Contreras, Saul ( 2010 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0490-09
SAUL CONTRERAS, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE EIGHTH COURT OF APPEALS
EL PASO COUNTY
K ELLER, P.J., delivered the opinion of the Court in which M EYERS, K EASLER,
H ERVEY, H OLCOMB and C OCHRAN, JJ., joined. W OMACK, J., filed a concurring opinion.
P RICE, J., concurred in Part I of the opinion and joined Part II of the opinion.
J OHNSON, J., concurred.
OPINION
Appellant was convicted of felony murder1 in connection with the death of his twenty-two-
1
See TEX . PENAL CODE § 19.02(b)(3). Appellant was charged with both capital murder and
felony murder but was acquitted of capital murder. See id., § 19.03(a)(8) (murder of child under age
six). He was sentenced to ninety-nine years for felony murder. See id., §§ 19.02(c) (murder as first-
degree felony), 12.32 (punishment range for first-degree felony).
CONTRERAS — 2
month-old niece, Jazmine. Appellant complains that the court of appeals erred in rejecting two of
his contentions. The first contention at issue was that the trial court erred in refusing to submit
instructions on the voluntariness of appellant’s confession under article 38.23.2 The second
contention was that the submission of felony murder in the jury charge violated appellant’s right to
a unanimous verdict because multiple culpable mental states were submitted in the alternative for
the underlying felony of injury to a child. We sustain one aspect of appellant’s article 38.23 claim
and reject his remaining complaints.
I. ARTICLE 38.23 INSTRUCTION
A. Background
1. Criminal Investigation
a. Events Leading up to Second Interview
Appellant and his brother were married to two sisters. Appellant’s brother and sister-in-law
were having marital problems, so appellant’s sister-in-law and her five children were living with
appellant, his wife, and his wife’s two children.
At 6:00 or 6:30 p.m. on November 28, 2003, the entire household, except for appellant and
his two youngest nieces, went to Chuck-E-Cheese. Twenty-two-month-old Jazmine was originally
supposed to go with the family but was left at home because she had fallen asleep on the couch.
Jazmine had had a little diarrhea that day, but she had no injuries when the family left for the
restaurant. At some point in the evening, appellant changed Jazmine’s diaper. At around 9:30 or
10:00 p.m., the rest of the household returned home. Appellant told Jazmine’s mother that Jazmine
2
T EX . CODE CRIM . PROC. art 38.23.
CONTRERAS — 3
had fallen off the couch, but that she had later watched television with him before he put her to bed.
At around 11:00 p.m., Jazmine’s mother checked on her and discovered that she was cold, pale, and
stiff, and was not breathing. Jazmine was later pronounced dead.
Detective Jimmy Aguirre asked that appellant give a statement regarding his knowledge of
the events. Although appellant was not under arrest or detention, at 3:05 a.m. on November 29, he
received and waived Miranda3 warnings. Appellant’s written statement was completed at 6:10 a.m.
In it, appellant confirmed the above events and otherwise related an exculpatory version of events.
Statements were taken from other family members, and appellant left the police station
around 9:00 a.m. Since officers were still processing the home, appellant and the others stopped
there to pick up some things, ran some errands, and went to appellant’s mother’s house.
At 4:03 p.m., Detective Aguirre went to the police station to discuss the results of Jazmine’s
autopsy. He was told that she suffered a ruptured spleen and had internal bleeding as a result of
blunt force trauma to the abdomen. The autopsy report specified a number of injuries, both internal
and external. The conclusion of the report was that Jazmine “died from internal bleeding due to
blunt force injuries to the abdomen with tear of the small bowel mesentery.” The report
characterized the death as a result of physical abuse and classified the manner of death as homicidal.
The medical examiner testified that the injuries would have immediately incapacitated Jazmine and
resulted in her death within an hour. He also testified that, because her body temperature at 11:15
p.m. the previous day was eighty degrees and rigor mortis had set in at the jaw and upper extremities,
he believed that she had been dead for a few hours by that point.
3
Miranda v. Arizona, 384 U.S. 436 (1966).
CONTRERAS — 4
At 6:10 p.m., Detective Aguirre called appellant and asked him to return for another
interview. According to Detective Aguirre, when appellant came to the phone, he said that he had
been sleeping and had slept somewhat. Appellant testified at trial that he had only been able to lie
down to rest for fifteen minutes since the first interview. Appellant further testified that Detective
Aguirre had said that he himself had gotten some sleep earlier that day and asked if appellant had
gotten any sleep, to which appellant replied, “No.”4
At approximately 7:00 p.m., appellant arrived at the station with his wife, brother, and sister-
in-law. Although “everybody was suspect,” Detective Aguirre testified that, if the stories remained
consistent, then appellant was “the one that had to have been in care and control of the child.”
Detective Aguirre did not believe that he had probable cause to arrest appellant at that point.
For the second interview, Detective Aguirre was joined by Detective Joe Ochoa. As before,
appellant was given Miranda warnings. Appellant read the warnings from a card, initialed each
warning, signed the card, and noted the date and time. He then agreed to waive his rights and talk
to the officers. The oral portion of the interview lasted about two hours; writing out a statement,
reviewing it and signing it took less than one additional hour. After the interview, appellant met with
his wife and other family members before he was taken to jail.
b. Detective Aguirre’s Version of Second Interview
Detective Aguirre testified that appellant never invoked any of his rights during the second
interview. According to the detective, no threats or promises were made to appellant, nor did the
officers threaten any members of appellant’s family. Detective Aguirre testified that the officers
4
Detective Aguirre testified that he himself had not slept at all during this period of time.
CONTRERAS — 5
never suggested that appellant’s wife was a suspect and never threatened to arrest her if appellant
refused to confess. Detective Aguirre said that he was not aware that appellant’s wife had a criminal
record. According to the detective, appellant was allowed restroom breaks and given water to drink.
Detective Aguirre testified that appellant never asked to make phone calls or to meet with anyone
during the interview. Detective Aguirre acknowledged that it was possible that Detective Ochoa
said, “I thought you said he was a good guy and a stand-up guy,” but no yelling occurred during the
interview. The detectives did not employ a good cop/bad cop strategy for this interview, according
to Detective Aguirre, and near the end of the interview, appellant admitted to punching Jazmine four
times in the stomach.
b. Appellant’s Version of Second Interview
Appellant related a different version of what happened in the interview. He said that when
he was confronted by the officers with the results of the autopsy, he told them that he “didn’t know
anything about that.” Detective Ochoa then “jumped in and started yelling” and said, “Stop lying.”
According to appellant, Detective Aguirre told appellant that if it was not him, then it “would
be” or “could be” his wife. Appellant testified that Detective Aguirre said that he knew that
appellant’s wife took care of the children during the week, that he knew that she had been arrested
for driving while intoxicated, and that he knew that she had assaulted police officers when she was
arrested. According to appellant, Detective Aguirre then displayed a piece of paper with appellant’s
wife’s name on it, placed it in front of him, and said it was the police report showing that. Detective
Aguirre stated that, if appellant’s wife were arrested, then Child Protective Services would take their
kids away.
CONTRERAS — 6
According to appellant, Detective Aguirre also suggested to appellant that he became
frustrated that night and began to hit Jazmine but that appellant was a “good guy,” and Detective
Aguirre knew that appellant “didn’t mean it.” Detective Aguirre allegedly told appellant that the
autopsy showed four blows to the abdomen and suggested that appellant hit Jazmine at least four
times. During this conversation, Detective Ochoa purportedly said, “Come on, you’re not going to
let your wife go to jail for something you did.” According to appellant, when he responded that he
had already told the detectives what he knew, Detective Ochoa replied, “Well, if it wasn’t you, then
it means your wife had to have done it.” The detectives allegedly said that his wife’s prior assault
on officers showed that she had a bad temper.
Appellant further alleged that Detective Ochoa “kept yelling and jumping in, banging his
hand on the desk” and “getting in” appellant’s face, so that appellant could feel his breath, and
saying, “Stop lying to us.” According to appellant, Detective Ochoa looked at Detective Aguirre and
said, “I thought you said he was a good guy. Look at him. He’s lying.”
Appellant testified that he repeatedly asked to see his wife but was told that he could not do
so until the detectives could take something to their boss to show that appellant was cooperating.
Detective Aguirre allegedly told appellant that if he “would sign or say what they were saying had
happened,” then they would let appellant see his wife. Appellant testified that he asked to speak to
other family members and, again, the detectives declined to allow him to do so. Appellant also said
that he said, “I need to speak to an attorney,” but Detective Aguirre responded:
Come on, Saul. You’re just being selfish. We can’t let you do that. If you do that,
then we won’t be able to talk to the Assistant D.A.’s on your behalf. We know you
have a clean record. We know – you’re a good guy. With your clean record, you’ll
CONTRERAS — 7
probably get a bond and be out by Monday, and then you can straighten all this out.
Detective Aguirre also allegedly told appellant that he had enough to arrest him, but if
appellant “told them what they were saying,” it would just be him. Otherwise, appellant said, they
would arrest his sister-in-law and his wife as well. Appellant testified that the detectives also
suggested that one of appellant’s children could have been to blame by saying: “If it wasn’t you then
that means it had to be one of the kids.”
Further, according to appellant, the detectives said that they had already talked to the assistant
district attorney, and that that they would tell her that appellant was a “good guy,” that he was
“cooperating” and “very sorry,” and that he “didn’t mean for what happened.” The detectives also
allegedly told appellant they would recommend to the assistant district attorney that appellant receive
a lower charge and a lower bond and that appellant would be “out by Monday and straighten
everything out.”
Appellant also said that the detectives told him that if he did not “say what they were saying,”
Jazmine’s body would not be released, the investigation would continue, appellant and his family
would not be allowed back into their house, and the family would not be able to arrange for
Jazmine’s burial.
Appellant testified that the officers’ tactics caused him to confess:
Like I said, I was tired, exhausted. I didn’t want my wife to go to jail. I didn’t want
them to take our kids away. I wanted to get out of that room. I wanted to talk to my
family, and they weren’t letting me do that until I said what they were saying.
2. Jury Charge
Appellant requested instructions on the “application of the law of confessions to the facts
CONTRERAS — 8
herein” as follows:
You are instructed that unless you believe from the evidence beyond a reasonable
doubt that the alleged second confession or statement given to Detective Aguirre
while Saul Contreras was confined at the Crimes Against Person’s offices was freely
and voluntarily made by Saul Contreras without compulsion or persuasion, or if you
have a reasonable doubt thereof, you shall not consider such alleged statement or
confession for any purpose nor any evidence obtained as a result thereof.
In this case, if you find from the evidence, or if you have a reasonable doubt thereof,
that prior to the giving of the alleged confession of the defendant, if any, the officer
having him in charge questioned him persistently over a prolonged period of time
without allowing him to contact his wife, attorney, or any other relative and without
taking him before a magistrate without unnecessary delay then you will wholly
disregard the alleged confession and not consider it for any purpose nor any evidence
obtained as a result thereof.
Further, if you find that Saul Contreras requested an attorney or that the interrogation
cease you are instructed that such confession was obtained in violation of the law and
you shall wholly disregard the alleged confession and not consider it for any purpose
nor any evidence obtained as a result thereof.
If you find from the evidence, or you have a reasonable doubt thereof, that at the time
of the statement of Saul Contreras, if such statement there was, that Saul Contreras
had been threatened with his wife’s prosecution and losing his children and such
threat reduced Saul Contreras to such a condition of physical and mental impairment
such as to render such admission, if any, not wholly voluntary, then you will
completely disregard such statement as evidence for any purpose nor will you
consider, for any purpose any evidence obtained by the police as a result thereof.
The trial judge denied this request, but included in the jury charge the following instructions relating
to the voluntariness of a confession:
The Court has admitted into evidence before you the alleged written statement of the
Defendant, and you are instructed that before you may consider the same for any
purpose you must first believe from the evidence beyond a reasonable doubt that the
same was freely and voluntarily made by the Defendant without compulsion or
persuasion and signed by him; and that prior thereto the Defendant had been warned
by the person to whom the statement was made that:
CONTRERAS — 9
(1) he had the right to remain silent and not make any statement at all and that any
statement he made may be used against him at trial; and
(2) any statement he made may be used as evidence against him in court; and
(3) he had the right to have a lawyer present to advise him prior to and during any
questioning; and
(4) if he was unable to employ a lawyer, he had the right to have a lawyer appointed
to advise him prior to and during any questioning; and
(5) he had the right to terminate the interview at any time;
and that the Defendant prior to and during the making of the statement, knowingly,
intelligently and voluntarily waived these rights; but if you do not so believe, or if
you have a reasonable doubt thereof, then the alleged statement is entirely withdrawn
from your consideration and you shall not give the same any force of effect whatever
or consider it as any evidence of the Defendant’s guilt in this case, and you shall not
consider any evidence obtained as a result thereof, if any.
3. Appeal
On appeal, appellant asked: “Whether the trial court erred in failing to require the jury to find
that his statement was voluntarily made in violation of his rights under the Texas Code of Criminal
Procedure (TEX . CODE CRIM . PROC. arts. 38.21, 38.22 § 6, & 38.23).” In his brief, he quoted the first
paragraph of his requested instruction as the pertinent part, though he included a copy of his
complete request in an appendix. Appellant argued that, under article 38.23, he was entitled to a
Fourteenth Amendment due process voluntariness instruction that clearly applied the law to the facts
of the case. He explained that, though he received a jury instruction on the article 38.22 warnings,
receipt of those warnings was never in issue. Rather, he contended that his own testimony indicated
that the confession was involuntary without regard to the warnings. He cited the following facts as
relevant to his voluntariness claim: (1) he had only about fifteen minutes of sleep since his
CONTRERAS — 10
interrogation the night before, (2) he was interrogated by two detectives and accused of lying, the
detectives suggested to him what to say, and he was threatened with his wife going to jail, (3)
Detective Ochoa banged his hand on the desk, yelled at appellant, and got in his face, and (4) the
detectives refused to allow appellant to speak to his wife, his mother, his brother, or a lawyer.
In addressing this claim, the court of appeals first discussed general legal principles regarding
jury charge error, the instructions included in appellant’s jury charge, appellant’s requested
instructions, general legal principles applicable to the submission of voluntariness instructions, and
some of appellant’s trial testimony.5 The court then rejected appellant’s claim, saying:
The exclusionary rule, Article 38.23(a), is allowed “only if there is a factual dispute
as to how the evidence was obtained.” See Vasquez, 225 S.W.3d at 544. Here, it is
undisputed that Appellant signed the second statement and was given his Miranda
warnings.
Because Appellant was not entitled to an Article 38.23(a) instruction, under Article
38.22 the court properly gave a general instruction on the voluntariness of Appellant's
confession. See TEX .CODE CRIM . PROC. ANN . art. 38.22, § 7. Because the general
instruction was adequate, we overrule Point of Error Six.6
4. Discretionary Review
Appellant’s second ground for discretionary review reads: “The court of appeals erred in
failing to find that a factual dispute existed which would entitle appellant to an application paragraph
under Article 38.23(a).” Appellant claimed that the following facts were disputed: (1) whether
appellant had gotten sleep, (2) whether appellant was threatened with his wife going to jail, (3)
5
Contreras v. State, No. 08-06-00205-CR, 2009 Tex. App. LEXIS 91 at 26-33 (Tex.
App.–El Paso January 8, 2009) (not designated for publication).
6
Contreras, 2009 Tex. App. LEXIS 91 at 33.
CONTRERAS — 11
whether the detectives had refused a request from appellant to speak to his wife, brother, sister-in-
law, or mother, and (4) whether the detectives had refused a request from appellant to speak to a
lawyer. In his brief, appellant also referenced the court of appeals’s discussion of: (5) whether he
was interrogated by two detectives and was accused of lying, and (6) whether Detective Ochoa
yelled, banged his hand on a desk, and got in appellant’s face.
B. Analysis
1. Overview
In Oursbourn v. State, we explained that Texas law allows for jury instructions on three
different types of “voluntariness” issues: (1) a general instruction on voluntariness under article
38.22 §6, (2) a warnings instruction under article 38.22 §7, and (3) a specific voluntariness
instruction for constitutional due process claims under article 38.23.7 Article 38.23 provides in
relevant part:
No evidence obtained by an officer or other person in violation of any provisions of
the Constitution or laws of the State of Texas, or of the Constitution or laws of the
United States of America, shall be admitted in evidence against the accused on the
trial of any criminal case.
In any case where the legal evidence raises an issue hereunder, the jury shall be
instructed that if it believes, or has a reasonable doubt, that the evidence was obtained
in violation of the provisions of this Article, then and in such event, the jury shall
disregard any such evidence so obtained.8
The trial court has a duty9 to give an article 38.23 instruction sua sponte if three requirements are
7
259 S.W.3d 159, 173-74 (Tex. Crim. App. 2008).
8
T EX . CODE CRIM . PROC. art. 38.23(a).
9
Oursbourn, 259 S.W.3d at 180-81.
CONTRERAS — 12
met: (1) evidence heard by the jury raises an issue of fact, (2) the evidence on that fact is
affirmatively contested, and (3) the contested factual issue is material to the lawfulness of the
challenged conduct in obtaining the statement claimed to be involuntary.10 A statement is obtained
in violation of constitutional due process only if the statement is causally related to coercive
government misconduct.11 Coercive government misconduct renders a confession involuntary if the
defendant’s “will has been overborne and his capacity for self-determination critically impaired.”12
Whether this has occurred is determined by assessing the “totality of all the surrounding
circumstances,” including “the characteristics of the accused and the details of the interrogation.”13
The court of appeals discussed aspects of appellant’s testimony that he claimed raised issues
of fact regarding the voluntariness of his confession.14 The appellate court agreed that this testimony
was sufficient to support a finding that the confession was not voluntarily made, so that appellant
was entitled to an instruction under article 38.22.15 But the court of appeals did not expressly address
whether this testimony also raised affirmatively contested fact issues that would entitle him to an
instruction under article 38.23. Relying upon Vasquez v. State,16 the court of appeals correctly stated
10
Id. at 177.
11
Colorado v. Connelly, 479 U.S. 157, 163-64 (1986); Oursbourn, 259 S.W.3d at 169-71.
12
Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973).
13
Id.
14
Contreras, 2009 Tex. App. LEXIS 91 at 32-33.
15
Id. at 33.
16
225 S.W.3d 541 (Tex. Crim. App. 2007).
CONTRERAS — 13
that an article 38.23 instruction must be predicated upon a factual dispute, but the court then simply
said that it was undisputed that appellant received Miranda warnings. Appellant, however, relied
upon issues of fact other than receipt of the Miranda warnings to raise his voluntariness claim. The
court of appeals’s analysis of the article 38.23 issue was therefore incomplete.
In his petition, appellant contended that the appellate court “erred in failing to find a factual
dispute” that would entitle him to an article 38.23 instruction. We turn to this issue.17
2. Lack of Sleep
Appellant contends that he raised a fact issue regarding the amount of sleep he had between
his first and second written statements. Appellant’s proposed jury instructions did not refer to his
alleged lack of sleep, nor are we aware of any other place in the trial record in which appellant
contended that he was entitled to an article 38.23 instruction on the matter. But because a trial judge
has a duty to submit, sua sponte, an article 38.23 instruction that is raised by the evidence, we will
address the merits of appellant’s claim.
It is at least questionable whether there is an affirmative conflict in testimony between
Detective Aguirre’s statement that appellant had told him he had been sleeping and had slept
somewhat and appellant’s contention that he was only able to lie down for fifteen minutes to rest.
Assuming, for the sake of argument, that appellant’s alleged lack of sleep was an affirmatively
contested fact issue, we nevertheless reject appellant’s contention because a factual dispute regarding
a lack of sleep was not material to the resolution of any due process involuntariness issue presented
17
We decline to address the fifth and sixth alleged fact issues raised in appellant’s
brief—regarding the accusations of lying and Detective Ochoa’s alleged yelling—because those
issues were not raised in his petition.
CONTRERAS — 14
to the court of appeals.
Appellant’s alleged lack of sleep was not due to any coercive government misconduct.18
Although appellant was kept up until the next morning giving his first statement, his presence was
voluntary, there is no evidence suggesting that the police were purposefully attempting to deprive
appellant of sleep, and there was a significant interval between the first and second statement during
which appellant could have slept.
In an appropriate case, lack of sleep might be part of a larger narrative in a due process claim.
A person might claim that police officers exploited his lack of sleep or that the lack sleep, in
combination with other factors, caused his will to be overborne.19 Appellant did not claim before
the court of appeals, nor does he claim before us, that he should have received a jury instruction on
lack of sleep within the context of a larger narrative. And because he never requested an instruction
with respect to lack of sleep at trial, the court of appeals did not even have before it the text of an
instruction that might have provided a broader context. All appellant has done throughout the
appellate process with respect to this particular allegation is to argue that it was a disputed fact issue.
We recognized in Oursbourn that article 38.23 imposes upon a trial court the duty to submit
a due process voluntariness instruction sua sponte when it is raised by the evidence, but we must also
recognize that due process voluntariness instructions could come in myriad forms, depending upon
the facts of particular cases. It is at least incumbent upon an appellant to explain to the appellate
18
Cf. Ashcraft v. Tennessee, 322 U.S. 143, 154 (1944) (confession held involuntary where
prosecutors served in relays to keep the suspect under continuous cross-examination for thirty-six
hours without rest or sleep).
19
See Greenwald v. Wisconsin, 390 U.S. 519, 521 (1968).
CONTRERAS — 15
court what instruction he desired.20 Only then can the appellate court be expected to intelligently
assess whether such an instruction was required, and if so, whether the defendant suffered harm, and
if the instruction was not requested at trial, whether he was egregiously harmed.21 We therefore
consider only whether appellant was entitled to a jury instruction that lack of sleep, by itself,
rendered his confession involuntary, and we decline to consider whether appellant might have been
entitled to an instruction on lack of sleep within a broader (but specified) context. Because we
conclude that a lack of sleep would not, by itself, render a confession involuntary under due process,
we reject appellant’s contention.
3. Threat to Jail the Wife
An affirmative factual dispute did exist with respect to whether the police threatened to arrest
appellant’s wife. The State contends that appellant’s “description of the detectives’ threats to arrest
his wife if he did not confess appear more akin to mere trickery or deception about the state of the
evidence as to the source and cause of Jazmine’s injuries rather than overt threats to arrest
[appellant’s] wife if he did not confess.” Although some of appellant’s testimony did conform to
the State’s characterization, appellant’s testimony described at least one explicit threat to arrest his
wife if he did not confess. Given that we must view the evidence at trial in the light most favorable
20
See Roberts v. State, 273 S.W.3d 322, 326 (Tex. Crim. App. 2008) (declining to address
a component of the defendant’s ground for review because he did not present the issue to the court
of appeals).
21
See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (discussing “some
harm” and “egregious harm” standards).
CONTRERAS — 16
to submitting a defensive instruction,22 we cannot agree with the State that the defendant’s testimony
alleged mere deception by the police about the state of the evidence during the investigation.
Also, appellant’s requested instruction with respect to threats to his wife23 included a
requirement that, before excluding the confession from consideration, the jury find that the threats
reduced appellant “to such a condition of physical and mental impairment such as to render such
admission, if any, not wholly voluntary.” The court of appeals was, therefore, on notice that
appellant was claiming that alleged threats against his wife caused his will to be overborne.
The Supreme Court has recognized that threats against family members can result in an
involuntary confession. In Harris v. South Carolina, the Court found a confession to be involuntary
based upon a number of circumstances that included a threat to arrest the suspect’s mother.24 In
Lynumn v. Illinois, the Court found a confession to be involuntary under circumstances that included
threatening to take away the suspect’s children.25 Several lower courts have likewise recognized that
a threat against a family member may result, under the totality of the circumstances, in an
involuntary confession.26
22
Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006).
23
Although the requested jury instruction also addressed a threat of losing the children,
appellant does not now complain about that aspect of his request, nor did he complain about it before
the court of appeals. Consequently, we have no occasion to address it.
24
338 U.S. 68, 69-71 (1949) (detailing the circumstances); id. at 70 (threat to arrest mother).
25
372 U.S. 528, 534 (1963).
26
See United States v. Finch, 998 F.2d 349, 355-356 (6th Cir. 1993) (confession rendered
involuntary regardless of whether the officers told the defendant they “would” or “might” arrest the
female occupants of the house); Johnson v. Trigg, 28 F.3d 639, 642 (7th Cir. 1994) (“a number of
CONTRERAS — 17
Three federal circuits and two state high courts have held that law enforcement officials can
threaten to arrest a family member, without vitiating the voluntariness of a confession, if they can
lawfully effectuate such an arrest (i.e., if there is probable cause to arrest).27 We need not decide
cases hold or suggest that hostage-taking is an impermissibly coercive interrogation tactic even
where the person being interrogated is an adult”); United States v. Tingle, 658 F.2d 1332, 1336 (9th
Cir. 1981) (clear objective of interrogation was to create fear in the suspect that, if she refused to
cooperate, she would not see her child for a long period of time); Brisbon v. United States, 957 A.2d
931, 945 (D.C. App. 2008) (officers falsely told suspect that mother and grandmother had been
arrested: “cautioning that the kind of deception employed here, involving supposed harm to
vulnerable family members, could well cross the line beyond the type of tactics vel non that a court
will tolerate”). See also the following cases pre-dating Schneckloth: People v. Trout, 54 Cal. 2d 576,
585, 354 P.2d 231, 236 (1960) (implied threat that wife would be held until suspect confessed); Hall
v. Indiana, 255 Ind. 606, 610-11, 266 N.E.2d 16, 19 (1971) (threat to charge and convict wife used
to encourage suspect to confess).
27
Allen v. McCotter, 804 F.2d 1362, 1364 (5th Cir. 1986) (police had probable cause to arrest
wife for aiding a robbery); United States v. Johnson, 351 F.3d 254, 263 (6th Cir. 2003) (“whether the
threat to prosecute . . . was coercive turns on the issue of whether the threat could have been lawfully
executed. Whether the police could have lawfully arrested . . . in turn depends on whether the
investigating officers had probable cause”—probable cause existed, so threat did not constitute
coercive conduct); Thompson v. Haley, 255 F.3d 1292, 1297 (11th Cir. 2001) (“whether a threat to
prosecute a third party was coercive depends upon whether the state had probable cause to believe
that the third party had committed a crime at the time the threat was made”—suspect’s girlfriend’s
own statement established her participation in the crime); Armstead v. State, 978 So. 2d 642, 648
(Miss. 2008) (“Threats to arrest a defendant’s family member(s) do not render a confession
involuntary so long as probable cause exists to arrest such persons.” Because the cocaine was found
in the kitchen, probable cause existed to arrest the suspect’s wife. Citing Allen); State v. Perez, 124
Ohio St. 3d 122, 131-32, 920 N.E.2d 104, 119-20 (2009) (“Threats to arrest members of a suspect’s
family may cause a confession to be involuntary. The issue turns on whether the threat could have
been lawfully executed.” [citations, internal quotation marks, and ellipses omitted] “Because the
officers could have lawfully arrested [the suspect’s wife], threatening to do so was not a coercive
tactic.”). See also Commonwealth v. Raymond, 424 Mass. 382, 396, 676 N.E.2d 824, 834 (1997)
(“While the police may not expressly bargain with the defendant over the release of other individuals
or make threats of arresting and charging others with no basis, where this type of conduct is absent,
the police may bring to the defendant’s attention the possibility that his relatives may be culpable.”
[citation omitted] Citing Allen); Brisbon, 957 A.2d at 946 n.17 (“Some courts draw a distinction
between deceptive and truthful pressure tactics involving family members.” Citing Johnson and
Armstead); Trout, 54 Cal. 2d at 584-85, 354 P.2d at 236 (no effort made by police to conduct an
CONTRERAS — 18
whether to adopt such a rule, however, because the detectives in the present case did not have
probable cause to arrest appellant’s wife. Detective Aguirre admitted that the evidence obtained by
law enforcement prior to appellant’s second statement pointed to appellant being the care giver at
the time Jazmine’s injuries were sustained. The existence of severe injuries that would have
immediately incapacitated the child, along with medical evidence showing that the child had been
dead for several hours, placed the injuries squarely within a time period in which appellant was the
only adult present. Detective Aguirre suggested that it was possible that the second round of
statements from appellant and other family members could provide conflicting information on who
was present with Jazmine at the time the injuries occurred, but nothing in the record shows that
happened. We conclude that the evidence did raise a fact issue regarding whether a threat to arrest
and prosecute his wife rendered appellant’s confession involuntary under due process.
4. Isolation from Family and Attorney
Appellant’s allegation that he raised fact issues with respect to his ability to talk to his family
or to an attorney appears to relate to the second paragraph of his requested instructions, which would
have required that the jury disregard the confession if it found that the officers “questioned
[appellant] persistently over a prolonged period of time without allowing him to contact his wife,
attorney, or any other relative.” This appears to be an allegation that he was forcibly held
incommunicado for a prolonged period of time—a practice condemned in Haynes v. Washington.28
investigation of wife’s self-exculpatory statements regarding her whereabouts on the night of the
crimes).
28
See 373 U.S. 503, 514 (1963) (condemning “secret and incommunicado detention”).
CONTRERAS — 19
In Haynes, the police placed the defendant on what was locally called a “small book” for
investigation purposes.29 Under police department policy, a suspect placed on a “small book” was
not permitted to make phone calls or have visitors.30 Pursuant to this policy, the police held the
defendant for sixteen hours without allowing him to communicate with the outside world—
uniformly denying the defendant’s requests to call his wife and to call an attorney.31 The officers
told the defendant “that he might call his wife only if he ‘cooperated’ and gave the police a
statement.”32 And in fact, the defendant was first allowed to call his wife five to seven days after his
arrest.33 The Supreme Court concluded, “from all of the facts presented, that the bounds of due
process have been exceeded.”34 Following Haynes, in Darwin v. Connecticut,35 the Court found a
confession to be involuntary when the defendant was denied access to counsel and the outside world
for thirty to forty-eight hours.36
Various courts have distinguished their cases from Haynes on several bases: (1) that the
29
Id. at 505.
30
Id.
31
Id. at 504-05.
32
Id. at 509-10.
33
Id. at 512.
34
Id. at 515; see also Morris v. State, 488 S.W.2d 768, 773 (Tex. Crim. App. 1973)
(discussing Haynes).
35
391 U.S. 346 (1968).
36
Id. at 349-50.
 CONTRERAS — 20
suspect was not held incommunicado for as long,37 (2) that the authorities did not tell the suspect that
he would remain incommunicado until he confessed,38 (3) that the suspect was given Miranda
warnings,39 or (4) that the combination of circumstances present in Haynes was not present.40
37
United States ex rel. Lathan v. Deegan, 450 F.2d 181, 184, 184 n.9 (2d Cir. 1971)
(referring to Haynes as proscribing “prolonged incommunicado detention” and explaining that the
“length of incarceration here appears deceptive” and “no session lasted more than an hour and the
total length of all sessions was less than eight hours”); United States ex rel. Hughes v. McMann, 405
F.2d 773, 777 (2d Cir. 1968) (referring to “the longer time interval in Haynes”); People v. Ramey,
152 Ill. 2d 41, 58, 604 N.E.2d 275, 283 (1992) (In contrast to Haynes, the “defendant here was held
for only approximately 6 hours, at most, in presumably incommunicado detention before giving his
alleged inculpatory statement to the police.”).
38
United States v. Dickens, 695 F.2d 765, 778 (3d Cir. 1982) (In Haynes, “the police
threatened the defendant with continued incommunicado detention and promised him access to his
family only if he signed an inculpatory written statement.” The defendant here “has made no such
allegations.”); Hughes, 405 F.2d at 777 (In finding that the refusal to allow the defendant to contact
his sister did not render the confession involuntary: “What made Haynes’ confession involuntary in
the view of the majority was not simply his incommunicado detention but the threat that the police
would continue this until Haynes did what they wanted of him; confession, in other words, was made
the price of access to his family. Even on Hughes’ version there was nothing of that sort here.”);
State v. Benton, 413 A.2d 104, 109 (R.I. 1980) (“Even assuming that defendant requested and was
denied an opportunity to speak with his aunt or his mother, there is no evidence that he was being
held incommunicado or ‘confronted with the express threat of continued incommunicado detention
and induced by the promise of communication with and access to family.’”).
39
Ramey, 152 Ill. 2d at 58-59, 604 N.E.2d at 283 (“[E]ven assuming that, as defendant
testified during the hearing on his motion to suppress, he asked, but was not permitted, to use the
telephone prior to making his alleged inculpatory statement, that fact would not invalidate
defendant's statement as a matter of law. . . . [The] defendant, unlike the defendant in Haynes . . .,
was advised of his Miranda rights several times before giving his alleged inculpatory statement.”);
Benton, 413 A.2d at 109 (The “defendant was adequately and effectively apprised of all his rights
under the Miranda decision.”)
40
United States ex rel. Dickerson v. Rundle, 430 F.2d 462, 465 (3d Cir. 1970) (“In
virtually every case relied upon by Dickerson in support of the involuntariness claim -- Davis,
Haynes, Culombe, Spano, Cicenia, and Crooker -- the failure to caution the accused of his rights
or an outright refusal to honor a request for counsel was but one factor in a blend of ingredients
from which a conclusion of coercion was extracted. We find no such blend here.”).
CONTRERAS — 21
In this case, the relevant portions of appellant’s requested jury charge contained two factual
allegations: (1) that the police refused requests to talk to family members or to an attorney, and (2)
that this occurred over a prolonged period. There was clearly a factual dispute about the first
allegation, but there was no factual dispute about the second because it was uncontroverted that the
interrogation lasted about two hours. The length of the interrogation could be an appropriate
background fact that is relevant to whether the disputed fact is material to a due process
involuntariness inquiry. But, assuming arguendo that refusing access to family and an attorney over
a long time period would give rise to an inference that a confession was involuntary, two hours
would not be sufficient to give rise to such an inference.
Appellant testified that the detectives told him that he had to confess before he could talk to
his wife. That testimony created a disputed fact issue. But appellant did not request a jury charge
incorporating that disputed fact issue, nor did he argue it before the court of appeals. Moreover,
appellant did not claim, on trial or on appeal, that he should have received an instruction that his
alleged isolation from the outside world for a period of time caused his will to be overborne. As we
have explained in connection with the lack-of-sleep allegation, a defendant must explain to the
appellate court what instruction he desired before he can complain about the appellate court’s failure
to find that he was entitled to such an instruction.
5. Invocation of Right to Counsel
The disputed fact issue regarding whether appellant requested an attorney also related to a
separate requested instruction that would have required the jury to disregard the confession if it
determined that appellant requested an attorney. Appellant received instructions regarding the
CONTRERAS — 22
administration of warnings and waiver of rights, including the right to counsel, under article 38.22.41
We address here whether he should have received a separate instruction pursuant to article 38.23.
As we have explained above, article 38.23 requires, among other things, the exclusion of
evidence “obtained . . . in violation of any provisions of the Constitution . . . . of the United States
of America” and a jury instruction if a fact issue is raised in that regard.42 Essentially, the question
here is whether the failure to scrupulously honor a suspect’s invocation of his right to counsel under
Miranda constitutes a violation of the United States Constitution.
In Oursbourn, we compared and contrasted Miranda claims with “due process” claims and
Texas statutory claims.43 We suggested that “due process” and “Miranda” claims “may” warrant
both general and specific voluntariness instructions,44 but we had no actual occasion to address the
propriety of an article 38.23 instruction for a Miranda claim.45 In an earlier case, Baker v. State, we
expressly held that taking a statement in violation of the guidelines set forth in Miranda does not
constitute a “violation of the law” within the meaning of article 38.23.46
41
See TEX . CODE CRIM . PROC. art. 38.22, §§ 2, 3, 7.
42
Art. 38.23(a).
43
259 S.W.3d at 169-74.
44
Id. at 174.
45
See id. at 177 (using “officer holds a gun to the defendant’s head” example) and 181-82
(discussing the fact that there was no evidence of police overreaching envisioned by the Supreme
Court in Connelly). Elsewhere in the opinion, we grouped Miranda together with the warnings
requirements contained in article 38.22. Id. at 169 (referring to, as one of three voluntariness
theories, “Miranda v. Arizona as expanded in Article 38.22, §§2 and 3”).
46
956 S.W.2d 19, 23-24 (Tex. Crim. App. 1997).
CONTRERAS — 23
The Supreme Court has since confirmed the “constitutional” nature of the Miranda rule in
Dickerson v. United States, holding that Congress could not abrogate the rule by statute.47 The issue,
though, is what kind of constitutional rule we are talking about. Is there a substantive constitutional
right to be free from police interrogation that violates Miranda, or is there merely a procedural
constitutional right to have a statement excluded if the Miranda guidelines are not met? In Baker,
we indicated that the latter was the case: “[Q]uestioning in violation of Miranda is not itself illegal
. . . . [T]he Miranda requirements embody an exclusionary rule or remedy rather than a substantive
right or entitlement.”48
This distinction may be illustrated by contrasting Fourth Amendment search and seizure
protections with Miranda protections. If a violation of the Fourth Amendment occurs because a
search is conducted without probable cause, the search itself is the constitutional violation, regardless
of whether any evidence obtained in the search is admitted in a judicial proceeding. A civil rights
lawsuit could, in fact, be founded solely upon the unconstitutional search, even if no evidence were
discovered. In contrast, Baker suggests that police officers do not commit a constitutional violation
simply by failing to give Miranda warnings during a custodial interrogation. A constitutional
violation is established only if the evidence obtained is later admitted in a judicial proceeding. This
conclusion is consistent with the language in Dickerson and with the holding in the subsequent case
47
530 U.S. 428 (2000).
48
Baker, 956 S.W.2d at 24; see also Henderson v. State, 962 S.W.2d 544, 553 (Tex. Crim.
App. 1997) (“As for the Miranda rule, it does not actually prohibit law enforcement officers from
eliciting statements without the appropriate warnings; the rule merely prevents the admission of such
statements into evidence.”).
CONTRERAS — 24
of Chavez v. Martinez.49
In Dickerson, the Supreme Court characterized the constitutional violation articulated by
Miranda as the admission of evidence obtained in derogation of the procedural guidelines outlined
in the Miranda opinion:
In Miranda v. Arizona, we held that certain warnings must be given before a
suspect’s statement made during custodial interrogation could be admitted in
evidence. In the wake of that decision, Congress enacted 18 U.S.C. § 3501, which in
essence laid down a rule that the admissibility of such statements should turn only
on whether or not they were voluntarily made. We hold that Miranda, being a
constitutional decision of this Court, may not be in effect overruled by an Act of
Congress, and we decline to overrule Miranda ourselves. We therefore hold that
Miranda and its progeny in this Court govern the admissibility of statements made
during custodial interrogation in both state and federal courts.50
Moreover, the Supreme Court held, after Dickerson, that the failure of law enforcement
officers to follow Miranda’s guidelines does not by itself establish a constitutional violation. In
Chavez, a plaintiff filed a civil rights action under 42 U.S.C. § 1983,51 alleging, among other things,
that his constitutional rights were violated by a police officer’s failure to give Miranda warnings
during a custodial interrogation.52 The plaintiff’s answers during that interview were never used
49
538 U.S. 760 (2003).
50
Dickerson, 530 U.S. at 431-432 (citation omitted).
51
§ 1983 provides in relevant part: “Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress....”
52
Chavez, 583 U.S. at 764-765.
CONTRERAS — 25
against him in any criminal prosecution.53 Justice Thomas, joined by Chief Justice Rehnquist and
Justices O’Connor and Scalia said:
Statements compelled by police interrogations of course may not be used against a
defendant at trial, see Brown v. Mississippi, but it is not until their use in a criminal
case that a violation of the Self-Incrimination Clause occurs, see United States v.
Verdugo-Urquidez (“The privilege against self-incrimination guaranteed by the Fifth
Amendment is a fundamental trial right of criminal defendants. Although conduct
by law enforcement officials prior to trial may ultimately impair that right, a
constitutional violation occurs only at trial”).54
Justice Thomas concluded: “Accordingly, Chavez’s failure to read Miranda warnings to Martinez
did not violate Martinez’s constitutional rights and cannot be grounds for a § 1983 action.”55 Justice
Kennedy, joined by Justice Stevens, stated: “I agree with Justice Thomas that failure to give a
Miranda warning does not, without more, establish a completed violation when the unwarned
interrogation ensues.”56 And Justice Souter, joined by Justice Breyer, rejected the contention that
the plaintiff had shown a stand-alone violation of the Fifth Amendment privilege sufficient to give
rise to civil liability.57 Although Chavez was a fractured decision, eight of the justices expressed
their agreement with the proposition that the failure of the police to give warnings during a custodial
interrogation is not itself a constitutional violation.
53
Id. at 764.
54
Chavez, 538 U.S. at 767 (Thomas, J., announcing the judgment of the Court) (citations
omitted, emphasis in Chavez).
55
Id. at 772.
56
Id. at 789 (Kennedy, J., concurring in part and dissenting in part).
57
Id. at 778 (Souter, J., concurring).
CONTRERAS — 26
The clear import of Chavez is that the Miranda rule is an exclusionary rule in the same way
that article 38.23 is an exclusionary rule. Miranda does not set forth substantive constitutional rights
with regard to interrogations; rather, that decision and its progeny set up rules for the admission of
certain statements by the accused – excluding a statement under certain conditions when it is
determined that law enforcement failed to observe certain practices during a custodial interrogation.
The failure to observe those practices – give warnings, honor warnings, etc. – is not itself a
constitutional violation, but the admission, in certain circumstances, of a statement that was taken
without observing those practices is. Miranda is not violated until the statement is admitted into
evidence in a criminal proceeding, and then only if an “exception” to Miranda does not apply.58
Although we have sometimes referred to the bare failure to give warnings, or to honor an invocation
of rights, as a violation of Miranda, such references are not technically accurate. Police officers may
fail to follow guidelines set forth in Miranda, but they cannot, properly speaking, violate Miranda.
Only a court, by admitting evidence that Miranda proscribes, can violate Miranda.
Since the failure of police officers to honor the invocation of rights under Miranda is not
itself a violation of the United States Constitution, it cannot be a basis for invoking article 38.23.
While a constitutional violation may be established if an unwarned statement is admitted at trial, the
act of admission is not the “obtaining” of evidence. The structure of article 38.23 clearly
contemplates that the evidence is “obtained” at a prior point in time and then prevented by the statute
from being admitted. To hold otherwise would require that article 38.23 somehow retroactively
58
See Harris v. New York, 401 U.S. 222 (1971) (statement taken in violation of Miranda
guidelines is admissible for impeachment).
CONTRERAS — 27
render evidence inadmissible after it is admitted, since it is the admission itself that violates the
constitution. This absurdity results because an attempt to invoke Miranda through article 38.23 is
really the stacking of one exclusionary rule on top of another.
And the distinction between an exclusionary rule and a substantive right for article 38.23
purposes has practical importance. Under Supreme Court precedent, for example, the “fruits” of a
non-Miranda-compliant statement are admissible.59 But if article 38.23 were held to apply to a non-
Miranda-compliant statement, then the fruits of the statement would also be inadmissible under
article 38.23.60 Miranda or article 38.22, not article 38.23, is the vehicle for excluding statements
obtained in violation of the Miranda guidelines. And because Miranda claims do not fall within the
ambit of article 38.23, a defendant is not entitled to a jury instruction under that statute. Article
38.22, not article 38.23, is the appropriate vehicle for obtaining a jury instruction regarding a
purported violation of Miranda, to the extent such a vehicle is available.
II. JURY UNANIMITY
A. Background
Count two of appellant’s indictment alleged that he:
did then and there commit the felony offense of Injury to a Child by intentionally,
knowingly, recklessly, or by criminal negligence, by act, cause bodily injury to
JAZMINE CONTRERAS, a child younger than 15 years of age, by then and there
striking JAZMINE CONTRERAS about the body with the hand of the defendant, and
while in the course of and in furtherance of the commission of said offense did then
and there commit an act clearly dangerous to human life, to wit: by striking
59
See Baker, 956 S.W.2d at 22-23 (discussing Michigan v. Tucker, 417 U.S. 433 (1974);
Oregon v. Elstad, 470 U.S. 298 (1985); and TEX . CODE CRIM .PROC. art. 38.23).
60
Id. at 22-24.
 CONTRERAS — 28
JAZMINE CONTRERAS about the body with the hand of the defendant and did
thereby cause the death of an individual, namely JAZMINE CONTRERAS.
The jury charge tracked the language of the indictment. The offense thus charged was felony
murder,61 containing the underlying felony of injury to a child.62 Four culpable mental states were
alleged in the alternative for the underlying felony: intentionally, knowingly, recklessly, and with
criminal negligence.
On appeal, appellant contended that the alternative submission of these culpable mental states
violated his right to a unanimous verdict. Relying upon White v. State,63 the court of appeals rejected
this contention.64 Appellant now argues that his case is distinguishable from White because the
different culpable mental states create offenses that are not morally and conceptually equivalent.65
B. Analysis
The felony murder statute provides that a person commits murder if he “commits or attempts
to commit a felony, other than manslaughter, and in the course of and in furtherance of the
commission or attempt, or in immediate flight from the commission or attempt, he commits or
61
See TEX . PENAL CODE §19.02(b)(3).
62
See id., §22.04(a)(3), (c)(1).
63
208 S.W.3d 467 (Tex. Crim. App. 2006).
64
Contreras, No. 08-06-00205-CR, 2009 Tex. App. LEXIS 91 at 38-42.
65
Appellant’s third ground for discretionary review reads: “The court of appeals erred in
holding that appellant was not entitled to an unanimous verdict as to the underlying predicate
offenses of either intentional or knowing injury to a child, reckless injury to a child or criminally
negligent injury to a child as those separate offenses are not morally and conceptually equivalent.”
CONTRERAS — 29
attempts to commit an act clearly dangerous to human life that causes the death of an individual.”66
Essentially, the State must prove (1) an underlying felony,67 (2) an act clearly dangerous to human
life,68 (3) the death of an individual, (4) causation (the dangerous act causes the death), and (5) a
connection between the underlying felony and the dangerous act (“in the course of and in furtherance
of . . . or in immediate flight from”). The offense of “injury to a child” can qualify as an underlying
felony in a felony murder prosecution.69
In White, we held that the felony murder statute simply required jury agreement that a
“felony” was committed; “specifically named felonies” were “not elements about which a jury must
be unanimous.”70 We further held that dispensing with jury unanimity for the underlying felonies
of “unauthorized use of a vehicle” and “evading arrest or detention in a vehicle” did not violate due
process because the felonies were “basically morally and conceptually equivalent.”71
Appellant relies upon this last passage in White to argue that the submission of different
culpable mental states for the injury-to-a-child offense resulted in the submission of alternative
66
T EX . PENAL CODE §19.02(b)(3).
67
Attempted or committed, and other than manslaughter or an offense included within
manslaughter. See Lawson v. State, 64 S.W.3d 396, 397 (Tex. Crim. App. 2001); Johnson v.
State, 4 S.W.3d 254, 255 (Tex. Crim. App. 1999).
68
Attempted or committed.
69
Johnson, 4 S.W.3d at 258.
70
208 S.W.3d at 468-69.
71
Id. at 469 (quoting from Jefferson v. State, 189 S.W.3d 305, 313 (Tex. Crim. App.
2006)).
CONTRERAS — 30
offenses that are not morally and conceptually equivalent. He notes that, aside from the fact that
different culpable mental states tend to signify different degrees of culpability, some of the culpable
mental states in the injury-to-a-child statute result in different punishment ranges. If bodily injury
is inflicted upon a child “intentionally” or “knowingly,” then the offense of “injury to a child” is a
third degree felony, with a punishment range of two to ten years imprisonment.72 If bodily injury is
inflicted upon a child “recklessly” or “with criminal negligence,” then the offense of “injury to a
child” is a state jail felony, with a punishment range of 180 days to two years in a state jail.73
A holding that no due process violation occurred because the underlying felonies were
morally and conceptually equivalent is not the same as a holding that due process requires the
underlying felonies to be morally and conceptually equivalent. We did not have to decide in White
whether due process requires moral and conceptual equivalence in that context. We now hold that
moral and conceptual equivalence is not required for underlying offenses in a felony murder
prosecution under the current wording of the felony murder statute.
The “moral and conceptual equivalence” language in White was taken from Jefferson v.
State.74 In Jefferson, we discussed Justice Scalia’s suggestion in Schad v. Arizona75 that due process
would not permit the submission of alternative theories of criminal liability for novel “umbrella”
72
T EX . PENAL CODE §22.04(f); see also id., §12.34(a).
73
Id., §22.04(f), (g); see also id., §12.35.
74
189 S.W.3d at 313.
75
501 U.S. 624 (1991).
CONTRERAS — 31
crimes, such as a felony consisting of either robbery or the failure to file a tax return.76 The concern
seems to be that a legislature could conceivably decide to arbitrarily tie together two entirely
unrelated crimes into a single statutory offense.
That concern is not present in felony murder cases. Justice Scalia discussed a situation in
which an umbrella crime would contain wholly unrelated primary theories of liability. In contrast,
an offense such as felony murder contains alternate underlying offenses that share a common nexus:
all underlying felonies are related to dangerous conduct that causes the death of an individual.
Causing the death of an individual is the sine qua non of all homicide offenses, and we recently
recognized in Huffman v. State that “[w]ith respect to homicide offenses . . . different legal theories
involving the same victim are simply alternate methods of committing the same offense.”77 And in
the closely analogous capital murder context, we have long held that different underlying felonies
may be charged in the disjunctive without violating the right to jury unanimity.78
When the offense of felony murder is viewed as a whole, as a homicide offense, “equivalence
could reasonably be found”79 with respect to any of the variations of committing that homicide
76
Jefferson, 189 S.W.2d at 313-14 (discussing Schad, 501 U.S. at 650 (Scalia, J.,
concurring)).
77
267 S.W.3d 902, 905 (Tex. Crim. App. 2008).
78
Id. (citing Kitchens v. State, 823 S.W.2d 256, 257 (Tex. Crim. App. 1991)).
79
See Schad, 501 U.S. at 644 (plurality op.) (“Whether or not everyone would agree that the
mental state that precipitates death in the course of robbery is the moral equivalent of premeditation,
it is clear that such equivalence could reasonably be found, which is enough to rule out the argument
that this moral disparity bars treating them as alternative means to satisfy the mental element of a
single offense.”).
CONTRERAS — 32
offense. The point of the felony murder statute is to punish, as murder, a killing occurring during
the course of a serious crime, the exact seriousness of the underlying crime not being a particular
concern, so long as it is serious enough to be considered a “felony.” That conclusion is reinforced
by our holding in Lomax v. State that the underlying felony does not even have to supply a culpable
mental state for the murder.80
Moreover, application of a “moral equivalence” rule to alternative underlying offenses is
inappropriate where, as in the injury-to-a-child-context at issue here, the underlying offenses are in
fact greater and lesser-included offenses. An offense is a lesser-included offense if “it differs from
the offense charged only in the respect that a less culpable mental state suffices to establish its
commission.”81 Proof of one of the four culpable mental states recognized in Chapter 6 of the Penal
Code necessarily suffices to prove any lesser culpable mental state recognized in that chapter.82 A
juror who believes that the greatest of the underlying offenses has been committed also believes that
the least of the underlying offenses has been committed, so there is no actual divergence between
the jurors with respect to the underlying offense. Here, that means that the jury was unanimous at
least as to the culpable mental state of criminal negligence.
III. DISPOSITION
80
233 S.W.3d 302, 307 (Tex. Crim. App. 2007) (felony DWI can qualify as an underlying
felony in a felony murder prosecution).
81
T EX . CODE CRIM . PROC. art. 37.09(3).
82
Wasylina v. State, 275 S.W.3d 908, 910 (Tex. Crim. App. 2009); TEX . PENAL CODE
§6.02(e); see also id., §6.02(d)(ranking, from highest to lowest, the culpable mental states of
intentional, knowing, reckless, and criminal negligence).
CONTRERAS — 33
We sustain appellant’s second ground for review, involving his article 38.23 instruction
claims, to the extent that it complains about the absence of an article 38.23 instruction regarding a
threat to jail his wife. We overrule his second ground in all other respects, and we overrule
appellant’s third ground for review, involving the jury-unanimity claim. The judgment of the court
of appeals is reversed, and the case is remanded for a harm analysis.
Delivered: June 9, 2010
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