijerina’s
testimony supports a finding that he would follow the law whether he agreed with it or
not.
Point of error seven is overruled.
III.B.7. Rose
Appellant asserts that Rose would automatically assess the death penalty due to his
strong religious beliefs, but he did not preserve this assertion because he did not raise it at
trial. See Tex. R. App. P. 33.1(a). Appellant also contends that the trial court should
have excused Rose from jury service because he would automatically answer “no” to the
mitigation special issue, and he preserved this contention.
On his questionnaire Rose said he “somewhat” agreed that “A convicted capital
murderer’s accomplishments or good deeds in his life should not matter in deciding
whether he should get the death penalty or not.” He also disagreed on the questionnaire
that a person’s background or life history does not matter in assessing punishment. Rose
wrote on his questionnaire that a person’s punishment “should be based on [the]
evidence” and “circumstances,” and that he would have “no problem” listening to mental
health evidence.
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Rose was not required to find any “particular type of evidence to be mitigating.”
See Standefer v. State, 59 S.W.3d 177, 181 (Tex. Crim. App. 2001). The law only
required Rose to be able to consider all the evidence presented at Appellant’s trial in
determining his answer to the mitigation special issue. See Article 37.071, § 2(e)(1). His
testimony supports a finding that he could satisfy that requirement. He repeatedly
expressed the belief that not all capital murders should necessarily be punished by death,
and he indicated that he could keep an open mind. Rose acknowledged that he might not
find any evidence sufficiently mitigating to answer the mitigation special issue “no” after
finding a defendant guilty of capital murder and answering “yes” to the future
dangerousness special issue. But he denied that his answer to the mitigation special issue
would always be “no” under those circumstances. To the extent Rose gave contradictory,
equivocal, or unclear answers, the trial court was in the best position to resolve the issue.
We defer to its determination. See Gardner, 306 S.W.3d at 295.
Point of error eight is overruled.
III.B.8. Parker
Appellant claims that Parker was challengeable for cause on several bases that he
did not rely on at trial. Those claims were not preserved for review. See Tex. R. App. P.
33.1(a). He also claims Parker should have been struck for cause because her
questionnaire shows that she was “mitigation-impaired” because she would not consider
genetics, upbringing, environment, or mental health evidence in answering the mitigation
special issue. However, Parker’s voir dire testimony in its entirety shows the opposite.
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Parker explained that she had either misread the questions or not realized what they were
asking. In any case, the law did not obligate Parker to find any particular evidence
mitigating. See Standefer, 59 S.W.3d at 181. Instead, the law obligated Parker to
consider all the evidence presented at Appellant’s trial. See Article 37.071, § 2(e)(1).
Her testimony indicates that she understood and could fulfill that obligation. The trial
court did not abuse its discretion by denying the defense’s challenge for cause on the
ground that Parker was mitigation-impaired.
Point of error nine is overruled.
III.B.9. Veniremember Theis
Appellant argues that Theis was challengeable for cause because he would not
meaningfully consider the defense’s mitigation evidence and would automatically answer
the mitigation special issue “no,” and because he had job concerns that would affect his
ability to serve as a juror.
a. Mitigation
Appellant refers to Theis’s questionnaire in which Theis suggested that evidence
of a defendant’s background, upbringing, genetics, mental health history,
accomplishments, good deeds, and environment do not matter when determining the
appropriate punishment for capital murder.
But Theis gave these answers before the parties had explained the law to him, so
they would not support a challenge for cause. See Tracy, 597 S.W.3d at 512. Further,
the law did not require Theis to find any particular evidence mitigating. See Standefer,
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59 S.W.3d at 181. Instead, the law required him to be able to consider all the evidence
presented at Appellant’s trial. See Article 37.071, § 2(e)(1).
After the law was explained to Theis, he stated that he understood it. Theis further
asserted that he could set aside his personal beliefs and follow the law if seated as a juror.
Theis noted that he answered the juror questionnaire without previously having thought
deeply about the death penalty. He assured defense counsel that he would “be open and
listen to all the facts and all the evidence, as well as, you know, any personal background
or things that should change my -- you know, my feeling based on the decision that’s
made up to that point. So I think just that I am open-minded.” Theis also promised
several times that he would not automatically answer the mitigation special issue “no” if
the jury convicted Appellant of capital murder and answered “yes” to the future
dangerousness special issue.
To the extent any of Theis’s answers were contradictory, equivocal, or unclear, the
trial court was in the best position to determine his ability to follow the law. See
Gardner, 306 S.W.3d at 295. We defer to its determination.
b. Job Concerns
Theis expressed concern about serving as a juror because he was due to start a new
job. During voir dire he at one point answered “no,” he did not think he could set aside
his employment concerns to focus on the case. At other times, however, he said that his
job stress would not make him unfair, and he assured counsel several times that he could
be fair, pay attention to the proceedings, and fulfill his oath as a juror. It is not an abuse
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of discretion to deny a challenge to a juror that expresses work distractions but also states
he can be fair. Garcia v. State, 887 S.W.2d 846, 859 (Tex. Crim. App. 1994).
Additionally, Theis gave contradictory answers about his ability to set aside his
employment concerns, so we defer to the trial court’s decision. Gardner, 306 S.W.3d at
295.
Point of error ten is overruled.
III.B.10. Applebaum
Appellant claims that Applebaum was challengeable for cause because she would
automatically find police officers more credible than other witnesses, and she would not
meaningfully consider any mitigating evidence.
a. Police Officer Credibility
When questioning Applebaum, the prosecutor observed that many people feel a
special connection with the police and therefore are inclined to automatically find their
testimony more credible than that of other witnesses. Referring to Applebaum’s
questionnaire, the prosecutor noted, “You said they are just the same -- you would treat
them the same as anybody else that got up there to testify. And that’s what the law would
ask of you. It doesn’t matter if a cook, a baker, a lawyer, a priest, or a police officer
testifies, that you hold them all to whatever your same measuring stick is.” Applebaum
responded, “Yes.”
However, she also agreed on her questionnaire that, “If the police charge someone
with a crime, he or she is probably guilty.” Applebaum told defense counsel she selected
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this response because she “believe[d] in the police officers in our society” and “back[ed]
them based on they’re supposed to follow the law as well.” She continued, “So if they’re
the one investigating the crime and say someone is guilty, I am definitely going to be
listening to that testimony. They were the ones there after the crime, I guess I should say,
collecting the evidence. And you’ve got to make your decision based on something.”
Applebaum retreated from her “Agree” response, stating that she “would have to say
‘uncertain’ until [she] heard the information[.]” Applebaum added, “[B]ut I mean, you
have to get your information to make your decision somehow, and I back the blue and
that would definitely be a part of my decision-making.”
Defense counsel told Applebaum that many people shared her attitude because the
police “are professionals, supposed to do a job and their duty.” Counsel said that attitude
might lead people like Applebaum to say, “I’m going to give police officers a little more
credibility by nature of the fact of their position.” Counsel asked, “Is that what I’m
hearing from you, Ms. Applebaum?” She answered, “Yes.” But when asked if she
believed a person is more likely to be guilty if the police arrest and charge him, she said
“I’m not going to make that assumption, no.”
Applebaum at most vacillated in her answers about automatically giving more
credibility to police officers. In such situations, we defer to the trial court’s resolution of
the issue. See Tracy, 597 S.W.3d at 512.
b. Mitigation Bias
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Appellant claims that Applebaum was “mitigation impaired” because her
questionnaire disagreed that genetics, birth circumstances, upbringing, and environment
should be considered when determining punishment in a capital case.
When defense counsel asked her about the response, Applebaum explained that
the day that she had completed the questionnaire had been “very overwhelming.”
Applebaum was not sure what she had been thinking at the time and noted that many of
the terms were new to her. She said that she now realized that the factors listed in the
questionnaire “would play right into these two special issues, No. 1 and No. 2.”
Applebaum stated that she now understood what capital murder was and asserted,
I’m not going to make a decision on anybody’s life until I have all the facts,
and part of the facts are going to be the things that you’re mentioning in
here, your environment, your upbringing. And so I guess I put for capital
murder “no,” but the answer is in capital murder “yes,” I’m going to
consider everything -- I don’t take this lightly.”
Applebaum also assured both sides several times that she would maintain an open
mind and consider any evidence presented. Further, she stated in her questionnaire that
testimony on subjects such as mental health would be a “[g]reat idea!”
The trial court did not abuse its discretion by denying Appellant’s challenge for
cause to Applebaum. See Gardner, 306 S.W.3d at 295–96.
Point of error eleven is overruled.
III.B.11. Roman
Appellant argues that Roman should have been struck for cause for several reasons
that he did not raise at trial, so these arguments were not preserved for review. See Tex.
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R. App. P. 33.1(a). He also contends that Roman was “mitigation-impaired” because he
would consider the two special issues in conjunction rather than sequentially and so
would always answer “no” to the mitigation special issue.
Roman vacillated regarding his understanding of the mitigation special issue and
the requirement that jurors consider it only if they first have answered “yes” to the future
dangerousness special issue. Roman told defense counsel, “Based on what you explained
the procedure was, [both special issues are] going to be considered at the same time and
you’re going to have to consider them pretty much in conjunction.” But when the law
was clarified for Roman, he affirmed that he would answer the two special issues
separately and sequentially. Roman told the State that he would consider the future
dangerousness special issue first and only reach the mitigation special issue if the jury
answered “yes” to the future dangerousness special issue.
Roman initially told defense counsel the same thing and affirmed that he would
“back up” and reconsider all the evidence before answering the mitigation special issue.
Roman further affirmed that he would answer “yes” to the mitigation special issue if he
found something sufficiently mitigating after re-examining the evidence. Roman denied
that he could never find something sufficiently mitigating to warrant a “yes” answer to
the mitigation special issue. Roman’s testimony reflected his eventual understanding of
the law and willingness to follow it.
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To the extent that Roman vacillated regarding his understanding of the law or his
ability to follow it, the trial court was in the best position to resolve the issue. See
Gardner, 306 S.W.3d at 295. We defer to its determination.
Point of error twelve is overruled.
III.B.12. Johnston
Appellant argues that Johnston (also referred to as “Johnson” in the record) was
challengeable for cause because she would give a police officer greater credibility than a
lay witness.
The prosecutor told Johnston that the law required that jurors not automatically
give police officer witnesses more or less credibility than other witnesses. Johnston
stated that she understood and could fulfill that requirement. The prosecutor then asked
Johnston about her questionnaire statement that she considered police officers more
credible than most witnesses. After again asserting that she could approach all witnesses’
testimony from a neutral perspective, Johnston explained:
Yes, I put down I would give police a little more weight simply because
they’re trained responders. They are -- in these situations, they are more
likely to know exactly what’s going on, whereas if you have just been
thrown into some crisis, people -- and it’s a one-time thing for you, a police
officer’s observations are going to be more believable than yours.
Johnston elaborated that she was thinking “[m]ore along that line” when she wrote her
response—“Not whether they’re truthful or not but that they have a better
understanding.”
Johnston gave a similar explanation to defense counsel:
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For police officers, are they telling the truth or not telling the truth, I think
that would be even for everybody. But if a police officer were to say the car
was blue whereas somebody else said it was red, I would be more likely to
believe the police officer because they’re trained to observe these things.
She compared policing to her military and nursing experience; as a “trained observer” she
is “trained to look at what’s happening” in high-stress situations, “whereas regular people
are not.” She explained, “And as far as I know, police are the same way.” Defense
counsel asked:
Q. So it actually kind of sounds like you would give them a little more
credibility based on that they’re a police officer?
A. On situations and what they saw and observed I would, but as to
opinions and whether I think they’re telling the truth or not, it wouldn’t be
more. It would be the same, if you can separate those two things.
Q. I’m trying to, but the scenario you gave, whether it was red or blue, you
said you would give the officer a little more credibility, and that’s what you mean?
A. Yes.
Where a prospective juror testifies that “she believes a police officer would always
tell the truth, this Court has construed such a belief to constitute a bias or prejudice
against the defendant.” Montoya v. State, 810 S.W.2d 160, 171 (Tex. Crim. App. 1989).
However, Johnston made no statement implying that she believed that police officers
would never lie on the witness stand. In fact, she expressly stated that “telling the truth
or not telling the truth . . . that would be even for everybody.” See Lane v. State, 822
S.W.2d 35, 44–45 (Tex. Crim. App. 1991) (finding no abuse of discretion in overruling
challenge for cause based on claim that veniremember was predisposed to believe police
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officers where veniremember never stated or implied a belief that police officers would
always tell the truth); see also Montoya, 810 S.W.2d at 171–72 (same).
Further, Johnston’s attempts to explain herself made her a vacillating juror. In
such situations, we defer to the trial court’s resolution of the issue. See Tracy, 597
S.W.3d at 512.
Point of error thirteen is overruled.
III.B.13. Summers
Appellant asserts that Summers was challengeable for cause for various reasons
not raised at trial and so not preserved for review. See Tex. R. App. P. 33.1(a). In
support of his preserved complaint that Summers would automatically assess the death
penalty in the event of a conviction, Appellant notes Summers’s response to the State’s
hypothetical about convicted capital murderer Karla Faye Tucker.
The prosecutor related that Tucker had killed her two victims with a pickax and
derived sexual pleasure from it. But she had been rehabilitated in prison, and two
competing camps arose as her execution date neared. One group believed that Tucker
should still be executed, while the other group believed that the governor should
commute her sentence. In the end, Tucker was executed. The prosecutor asked Summers
what she would have done if she had been the governor. Summers answered:
A. She should pay for her crime.
Q. Why do you feel that way?
A. Because anybody can change. What’s to say she won’t change back,
and you have to pay the consequences for your actions. If you kill
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somebody, you can’t bring them back just because you’re changed. Good
for you, now that part of your life was better than the previous part, but that
doesn’t change what happened.
The prosecutor then outlined the stages of a death penalty case. He emphasized
that the State believed that its evidence and the law would lead the jury to convict
Appellant of capital murder beyond a reasonable doubt and to answer the special issues in
a way that resulted in Appellant receiving the death penalty. The prosecutor asked
Summers whether she could participate in a process that might end with Appellant being
executed. Summers replied:
I think so. I mean, I don’t know anything about this case at all, like,
nothing, so I look at this person and if I just saw him on the street, it would
just be anybody. That’s who he is right now to me. But if I found out he
killed somebody with a pickax and got sexual pleasure out of it, I would
probably want him to die. I don’t know anything about this, so it doesn’t
change my feeling.
After this exchange, the prosecutor segued to the punishment phase special issues.
The prosecutor emphasized that for there to be a punishment phase, the jury would have
necessarily determined that Appellant intentionally killed another human being in the
course of committing or attempting to commit robbery. He noted that the law required
that jurors not make automatic decisions on punishment. Summers affirmed that her
mind would remain “open to listening to all the evidence” and only afterward would she
determine the answers to the special issues. Summers promised that she would give no
automatic answers, explaining, “No, because it’s someone’s life. It’s kind of a big deal.”
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The prosecutor then focused on the future dangerousness special issue. Summers
affirmed that she “totally understood” what the future dangerousness issue asked her to
decide and that it made sense to her.
Regarding mitigation, the prosecutor explained that jurors would not reach this
issue unless they first found beyond a reasonable doubt that Appellant was guilty of
capital murder and that the answer to the future dangerousness special issue should be
“yes.” Summers thought it was “really good” to require that jurors take “one last look
before [deciding] if someone’s going to get a death sentence.” When the prosecutor
emphasized that “[y]ou can’t say, I find him guilty, future danger, death sentence”
because it would not be fair, Summers responded, “Exactly. I feel you have to really
think about it. It’s someone’s life.” The prosecutor asked her if she understood the
special issues and if she could be a fair juror, and Summers stated, “I definitely think I
can be fair. I have a lot of compassion for people, but I also can be fair. Like I said, I
believe in the death penalty.”
Defense counsel asked Summers to state her thoughts about the death penalty if
she and the other jurors found Appellant guilty of capital murder. Summers answered,
Well, I mean, there would still have to be other information that you know
about to make that determination. Obviously, if the person committed those
crimes -- I don’t know what the crimes are, then they would need to have
some kind of punishment for that, but there are so many other things you
have to know before I could answer a question like that.
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Defense counsel asked Summers to imagine that the jury had also answered “yes”
to the future dangerousness special issue and what her thoughts would be. She replied:
“Then I would definitely consider the death penalty as an option.”
Referring to the prosecutor’s hypothetical about Tucker, defense counsel
suggested that Summers’s response showed that she was “one of these people if I find it’s
a heinous crime and he’s going to victimize people, that’s all I need.” Summers denied
this:
I don’t have any facts. That’s not what I’m saying. I’m a very open person,
and I think I’m very fair. I have a lot of compassion for people. I have
compassion for him. I don’t even know him. Like I said, he’s just a person
on the street to me. I have no opinion of him. You’re not -- that’s too vague
for me to really answer that without facts. I’m a person that really works
with facts and thinks a lot about them.
Summers assured defense counsel that if she found someone guilty of capital murder and
answered “yes” to the future dangerousness special issue, she would “absolutely” also
“go on and listen to Special Issue No. 2[,]” giving that issue “meaningful consideration.”
Defense counsel asked Summers about her “[m]aybe but not really” response on
the questionnaire that genetics, circumstances of birth, upbringing, and environment
should be considered when determining the proper punishment for someone convicted of
a crime. Summers explained that she sometimes saw things on the news about criminal
defendants “try[ing] to use something that’s not true, like, oh, they had a bad mother or
whatever, when it’s kind of BS. It could be true, but I have seen that to be also [sic]. So,
I mean, when I answered it, that’s -- yeah, maybe it could be, but, you know[.]”
Summers continued,
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There are a million circumstances. It’s very vague. Maybe it could. It
depends on what it was. When I was answering that question, what I was
thinking about is the more BS stuff. If somebody’s convicted of a crime,
they’ve totally done the crime and now they’re going to go back and try to
pull something to sort of get out of it. I think we’ve all seen that[.]
She added, “But there could also be times when there was really something that, you
know, caused it.”
In sum, Summers repeatedly expressed that the death penalty was appropriate in
some circumstances but not all and that any decision would depend on the specific facts.
She rejected the idea of “an eye for an eye” because “life is much more complex.”
Although Summers thought a murderer like Tucker should die, she added that she did not
know the facts of Appellant’s case. Summers affirmed several times that she would keep
an open mind as to the special issues if she found Appellant guilty of capital murder, and
she stated that she would not give automatic answers. The record supports a finding that
Summers could answer the punishment phase special issues based on the facts and the
law. See Davis, 329 S.W.3d at 807.
Point of error fourteen is overruled.
III.B.14. Foster
Appellant claims that Foster was challengeable for cause because she would
require him to express remorse in violation of his Fifth Amendment and due process
rights and because she was biased toward police officers. He did not challenge Foster on
these bases at trial, so they are not preserved for review. See Tex. R. App. P. 33.1(a).
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His preserved complaints are that Foster would automatically assess the death penalty
and was “mitigation-impaired.”
a. Automatic Death Penalty
On her questionnaire, Foster indicated that she believed that some crimes call for
the death penalty solely based on their facts and regardless of prior violent history,
“especially on a child or sexual assault of the deceased.” When asked to explain during
voir dire, she said “there is just no second guessing for me. That if you murdered a child,
there just seems to be no redemption, I want to say.” When asked if the death penalty
should be automatic for those who murder children or for murder in the course of a rape,
she said, “Yes.” She also stated that she would want a remorseless killer to receive the
death penalty.
However, Foster also said she could follow the law and would not automatically
assess the death penalty. She said that she would hold the State to its burden to prove
future dangerousness beyond a reasonable doubt and acknowledged that she would
answer “no” on the future dangerousness special issue if the State failed its burden. She
understood that the default sentence was life and said that she would not automatically
apply the death penalty in the event of a conviction but would answer the special issues
based on the evidence she heard.
On this record the trial court did not clearly abuse its discretion in denying the
challenge for cause on grounds that Foster would automatically assess the death penalty.
See Gardner, 306 S.W.3d at 295–96.
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b. Mitigation-impaired
On her questionnaire Foster indicated that she strongly agreed that “A convicted
capital murderer's accomplishments or good deeds during his life should not matter in
deciding whether he should get the death penalty." During voir dire she said she
“probably misread that question” when she answered it. She said she could follow the
law and that she would “take into all of the considerations whenever you’re considering
punishment or anything like that because not one box fits all.”
Foster also said on her questionnaire that genetics, circumstances of birth,
upbringing, and environment should “[n]ot always” be considered because “we can take
responsibility for our own selves at sometime in our lives.” During voir dire she
explained, “Some people can continue to blame everybody else for the things that
happened in their life, and then there are other people that the same thing has happened to
but they have managed to pull themselves up.” Following that explanation, she agreed to
keep an open mind and meaningfully consider any evidence.
Jurors are not required to find any particular evidence mitigating. Standefer, 59
S.W.3d at 181. Rather they must consider all the evidence. See Article 37.071, § 2(e)(1).
The record shows Foster was capable of considering all the evidence, so she was not
mitigation-impaired.
Point of error fifteen is overruled.
III.B.15. Stejskal
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Appellant claims that Stejskal was challengeable for cause because she would
automatically assess the death penalty if the jury convicted him of capital murder, and
she would not consider mitigation evidence.
a. Automatic Death Penalty
On her questionnaire Stejskal wrote that some crimes “are unforgivable” and
deserving of death “solely because of the severe facts and circumstances.” She explained
that she was thinking of “[s]erial killers, that kind of thing” as the kind of cases that
warranted the death penalty as a punishment option and that “there are just some people
that I don’t think should stay around.” When questioned by defense counsel, she denied
that she was the kind of person who would automatically answer “yes” to the future
dangerousness special issue: “I don’t think so. I mean, we still have to prove Special
Issue No. 1.”
Stejskal described herself as someone who believed that the death penalty was
appropriate in some but not all murder cases. Although she believed in “an eye for an
eye,” it would depend on the circumstances. She also expressed that life in prison could
be an appropriate punishment, depending on the facts.
Further, Stejskal assured the prosecutor that there was “no question” that she could
follow the law if she were selected as a juror and would not give any automatic answers
to the punishment issues. Stejskal opined that it was “good” that the law required jurors
to answer a mitigation special issue even if jurors answered “yes” to the future
dangerousness special issue. She did not “think anybody should just rush into [assessing
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the death penalty].” Instead, “[t]hey should be able to go back and look at” whether that
was the right decision. Stejskal added, “I think that Special Issue 2 should be something
that is definitely considered. I mean, we’re talking about somebody’s life.”
The trial court was in the best position to evaluate Stejskal’s demeanor and
responses, and we defer to its ruling. Gardner, 306 S.W.3d at 295.
b. Mitigation Bias
Appellant argues that Stejskal would not meaningfully consider any mitigating
evidence if the jury convicted Appellant of capital murder. The record does not support
Appellant’s assertion.
As discussed above, Stejskal expressed approval of the mitigation special issue
and stated that mitigating evidence “should definitely be considered” if the jury convicted
Appellant of capital murder and found that he posed a future danger. The prosecutor
noted that on her questionnaire Stejskal:
• listed “a person’s character” as an important factor in deciding whether a
defendant received a death sentence rather than life without parole;
• responded “Somewhat Agree” to an assertion that a person’s background and life
history did not matter in determining whether the person received the death
penalty;
• answered, “It’s possible; the person may not be a completely bad apple,” regarding
the possibility of rehabilitation in prison; and
• wrote, “Maybe some, depending on the crime,” to answer whether a defendant’s
upbringing and circumstance of birth should be considered in determining whether
he should receive a death sentence.
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The prosecutor explained how all these factors could be relevant to the mitigation
special issue. Stejskal affirmed that she could meaningfully consider all the evidence in
answering the mitigation special issue if the trial reached that point.
When defense counsel questioned Stejskal about her ability to meaningfully
consider mitigating evidence, Stejskal denied that she would automatically answer the
mitigation special issue “no”; she would need to hear the facts because even after an
affirmative answer to future dangerousness, “you never know what might come next.”
She explained why she “[s]omewhat [d]isagree[d]” that “A person’s background
or life history does not matter in deciding whether or not he should get the death
penalty”:
It’s just one of those things that until you know what the story is or what
happened, it’s -- I don’t know how I would feel or what I would think at
that point. I would have to know the specifics, the facts to be able to
determine whether or not it would influence me at all.
Stejskal gave a similar answer when asked why she “[s]omewhat [d]isagree[d]”
that “A convicted capital murderer’s accomplishments or good deeds during his life
should not matter in deciding whether he should get the death penalty”:
Yeah, I mean, I just -- I don’t know. As far as, I guess, you know, if -- if he
was a hero or something and that came out, it’s part of the character, I
guess, just determining if -- again, if this is somebody that is going to cause
problems in the future. I don’t know without knowing everything. I
couldn’t answer that.
Defense counsel then asked whether Stejskal understood that those two questions spoke
to the mitigation special issue and whether she would take into consideration the facts
related to those two questions as the law required. She said “yes” to both questions.
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When asked again, she again affirmed she would “wait and listen to the evidence and
then make that determination.”
Stejskal testified that she would meaningfully consider all the evidence presented
to her in answering the mitigation special issue. That was all the law required of her; she
was not required to find any particular evidence mitigating or sufficiently mitigating. See
Standefer, 59 S.W.3d at 181. Further, the trial court was in the best position to judge her
demeanor and the credibility of her responses. To the extent any of Stejskal’s answers
about her ability to follow the law were vacillating, equivocating, ambiguous, unclear, or
contradictory, we defer to the trial court’s decision. See Tracy, 597 S.W.3d at 512.
Point of error sixteen is overruled.
III.B.16. Wiley and Niesman
Because Appellant received two additional peremptory strikes, he cannot
demonstrate harm unless he shows that the trial court erroneously denied at least three of
his challenges for cause. See Chambers, 866 S.W.2d at 23. Appellant contends that the
trial court erred by denying seventeen of his challenges for cause. We have reviewed
fifteen of the seventeen challenged rulings and found no trial court error. Accordingly,
even if we assume that the trial court erred in denying Appellant’s challenges for cause to
the two remaining veniremembers at issue, Wiley and Niesman, Appellant cannot show
harm. See id.Points of error six and seventeen are overruled.
IV. Voir Dire—Remaining Issues
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In points of error twenty-two and twenty-three, Appellant argues that by
overruling his challenges for cause, the trial court deprived him of a lawfully constituted
jury under the federal and state constitutions and Article 35.16. However, Appellant has
failed to show that the trial court erred in its rulings about the complained-of jurors or
that he suffered harm as a result. See Gray v. State, 233 S.W.3d 295, 301 (Tex. Crim.
App. 2007). Absent such a showing, we presume that the jurors who served on
Appellant’s jury were qualified. See id. Because Appellant has not overcome this
presumption, he is not entitled to relief. See id. at 301–02. Points of error twenty-two
and twenty-three are overruled.
V. Hearsay
In points of error twenty-six through twenty-eight, which are briefed collectively,
Appellant contends that the trial court erred in overruling his hearsay objections to
testimony given by Jennifer Escobar, Moses Martinez, and Crystal Cortes about
statements Brenda Delgado made to them while planning Hatcher’s murder.
The trial court overruled Appellant’s hearsay objections after the prosecution
argued that the testimony was not hearsay because it was statements of co-conspirators or
was admissible under the statements-against-interest exception to the hearsay rule. See
Tex. R. Evid. 801(e)(2), 803(24). Appellant does not explain why either of those bases
for admission were erroneous but makes a conclusory assertion that the testimony was
hearsay. Accordingly, he has inadequately briefed points of error twenty-six, twenty-
seven, and twenty-eight. See Tex. R. App. P. 38.1(i); Linney v. State, 413 S.W.3d 766,
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767-68 (Tex. Crim. App. 2013) (stating that appellant’s conclusory argument that merely
“recited the elements of his stated grounds for relief” fell “far short of satisfying his
obligation to adequately discuss” his claim). Nevertheless, we address the merits of his
claims in the interest of justice.
A trial court’s ruling on the admissibility of evidence is reviewed for an abuse of
discretion. Colone v. State, 573 S.W.3d 249, 263–64 (Tex. Crim. App. 2019). The trial
court’s ruling will be upheld if it is within the zone of reasonable disagreement. Tillman
v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). If the trial court’s evidentiary
ruling is correct under any applicable theory of law, an appellate court should not disturb
it, even if the trial court gave a wrong or insufficient reason for the ruling. Johnson v.
State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016).
V.A. Escobar’s Testimony
Escobar was Delgado’s friend and former roommate. Escobar testified that while
they were roommates Delgado had approached her about harming Hatcher, which she
initially agreed to before deciding she did not want to be involved. Escobar’s
complained-of testimony began with this exchange with the prosecutor:
Q. Okay. Now, Jennifer, at some point Brenda brings you into a plan
that she has involving a woman by the name of Kendra Hatcher?
A. Yes, sir.
Q. And what was that plan?
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The trial court sustained a hearsay objection by the defense, but the prosecutor
asked to approach the bench. After an off-the-record bench conference the questioning
resumed:
Q. (BY [PROSECUTOR]) Jennifer, let me ask you again. Now, at some
point Brenda reaches out to you and asks you to help do something?
A. Yes, sir.
Q. And she offers you money to do that?
A. Yes, sir. She offers –
Q. How -- how much money did she offer you?
Defense counsel interrupted before Escobar could answer. Referencing “the
conversation we had at the sidebar,” he said he wanted to renew his hearsay objection in
the presence of the jury. The trial court overruled the objection, and questioning
continued:
Q. (BY [PROSECUTOR]) What did she -- what did she offer you?
A. She offers [sic] me $2,000, plus a car.
Q. And for $2,000 and a car, what were you supposed to do?
At this point, defense counsel asked to approach the bench. After another off-the-
record bench conference, the trial court excused the jury from the courtroom. Defense
counsel then made a record of what had transpired during the off-the-record bench
conferences: the trial court had initially sustained his hearsay objection, but at the first
bench conference, the prosecutor had offered a hearsay exception which caused the trial
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court to change its ruling. Counsel asked to formalize the basis for the trial court’s ruling
for purposes of appellate review.
The prosecution argued Delgado’s statements were admissible as statements
against penal interest made by an indicted co-conspirator and in furtherance of a
conspiracy. The trial court granted the defense a running hearsay objection to oral
statements made by indicted co-conspirators but ruled that such testimony was
admissible. The jury re-entered the courtroom and the State’s questioning resumed:
Q. (BY [PROSECUTOR]) Okay. Ms. Escobar, I think where we left off
was I had asked you what you were supposed to do for -- in exchange for
$2,000 and a car.
A. She -- she had several plans. First, it was Ricky. Put him in a coma
or beat him up, or just eliminate Hatcher.
Q. Did she describe to you how she wanted either of those things to
happen?
A. For -- for Ricky, she had bought a bat, some type of needle. I don’t
know what -- what it contained, basically for him -- to put him to sleep. She
wanted to capture -- to follow around Hatcher and basically eliminate her.
She had so many -- so many ways of -- one was going to her car. Basically
whenever she would get in her car, grab her from the front and just stab her
with the needle that I’m describing. Two, just go and beat her up.
V.B. Martinez’s Testimony
Moses Martinez was Delgado’s cousin. Martinez testified that Delgado had
approached him about help in harming Hatcher, but he had refused. Martinez’s
complained-of testimony began with the following exchange:
Q. Had [Delgado] talked to you about Dr. Ricardo Paniagua?
A. Yes.
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Q. Had she talked to you about how they had broken up?
A. Yes, sir.
Q. Okay. Had she talked to you about how she wanted to get back at
him?
A. Yes, sir.
Q. Did she make any reference or talk to you at all about wanting -- at
least starting off, to hurt Dr. Paniagua?
A. Yes.
The trial court overruled a hearsay objection, and Martinez’s direct examination
resumed:
Q. (BY [PROSECUTOR]) You can answer the question. Did she make
any -- say anything to you about wanting to hurt Ricky?
A. Yes, she said that. But when she was talking like that, she was -- she
was drinking at the time. Every time I see her, she was just -- she was not in
her right mind. She was just -- every time we see her, like she was just
drunk. She was just drinking a lot. I don’t know because of what was going
on, but she was always -- she wasn’t there.
Q. Okay. But she would have conversations with you about doing
things like that, and then at some point did those conversations turn to
hurting a girl named Kendra?
A. Yes.
Q. Okay. Now, did she ever talk to you specifically about how she
wanted you to do it?
A. She just said she wanted me to hit her with the --with the bat. And
that’s when I told her I didn’t want to do that, like it’s not worth it. It’s
someone innocent. I told my uncles, and that’s when we stopped talking
because they didn’t believe me.
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* * *
Q. Okay. Now, you mentioned a bat. She had said something about a bat to
you. What does this appear to be to you?
A. It’s a bat.
Q. It’s a bat? Do you know if she had already bought a bat when she was
talking to you about this?
A. Yes.
Q. And that would be -- I just showed you State’s Exhibit 136.
A. Yes, sir.
Q. So you made -- you made the decision that what she’s asking you is not a
good idea?
A. Yes.
Q. Did she offer you help with your child support?
A. She offered me money.
Q. And she offered you money?
A. I told her I wouldn’t do it for money, for nothing.
Q. What about a car? Did she offer to help you with a car?
A. Offered me a car.
V.C. Cortes’s Testimony
Appellant complains of the following exchange between Cortes and the
prosecutor:
Q. Now, at some point Brenda starts talking to you about someone named
Kendra Hatcher?
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A. Yes.
Q. Okay. What kinds of things is she talking to you about?
A. She said that Kendra Hatcher –
[Hearsay objection sustained and then overruled]
Q. (BY [PROSECUTOR]) You can answer.
A. Okay. She said that Kendra Hatcher, she hated her, she didn’t want
anything to do with her. She already knew where Kendra lived. She pretty much
said she wanted to do away with Kendra.
V.D. Analysis
“‘Hearsay’ means a statement that: (1) the declarant does not make while
testifying at the current trial or hearing; and (2) a party offers in evidence to prove the
truth of the matter asserted.” Tex. R. Evid. 801(d). Hearsay is generally inadmissible
except as provided by statute or by the Texas Rules of Evidence. Tex. R. Evid. 802.
A statement that “was made by the party’s coconspirator during and in furtherance
of the conspiracy” is not hearsay. Tex. R. Evid. 801(e)(2)(E). A statement against
interest may be admitted as an exception to the hearsay rule:
(24) Statement Against Interest. A statement that:
(A) a reasonable person in the declarant’s position would have made only
if the person believed it to be true because, when made, it was so contrary
to the declarant’s proprietary or pecuniary interest or had so great a
tendency to invalidate the declarant’s claim against someone else or to
expose the declarant to civil or criminal liability or to make the declarant an
object of hatred, ridicule, or disgrace; and
(B) is supported by corroborating circumstances that clearly indicate its
trustworthiness, if it is offered in a criminal case as one that tends to expose
the declarant to criminal liability.
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Tex. R. Evid. 803(24).
The trial court did not abuse its discretion in admitting the testimony of Escobar,
Martinez, or Cortes about Delgado’s statements because their testimony was admissible
under Rule 803(24). The underlying “statements” attributed to Delgado through these
three witnesses’ testimony met Rule 803(24)’s exception to the hearsay prohibition.
Rule 803(24) establishes
a two-step foundation requirement for admissibility. First, the trial court
must determine whether the statement, considering all the circumstances,
subjects the declarant to criminal liability and whether the declarant
realized this when he made that statement. Second, the court must
determine whether there are sufficient corroborating circumstances that
clearly indicate the trustworthiness of the statement.
Walter v. State, 267 S.W.3d 883, 890–91 (Tex. Crim. App. 2008) (internal footnotes
omitted). In determining whether there are sufficient corroborating circumstances, a trial
court should consider a number of factors: (1) whether the declarant’s guilt is
inconsistent with the defendant’s guilt, (2) whether the declarant was so situated that she
might have committed the crime, (3) the declaration’s timing, (4) the declaration’s
spontaneity, (5) the relationship between the declarant and the party to whom the
statement is made, and (6) the existence of independent corroborative facts. Dewberry v.
State, 4 S.W.3d 735, 751 (Tex. Crim. App. 1999). “When the statement is offered by the
State to inculpate the defendant, as in the case before us, the first two factors are not
relevant.” Woods v. State, 152 S.W.3d 105, 113 (Tex. Crim. App. 2004).
Here the statements attributed to Delgado were against her penal interest, as they
potentially subjected her to criminal liability for criminal solicitation or attempted capital
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murder for remuneration, among other offenses. See Tex. Penal Code §§ 15.03,
19.03(a)(3). In addition, Delgado undoubtedly would have realized that hiring or
attempting to hire others to commit murder on her behalf would subject her to criminal
penalties.
Further, the statements attributed to Delgado bore sufficient indicia of
trustworthiness. Delgado made the unprompted statements well in advance of the
offense, as she was attempting to recruit someone to help her commit Hatcher’s murder.
See Woods, 152 S.W.3d at 113 (stating that the timing and spontaneity of statements
against interest tend to establish their reliability). Delgado also made these statements to
Escobar and Cortes, her friends, and Martinez, her cousin. See Walter, 267 S.W.3d at
898 (noting that statements to friends, loved ones, or family members normally do not
raise the same trustworthiness concerns as those made to persons outside this circle).
Moreover, the State presented abundant independent evidence that corroborated
Delgado’s statements. Detectives Barnes testified that Delgado had a motive to murder
Hatcher—Hatcher was dating Delgado’s former boyfriend, Paniagua. Other witnesses
testified that Delgado was distraught over her breakup with Paniagua and obsessed with
him and his new romantic relationship with Hatcher. Delgado hired Cortes and Appellant
to murder Hatcher in exchange for payment, but only after several other people had
refused Delgado’s offers. Ortiz, the owner of the Jeep used in the offense, testified that
Delgado borrowed it on the day of the offense. Delgado told Barnes that Cortes had been
driving the Jeep that day. Cortes subsequently told investigators that Hatcher’s murder
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resulted from a murder-for-hire scheme that Delgado orchestrated. When investigators
searched Delgado’s car, they found a bat, which Delgado had suggested Escobar and
Martinez use in the offense. The Dewberry factors plus the foregoing independent
corroborative evidence support a finding that Delgado’s statements offered through
Escobar’s, Martinez’s, and Cortes’s testimony bore sufficient indicia of reliability and
were therefore admissible under Rule 803(24).
Because Escobar’s, Martinez’s, and Cortes’s testimony was admissible under Rule
803(24), we need not consider whether it was also admissible as non-hearsay under Rule
801(e)(2)(E).
Points of error twenty-six through twenty-eight are overruled.
VI. Suppression Issues
In points of error twenty-nine and thirty Appellant claims that the trial court erred
in overruling motions to suppress searches of his car.
In his briefing for point of error twenty-nine, Appellant quotes trial counsel’s
explanation to the trial court about the issues in his suppression motion, summarizes the
suppression hearing testimony, and sets forth some general law about warrantless
searches and exigent circumstances. His effort to apply the law to the facts consists of
these conclusory sentences:
The testimony on when a warrantless search in this case was conducted is
contradicted by the fact that a large number of law enforcement officers
both police and FBI agents were present where the vehicle was stopped.
The trial court denied Appellant a fair trial by denying the motion to
suppress. The only fair [remedy] is to remand for a new trial.
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In his briefing for point of error thirty, Appellant directs us to the objections trial
counsel made to the warrant. Appellant then states,
Trial counsel explained the factual basis of his objections at Reporter’s
Record Volume 36 p. 59 and why the trial court abused its discretion in
overruling his motion to suppress any evidence related to the search of the
vehicle, mainly the recovery of a firearm later tied to the murder.
The totality of Appellant’s argument on appeal is:
Appellant submits that the underlying affidavit of the warrant is insufficient
as argued by trial counsel to the trial court. The seized evidence should
have been suppressed based on either of trial counsel’s two theories of
suppression based on an illegal search of the vehicle.
In point of error twenty-nine, Appellant has insufficiently applied the law to facts.
In point of error of thirty, he has entirely failed to do so. These two points of error are
inadequately briefed, and we will not address them. See Tex. R. App. P. 38.1(i); Wolfe v.
State, 509 S.W.3d 325, 342–43 (Tex. Crim. App. 2017).
Points of error twenty-nine and thirty are overruled.
VII. Victim Impact Evidence
In point of error thirty-one Appellant claims that the trial court erred at the
punishment phase “in overruling [his] objection concerning victim impact evidence.”
The claim apparently pertains to an objection trial counsel made when the State indicated
that it would call Hatcher’s mother to rebut Appellant’s mitigation case.
The objection at trial was that it would be improper for the State to “have the last
word” because the State can’t present victim impact evidence “unless the Defendant has
failed to waive his right to – to present mitigating evidence.” See Williams v. State, 273
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S.W.3d 200, 225 (Tex. Crim. App. 2008) (concluding that the mitigation special issue is a
waivable defensive issue). The argument on appeal is that “in total the State’s victim
impact character evidence [sic] was so voluminous that it violated Appellant’s right to
due process and a fair trial” and thus the trial court erred to overrule the relevance
objection. Appellant failed to preserve the claim he raises on appeal because it does not
comport with his objection at trial. See Tex. R. App. P. 33.1; Bekendam v. State, 441
S.W.3d 295, 300 (Tex. Crim. App. 2014) (“We are not hyper-technical in examination of
whether error was preserved, but the point of error on appeal must comport with the
objection made at trial.”).
This point is also inadequately briefed. Appellant provides some general law on
victim impact testimony and quotes at length from Mosley but fails to apply the law to the
facts. He asserts that the total volume of victim impact or victim character evidence
presented by the State violated his constitutional rights to due process and a fair trial. But
he does not identify where in the record or through what witnesses, other than Hatcher’s
mother, the State presented such victim impact or victim character evidence. See Wolfe,
509 S.W.3d at 342–43; Tex. R. App. P. 38.1(i).
Point of error thirty-one is overruled.
VIII. Photographs
In points of error thirty-two and thirty-three Appellant complains about the
admission of photographs in the punishment phase of trial. Neither point is adequately
briefed.
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“A photograph is generally admissible if verbal testimony about the matters
depicted in the photograph is also admissible.” Young v. State, 283 S.W.3d 854, 875
(Tex. Crim. App. 2009). Further, victim impact and victim character evidence are
generally admissible at the punishment phase of a capital murder trial. See Williams, 273
S.W.3d at 218–19. “[G]iving the defendant ‘the broadest latitude to introduce relevant
mitigating evidence,’ as has been done under Supreme Court precedent, justly entails
permitting the prosecutor to introduce ‘the human costs of the crime of which the
defendant stands convicted.’” Id. (quoting Payne v. Tennessee, 501 U.S. 808, 827
(1991)).
VIII.A. “Victim-Impact” Photographs
In point of error thirty-two, Appellant contends that the trial court erred in
overruling his objection to “victim-impact” photographs. Appellant refers us to trial
counsel’s argument where he objected to the admission of fifteen photographs of
Hatcher, State’s Exhibits SX-363-374 and SX-376-380, taken at various points during her
life. Trial counsel argued that the photographs were “duplicitous” and redundant and
referred to guilt-phase testimony about Hatcher. Appellant argues that the “sheer
volume” of the photographs made them unduly prejudicial.
However, Appellant has not explained how the fifteen photographs created an
undue prejudice by their volume nor shown how they were duplicative of guilt–
innocence testimony; instead, he conclusorily asserts that the photographs are excessively
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voluminous without applying the law to the facts. He thus has failed to adequately brief
the argument. Tex. R. App. P. 38.1(i).
Point of error thirty-two is overruled.
VIII.B. Photographs of Appellant
In point of error thirty-three Appellant asserts that the trial court erred to admit
State’s Exhibits 176 and 178, photographs of him which he contends are prejudicial. The
two images are from Appellant’s cell phone. State’s Exhibit 176 shows his face and
various chest tattoos. State’s Exhibit 178 is a close-up of Appellant grimacing.
Trial counsel objected to State’s Exhibit 178 on the grounds that it had no
probative value and that anything depicted in it was prejudicial. Trial counsel also
asserted that State’s Exhibit 176 was “duplicitous” because it could accomplish the same
goal as State’s Exhibit 178 by “bring[ing] forth a depiction of [Appellant] with a . . .
grimace upon his face.” The trial court overruled the objection.
Appellant now contends that the exhibits at issue were inadmissible under Rule
403 because their probative value was substantially outweighed by the risk of unfair
prejudice or because they were needlessly cumulative. See Tex. R. Evid. 403. He
sets forth, without citation to any authority, a list of factors that he says a court may
consider in determining whether a photograph’s probative value is substantially
outweighed by the danger of unfair prejudice. He does not apply any of these factors to
his case. Instead, he concludes that the probative value of the photographs was
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outweighed by their prejudicial effect or the needless presentation of cumulative
evidence, and thus the trial court abused its discretion in admitting the photographs.
The point is inadequately briefed. See Tex. R. App. P. 38.1(i); Wolfe, 509 S.W.3d
at 342–43.
Point of error thirty-three is overruled.
IX. Punishment Charge
In point of error thirty-six Appellant asserts approximately thirty-three challenges
to the trial court’s punishment charge. He acknowledges that our precedents foreclose his
requested instructions and objections to the trial court’s punishment charge but states that
he seeks to preserve the issues for potential federal review. He also asks us to reconsider
our precedents, but provides no argument for doing so.
The point of error is multifarious and inadequately briefed. See Davis, 329
S.W.3d at 803; Tex. R. App. P. 38.1(i). We see no reason to reconsider our precedents.
Point of error thirty-six is overruled.
X. Constitutional Challenges to Article 37.071
In points of error thirty-nine through forty-six, Appellant raises various
constitutional challenges to Article 37.071. Citing Saldano v. State, 232 S.W.3d 77 (Tex.
Crim. App. 2007), Appellant acknowledges that we have previously considered and
rejected each of the arguments that he raises. He explains that he submits the points of
error to preserve them for federal review and to invite us to review our prior decisions.
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Appellant is correct that we have previously rejected the arguments he asserts in
points of error thirty-nine through forty-six. See, e.g., Coble, 330 S.W.3d at 296–98. He
does not persuade us to revisit our holdings.
Points of error thirty-nine through forty-six are overruled.
We affirm the trial court’s judgment and sentence of death.
Delivered: April 14, 2021
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