Calvert, James

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-77,063
JAMES CALVERT, Appellant
v.
THE STATE OF TEXAS
ON DIRECT APPEAL FROM CAUSE NO. 241-1467-12
IN THE 241ST DISTRICT COURT
SMITH COUNTY
NEWELL, J., delivered the unanimous opinion of the Court.
OPINION
In October 2015, a jury convicted Appellant of murder in the course of committing
or attempting to commit burglary or kidnapping.1 Based upon the jury’s answers to the
special issues set forth in Texas Code of Criminal Procedure Article 37.071, Sections 2(b)
and 2(e), the trial judge sentenced Appellant to death.2 Direct appeal to this Court is
1
TEX . PENAL CODE § 19.03(a)(2).
2
TEX . CODE CRIM . PROC. art. 37.071, § 2(g). Unless otherwise indicated, all references to
Articles refer to the Code of Criminal Procedure.
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automatic.3 After reviewing Appellant’s twenty-nine points of error, we find them to be
without merit. Consequently, we affirm the trial court’s judgment and sentence of death.
STATEMENT OF FACTS
While visiting Croatia, Appellant met the victim, Jelena. She accompanied him on
his return to Tyler, and they married in 2004. Jelena became increasingly fearful of
Appellant over the course of their marriage.
Appellant and Jelena’s first child, E.C., was born in 2006. Their second child, L.C.,
was born in 2008. Appellant and Jelena separated in 2009 and divorced in 2010. Jelena
obtained a restraining order that barred Appellant from going to her new home. According
to their divorce decree, Jelena had primary possession of the children. She could not move
with the children more than 125 miles from the Smith County Courthouse. Appellant had
visitation rights on alternate weekends and Thursdays. The order specified that Jelena and
Appellant would exchange the children at Jason’s Deli.
In January 2012, Jelena married Arvind Sriraman. Jelena wanted to move with the
children to Houston, where Sriraman had taken an engineering job, but Appellant refused to
agree to modify the terms of the child custody order. He was also uncooperative during
mediation. Eventually, Jelena and Sriraman took the matter to trial. On October 19, 2012,
a jury determined that the custody order should be modified so that Jelena and the children
could move up to 500 miles away from the Smith County Courthouse.
3
TEX . CODE CRIM . PROC. art. 37.071, § 2(h).
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About twelve days later, on October 31st, Jelena was packing to move to Houston.
L.C., age four, was home with her. E.C., age seven, was at school. Although Appellant did
not have visitation that day, Jelena had agreed that Appellant could take the children to
dinner and then trick-or-treating.
Shortly before the scheduled visit, Appellant told Jelena that they needed to exchange
the children at her house instead of the deli. Jelena did not know it but Appellant had been
avoiding service of a motion by Deidre Adams, his first wife. Adams and Appellant had a
child together, J.C., and Adams had filed a motion to enforce court-ordered child support.
Appellant suspected that Adams was planning to serve him with that motion at the deli.
Jelena would not agree to exchange the children at her house. Appellant angrily canceled the
visit. Jelena was upset about this incident, which she relayed to multiple friends.
Less than three hours later, Appellant broke into Jelena’s house and, in front of L.C.,
shot her multiple times. Appellant took L.C. and fled to Louisiana. That evening, following
a high-speed chase in West Monroe, Louisiana, police officers arrested Appellant and
discovered L.C. physically unharmed in the back seat of Appellant’s car.
Appellant was indicted for capital murder. Counsel (Jeffery Haas and Jason Cassel)
were appointed to represent him. However, in February 2014, Appellant requested and was
granted the right to represent himself. He represented himself through approximately fifty
pretrial hearings, voir dire, and roughly three weeks of the jury trial. Appellant’s attorneys,
in standby status, were present and available to assist him. On September 15, 2015, during
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the guilt phase, the trial court revoked Appellant’s pro se status and reinstated counsel to
represent him.
At trial, Shonda Emmert testified that she was in the parking lot across the street from
Jelena’s house around noon on the day of the offense. She heard, “[B]ang, bang, bang,”
which she initially thought was a nail gun “going off.” About a minute later she saw a man
walking out of the house, carrying a small child wrapped in a blue blanket. He went to a car
parked down the street, put the child in the back seat of the car, and drove away.
Emmert drove to the house to see if things were okay. Another woman, Robin
Dickerson, pulled up at the same time, ran into the carport, and screamed at Emmert to call
911. Emmert walked toward the house to get a better look at the house number. She saw a
body in the carport; the door between the kitchen and carport was “splintered” and looked
like it had been kicked in. When the prosecutor showed Emmert photographs of L.C.,
Appellant, and Appellant’s car, she stated that the photos were consistent with the
appearance of the child, the man, and the car she saw on the day of the offense.
Dickerson testified that she worked at the same church as Jelena. On the day of the
offense, around noon, she was in a parking lot near Jelena’s house when she heard four or
five shots. She looked toward Jelena’s house and saw a man carrying a child from the
carport to a car parked on the street. The man got into the car and left. Dickerson believed
that the child she saw was L.C. and the man, Appellant. Dickerson drove up, walked into the
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carport and saw Jelena lying in the doorway, dead. When Emmert drove up, Dickerson told
her, “Call 911. He shot her.”
Tyler Police Detective Craig Shine, the lead detective in this case, responded to the
911 call. He testified that it was apparent from the number and locations of Jelena’s gunshot
wounds that the shooter knew her and wanted her dead. Based on his observations and
interviews at the crime scene, Shine obtained a capital murder warrant for Appellant. The
Tyler Police Department broadcasted a BOLO (“be on the lookout”) Alert and an Amber
Alert.
Texas Ranger Brent Davis testified that he went to the crime scene and saw numerous
cartridge casings on the kitchen floor. All of the casings were from a .40-caliber semi-
automatic pistol and were marked “.40 S&W.” From the location of the casings, it appeared
that the rounds were fired at Jelena from inside the house. Davis observed bullet strikes on
the door, the door frame, the car, and the concrete floor of the carport. It appeared that the
door between the kitchen and the carport had been kicked in; the strike plate and pieces of
wood from the door frame were on the floor. The door was standing open. Tyler police
officers advised Davis that L.C. was missing and that they believed he had been kidnapped.
It appeared to Davis that Jelena had been trying to leave the house to escape from the shooter
when she was shot multiple times.
Dr. Elizabeth Ventura, a medical examiner at the Southwestern Institute of Forensic
Sciences, conducted the autopsy. She testified that Jelena was intentionally killed.
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Specifically, Jelena sustained six gunshot wounds, five of which damaged vital organs in her
head and torso. The number, direction, and location of the gunshot wounds indicated that
Jelena was changing her position in relation to the gun when she was shot. The fact that she
had sustained several fatal shots while moving around was evidence of an intentional killing
in which the shooter wanted her dead. Ventura said that it was likely, but not certain, that
the fatal shot to Jelena’s head was the last shot.
Howard Ryan, a forensic investigation consultant and crime scene reconstructionist,
testified about the bloodstain evidence at the crime scene. He noted that a contact transfer
stain on the carport door indicated that Jelena was shot in the back while she was upright, and
then she slid down the door. After she was seated and leaning against the door, she was shot
through the abdomen. Another shot through her arm and side caused her to fall onto the door
mat in the carport. Finally, Jelena sustained a shot to the back of the head while her head was
face down and several inches off the carport floor. A spent shell casing in the carport
indicated that the shooter was likely standing over her when he fired that shot. Ryan averred
that this pattern indicated that the shooter was proficient, in control, and “not frantic” while
he was shooting.
Tim McLemee, an expert in forensic digital data and media, discussed a data report
showing the WiFi connections that Appellant’s iPad had made on the day of the offense,
starting at 1:32 p.m. and ending at 9:46 p.m. These connections started in Tyler, Texas, and
ended near West Monroe in Ruston, Louisiana. Appellant’s iPad had connected to WiFi
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networks in several McDonald’s restaurants along the route. Most of the searches on the
iPad were for news stories about the instant offense and Amber Alerts.4
West Monroe Police Officer Raymond Spoon testified that he had volunteered to
“take a call” before his shift started on the evening of the day of the offense. As a result, he
was not in the police station when officers were briefed on the alerts from Tyler, Texas, and
was unaware of those alerts when he first encountered Appellant.
Spoon was parked on the grassy median of the highway, “working drug interdiction,”
when Appellant’s vehicle passed him at 11:05 p.m. Spoon began following the vehicle after
he saw “some indicators” that it might be transporting drugs.5 Upon observing a traffic
violation, Spoon activated his lights and attempted to stop the vehicle. Initially, Appellant
pulled over and stopped, but as Spoon exited his patrol car, Appellant drove away. Appellant
thereafter passed three parking lot entrances where he could have pulled in and stopped
safely. He drove slowly and then stopped a second time. After Spoon exited the patrol car
and ordered Appellant out of his vehicle, Appellant drove away again. Concerned that this
pattern of stopping and starting was consistent with “baiting” and ambushing a police officer,
4
FBI Special Agent Mark Sedwick testified that the historical call detail records from
Appellant’s phone provided no cell tower information after 10:18 a.m., which meant that his phone
was turned off, out of the coverage area, or in airplane mode.
5
Spoon testified that the indicators included: the vehicle was traveling in the far right lane;
the driver’s hands were at “10:00 and 2:00” on the steering wheel; the driver looked straight ahead
and never looked toward Spoon; and the vehicle appeared to have a single occupant who was driving
on the interstate highway a little after 11:00 p.m. on Halloween.
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Spoon called for assistance. Officer Justin Cummings, Sergeant Matthew Downhour, and
Corporal Marie Knight testified that they responded to Spoon’s call for assistance.
Initially, Appellant led a “slow-rolling chase,” but he picked up speed as other patrol
cars joined the pursuit. He ran red lights and almost caused several collisions. Appellant
eventually drove into a dead-end street in a residential area, made a U-turn, drove across a
front yard, and was finally forced to stop when his car was blocked in by police vehicles. As
officers were approaching Appellant’s vehicle with their guns drawn, Cummings heard
Appellant say, “Just don’t shoot my child.” Appellant would not open his car door. Officers
broke the window to reach him. Cummings removed a gun from between Appellant’s legs
and threw it away from the car. Appellant fought with officers after they pulled him from
the car. During the struggle, Appellant said, “You don’t know what I’ve done.”
Appellant resisted arrest and continued to be uncooperative when officers placed him
into a patrol car. Downhour stated that Appellant was wearing a concealed waistband
designed to hold a gun and magazines. It contained an empty magazine fitting the Sig Sauer
pistol that was on the back-seat floor. Although there was a different license plate on
Appellant’s vehicle than that in the BOLO Alert and Amber Alert, Knight identified
Appellant and the child as the subjects of those alerts.
Detective Shine testified that after the West Monroe Police Department notified him
that they had arrested Appellant, he drove from Tyler to West Monroe and interviewed
Appellant. During that interview, Appellant identified himself as the driver and owner of the
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impounded vehicle and admitted to having a Sig Sauer pistol that he “always” kept in the
glove compartment and the weapon that officers had removed from his lap. Appellant told
Shine that if his son L.C. had not been in the car with him, he “would have shot those
idiots”—meaning the West Monroe police officers—when they pointed their guns at him.
In the audiovisual recording of Appellant’s statement to police, Appellant
acknowledged that he had taken about $200 in cash from his mother before he left her house
on the morning of the offense. He clearly described his activities shortly before Jelena’s
murder, including having breakfast at a Whataburger and picking up a copy of Adams’s
motion for enforcement of child support at the courthouse. However, he stated that he did
not remember anything after that until he was driving away from Tyler. Appellant suggested
that he might have been fixing a client’s computer during that time, but he could not identify
the client.6 He avoided describing the murder or specifying where or how he picked up L.C.
But he admitted that he “must have” taken L.C. from Jelena and that he “might” have had
Jelena’s phone in his car.
Appellant repeatedly stated that he did not remember—or that he did not know—if
he and Jelena had agreed that he would have the children that day or if Jelena had wanted
him to go to her house to pick them up. When an investigator asked him if it made him mad
when Jelena told him not to pick up the children from her house, he responded that he “didn’t
see the logic in it.” When asked where he went after he picked up L.C., Appellant told
6
The record shows that, at the time of the offense, Appellant worked as a freelance computer
consultant.
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investigators that he did not recall driving toward any particular destination, but he
remembered “having a good day with [L.C.].” Appellant stated that he took L.C. to a
Halloween festival at a church or school somewhere between Tyler and West Monroe.
Appellant described Jelena, Adams (his first wife), and Debbie Campbell (his sister)
as unintelligent, vindictive, and dishonest. He acknowledged that Jelena had told him that
she was afraid of him. When investigators informed him that there were witnesses to the
offense, he remarked that Jelena’s neighbors would not recognize him.
When asked if he knew why he was in the police station, Appellant responded by
asking if he was being charged with speeding. He stated that he had evaded arrest because
he did not like getting speeding tickets. Detectives told him that he was being held on a
capital murder warrant, and he challenged them to show it to him. When they did, he
emphasized that the warrant was from Texas and stated that he needed to know what the
Louisiana charges were.
After speaking with Appellant, Shine viewed Appellant’s vehicle in the impound lot.
A West Monroe officer told Shine that Appellant had boasted following his arrest that “they
were looking for the wrong license plate.” Looking through the windows, Shine saw two
firearms and two cell phones, one of which matched the description of Jelena’s phone.
Tyler Police Department Detective Craig Williams testified that he processed
Appellant’s vehicle after it was returned to Tyler. He found Jelena’s cell phone on the back
seat and its black-and-pink case in the driver’s door pocket. He also identified a Springfield
CALVERT—11
XD handgun recovered from the driver’s floorboard, where West Monroe police officers had
placed it after they arrested Appellant.7 It had an attached magazine of twelve rounds and
one round in the chamber. All rounds recovered from that gun were Winchester .40 caliber
Smith & Wesson, the “same caliber and same brand of the casings that were at the crime
scene.” Additionally, Williams identified license plates found under the front passenger floor
mat as the current plates for Appellant’s vehicle. The license plates that were on the vehicle
when it was stopped were expired. Williams testified that the vehicle’s trunk contained
numerous loaded rifles, several handguns, and a large stock of ammunition. Appellant had
approximately 200 rounds, ready to fire, in the rifles.
Williams also reviewed photographs of items taken from the car. He identified: a
knife; a Don Hume holster; an Apple phone in a gray-and-white case; a Sig Sauer .380 pistol
with a loaded magazine and a chambered round; two additional loaded magazines; a
McDonald’s receipt from Arcadia, Louisiana, printed at 9:07 p.m. on the date of the offense;
an iPad; a computer bag containing copies of a modified order for possession and access to
J.C., the 2010 agreed final decree of divorce between Appellant and Jelena, a box of
“Winchester .40-caliber Smith & Wesson bullets” (which was missing ten bullets),
9-millimeter ammunition that would fit a Kel-Tec firearm, such as the Kel-Tec 9-millimeter
7
This firearm was the weapon that Cummings had thrown out of the car. Wade Thomas, a
forensic scientist with the Texas Department of Public Safety lab in Tyler, conducted a toolmark
analysis on the Springfield XD to determine whether it was the weapon used in the offense. By
comparing recovered projectiles with test-fired projectiles, Thomas determined that the recovered
projectiles were fired by the Springfield XD.
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pistol found in the vehicle’s trunk, three shotgun rounds, and a box containing three
Hornaday Critical Defense .380-caliber cartridges; Appellant’s wallet; a blue-and-black
holster designed to be concealed under clothing; a SKS magazine loaded with five rounds;
“[o]ne case of Federal Premium Personal Defense .380 Auto, 90-grain Hydra-Shok, with 17
live rounds inside”; “[o]ne box of Remington 12-gauge buckshot 00BK”; a receipt for
buckshot from Gander Mountain in Tyler, printed at 10:38 a.m. on the date of the offense;
a Whataburger receipt printed at 10:05 a.m. on the date of the offense; and an envelope with
a copy of Adams’s motion for enforcement of child support order and order to appear in the
interest of J.C., file-marked October 26 (five days prior to the offense).
SUFFICIENCY OF THE EVIDENCE
Appellant does not challenge the sufficiency of the evidence to prove that he
intentionally killed Jelena. Rather, he argues that the evidence was insufficient to prove that
he did so in the course of committing or attempting to commit the offense of kidnapping
(point of error twenty-one) or in the course of committing or attempting to commit burglary
(point of error twenty-two). Appellant asserts that there was “evidence to defeat” the
underlying offense of burglary—L.C.’s statement that “there was a knock at the door” before
Appellant entered the house and killed Jelena.
In assessing the legal sufficiency of the evidence to support a conviction, we consider
all of the record evidence, whether admissible or inadmissible, in the light most favorable to
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the verdict.8 We determine whether, based on that evidence and reasonable inferences
therefrom, any rational trier of fact could have found the defendant guilty of the essential
elements of the offense beyond a reasonable doubt.9
Here, the jury returned a general verdict finding Appellant “guilty of the offense of
capital murder as charged in the indictment.” We will uphold the verdict of guilt if the
evidence was sufficient on either the kidnapping or the burglary theory.10
A person commits capital murder when he intentionally causes the death of an
individual in the course of committing or attempting to commit burglary.11 A person
commits burglary if, without the effective consent of the owner, he enters a habitation with
the intent to commit a felony, theft, or assault; or if, without the effective consent of the
owner, he enters a habitation and commits or attempts to commit a felony, theft, or an
assault.12 “An unlawful entry into a habitation with the intent to commit murder will satisfy
the burglary element of a capital murder charge.” 13
8
Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006).
9
Musacchio v. United States, 136 S. Ct. 709, 715 (2016) (citing Jackson v. Virginia, 443 U.S.
307, 319 (1979)).
10
See Sorto v. State, 173 S.W.3d 469, 472 (Tex. Crim. App. 2005).
11
See TEX . PENAL CODE § 19.03(a)(2); Whitaker v. State, 977 S.W.2d 595, 598 (Tex. Crim.
App. 1998).
12
TEX . PENAL CODE § 30.02(a)(1), (3).
13
Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim. App. 2016) (quoting Whitaker, 977
S.W.2d at 598-99).
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When Appellant informed Jelena that he wanted to exchange the children at her house,
she expressly refused, telling him that they would exchange the children in the deli parking
lot as originally planned. Appellant then canceled the exchange. During and after these
discussions, Jelena communicated to Sriraman and to her friends that she was afraid of
Appellant and did not want him in her house.
Moreover, several witnesses at the crime scene observed that the door frame was
splintered and the strike plate was on the floor, indicating a forced entry. Evidence that
Jelena did not want Appellant in her home and that the door had been forced open
sufficiently established that Appellant entered Jelena’s home without her effective consent.
Thus, the first requirement of burglary is satisfied.
The evidence also established that Appellant entered Jelena’s home with the intent to
commit the felony of murder. Appellant aimed his gun at Jelena and shot her repeatedly as
she attempted to escape, and he shot her again after she was sitting and then lying on the
floor. Appellant’s use of a firearm, as well as the number and locations of Jelena’s gunshot
wounds, demonstrated his intent to murder Jelena.14 A rational jury could have determined
from this evidence that Appellant entered Jelena’s house without her effective consent,
intending to commit a felony, and intentionally murdered Jelena. Accordingly, the evidence
was sufficient to prove that Appellant was guilty of capital murder. Because we find the
14
See, e.g., Ex parte Thompson, 179 S.W.3d 549, 555 (Tex. Crim. App. 2005) (finding that
evidence of the Appellant’s intent to kill was overwhelming when, among other things, he
intentionally shot the victim in the abdomen and then intentionally shot him three more times as he
lay on the ground).
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evidence sufficient to prove the offense of burglary of a habitation, we need not consider
whether the State proved the underlying felony of kidnapping.15 Points of error twenty-one
and twenty-two are overruled.
SHOCK CUFF ACTIVATION
Appellant wore a shock cuff on his ankle, which deputies activated outside the jury’s
presence. In point of error one, Appellant alleges that the trial judge violated his rights to
substantive and procedural due process by allowing him to be subjected to an electric shock
during trial for conduct that did not warrant such treatment, particularly when the judge had
far less drastic alternatives. Appellant asserts that he did not pose a security threat while
representing himself but instead was shocked for being disrespectful. Appellant notes that
his counsel later moved for a mistrial on the ground that he “highly suspect[ed]” that the
jury—which had just been excused for the day—heard Appellant scream.16 Appellant argues
that activating the shock cuff constituted “egregious official conduct” or conduct that
“shocks the conscience,” in violation of the Fourteenth Amendment guarantee of substantive
due process. He contends that this conduct was structural error requiring reversal.17 We
15
See TEX . PENAL CODE § 19.03(a)(2); see also Vega v. State, 267 S.W.3d 912, 913 (Tex.
Crim. App. 2008) (“If the hypothetically correct jury charge for the case would authorize the jury to
convict on alternative theories of liability, then the appellate court must deem the evidence sufficient
if it is sufficient under any of the theories of liability.”).
16
After this incident, the trial judge re-appointed standby counsel, who represented Appellant
for the rest of the trial.
17
Appellant also claims that the shock cuff’s activation violated the Eighth Amendment of
the United States Constitution, as well as Article I, Sections 13 and 19 of the Texas Constitution.
“Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional
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agree with Appellant that, under the circumstances here, activation of the shock cuff violated
due process because there was no immediate security concern. We disagree with Appellant,
however, that the constitutional error in this case was structural or harmful, because the
activation was not in front of the jury and it only momentarily incapacitated Appellant.
Appellant requested before trial that he be allowed to wear a shock belt instead of a
leg brace in proceedings before the jury. He argued that a shock belt would be less
noticeable than a leg brace; therefore, it would not “lower” his presumption of innocence.
For reasons not explained in the record, Appellant wore both a shock cuff on his ankle and
a leg brace during the trial. Deputies activated the shock cuff two times. The first shock
came nearly a year before a jury was picked. The second shock came during trial, just after
the jury had left the courtroom for the day.
While Appellant complains only of the second incident, a brief summary of the first
is relevant to our harm analysis. The first occurred after a pretrial hearing on October 9,
2014, when Appellant refused to be handcuffed for transport to the jail. He grabbed the
counsel table with both hands and stiffened his arms. Unable to move Appellant’s arms,
transport officers activated the shock cuff for one second. Appellant yelled and immediately
guarantees traditionally associated with criminal prosecutions. . . . Where the State seeks to impose
punishment without such an adjudication, the pertinent constitutional guarantee is the Due Process
Clause of the Fourteenth Amendment.” Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977). Further,
Appellant has not briefed this or any other of his Texas constitutional claims separately from his
federal constitutional claims. Therefore, we will address only his federal constitutional claims. See
Welch v. State, 93 S.W.3d 50, 52 & n.5 (Tex. Crim. App. 2002).
CALVERT—17
broke his hold on the table. However, he continued resisting and fighting while they
handcuffed him. It took four officers to restrain and handcuff him.
When Appellant returned to the jail after this incident, the officers who accompanied
him expressed their intent to take him to the medical clinic to make sure that he was alright
after being shocked. But Appellant stated, “I’m okay,” and, “I don’t think I need to.” As
they walked across the parking lot toward the jail, officers asked Appellant several times if
he needed to go to the clinic. He repeatedly stated that he did not. When they reached
Appellant’s cell, Appellant cooperated as officers uncuffed him and unloaded his paperwork.
The second incident, the one at issue here, took place after the close of testimony on
September 15, 2015, during the guilt phase. After the jury had been excused for the day, the
trial judge conducted a hearing concerning Appellant’s cross-examination of Detective
Shine. The judge asked Appellant, “Where were you going with that[?]” Without standing
up, Appellant responded:
[APPELLANT]: Your Honor, I understand Detective Shine doesn’t remember
everything that’s before him. Obviously that would be next to impossible.
THE COURT: Next to impossible to what?
[APPELLANT]: For him to be able to --
THE COURT: Stand up when you talk to the Court. All they need you to do
is stand up when you talk to the Court. That’s what lawyers do. They stand
up.
Mr. Haas, he’s --
CAPTAIN CARAWAY: Stand up.
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SERGEANT SHOEMAKER: I told you to stand up.
CAPTAIN CARAWAY: Stand up.
(Shock bracelet activated on defendant.)
[APPELLANT]: I’m sure the Court very much enjoyed that.
At that point, the judge terminated Appellant’s pro se status, explaining:
[F]or all the reasons this Court’s gone over, all the admonishments I’ve given
you. . . . I have warned you and warned you. . . . [Y]our right to represent
yourself is not just terminated on that type [of] disrespect for this Court, it’s
terminated on everything I’ve put up with from you right up through the last
set of admonishments I’ve given you. . . . [Y]our right to represent yourself,
based on all your conduct, all the admonishments I’ve given you, right up to
right now, your right to represent yourself is terminated.
***
I should have done this a lot earlier, but I kept giving you chance after chance
after chance.
The judge re-appointed defense counsel to represent Appellant.
The next morning, September 16th, the trial judge continued the case until September
28th in order to give defense counsel time to prepare for trial. When the judge informed the
jury of the new schedule and explained that defense counsel would be representing Appellant
when the trial resumed, Appellant interjected, “And the jury should know that was not
voluntary.” The judge told him to be quiet and sit down, but Appellant interrupted him two
more times to reiterate that he did not agree to defense counsels’ representation.
When the trial resumed twelve days later, defense counsel moved for a mistrial outside
the jury’s presence on the ground that he “highly suspect[ed]” that the jury heard “the
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screams that [Appellant] let out after he was zapped.” In response to this motion, the judge
clarified that, when deputies activated the shock cuff, the jury was out of the courtroom and
the door was “shut behind them.” He acknowledged that he did not know “how far up the
hall the jury went,” but he added that there was no evidence in the record that any juror heard
anything “regarding any response of [Appellant] to being shocked.” The judge also stated
that, even if a juror had heard something, there was no evidence that the juror would have
had “any earthly idea who it was coming from.” Additionally, he concluded, “if they did
hear anything,” there was no evidence that it would affect their ability “to fairly and
impartially carry out their duty as jurors in the case.” The judge denied the motion for
mistrial.
We note that deputies had not shocked Appellant on previous occasions when he had
been significantly more combative and disrespectful than he was when they shocked him for
failing to stand on September 15th. Further, Appellant’s failure to stand did not pose an
immediate threat to courtroom security. The trial judge’s admonishment to Appellant
immediately after the shock made no mention of a threat to security but instead expressed
exasperation over Appellant’s continuing failure to follow the deputies’ and the judge’s
instructions as well as his defiant and disrespectful attitude toward the judge.18
We agree with Appellant that activating the shock cuff as a means to get Appellant
to stand up when addressing the trial court violates due process. As the El Paso Court of
18
Cf. Morris v. State, 554 S.W.3d 98, 118 (Tex. App.—El Paso 2018, pet. ref’d).
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Appeals recently put it, immediate security concerns or flight risk can justify the activation
of a stun belt; decorum concerns cannot.19 Use of a stun belt “as a method to enforce
decorum or as a punishment for a defendant’s obstreperous conduct, is constitutionally
prohibited and falls outside the wide discretionary penumbra for courtroom management set
by [Illinois v. Allen, 397 U.S. 337, 346 (1970)].” 20
However, contrary to Appellant’s contention, the error was not structural. Structural
errors are a very limited class of errors that affect the framework within which the trial
proceeds such as the total deprivation of counsel, the lack of an impartial trial judge, the
violation of the right to self-representation at trial, the violation of the right to a public trial,
or the giving of a constitutionally deficient reasonable-doubt instruction.21 Like the El Paso
Court of Appeals, we cannot conclude that the error here, which again, occurred outside the
presence of the jury, falls within that category. But the error in improperly activating the
19
Id. Unlike in Morris, the trial judge in this case did not instruct deputies to shock the
defendant; rather, the deputies activated the shock cuff on their own volition after appellant
disobeyed their instructions. Cf. 554 S.W.3d at 104-05. But the trial court made clear on the record
that the deputies had the freedom to activate it as means to enforce decorum. At one point the trial
court reminded Appellant that “the deputy has got a shock device in their hand . . . . [T]hey will use
whatever means they have to control you.” Shortly thereafter, when Appellant had responded to a
State’s objection before standing up, [the deputy] said, “If you’re going to speak to the Court, stand
up. Last chance.” The trial court added, “Stand up, Mr. Calvert. It won’t work out good if you
don’t stand up, believe me.” Nothing in the record suggests the trial judge did not condone the shock
as a means to enforce the stand up/sit down rules. Quite the opposite.
20
Id.
21
United States v. Marcus, 560 U.S. 258, 263 (2010).
CALVERT—21
shock cuff was of constitutional dimension.22 Accordingly, we will apply the harm standard
for constitutional error: this Court must reverse unless we determine beyond a reasonable
doubt that the error did not contribute to the conviction or punishment.23
There are two primary ways in which a shock cuff’s activation may adversely affect
the fairness of a trial. The first way is the negative effect on jurors’ impartiality and the
presumption of innocence—implicating the Fifth Amendment.24 The second is the negative
effect on the defendant’s ability to confer with counsel and otherwise participate in his
defense—implicating the Sixth Amendment.25 Neither applies here.
There is no evidence that the shock cuff’s activation had a negative effect on the
jurors’ impartiality or the presumption of innocence. The jurors were not present.26 Absent
22
See Morris, 554 S.W.3d at 124; Deck v. Missouri, 544 U.S. 622, 629, 630, 635 (2005)
(“[A]bsent a trial court determination, in the exercise of its discretion,” that their use is “justified by
a state interest specific to a particular trial,” the use of visible physical restraints during the guilt
phase of a criminal trial violates due process because it “undermines the presumption of innocence
and the related fairness of the factfinding process.”).
23
See TEX . R. APP. P. 44.2.
24
See, e.g., Chavez v. Cockrell, 310 F.3d 805, 807, 809 (5th Cir. 2002); Morris, 554 S.W.3d
at 112.
25
See, e.g., United States v. Durham, 287 F.3d 1297, 1306 (11th Cir. 2002) (“[A] stun belt
imposes a substantial burden on the ability of a defendant to participate in his own defense and
confer with his attorney during a trial.”); Morris, 554 S.W.3d at 112.
26
Cf. Hollaway v. State, 6 P.3d 987, 994 (Nev. 2000), overruled on other grounds by Lisle
v. State, 351 P.3d 725 (Nev. 2015) (finding reversible error when defendant’s shock belt was
accidentally activated during prosecutor’s final closing argument asking “how deep, deep into this
man’s being does this violence run”). The “accidental” activation in Hollaway is no anomaly;
purposeful activations are comparatively rare.
CALVERT—22
evidence in the record that jurors heard Appellant scream, we will not speculate that they
did.27
Further, the record contains no evidence that the shock cuff’s activation affected
Appellant’s ability to confer with counsel and participate in his defense. Conversely, in State
v. Belcher, there was evidence that after the activation of the defendant’s shock belt, the
defendant “was not able to confer with his counsel in deciding how to exercise his
peremptory strikes.”28 And in Morris v. State, there was evidence that the activation caused
the defendant’s absence from most of the trial proceedings because he was afraid to be in the
courtroom.29
Unlike Belcher and Morris, Appellant was no more than momentarily incapacitated
by the activations of the shock belt. And the record of this case does not indicate that
27
See Word v. State, 206 S.W.3d 646, 651-52 (Tex. Crim. App. 2006) (“It is usually the
appealing party’s burden to present a record showing properly preserved, reversible error.”); Weaver
v. State, 894 So. 2d 178, 196 (Fla. 2004) (holding that accidental activation of stun belt did not
prejudice defendant where the activation occurred outside the presence of the jury); State v.
Wachholtz, 952 P.2d 396, 399 (Idaho Ct. App. 1998) (affirming denial of motion for mistrial based
on the accidental discharge of stun belt that occurred while potential jurors were assembled before
voir dire, where the defendant had offered no evidence that potential jurors actually heard the
defendant scream after the belt’s discharge); Harrison v. Yarborough, No.
103CV05005-AWI-SMSHC, 2006 WL 735986, at *1 (E.D. Cal. Mar. 22, 2006), aff’d sub nom.
Harrison v. Yarbourogh, 211 F. App’x 653 (9th Cir. 2006) (holding that there was no prejudice
where, “although the stun-belt was activated while the jury was deliberating and Petitioner screamed,
Petitioner ha[d] adduced no evidence that the jurors heard or attributed the scream to Petitioner, or
were in any way influenced by the activation”).
28
State v. Belcher, 183 S.W.3d 443, 449 (Tex. App.—Houston [14th Dist.] 2005, no pet.)
(finding reversible error).
29
Morris, 554 S.W.3d at 117-21, 124-26 (finding reversible error).
CALVERT—23
Appellant was anxious or distracted by the possibility of another shock.30 After the first,
pretrial activation, Appellant continued to resist and fight the transport guards, and then
repeatedly refused offers for medical treatment, stating that he was “okay.” Thereafter, he
very actively and consistently participated in his defense. And after the second, midtrial
activation, coming nearly a year later, Appellant continued arguing with the judge. Before
the jury, Appellant interrupted the judge several times to express his disagreement with the
reinstatement of defense counsel. In addition, the trial judge continued the proceedings for
twelve days to give defense counsel time to get up to speed.
On this record, we conclude that the shock cuff’s activation outside the jury’s
presence did not affect the jurors’ impartiality, nor Appellant’s presumption of innocence,
nor Appellant’s ability to be present at trial and participate in his own defense. We are
confident beyond a reasonable doubt that the error did not contribute to the conviction or
punishment.31 Point of error one is overruled.
DENIAL OF MISTRIAL
In point of error two, Appellant makes two arguments in support of his assertion that
the trial judge erred by refusing to grant a mistrial following the shock cuff’s activation.
First, he argues that this incident biased the jury against him. We rejected Appellant’s first
argument in our discussion of point of error one. Second, he contends that it was
30
See Durham, 278 F.3d at 1306.
31
See TEX . R. APP. P. 44.2(a).
CALVERT—24
unreasonable to force defense counsel to assume responsibility for a trial in which so much
had transpired because there was no way for counsel to develop and implement an effective
trial strategy. Appellant asserts that “there effectively was nothing counsel could do.” He
argues that, if the judge felt compelled so late in the trial to require Appellant to proceed with
counsel, then the judge was also compelled to grant a new trial in which counsel could
perform effectively. Appellant’s second argument is not preserved because defense counsel
did not timely move for a mistrial on this basis.32 Point of error two is overruled.
CONFLICT OF INTEREST
In point of error three, Appellant argues that the trial judge erred by re-appointing his
standby counsel, Jeffrey Haas and Jason Cassel, to represent him as defense counsel when
the judge revoked his pro se status because Appellant and defense counsel “clearly” had a
conflict of interest. Specifically, Appellant contends that because he had accused counsel
of “unethical conduct, ineffective assistance, and other wrongdoing,” it was unreasonable
for the trial judge to conclude that counsel could zealously represent him.33 He argues that
counsel had a disqualifying conflict of interest as a matter of law because he had filed
“grievances with the State Bar on Mr. Haas.”
32
See TEX . R. APP . P. 33.1; Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007).
33
After the trial court denied Haas’s first motion to withdraw, defense counsel did not move
to withdraw again. See our discussion of points of error five through seven, below.
CALVERT—25
The Sixth Amendment guarantees the right to reasonably effective assistance of
counsel, which includes the right to “conflict-free” representation.34 In the case of a conflict
of interest, trial counsel renders ineffective assistance if the defendant can demonstrate that
(1) counsel was burdened by an actual conflict of interest; and (2) the conflict actually
affected the adequacy of counsel’s representation.35 The mere possibility of a conflict,
without more, will not justify reversal.36
Regarding the first prong, “an ‘actual conflict of interest’ exists if counsel is required
to make a choice between advancing his client’s interest in a fair trial or advancing other
interests (perhaps counsel’s own) to the detriment of his client’s interest.”37 “The appellant
bears the burden of proof by a preponderance of the evidence on a claim of
conflict-of-interest ineffective assistance. . . .”38 Therefore, if a defendant fails to present any
34
See Strickland v. Washington, 466 U.S. 668, 692 (1984); Cuyler v. Sullivan, 446 U.S. 335,
348-50 (1980).
35
Cuyler, 446 U.S. at 349-50.
36
Id. at 350; see also Pollan v. State, 612 S.W.2d 594, 596 (Tex. Crim. App. 1981) (panel
op.).
37
Acosta v. State, 233 S.W.3d 349, 355 (Tex. Crim. App. 2007) (quoting Monreal v. State,
947 S.W.2d 559, 564 (Tex. Crim. App. 1997)).
38
Odelugo v. State, 443 S.W.3d 131, 136 (Tex. Crim. App. 2014).
CALVERT—26
evidence regarding the issue, or if the evidence relevant to the issue “is in perfect equipoise,”
his “claim will fail.” 39
Regarding the second prong, a defendant’s allegation alone that counsel has not been
zealous in his representation does not establish an actual conflict of interest.40 Nor does a
defendant’s refusal to cooperate with counsel and desire to no longer be represented by his
appointed counsel.41 Further, a criminal defendant’s filing of a grievance or other legal
proceeding against his court-appointed counsel does not necessarily give rise to a conflict of
interest.42
Here, when the trial judge initially allowed Appellant to proceed pro se, the judge also
directed standby counsel to continue investigating and preparing a defense so that they would
be ready to represent Appellant if necessary. Appellant filed pleadings complaining about
standby counsel’s investigation and repeatedly threatened to sue or file grievances against
counsel for alleged misconduct. For example, in “Defendant’s Motion for Court to Change
the Selection of Assignment of ‘Standby Counsel,’” Appellant argued that he was entitled
to new standby counsel for the following reasons: “bad communication and lack of zealous
39
Id. at 136-37.
40
Cf. Acosta, 233 S.W.3d at 355.
41
See Viges v. State, 508 S.W.2d 76, 76-77 (Tex. Crim. App. 1974).
42
See Dunn v. State, 819 S.W.2d 510, 519 (Tex. Crim. App. 1991) (rejecting a defendant’s
conflict of interest claim that relied on his malpractice action against his attorneys); Perry v. State,
464 S.W.2d 660, 664 (Tex. Crim. App. 1971) (holding that a defendant’s civil rights action against
his attorney did not establish an actual conflict of interest).
CALVERT—27
drive”; counsel “hampered” Appellant’s defense and failed to assist him in “furthering” his
defense; unspecified “[o]bjections, problems, questionable actions are all well documented
within ex parte proceedings to which Defendant cannot disclose herein yet give rise to
challenge the Court in its motives to a level giving Defendant . . . good cause for alarm if
true. (See Ex parte filings, etc.)”; counsel “betrayed” him by disclosing privileged
information to the State, which was “legally unethical”; and counsel’s testimony at a hearing
on Appellant’s motion to recuse the trial judge was “surprisingly” unfavorable.
At the hearing on this motion, Appellant accused the trial judge of ordering counsel
to reveal privileged information to the State. Standby counsel Cassel denied any intent to
provide privileged information to the State. He explained the process he intended to use to
copy information from a computer that was in evidence so that he could give that information
to Appellant. Appellant argued that simply copying the data would alter it, so even if counsel
acted in good faith, “the relationship has been destroyed between me and Mr. Cassel.” The
judge denied Appellant’s request for different standby counsel. Cassel stated that he would
not copy the hard drive if Appellant did not want him to. Appellant confirmed that he did
not want Cassel to copy it. He added that most of his “work product” was on USB drives,
and he did not want counsel to copy those drives, either.
This process of a complaint, a hearing, and a resolution repeated itself several times.
Appellant’s complaints may have been “very personal” but there is no indication in the
record that counsel took them as such. Instead, counsel followed the trial court’s repeated
CALVERT—28
instructions to continue preparing a parallel defense in the event that they were reinstated to
represent Appellant, as they eventually were. Appellant does not identify any instance in
which counsel was required to make a choice between advancing their own interests or
advancing Appellant’s interests.43 Instead, he argues that counsel was conflicted as a matter
of law because of the grievance that he had filed. Appellant cites Garner v. State 44 for the
proposition that the existence of a grievance constitutes a conflict of interest as a matter of
law. But that is not what Garner says. In that case, as here, the nature of the grievance was
unclear from the record. The court held that Garner “ha[d] on appeal shown the mere
possibility of a conflict of interest. That mere possibility, without more, [wa]s not sufficient
to impugn a criminal conviction.”45 The same is true here.
Appellant at most has shown only the “mere possibility of a conflict of interest.”
Appellant attached to one of his pleadings a letter from the State Bar, dated January 29, 2014,
responding to a grievance Appellant filed against Mr. Haas. That letter stated that the
grievance committee had determined that the information alleged “d[id] not demonstrate
professional misconduct or an attorney disability;” thus, the committee classified the
grievance as an inquiry and dismissed it. This dismissal came at least twenty-one months
before Mr. Haas was placed back in as counsel.
43
See Acosta, 233 S.W.3d at 355.
44
864 S.W.2d 92 (Tex. App.—Houston [1st Dist] pet. ref’d).
45
Id. at 99.
 CALVERT—29
Further, our own review of the record has not uncovered any instance in which
counsel advanced their own interests over Appellant’s. Appellant consulted standby counsel
on several occasions. Standby counsel provided Appellant with the legal materials he
requested. After Appellant complained that he could not find investigators and experts who
were willing to work with a pro se defendant, standby counsel located investigators and
experts for him. Counsel took discovery materials to the jail for Appellant’s review, but
Appellant often refused to meet with counsel. As the State notes, Haas and Cassel were
present for the multiple pretrial hearings and the trial, they were familiar with the thousands
of pages of discovery, and they had no objections to stepping back in.
Because Appellant has not met his burden to prove, by a preponderance of the
evidence, that counsel made a choice between advancing Appellant’s interest in a fair trial
and advancing other interests to Appellant’s detriment, he has not proved a constitutional
conflict of interest. The trial judge did not err by reinstating standby counsel, Haas and
Cassel, to represent him as defense counsel. Point of error three is overruled.
THE FARETTA RULE
In point of error four, Appellant argues that this Court should limit the Faretta rule
by holding that a defendant in a case in which the State is seeking the death penalty cannot
waive his constitutional right to counsel. In Faretta v. California, the Supreme Court held
that the Sixth Amendment guarantees a defendant in a state criminal trial the right to
CALVERT—30
represent himself at trial.46 We have previously held that the Sixth and Fourteenth
Amendments guarantee that a person brought to trial, even in a capital murder case in which
the State seeks the death penalty, may dispense with counsel and make his own defense.47
We decline to revisit the matter in this case. Point of error four is overruled.
PRO SE REPRESENTATION
In intertwined points of error (five through eight), Appellant asserts that the trial court
erred in permitting him to represent himself. Appellant’s arguments rest upon a four-prong
attack. First, Appellant should not have been allowed to proceed pro se because he was not
competent to represent himself. Second, Appellant could not have knowingly and voluntarily
waived his right to counsel because of his mental health issues. Third, the trial judge should
have conducted an adversarial hearing with independent counsel to ensure that Appellant was
competent to waive counsel and represent himself despite his mental heath issues. And
fourth, Appellant did not voluntarily waive his right to counsel because his waiver was
equivocal. After addressing the relevant facts, we will discuss each of these points of error
on the merits.
Relevant Facts
46
Faretta v. California, 422 U.S. 806, 818-20 (1975).
47
See, e.g., Moore v. State, 999 S.W.2d 385, 396 (Tex. Crim. App. 1999) (citing Faretta, 422
U.S. at 818-20).
CALVERT—31
Haas was appointed to represent Appellant in November 2012. About two months
later, he filed a motion to withdraw. At the hearing on this motion, Haas described
Appellant’s interest in pursuing an insanity defense and their strategic disagreement over
whether to file a motion for change of venue. Haas informed the court that, based solely on
that disagreement, Appellant told him, “[W]e’re not able to communicate. I want you to
withdraw.” Appellant told the judge, “I just feel he’s going to sell me out, and he’s already
decided on what my fate is going to be.” Appellant added that he felt “so strongly against
this that I’d rather represent myself pro se than continue on with Mr. Haas.”
The judge stated that he had “heard nothing in this hearing . . . to cause the Court to
discharge Mr. Haas as [Appellant’s] lead attorney.” The trial judge denied the motion to
withdraw. Appellant stated that he would represent himself pro se if the judge did not
appoint a different attorney. The judge advised Appellant that representing himself in a
capital murder case “would be the absolute worst-case scenario looking at what you can be
facing.” After the hearing, Haas remained as lead counsel.
A year later, Haas advised the judge that Appellant wished to proceed pro se. At a
hearing, Appellant confirmed this. The judge explained to Appellant that he would appoint
a mental health expert to conduct an examination and determine whether Appellant had the
ability to knowingly, intelligently, and competently waive his right to counsel. Appellant
repeatedly objected to the appointment of a mental health expert, arguing, “[T]here’s been
no submission of any inquiry or anything to raise an inquiry of competency,” and, “There’s
CALVERT—32
nothing in the Code of Criminal Procedure that provides any power to the Court . . . to assign
me to have a competency hearing[.]”
The trial judge acknowledged that no statute mandated a competency evaluation, and
that there was “no evidence in this case whatsoever . . . that you are not competent to stand
trial.” However, it was “of great concern to the Court at every step that the Court takes every
precaution it can . . . before the Court approves the waiver.”
The trial judge appointed Dr. Mitchell Dunn to evaluate Appellant’s competency to
waive his right to counsel. Dr. Dunn reviewed Appellant’s mental health records, including:
a 1999 psychological examination; psychiatric treatment beginning in 2009; and an
admission to a psychiatric unit in 2011. He reported that Appellant had been diagnosed with,
and prescribed psychotropic medications and ongoing therapy for, several “disorders.”
Specifically, Appellant had been diagnosed with obsessive-compulsive disorder; “Major
Depressive Disorder, Recurrent, in Partial Remission”; and “Personality Disorder Not
Otherwise Specified, with Antisocial and Obsessive-Compulsive Features.”
Additionally, Dr. Dunn interviewed Appellant for two hours and forty-five minutes.
He opined “to a reasonable degree of psychiatric certainty that [Appellant] is competent to
waive his right to counsel and to represent himself in a case where he’s indicted for capital
murder and the State is seeking the death penalty.” After discussing with Appellant the
advantages and disadvantages of self-representation, Dr. Dunn concluded that Appellant was
“capable of knowingly and intelligently waiving the traditional benefits associated with a
CALVERT—33
right to counsel” and Appellant could “describe in a reasoned manner the potential benefits
for him in pursuing such a course as well as the potential risks.” Dr. Dunn reported that
Appellant stated that he wanted to represent himself to “have more flexibility of doing what
[he wants] to do.” Appellant had acknowledged that he “wants to control the situation, [and]
is frustrated when he can’t [control it].”
During a pretrial hearing regarding Appellant’s request to proceed pro se, both
Appellant and defense counsel agreed with this assessment. The judge asked Appellant if
he still wanted to represent himself. Appellant responded that he did not “wish to necessarily
represent [himself] as a matter of free choice.” He expressed his dissatisfaction with defense
counsel’s performance—specifically, counsel’s failure to investigate, obtain materials that
Appellant had requested, and take other actions.48 He stated that he wanted effective counsel
but did not feel he had effective counsel. He asserted that, because the trial judge had denied
his motion to substitute counsel, his “only recourse” was to represent himself.
The judge reiterated that he had no indication that defense counsel had been
ineffective or that there were valid grounds for counsel’s withdrawal. The judge stated that,
if he allowed Appellant to represent himself, he would appoint defense counsel as standby
counsel. When Appellant asked the judge to direct him to case law describing the
48
More specifically, Appellant complained that counsel did not: request a reduced bail;
provide him the grand jury transcript, and in fact denied its existence; “perform[] process” on the
defense’s investigator and mitigation expert; talk with Appellant’s family law attorneys; obtain
certified copies of the family court proceedings; and contact the State about discovery materials that
Appellant believed should have already been provided.
CALVERT—34
responsibilities of standby counsel, the judge admonished him that he would have to do his
own legal research if he represented himself.
The trial judge asked Appellant and counsel whether, in light of counsel’s response
to Appellant’s specific complaints, “an effort could be made to see if any of these matters
could be resolved” so that Appellant could pursue “some other course” besides representing
himself. But Appellant maintained that he did not want to work with defense counsel and
that he “would even have to object that he be appointed as standby counsel when we get to
that point, if we do.” He contended that counsel would be biased and “not zealous” in
assisting him.
The judge reviewed the indictment and elicited Appellant’s acknowledgment that he
understood the charges against him. The judge explained that the State had the burden of
proof and that the trial would proceed to a sentencing phase if Appellant were found guilty.
In response to the judge’s admonishments and questioning, Appellant showed his
understanding and familiarity with the sentencing process (including the special issues);
pretrial motions (including grounds for suppression); the jury selection process (including
challenges for cause and peremptory strikes and the disadvantages he would face during the
process); the definition of mitigating evidence; the types of experts that could testify at the
sentencing phase regarding future dangerousness and mitigation; the direct appeal process;
the writ process (including waiving any claim of ineffective assistance of counsel by
representing himself); his responsibility for drafting jury charges and objecting to the State’s
CALVERT—35
proposed charge; and the high degree of “trial ability,” qualifications, and experience
generally required by counties for an attorney to defend a capital case; and the process of
laying a proper predicate for a witness.
Appellant affirmed that he had represented himself in a child custody dispute and that
he had graduated from Texas A&M University with a degree in computer science. He agreed
with Dr. Dunn’s statements that he was aware of the benefits and risks associated with pro
se representation and that he was “capable of knowingly and intelligently waiving the
traditional benefits associated with the right to counsel.”
The judge reviewed the process of cross-examining expert witnesses, advising
Appellant that defense counsel knew how to do it. The judge repeatedly emphasized that
Appellant would have to make proper objections in order to keep out inadmissible testimony
and that the judge would hold Appellant to the same rules of evidence as he would hold an
attorney. The judge admonished him that, if he did not properly object to testimony, he
would waive the objections.
The judge noted that Appellant would be personally responsible for finding experts
and other witnesses and having them available to testify. He asked Appellant how, being
incarcerated, he would locate and contact the witnesses he needed. Appellant responded that
he had “people on the outside that can help me,” and that he could write letters and make
“limited telephone calls” from jail. The judge emphasized the disadvantages that Appellant
CALVERT—36
would face as an incarcerated pro se defendant, as opposed to defense counsel who could “do
all that.” Appellant reiterated that he understood.
Additionally, the judge stressed his view that Appellant was “making a tremendous
mistake” by invoking his right to self-representation when he had “almost no experience in
the questioning of these type witnesses or cross-examination of witnesses called by the State
or understanding how to object to evidence.” Appellant stated that he understood “the
Court’s opinion.”
The judge then asked Appellant if he was requesting self-representation “competently,
voluntarily, knowingly, and intelligently.” Appellant affirmed that he was. The judge asked
him if he was making the request “for waiver of counsel clearly, unconditionally, and
unequivocally.” Appellant responded, “I have a problem with that last part. I want to
represent myself, and I do not want counsel. Per our conversation that we’ve had previously,
the ‘and do not want counsel’ is not exactly true. I’d ask that that be removed.” The judge
stated that Appellant did not have a right to court-appointed counsel of choice and that he
could not allow Appellant to represent himself unless his waiver was free and unconditional.
After conferring with defense counsel, Appellant stated that he did not know if he
“agreed with that,” but he “guess[ed] it was okay.” He added that the written waiver
language was “oversimplified” because he wanted to represent himself and he did not want
the counsel that he had. The judge repeated that Appellant’s qualified statement was not a
valid waiver.
CALVERT—37
After additional consultation, defense counsel clarified to the judge that Appellant had
been qualifying his statement because he wanted to make sure that executing the waiver of
his right to counsel would not waive his prior objections to counsel. Appellant affirmed that
this was his concern. The judge confirmed that Appellant’s objections were on the record
and that Appellant’s waiver of counsel would not waive any ruling that was on the record.
He reiterated that he could not consider a waiver of counsel unless it was “unconditional and
unequivocal.” Defense counsel expressed the view that the trial judge’s assurances
concerning its prior rulings had resolved the matter, and Appellant concurred. When the trial
judge again asked Appellant if he voluntarily abandoned his right to counsel, Appellant
agreed, without qualification, that he did. The judge again reviewed the hazards of self-
representation and advised Appellant that he was making a mistake, but Appellant persisted
in his desire to represent himself.
Appellant then executed a written waiver of counsel.49 The trial judge approved the
waiver and appointed defense counsel as standby counsel. The judge informed Appellant
that standby counsel would be ready to take over if Appellant changed his mind about
wanting to represent himself. The judge also warned Appellant that if he made “a mess of
the case trying to represent yourself” or did “damage to the case,” and counsel “step[ped]
49
See TEX . CODE CRIM . PROC. art. 1.051(f) (“A defendant may voluntarily and intelligently
waive in writing the right to counsel. . . .”).
CALVERT—38
back in,” counsel would have to “work with what they’ve got left.”50 Appellant stated that
he understood. Based on Dr. Dunn’s report, the judge’s own communications with
Appellant, and defense counsel’s representations, the trial judge concluded that Appellant
was competent to waive his right to counsel and represent himself and that he knowingly,
intelligently, and voluntarily chose to do so. Trial on the merits was scheduled to begin
eighteen months later.
The day before trial, Appellant filed “Defendant Pro Se’s Motion to Allow the
Defendant to Revoke His Waiver of Counsel Contingent Upon That Re-Appointment of
Counsel Would Neither be Jeffrey Haas Nor Jason Cassel (Both Being Current Appointed
‘Standby’ Counsel) Under Art. 1.051(h).” In this motion, he asserted that the “Court is fully
aware of all continued complaints against ‘now standby counsel’ in open and other settings,
pleadings, etc. . . . Defendant does not have the time to re-list them all and simply moves the
Court to take judicial notice of the record.” He concluded that, if the judge would not
appoint new counsel, then he wanted to remain pro se (which he described as “the lesser of
two evil[s]”).
Appellant also filed “Defendant[’s] pro se Objections to Court’s Lack of
Admonishments Concerning Restrictions that are Placed on Defendant Upon Entering of a
Waiver of Counsel.” He asserted that the trial judge had not admonished him concerning
50
See TEX . CODE CRIM . PROC. art. 1.051(h) (“A defendant may withdraw a waiver of the
right to counsel at any time but is not entitled to repeat a proceeding previously held or waived solely
on the grounds of the subsequent appointment or retention of counsel. . . .”).
CALVERT—39
“[t]he problems with ineffective ‘standby’ counsel, essentially working for the Court and
supporting the State, as well as a highly biased court, and an extremely unethical District
Attorney’s Office.” He complained that he had been forced to dedicate time and resources
to filing motions and objecting to alleged prosecutorial misconduct and that the judge had
not admonished him that he would have to do so. He also complained that the judge had not
admonished him that he would not have specific “rights” in jail, many of which concerned
his subjective expectations of privacy and his ability to contact witnesses and review
discovery. He further averred that he was “ill-prepared” for trial.
About a week later, after the trial had begun, the trial judge heard these pleadings and
denied them.51 Appellant re-asserted his motion for the appointment of new counsel, along
with “all my motions that I filed since the 24th,” at a September 8, 2015 hearing. The judge
repeated his denial.52
51
At first, the trial judge stated that these motions and objections, filed the day before the trial
on the merits was scheduled to begin, were untimely and therefore he would not rule on them.
52
On September 24, 2015, defense counsel moved for an informal inquiry into Appellant’s
competency to stand trial. The jury trial was on hold because, after revoking Appellant’s pro se
status, the judge gave counsel twelve days, from September 16th to 28th, to prepare for trial. The
trial judge held a hearing on this motion on September 30th—two days after the jury trial resumed.
Although that hearing did not address Appellant’s competency to waive counsel and represent
himself, we will summarize it because it is relevant to claims five through seven. Defense counsel
pointed to a number of poor decisions that Appellant had made while representing himself as
evidence that he did not have a rational understanding of the proceedings. The prosecutor responded
that Appellant’s poor decisions were not evidence that he lacked a rational understanding but instead
were a consequence of his lack of legal training. The defense submitted an affidavit from attorney
Kenneth Murray questioning Appellant’s competence. The prosecutor observed that Murray had
tried to negotiate a plea offer for Appellant, which indicated that Murray had believed at one time
(continued...)
CALVERT—40
Applicable Law
The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to have the Assistance of Counsel for his defense.”53 That right
includes the well-established reciprocal right to self-representation.54 But in order to proceed
pro se, a defendant must knowingly and voluntarily waive his right to counsel.55 The
competency standard for waiving counsel is no higher than the standard for competency to
stand trial.56 To knowingly and voluntarily waive the right to counsel, a defendant need not
have the skill and experience of a lawyer.57 But the defendant must “be made aware of the
52
(...continued)
that Appellant had a rational understanding of the proceedings against him and was competent to
enter a plea. The prosecutor called Drs. Michael Arambula and Edward Gripon. Arambula opined
that Appellant had a sufficient present ability to consult with his attorneys and a rational as well as
factual understanding of the proceedings. Arambula had watched Appellant during the trial and
observed that his mistakes while representing himself were not caused by mental illness but instead
resulted from a lack of legal training. Appellant’s inappropriate behaviors were due to his
personality problems. Arambula noted that Murray’s affidavit did not use the term “irrational” in
the way that a medical expert would. Arambula did not observe any conduct at trial consistent with
irrational thinking due to mental illness. He also observed that Appellant effectively consulted with
standby counsel when he wanted their help. Gripon agreed with Arambula. He added that Murray’s
statement—that Appellant’s mental and emotional deficiencies negatively affected his
perceptions—did not allege facts indicating incompetence. The judge concluded that Appellant was
competent to stand trial.
53
U.S. CONST . amend. VI; see also Williams v. State, 252 S.W.3d 353, 355 (Tex. Crim. App.
2008).
54
Williams, 252 S.W.3d at 356.
55
Chadwick v. State, 309 S.W.3d 558, 561 (Tex. Crim. App. 2010); Faretta, 422 U.S. at 835.
56
Chadwick, 309 S.W.3d at 560 (citing Godinez v. Moran, 509 U.S. 389, 399 (1993)).
57
Faretta, 422 U.S. at 835.
CALVERT—41
dangers and disadvantages of self-representation, so that the record will establish that ‘he
knows what he is doing and his choice is made with eyes open.’”58 Therefore, the focus is
not on whether the defendant is competent to represent himself at trial.59 Instead, the focus
is on whether he is competent to choose to represent himself.60
But, even where the defendant is competent to choose to represent himself, the right
to self-representation is not absolute. In Indiana v. Edwards, the Supreme Court
acknowledged another limitation on the right to self-representation.61 In that case, the
defendant sought to represent himself at trial.62 The trial court denied the request based on
his lengthy record of psychiatric reports and schizophrenia diagnosis.63 The Supreme Court
granted certiorari to consider whether the Constitution permits states to deny a defendant his
right to self-representation “on the ground that the defendant lacks the mental capacity to
conduct his trial defense unless represented.”64 The Court held that the Constitution permits
58
Id. (quoting Adams v. U.S. ex rel McCann, 317 U.S. 269 (1942)).
59
Dunn, 819 S.W.2d at 523.
60
Id.
61
Indiana v. Edwards, 554 U.S. 164 (2008).
62
Id. at 169.
63
Id.
64
Id. at 174.
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states to do so. The Court discussed Godinez v. Moran,65 where it had held that the
competency standard for pleading guilty or waiving the right to counsel is not higher than the
competency standard for standing trial. The Court distinguished Godinez from the instant
case in part because Godinez “involved a State that sought to permit a gray-area defendant
to represent himself,” but the case before it involved a State that “den[ied] a gray-area
defendant the right to represent himself.” 66
First Prong: Competency to Represent Himself
In point of error eight, Appellant asserts that the trial judge erred as a matter of law
by finding that, despite Appellant’s mental health issues, he was competent to represent
himself. In support of his argument, he points to his pre-trial conduct and Dr. Dunn’s
psychological-evaluation report. Appellant asserts that, in light of that evidence, the trial
judge erred under Edwards in permitting him to proceed pro se. But Appellant’s reliance on
Edwards is misplaced.
The case here does not raise an Edwards issue. The trial court here permitted
Appellant to proceed pro se (up until that right was revoked for other reasons); it did not deny
him the right to represent himself. The language in Edwards is permissive rather than
mandatory: Edwards does not require a trial court to restrict the defendant’s right if the
65
Godinez, 509 U.S. at 398-99.
66
Edwards, 554 U.S. at 173.
CALVERT—43
defendant is incompetent to represent himself—it merely permits the restriction.67 Therefore,
the issue is not whether Appellant was competent to represent himself. Instead, the issue is
whether he was competent to choose to represent himself. Point of error eight is overruled.
Second Prong: Competency to Choose to Represent Himself
In point of error five, Appellant argues that he was incompetent to knowingly and
voluntarily waive his right to counsel. In support of his argument, he again points to his pre-
trial conduct and Dr. Dunn’s psychological-evaluation report. Appellant alleges that Dr.
Dunn diagnosed him with a number of mental health problems and that he could not
knowingly and voluntarily waive his right to counsel because he had a record of “known
psychiatric issues.” He contends that he was denied a fair trial because he was allowed to
represent himself under these circumstances.
“To raise the issue of competency by means of the defendant’s past mental health
history, there generally must be evidence of recent severe mental illness or bizarre acts by
the defendant or of [intellectual disability].”68 In Dunn v. State (a case unrelated to Dr. Dunn
who examined Appellant), the defendant challenged on appeal his competency to waive his
67
See Fletcher v. State, 474 S.W.3d 389, 400 (Tex. App.—Houston [14th Dist.] 2015, pet.
ref’d) (“Edwards decided whether the trial court improperly compelled a defendant diagnosed with
severe mental illness to proceed with counsel. Appellant asks us to hold that Edwards means not
solely that a trial court may insist on representation for defendants who are incapable of conducting
trial proceedings due to severe mental illness, but also that a trial court must do so. We disagree that
Edwards so holds.”); United States v. Berry, 565 F.3d 385, 391 (7th Cir. 2009) (Under Edwards, the
“Constitution may have allowed the trial judge to block [the defendant’s] request to go [at] it alone,
but it certainly didn’t require it.”).
68
Moore, 999 S.W.2d at 395.
CALVERT—44
right to counsel.69 Prior to trial, a doctor psychologically evaluated the defendant. The
doctor’s report described the defendant’s antisocial personality disorder but also concluded
that the defendant was competent to stand trial. We held that the defendant “did not present
nor was there any evidence in the record from any source” that the defendant was
incompetent to exercise his right to self-representation.70
Like the record in Dunn, the record in this case contains no evidence that Appellant
was incompetent to exercise his right to self-representation. Dr. Dunn observed that
Appellant’s prior records included diagnoses of several “disorders.” But Dr. Dunn ultimately
concluded that Appellant was competent to waive his right to counsel. Further, when
discussing whether Appellant would proceed pro se, both Appellant and the trial judge
acknowledged that there was no evidence raising an issue of incompetency. There is no
evidence of recent “severe mental illness or bizarre acts by [Appellant] or of moderate
retardation.”71 The trial judge did not abuse his discretion in finding that Appellant was
competent to knowingly and intelligently waive his right to counsel based on Dr. Dunn’s
report.
Likewise, Appellant’s disruptive conduct and numerous and lengthy pretrial motions
provide no evidence that he was incompetent to waive counsel. Appellant avers that his
69
Dunn, 819 S.W.2d at 520.
70
Id. at 521–22.
71
Moore, 999 S.W.2d at 395.
CALVERT—45
inappropriate conduct was “fully consistent with” his obsessive-compulsive personality
disorder. He contends that, “long before trial ever started,” the trial judge should have found
him incompetent, terminated his right to represent himself, and reinstated defense counsel.
He states that, as soon as he was allowed to proceed pro se, he “quickly filed” over 100
motions, “many of which were virtually incomprehensible, obsessed with detail, and
repetitive.” He notes that he was rigid in his behaviors and unable to adapt to external rules.
He acknowledges that he behaved disrespectfully toward the judge and opposing counsel
when he became frustrated. Appellant points out that his conduct while representing himself
pre-trial was so bad that the prosecutors presented it during the punishment phase as evidence
of his future dangerousness. But Appellant’s disruptive conduct as a pro se defendant is not
necessarily evidence of incompetence.
For example, in Moore v. State, the defendant argued on appeal that his repeated
outbursts during trial were evidence of incompetence.72 To illustrate, when one of the lawyers
asked a witness about the defendant’s booking photo, the defendant blurted out: “Does Jesus
Christ have long hair and a beard? You’ve seen pictures of Him. What makes the difference
between Jesus Christ and Charles Manson?”73 We held that, while the outbursts “were
inappropriate violations of court decorum, they do not constitute evidence of his inability to
72
Moore, 999 S.W.2d at 394-95.
73
Id. at 394.
 CALVERT—46
communicate with counsel.”74 “If such actions were probative of incompetence, one could
effectively avoid criminal justice through immature behavior.” 75
Here, although some of Appellant’s motions are confusing and peculiar, most are
topical and logically related to the proceedings. They reflect that Appellant had familiarized
himself with many potentially relevant laws. He relied on his own understanding of the laws
he believed to be relevant, and he was extremely careful not to waive any potential errors.
Further, Appellant points to no case law, and we have found none, supporting his position
that disruptive behavior resulting from a personality disorder renders a defendant
incompetent to choose to represent himself. In fact, our cases suggest the contrary.76 The
trial judge did not abuse his discretion when he initially determined that Appellant was
competent to choose to represent himself, and at no point during the pretrial proceedings did
his conduct require the judge to revisit this determination.
Further, when a defendant exercises his right to self-representation at trial, an
appellate court’s analysis generally focuses on whether the defendant was aware of the
dangers and disadvantages of self-representation.77 Appellant does not challenge on appeal
the trial judge’s admonishments. And our review of the record shows that the
74
Id. at 395.
75
Id.
76
See, e.g., Moore, 999 S.W.2d at 395; Dunn, 819 S.W.2d at 521-22.
77
Johnson v. State, 760 S.W.2d 277, 278 (Tex. Crim. App. 1988).
CALVERT—47
admonishments were sufficient. The judge thoroughly reviewed the trial process with
Appellant, and Appellant repeatedly indicated that he understood it. Given the option to
proceed with unwanted counsel or to represent himself—and after being thoroughly and
repeatedly admonished as to the dangers and disadvantages of proceeding pro se—Appellant
persistently asserted his right to self-representation. There is “nothing unfair in putting an
accused to this choice, so long as the trial court is satisfied he is competent to make it, and
that he does so informedly and with eyes open.”78 Point of error five is overruled.
Third Prong: Lack of Adversarial Hearing and Independent Counsel – Competence
In point of error six, Appellant complains that the trial judge erred when he did not
conduct an adversarial hearing with independent counsel to ensure that Appellant was
competent to waive counsel and represent himself despite his documented mental health
problems. He complains that his hearing was “entirely non-adversarial,” and the result was
“disastrous.”
Appellant cites no authority for his assertion that the trial judge erred by failing to
conduct an adversarial proceeding with independent counsel. Therefore, this point of error
is inadequately briefed.79 In any event, after making a preliminary inquiry, the trial judge
found no evidence that Appellant was incompetent to waive counsel. And, as discussed
78
See Burgess v. State, 816 S.W.2d 424, 429 (Tex. Crim. App. 1991).
79
See TEX . R. APP . P. 38.1(i) (“The brief must contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record.”).
CALVERT—48
above, Appellant need not be competent to represent himself, only to choose to represent
himself.80 The judge’s determination is supported by the record, which contains no evidence
of severe mental illness and includes Dr. Dunn’s report concluding that Appellant was
competent to stand trial. The trial judge is “best able” to make that determination.81 Point
of error six is overruled.
Fourth Prong: Waiver of Counsel – Voluntariness
In point of error seven, Appellant asserts that the trial judge erred in finding a
voluntary waiver of counsel because the judge did not adequately address his complaints
about court-appointed counsel or consider alternatives to pro se representation. Appellant
contends that he made it clear he did not want to waive counsel, and therefore the trial judge
should not have found a waiver. He avers that his qualified waiver of the right to counsel
was not intelligent, free, and voluntary, and that the trial judge committed structural error by
allowing him to proceed pro se. He argues that such error is not subject to a harm analysis,
and therefore, he is entitled to a new trial.
A defendant is not entitled to appointed counsel of his choice.82 A defendant who is
displeased with appointed counsel must either show adequate cause for a change of
appointed counsel, accept the assigned attorney, or effectively waive the right to counsel and
80
See Dunn, 819 S.W.2d at 523
81
See Edwards, 554 U.S. at 177.
82
See Dunn, 819 S.W.2d at 520.
CALVERT—49
represent himself.83 Here, as discussed above, Appellant never showed adequate cause for
a change of counsel. Thus, when Appellant did not want to accept appointed counsel, his
remaining option was to waive the right to counsel and represent himself. Contrary to
Appellant’s assertion, the trial judge’s refusal to appoint new counsel did not render his
waiver involuntary. The trial judge thoroughly admonished Appellant of the hazards of
self-representation. The judge refused to accept Appellant’s waiver unless it was
“unconditional and unequivocal.” Appellant ultimately agreed that his waiver was without
qualification. Likewise, Appellant’s motion to revoke his pro se status did not render his
waiver involuntary. “A defendant may not use his right to counsel to manipulate the court
or to delay his trial.”84 Appellant began representing himself in February 2014. He filed his
contingent motion to revoke his pro se status the day before trial in August 2015. Yet long
before August 2015 Appellant knew the factual bases that he asserted in support of his need
for counsel—specifically, the lack of privacy in jail and his difficulties in addressing alleged
misconduct, reviewing discovery, and contacting witnesses.
Appellant knowingly and voluntarily waived his right to counsel; his waiver was
unequivocal. Point of error seven is overruled.
COMMENTS ON PRO SE STATUS
83
Thomas v. State, 550 S.W.2d 64, 68 (Tex. Crim. App. 1977); Cain v. State, 976 S.W.2d
228, 235 (Tex. App.—San Antonio 1998, no pet.).
84
See Culverhouse v. State, 755 S.W.2d 856, 861 (Tex. Crim. App. 1988).
CALVERT—50
In points of error nine and nineteen, Appellant complains that both the State and the
trial judge made inappropriate comments regarding his pro se performance and undermined
his efforts to represent himself. This, he asserts, violated his right to proceed pro se under
the Sixth Amendment as well as his fundamental right to a fair trial under the Fifth
Amendment.
Appellant raises six challenges: (1) the prosecutor disparaged Appellant’s conduct as
a pro se litigant and took advantage of his pro se status; (2) the trial judge made negative
expressions before the jury concerning Appellant’s pro se performance; (3) the trial judge
routinely and erroneously overruled Appellant’s objections; (4) the State “used” Appellant’s
frustrated reactions to these erroneous rulings as evidence against him; (5) sheriff’s deputies
had inappropriate and prejudicial interactions with Appellant in the jury’s presence; and (6)
the cumulative effect of the errors resulted in a deprivation of his right to counsel including
the right to proceed pro se. We will address each of these complaints in turn.
(1) Disparaging Appellant’s Pro Se Status
Appellant complains of five specific instances in which, he asserts, the prosecutor
disparaged his conduct as a pro se litigant. Appellant made no objections to the first three.85
85
The first three complained-of instances are the prosecutor’s statements that: Appellant
“makes these ridiculous-looking faces”; Appellant “doesn’t care what the Court says or what the
rules are”; and, “In [Appellant’s] zero years of trying cases in the courtroom – and I’m just trying
to say – we object to his incessant objection.”
CALVERT—51
Therefore, he forfeited error as to those.86 Regarding the two instances as to which he
preserved error, Appellant alleges the following:
(a) The prosecutor engaged in a running, derogatory commentary when she
questioned Detective Shine about Appellant’s attitude during his videotaped
interview with Shine and another investigator; and
(b) The prosecutor presented, at the punishment phase, evidence of a pretrial
incident in which Appellant had been accused of stealing exhibits, and then
published an audiovisual recording of Appellant’s bad behavior during the
officers’ search for those exhibits.
We address each of these in turn.
(a) Running, Derogatory Commentary
At trial, the prosecutor played the audiovisual recording of Appellant’s interview
following his arrest. The prosecutor then elicited Shine’s opinion testimony concerning
Appellant’s attitude during the interview—leading with, at times, the prosecutor’s own
commentary or Shine’s previous statements. Shine agreed with the prosecutor that Appellant
treated the interview as a “big game,” was sometimes sarcastic and mocking, was callous,
was a smart-aleck and had a “cold-blooded heart.” At one point during Shine’s testimony,
the prosecutor stated: “[Jelena’s] laying in a refrigerator unit at [the medical examiner’s
86
See TEX . R. APP . P. 33.1(a); see Coble v. State, 330 S.W.3d 253, 282 (Tex. Crim. App.
2010).
CALVERT—52
office] in Dallas . . . and [Appellant’s] talking to you about ripping the grate down to prove
what a bad system—.” 87
Appellant complains here that his objections to those statements were improperly
overruled.88 Appellant’s trial objections that comport with his claims on appeal were based
on Rules 403, 404(b), and 701. His objections to “inappropriate comment by the
prosecution” and “misrepresentation of the evidence” also comport with his claims on
appeal.89 Therefore, we will consider the statements in regards to those objections.
Under Rule 701 of the Texas Rules of Evidence, a lay witness can testify in the form
of an opinion if the opinion is (a) rationally based on the witness’s perceptions, and (b)
helpful to the clear understanding of the testimony or the determination of a fact in issue.
Even if a lay opinion meets both requirements under Rule 701, a trial court has discretion
under Rule 403 of the Texas Rules of Evidence to exclude the testimony if its probative value
87
Deputies carried Appellant into the interview room, with his arms and legs secured to a
restraint chair. Appellant and investigators discussed that he was secured in that manner because
he had removed a metal grate from his jail cell wall, and then he brandished it at a deputy who
attempted to enter his cell. Appellant told investigators that he pulled the grate off the wall because
he “was showing it was a weakness in their security system. . . . Their security system sucks.”
88
Appellant also complains that the prosecutor elicited Shine’s testimony that, during the
interview, Appellant indicated that treating his bruised leg was more important than talking about
Jelena’s death. Appellant also complains about Shine’s testimony that, at the time of the interview,
Shine believed Appellant had killed Jelena. Appellant did not object at trial to this testimony. See
TEX . R. APP . P. 33.1; see also Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014) (“For
a party to preserve a complaint for appellate review, the complaining party must make a specific
objection and obtain a ruling on the objection.”).
89
See TEX . R. EVID . 403, 404(b), and 701.
CALVERT—53
is substantially outweighed by a danger of unfair prejudice or misleads the jury. “The
probative force of evidence refers to how strongly it serves to make the existence of a fact
of consequence more or less probable.”90 Relevant evidence is presumed to be more
probative than prejudicial.91 Evidence is unfairly prejudicial if it has the capacity to lure the
fact-finder into declaring guilt on a ground other than proof specific to the offense charged.92
Further, the judge has substantial discretion in balancing probative value and unfair
prejudice.93 We will uphold the judge’s ruling as long as it is within the zone of reasonable
disagreement.94
First, Shine’s testimony was admissible. Here, the jury saw the recording of the
interview before hearing Shine’s commentary about it. Appellant sat with his back to the
camera during most of the interview. Shine, who spoke with Appellant face-to-face,
personally viewed his facial expressions and demeanor during the interview. Therefore,
Shine’s Rule 701 opinion testimony was probative of Appellant’s attitude during the
interview; it was rationally based on Shine’s perception and helpful to clearly determining
90
Gonzalez v. State, 544 S.W.3d 363, 372 (Tex. Crim. App. 2018).
91
Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997).
92
Manning v. State, 114 S.W.3d 922, 928 (Tex. Crim. App. 2003).
93
Powell v. State, 189 S.W.3d 285, 288 (Tex. Crim. App. 2006).
94
Manning, 114 S.W.3d at 343-44.
CALVERT—54
a fact in issue.95 And the evidence was not unfairly prejudicial given that the interview itself
was in front of the jury; the jury itself was able to observe Appellant’s inflections and
demeanor. Thus, the trial judge acted within his discretion when he concluded that this Rule
701 testimony was admissible under Rule 403.96
Second, the prosecutor’s comment about Jelena “laying [sic] in a refrigerator unit”
was a reasonable inference from the evidence. The prosecutor made this statement just after
Shine testified that Jelena’s body was in the medical examiner’s cooler while Shine was
questioning Appellant in Louisiana. Further, the evidence established that Jelena’s body had
been transported to the medical examiner’s office and placed in a cooler not long after 4:43
p.m. on October 31, 2012, and it was removed for examination at 7:00 a.m. on November 1.
Appellant removed the grate from his jail cell wall some time after his arrest around
11:00 p.m. on October 31st, but prior to discussing his removal of the grate with investigators
when the interview began around 3:00 a.m. on November 1st. Appellant talked about
removing the grate at the beginning of this interview, while he was still secured in the
95
See, e.g., Garcia v. State, 126 S.W.3d 921, 925 (Tex. Crim. App. 2004) (concluding that
officers’ testimony describing the appellant as “cocky,” “very calm, very matter-of-fact,” “very
nonchalant, very laid back and calm,” and at times “arrogan[t],” was evidence of his lack of
conscience or remorse); Motilla v. State, 78 S.W.3d 352, 359 (Tex. Crim. App. 2002) (stating that
an appellant’s reluctance to answer questions in his recorded statement to investigators demonstrated
a lack of remorse, and the jury could have regarded his attitude of defiance and apathy as evidence
of his intent to kill).
96
We also note that similar testimony had already been admitted without a Rule 701
objection. See Coble, 330 S.W.3d at 282 (stating that erroneously admitted evidence will not result
in reversal when the same evidence was received elsewhere without objection).
CALVERT—55
restraint chair. The trial judge did not abuse his discretion by overruling Appellant’s
objection to “misrepresentation of the evidence.”
To the extent that Appellant objected to the rest of the prosecutor’s comments during
examination, we need not determine whether the judge erred by overruling these objections
because the prosecutor’s comments were harmless. As an initial matter, they were not
evidence; the prosecutor’s parroting of Shine’s own words while framing questions, for
instance, was gratuitous but innocuous.97 And the jury was instructed that the lawyers’
statements were not evidence.98 Further, jurors had viewed the recording of the interview
and could judge for themselves whether the prosecutor’s and Shine’s characterizations were
97
See, e.g., Madden v. State, 242 S.W.3d 504, 515 (Tex. Crim. App. 2007) (“[Q]uestions on
cross-examination cannot, by themselves, raise a disputed fact issue.”).
98
Specifically, the jury charge stated:
Remember that any statements, objections, or arguments made by the lawyers are not
evidence. The function of the lawyers is to point out those things that are most
significant or most helpful to their side of the case, and in so doing to call your
attention to certain facts or inferences that might otherwise escape your notice. In the
final analysis, however, it is your own recollection and interpretation of the evidence
that controls the case. What the lawyers say is not binding upon you.
CALVERT—56
accurate.99 We have fair assurance that error, if any, did not affect the result because the
evidence of Appellant’s guilt was overwhelming.100
(b) Evidence Involving Stolen Exhibits
We next turn to Appellant’s complaint about the prosecutor putting on evidence that
he stole exhibits from the courtroom. Following a pretrial hearing, the court coordinator
raised the subject of the missing exhibits. Appellant acknowledged that, a day before the
hearing, he had received a request to look for those exhibits. He told the judge that he did
not have them but said he would look again. He asked the judge to give him until the
following Tuesday to produce them because his papers were in disarray. He stated that it
would be hard for him to find them, but he was “sure they’ll turn up if I have them; if not,
then it’s not my responsibility.”
Pointing out that Appellant often shredded papers in his cell, the prosecutor requested
that the trial judge order the sheriff’s office to search the cell before Appellant “shred[ded]
[the exhibits].” Accordingly, the judge ordered the sheriff to take action that same day.
99
Cf. Fairow v. State, 943 S.W.2d 895, 899 (Tex. Crim. App. 1997) (“[W]hile a witness
cannot possess personal knowledge of another’s mental state, he may possess personal knowledge
of facts from which an opinion regarding mental state may be drawn. The jury is then free to give
as much or as little weight to the opinion as it sees fit.”); see, e.g, Jackson v. State, 822 S.W.2d 18,
30 (Tex. Crim. App. 1990) (stating that an officer who witnessed a defendant giving a statement to
another officer could testify to his opinion that the defendant gave the statement voluntarily because
such testimony was a “mere shorthand rendering of the facts” demonstrating the defendant’s mental
attitude or emotional state).
100
Motilla, 78 S.W.3d at 357 (“‘[T]he presence of overwhelming evidence supporting the
finding in question can be a factor in the evaluation of harmless error.’”) (quoting Wesbrook v. State,
29 S.W.3d 103, 119 (Tex. Crim. App. 2000)).
CALVERT—57
Specifically, the sheriff’s deputies would give Appellant another opportunity to search his
cell for the exhibits, but if he still did not produce them, then the deputies would search for
them.
The recording of the deputies’ search for these exhibits captured Appellant’s
uncooperative conduct and refusal to search for the exhibits.101 The deputies carried
Appellant’s papers to a room with tables and chairs. Appellant was present throughout the
search. He repeatedly refused the deputies’ offers to let him go through his paperwork
himself, even as he complained that they were violating his rights by looking at his work
product, getting his materials out of order, and wrinkling his papers.102
Lieutenant John Shoemaker located the missing exhibits on top and inside of a book
that had been placed inside an envelope. When Shoemaker informed Appellant that they
were taking the envelope, Appellant asserted that they had no authority to do that and could
not take his personal property. While the deputies were carrying Appellant’s papers back to
his cell, he displayed further disruptive conduct.103
101
Appellant argued and wrestled with deputies, saying, “I can’t allow you to take my work
product.” He accused them of conducting an illegal search and told them that they were “essentially
letting me free now” because an appellate court would conclude that the search was illegal.
102
He also repeatedly accused Deputy Sheffield of “resequencing [his] paperwork” and
commented, “I understand it’s after your bed time.”
103
Specifically, Appellant demanded, “I want all that back in my cell the way you got it.”
Although he had not looked through his papers, he complained that items were missing. As deputies
unloaded his papers into his cell, he complained that someone had gone through his clothes while
he was gone. He was upset that deputies were placing his papers on the floor (even though they had
(continued...)
CALVERT—58
At a pretrial hearing four days later, the court reporter identified the recovered
exhibits. The trial judge denied Appellant’s motion to suppress them as the fruits of an
illegal search. Over Appellant’s objection, the trial judge admitted the audiovisual recording
of the search.
The trial judge noted the orderly way in which these exhibits had been placed inside
the book and envelope, with the lists on top of the book and the photos between the pages.
The judge observed that this placement showed that the person who handled them was “very
aware that these were exhibits.” He stated that Appellant would have known that these
materials were exhibits when he took them; he refused opportunities to search for them; and
the deputies who searched for them properly followed the judge’s order. The judge
concluded, “[T]he Court finds [Appellant] knowingly took these photographs and these two
documents, put them in the brown envelope, and took them back to [his] cell.” The judge
held Appellant in contempt for his “deliberate actions in secreting these exhibits.” The judge
imposed the maximum sentence of six months and warned Appellant that he was very close
to rescinding his pro se status.
Appellant now avers that, if he had been treated like an attorney and given a chance
to look for the missing exhibits, this incident would not have occurred and he would not have
displayed poor conduct. However, the record reflects that Appellant refused at least two
103
(...continued)
been on the floor before the search began), and he accused them of stepping on the papers and
wadding them up. He stated that he would tell the judge what they had done to his paperwork.
CALVERT—59
opportunities to look for the exhibits. To the extent that Appellant complains that the judge
should have given him more time to search, the record shows that he did not make use of the
time he had, and that the trial judge reasonably ordered a search that provided Appellant with
an opportunity to produce the exhibits while minimizing his opportunity to destroy them.
Further, Appellant’s disruptive and disrespectful conduct during the search was relevant
punishment-phase evidence demonstrating that he could not or would not control himself
even when he knew that his conduct was being recorded.104 We reject Appellant’s complaint
about the prosecutor’s use of this evidence during the punishment phase.
(2) The Judge’s Negative Comments on Appellant’s Pro Se Performance
Appellant argues that, before the jury, the trial judge expressed his unfavorable views
of Appellant’s pro se performance.105 A criminal defendant has a due process right to
proceed before an impartial court.106 But a court’s efforts at courtroom administration are
not a valid basis for finding judicial bias, even if they include “expressions of impatience,
104
See TEX . CODE CRIM . PROC. art. 37.071, § 2(a)(1).
105
The record shows that Appellant did not object to any of the judge’s statements that he
now complains about. However, when a judge comments improperly on the weight of the evidence
or conveys to the jury his opinion of the case, this error is not forfeited on appeal by a party’s
inaction at trial. See Proenza v. State, 541 S.W.3d 786, 798-99 (Tex. Crim. App. 2017).
106
See Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006) (“Due process requires
a neutral and detached hearing body or officer.”); see also Tumey v. Ohio, 273 U.S. 510, 523, 535
(1927).
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dissatisfaction, annoyance, and even anger.”107 Further, “opinions formed by the judge on
the basis of facts introduced or events occurring in the course of the current proceedings, or
of prior proceedings, do not constitute a basis for a bias or partiality motion unless they
display a deep-seated favoritism or antagonism that would make fair judgment
impossible.” 108
To constitute reversible error, a trial judge’s comment must be reasonably calculated
to benefit the State or prejudice the defendant’s rights.109 We will reverse the judgment and
remand the case for a new trial “when the court has misdirected the jury about the law or has
committed some other material error likely to injure the defendant’s rights.” 110
Appellant complains about the trial judge’s statement: “I don’t want to use the word
‘waste,’ but I don’t want to take up any more of the jury’s time on this.” He asserts that this
comment expressed the trial judge’s opinion on Appellant’s cross-examination of L.C.’s
therapist, Judith Lester.
The record shows that, after Appellant’s cross-examination of Lester, the parties and
the judge began discussing, in the jury’s presence, whether Lester would be finally excused
107
Liteky v. United States, 510 U.S. 540, 555-56 (1994).
108
Id. at 555.
109
Becknell v. State, 720 S.W.2d 526, 531 (Tex. Crim. App. 1986).
110
TEX . R. APP . P. 21.3(a)(b).
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or subject to recall. Lester explained that she had rearranged her clinical practice schedule
in order to travel from Ohio to testify. The trial judge then stated:
Okay. All right. Well, you’re here now. Let me take it -- I don’t want to use the
word “waste,” but I don't want to take up any more of the jury’s time on this,
because I’ll take it up outside their presence without them sitting here listening
to it, since it's a matter between the Court and defendant and State.
This record does not support Appellant’s position that the judge’s comment conveyed
displeasure with his performance as a pro se defendant. In context, it is apparent that the
judge used the term “waste” in reference to taking up the jury’s time with the discussion of
Lester’s schedule. The judge made the comment in the course of managing trial logistics and
scheduling. The comment did not bear on the presumption of innocence or vitiate the
impartiality of the jury.111
Appellant next contends that, as the judge excused the jury, the judge implied that
Appellant was responsible for the slow pace of the trial. Specifically, the judge advised the
jury that he had hearings the following morning (“a succession of hearings in the morning,
or what you might call -- it wouldn’t surprise you -- a lengthy hearing in the morning”) with
multiple witnesses. Because those hearings were on the Friday before Labor Day, the judge
told the jury to return the following Tuesday. The judge then stated:
111
See id.; see also, e.g., Sensley v. Albritton, 385 F.3d 591, 599 (5th Cir. 2004) (noting that
an appellate court reviewing a decision under 28 U.S.C. § 455(a), which requires the disqualification
of a federal judge “in any proceeding in which his impartiality might reasonably be questioned,”
must inquire into how all of the facts “would appear to a ‘well-informed, thoughtful and objective
observer, rather than the hypersensitive, cynical, and suspicious person’”) (quoting United States v.
Jordan, 49 F.3d 152, 156 (5th Cir. 1995)).
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That way I don’t run the chance just wasting your time sitting in the jury room
because we have multiple witnesses to hear in the morning outside your
presence. And basically what you’ve seen so far, you probably understand
why I’m anticipating it will take a while.
In context, the judge’s comment to the jury about “what you’ve seen so far” referred
to the jury having already spent time waiting in the jury room during hearings that took “a
while.” Further, the judge’s use of the word “waste,” in context, referred to the jurors
potentially wasting their time by waiting in the jury room while the judge held the hearings.
This record does not support Appellant’s characterization of the judge’s statement as an
unfavorable comment on his pro se representation.
(3) Overruling Appellant’s Objections
Appellant complains that the trial judge routinely overruled his objections, even when
they were well-founded. He first complains of an instance in which the prosecutor asked
Officer Cummings to describe how he had spent the day of the offense—that specific
Halloween—with his own daughter. Appellant avers that the trial judge overruled his
objection without giving him an opportunity to make a record of the ground, stating, “Listen
to me. Listen to me. Your objection to that question is overruled. That’s the Court’s
ruling.” Cummings then testified that he spent part of that Halloween evening with his
daughter, “the first Halloween my child was walking”; his ex-wife had brought her to the
police station for trick-or-treating. The prosecutor stated, “And after that, you apprehended
this defendant. It’s significant because you put your life on the line after being with your
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little girl.” Cummings agreed. The prosecutor added, “I guess you saw little [L.C.] . . . . That
kind of hits home with you when you have a little girl like you did.” Cummings answered,
“It does.”
This evidence was not relevant and therefore was inadmissible.112 But the error was
harmless. By the time the prosecutor questioned Cummings about Halloween, Appellant
himself had elicited Cummings’s emotional response to Appellant endangering L.C.113 The
error in admitting Cummings’s testimony about how he spent Halloween with his daughter
was harmless.114
Appellant next complains about an exchange in which the prosecutor asked Detective
Williams, “If you had to guess who that wallet belonged to, who would it be?” The record
shows that before the prosecutor asked this question, Williams identified the wallet as the
one that he had found on the floor of Appellant’s car, and he established the chain of custody.
The prosecutor then asked Williams, “[W]hose wallet was that?” Williams responded, “It
contains a Texas driver’s license belonging to [Appellant].” The prosecutor then offered the
112
TEX . R. EVID . 402 (“Irrelevant evidence is not admissible.”).
113
On cross-examination, Appellant asked Cummings, “You have pretty strong feelings about
this case, don’t you?” Cummings asked him what he meant. Appellant stated, “Well, you testified
to the way it affected you, the way you felt about the person you identified as [L.C.] and so forth,
correct?” Cummings replied, “I do feel strongly about how you endangered your child, yes.”
114
See, e.g., Gardner v. State, 306 S.W.3d 274, 293 (Tex. Crim. App. 2009) (“[A]ny possible
error in the admission of State’s Ex. 36 was harmless because appellant affirmatively stated ‘No
objection’ when a sample cut from that robe was introduced into evidence as a comparison sample
to the red fibers found in the white truck appellant had borrowed from his brother-in-law.”).
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wallet and its contents into evidence “for all purposes.” The trial judge admitted the wallet
over Appellant’s objections.
The prosecutor then asked Williams if anyone in the courtroom “fit the photograph”
on the driver’s license found in the wallet, and Williams pointed to Appellant. Williams
testified that the wallet also contained a Texas A&M alumni card with Appellant’s name, as
well as a voting card with Appellant’s name and address. The prosecutor then asked, “If you
had to guess who this wallet belonged to, who would it be?” Appellant objected based on
speculation, which the trial judge overruled. Williams testified, “I wouldn’t have to guess.
I know exactly who it belongs to.”
The prosecutor’s phrasing, “If you had to guess who this wallet belonged to,” may
have been somewhat flippant, but it did not invite speculation. “Speculation is the mere
theorizing or guessing about the possible meaning of the facts and evidence presented.” 115
The prosecutor was not asking Williams to theorize or guess about facts or evidence outside
his personal knowledge.116 Therefore, the trial judge did not err in overruling Appellant’s
objection. In addition, Appellant avers that, in three other instances, the trial judge
overruled his proper objections. He provides record cites without elaboration. He also refers
generally to “numerous other, similar examples” of the prosecutor taking unfair advantage
115
Gross v. State, 380 S.W.3d 181, 188 (Tex. Crim. App. 2012),
116
See Fairow, 943 S.W.2d at 902 (“Personal knowledge is required because testimony
without personal knowledge is pure speculation and conjecture.”).
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of his pro se status and the trial judge overruling his proper objections. We decline to make
Appellant’s arguments for him regarding the “numerous other examples” or to search the
record for additional instances of potential error.117
(4) Use of Appellant’s Courtroom Conduct as Evidence Against Him
Appellant also complains that the State improperly “used” his negative reactions to
the trial judge overruling his objections as punishment-phase evidence against him.
However, Appellant’s reactions during the proceedings could properly be considered as
punishment-phase evidence because they demonstrated his inability or unwillingness to
control his temper and conform his conduct to the rules of the court.118
(5) Deputies’ Interactions with Appellant
Appellant complains about the sheriff’s deputies’ interactions with him in the jury’s
presence. Specifically, Appellant asserts that, because he failed at times to “stand” or “sit”
promptly while trying to make objections, he was often physically pushed down by
117
See TEX . R. APP . P. 38.1(i) (“The brief must contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record.”); see also, e.g., Wyatt
v. State, 23 S.W.3d 18, 23 n.5 (Tex. Crim. App. 2000) (“[The] appellant points us to nothing in the
record, makes no argument, and cites no authority to support this proposition. We will not make
appellant's arguments for him and hold the allegation to be inadequately briefed.”).
118
See, e.g., Coble, 330 S.W.3d at 267 (citing evidence of the appellant’s courtroom conduct
of turning around to stare at a witness and repeatedly giving her a “weird evil grin” as evidence of
his future dangerousness); Martinez v. State, 327 S.W.3d 727, 736-37 (Tex. Crim. App. 2010)
(finding that evidence that the appellant threatened a witness as she walked past him in the
courtroom was admissible under Rules 401 and 403).
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courtroom deputies, in front of the jury, and then ultimately (and wrongfully as discussed
above) subjected to the electric shock outside the jury’s presence.
But, as we stated above, a court’s efforts at courtroom administration are not a valid
basis for finding judicial bias, even if they include “expressions of impatience,
dissatisfaction, annoyance, and even anger.”119 And the record reflects that Appellant’s
conduct caused any “friction” that was apparent to the jury. He ignored the judge’s
instructions and repeatedly interrupted witnesses’ testimony even after the judge had ruled
it was admissible. For example, while cross-examining his sister Debbie Campbell,
Appellant asked her whether she, personally, had ever seen him physically abuse his ex-
wives. She responded that she had not, although she had seen the after-effects of the abuse.
On redirect examination, the prosecutor asked Campbell about an incident in which
Appellant had physically abused Adams. When Appellant objected to hearsay, the prosecutor
argued that Appellant’s cross-examination had opened the door to the State’s questions about
Appellant’s abuse of his ex-wives. The trial judge agreed and overruled Appellant’s
objection.
The judge then informed Appellant that he did not have to keep objecting in order to
preserve error. However, every time Campbell began to answer a question, Appellant
objected again, repeating the same grounds each time. He further interrupted Campbell’s
testimony to object on additional grounds. The judge instructed Appellant that once the
119
Liteky, 510 U.S. at 555-56.
CALVERT—67
judge ruled, Appellant needed to let Campbell answer the question. But Appellant continued
objecting, and this exchange between Appellant and the trial judge repeated itself multiple
times, with the trial judge instructing Appellant to “[h]ave a seat.”
Appellant then objected to “this person, [Officer] Sheffield, touching me right now.”
The judge overruled this objection and Appellant again objected. The judge then held a
recess to discuss the matter outside the jury’s presence. The judge then stated:
[Appellant], I’m warning you again that Officer Sheffield is following the
Court’s instructions that once I rule, you know you are supposed to sit down.
. . .[S]it down when the Court rules, and [the jury] won’t see anything but you
sitting down after I rule. You’re forcing this by continuing on. And I’m
instructing you again, when I rule, that’s it.
Once the jury returned, Appellant, after another objection, finally allowed Campbell to
complete her answer to the prosecutor’s question.
This part of the trial record documents just one of many instances in which
Appellant’s own defiant and disruptive behavior precipitated the deputies’ conduct.
Appellant’s complaint is without merit.
(6) Cumulative Effect
Appellant argues that the cumulative effect of these alleged errors resulted in a
deprivation of his right to counsel, including the right to proceed pro se. He states that,
because impairments of the right to counsel and other errors involving the fundamental
fairness and integrity of the trial itself are “structural,” he is entitled to a new trial.
CALVERT—68
We reject Appellant’s characterization of these alleged errors, most of which concern
evidentiary rulings, as violations of his right to proceed pro se or any other constitutional
right. Many errors concerning the erroneous admission of the State’s evidence or the
erroneous exclusion of a defendant’s evidence are non-constitutional.120
We also reject Appellant’s characterization of these alleged errors as “structural.”
Structural errors “affect the ‘framework within which the trial proceeds.’” 121 Only “a very
limited class” of errors is structural,122 which does not include the erroneous admission of
evidence We reiterate that a pro se defendant is bound by the same rules and
requirements and is subject to the same risks and pitfalls as a professional attorney.123 Here,
the trial judge admonished Appellant at length regarding these issues. Having found no
structural error, and having determined that any other error was harmless, we conclude that
the cumulative effect is likewise harmless. Points of error nine and nineteen are overruled.
REVOCATION OF PRO SE STATUS
In point of error ten, Appellant asserts that, to the extent he had a constitutional right
to proceed pro se, the trial judge terminated his right for inadequate reasons. Appellant
contends that his remark to the judge, “I’m sure the Court very much enjoyed that”—after
120
Easley v. State, 424 S.W.3d 535, 540 (Tex. Crim. App. 2014).
121
Marcus, 560 U.S. at 263 (quoting Johnson v. United States, 520 U.S. 461, 468 (1997)).
122
Lake v. State, 532 S.W.3d 408, 413 (Tex. Crim. App. 2017) (quoting United States v.
Davila, 569 U.S. 597, 611 (2013)).
123
Williams, 252 S.W.3d at 356; Johnson, 760 S.W.2d at 279.
CALVERT—69
being subjected to “a severe electric shock”—did not justify revoking his right to self-
representation. He urges this Court to reverse his conviction and death sentence based on the
denial of his right to self-representation.
Generally, a defendant should be allowed to proceed pro se if the defendant clearly,
unequivocally, unconditionally, and timely asserts his right to self-representation; knowingly
and intelligently maintains his desire to proceed pro se after being warned of the
consequences; and does not assert this right in order to disrupt or delay the proceedings.124
However, “[t]he right of self-representation is not a license to abuse the dignity of the
courtroom” or to disregard relevant rules of procedural and substantive law.125 “[T]rial
judges confronted with disruptive, contumacious, stubbornly defiant defendants must be
given sufficient discretion to meet the circumstances of each case.”126 “[T]he trial judge may
terminate self-representation by a defendant who deliberately engages in serious and
obstructionist misconduct.” 127
Here, in explaining his decision to revoke Appellant’s pro se status, the trial judge
pointed to Appellant’s statement, “I’m sure the Court very much enjoyed that,” as well as all
of his prior disruptive conduct. Although the judge pointed to all of Appellant’s prior
124
See, e.g., Hubbard v. State, 739 S.W.2d 341, 343-15 (Tex. Crim. App. 1987); Blankenship
v. State, 673 S.W.2d 578, 584-85 (Tex. Crim. App. 1984).
125
Faretta, 422 U.S. at 834n.46.
126
Illinois v. Allen, 397 U.S. 337, 343 (1970).
127
Faretta, 422 U.S. at 834 n.46 (citing Allen, 397 U.S. at 343).
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disruptive conduct, we discuss Appellant’s disruptive conduct only on the day that the judge
revoked his pro se status. Suffice it to say that Appellant’s conduct on that day was
consistent with his conduct on previous days.
After Jelena’s murder but prior to Appellant’s arrest, officers searched Appellant’s
mother’s house (where Appellant also lived) without a warrant. Appellant filed a pretrial
motion to suppress any evidence seized from the house, and the prosecutor agreed not to
present any such evidence. Yet, on the day the judge revoked Appellant’s pro se status, and
after previous failed attempts at questioning other investigators about the search of his
mother’s house, Appellant attempted to question Shine about the search. When Appellant
first asked Shine whether investigators had entered Appellant’s mother’s house, the
prosecutor objected. The trial judge sustained the objection. Appellant responded that the
trial judge had denied his motion to suppress, but the judge reiterated that the prosecutor’s
objection was sustained.
Appellant stated that, “I think the jury needs to know the truth, your honor, as far
as—.” The judge interrupted him, stating that “the truth” was that the State had agreed to his
motion to suppress the search of his mother’s house. Appellant argued that the State had
never agreed and that the trial judge had denied his motion. The prosecutor responded that
the State had agreed to the motion.
The judge admonished Appellant that he was sustaining “any objection and anything
related to anything taken out of your mother’s house,” and directed Appellant to ask another
CALVERT—71
question. But Appellant again asked Shine about the search, the prosecutor again objected,
and the judge again sustained the objection. Yet Appellant persisted in his questioning. The
trial judge again ordered Appellant not to raise the search of his mother’s house before the
jury. Appellant responded that his question had “nothing to do with [his] motion to
suppress.” At that point, the judge excused the jury.
Appellant again asserted that the State never agreed to his motion. The judge again
admonished Appellant about arguing with him, stating:
You’re right in that category of a defendant that the Court can terminate your
right to represent yourself. I don’t really want to do that, but you’re putting me
in a position where I can’t go on like this. We can’t get this case finished in
front of the jury with you conducting yourself in this manner. Do you
understand the Court’s ruling?
Appellant responded, “I would move the Court to recuse himself then.” The judge
stated that there was no basis for recusal, and “[e]verything taking place right now is [what]
you [are] generating and causing.” He added, “These deputies are not going to put up with
you. You know the remedy they have got. And if you think somehow in your mind if they
deploy that remedy there is going to be a mistrial, you can forget it.”
The judge reiterated that Appellant must not mention his mother’s house. The trial
judge, Appellant, and the State again went back and forth about whether the State agreed to
the motion to suppress. The judge warned Appellant that if he asked a witness about the
search, the judge would terminate his right to represent himself. The judge stated, “If you
rebel against that order, if you’re defiant of that order, then I can’t control the courtroom, and
CALVERT—72
I can’t control the proceedings. And you won’t be representing yourself anymore, and you
[will] have caused it all.”
When the jury returned, Appellant again brought up the search of his mother’s house.
The trial judge again excused the jury. The judge admonished Appellant about his defiant
and rebellious conduct. He stated that he was “now convinced [he could] not get this case
tried under the Rules of Evidence” with Appellant representing himself. Appellant
responded that he had not gone into the motion to suppress. When the judge asked Appellant
if he understood the judge’s ruling, Appellant answered, “I just want the truth.”
After the jury returned, the judge instructed Appellant to “continue with your cross
under the rulings of the Court.” Appellant immediately stated, “I object, Your Honor,
because I’m not able to—.” The judge interrupted him and told him that his objections were
on the record and he needed to ask questions. Appellant responded, “These are separate
objections, Your Honor. I object to not being able to effect a defense in front of the jury.”
The judge interjected that Appellant’s objections were “all overruled” and again instructed
Appellant to question the witness. Instead, Appellant continued his objection, stating,
“[u]nder the Sixth Amendment.”
After returning to his questions, Appellant repeatedly asked Shine questions that Shine
did not know the answer to.128 Appellant then began reading aloud from a property sheet that
128
Specifically, Appellant repeatedly asked Shine questions about the arrest warrant that
Shine did not know the answer to. Eventually, the prosecutor objected that the question had been
(continued...)
CALVERT—73
listed items taken from his vehicle, repeatedly asking Shine if he remembered the items on
that list. The prosecutor objected that Appellant needed to show Shine the property sheet
rather than read from it. Appellant then showed Shine the property sheet, but it did not
refresh Shine’s memory.
At that point, Appellant interrupted his own questioning to object that a deputy was
a foot-and-a-half from him and was looking at his evidence. The judge responded that the
deputy was not disturbing the evidence and directed Appellant to continue questioning Shine.
But Appellant stated that the deputy was “a witness.” The judge responded that the deputy
was not a witness “in this part of the case,” and again instructed Appellant to continue
examining Shine.
Appellant, talking about the courtroom deputy, complained, “this person is still talking
to me and disrupting me, so I would move the Court to admonish him as far as to back
away—.” The judge responded that if he admonished anyone, Appellant knew who it would
be, and he instructed Appellant to “sit down and ask the next question.” The prosecutor
interjected to clarify what the deputy had said.129 Appellant began, “Your Honor—,” but the
128
(...continued)
asked and answered. Appellant responded that he was now asking a different question, which was
what time Shine had spoken with the officer who prepared the affidavit for the arrest warrant. Shine
again answered that he did not know. Appellant then asked Shine what time he and the other
investigators had arrived at the crime scene, and Shine stated that he did not know “exactly what
time we arrived.” Appellant further questioned Shine about other matters that Shine did not know
about, leading to more objections by the State.
129
“[J]ust for the record, . . . I can hear [the deputy] . . . , and all he said was, ‘Stand up.
(continued...)
CALVERT—74
judge interrupted him, stating that there were “14 people sitting over here,” and, “Let’s show
enough courtesy to ask the questions instead of arguing about these other matters. If you’ve
got a question, ask it.”
Appellant then continued to ask Shine about other items taken from the car. The
prosecutor objected that this questioning was “repetitive.” The judge sustained the objection.
After questioning Shine about other things in the vehicle,130 Appellant then began
questioning Shine about his role in searching and securing the vehicle, and the prosecutor
objected to the form of the question and relevance. The trial judge sustained the objection.
Appellant objected “under a right to cross-examine the witness. Obviously, that’s a Sixth
Amendment right.” The judge overruled the objection and told Appellant to “[h]ave a seat.”
Appellant then turned his questioning to the topic of his interview. Appellant
challenged Shine’s authority and jurisdiction to interview him in West Monroe, Louisiana.
The prosecutor objected that Appellant was misstating the law regarding jurisdiction. The
judge sustained the objection. Appellant began, “Well, I didn’t—,” and the judge told him
to stand up. Appellant again asked Shine why he did not wait until after extradition to
conduct the interview.
129
(...continued)
Stand up when you address the Court.’ He’s trying to make the defendant follow the Court’s
instructions. . . . It’s the defendant’s actions that are causing the deputies . . . to do what they do.”
130
Specifically, Appellant asked Shine what he thought about the shooting target that was
found in the trunk of the car. Shine stated that he did not form any conclusions or opinions.
Appellant asked Shine, “Now, none of the photographs of the trunk show the target, correct?” Shine
responded that he did not recall.
CALVERT—75
Appellant then read some of his own exculpatory statements from the transcript of his
interview and asked Shine to confirm that Appellant had said those things. The prosecutor
objected, and the judge sustained the objection. Next, Appellant questioned Shine about
Appellant’s comment on the State’s copy of the recorded interview: “Do you have a plea
offer for me?” Appellant claimed that this comment was not on his copy of the recorded
interview. The prosecutor objected that they previously had a hour-long recess where
Appellant was asked to produce evidence supporting that allegation, but Appellant had not
done so.131 The judge sustained the objection.
Appellant then examined Shine about the process of making the recording. Appellant
stated that he “need[ed] to see the file dates and—.” The judge admonished him to stand up.
Appellant then repeated: “I need to review the file dates and times of the video.” The
prosecutor objected to relevance, and the judge sustained the objection. Appellant then
began, “Well, Your Honor, I’m just trying to show—and I understand that—.” A sheriff’s
deputy interrupted to tell him, “If you’re going to speak to the Court, stand up. Last chance.”
The judge stated, “Let’s get it over with. Stand up, [Appellant]. It won’t work out good if
you don’t stand up, believe me.”
131
Before this exchange, standby counsel had testified outside the jury’s presence that he had
heard Appellant’s comment about a plea offer when he listened to Appellant’s copy of the interview.
And the prosecutor reminded the judge of the State’s motion in limine to prevent Appellant from
asking Shine if he had tampered with the recordings.
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When Appellant continued examining Shine about the recording process, the
prosecutor objected that Shine had not made the recording and so he was the wrong person
to ask. The trial judge sustained the objection. Appellant then asserted that he could use his
copy of the interview to show that the recording had been altered. The judge stated that he
would take that up outside the jury’s presence in order to determine relevance, and then
Appellant would have another opportunity to present his evidence. The judge added, “You
can shake your head, smile if you want to. Doesn’t bother the Court. That’s the Court’s
ruling. If you have any other questions for Detective Shine, ask them.”
Appellant questioned Shine about the second vehicle search, in which Shine had
found the current license plates for Appellant’s car under the front passenger-side floor mat.
Appellant directly accused Shine and other law enforcement officers of planting the license
plates in Appellant’s car. Shine categorically denied the accusation, noting that it was
“totally baseless” and offensive. Appellant began to respond to Shine, but the judge cut him
off and told him to ask his next question. Appellant then asserted through questioning that
Shine and other officers had planted the rifles found in Appellant’s trunk at the time of his
arrest. Appellant seemed to imply that the officers could have obtained the rifles from his
mother’s house. The prosecutor objected, and the judge sustained the objection.
After asking repetitive questions about other evidence, Appellant asked Shine if he
had personal knowledge of the contents of a laptop bag found in the car. Shine stated that
he did not, but that he could testify about the recovered items if he had the property sheets.
CALVERT—77
Appellant told the judge that he could not find his copies of the property sheets and asserted
that the State could provide them. The prosecutor refused. Lacking the property sheets,
Appellant showed Shine photographs of the items in question and asked him if those items
had been in the vehicle. The prosecutor successfully objected. Appellant again asked the
prosecutor to hand the witness her copies of the property sheets so that the witness could
refresh his memory. The prosecutor again declined.
Appellant then questioned Shine about the ammunition scattered throughout the
vehicle. Appellant asked if Jelena was shot with “target ammunition,” and continuously
asked about the damage caused by different types of ammunition. The prosecutor objected,
and the judge sustained the objection.
Turning to the police report, Appellant acknowledged that he had received a copy in
discovery, but he asserted that he did not have it with him, so he took Shine’s copy.
Appellant began questioning Shine about details recorded in it. The prosecutor objected, and
the judge sustained the objection. Appellant complained that he was unable to question
Shine. The judge then recessed for the day and dismissed the jury. This is when the shock
incident occurred.
Outside the presence of the jury, the judge asked Appellant where he was going with
this line of questioning. Because Appellant refused to stand while addressing the judge, a
deputy activated the shock cuff. After he was shocked, Appellant commented, “I’m sure the
CALVERT—78
Court very much enjoyed that.” The judge then reinstated standby counsel to represent Appellant.
This record reflects that the trial judge had adequate cause to revoke Appellant’s pro
se status because he “deliberately engage[d] in serious and obstructionist misconduct.” 132
Despite the trial judge’s repeated rulings and admonitions, Appellant refused to abandon a
line of questioning about a search that he had successfully moved to suppress. Twice,
outside the jury’s presence, the trial judge reiterated and explained his rulings excluding
testimony about that search and warned Appellant that he was in danger of losing his pro se
status. Further, when Appellant was given the opportunity to present evidence that the
audiovisual recording of the interview had been altered, he failed to do so. Nevertheless, he
attempted to inform the jury that the recording had been altered. It appears from the record
that, when the judge stated that he would take that matter up outside the jury’s presence,
Appellant shook his head and smiled. Even after the trial judge ruled that asking Shine
questions that other investigators had already answered was repetitive and “a waste of time,”
Appellant continued with those questions. With no good-faith basis, Appellant accused
Shine and other investigators of planting evidence.
Appellant repeatedly refused to comply with relevant rules of procedural and
substantive law. Based on Appellant’s defiant and disruptive conduct, the judge revoked his
pro se status. On this record, we conclude that the trial judge did not abuse his discretion by
revoking Appellant’s pro se status. Point of error ten is overruled.
132
See Faretta, 422 U.S. at 834 n.46.
CALVERT—79
CLOSING ARGUMENT – GUILT PHASE
In point of error eleven, Appellant contends that the prosecutor engaged in egregious
misconduct during closing argument at the guilt phase in violation of due process. Further,
he argues, given the magnitude, extent, and egregious nature of the misconduct, the errors
are not harmless.
The principal purpose of closing argument is to facilitate the jury in properly
analyzing the evidence presented at trial so that it may “arrive at a just and reasonable
conclusion based on the evidence alone, and not on any fact not admitted in evidence.” 133
There are four proper areas of jury argument: (1) summation of the evidence; (2) reasonable
deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for
law enforcement.134 “[C]ounsel is allowed wide latitude in drawing inferences from the
evidence so long as the inferences drawn are reasonable, fair, legitimate, and offered in good
faith.”135 To complain on appeal about an improper jury argument, a defendant must object
at trial and pursue his objection to an adverse ruling.136 He must object each time an
133
Campbell v. State, 610 S.W.2d 754, 756 (Tex. Crim. App. 1980) (panel op.) (quoting
Stearn v. State, 487 S.W.2d 734, 736 (Tex. Crim. App. 1972)).
134
Milton v. State, 572 S.W.3d 234, 239 (Tex. Crim. App. 2019).
135
Shannon v. State, 942 S.W.2d 591, 597 (Tex. Crim. App. 1996).
136
Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996).
CALVERT—80
improper argument is made, or he waives his complaint, regardless of the egregiousness of
the argument.137
Here, Appellant failed to preserve many of his complaints regarding the prosecutor’s
closing argument during the guilt/innocence phase because counsel failed to timely object
or did not object each time the allegedly improper argument was made.138 Therefore, we will
not consider those complaints. He did, however, preserve some of his complaints.
Appellant states that the prosecutor violated his Sixth Amendment rights by
commenting on his in-court behavior and making demeaning remarks regarding his
self-representation. Appellant preserved error for two of these complained-of comments.
Appellant complains about the prosecutor’s statement, “See him laughing and
smirking and shaking his head.” The trial judge overruled Appellant’s timely objection that
137
See, e.g., id.; Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App. 1999).
138
See TEX . R. APP . P. 33.1; Cockrell, 933 S.W.2d at 89; Fuentes, 991 S.W.2d at 273.
Appellant complains that the prosecutor demonized him by calling him names such as “the evil that
sits in this courtroom,” a “monster,” and a “selfish coward.” He also contends that the prosecutor:
improperly inflamed jurors with irrelevant emotional considerations and encouraged them to put
themselves in Jelena’s position and to speak for Jelena and her family; improperly injected herself
personally into the case; intimated that her experience and expertise led her to conclude that
Appellant was guilty; touted her expertise by instructing the jury on how to conduct its deliberations;
encouraged the jury to convict him on behalf of the community at large; and urged jurors to join the
State’s team. He identifies numerous additional examples of allegedly improper name-calling and
argument which, he contends, violated due process. Appellant also asserts that the prosecutor
presented jurors with a falsified reconstruction of the offense that was unsupported by the evidence.
The record shows that the prosecutor stated that Appellant was holding L.C. as he stood over Jelena
in the doorway, and that L.C. cried out, “Mama, Mama, Mama,” as Jelena attempted to turn toward
her son before Appellant shot her in the back of the head.
CALVERT—81
this statement was a comment on his non-testimonial demeanor. The prosecutor then
asserted, “[T]hat’s what you’ve got right there, sitting right there with a smirk on his face
most of the trial. You saw it. That’s a killer. That’s evil.” Appellant objected again that the
prosecutor was commenting on his non-testimonial demeanor. The prosecutor responded,
“I’m commenting on when he represented himself.” The judge overruled the objection.139
Typically, a non-testifying defendant’s demeanor while in the courtroom is not
evidence, so it is not an appropriate subject for the prosecutor in argument.140 A defendant’s
non-testimonial demeanor is usually irrelevant to the issue of his guilt.141 Assuming the
prosecutor’s arguments, “See him laughing and smirking and shaking his head,” and
“[T]hat’s what you’ve got right there, sitting right there with a smirk on his face most of the
trial,” were improper comments on non-testimonial demeanor, any error was harmless.
139
To the extent that Appellant complains that these comments violated his right to self-
representation, his current contention does not comport with his trial objections, which were solely
on the ground that the comments concerned his non-testimonial demeanor. See Hallmark v. State,
541 S.W.3d 167, 171 (Tex. Crim. App. 2017) (“Because the complaint on appeal does not comport
with either of the trial objections, nothing is presented for review.”). Therefore, we will consider
only his arguments regarding non-testimonial demeanor.
140
See Wead v. State, 129 S.W.3d 126, 130 n.8 (Tex. Crim. App. 2004) (prosecutor may not
properly comment upon the defendant’s demeanor in the courtroom because his demeanor is not
evidence of guilt).
141
Good v. State, 723 S.W.2d 734, 737-38 (Tex. Crim. App. 1986) (concluding that a
defendant’s neutral, orderly courtroom demeanor did not support a reasonable inference of guilt).
CALVERT—82
We evaluate the harm arising from this improper closing argument under the standard
for constitutional error because it is an indirect comment on Appellant's failure to testify.142
We must reverse the conviction unless we determine beyond a reasonable doubt that the error
did not contribute to the conviction or punishment. The context of the prosecutor's statement
shows that it could not have tainted the trial process. The argument followed the guilt-
innocence portion of trial, where Appellant represented himself until his repeated
disobedience caused the trial court to reinstate his attorneys. The jurors did not hear
Appellant testify, but they could recall for themselves whether Appellant “smirked” during
most of the trial. Moreover, although the record does not itself reflect the “smirks,” it does
reflect Appellant’s flippant attitude and verbal sparring with witnesses, the prosecutor, the
courtroom deputies, and the trial court while representing himself. After carefully reviewing
the record and performing the required harm analysis under Rule 44.2(a), we hold beyond
a reasonable doubt that any error in failing to sustain the Appellant's objection to the
prosecutor’s argument did not contribute to Appellant's conviction or punishment. Point of
error eleven is overruled.
CLOSING ARGUMENT – PUNISHMENT PHASE
142
Dickinson v. State, 685 S.W.2d 320, 324 (Tex. Crim. App. 1984); Snowden v. State, 353
S.W.3d 815, 826 (Tex. Crim. App. 2011).
CALVERT—83
In point of error twelve, Appellant asserts that the prosecutors engaged in egregious
misconduct during closing argument in the punishment phase of the trial in violation of his
Fifth Amendment privilege and Article 38.08. He contends that the prosecutors:
1. commented on his failure to testify and his non-testimonial demeanor;
2. worked to inflame the jury’s passions by making emotional statements
about Jelena’s fear during the offense and her final thoughts for L.C.;
3. described L.C. and his sister E.C. as victims;
4. encouraged jurors to decide his punishment on an emotional basis;
5. attacked him personally, repeatedly and at length;
6. made his in-court demeanor a centerpiece of their argument as to why
he deserved the death penalty; and
7. wrongly argued that his disrespectful courtroom behavior was evidence
of his future dangerousness.
Our review of the record reveals that Appellant failed to timely object, and therefore
failed to preserve error, to all but one of these complained-of comments.143 Therefore, we
will address the admissibility of that comment, alone, on the merits.
Specifically, Appellant objected to the following statement on the ground that it
violated his Fifth Amendment right not to testify:144
143
Cockrell, 933 S.W.2d at 89 (stating that to complain on appeal about an improper jury
argument, a defendant must object at trial and pursue his objection to an adverse ruling).
144
To the extent that Appellant intends to raise other grounds for objection on appeal, these
grounds do not comport with his trial objection and so we will not consider them. See Hallmark,
(continued...)
CALVERT—84
And there’s no remorse. He sits over there . . . shaking his head at me.
Where’s the acceptance of responsibility?
Even Mr. Haas stood up here and told you, “We understand; we get it” was the
words he used. Really? Because the last time we were standing here, he was
arguing that he was what? Not guilty.
So when did they get it? Where’s the responsibility when he’s pulling the
trigger six times, when he’s changing the license plates?
It is improper for the State to accentuate for the jury the defendant's failure to take the
stand and claim present remorse.145 Nevertheless based on the record of this case—which
includes Appellant’s interview with the police in which he demonstrated a lack of both
responsibility and remorse—we have a fair assurance that any error did not influence the jury
or had but a slight effect.146 Point of error twelve is overruled.
EMOTIONAL EVIDENCE AND COMMENTARY
In point of error thirteen, Appellant contends that the trial judge violated Appellant’s
due process right to a fair trial by allowing the prosecutor to elicit irrelevant and prejudicial
testimony and to make speeches while examining witnesses. He avers that the prosecutor
questioned witnesses throughout the trial in a manner that was calculated to inflame the jury.
144
(...continued)
541 S.W.3d at 171.
145
Randolph v. State, 353 S.W.3d 887, 893 (Tex. Crim. App. 2011); Snowden v. State, 353
S.W.3d 815, 823-24 (Tex. Crim. App. 2011).
146
See Thomas, 505 S.W.3d at 927.
CALVERT—85
He identifies four main categories of allegedly irrelevant and unfairly prejudicial testimony
and commentary:
1. responding officers’ testimony about their feelings toward L.C. and
their own children;
2. officers’ testimony about a hypothetical gunfight with Appellant,
although there was no evidence that Appellant was aggressive or
threatening;
3. the prosecutor’s prolonged and leading questions on prejudicial topics;
and
4. the prosecutor’s and judge’s argumentative and derogatory comments
conveying general disdain for Appellant.
Further, Appellant states, the prosecutor’s closing arguments emphasized the
erroneously admitted testimony described in categories (1) through (3), which compounded
the harmful effects of these alleged errors. We will address each of the four categories in
turn, followed by the discussion on cumulative error.
(1) Officers’ Feelings About L.C. and Their Own Children
Appellant first avers that the prosecutor asked responding officers numerous irrelevant
and unfairly prejudicial questions regarding their feelings about L.C. and their own children.
Appellant specifically complains that, at the guilt phase, the prosecutor elicited Officer
Spoon’s testimony about his feelings of sadness upon seeing L.C. in Appellant’s car. Spoon
also testified that L.C. “was the cutest little kid” and that Spoon was “furious” that Appellant
had placed L.C. in danger. When the prosecutor asked Spoon if he kept a picture of L.C. in
CALVERT—86
his home, Spoon answered affirmatively, explaining that he kept it “[b]ecause [L.C.] was
kidnapped, and his mom was murdered in front of him.” Similarly, the prosecutor asked
Sergeant Downhour, “[A]s you went back there and saw that little boy pulled out of the car,
being a father yourself, it did make you mad, didn’t it?” Downhour affirmed that it did. And
Corporal Knight testified that, when she saw L.C. in the back of the car, she was “very
angry” and “upset that a child could be put in harm’s way.”
Appellant also complains about the prosecutor’s questioning of Officer Cummings.
As discussed above regarding points of error nine and nineteen, Cummings testified that he
spent part of that Halloween evening with his daughter. The prosecutor stated, “And after
that, you apprehended this defendant. It’s significant because you put your life on the line
after being with your little girl.” Cummings agreed.
Appellant argues that the officers’ testimony was plainly intended to lead the jury to
decide the case “on an emotional basis and not on the basis of the other relevant evidence
introduced at trial.” Although Appellant did not specifically object to all of this questioning,
he obtained a running objection under Rules 402, 403, and 404(b) to responding officers’
testimony concerning the pursuit and arrest and that conveying their sympathy for L.C.
Under Rule 402, evidence that is not relevant is inadmissible.147 Further, Rule 403
excludes otherwise relevant evidence when its probative value is substantially outweighed
147
TEX . R. EVID . 402; Gonzalez, 544 S.W.3d at 370.
CALVERT—87
by the danger of unfair prejudice.148 “The term ‘probative value’ refers to . . . how strongly
[an item of evidence] serves to make more or less probable the existence of a fact of
consequence . . . coupled with the proponent’s need for that item of evidence.” 149 “‘Unfair
prejudice’ refers to a tendency to suggest decision on an improper basis, commonly, though
not necessarily, an emotional one.” 150
Here, this testimony was inadmissible because it was irrelevant to Appellant’s guilt
or innocence of the charged offense. Further, this testimony did not concern a fact of
consequence, and it suggested a decision on an emotional basis. Accordingly, the trial judge
erred in admitting this testimony over Appellant’s Rule 402 and 403 objections. Our inquiry,
however, does not end there.
Generally, an erroneous evidentiary ruling is non-constitutional error. 151
Non-constitutional error must be disregarded unless it affects the defendant’s substantial
rights.152 We will not overturn a criminal conviction for non-constitutional error if, after
reviewing the record as a whole, we have fair assurance that the error did not influence the
148
Rule 403; Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010); Gonzalez, 544
S.W.3d at 371.
149
Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007); Gonzales, 544 S.W.3d at
372.
150
Davis, 329 S.W.3d at 806; Gonzalez, 544 S.W.3d at 373.
151
See Potier v. State, 68 S.W.3d 657, 663 (Tex. Crim. App. 2002); Gonzalez, id.
152
See TEX . R. APP . P. 44.2(b); Gonzalez, id.
CALVERT—88
jury or had but a slight effect.153 The presence of overwhelming evidence supporting the
judgment can be a factor in evaluating the effect of such an error.154
Based on the record of this case, we conclude that the admission of the officers’
testimony concerning their feelings about L.C. was harmless. The evidence of Appellant’s
guilt was overwhelming, and the testimony at issue “was not so ‘emotionally charged’ as to
prevent the jury from rationally considering the evidence before it.” 155 And, as discussed in
points of error nine and nineteen, Appellant himself elicited Cummings’s similar testimony
that he felt “strongly about how [Appellant had] endangered [L.C.].”156 After examining the
record as a whole, we have a fair assurance that the error did not influence the jury, or had
but a slight effect. This part of point of error thirteen is overruled.
(2) Hypothetical Gunfight
Appellant contends that the prosecutor improperly elicited West Monroe officers’
inflammatory testimony about a hypothetical gun fight between Appellant and the officers,
although there was no evidence that Appellant had been aggressive or threatening. He
complains that the prosecutor asked multiple protracted questions about the danger the police
153
Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
154
Motilla, 78 S.W.3d at 357-60 (concluding that the erroneous admission of testimony
concerning the victim’s childhood was harmless under Texas Rule of Appellate Procedure 44.2(b)).
155
Id. at 360.
156
See Coble, 330 S.W.3d at 282 (stating that erroneously admitted evidence will not result
in reversal when the same evidence was received elsewhere without objection).
CALVERT—89
officers could have faced if Appellant had drawn the loaded weapons that were in his
trunk.157 The record includes the following exchange between the prosecutor and Williams:
Q. Let me ask you this scenario: Say that you pulled me over in a car, and I
have these weapons in my car loaded with magazines, one in the chamber.
And I get out of my car, and I was like, “Hey how you doing?”
And I pop the trunk. If I open that trunk and grab that gun, you’re in trouble.
A. Yes.
***
Q. These guns in a firefight with a police officer, you are severely outgunned
if I’m approaching you with this weapon over your .40-caliber Springfield,
true?
A. Yes. . . .
Q. And how many rounds do you have in your pistol?
A. 16.
Q. 16. I have 61 in this one.
Will those bullets – do you know if – I know that there are bullets made for
this gun that will go right through your vest. Do you know if those rounds like
that would penetrate your vest?
A. They would be pretty close. I know the 7.62X39 will completely go
through a vest.
157
Before the complained-of exchanges, Appellant had obtained a running objection under
Rule 403 to any evidence or testimony concerning the firearms found in the trunk of his car.
CALVERT—90
Thereafter, the prosecutor asked Detective Malmstrom what he would do in a typical
vehicle stop. Malmstrom testified that after stopping the vehicle, he would walk up to the
“front doorpost to offer coverage,” introduce himself, and announce the reason for the stop.
He would then walk up to the vehicle. The prosecutor then asked:
Q. As a patrol officer, if you are attempting to stop an individual and that
individual slows down, and as soon as you start to kind of get out of your car,
they edge forward, and they have a 40-caliber Springfield XD between their
legs, as a patrol officer, is that a frightening situation to you?
Malstrom answered, “Yes, sir.” The prosecutor then asked:
Q. Okay. If I pop the trunk when I stopped and had loaded firearms in there,
like that AR, loaded up, say when I was coming to a stop in my car, if I just
pop my trunk, pulled my car into stop and got out and said, Hey, how’s it
going; sorry I was -- and I pulled that trunk up and grabbed ahold of one of
those guns, you’re dead, aren’t you?
A. Yes.
Q. Because that gun is fully loaded. There’s one in the chamber. All I have
to do, if the safety’s on, is just flip that safety down, and you’re -- you’re done?
A. Yes.
Q. So for somebody riding around with a child that’s been kidnapped, heading
out of town in a car with loaded -- like these were -- I don’t know if you
remember seeing those, but they were loaded with one in the chamber.
A. The ones in the car?
Q. The ones in the trunk.
A. Yes, sir. Yes, sir.
CALVERT—91
Q. So what we had was -- and what we had was eight guns, almost -- I mean,
thousands of rounds . . . .
As we discuss later under point of error twenty, the firearms in this case were
connected to Appellant and to his preparations for the offense and its aftermath. When police
officers stopped Appellant, he had a handgun between his legs, and there was a loaded Sig
Sauer was on the floor beneath L.C.’s car seat. On these facts, the probative value of the
evidence that Appellant had loaded firearms in the trunk of his car was not substantially
outweighed by the danger of unfair prejudice. For the same reasons, the officer’s testimony
about the dangers posed by the firearms was not unfairly prejudicial. This part of point of
error thirteen is overruled.
(3) Prolonged and Leading Questions
Appellant asserts that the prosecutor, through his examination of the medical examiner
and the forensics expert, made highly prejudicial and argumentative speeches before the jury
and asked prolonged, leading questions or questions that were unduly focused on graphic,
cumulative, and prejudicial topics. Appellant cites several examples of this conduct.
However, he did not consistently object to the complained-of conduct on the bases that he
raises on appeal. Nor has he directed us to any potentially applicable running objection.
The record shows that some of Appellant’s “leading” objections were sustained and
the prosecutor was made to re-frame the questions. But the prosecutor continued to ask
leading questions, and Appellant did not always object. Also, Appellant’s “asked and
CALVERT—92
answered” objection—made in response to the prosecutor asking the forensic expert (for the
second time) to describe the sequence of the gun shots—led to the trial judge asking the
prosecutor if he had something “different.” Appellant did not object when the prosecutor
stated that he would ask the question differently and then did so. Accordingly, Appellant
failed to preserve error as to these claims.158 This part of point of error thirteen is overruled.
(4) Argumentative and Derogatory Comments
Appellant states that the prosecutor unfairly prejudiced the jury against him
throughout the trial by making derogatory remarks about him while examining witnesses.
He complains that, by criticizing Appellant and commenting on the evidence in the jury’s
presence, the trial judge exacerbated the negative impression that the prosecutor sought to
create. Appellant avers that these comments were clearly calculated to inflame the jury and
created the impression that the prosecutor and trial judge were aligned against him.159
Specifically, Appellant contends that, in the jury’s presence, the prosecutor and trial
judge repeatedly commented on Appellant’s purported failure to follow proper courtroom
etiquette and asserted that Appellant did not care about the rules. For example, after
Appellant objected that the prosecutor was re-offering the same evidence under new exhibit
numbers, the prosecutor responded that the gun magazines currently offered were different
158
See TEX . R. APP . P. 33.1(a)(1)(A); see Thomas, 505 S.W.3d at 924; Darcy v. State, 488
S.W.3d 325, 330 (Tex. Crim. App. 2016).
159
Although Appellant alleges that the State and the trial judge engaged in this conduct
“throughout the trial,” all of the specified conduct took place during the guilt phase.
CALVERT—93
from the magazines previously admitted. The prosecutor stated, “And if [Appellant] can give
me a specific number he thinks that we offered that under yesterday, I’ll go pull it out and
show him.”
The prosecutor continued, “And also, be cognizant of the difference between TPD
Number 190 and the State’s Exhibit Number 190-L, which was the Springfield firearm you
killed your wife—ex-wife with.” Appellant objected, stating, “I would object to that
improper comment on the ex-wife, Your Honor.” The judge responded, “That’s the
allegation in the indictment.”
Regarding the prosecutor’s “ex-wife” comment, assuming it was improper, we find
that it was not reversible error.160 This comment did not inject new facts into the record
because the jury was aware that the State’s theory was that Appellant had murdered his ex-
wife with the Springfield firearm.161 Further, the jury could evaluate the truthfulness of the
prosecutor’s comment.162 No curative action was taken, but given the strength of the State’s
case, we conclude that any error was harmless.
160
Cf. Martinez, 17 S.W.3d at 692 (“[M]ost comments that fall outside the areas of
permissible argument will be considered to be error of the nonconstitutional variety.”).
161
Cf. Mosley v. State, 983 S.W.2d 249, 260 (Tex. Crim. App. 1998) (considering, as a factor
in assessing harm, whether an improper comment injected new facts into the record).
162
Cf. id. (stating, in finding the error harmless, that “the jury [wa]s in a position to evaluate
the truthfulness of the prosecutor’s assertion”).
CALVERT—94
Regarding the complained-of statement by the judge, it was not a comment on the
evidence. Instead, it was a simple statement of fact: the indictment alleged that Appellant
killed his ex-wife.163 Therefore, we overrule this complaint.
Next, Appellant directs us to an instance in which he asked an investigator whether
he had photographed a safe that was inside Appellant’s mother’s house. The prosecutor
objected to Appellant’s question:
[PROSECUTOR]: Judge, we’re going to—we’re going to object only in that
the defendant, because he doesn’t care what the Court says or what the rules
are, continues to try to get into stuff that he has filed a suppression on and that
we have honored.
He tries to go back into -- that was not seized at this location. It’s the same
one that he objected to, he filed the suppression on, the search of his mother’s
home.
THE COURT: Objection’s sustained. I know what you’re talking about.
[PROSECUTOR]: We’d ask the jury to be instructed to disregard because we
have operated in good faith based on what he had filed, and he continues to try
to subvert the rules. He doesn’t care what they are, what the Court says. He’s
always trying to backdoor and do something with the --
THE COURT: The last -- the jury will disregard the last question, last
response of the witness.
163
See Dockstader v. State, 233 S.W.3d 98, 108 (Tex. App.—Houston [14th Dist.] 2007, pet.
ref’d) (“To reverse a judgment on the ground of improper conduct or comments of the judge, we
must find (1) that judicial impropriety was in fact committed, and (2) probable prejudice to the
complaining party.”).
CALVERT—95
Appellant did not object to the prosecutor’s comments that Appellant refused to
follow the rules. Therefore, he failed to preserve error regarding that comment.164
Additionally, as discussed under point of error 10, Appellant had filed a pretrial motion to
suppress any evidence seized during the search of his mother’s house, and the prosecutor had
agreed not to present any such evidence. And prior to the complained-of comment, the trial
judge had already repeatedly admonished Appellant that he could not discuss this evidence.
The trial judge’s comment, “I know what you’re talking about,” in context, meant “you
[prosecutor] don’t have to keep explaining.”165 Therefore, we overrule this complaint.
Appellant also contends that the prosecutor used an improper strategy of making
derogatory comments in front of the jury and then withdrawing them. For example:
[Prosecutor]: And could you tell in this photograph if the killer had, in an act
of cowardice, shot her in the back?
[Appellant]: Your Honor, I’m just going to object to the comment “act of
cowardice shot her in the back.” Highly prejudicial.
[Prosecutor]: I think anyone who would shoot a woman in the back is an act
of cowardice [sic], but I’ll withdraw my statement, Judge.
164
See TEX . R. APP . P. 33.1(a)(1)(A); Darcy, 488 S.W.3d at 330.
165
See Liteky, 510 U.S. at 555-56 (“A judge’s ordinary efforts at courtroom
administration—even a stern and short-tempered judge’s ordinary efforts at courtroom
administration—remain immune.”).
CALVERT—96
Assuming that the prosecutor’s “act of cowardice” comment was improper, we
conclude that it was not harmful.166 The evidence of Appellant’s guilt was overwhelming.
After examining the record as a whole, we have a fair assurance that the error, if any, did not
influence the jury, or had but a slight effect.167
Next, Appellant contends that the trial judge repeatedly described to the jury what the
“evidence shows” regarding Appellant driving the vehicle in the “chase,” and police officers
breaking the windows, “trying to get the defendant out of the car,” as he was “fleeing.” The
record shows that the judge made these comments in response to Appellant’s objection to the
admissibility of State’s Exhibit 158, a photograph of his vehicle in the Tyler impound lot.
Exhibit 158 was initially admitted into evidence during Spoon’s testimony before the
jury, after he confirmed that he was familiar with the content of State’s Exhibits 153 through
161. Spoon testified that these photos “fairly and accurately depict[ed] what they purported
to show.” Appellant received the trial judge’s assurance that his running objection was still
in effect. He also objected under Rules 901, 1001, 1002, 1003, 403, 404(b), hearsay, lack
of predicate, lack of foundation, and relevance. Without commenting on the content of the
exhibits, the trial judge overruled all of Appellant’s objections to State’s Exhibits 153
through 161.
166
See TEX . R. APP . P. 44.2(b).
167
See Motilla, 78 S.W.3d at 355.
CALVERT—97
Later, during Spoon’s testimony, Appellant objected to Exhibit 158. Appellant also
stated, “I will reurge, obviously, and continue to reurge the motion [to suppress] that was
talked about outside the hearing of the jury.”168 The judge responded, “[T]he officer has
already identified [that car as] the one that he seized that you were driving in the chase, [and
so that motion is] denied and overruled.”
Appellant then stated that he needed to present his previously filed motion “SSS,”
which the trial judge seems to have mistakenly assumed pertained to the admissibility of
Exhibit 158.169 The judge responded, “What you have got up right there is a photograph of
the vehicle, according to . . . the officer -- that you were fleeing in.” The judge added,
“State’s Exhibit 158 has been identified as the vehicle the defendant was driving during the
chase,” and the prosecutor affirmed that it was. The judge later asked Spoon, “So [Exhibit]
158 shows the vehicle that you’ve already testified [that] the defendant was fleeing in, and
it shows the . . . windows that were obviously taped up as a result of your officers having to
bust them up to get the weapons, is that correct, and to get the defendant out.” Spoon
confirmed that this was correct.
168
After the judge admitted State’s Exhibits 153-161, Appellant stated that he had a motion
to suppress those exhibits and other evidence. The judge held a hearing outside the presence of the
jury. In that hearing, the judge denied the motion, explaining to Appellant that the motion was
untimely because he did not raise it until after the exhibits had been admitted.
169
In fact, Motion SSS sought to bar ex parte communications between the prosecutors and
the judge. Appellant did not explain the nature of this motion to the judge until after this discussion
of the admissibility of Exhibit 158.
CALVERT—98
The prosecutor then noted that State’s Exhibit 158 had already been admitted. On that
basis, the judge overruled Appellant’s objections. When Appellant sought confirmation of
the judge’s ruling, the judge stated, “[T]he evidence shows you were driving [that vehicle]
in the chase and the evidence shows this Officer Spoon taped up the . . . windows before it
was moved to Tyler because [they] had been broken out to get you out of [the vehicle] . . .
in the course of your apprehension. So, yes, it’s denied.”
We conclude that the judge’s comments were responsive to Appellant’s objections and
questions, and they were based on evidence disclosed during the proceedings.170 The judge
did not state that the evidence was true, only that it established a predicate for the exhibit.171
Appellant next complains about the trial judge’s comments on State’s Exhibit 162.
An investigator testified at trial that State’s Exhibit 162 was a photograph of “the defendant’s
car with the piece of evidence tape as it was sealed so [we] could protect the integrity of what
was in it.” Appellant objected to the admission of Exhibit 162 “under [Rules] 901, 1002,
1003, 403, 404(b), lack of predicate, lack of personal knowledge, and the hearsay value of
170
Cf. Rodriguez v. State, 470 S.W.3d 823, 830 (Tex. Crim. App. 2015) (“‘[O]pinions formed
by the judge on the basis of facts introduced or events occurring in the course of the current
proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless
they display a deep-seated favoritism or antagonism that would make fair judgment impossible.’”)
(quoting Liteky, 510 U.S. at 555).
171
See TEX . R. EVID . 104(a) (stating that the trial judge determines preliminary questions
about the admissibility of evidence).
CALVERT—99
what this photograph is actually supposed to represent, as far as relevance at this point.” On
appeal, he now complains of the ensuing exchange:
THE COURT: All right. [State’s Exhibit] 162 depicts . . . a photograph of
the vehicle that the defendant was fleeing in with the . . . left front and left side
window . . . and the rear window, they are taped up so they just won’t be
opened from the results of them trying to get the defendant out of the car.
So, I mean, those objections are -- all of them, [Appellant], are overruled.
[APPELLANT]: Your Honor, in addition to that, I’m going to have to object
to the Court’s comment itself on the evidence.
THE COURT: Well, you’re always worried about whether or not I have
looked at the photograph. So I want you to know I have looked at it by
indicating what it was, which the officer just testified to.
So your objections are overruled. I have carefully reviewed it. 162 is admitted
into evidence.
The trial judge’s statement accurately described the contents of State’s Exhibit 162.
But even assuming that the statement was an improper comment on the evidence, it does not
constitute reversible error because it was not reasonably calculated to benefit the State or
prejudice Appellant.172 Further, several officers testified that Appellant fled in his car, and,
172
See Moody v. State, 827 S.W.2d 875, 879 (Tex. Crim. App. 1992) (concluding that the
trial court’s statements that “[t]hat’s the lady that was murdered” and “this man is accused of
committing her murder” were harmless because they were “not in any way reasonably calculated to
benefit the State or prejudice [the] appellant”); see also Marks v. State, 617 S.W.2d 250, 252 (Tex.
Crim. App. 1981) (panel op.).
CALVERT—100
after they stopped him, they broke his window and pulled him out.173 Thus, we overrule this
complaint.
Appellant also complains about the following discussion concerning the license plates
on his car:
[APPELLANT]: Okay. Then objection [to State’s Exhibit 164] under 403,
404(b), lack of personal knowledge, lack of predicate, lack of foundation,
1002, 1003. There’s no predicate to this whatsoever.
THE COURT: All those objections are overruled. The officer [has] testified,
after looking at the photograph, that that plate is the one that was on the
vehicle you were fleeing in and taken out of, so—and obviously the objection
is overruled, and that exhibit -- what’s the number?
[APPELLANT]: I would object to the Court’s comments.
THE COURT: I’m summing up the evidence, which is the predicate for my
ruling, based on your objections.
***
THE COURT: The Court’s ruling is there’s plenty of predicate for State’s
Exhibit 164, based on the officer’s testimony. It’ll be admitted. It’s admitted
into evidence. All the objections are overruled.
The judge made these comments in response to Appellant’s objections to an exhibit.
The trial judge stated that the officer’s testimony established the predicate for admitting the
exhibit. He did not opine that the officer’s testimony was true. Further, even if the comment
173
Cf. Marks, 617 S.W.2d at 252 (indicating that, even if a trial judge’s conduct had been a
comment on an eyewitness’s credibility, the fact that two other eyewitnesses identified the appellant
as the perpetrator offset any potential harm).
CALVERT—101
was improper, it was not reasonably calculated to benefit the State or prejudice Appellant.174
Thus, we overrule this complaint.
Additionally, Appellant argues, the judge’s comments compounded the impression
that the judge was aligned with the State. He contends that the judge violated his obligation
to remain neutral and objective before the jury. Appellant concludes that the judge
committed reversible error by refusing to sustain his objections to the prosecutor’s
inflammatory comments and by expressing approval of some of those comments.
As discussed above, the judge’s comments were responsive to Appellant’s objections
and were based on evidence presented during the proceedings. In light of our review of the
entire record and the overwhelming evidence of Appellant’s guilt, we conclude that none of
these comments prejudiced Appellant.
Cumulative Harmful Effect
Appellant argues that the prosecutor’s conduct was clearly calculated to inflame the
jury. He states that, by allowing this conduct, and often even joining in, the trial judge
abused his discretion and deprived Appellant of a fair trial. He contends that a “consistent
stream of errors,” including, “the mountain of irrelevant and prejudicial evidence admitted
in this case, the prosecutorial misconduct, and judicial commentary” harmed him. He asserts
that, in cases such as this one where the prosecutor devotes significant parts of his closing
174
See Moody, 827 S.W.2d at 879.
CALVERT—102
argument to erroneously admitted evidence, reviewing courts have found reversible error.
A number of errors may be found harmful in their cumulative effect.175 However,
having concluded that Appellant has not preserved most of the complaints that he now raises,
and that the preserved claims either lack merit or are harmless, we cannot conclude in this
case that the cumulative effect of trial court’s purported errors has deprived Appellant of his
rights of due process and a fair trial. Point of error thirteen is overruled.
L.C.’S COUNSELING
In points of error fourteen, fifteen, and sixteen, Appellant challenges the testimony
of Judith Lester, a therapist who held counseling sessions with L.C. We will address points
of error fourteen and fifteen together, and then address point of error sixteen.
Points Fourteen and Fifteen: L.C.’s Statements to Lester
In point of error fourteen, Appellant asserts that the judge erroneously admitted
Lester’s testimony and treatment records under the hearsay exception for statements made
for medical diagnosis or treatment, Rule 803(4) and the decisions in Taylor v. State and
Munoz v. State.176 He argues that the State failed to establish the predicate for admission of
therapy testimony under Rule 803(4). He also argues that this case is distinguishable from
175
Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999).
176
Taylor v. State, 268 S.W.3d 571 (Tex. Crim. App. 2008); Munoz v. State, 288 S.W.3d 55
(Tex. App.—Houston [1st Dist.] 2009, no pet.) (each holding a child-declarant statements to a
mental-health professional admissible under Rule 803(4)).
CALVERT—103
Taylor and Munoz because, unlike the child-declarants in those cases, (1) L.C. was not a
victim of, but was instead an eyewitness to, the charged offense, and (2) L.C. did not testify.
Appellant further alleges that the introduction of hearsay statements when the declarant does
not testify violates the Confrontation Clause.
The trial judge determines preliminary questions of the admissibility of evidence.177
We review a trial judge’s decision to admit or exclude evidence under an abuse of discretion
standard.178 A trial judge abuses his discretion only when his ruling is so clearly wrong as
to lie outside the zone of reasonable disagreement.179
In general, the proponent of hearsay testimony has the burden of proving to the trial
judge by a preponderance of the evidence that the testimony is admissible under a hearsay
exception.180 Rule 803(4) provides a hearsay exception for statements made for medical
diagnosis or treatment, regardless of whether the declarant is available to testify. Statements
fall under that exception if they are made for, and are reasonably pertinent to, medical
diagnosis or treatment, and if they describe medical history, past or present symptoms, their
inception, or their general cause. In the context of long-term, after-the-fact, mental-health
177
See TEX . R. EVID . 104(a); Vinson v. State, 252 S.W.3d 336, 340 n.14 (Tex. Crim. App.
2008).
178
Taylor, 268 S.W.3d at 579; Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003).
179
Taylor, 268 S.W.3d at 579.
180
See Vinson, 252 S.W.3d at 340 n.14; see, e.g., White v. State, 549 S.W.3d 146, 152 (Tex.
Crim. App. 2018); Alvarado v. State, 912 S.W.2d 199, 215 (Tex. Crim. App. 1995).
CALVERT—104
treatment for a child, the proponent should make it readily apparent on the record that: (1)
it was important to the efficacy of the treatment for the child-declarant to be truthful and to
disclose the perpetrator’s true identity, and (2) the child, before the disclosure, understood
that importance.181 The perpetrator’s identity may be pertinent to treatment when it helps the
therapist fully discover the extent of the child’s emotional and psychological injuries.182
“To determine whether a child understands the importance of truthfulness when
speaking to medical personnel, the reviewing court looks to the entire record.” 183 “If a
child-declarant can and does believe that his statement to a mental-health professional will
facilitate his diagnosis or treatment, . . . his out-of-court statement should be admissible
under Rule 803(4) . . . .” 184
In this case, Lester initially explained before the jury that she would testify about
information she had acquired as L.C.’s therapist. On Appellant’s motion, the trial judge
excused the jury and conducted a Rule 705/Daubert hearing at which the State presented
evidence to meet the two-part predicate.185 Lester testified that she had provided counseling
181
See Taylor, 268 S.W.3d at 588-91.
182
Cf. Taylor, 268 S.W.3d at 591.
183
Franklin v. State, 459 S.W.3d 670, 676-77 (Tex. App.—Texarkana 2015, pet. ref’d)
(citing Green v. State, 191 S.W.3d 888, 896 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d)).
184
Taylor, 268 S.W.3d at 588.
185
TEX . R. EVID . 705 (concerning a party’s ability to examine an expert about the facts or data
underlying the expert’s opinion); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
589-92 (1993) (discussing the admissibility requirements for expert scientific testimony).
CALVERT—105
services for L.C. and was prepared to answer questions about their counseling sessions. She
acknowledged that she had no personal knowledge of the offense. She stated that, in addition
to counseling L.C., she had counseled his guardians and his sister. Lester had met with L.C.
about sixteen times, starting in November 2014, and she continued to meet with him twice
a month. She confirmed that she would testify to statements that L.C. had made to her in the
course of treatment, and she would discuss pictures L.C. had drawn as part of his treatment.
Additionally, the prosecutor expressed his intent to introduce Lester’s records of L.C.’s
treatment. The prosecutor further questioned Lester:
Q. Was truth-telling -- within your counseling sessions with [L.C.], was
truth-telling a vital component in the course of treatment?
A. Yes, sir, it is.
Q. Okay. Is it your opinion that it was important to the efficacy of the
treatment that [L.C.] disclose the true identity of the perpetrator?
A. Yes, it’s very important.
Q. Prior to the disclosure, was it readily apparent[] to [L.C.] that this was the
case?
A. Absolutely.
Q. Were these statements made to you by [L.C.] pertinent to his treatment?
A. Yes.
Q. Were the statements identifying the perpetrator likewise pertinent to the
treatment?
A. Yes.
CALVERT—106
Q. Was it important to the efficacy of the treatment that you know the identity
of the perpetrator?
A. Yes. It tends to be more traumatic, especially for children, when we’re
talking about trauma that happens within the attachment of significant
caregivers.
The trial judge found that Lester was treating and counseling L.C., the alleged
perpetrator was L.C.’s father, and there was no requirement that Lester expressly state that
L.C. recognized the need to be truthful. Accordingly, the judge ruled that Lester’s testimony
conveying L.C.’s statements concerning the alleged offense was admissible under Rule
803(4).
Before the jury, the prosecutor elicited the same predicate testimony from Lester.
Lester then elaborated on the counseling process and vouched for L.C.’s truthfulness:
Q. Is there anything that you think is relevant, as far as -- that I haven’t asked
you about, things [L.C.] has said to you regarding his father?
***
A. I think the thing I would say is that [L.C. has] been consistent over time.
He’s told me the same series of events.
The way that I treat children using these trauma interventions is that I am very
open-ended, and I give very open instructions. Draw me a picture that you can
tell me the story of what happens. I review with him regularly why he comes
to see me.
And part of that is that I know that it’s extremely effective for children, and for
adults, for that matter, to heal from trauma by being able to tell their story.
His story has been consistent over time. He has -- he clearly draws the same
thing again, again, again, and [states] that he wants his voice to be heard that
[his father] killed [his mother].
CALVERT—107
During Appellant’s cross-examination of Lester, she further explained her counseling
procedures:
Q. In the course of your treatment or in talking with [L.C.], how did you
impress on him the fact that what he needs to say needs to be the truth?
***
A. He and I have actually had conversations about the difference between
truth and story telling so that I could have a sense of making sure that, at 7, he
understands what’s the truth and what’s a lie or what’s a story. So he and I
have actually talked about that in session.
Q. What is the purpose, in general, if you know, of the counseling session for
a child to engage in therapy with a person? Not necessarily your -- in your
actual interactions, but in general terms, what is -- what is the end result?
A. Each individual family and client gets to determine what their goals are for
therapy. In his particular instance, his overall -- the overarching goal is for
him to be able to adjust to the life experiences that he’s had and adjust to the
placement in a new family, all these big changes that have happened.
Within that, trauma treatment gets -- gets indicated so that he can tell the story
of what’s happened to him and then examine the feelings surrounding that
story and examine any particular kind of long-lasting trauma, like trauma
triggers, sensory triggers that might come up for him that might make it very
difficult for him to live a very full and rich life.
Q. Obviously that would be not something that you would tell him in those
terms, correct?
A. I actually use just about this language with kids.
On redirect, Lester affirmed that she had no concerns that L.C. had been “manipulated
in any way” when he recounted his experience. She perceived that L.C. reported what he
actually saw.
CALVERT—108
On these facts, the trial judge properly admitted Lester’s testimony and records 186
conveying L.C.’s statements that were pertinent to his treatment under Rule 803(4).187 Lester
testified that L.C. was aware that it was important for his treatment that he disclose the
perpetrator’s true identity during their counseling sessions. She also testified that they
discussed the difference between truth and story-telling and that L.C. understood “what’s the
truth and what’s a lie or what’s a story.” Further, they talked about their treatment goals,
which were to help L.C. adjust to his life experiences and his new family situation.
Appellant’s allegation that Lester’s testimony and the records conveying L.C.’s statements
were inadmissible hearsay is without merit.
Further, Appellant’s other arguments also fail. He asserts that the statements made,
even if important to the efficacy of the treatment, were nevertheless inadmissible because (1)
L.C. was a witness-declarant rather than a victim-declarant, and (2) L.C. did not testify. Rule
803(4) is not limited to victim-declarants in the first place. And the Rule 803 hearsay
exceptions apply regardless of whether the declarant is available as a witness.
Appellant also argues that the admission of Lester’s testimony and treatment records
violated the Confrontation Clause. Under the Confrontation Clause, a “testimonial”
statement is inadmissible at trial unless the declarant either takes the stand and is subject to
186
The State introduced the treatment records as business records, with Lester being both the
author and the records custodian. Lester testified that she recorded information from each counseling
session within 24 hours of the session and that she kept the records in the regular course of business.
187
See Taylor, 268 S.W.3d at 580 (noting that the rationale behind Rule 803(4) relies upon
the declarant’s motive to tell the truth, which guarantees sufficient trustworthiness).
CALVERT—109
cross-examination, or is unavailable and the defendant had a prior opportunity for
cross-examination.188 Testimonial statements are those “made under circumstances which
would lead an objective witness reasonably to believe that the statement would be available
for use at a later trial.” 189
In determining whether a hearsay statement is “testimonial,” the primary focus is upon
the objective purpose of the interview or interrogation, not upon the declarant’s
expectations.190 Generally speaking, a hearsay statement is “testimonial” when the
circumstances objectively indicate that the primary purpose of the interview or interrogation
is to establish or prove past events potentially relevant to later criminal prosecution.191
In this case, the primary purpose of L.C.’s treatment sessions was to help him cope
with his memories of the offense and the loss of his parents, and to help him adjust to his new
life and family.192 Accordingly, L.C.’s statements to Lester were non-testimonial. Therefore,
188
Burch v. State, 401 S.W.3d 634, 636 (Tex. Crim. App. 2013).
189
Id. (quoting Crawford v. Washington, 541 U.S. 36, 52 (2004)).
190
Davis v. Washington, 547 U.S. 813, 822-23 (2006).
191
De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008).
192
See, e.g., Lollis v. State, 232 S.W.3d 803, 809-10 (Tex. App.—Texarkana 2007, pet. ref’d)
(holding that a child-declarant’s statements to a licensed professional counselor who was providing
therapy to assist him in recovering from the trauma of abuse were non-testimonial and admission did
not violate the defendant’s right to confrontation); see also Melendez-Diaz v. Massachusetts, 557
U.S. 305, 312 n.2 (2009) (noting that medical records created for purposes of treatment are not
testimonial within the meaning of Crawford).
CALVERT—110
Lester’s testimony relating L.C.’s statements did not violate the Confrontation Clause. Points
of error fourteen and fifteen are overruled.
Point of Error Sixteen: Lester’s Opinion Testimony
In point of error sixteen, Appellant contends that the trial judge erred in allowing
Lester’s testimony about L.C.’s feelings at the time of trial and her concern, and the concerns
of other family members, over whether L.C. would have to testify. Appellant asserts that this
testimony went “far beyond the scope” of Rule 803(4) and was improper under Rules 701
and 702.
Both lay and expert witnesses can offer opinion testimony.193 Rule 701 applies to the
testimony of a witness who personally witnessed or participated in the events about which
the witness is testifying, while Rule 702 pertains to the testimony of a witness who was
brought in to testify as an expert.194 To be admissible under Rule 701, a witness’s opinion
testimony must be rationally based on her perception and helpful to the jury in clearly
understanding her testimony or determining a fact in issue.195 “An opinion is rationally based
on perception if it is an opinion that a reasonable person could draw under the
circumstances.” 196
193
See TEX . R. EVID . 701, 702; see also Osbourn v. State, 92 S.W.3d 531, 535 (Tex. Crim.
App. 2002).
194
Osbourn, 92 S.W.3d at 535.
195
TEX . R. EVID . 701.
196
Fairow, 943 S.W.2d at 900.
CALVERT—111
“When a witness who is capable of being qualified as an expert testifies regarding
events which he or she personally perceived, the evidence may be admissible as both Rule
701 opinion testimony and Rule 702 expert testimony.” 197 As a general rule, opinions that
are based on observations that do not require significant expertise to interpret and that are not
based on a scientific theory are admissible as lay opinions if the requirements of Rule 701
are met.198 “It is only when the fact-finder may not fully understand the evidence or be able
to determine the fact in issue without the assistance of someone with specialized knowledge
that a witness must be qualified as an expert.” 199
Lester possessed specialized knowledge, but L.C.’s demeanor, his statements, and the
expressions on the faces of the figures in his drawings, did not require significant expertise
to interpret. Lester’s opinions that L.C. was “sad” and “misse[d] his mother very much,” and
that his account of the offense had been consistent over time, at least , were opinions that a
reasonable person, even without significant expertise, could draw under the circumstances.
Her opinions were rationally based on her personal perceptions and helped the jury clearly
understand L.C.’s emotional state and his recollection of the offense. Accordingly, Lester’s
opinion testimony was admissible under Rule 701, regardless of whether it was beyond the
scope of Rule 803. Point of error sixteen is overruled.
197
Osbourn, 92 S.W.3d at 536.
198
Id. at 537.
199
Id.
CALVERT—112
ADAMS’S, WHISENHUNT’S, AND CAMPBELL’S TESTIMONY
In point of error seventeen, Appellant asserts that the trial judge committed reversible
error by admitting the testimony of three of Jelena’s friends—Adams, Whisenhunt, and
Campbell—conveying her statements concerning her fear of Appellant. He contends that this
testimony was hearsay, was unfairly prejudicial, and violated the Confrontation Clause. On
the same grounds, he also challenges his sister Campbell’s testimony conveying his ex-wife
Adams’s statements concerning Appellant’s abuse during their marriage.
Appellant asserts that Jelena’s hearsay statements were not reflective of her state of
mind but instead were her memories of specific events. Therefore, he argues, they were not
admissible under Rule 803(3)’s hearsay exception200 and the trial judge abused his discretion
by admitting them. Appellant further argues that, although there was considerable evidence
that he was the person who shot and killed Jelena, there was “a substantial and legitimate
issue” as to whether the State could prove the additional elements necessary to convict him
of capital murder. He contends that the complained-of testimony distracted and inflamed the
jury. He states that, given the voluminous and highly prejudicial nature of this testimony, its
admission was harmful and he is entitled to a new trial. We will address Adams’s,
Whisenhunt’s, and Campbell’s testimony separately.
200
In relevant part, Rule 803(3) provides that the hearsay rule does not exclude: “A statement
of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory,
or physical condition (such as mental feeling, pain, or bodily health), but not including a statement
of memory or belief to prove the fact remembered or believed . . . .” TEX . R. EVID . 803(3).
CALVERT—113
Adams
At trial, Adams testified that on the morning of the offense, Jelena had called her to
talk about Appellant. The prosecutor asked Adams about the conversation. When Adams
began to answer, Appellant interrupted her, objecting to “lack of personal knowledge” and
“no foundation.” His objections were overruled. Adams testified that Jelena told her that
Appellant wanted to pick up the children at Jelena’s house instead of keeping their original
arrangement to meet in the deli parking lot and that she was terrified of him being in her
house.
The prosecutor asked Adams if she and Jelena had previously talked about Jelena’s
fear of Appellant. Appellant interrupted Adams’s response with a hearsay objection, which
was overruled. Adams testified that Jelena “was very afraid of him” and had related that
Appellant had, on many occasions, threatened to kill Jelena and take the children. Jelena and
the children even lived with Adams for a while out of concern for their safety. They had an
agreement that if anything happened to either one of them, the survivor would make sure that
justice was done because they knew that Appellant would “be behind it[.]” Adams further
testified, “[H]e’s threatened me many times in the past, as well as my family.” Appellant’s
objection to hearsay and “to lack of personal knowledge, as far as family,” was overruled.
Appellant objected on grounds of unfair prejudice after Adams testified that she
feared for Jelena because of what she, herself, had endured while married to Appellant. This
untimely objection did not preserve error, and so we will not consider this ground on
CALVERT—114
appeal.201 Further, we will not consider Appellant’s Confrontation Clause allegation because
he did not object to Adams’s testimony on this ground.202 The only ground that Appellant
preserved for appeal that comports with his current challenges to Adams’s testimony is
hearsay.203 We limit our review accordingly.
Adams’s testimony concerning her own feelings and experiences, including her
history with Appellant, was not hearsay because it did not convey a third party’s out-of-court
statements.204 And Adams’s testimony conveying Jelena’s expressions of fear were
admissible as statements of Jelena’s then-existing mental and emotional condition.205
We next turn to Adams’s testimony concerning her agreement with Jelena to seek
justice against Appellant if anything happened to one of them. This testimony was
admissible to the extent that it expressed Adams’s and Jelena’s fear of Appellant and belief
201
See TEX . R. APP . P. 33.1(a); Luna v. State, 268 S.W.3d 594, 604 (Tex. Crim. App. 2008)
(holding that an untimely objection, made after the question was asked and answered, did not
preserve error).
202
See Holland v. State, 802 S.W.2d 696, 700 (Tex. Crim. App. 1991) (concluding that a
hearsay objection does not preserve a claim of constitutional error because evidentiary and
constitutional errors “are neither synonymous nor necessarily coextensive”).
203
See Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) (“The point of error on
appeal must comport with the objection made at trial.”).
204
See TEX . R. EVID . 801(d) (defining hearsay as a statement, other than one made by the
declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted).
205
See TEX . R. EVID . 803(3) (excluding from the hearsay rule a witness’s testimony relating
the declarant’s statements of her then-existing state of mind and emotional condition); Martinez, 17
S.W.3d at 688 (finding that a witness’s testimony relating the victim’s statement that she was afraid
of the appellant was admissible under Rule 803(3)).
CALVERT—115
that he posed a threat, but not to show that the two women had a specific agreement or that
Adams acted in accordance with that agreement.206 “As long as the trial court’s ruling is
within the ‘zone of reasonable disagreement,’ there is no abuse of discretion, and the trial
court’s ruling will be upheld.”207 In light of the permissible purpose of this
testimony—illustrating the two women’s intense fear of Appellant—the trial judge did not
abuse his discretion by admitting it. Accordingly, any arguable error in admitting this part
of Adams’s testimony was not reversible.
However, Adams’s testimony conveying Jelena’s previous statements that Appellant
had threatened to kill her and take the children was not admissible under Rule 803(3).
Hearsay testimony regarding the declarant’s emotion or “mental feeling” is admissible, but
206
See, e.g., Martinez, 17 S.W.3d at 688 (stating that testimony conveying the capital murder
victim’s plea for the witness to call the sheriff if anyone saw the appellant was not hearsay under
Rule 801(d) because it was admitted to show the victim’s fear of the appellant, not to show that the
sheriff’s office was called); McDonald v. State, 911 S.W.2d 798, 806 (Tex. App.—San Antonio
1995, no pet.) (finding that a witness’s testimony that the victim had told her she had changed the
locks to protect herself from the defendant was admissible to show the victim’s state of mind under
Rule 803(3)).
207
See De La Paz, 279 S.W.3d at 343-44.
CALVERT—116
hearsay evidence describing why the declarant was afraid is not.208 Thus, the trial court erred
in admitting this testimony. Our inquiry, however, does not end there.
Error in admitting testimony is reversible only if it affected the Appellant’s substantial
rights.209 A substantial right is affected when the error had a substantial and injurious effect
or influence in determining the jury's verdict.210 But if the improperly admitted evidence did
not influence the jury or had but a slight effect upon its deliberations, such non-constitutional
error is harmless.211 Appellant argues that any error was harmful because there was a
substantial doubt that he had committed the acts that elevated the offense from murder to
capital murder, and that the improperly admitted hearsay evidence harmed him by distracting
and inflaming the jury. We disagree. Adams’s objected-to inadmissible hearsay concerning
Appellant’s past threats to Jelena was no more inflammatory than the unobjected-to evidence
208
See, e.g., Glover v. State, 102 S.W.3d 754, 762-63 (Tex. App.—Texarkana 2002, pet.
ref’d) (stating that a witness’s testimony conveying the declarant’s statements that the defendant had
sex with her, offered to prove the defendant’s conduct toward the declarant, were “specifically
excluded from the state of mind exception.”); Skeen v. State, 96 S.W.3d 567, 576 (Tex.
App.—Texarkana 2002, pet. ref’d) (finding that the victim’s statements that the defendant had been
partying, tearing things up, and smoking marihuana were beyond the mental or emotional condition
exception); Buhl v. State, 960 S.W.2d 927, 933 (Tex. App.—Waco 1998, pet. ref’d) (distinguishing
between admissible hearsay statements conveying the declarant’s fear of the victim and inadmissible
statements explaining that this fear was caused by the victim’s having pulled guns on the declarant).
209
TEX . R. APP . P. 44.2(b).
210
See Coble, 330 S.W.3d at 280.
211
Id.
CALVERT—117
of these threats.212 And there was ample admissible evidence showing that Appellant went
to Jelena’s house intending to kill Jelena and abduct L.C.
This evidence consisted of Appellant’s communications with Jelena in the days before
the offense, which established that he was unwilling to accept the geographical amendment
that allowed her to move with the children to Houston. He was particularly unhappy about
the amendment’s terms for exchanging the children, and he focused this anger on Jelena.
Further, shortly before Appellant committed the instant offense, Jelena had refused to alter
the location of their planned exchange of the children after Appellant stated that he wanted
to pick them up from her house. Appellant canceled the exchange, but less than three hours
later, eyewitnesses heard shots, observed a man resembling Appellant carrying L.C. from
Jelena’s carport, saw him drive away with the boy in a car, and then discovered Jelena’s body
bearing numerous gunshot wounds. Other evidence, including a splintered door frame,
showed that Appellant forced his way into Jelena’s home before killing her and abducting
L.C. Based on this sequence of events, there was no “substantial doubt” that Appellant killed
Jelena in the course of committing kidnapping. In any event, as discussed under point of
error twenty-one, the properly admitted evidence clearly established that Appellant
intentionally killed Jelena while in the course of committing or attempting to commit
212
See Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (stating that the
improper admission of evidence is not reversible error when substantially the same facts are proven
by unobjected-to testimony).
CALVERT—118
burglary.213 We have fair assurance that the error in admitting Adams’s testimony about
Appellant’s threats to kill Jelena and take the children did not influence the jury or had but
a slight effect.
Whisenhunt
Stephanie Whisenhunt testified that she and Jelena were friends. Whisenhunt testified
in part to statements made by Jelena prior to her death and to Appellant’s own behavior that
Whisenhunt herself had observed. Appellant complains about specific statements made by
Whisenhunt at trial, only some of which he properly objected to. We first turn to Appellant’s
complaints based on Rule 403. Appellant preserved a Rule 403 challenge to only one topic
in Whisenhunt’s testimony. Specifically, Whisenhunt testified that she would sometimes
accompany Jelena to exchange the children with Appellant, and Appellant would do things
that made them uncomfortable. Appellant objected to this testimony based on “unfairly
prejudicial” and “no foundation,” which were overruled. Whisenhunt explained that
Appellant “would videotape us with his phone or iPad. There was one instance where he
watched us from the JCPenny’s parking lot and sent his mother to get the kids instead.” She
further testified that, after one exchange, Appellant followed them back to Jelena’s house,
and then he followed Whisenhunt when she left Jelena’s house. We need not conduct a Rule
213
See Balderas, 517 S.W.3d at 766 (holding that an unlawful entry into a home with the
intent to commit murder satisfies the burglary element of capital murder); Sorto, 173 S.W.3d at 471
(stating that, where the jury charge authorized a conviction on alternative theories, a guilty verdict
would be upheld if the evidence was sufficient on any one of them).
CALVERT—119
403 error analysis because we are persuaded that, in light of the properly admitted evidence
of Appellant’s guilt, this testimony did not cause the rendition of an improper judgment.214
We next address complaints based on hearsay. Some of the complained-of testimony
was admissible under Rule 801(e)(2)(A), which “plainly and unequivocally states that a
criminal defendant’s own statements, when being offered against him, are not hearsay.” 215
Specifically, Whisenhunt testified that she was with Jelena days before her murder when
Appellant called Jelena. Jelena turned on the speaker phone so that Whisenhunt could hear
Appellant. Whisenhunt described Appellant’s tone during this phone call as “very
condescending.” She could hear Appellant cursing at Jelena under his breath. The trial court
did not err in admitting this evidence because it was Appellant’s own statements.
Appellant failed to preserve his hearsay complaints as to some of Whisenhunt’s
testimony conveying Jelena’s statements. Significantly, Whisenhunt testified twice that
Jelena had told her that if anything happened to her, Whisenhunt should go to the police and
tell them that Appellant had something to do with it. Appellant objected the second time, but
failed to object the first time. Thus, he did not preserve error as to this testimony.216
214
See Thomas, 505 S.W.3d at 926-29.
215
Trevino v. State, 991 S.W.2d 849, 853 (Tex. Crim. App. 1999); TEX . R. EVID .
801(e)(2)(A).
216
See TEX . R. APP . P. 33.1(a).
CALVERT—120
Appellant preserved error based on hearsay objections as to some parts of
Whisenhunt’s testimony relating Jelena’s comments. Specifically, he objected to
Whisenhunt’s testimony that Jelena stated that:
• Appellant would criticize her parenting skills and generally insult her
when Jelena met Appellant to exchange the children;
• she was afraid of Appellant;
• Appellant had followed Jelena many times, she was “pretty sure that
he had tapped her phone calls,” and he had been watching Jelena’s
house;
• Appellant had a “very strange” and unhealthy obsession with guns;
• if he killed Jelena it would probably be with a gun;
• she was an only child to her parents; and
• on the morning of the offense, Appellant had called Jelena, “cussed her
out,” and canceled his visit with the children.
Appellant now asserts that these statements were inadmissible as hearsay that showed the
truth of past events remembered.217
217
See Rule 803(3); Dorsey v. State, 24 S.W.3d 921, 928-29 (Tex. App.—Beaumont 2000,
no pet.) (stating that hearsay testimony relating the declarant’s statements that were memories of
specific events were not admissible under Rule 803(3)).
CALVERT—121
Even assuming that the admission of these statements was error, that admission did
not influence the jury or had but a slight effect.218 The record includes considerable
admissible evidence of Jelena’s longstanding fear of Appellant and of Appellant’s hostile
communications with her in the days and hours leading up to the offense. Appellant admitted
in his statement to police that Jelena had told him that she was afraid of him. Further, given
the very close timing between Whisenhunt’s departure from Jelena’s house and the
commission of the offense, and evidence of the clear view of Jelena’s house from the parking
lot across the street, the jury could reasonably conclude that, on the day of the offense,
Appellant had been watching Jelena’s house.219 Additionally, Whisenhunt had personally
witnessed Appellant’s disturbing behaviors. Whisenhunt had also listened to Appellant’s
hostile communications with Jelena.
Further, the State presented substantial admissible evidence that, when West Monroe
police officers arrested Appellant, his vehicle contained a variety of loaded firearms,
magazines, and loose ammunition. In his recorded statement, Appellant told investigators
218
See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
219
Whisenhunt left Jelena’s house at 11:57 a.m. She knew the precise time she left because
she texted her mother to let her know that she was driving home. The prosecutor showed
Whisenhunt L.C.’s drawing of the offense in which L.C. was sitting on the couch while his father
shot his mother. Whisenhunt stated that the drawing was consistent with where she last saw L.C.
When Jelena walked Whisenhunt to her car, Whisenhunt told her to go back inside and lock her
door. As she was leaving, Whisenhunt looked around for Appellant’s silver Buick. She did not see
it, but she knew that someone in the parking lot across the street could watch Jelena’s house without
being seen. Whisenhunt received a news alert about the shooting just as she reached her own house.
She “knew instantly” what had happened.
CALVERT—122
that he would have shot the police officers who arrested him if his son had not been with
him. The State also presented admissible evidence that Appellant killed Jelena with five fatal
shots to her head and torso.220
This admissible evidence was similar to Whisenhunt’s objected-to hearsay testimony.
Thus, the parts of her hearsay testimony that were inadmissible did not influence the jury or
had but a slight effect.
Campbell
Campbell, Appellant’s sister, also testified at trial. Appellant complains about
Campbell’s testimony conveying Adams’s and Jelena’s statements. The record shows that
Appellant preserved his hearsay challenges to most of those statements. He preserved a Rule
403 challenge to only some parts of Campbell’s testimony. He did not object on grounds of
a Confrontation Clause violation, and, therefore, we will not consider that claim on appeal.221
Some of Campbell’s objected-to testimony was admissible under Rule 803(3), which
provides a hearsay exception for a “statement of the declarant’s then-existing state of mind
220
See Brooks, 990 S.W.2d at 287 (concluding that any error in admitting the hearsay
testimony was harmless in light of other unobjected-to evidence proving the same fact); see also
Livingston v. State, 739 S.W.2d 311, 333 (Tex. Crim. App. 1987) (“[I]f a fact to which objected-to
hearsay relates is sufficiently proven by other competent and unobjected to evidence, the admission
of the hearsay is properly deemed harmless and does not constitute reversible error.”).
221
See Clark, 365 S.W.3d at 339 (“The point of error on appeal must comport with the
objection made at trial.”).
CALVERT—123
(such as motive, intent, or plan) or emotional, sensory, or physical condition.” 222
Specifically, Campbell testified that Jelena contacted her several times on the day of the
offense. Jelena told Campbell about her conversation with Appellant regarding the exchange
of the kids. Jelena stated to Campbell that she was concerned for both her own and
Campbell’s safety. Campbell testified that Jelena’s tone of voice was consistent with her
being genuinely concerned for their safety. This testimony goes to Jelena’s state of mind on
the day of the offense, and therefore, the trial judge did not err in admitting this part of
Campbell’s testimony.
Some of Campbell’s objected-to testimony where Appellant preserved error was
inadmissible. This includes Campbell’s testimony about Appellant’s prior abuse of Adams.
On cross-examination, Appellant asked Campbell if Jelena and Adams had “said bad things
about me to you.” Campbell responded that they had told her about the bad things that
Appellant had done to them. Appellant asked Campbell, “So you believe . . . when Jelena
told you something or when [Adams] tells you something, correct?” Campbell affirmed that
she did. Campbell acknowledged that she had not personally seen the abuse that Jelena and
Adams had described:
Q. Anything bad that they ever told you about if they were scared, you know,
that wasn’t ever something that you had viewed personally, correct?
A. I did not view the physical abuse that you put towards both of them.
222
TEX . R. EVID . 803(3).
CALVERT—124
Q. So you have no idea if there ever was any kind of abuse whatsoever, as far
as personal experience, personal knowledge?
A. I was never there when physical abuse occurred.
Q. Okay.
A. I was there after.
Q. So – but you have no personal experience whatsoever seeing that what they
said was actually true?
A. I was never there at the time of the physical abuse.
On re-direct, the prosecutor asked Campbell if she had ever viewed the aftermath of
Appellant’s abuse. Campbell affirmed that she had. When she began to describe an occasion
on which she had seen this aftermath, Appellant objected to lack of personal knowledge. The
prosecutor responded that Appellant had opened the door by eliciting Campbell’s testimony
that she had not viewed any physical abuse and creating the impression that Campbell simply
disliked Appellant and believed what Jelena and Adams had told her. Appellant objected
under Rule 404(b) and asserted that his questioning “never opened the door to anything.”
The trial judge overruled the objection. When Campbell again began to testify about seeing
the aftermath of Appellant’s abuse, Appellant objected to hearsay, to lack of personal
knowledge, and under Rules 403 and 404(b). These objections were overruled.
Campbell described an incident in 1999, when Appellant called and asked her to go
to his house. He told her that he and Adams “had got into it” and there was an emergency.
Campbell testified that she went to the house and saw Appellant in handcuffs being placed
CALVERT—125
in a police car and Adams lying on the back patio. Adams could not move. The deputy told
Campbell that Appellant was going to jail and Adams was going to the hospital. Campbell
accompanied Adams to the hospital.
While in the emergency room, Campbell learned that Adams had a “very bad” bone
bruise and was otherwise bruised and scraped from being pulled through the dining room,
over a couch, and across the runners of a sliding glass door to the patio. Appellant’s
objection to lack of personal knowledge was overruled. Campbell testified that she learned
from Adams that, after Appellant had pulled her onto the patio, Adams had tried several
times to get up and go back inside. Appellant repeatedly pushed her down until she was
unable to get up. Appellant’s objections, citing lack of personal knowledge, speculation,
hearsay, and Rules 403 and 404(b), were overruled. Campbell stated that Adams had
persuaded Appellant that she was “really hurt.” Although “it took a while,” Appellant
eventually called Campbell and 911.
A victim’s out-of-court statements recounting her memory of events, rather than her
state of mind, are inadmissible.223 The hearsay statements in this part of Campbell’s
testimony fall within that category. The State failed to establish that any of this hearsay
evidence was admissible under Rule 803(3) or any other hearsay exception.224 Further, the
223
See, e.g., Dorsey, 24 S.W.3d at 928-29.
224
See Cofield v. State, 891 S.W.2d 952, 954 (Tex. Crim. App. 1994) (stating that, when a
(continued...)
CALVERT—126
testimony was not admissible under the rule of optional completeness because Appellant did
not challenge the fact that Campbell saw the aftermath of the abuse. Moreover, this
testimony did not establish an elemental or evidentiary fact, rebut a defensive theory, or serve
to clarify other hearsay.225 Rather, this testimony tended to show that Appellant was a bad
person with a propensity for abusing his wives.226 Therefore, the trial court erred in
admitting this testimony.
Other parts of Campbell’s testimony regarding Jelena where Appellant preserved error
were likewise inadmissible. Specifically, Campbell testified to instances where Jelena
expressed fear of Appellant. Campbell relayed that the first time Jelena expressed fear of
Appellant was when she was pregnant with her first child. Jelena commented, “What have
I gotten myself into? Now I’m going to be stuck with him for the next 18 years.” Campbell
further testified that in the last months of Jelena’s life, Jelena’s fear of Appellant intensified.
When asked how she knew this, Campbell testified that Jelena stated that Appellant had
threatened to kill her multiple times and that if Jelena ever died in an accident, to ensure that
her death was investigated.
224
(...continued)
defendant properly objected to hearsay, the State then had the burden to show that the proffered
evidence was admissible pursuant to a hearsay exception).
225
See Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1991) (stating that “if
extraneous offense evidence is not ‘relevant’ apart from supporting an inference of ‘character
conformity,’ it is absolutely inadmissible under Rule 404(b)”).
226
See Montgomery, 810 S.W.2d at 387.
CALVERT—127
The State failed to establish that Campbell’s testimony conveying Jelena’s hearsay
statements describing specific instances of Appellant’s threats and abuse were admissible
under Rule 803(3) or any other hearsay exception.227 For the same reasons the testimony
regarding Adams was inadmissible, this testimony regarding Jelena was inadmissible.
Further, Article 38.36228 permits a party to offer evidence of the defendant’s and
victim’s previous relationship, but such evidence must meet the requirements of the Rules
of Evidence.229 Therefore, although this testimony showed Appellant’s relationship with
Jelena at the time of the offense, it was inadmissible hearsay.
However, the improperly admitted testimony did not influence the jury or had but
slight effect because, as discussed previously, the State presented considerable admissible
227
See TEX . R. EVID . 802 (stating that hearsay is inadmissible unless a statute or rule provides
otherwise).
228
Article 38.36(a) provides:
In all prosecutions for murder, the state or the defendant shall be permitted to offer
testimony as to all relevant facts and circumstances surrounding the killing and the
previous relationship existing between the accused and the deceased, together with
all relevant facts and circumstances going to show the condition of the mind of the
accused at the time of the offense.
229
See Garcia, 201 S.W.3d at 702; Smith v. State, 5 S.W.3d 673, 692 (Tex. Crim. App. 1999)
(Keller, J., concurring and dissenting) (stating, concerning a prior version of Article 38.36, “[T]he
rules against hearsay, and other rules relating to the proper form in which evidence must be admitted,
are not affected by Article 38.36. The statute was intended only to address the admissibility of
evidence by its subject matter.”).
CALVERT—128
evidence of Jelena’s fear of Appellant and Appellant’s guilt.230 In these circumstances,
admitting Campbell’s extraneous-offense hearsay testimony concerning Appellant’s past
abuse of Adams and Jelena did not constitute reversible error. Point of error seventeen is
overruled.
WHETHER APPELLANT “OPENED THE DOOR”
In point of error eighteen, Appellant contends that the trial judge erroneously ruled
that he had “opened the door” to Campbell’s extensive prejudicial testimony. He states that
he merely elicited Campbell’s acknowledgment that she was not present when the abuse she
described took place. He argues that this did not open the door to the State asking Campbell
about additional hearsay statements concerning his extraneous bad conduct, including prior
instances of abuse and violation of related protective orders. Appellant states that all of
Campbell’s hearsay testimony was inadmissible under Rule 803(3), violated his confrontation
rights, and was prejudicial.
We concluded in point of error seventeen that , although Appellant’s questioning did
not open the door to Campbell’s extraneous-offense hearsay testimony, Appellant was not
harmed by its admission.
Appellant also complains about a comment the prosecutor made after asking Campbell
whether Jelena had told her that Appellant had threatened to slit her throat. The trial court
230
See Thomas, 505 S.W.3d at 926 (concluding that, if a non-constitutional error did not
influence the jury, or had but very slight effect, the judgment should be affirmed).
CALVERT—129
overruled Appellant’s Rule 403, Rule 404(b), and hearsay objections to that question.
Campbell responded that she did not recall that threat. The prosecutor then commented,
“Sometimes I get confused on who the statements were said to. ‘Slit the throat’ must have
been to another person.” Appellant did not object to this comment. Therefore, he did not
preserve error, and we need not consider his complaint on the merits.231 Point of error
eighteen is overruled.
FIREARMS EVIDENCE
In point of error twenty, Appellant asserts that the trial judge abused his discretion
during the guilt phase when he admitted irrelevant and prejudicial evidence of the firearms
that investigators found in the trunk of Appellant’s vehicle. Appellant argues that this
evidence was inadmissible because the prosecutor did not allege that any of the firearms
found in the trunk of Appellant’s vehicle were involved in the offense or that Appellant’s
possession of them was unlawful.
Appellant further states that the firearms evidence should have been excluded under
Rule 403 because its probative value was substantially outweighed by the danger of unfair
prejudice. He avers that the contents of the trunk did not serve to make a fact of consequence
more or less probable. He also argues that the weapons should have been excluded due to
their potential to impress the jury in an irrational and indelible way.
231
See TEX . R. APP . P. 33.1(a); see Coble, 330 S.W.3d at 282.
CALVERT—130
Rule 403 allows for the exclusion of otherwise relevant evidence when its probative
value is substantially outweighed by the danger of unfair prejudice.232 This rule carries a
presumption that relevant evidence will be more probative than prejudicial.233 We review a
trial judge’s ruling under Rule 403 for an abuse of discretion.234
Here, the firearms evidence was relevant and had a high probative value. Appellant
packed the trunk of his car with loaded firearms and ammunition before he left his mother’s
house on the morning of the charged offense. A receipt on the floorboard showed that he
purchased additional ammunition that morning. This conduct demonstrated advance
planning in anticipation of murdering Jelena and the drastic measures that Appellant was
prepared to take to avoid capture. Therefore, the firearms evidence was probative of
Appellant’s plan to murder Jelena and evade arrest.
Further, Appellant was arrested while fleeing from the crime scene to avoid capture.
In his statement to police, Appellant said that he would have shot the arresting officers if he
had not had L.C. in the car with him. Later, he asserted that he would have shot the officers
if he needed to defend L.C. He also stated that, during the chase, he considered committing
232
TEX . R. EVID . 403; see Davis, 329 S.W.3d at 806.
233
Santellan, 939 S.W.2d at 169.
234
Pawlak v. State, 420 S.W.3d 807, 810 (Tex. Crim. App. 2013); Gonzalez, 544 S.W.3d at
370.
CALVERT—131
“suicide by cop.” The firearms in Appellant’s trunk were relevant to assessing the credibility
of Appellant’s statement.
Appellant contends that the facts of this case are similar to those in Alexander v.
State235 in which the appellate court concluded that a revolver found in the residence where
the defendant was arrested was irrelevant and unfairly prejudicial. In Alexander, the victim
died from a rifle shot, and the suspect left the rifle at the crime scene. Three weeks later, the
defendant was arrested in a residence in another town. Investigators seized a .357 Magnum
from inside the residence.236 There was no showing that the residence was the defendant’s
or that the Magnum had any connection to the defendant or to the offense. On these facts,
the appellate court found that the Magnum was not relevant, and even if it was relevant, it
did not “compellingly serve to make a fact of consequence more or less probable.” 237 The
seizure of the Magnum had no probative value, and it had the potential to impress the jury
in an irrational but indelible way.238 And the State did not prove that the defendant committed
235
Alexander v. State, 88 S.W.3d 772 (Tex. App.—Corpus Christi-Edinburg 2002, pet. ref’d).
236
Id. at 774, 777.
237
Id. at 778.
238
Id.
CALVERT—132
an extraneous offense.239 Considering these factors, the appellate court held that the trial
court abused its discretion by admitting the Magnum into evidence.240
Here, Appellant’s reliance on Alexander is misplaced. Unlike the handgun in
Alexander, the firearms in this case were clearly connected to Appellant and to his
preparations for the offense and its aftermath. When police officers stopped Appellant, they
observed a handgun between his legs. A loaded Sig Sauer was on the floor beneath L.C.’s
car seat. On these facts, the evidence of loaded firearms in the trunk of Appellant’s car was
not unfairly prejudicial.
The trial judge did not abuse his discretion in determining that the probative value of
the firearms evidence was not substantially outweighed by the danger of unfair prejudice.
Point of error twenty is overruled.
AFFIRMATIVE DEFENSE INSTRUCTION
In point of error twenty-two, Appellant asserts that the trial judge erred in refusing to
instruct the jury regarding the affirmative defense to kidnapping. Section 20.03(a) provides
that a person commits the offense of kidnapping if he intentionally or knowingly abducts
another person. Section 20.01(2) defines the term, “abduct,” as restraining a person “with
intent to prevent his liberation by: (A) secreting or holding him in a place where he is not
239
Id.
240
Id.
 CALVERT—133
likely to be found; or (B) using or threatening to use deadly force.” Section 20.03(b)—the
section relevant to Appellant’s complaint—provides an affirmative defense to prosecution
when:
(1) the abduction was not coupled with intent to use or to threaten to use
deadly force;
(2) the actor was a relative of the person abducted; and
(3) the actor’s sole intent was to assume lawful control of the victim.
Sections 20.03(b)(2) and (3) constitute a confession-and-avoidance defense because
they do not negate any element of the offense of kidnapping but rather excuse what would
otherwise constitute criminal conduct. A defendant’s failure to testify, stipulate, or offer
evidence admitting to the offense prevents him from benefitting from a
confession-and-avoidance defense.241
Defense counsel requested a Section 20.03(b) instruction because “There’s no
showing that the death of [Jelena] was facilitating the possession of [L.C.]” and there was
evidence from which the jury could have found that Appellant took L.C. with him “as an
afterthought” so that L.C. would not be left alone in Jelena’s home. The trial judge denied
the requested instruction stating:
241
See Cornet v. State, 417 S.W.3d 446, 451 (Tex. Crim. App. 2013) (instruction on a
confession-and-avoidance defense is appropriate only when defendant essentially admits to every
element of the offense but interposes a justification to excuse it ); Gomez v. State, 380 S.W.3d 830,
834 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d) (concluding that a defendant did not
establish a confession-and-avoidance defense when his conflicting accounts of the incident did not
show that he admitted to the offense).
CALVERT—134
I don’t see where the evidence supports a submission of affirmative defense
under the facts of this case.
The affirmative defense, the abduction was not coupled with intent to use or
threaten to use deadly force. The door is kicked in. She’s shot six times. The
child is taken.
I’m going to deny that request. I just don’t think the evidence is there to
submit that affirmative defense to prosecution under this section.
Upon a timely request, the trial judge must instruct the jury on any defensive issue
raised by the evidence, even if the evidence is contradicted or weak.242
A defense is raised by the evidence if there is some evidence on each element of the
defense that, if believed by the jury, would support a rational inference that the element is
true.243 Therefore, for a defendant to be entitled to a jury instruction under Section 20.03(b),
there must be admitted evidence that, if believed, would support all three elements of the
affirmative defense.244
242
Art. 36.14; Rogers v. State, 550 S.W.3d 190, 193 (Tex. Crim. App. 2018); see also Rue
v. State, 288 S.W.3d 107, 110 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d).
243
See TEX . PENAL CODE § 2.04(c) (“The issue of the existence of an affirmative defense is
not submitted to the jury unless evidence is admitted supporting the defense.”).
244
See Rue, 288 S.W.3d at 110; Green v. State, 881 S.W.2d 27, 28-29 (Tex. App.—San
Antonio 1994, pet. ref’d).
CALVERT—135
When reviewing the trial judge’s decision not to instruct on a defensive issue, we
consider the evidence in the light most favorable to the defendant’s requested submission.245
We review the judge’s decision for an abuse of discretion.246
Assuming, without deciding, the trial court's failure to give the Section 20.03(b)
instruction was error, we examine whether the error was harmless or requires reversal.
Appellant made a timely request for the charge. Therefore, reversal is required if the error
is calculated to injure an appellant's rights, which means no more than that there must be
some harm to Appellant from the error.247 In other words, an error that has been properly
preserved by objection will call for reversal as long as the error is not harmless. The degree
of harm must be assayed in light of the entire jury charge, the state of the evidence, including
the contested issues and weight of probative evidence, the argument of counsel and any other
relevant information revealed by the record of the trial as a whole.
Appellant’s theory, as summarized at closing, was that the evidence may have
supported murder (“If the State has proved beyond a reasonable doubt that Mr. Calvert
committed the offense of murder, so be it. But like Mr. Cassel says, you know, that's not
enough. . . . There has to be something more.”). But here, there was not “something more.”
The evidence did not support a kidnapping (Appellant did not “abduct” L.C.), or a burglary
245
Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006).
246
Id.
247
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).
CALVERT—136
(Appellant was “just mad and upset and went over there to talk about it, knocked at the door,
and whatever happened after that point happened”). So, to the extent that the jury could have
found the “abduction”of L.C. (as opposed to the killing of Jelena) was not “coupled” with
the intent to use deadly force, the jury had an out: it could have convicted Appellant of
murder. Moreover, when a jury returns a general guilty verdict on an indictment charging
alternate methods of committing the same offense, the verdict stands if the evidence is
sufficient to support a finding under any of the theories submitted. The presence of
overwhelming evidence of guilt plays a determinative role in resolving the issue and may be
considered when assessing jury-charge error.248 Here, as discussed in the response to point
of error twenty-two, the evidence of murder in the course of burglary was overwhelming.
Under these circumstances, the failure of the court to give the Section 20.03(b) did not cause
“some harm.”
Point of error twenty-two is overruled.
JURY UNANIMITY
In point of error twenty-three, Appellant asserts that he was denied his right to a
unanimous verdict when the trial judge refused to provide the jury with a special verdict form
and thereby allowed jurors to convict Appellant even if they failed to agree unanimously on
the underlying offense needed to establish capital murder. Appellant argues that there were
substantial grounds to question whether he was guilty of kidnapping when he took L.C. from
248
Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012).
CALVERT—137
Jelena’s home. Moreover, Appellant states, there was a significant question whether he was
guilty of burglary, in light of L.C.’s statement to Lester that he heard a knock on the door
before Appellant entered the house and shot Jelena. Appellant avers that his request for a
special verdict form should have been granted, “given the unique set of facts in this
situation.” He further contends that the United States Constitution’s due process clause
requires that the same underlying offense, as an element of the offense of capital murder, be
found unanimously and beyond a reasonable doubt.
We have repeatedly held that a jury’s general verdict of “guilty of capital murder as
charged in the indictment” does not violate the unanimity requirement when capital murder
was charged in separate paragraphs, each alleging an alternative manner or means of
committing capital murder.249 This holding applies “equally to all alternate theories of capital
murder” contained in Texas Penal Code Section 19.03, “whether they are found in the same
or different subsections, so long as the same victim is alleged for the predicate murder[.]” 250
Therefore, the jury’s general verdict in response to instructions providing alternative manners
or means of committing capital murder did not violate the unanimity requirement. Point of
error twenty-three is overruled.
PUNISHMENT-PHASE EVIDENCE: OFFICER LOGAN
249
See Luna, 268 S.W.3d at 600-01; see also Martinez v. State, 129 S.W.3d 101, 103 (Tex.
Crim. App. 2004).
250
Gamboa v. State, 296 S.W.3d 574, 584 (Tex. Crim. App. 2009).
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In point of error twenty-four, Appellant asserts that the trial judge committed
reversible error at the punishment phase by admitting 1) former TDCJ corrections officer
David Logan’s graphic testimony about an incident in which an inmate in administrative
segregation stabbed him in the eye with a pencil, leaving him blind in one eye and 2) State’s
Exhibit 368, a brain scan that showed the pencil still embedded. Appellant maintains that
his timely objections under Rules 401, 402, and 403 should have been sustained.
Additionally, he contends that the admission of this evidence violated his Eighth Amendment
right to individualized sentencing. Appellant further argues that the admission of this
evidence was not harmless because there was minimal evidence that he presented a threat of
future dangerousness; his history of violence was limited to domestic incidents, and he had
no record of assaultive or violent conduct while in jail.
Appellant acknowledges that evidence of the violent nature of Texas prisons is
generally relevant to the question of a defendant’s future dangerousness, but he avers that
Logan’s testimony, describing another inmate’s violent attack in graphic detail, was not even
“marginally relevant” to the question of whether Appellant should receive the death penalty.
Alternatively, any marginal relevance was outweighed by this evidence’s graphic and highly
prejudicial nature. We agree with this latter proposition, but we find the error harmless.
Logan testified that he had served in the Navy “[f]our years during Desert Storm”
before becoming a corrections officer, and worked for over ten years in that capacity until
an unprovoked attack by an inmate left him disabled and unable to work. He testified that
he was injured after he and another officer prepared to escort an inmate to the recreation
CALVERT—139
yard. That inmate was in the most restrictive custody classification within administrative
segregation. Following standard procedure, Logan visually searched the inmate and then
handcuffed him through the slot in the cell door. In the few seconds between handcuffing
the inmate and opening the cell door, the inmate freed one hand. When Logan opened the
cell door, the inmate hit him and stabbed him in the eye with a pencil that he had been given
to work on his legal case. Logan struggled with the inmate and eventually forced him back
into his cell. Logan was then life-flighted to a hospital.
A brain scan showed that the pencil had gone through his eye and four inches into his
brain, coming to rest against the artery of his brain. He was left completely blind in his left
eye. He did not know why the inmate attacked him but he surmised that the inmate, who was
serving consecutive sentences totaling 115 years, “probably wanted to die” and therefore
attempted to kill a guard. Logan said that if an inmate “has it on his mind to hurt you, there's
nothing you can do.”
With a few exceptions that do not apply here, Article 37.071, section (2)(a)(1)
provides that, at the punishment phase of a capital case, the parties may present evidence “as
to any matter the court deems relevant to sentence.” In this case, Logan’s testimony about
the attack he suffered and the brain scan exhibit were marginally relevant to the jury’s
assessment of Appellant’s future dangerousness because they illustrated the ease with which
an inmate—even in very secure prison conditions —could seriously injure another person.251
251
See, e.g., Canales v. State, 98 S.W.3d 690, 699 (Tex. Crim. App. 2003) (concluding that
the trial court did not abuse its discretion in admitting, over relevance and unfair prejudice
(continued...)
CALVERT—140
However, Rule 403 allows for the exclusion of otherwise relevant evidence when its
probative value is substantially outweighed by the danger of unfair prejudice. “The term
‘probative value’ refers to the inherent probative force of an item of evidence—that is, how
strongly it serves to make more or less probable the existence of a fact of consequence to the
litigation—coupled with the proponent’s need for that item of evidence.” 252 “‘Unfair
prejudice’ refers to a tendency to suggest decision on an improper basis, commonly, though
not necessarily, an emotional one.” 253
We afford particular respect to the trial judge’s exercise of discretion in applying Rule
403.254 Here, the probative value of Logan’s testimony about being stabbed and the brain
scan of Logan’s injury was substantially outweighed by the danger of unfair prejudice.255
Although there was evidence of 1) Appellant’s possession of dangerous contraband in his
cell (a handcuff key, nail clippers, and a razor blade), and 2) Appellant’s hostile,
251
(...continued)
objections, an expert’s accounts of inmates defeating the locking mechanisms on their cell doors;
testimony was responsive to the defense’s position that a life-sentenced inmate housed in
administrative segregation would not be dangerous); Jenkins v. State, 912 S.W.2d 793, 817-18 (Tex.
Crim. App. 1993) (op. on reh’g) (record contained evidence that the appellant was a drug user and
that he was particularly dangerous when under the influence, an expert’s testimony about the
availability of drugs in prison was relevant to future dangerousness and was not “fundamentally
unfair”).
252
Casey, 215 S.W.3d at 879; Gonzalez, 544 S.W.3d at 372.
253
Davis, 329 S.W.3d at 806; Gonzalez, 544 S.W.3d at 373.
254
Moreno v. State, 22 S.W.3d 482, 487-88 (Tex. Crim. App. 1999); Gonzalez, 544 S.W.3d
at 370.
255
Cf. Reese, 33 S.W.3d at 243 (“[T]he facts that the photograph depict[s] are not facts of
consequence that were in dispute.”).
CALVERT—141
disrespectful, and dishonest conduct in jail and in the courtroom, there was no evidence that
he had attempted to attack or physically injure anyone. Therefore, the State’s evidence,
focusing on a horrific injury inflicted by an inmate who had no connection to Appellant, was
likely to impress the jury in some irrational, yet indelible, way. Further, in light of the ample
admissible evidence of the significant potential for and actual violence in prison, the State
did not need this exhibit.
But, given the record as a whole, we hold that its admission was harmless. The
evidence did not have a substantial and injurious effect on the punishment decision because
the State presented considerable admissible evidence of Appellant’s future dangerousness
and the prison conditions in which he would be confined.256 The presentation of Logan’s
testimony about the stabbing and State’s Exhibit 368 was a small part of the State’s lengthy
case at the punishment phase. The State’s “overwhelming focus” was on Appellant’s
behavior and prison conditions.257 Therefore, we reject Appellant’s argument that the error
was not harmless.
256
Cf. Garcia, 126 S.W.3d at 927 (holding that the erroneous admission of evidence was
harmless because (1) “there was a considerable amount of other evidence from which the jury could
have concluded that [the] appellant had been abusive toward his wife”; and (2) “there was more than
ample evidence to support the jury’s affirmative answer to the special issue concerning [the]
appellant’s future dangerousness”).
257
Cf. Cantu v. State, 939 S.W.2d 627, 637-38 (Tex. Crim. App. 1997) (concluding that the
erroneous admission of victim impact evidence was harmless given its sparsity, the fact that the State
did not mention it during arguments, and the overwhelming focus on the appellant’s behavior and
the circumstances of the offense).
CALVERT—142
Appellant’s assertion that Logan’s testimony violated the Eighth Amendment’s
requirement of individualized sentencing is without merit. The Supreme Court has not
applied the individualized sentencing requirement in assaying the admissibility of future
dangerousness evidence. Rather, the Supreme Court has held that a jury must be allowed to
consider all relevant evidence as to why a death sentence should or should not be imposed.258
The Supreme Court has also stated that it is unconvinced “that the adversary process cannot
be trusted to sort out the reliable from the unreliable evidence and opinion about future
dangerousness, particularly when the convicted felon has the opportunity to present his own
side of the case.” 259
The individualized sentencing requirement is satisfied when the jury is able to
consider and give full effect to a defendant’s mitigating evidence.260 Appellant does not aver
that he was prevented from presenting relevant mitigating evidence. Accordingly, we
conclude that the admission of Logan’s testimony did not violate the Eighth Amendment’s
individualized sentencing requirement. Point of error twenty-four is overruled.
PUNISHMENT-PHASE EVIDENCE: OPINION TESTIMONY AND
258
Jurek v. Texas, 428 U.S. 262, 271 (1976).
259
Barefoot v. Estelle, 463 U.S. 880, 901 (1983).
260
See, e.g., Kansas v. Marsh, 548 U.S. 163, 171 (2006) (“[A]s a requirement of
individualized sentencing, a jury must have the opportunity to consider all evidence relevant to
mitigation . . . .”); Jones v. United States, 527 U.S. 373, 381 (1999) (“[I]n order to satisfy the
requirement that capital sentencing decisions rest upon an individualized inquiry, a scheme must
allow a ‘broad inquiry’ into all ‘constitutionally relevant mitigating evidence.’”); Blystone v.
Pennsylvania, 494 U.S. 299, 307 (1990) (“The requirement of individualized sentencing in capital
cases is satisfied by allowing the jury to consider all relevant mitigating evidence.”).
CALVERT—143
VICTIM IMPACT EVIDENCE
In point of error twenty-five, Appellant asserts that the trial judge erred in allowing
three categories of improper testimony at the punishment phase: (1) a guard’s opinion of
Appellant’s future dangerousness based on Appellant’s jail and courtroom conduct while
representing himself; (2) victim impact evidence; and (3) opinions of mental health experts.
Appellant cites no authority for his position that a guard’s opinion based on his
observations of Appellant’s conduct was inadmissible, which was, in any event admissible
under Rule 701.261 Appellant also provides no argument and cites no legal authority in
support of his assertion that the State elicited improper victim impact testimony. Therefore,
these parts of his complaint are inadequately briefed.262
Regarding the third part of Appellant’s complaint, he argues in part that the State’s
first expert witness at the punishment phase, Dr. Edward Gripon, invaded the province of the
jury when he testified over objection that Appellant’s diagnosis of major depression was
unrelated to his commission of the offense. The record reflects that the prosecutor began a
question: “I mean, as far as when the jury is looking at these diagnoses and does that
mitigate the defendant’s actions in shooting his wife or—.” Defense counsel interrupted to
object that this question was “outside the doctor’s area of expertise.” The trial judge
261
See Fierro v. State, 706 S.W.2d 310, 317 (Tex. Crim. App. 1986) (finding that a probation
officer and a jail administrator, who both knew the defendant, could testify that the defendant would
be violent in the future); see also Fairow, 943 S.W.2d at 899 (concluding that a lay opinion
regarding another person’s mental state is admissible under Rule 701 as long as the proponent
establishes personal knowledge of the facts from which the opinion may be drawn).
262
See TEX . R. APP . P. 38.1(h), (i).
CALVERT—144
overruled the objection, but Gripon did not answer the question. Instead, the prosecutor
asked: “I mean, just what I’m saying is, is it relevant to these things at all, as far as his
culpability?” Gripon responded, “I don’t think in forensic psychiatry we have ever noted a
correlation between major depressive disorder and homicide.”
Appellant’s objection at trial (“outside the doctor’s area of expertise”) does not
comport with his complaint on appeal (“invaded the province of the jury”). Therefore, he
failed to preserve error.263 Moreover, opinion testimony is not objectionable solely on the
basis that it “embraces an ultimate issue to be decided by the trier of fact.” 264
Appellant further complains that the State’s second expert witness, Dr. Michael
Arambula, invaded the province of the jury when he testified that, because of “how
[Appellant] interacts, . . . when a woman, in particular, per his records, doesn’t do what he
wants, then she’s going to be at risk of being assaulted, threatened, restrained, . . . or else he
could control the situation by . . . , choking, hitting, any of those things[.]” Appellant did not
object to this testimony. Therefore, he failed to preserve error.265 Point of error twenty-five
is overruled.
263
See TEX . R. APP . P. 33.1; Gardner, 733 S.W.2d at 201.
264
TEX . R. EVID . 704; see Ramirez v. State, 815 S.W.2d 636, 650-51 (Tex. Crim. App. 1991)
(concluding that psychiatric expert opinion testimony concerning a defendant’s future dangerousness
that was based upon sufficient relevant facts was admissible, provided that those facts were within
the expert’s personal knowledge, assumed from common or judicial knowledge, or established by
the evidence).
265
TEX . R. APP . P. 33.1; Yazdchi, 428 S.W.3d at 844.
CALVERT—145
DEFINING “MITIGATING EVIDENCE”
Appellant’s points of error twenty-six and twenty-seven concern the definition of
“mitigating evidence” in Article 37.071, section 3(f)(3). In point of error twenty-six,
Appellant asserts that the definition of mitigating evidence is facially unconstitutional
because it limits the Eighth Amendment concept of mitigation to factors that render a
defendant less “morally blameworthy” for the commission of capital murder.
Appellant does not assert that he objected to Article 37.071’s definition of mitigation
at trial. Nor does he direct us to any place in the record where he objected. “A facial
challenge to the constitutionality of a statute” can be forfeited by a failure to object at trial.266
Accordingly, Appellant forfeited this claim of error, and we will not address it on the
merits.267 Point of error twenty-six is overruled.
In point of error twenty-seven, Appellant argues that Article 37.071’s definition of
mitigating evidence is unconstitutional as applied to him because, during jury voir dire, the
prosecutor effectively instructed the jurors who served on this case that the mitigation special
issue required a “nexus” between the proffered mitigating evidence and the defendant’s
culpability for the offense. The record shows that Appellant did not timely object or
otherwise challenge the prosecutor’s explanations of mitigating evidence and moral
266
Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009).
267
See TEX . R. APP . P. 33.1; see also Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App.
2008) (“We have consistently held that the failure to object in a timely and specific manner during
trial forfeits complaints about the admissibility of evidence. This is true even though the error may
concern a constitutional right of the defendant.”).
CALVERT—146
blameworthiness. Accordingly, he forfeited this claim of error on appeal.268 Point of error
twenty-seven is overruled.
CHALLENGES FOR CAUSE
In point of error twenty-eight, Appellant alleges that the trial judge erroneously
refused to grant his challenges for cause to venire members Bressman, Malone, and Welch.
He contends that their statements during individual voir dire showed that they were biased
against him, they strongly favored the death penalty, and they affirmatively wanted to serve
on the jury. Further, he avers that the prosecutors committed misconduct during voir dire by
describing the facts of other death penalty cases and expressing their opinions concerning the
death penalty and the insanity defense.
A prospective juror is challengeable for cause if (among other reasons) the
prospective juror has a bias or prejudice against the defendant or against the law upon which
either the State or the defense is entitled to rely.269 The test is whether the prospective juror’s
bias or prejudice will substantially impair his ability to carry out his duties in accordance with
his instructions and his oath.270 A party wishing to exclude a juror because of bias must
demonstrate, through questioning, that the potential juror lacks impartiality.271 Before a
268
See TEX . R. APP . P. 33.1; cf. Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App.
2004).
269
TEX . CODE CRIM . PROC. art. 35.16(a)(9), (c)(2); Gardner, 306 S.W.3d at 295.
270
Gardner, 306 S.W.3d at 295.
271
Wainwright v. Witt, 469 U.S. 412, 423 (1985).
CALVERT—147
prospective juror may be excused for cause on this basis, the law must be explained to him,
and he must be asked whether he can follow it, regardless of his personal views.272 The
challenging party must show that the prospective juror understands the requirements of the
law but cannot overcome his prejudice well enough to follow the law.273
The standard of review on appeal is whether the trial court abused its discretion.274
We examine the voir dire of the prospective juror as a whole275 and afford great deference
to the trial court’s decision because the trial judge was present to observe the prospective
juror’s demeanor and listen to his tone of voice.276 Particular deference is due when the
prospective juror’s answers are vacillating, unclear, or contradictory.277
But even if a trial judge erroneously denied a challenge for cause against a venire
member, the appellant must show harm. To do so, the appellant must show that he was
forced to use a peremptory strike to remove that venire member and that he suffered a
272
Gardner, 306 S.W.3d at 295.
273
Id.
274
Id. at 296.
275
Curry v. State, 910 S.W.2d 490, 493 (Tex. Crim. App. 1995).
276
Gardner, 306 S.W.3d at 295-96.
277
Smith v. State, 297 S.W.3d 260, 268 (Tex. Crim. App. 2009).
CALVERT—148
detriment from the loss of that peremptory strike because he would have used that strike on
another objectionable juror.278
Bressman
At trial, Appellant’s sole challenge to Bressman was that her personal beliefs in favor
of the death penalty substantially impaired her ability to consider a sentence of life without
parole.279 On her written questionnaire, Bressman stated that she generally favored the death
penalty and believed it was appropriate in some cases. At the beginning of voir dire, the
prosecutor asked: “Anything about your religious views that you think conflict or support the
death penalty?” Bressman responded: “I support the death penalty. I believe that, you know,
if you take a life and [you’re] —vicious enough to do that, then you really shouldn’t have the
right to live; but that’s just how I feel about that. . . . I’m a very eye-for-an-eye-type person.”
Later, Appellant asked Bressman to elaborate on that answer, and she responded: “I do feel
like if someone has taken the life of someone very brutally and for no good, apparent reason,
I definitely—and the evidence is there—I do think the death penalty is an appropriate penalty
278
Chambers v. State, 866 S.W.2d 9, 22 (Tex. Crim. App. 1993); Comeaux v. State, 445
S.W.3d 745, 750 (Tex. Crim. App. 2014).
279
In his brief, Appellant also complains that Bressman was prejudiced because both of her
parents worked for the Texas Department of Corrections, she had seen information about the case
on television, and she affirmatively wanted to join the jury. But we will not consider Appellant’s
challenges on appeal that differ from his challenge during voir dire. See Chambers v. State, 903
S.W.2d 21, 32 (Tex. Crim. App. 1995) (“We have repeatedly held that an objection at trial that does
not comport with the complaint on appeal presents nothing for review.”).
CALVERT—149
for that person.” Toward the end of voir dire, Appellant asked: “Isn’t it true that your core
beliefs, though, lean towards the death penalty?” Bressman responded: “Absolutely. Yes.”
But the record of Bressman’s voir dire as a whole does not show that her beliefs
would interfere with her ability to serve as a juror and abide by the oath. Bressman indicated
during voir dire that she would not automatically decide that a defendant deserved a death
sentence after she had found him guilty and concluded that he would be a future danger.
Rather, she affirmed that she could consider whether any of the evidence was sufficiently
mitigating to merit a life sentence. Bressman stated that jurors “should hear everything
before . . . mak[ing] a major decision because there is a life in the balance.” She also
testified that she could listen to all of the evidence and follow the law even if she did not
personally agree with it.
When questioned by Appellant, Bressman acknowledged that she “lean[ed] towards
the death penalty,” but she stated that this belief would not substantially impair her ability
to consider mitigating evidence. She also testified that she would be open to considering
mental health evidence. She stated that she would hold the State to its burden of proof
because, if she were in the defendant’s situation, that was what she would want the jurors to
do. Further, she affirmed that she would not always answer the future dangerousness
question affirmatively. She added that her parents, who had worked in the criminal justice
system, knew “people who entered the penitentiary who were model inmates and who never
would have done anything else to another person.” She said that some people who
CALVERT—150
committed a serious offense would not be a threat “to the society in which they’ve been
placed.”
Bressman’s responses during voir dire indicated that she could set aside any biases she
might have, follow the law, and listen to all of the evidence.280 We defer to the decision of
the trial judge, who observed her demeanor and listened to the tone of her voice, and who
therefore was in the best position to ascertain whether her opinions would interfere with her
ability to serve as a juror. Appellant has not shown that the trial judge erred by denying his
challenge for cause to Bressman.
Malone
During voir dire, Appellant challenged Malone for cause solely on the ground that her
friendly interactions with Jelena might cause her to be biased, particularly in light of her
expressed desire to be on the jury.281 During voir dire, Malone stated that she knew Jelena
because Jelena was a customer at the bank where Malone worked. When asked how many
times she interacted with Jelena, Malone responded: “At least five times. It was enough to
know her by her first name.” Malone liked Jelena and believed Jelena was a nice person.
280
Cf. Buntion v. State, 482 S.W.3d 58, 104 (Tex. Crim. App. 2016) (holding that the trial
judge did not erroneously deny a challenge for cause against a prospective juror when the prospective
juror “did not express an inability to set aside her personal opinions and follow the law”;
“consistently stated that she would need to know all of the evidence before she could answer the
special issues”; and “did not think that the death penalty was always appropriate for the capital
murder of a police officer.”).
281
In his brief, Appellant also complains that Malone had seen news reports about the case
and Appellant’s behavior in court. But we will not consider Appellant’s challenges on appeal that
differ from his challenge during voir dire. See Chambers, 903 S.W.2d at 32.
CALVERT—151
But “‘the mere fact that a juror knows, or is a neighbor, or an intimate acquaintance
of, and on friendly relations with, one of the parties to a suit, is not sufficient basis for
disqualification.’”282 For example, a trial court acted within its discretion in denying a
challenge for cause to a prospective juror who testified that she knew the victim and several
witnesses but stated that she could set this knowledge aside and evaluate the case strictly
from the evidence she heard at trial and from the jury charge.283 In another case, a
prospective juror testified that he had known the victim all his life and that “there is a
possibility” of bias, but also testified that, if selected for the jury, he would not be biased and
would “come in here with an open mind.” In that case, the defendant did not meet his burden
of showing that the prospective juror was challengeable for cause.284
The record of Malone’s voir dire as a whole does not show that her familiarity with
Jelena would interfere with her ability to serve as a juror and abide by the oath. The
prosecutor asked Malone several times if her interactions with Jelena at the bank would
prevent her from being impartial or cause her to believe that Appellant was “a little bit guilty
of anything.” Malone repeatedly answered that it would not. Malone stated that she did not
have a relationship with Jelena outside of the customer relationship through the bank.
Malone also confirmed that she would afford Appellant the presumption of innocence and
282
Anderson v. State, 633 S.W.2d 851, 853 (Tex. Crim. App. 1982) (panel op.) (quoting
Allbright v. Smith, 5 S.W.2d 970, 971 (Tex. Comm. App. 1928)).
283
See id. at 854.
284
Jernigan v. State, 661 S.W.2d 936, 939-40 (Tex. Crim. App. 1983).
CALVERT—152
that she could find Appellant not guilty if the prosecutor did not prove guilt beyond a
reasonable doubt. She affirmed that she would be able to hold the State to its burden of
proving the offense beyond a reasonable doubt.
Malone also stated that she would be able to listen to the evidence and answer the
special issues in such a way that Appellant would be sentenced to life without parole. She
stated that she would be open to the possibilities, “[d]epending on the evidence.” Even if she
found that a defendant was guilty and that he would be a future danger, she could still be
open to finding sufficient mitigating evidence meriting a life sentence.
When asked about her affirmative written answer to the question of whether she
wanted to be on the jury, Malone stated that she had always been curious about criminal law.
She wanted to perform her civic duty. She believed that honest, intelligent people needed
to serve on juries in order for the criminal justice system to function properly. She explained
that her questionnaire answer was not motivated by a desire to serve on this particular case,
but instead was motivated by her general interest in serving on a jury in a criminal case.
The trial judge was in the best position to determine whether Malone was
challengeable for cause. Malone affirmed several times that she would afford Appellant the
presumption of innocence and consider the evidence in making her decisions. On this record,
no “clear abuse of discretion is evident.” 285
285
See Colburn v. State, 966 S.W.2d 511, 517 (Tex. Crim. App. 1998) (“In reviewing the trial
court's action, we ask whether the totality of the voir dire testimony supports the court’s finding that
the prospective juror is unable to follow the law as instructed, and reverse only if a clear abuse of
(continued...)
CALVERT—153
Welch
Appellant does not identify any reason or provide any argument for why venire
member Welch should have been excluded. Instead, he states, “Similar error occurred with
regard to Venireperson Welch,” and he provides bare citations to the record. This part of
Appellant’s claim is inadequately briefed.286 We decline to make his arguments for him.287
Appellant has not shown that the trial judge erred in denying his challenge for cause to
Welch.
Finding no error in the trial judge’s denials of Appellant’s challenges for cause to
these three venire members, we overrule point of error twenty-eight.
RIGHT TO BE PRESENT
In point of error twenty-nine, Appellant contends that the trial judge deprived him of
his Article 33.03 right to be present at all essential proceedings in his case when, outside of
Appellant’s presence, the judge excused four prospective jurors. Appellant argues that the
assignment of the entire panel to a specific court and case triggered the commencement of
formal voir dire proceedings, including the duty to record all voir dire proceedings with the
defendant present.
285
(...continued)
discretion is evident.”).
286
See TEX . R. APP . P. 38.1(h), (i).
287
See, e.g., Wyatt, 23 S.W.3d at 23 n.5.
CALVERT—154
Article 33.03 requires the personal presence of the defendant “at the trial” in all felony
prosecutions unless he voluntarily absents himself after pleading to the indictment or after
the jury has been selected.288 The point at which “the trial” begins—triggering the
defendant’s right to be present—depends on whether a general assembly or special venire is
summoned. Prospective jurors who are summoned to a general assembly have not been
assigned to any particular case;289 prospective jurors who are summoned to a special venire
have been.290 Trial begins for the former group after the jurors who are not disqualified,
exempt or excused are divided into trial panels and sent to the individual courts trying the
cases; trial begins for the latter group at the time of the exemptions, excuses and
qualifications.291 So, when a special venire is summoned, a trial court errs by proceeding
with the excuses and qualifications in the defendant’s absence.292
288
TEX . CODE CRIM . PROC. art. 33.03; Moore, 999 S.W.2d at 399.
289
Jasper v. State, 61 S.W.3d 413, 423 (Tex. Crim. App. 2001) (noting that prospective
jurors who are summoned to a general assembly have not been assigned to any particular case; the
judge presiding over the general assembly is assigned for that purpose only at that time and has no
given case in mind).
290
TEX . CODE CRIM . PROC. art. 34.01 (“A ‘special venire’ is a writ issued in a capital case
by order of the district court, commanding the sheriff to summon either verbally or by mail such a
number of persons, not less than 50, as the court may order, to appear before the court on a day
named in the writ from whom the jury for the trial of such case is to be selected.”).
291
Jasper, 61 S.W.3d at 423.
292
See Jasper, 61 S.W.3d at 423 (holding that “it was statutory and constitutional error for
the trial court to proceed with the excuses and qualifications in [the] appellant’s absence” because
the prospective jurors were “already assigned to [the] appellant’s specific case.”).
CALVERT—155
Here, a special venire was summoned. The record in this case reflects that the trial
judge stated several times that the panel summoned for Appellant’s case was not a special
venire. But the record also reflects that the panel was summoned specifically for the purpose
of selecting a jury for the trial of this case. Accordingly, Appellant had the right to be
personally present when the trial court proceeded with excuses and qualifications.
In preparation for this trial, the trial judge summoned 1000 prospective jurors. Of the
1000 people summoned, 240 people arrived at the appointed time and place. In the
courtroom, the trial judge informed the parties that the panel was waiting in the central jury
room. He stated that the judge and parties would move to that room so that the judge could
conduct general qualifications. The remaining prospective jurors would then fill out the
written questionnaires.
However, Appellant filed and presented a motion for continuance, asserting that he
had not received the jury pool report a full two days before voir dire as required by Article
34.04.293 He requested that the trial judge dismiss the waiting venire panel and summon a
new panel. The prosecutor suggested that the judge could meet with the venire members
outside the parties’ presence, distribute the questionnaires, and then release them until the
following day. Appellant did not object when the judge assented to this suggestion.
293
In relevant part, Article 34.04 provides: “No defendant in a capital case in which the state
seeks the death penalty shall be brought to trial until he shall have had at least two days (including
holidays) a copy of the names of the persons summoned as veniremen, for the week for which his
case is set for trial except where he waives the right or is on bail.”
CALVERT—156
The following day, April 24, the trial judge informed the parties that, while
distributing the questionnaires, he had excused four prospective jurors from the panel. The
judge explained that three venire members who had been available on April 23 could not be
available on April 24. One had a long-standing appointment with the Veterans
Administration and two would be out of town. The judge postponed their jury service to
another date.294 The fourth prospective juror had a “disability that it was clear to the Court
that, if they had appeared this morning, I was going to excuse them.” He explained that this
prospective juror was not competent mentally and was also physically disabled. The juror’s
spouse had waited for her just outside the central jury room because she needed his
assistance. Accordingly, the judge released her. Appellant objected that he had not had an
opportunity to object to these excuses or to see and qualify the excused venire members. The
trial judge overruled these objections.
In the presence of the parties, the trial judge swore in the venire. He heard
qualifications, exemptions, and hardships, and he excused prospective jurors who indicated
that they had already decided, through exposure to media coverage, that Appellant was guilty.
Appellant filed a written motion titled, “Defendant’s Objections to Court’s Procession to
Qualify and Obtain Questionnaire Information from the Summoned Venire Panel on April
23rd , 2015, Without the Presence of the Pro Se Defendant and Motion to Quash the Venire.”
294
See TEX . CODE CRIM . PROC. art. 35.03, § 1 (providing, in relevant part, that the trial court
shall hear and determine excuses, including any claim of an exemption or a lack of qualification, and
if the court considers the excuse sufficient, the court shall discharge the prospective juror or
postpone service to another date, as appropriate).
CALVERT—157
Prior to individual jury voir dire, the trial judge heard this motion and overruled it. The trial
judge erred by proceeding with the prospective jurors’ excuses in Appellant’s absence.295
Appellant impliedly agreed to allow the judge to distribute questionnaires in his absence. But
he did not voluntarily absent himself from a proceeding in which the judge would excuse
jurors. Accordingly, any error in excusing them outside Appellant’s presence was of
constitutional dimension.296 Therefore, we will apply the harm standard for constitutional
error.
Under the constitutional-error standard, we will not reverse a conviction if we
determine that the error was harmless beyond a reasonable doubt.297 If a reasonable
likelihood exists that the error materially affected the jury’s deliberations, then the error was
not harmless beyond a reasonable doubt.298
Article 35.03 gives a trial judge broad discretion to excuse prospective jurors for good
reason.299 The postponement or cancellation of jury service because of a pre-existing
295
See Jasper, 61. S.W.3d at 423.
296
See id.; see also Miller v. State, 692 S.W.2d 88, 90 (Tex. Crim. App. 1985) (stating that
the right of confrontation includes the absolute requirement that a criminal defendant who is
threatened with loss of liberty be physically present at all phases of the proceedings against him,
absent a waiver through his own conduct); see also Allen, 397 U.S. at 338 (stating that the
Confrontation Clause guarantees an accused’s right to be present in the courtroom at every stage of
his trial).
297
See TEX . R. APP . P. 44.2(a); Jasper, 61 S.W.3d at 423.
298
Jasper, 61 S.W.3d at 423.
299
Crutsinger v. State, 206 S.W.3d 607, 608 (Tex. Crim. App. 2006).
CALVERT—158
scheduling conflict is a legitimate exercise of this discretion.300 Further, the trial judge has
the discretion to excuse a prospective juror who has a disability and has requested an
excusal.301
Accordingly, even if Appellant had been present and had objected to the judge’s
excusing these four prospective jurors, the trial judge would have been well within his
discretion in overruling his objections.302 Further, the judge’s explanations indicated that he
would have excused these prospective jurors even if Appellant had objected.303 Thus, we
conclude that Appellant’s absence when the judge excused these prospective jurors was
harmless beyond a reasonable doubt. Point of error twenty-nine is overruled.
We affirm the judgment of the trial court.
Delivered: October 9, 2019
Do Not Publish
300
Id. at 608-09.
301
See Black v. State, 26 S.W.3d 895, 899 (Tex. Crim. App. 2000).
302
See Jasper, 61 S.W.3d at 424 (finding it significant to the harm analysis that, even if the
appellant had been present and objected to the excuses, the trial court would have been well within
its discretion in overruling the objections).
303
See id. (finding that a defendant’s absence, when a judge excused one prospective juror
because she was a “caretaker” and another because she was pregnant and within six weeks of her due
date, was harmless beyond a reasonable doubt).