                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-15-00107-CR


JOHN ST. ANGELO                                                   APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


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          FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1354157D

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                       MEMORANDUM OPINION1

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      Appellant John St. Angelo appeals from his murder conviction and life

sentence.   Because we conclude that the admission of Appellant’s custodial

statements to a paramedic, even if erroneous, did not contribute to Appellant’s

conviction or punishment; that Appellant failed to preserve his issue regarding




      1
      See Tex. R. App. P. 47.4.
the time allotted to voir dire the jury venire; and that a series of emails between

Appellant and the victim was admissible, we affirm the trial court’s judgment.

                               I. BACKGROUND

                                   A. FACTUAL

      Appellant and the victim, Suzanne Parsons, were married, but Parsons

initiated divorce proceedings in 2013. Appellant worked as a handyman for a

real-estate agency, where Parsons was a realtor. Appellant and Parsons were

having financial difficulties, and Parsons suspected that Appellant was mentally

ill.2 What seemed to have been the tipping point for Parsons, however, was

Appellant physically beating and attempting to strangle her while they were on a

trip to Mexico in May 2013. Parsons returned home early from the trip with a

black eye, swollen face, cut ear, bruised cheek, and bruises around her neck. At

some point, Parsons sought a protective order against Appellant.

          Appellant wanted to reconcile with Parsons, texting or calling her

numerous times each day. On December 28, 2013, Appellant emailed Parsons,

complaining that she would not respond to his calls or texts. Parsons responded

that she could not talk to him and that if he had a work question, he should

contact her daughter, Jessica, who also worked at the real-estate agency. This

precipitated a lengthy response from Appellant on December 29, 2013, in which

he used profanity, called her a “gold digging fat, fat ass whore,” warned that she

      2
       Parsons previously had arranged the employment for Appellant at her
real-estate office to ease their financial problems.


                                         2
was “going to pay,” and stated he “wish[ed]” she “would expire.” Parsons replied,

“These are clearly threats and will be reported.” Parsons forwarded the entire

exchange to Dee Arnold, the real-estate agency’s administrator.

      On Monday, December 30, 2013, Parsons was noticeably nervous at work,

frequently “peeking” through the window blinds because she suspected that

Appellant had been following her. Around 4:00 p.m., Appellant arrived and went

to Parsons’s office. About twenty minutes later, the receptionist, Cookie Clardy,

and another realtor, Keely Harris, heard Parsons scream, “Get him off of me.” By

the time Clardy and Harris got back to Parsons’s office and unlocked the door,

Appellant was bent over Parsons and was repeatedly stabbing her with a knife.

Parsons was covered in blood and making a “gurgling” sound. Clardy and Harris

ran away and called police. Another realtor, Dawn Karr, reached the office after

Clardy and Harris fled and heard Appellant say, “[W]ell, now, that’s done.” Karr

also ran for her life. Clardy saw Appellant running from the building, and she,

Harris, and Karr went to check on Parsons. By that point, Parsons was dead.

      The next day, police located Appellant at a house where he had barricaded

himself.3 When the police tried to enter the house, they “were receiving [rifle]

shots from the inside of the house to the outside of the house.” While he was in

the house, he talked on the phone to his daughter and told her that he had

stabbed Parsons multiple times, said Parsons “got what she deserved,” and

      3
        Apparently, “a female that was a resident of that home” called police to
report that Appellant was there and gave her consent for police to enter.


                                       3
“described the gurgling sounds that she made when she passed away.” Officers

then heard a single rifle shot from inside the house. The police “deploy[ed] gas”

into the house, resulting in a “total gas-out,”4 and sent in a robot to locate the

shooter and determine if he was still alive. Appellant eventually came out of the

house but refused to raise his hands, forcing the officers to subdue him with a

Taser and handcuff him.

      Appellant had shot himself below the chin. A paramedic at the scene, Jeff

Popp, asked Appellant several questions while treating him. Once it was decided

that Appellant should be taken to a hospital, another paramedic, James Evans,

put Appellant in an ambulance and rode with him to the hospital. Officer Brandy

Salazar also accompanied Appellant in the ambulance with Evans. Evans asked

Appellant several questions during the ride to the hospital, and Salazar wrote

down his responses. Appellant “said something about Mexico” and admitted to

shooting himself, to shooting at the police, and to fighting with Parsons because

he was “sick of her mouth.”

                                 B. PROCEDURAL

      A grand jury indicted Appellant with murder and alleged that he used a

deadly weapon—a knife—during the offense.           See Tex. Penal Code Ann.

§ 1.07(a)(17)(B) (West Supp. 2015), § 19.02 (West 2011). Before trial, Appellant

filed a motion seeking to suppress the oral statements he made to the

      4
        A police officer explained that this meant they were “try[ing] to fill that
entire house up with gas as quickly as possible.”


                                        4
paramedics while he was in custody and requesting a hearing on their

admissibility. See Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (West Supp. 2015).

      The trial court held a hearing and heard testimony from the paramedics

and Salazar.    The evidence at the hearing revealed that Evans checked

Appellant’s airway, determined that Appellant’s vital signs were stable, and did

not administer any pain medication to Appellant. Evans then asked Appellant

several questions in the ambulance, most of which Appellant answered, Salazar

heard, and Salazar wrote down as follows:

      Evans asked St. Angelo, “Did you try to kill yourself yesterday?”
      St. Angelo: “No”

      Evans: “When did you shoot yourself?”
      St. Angelo “There was nothing in the barrel. No bullet. Compressed
      Air.”

      Evans: “What year is it?”
      St. Angelo: “2013”

      Evans: “What happened today? Did the police shoot you?”
      St. Angelo: no answer

      Evans: “Were you shooting at officers?”
      St. Angelo: “Yes. I wanted them to leave me alone, let the
      negotiators negotiate.”

      Evans: “What happened yesterday? Did you do something bad?”
      St. Angelo: “yes”

      Evans: “Did you hurt her?”
      St. Angelo: “Yes, [w]e were fighting. I was sick of her mouth.”

      Evans: “Did you know you were gonna do that?”
      St. Angelo: mumbling, [un]intelligible, something about Mexico then
      “She kept running her mouth.”



                                        5
      St. Angelo: “My mouth hurts. I shot myself with a .22 rifle.”
      Evans: “When?”
      St. Angelo: “After Joey left. He’s an officer. He came for lunch.”

      Evans: “When did you shoot yourself?”
      St. Angelo: “They got me”

      Evans: “Where is your wife now?”
      St. Angelo: “They took her away in an ambulance. I don’t know.”

      The trial court denied the motion to suppress, ruling that Appellant’s

custodial statements were admissible, and orally entered findings and

conclusions on the record:

      The Court will find that any statement made to paramedics or . . .
      Salazar [was] done while the defendant was in custody. However,
      the Court will also find that the paramedics Evans and Popp are not
      peace officers as designated by Article 2.12, Code of Criminal
      Procedure.

               And there is no evidence of an agency relationship existing
      between the police department and the paramedics. The evidence
      . . . is quite contrary to that in that they were - - both officers testified
      that neither of the officers directed any questioning by either Mr.
      Evans or Mr. Popp.

             So the Court will deny the motion to suppress as to Evans and
      Popp on the agency relationship and the fact that they are not peace
      officers under Article 2.12 of the Code of Criminal Procedure. And,
      therefore, 38.22 of the Code of Criminal Procedure does not apply to
      Evans and Popp.

              In regard to the statements heard by . . . Salazar, the Court
      will find that 38.22 does not apply in that even though the defendant
      was in custody, they were not elicited as the result of custodial
      interrogation by [Salazar]. And the Court will deny the motion to
      suppress as to . . . Salazar.

See State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006) (stating

“findings and conclusions [regarding a motion to suppress] need to be recorded


                                           6
in some way, whether written out and filed by the trial court, or stated on the

record at the hearing”).

      At trial, Appellant testified that he stabbed Parsons in self-defense after

she threatened him with a knife. See Tex. Penal Code Ann. §§ 9.31–.32 (West

2011). The trial court charged the jury and submitted the issue of self-defense

through the use of deadly force.5 The jury found Appellant guilty of murder as

charged in the indictment, including the deadly-weapon allegation.         At the

punishment phase of trial, the trial court charged the jury on the issue of sudden

passion based on Appellant’s prior testimony.      See id. § 19.02(d).   The jury

rejected Appellant’s sudden-passion issue and assessed his punishment at life

confinement and a $10,000 fine. The trial court entered judgment in accordance

with the jury’s verdicts.

      On appeal, Appellant argues that the trial court erred by denying his

motion and admitting the oral statements he made to Evans6 because the

admission violated his Fifth Amendment rights and article 38.22. Appellant also



      5
       The trial court did not include the instruction dictated by article 38.22,
section 6. But Appellant did not object to the omission of such an instruction and
does not argue charge error on appeal. See generally Oursbourn v. State,
259 S.W.3d 159, 174–76 (Tex. Crim. App. 2008) (holding if defendant fails to
request article 38.22 instruction, its absence may be reviewed only for egregious
harm as unobjected-to charge error).
      6
        Appellant does not assert in his brief that the statements he made to Popp
while he was in custody were inadmissible or violated his Fifth Amendment
rights.


                                        7
challenges the admission of the emails Parsons forwarded to Arnold and the trial

court’s time limitation on voir dire.

                 II. ADMISSION OF CUSTODIAL STATEMENTS

      In his first point, Appellant argues that the trial court abused its discretion

by denying his motion to suppress and admitting the custodial statements he

made to Evans because Evans was acting as an agent of law enforcement.

Whether Evans was an agent of law enforcement is determined on the basis of

the entire record and requires an examination of the relationship between the

police and the potential agent and the actions and perceptions of the police, the

potential agent, and the defendant. Berry v. State, 233 S.W.3d 847, 855 (Tex.

Crim. App. 2007); Hailey v. State, 413 S.W.3d 457, 480 (Tex. App.—Fort Worth

2012, pet. ref’d).     “The essential inquiry is: ‘Was this custodial interview

conducted (explicitly or implicitly) on behalf of the police for the primary purpose

of gathering evidence or statements to be used in a later criminal proceeding

against the interviewee?’” Berry, 233 S.W.3d at 855 (quoting Wilkerson v. State,

173 S.W.3d 521, 531 (Tex. Crim. App. 2005)).

      In this case, however, we need not answer this question. Even if Evans

were acting as an agent of law enforcement when he questioned Appellant in the

ambulance such that the admission of Appellant’s statements violated the Fifth

Amendment, we conclude beyond a reasonable doubt that the error did not

contribute to Appellant’s conviction or punishment. See Tex. R. App. P. 44.2(a).

In determining such harm, we consider several factors: the importance of the


                                         8
evidence to the State’s case, whether the evidence was cumulative of other

evidence corroborating or contradicting the evidence on material points, the

overall strength of the State’s case, and any other factor revealed by the record

that may shed light on the probable impact of the error on the mind of the

average juror. See Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007).

A constitutional error does not contribute to a conviction if the jury’s verdict would

have been the same even if the erroneous evidence had not been admitted.

See id. We are to ask “if there was a reasonable possibility that the error, either

alone or in context, moved the jury from a state of nonpersuasion to one of

persuasion as to the issue in question.” Westbrook v. State, 29 S.W.3d 103, 119

(Tex. Crim. App. 2000).

      After Clardy and Harris heard Parsons screaming for help, they saw

Appellant, bent over a prostrate and unmoving Parsons, repeatedly stabbing her.

After Clardy and Harris fled, Karr heard Appellant say, “Well, now, that’s done,”

before he fled the office. The next day while he was barricaded in a home

surrounded by police officers, Appellant answered a call from his daughter.

Appellant admitted that he stabbed Parsons fifteen to twenty times,7 said that

“the [f______] bitch got what she deserved,” and described Parsons’s “gurgling”

as she lay dying. His daughter described his mood at the time as “satisfied . . .

[w]ith himself and with his actions.”


      7
     The autopsy revealed that Parsons sustained twenty-four cuts or stab
wounds during the attack.


                                          9
      Appellant’s statements in the ambulance that he had done something

“bad,” that he was “sick of [Parsons’s] mouth,” and that Parsons “kept running

her mouth,” were cumulative of other admitted evidence or were not important to

the State’s strong evidentiary case against Appellant on the indicted offense. In

sum, the admission of Appellant’s statements in the ambulance, even if

erroneous, would not have moved the jury from unpersuaded to persuaded

regarding Appellant’s culpability; thus, any error did not contribute to Appellant’s

conviction or punishment.    See Tex. R. App. P. 44.2(a); see, e.g., Garcia v.

State, No. 04-08-00677-CR, 2010 WL 816202, at *4–6 (Tex. App.—San Antonio

Mar. 10, 2010, no pet.) (mem. op., not designated for publication). We overrule

Appellant’s first point.

                           III. VOIR DIRE LIMITATION

      In his second point, Appellant argues that the trial court abused its

discretion by denying counsel’s request for additional time to question the venire.

The State asserts that Appellant did not preserve error on this issue for our

review. To preserve error on a claim that the trial court abused its discretion by

limiting voir dire, the record must reflect a proper and specific question that the

trial court did not allow the venire to answer. See Sells v. State, 121 S.W.3d 748,

756 (Tex. Crim. App.), cert. denied, 540 U.S. 986 (2003); Saldinger v. State,

474 S.W.3d 1, 5 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d).

      Here, the trial court allowed Appellant ninety minutes to conduct his voir

dire examination of the venire. At the end of counsel’s time, the trial court told


                                        10
her to “wind it down.” Counsel asked for more time because “[i]t’s a very large

case.” The trial court responded, “I know it’s a very large case. I know exactly

that it’s a very large case, and I know that the State did it in less than an hour

and a half. . . . And you spent a lot of time on stuff, and you could have moved

on.” Counsel pressed for a “brief[]” amount of time to address “constitutional

issues,” which the trial court allowed.

      Counsel resumed and questioned the venire for an additional three pages.

After counsel asked a question to the entire venire about their understanding of

deadly force, the trial court had counsel approach the bench, where an off-the-

record discussion occurred. When the discussion was over, Appellant’s counsel

thanked the jury for their time. After the venire was excused for counsel to make

their peremptory and for-cause challenges, counsel attempted to explain on the

record her issue with the time limitation:

      I understand the time was allotted was one hour and a half. I still
      had some points to go over, would like to put on the record the
      things that I wished to have continued to briefly discuss just to briefly
      make sure as quickly as possible that I wanted to discuss deadly
      force and protection of life, the Defendant testifying, and go over the
      burdens of proof one more time for them to have a better
      understanding.

            Since I did not get to discuss the burdens of proof that would
      be allotted in the sudden passion element, I told them I would go
      back and explain it. I didn’t have a chance to do it. I apologize to
      the Court I ran over a couple minutes, but it was very important for
      my client to get fair jurors. This is a tough crowd. They are all
      educated and married for a long time, and I had to use some of that
      time to be able to get their minds to be open that not everyone has
      the same happily forever life.



                                          11
             So I spent a little extra time on that to try to illustrate that point,
      and it took away my right to get to some constitutional issues and a
      couple of statutes that I felt was important for them to understand
      from the Defense’s perspective.

Indeed, counsel had spent a large amount of her time asking the venire

questions about divorce and bad relationships.

      First, at no time did counsel object to the trial court’s action in ending voir

dire and, of course, she did not get an adverse ruling from the trial court on the

record. See Tex. R. App. P. 33.1(a). Second, counsel did not make a bill of

exception or otherwise state on the record the specific questions she would have

asked had she been given more time.8 See Tex. R. App. P. 33.2; Saldinger,

474 S.W.3d at 6; cf. Wappler v. State, 183 S.W.3d 765, 773–74 (Tex. App.—

Houston [1st Dist.] 2005, pet. ref’d) (op. on reh’g). Counsel’s statement of the

general legal areas she wanted to cover was insufficient.                See Saldinger,

474 S.W.3d at 6. We conclude Appellant failed to preserve any error arising from

the limitation of voir dire and overrule point two.

                          IV. ADMISSIBILITY OF EMAILS

      In his final point, Appellant argues that the trial court abused its discretion

by admitting over objection the string of emails between Appellant and Parsons

that Parsons forwarded to Arnold. He asserts that the emails were insufficiently

authenticated through Arnold’s testimony.


      8
       We note that counsel asked the venire about many of the general topics
she identified.


                                           12
         At trial, Arnold testified that she received the forwarded string of emails at

her email address from Parsons’s email address on December 30, 2013,

approximately four hours before Appellant appeared at the real-estate office and

stabbed Parsons. Arnold testified that Parsons represented that Appellant had

sent the emails to Parsons. Arnold reviewed the exhibit containing the emails

and confirmed that the exhibit was a fair and accurate depiction of what she

received from Parsons that day. Counsel objected to the admission of the email

string because “[i]t was claimed by [Arnold] to be a forwarded email entered by

someone” and, therefore, was “not properly authenticated.”

         Authenticity of evidence is a preliminary admissibility question for the trial

court.     Tienda v. State, 358 S.W.3d 633, 637–38 (Tex. Crim. App. 2012);

see Tex. R. Evid. 104(a). To answer this question, the trial court is to determine

whether the proponent supplied facts that would be sufficient to support a

reasonable determination by a fact-finder that the proffered evidence is authentic.

Tex. R. Evid. 901(a); Tienda, 358 S.W.3d at 638. In other words, the ultimate

question of authenticity of evidence is a question for the fact-finder. Tienda,

358 S.W.3d at 638.        “Evidence may be authenticated in a number of ways,

including by direct testimony from a witness with personal knowledge, by

comparison with other authenticated evidence, or by circumstantial evidence.”

Id. Further, contents and substance, “taken together with all the circumstances,”

also provide authenticity. Tex. R. Evid. 901(b)(4). We review the trial court’s




                                           13
conclusion regarding preliminary admissibility based on authenticity under an

abuse-of-discretion standard. Tienda, 358 S.W.3d at 638.

        Arnold stated that she received the emails at her email address from

Parsons’s email address and that Parsons’s represented that the other emails in

the string were to her from Appellant. Arnold further identified the exhibit as an

accurate depiction of the emails she received from Parsons on December 30,

2013.    In the email string, one of the emails purportedly from Appellant to

Parsons refers to their impending divorce. Parsons’s email forwarding the email

string to Arnold contained Parsons’s electronic signature, including her business

address and business phone numbers. These facts proffered by the State, taken

together, were sufficient to submit the ultimate question of authenticity to the jury;

thus, the trial court did not abuse its discretion by ruling the emails admissible as

a preliminary determination. See, e.g., Butler v. State, 459 S.W.3d 595, 603–04

(Tex. Crim. App. 2015); Sennett v. State, 406 S.W.3d 661, 669 (Tex. App.—

Eastland 2013, no pet.); Massimo v. State, 144 S.W.3d 210, 216 (Tex. App.—

Fort Worth 2004, no pet.). We overrule point three.




                                         14
                               V. CONCLUSION

      Having overruled Appellant’s points, we affirm the trial court’s judgment.

See Tex. R. App. P. 43.2(a).


                                                 /s/ Lee Gabriel

                                                 LEE GABRIEL
                                                 JUSTICE

PANEL: WALKER, GABRIEL, and SUDDERTH, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 7, 2016




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