

Opinion issued July 21, 2011

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-09-00972-CR
———————————
Rogelio Delacerda, Appellant
V.
The State of
Texas, Appellee

 

 
On Appeal from the 174th District Court
Harris County, Texas

Trial Court Case No. 1229727
 

 
O P I N I O N
          A
jury convicted appellant, Rogelio Delacerda, of murder and assessed punishment
at thirty-five years’ confinement and a $10,000 fine.[1]  In twelve issues, appellant contends that the
trial court (1) lacked jurisdiction due to an allegedly invalid order assuming
jurisdiction from the juvenile court; (2) erroneously allowed the State to
ask improper commitment questions during voir dire; (3) failed to pronounce
that a defense exhibit was admitted, which precluded the jury from having all
the evidence during deliberations; (4) and (5) erroneously permitted an
officer to characterize an interview with appellant, conducted while he was a
juvenile, as “not helpful” and erroneously denied appellant’s motion for
mistrial relating to the officer’s testimony; (6) erroneously permitted an
officer to testify regarding a statement by a witness made while viewing a
photospread; (7) erroneously admitted three photographs located in the
autopsy report without the proper predicate; (8) erroneously denied
appellant’s requested accomplice-witness jury charge instruction; (9) erroneously
overruled appellant’s objection to the transferred intent instruction in the
charge; (10) erroneously denied appellant’s motion for mistrial after the
State mentioned a hearsay statement not introduced in evidence during its
closing argument; (11) erroneously permitted an officer, during the
punishment phase, to testify regarding the national criminal activity of the
Latin Kings gang, without showing any connection to appellant; and (12) erroneously
denied appellant’s motion for mistrial after the State described the activities
of the Latin Kings and called appellant a “gangster” during its punishment-phase
closing argument.
          We
affirm.
Background
          On
January 21, 1997, the complainant, seventeen year old Jesus “Robert” Contreras,
was walking home from Stephen F. Austin High School in southeast Houston with
his twin brother, Albert, and their friends, Gene Cantu, Raul Rodriguez, Chris
Aviles, and Julio Lara.  As the group
walked home on Dumble Street, a newer-model navy blue truck drove past.  Albert Contreras testified that he saw three
people inside the truck—a male driver, a male passenger, and a female sitting
in between—and one person lying in the truck bed, who kept “popping his head
up.”  Albert stated that he recognized
the person in the back of the truck as someone whom he had seen around school
two or three times, but he did not know his name.  Albert testified that no one in his group
said anything to the truck’s occupants as they drove past, but the truck
stopped and the passenger looked at the boys after the truck had driven
by.  Albert did not recognize the passenger
as a fellow student.
The truck continued down Dumble and
turned right onto Polk Street.  As the
boys crossed the intersection of Dumble and Polk, Albert saw that the truck had
stopped and the person in the back of the truck was speaking to the people in
the truck’s cab.  Albert testified that
the truck made a U-turn and turned back onto Dumble, driving in the same
direction that the boys were walking, and passed the boys as they reached a
tire shop.  At the tire shop, the
passenger pulled out a gun and shot approximately five or six times at the
group.  After the passenger stopped
shooting and the truck drove away, Albert looked for his brother and found him
underneath a piece of plywood, leaning against the wall of the tire shop.  Robert had a gunshot wound to his left lower
back and died later that night at the hospital. 
Albert testified that neither he nor his brother was involved in a gang
and that neither of them had had any altercations with other students at school
in the week before the shooting.  The
State did not ask Albert on direct examination whether he viewed a police
photospread or whether he identified anyone in that photospread.
On cross-examination, Albert
testified that he told police that he thought he could identify the person in
the back of the truck as someone he had seen at school.[2]  Houston Police Department (HPD) Officer P.
Guerrero showed Albert a photospread. 
When asked on cross-examination if he could identify anyone in the
photospread, he responded that he did not recognize the person whom he saw in
the back of the truck.  Albert also
stated that when he viewed the photospread he did not recognize the people in
the cab of the truck, nor did he recognize the shooter.  On redirect, Albert testified that he did not
remember identifying the person in the back of the truck when the police showed
him the photospread.  The next morning,
the State recalled Albert and asked him to identify the photospread that he
viewed.  Albert identified his signature
on the second page of the display, which was located next to the position of
the second picture.  Albert reiterated
that he could not recall identifying anyone in the display.
Raul Rodriguez testified that he
recognized the passenger as someone with whom he thought he had gone to middle
school, and he stated that, although the passenger was Hispanic, he had
distinctive “Asian-looking” eyes.  Raul
acknowledged that, at the time of the shooting, he, Julio, who was shot in the
leg during this altercation, and Gene were all members of a neighborhood gang
called PSV, located in the Second Ward.  To
Raul’s knowledge, neither Robert nor Albert Contreras was a member.  At trial, Raul identified appellant as the
shooter.[3]
Carlos Martinez, who also attended
school with Robert and his friends, testified that after school on the day of
the shooting he met up with his friends, David Cruz and Tommy Barron, to get a
ride home.  He testified that, as they
were waiting for their ride, David showed them a gun that he had in his
waistband.  Carlos stated that David’s
cousin picked them up in a truck and that he was accompanied by a male
passenger and a female sitting in between; Carlos did not know any of the
people in the truck.  Carlos testified
that he, David, and Tommy all jumped in the back of the truck and lay
down.  At one point, Carlos heard someone
in the front of the truck ask David “Is that them?” and he heard David reply,
“I think so.”  Carlos did not look to see
to whom they were referring.  While they
were in the truck, Carlos saw David hand a gun to the passenger.  Carlos testified that he was scared and did
not know what was about to happen.  Carlos
then testified that he heard the passenger ask David “if he wanted [the
passenger] to shoot at him,” and after David responded, “I don’t know,” Carlos
heard gunshots.  Carlos stated that no
one in the bed of the truck fired a gun.
After the shooting, the driver
dropped the boys off at a park, and the passenger handed the gun to David.  Carlos stated he had no idea that a shooting
was going to happen and that he “caught a ride with the wrong people that
day.”  Carlos testified that when he
initially spoke to the police he told them that David was the shooter because
David had told Carlos and Tommy that he “didn’t want nobody to take the blame for him.” 
However, later on the same day that he gave this statement, Carlos told
police that the passenger was the shooter.
On cross-examination, Carlos stated
that he knew David had been having trouble with PSV members and that David had
a gun with him on the day of the shooting. 
He also stated that, after they were already in the back of the truck,
he heard David say, “Now you’re going to learn about drive-bys.”  Carlos testified that he knew what this meant
but that it was too late for him to get out of the truck.  Carlos also testified that, the Friday before
the shooting, David had told Tommy that he and his friend had been beaten up by
PSV members and that David was going to “pop a cap at,” or shoot, those
involved.  Carlos further testified that
after he had given his first statement to police, in which he named David as
the shooter, he asked the officer driving him home what would happen if he had
lied in his statement and the officer replied that he would be in “big
trouble.”  At this point, Carlos decided,
on his own, to “tell the truth” because he did not want to get into
trouble.  When Carlos spoke to the
officers a second time, he named appellant as the shooter.
David Cruz testified that on the
Friday before the shooting he and one of his friends were walking home when
they were “jumped” by approximately twenty to thirty PSV members.  After this incident, David called his cousin,
Jose Carreon, told him that he was having problems with people from school, and
asked Jose if he could take him home from school the next week.  On Saturday, Jose and appellant came to
David’s house to talk about the situation and to offer advice and support.  David testified that appellant gave him a gun
“for protection.”  David brought the gun
to school on Tuesday, January 21, and showed it to his friend Edgar, who had
been involved in the incident on the previous Friday.  David could not recall if he showed the gun
to anyone else.  He stated that right
before school let out on Tuesday he had another altercation and was chased by a
group of unnamed boys.
David testified that Jose,
accompanied by his girlfriend, Emily Hugo, who owned the truck, and appellant,
picked him up from school.  When they
arrived, appellant asked David for the gun, and, after he handed it over, David
climbed in the back of the truck with Tommy and Carlos.  David stated that the three boys were lying
down in the back because they did not want other students to see where they
lived, and he gave directions to Jose while lying down.  After Jose turned onto Polk, David informed
him that he was going the wrong way to his house, and Jose turned back onto
Dumble.  After Jose turned, David
testified that he heard a group of PSV members throwing things at the truck and
that he heard appellant talking to them. 
Appellant then asked David “if that was them,” and, after David
responded that it was not, appellant started shooting “on his own.”  David testified that he had only brought the
gun to school to scare the people who were harassing him and that he did not
want the situation to escalate to the point of a shooting.
David stated that, after the
shooting, Jose started arguing with appellant and Emily was angry and
crying.  Jose then drove to a park and
dropped off David, Tommy, and Carlos.  Appellant
got out as well, told David and the boys to “keep [their] mouths shut,” and handed
David the gun.  David testified that all
three boys were scared and that he told the others to say that he was the
shooter “so someone else won’t go down for [David’s] problems.”  David stated that he kept the gun at his
house for approximately three days before appellant came and picked it up “so
[they] wouldn’t get caught.”  He further
testified that he gave a statement to the police on January 29, 1997, and he
told them that appellant was the shooter.
On cross-examination, David
testified that he did not remember telling Carlos and Tommy before they got in
the truck that “today, they [were] going to learn about drive-bys.”  He further stated that he had seen appellant
and Jose together on several occasions and that appellant had been to his house
“a lot of times.”
Emily Hugo testified that, on
January 21, Jose drove her back to their school, Cy-Falls High School, so she
could attend after-school tutorials.  When
they arrived at school, she went inside to call her father and to check a
voicemail that Jose had received from David on his pager.  As Emily was walking back to her truck to
tell Jose that David had requested a ride home, appellant asked her if she
could give him a ride home.  Emily
testified that, when they arrived at David’s school, appellant got out of the
truck and then sat back down in the passenger seat, and David and his friends
climbed into the back of the truck and remained there.  Emily did not see David hand appellant a gun,
and she did not remember hearing any conversations in the truck between David
and appellant.
Emily testified that, at one point,
a group of kids walking on Dumble started yelling at the truck and appellant
started yelling back.  Immediately
afterwards, Emily saw appellant pull a gun from his waistband and start
shooting at the group of kids.  Emily
testified that, after the shooting, she started crying and was in shock.  After Jose dropped David and his friends off,
Jose, Emily, and appellant drove back across Houston to pick up Emily’s younger
sister from school.  Emily stated that
she did not kick appellant out of the truck at that point because she was
scared and “didn’t know what to do.”  When
they dropped appellant off at his house, he told Emily and Jose not to tell
anyone what had happened.
Emily and Jose watched the news
together on the night of the shooting and learned that one of the boys had
died.  Emily testified that she was
“scared and sickened,” but she did not go to the police at this point because
she was waiting for her mother to return to town so she could talk to her about
the shooting.  Emily spoke to her parents
five days after the shooting, and, after her parents contacted a lawyer, she
met with the police to give her statement. 
She testified that she did not talk to appellant again after the
shooting, but she listened in on a phone conversation that he had with Jose, in
which appellant asked which one of them had called the police to turn him in.
Shortly after the shooting, Jose’s
brother washed Emily’s truck, although both Jose and Emily testified that he
did this of his own volition and not at the request of either of them and that
he had washed the truck on previous occasions. 
Jose’s brother found one or two shell casings in the truck and threw
them away.  Emily testified that she did
not remember having a conversation with appellant’s then-girlfriend in which
Emily told her to say that appellant was with her on the afternoon of the
shooting.[4]
On cross-examination, Emily
acknowledged that her attorney negotiated an immunity deal for her with the
district attorney’s office, but she stated that she did not know any details
about that deal.  Emily also testified
that HPD homicide officers picked up her truck from her house on Friday,
January 24, 1997, two days before Emily spoke to her parents about the
shooting.  Emily did not recall whether
the back license plate from her truck was missing on the day of the shooting,
but she was certain that no one took it off after she, Jose, and appellant left
their school and before they arrived at David’s.
HPD Homicide Investigator H.A.
Chavez testified that officers received an anonymous Crime Stoppers tip that
provided appellant’s name.  Officers then
went to appellant’s house, discovered that appellant was only sixteen years old,
and asked his mother for permission to speak with him.  After she agreed, officers escorted appellant
to the Homicide Division office.  At
trial, the State asked Investigator Chavez whether appellant was “helpful” in
his interview.  Defense counsel objected
to discussing the contents of the interview unless the State could demonstrate
that the officers followed the procedural requirements in the Family Code for
taking the statements of juveniles and objected to the implication that
appellant was not helpful because he was dishonest.  The trial court overruled the objection, and
the State again asked Investigator Chavez whether he would say that appellant
was helpful in the officers’ investigation. 
Defense counsel objected “for the same reason we stated on the
record.”  The trial court again overruled
the objection, and Investigator Chavez testified that appellant was not
helpful.  The State then asked whether
Investigator Chavez had any indication that appellant “had any knowledge of
this incident.”  Investigator Chavez
responded that “[he] felt that [appellant] possibly knew more than he was
telling, but—,” and defense counsel objected
on speculation grounds.  The trial court
sustained the objection, instructed the jury to disregard Chavez’s answer, and
denied appellant’s motion for mistrial.
Appellant testified on his own
behalf during the guilt-innocence phase. 
He acknowledged that he had been a member of the Latin Kings gang from
1994 to 1996, before the shooting occurred. 
He testified that he had never been to David Cruz’s house, that he had
only seen David once or twice before the shooting, that he did not give David a
gun, that he never had a gun on the day of the shooting, and that he did not go
to David’s house after the shooting to retrieve the gun.  Appellant stated that when he, Jose, and
Emily arrived at David’s school David showed them a gun and that David sat in
the passenger seat while appellant climbed into the back of the truck with
David’s two friends.  Appellant testified
that he heard David say, “Duck, because y’all are going to see what a drive by
is,” and, when the shooting started, he was lying in the back of the truck,
covering his head.  Appellant stated that,
after Jose dropped him off at his house, Jose told him that he had better not
say anything, “or else.”  Appellant
denied making threats to Jose and David. 
Appellant also testified that, after the shooting, he was “scared for
his life,” and he left Houston for Mexico and stayed there for five or six
years.
At the punishment phase, the State
called Harris County Sheriff’s Department Deputy M. Squyres as an expert on
criminal street gangs.  Before Deputy
Squyres testified, defense counsel objected to any testimony regarding the
national criminal activities of the Latin Kings unless the State could
specifically connect such activity to appellant.  The trial court overruled the objection,
agreeing with the State that the nature of the Latin Kings and the kinds of
activities for which they are known was “highly relevant” to appellant’s
character.  Deputy Squyres testified that
the Latin Kings are known for engaging in criminal activity, specifically
narcotics distribution, “random assaultive behavior against other gang members,”
and murder.  Deputy Squyres also
testified that he examined and photographed appellant’s tattoos, and two of
them shared characteristics with common Latin Kings gang symbols.  Deputy Squyres noted that one of those
tattoos was dated March 1, 2002.
The jury convicted appellant of murder
and assessed punishment at thirty-five years’ confinement and a $10,000 fine.
Jurisdiction
          In
his first issue, appellant, who was sixteen at the time of the shooting,
contends that the trial court lacked jurisdiction to hear this case because the
order purportedly assuming jurisdiction from the juvenile court was defective
and invalid, and, therefore, jurisdiction remained in the juvenile court.  Specifically, appellant contends that the
order does not meet Code of Criminal Procedure article 42.01’s requirements for
judgments because (1) the order is not dated, (2) the order reflects only the
date on which the juvenile court waived jurisdiction, (3) the order is not
file-stamped by the district clerk’s office, and (4) the district court judge’s
signature is illegible and there is no printed name of the judge on the order.
          The
juvenile court may waive its exclusive original jurisdiction and transfer a
child to the district court for criminal proceedings if (1) the child is
alleged to have committed a felony; (2) the child was fourteen years of age or
older at the time of the alleged offense if the offense is a felony of the
first degree; and (3) after a full investigation and a hearing, “the juvenile
court determines that there is probable cause to believe that the child before
the court committed the offense alleged and that because of the seriousness of
the offense alleged or the background of the child the welfare of the community
requires criminal proceedings.”  Tex. Fam. Code Ann. § 54.02(a) (Vernon
Supp. 2010); see id. § 54.02(i)
(“A waiver under this section is a waiver of jurisdiction over the child and
the criminal court may not remand the child to the jurisdiction of the juvenile
court.”); see also Ex parte Waggoner,
61 S.W.3d 429, 431 (Tex. Crim. App. 2001) (“In the absence of a transfer [to
the district court], the district court was, at the time of the offense,
without jurisdiction, and any resulting conviction is void.”).
A.  
Waiver Under Juvenile Code article
4.18(a)
          The
State contends that appellant has waived his contention that jurisdiction
remained in the juvenile court because Code of Criminal Procedure article
4.18(a) provides that objections to a district court’s assumption of
jurisdiction over a juvenile must be made before jury selection and appellant
did not so object.  Under these facts, we
disagree.
          Article
4.18(a) provides that:
A claim that a district
court or criminal district court does not have jurisdiction over a person
because jurisdiction is exclusively in the juvenile court and that the juvenile
court could not waive jurisdiction under Section 8.07(a), Penal Code, or did
not waive jurisdiction under Section 8.07(b), Penal Code, must be made by
written motion in bar of prosecution filed with the court in which criminal
charges against the person are filed.
 
Tex. Code Crim. Proc. Ann. art.
4.18(a) (Vernon 2005).  If the defendant
elects to have a jury trial on either guilt or punishment, the defendant must
file and present his motion to the presiding judge of the court before jury
selection begins.  Id. art. 4.18(b)(2).  If the
defendant does not file his motion within the prescribed time limits, the
defendant “may not contest the jurisdiction of the court on the ground that the
juvenile court has exclusive jurisdiction.” 
Id. art. 4.18(d)(1).
          Here,
appellant is not arguing that the district court lacks jurisdiction because
jurisdiction was exclusively in the juvenile court and the juvenile court
either could not waive jurisdiction under Penal Code section 8.07(a) or did not
waive jurisdiction under Penal Code section 8.07(b).  See id.
art. 4.18(a).  Instead, appellant
contends that the district court lacks jurisdiction because its order assuming
jurisdiction after transfer from the juvenile court was defective and invalid,
and therefore void.  This factual
scenario is not covered by the plain language of article 4.18(a).  We therefore conclude that the State’s
interpretation of article 4.18(a), which would require the defendant to make a
written motion before jury selection begins in order to preserve any claim that
the district court lacks jurisdiction, is overly broad and not supported by the
language of the statute.  See Alberty v. State, 250 S.W.3d 115,
118 (Tex. Crim. App. 2008) (holding that article 4.18 applies only when
jurisdiction is exclusively in juvenile court; thus, when evidence supports
jurisdiction in both juvenile and district courts, article 4.18 does not apply
and defendant need not make a written motion to preserve the complaint).[5]  We hold that when a defendant challenges the
district court’s jurisdiction due to an allegedly defective order assuming
jurisdiction the defendant need not object via written motion before jury
selection begins to preserve his complaint for appellate review.  We further hold that appellant did not waive
his contention that jurisdiction remained in the juvenile court by failing to
object to the transfer to the district court before jury selection.
B.  
Lack of District Court Jurisdiction Due
to Invalid Transfer Order
          Neither
the Family Code nor the Code of Criminal Procedure specifies the required
contents of the district court’s order assuming jurisdiction, and neither code
specifies that, if that order does not meet certain requirements, the trial
court loses jurisdiction.  See Moss v. State, 13 S.W.3d 877, 885–86
(Tex. App.—Fort Worth 2000, pet. ref’d) (holding no statutory requirement
exists that transfer order be filed with district court and that, if not filed,
district court deprived of jurisdiction); see
also Ellis v. State, 543 S.W.2d 135, 137 (Tex. Crim. App. 1976)
(“Regardless of whether the order of the juvenile court was actually on file
with the papers in the case, the record reflects that the juvenile court had
waived jurisdiction over appellant and had transferred it to the district court
in which all subsequent criminal proceedings were had, and that the district
court had such order in its possession and acted on the waiver and transfer and
assumed jurisdiction . . . .”).
          Here,
it is undisputed that the juvenile court signed an order waiving its exclusive
jurisdiction and transferring jurisdiction “to the Criminal District Court of
Harris County.”  Appellant does not
contend that this order waiving jurisdiction is invalid or that the juvenile
court improperly waived and transferred its jurisdiction.  The order assuming jurisdiction in the
district court is included within the clerk’s record, indicating that it was
duly filed in the district clerk’s office with the other papers in the
case.  The caption of the order states
“In the 174 District Court of Harris County, Texas,” the order is signed, and
the order includes a statement that:
IT IS ACCORDINGLY
CONSIDERED, ORDERED AND ADJUDGED THAT jurisdiction of this court of said
ROGELIO DELACERDA for criminal proceedings be and the same are hereby assumed
by this court; that this cause be filed and docketed and this order entered in
the minutes of this court, and that a certified copy of same be certified to
said Judicial District Court, sitting as a Juvenile Court, for observance.
 
However, the order is not dated, nor does the
printed name of the presiding judge appear on the order.
We conclude that, despite the lack
of a date and printed name of the judge, this order unequivocally provides for
the assumption of jurisdiction by the 174th District Court.  See
Speer v. State, 890 S.W.2d 87, 93 (Tex. App.—Houston [1st Dist.] 1994, pet.
ref’d) (holding that, when discrepancy existed between district court number
within order assuming jurisdiction, discrepancy was “no more than a
typographical error or editing oversight,” and district court named in caption
properly assumed jurisdiction).
We hold that the district court
properly assumed and exercised jurisdiction over appellant in this case.[6]
          We
overrule appellant’s first issue.
Commitment Question
          In
his second issue, appellant contends that the trial court allowed the State to
ask an improper commitment question during voir dire when it sought to discover
which veniremembers could not convict appellant if the State failed to produce
“physical evidence” but otherwise proved the elements of the offense beyond a
reasonable doubt.
          The
trial court has broad discretion over the process of selecting a jury.  Barajas
v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002); Braxton v. State, 226 S.W.3d 602, 604 (Tex. App.—Houston [1st
Dist.] 2007, pet. dism’d).  We therefore
review the trial court’s ruling on an allegedly improper commitment question
during voir dire for an abuse of discretion. 
Atkins v. State, 951 S.W.2d
787, 790 (Tex. Crim. App. 1997); Braxton,
226 S.W.3d at 604.
          Improper
commitment questions are prohibited to “ensure that the jury will listen to the
evidence with an open mind—a mind that
is impartial and without bias or prejudice—and render a verdict based upon that evidence.”  Sanchez
v. State, 165 S.W.3d 707, 712 (Tex. Crim. App. 2005).  Commitment questions “require a venireman to
promise that he will base his verdict or course of action on some specific set
of facts before he has heard any evidence, much less all of the evidence in its
proper context.”  Id.; Standefer v. State,
59 S.W.3d 177, 179 (Tex. Crim. App. 2001) (holding that commitment questions
“are those that commit a prospective juror to resolve, or refrain from
resolving, an issue a certain way after learning a particular fact”).  Not all commitment questions, however, are
improper.  Standefer, 59 S.W.3d at 181.
          The
Court of Criminal Appeals has articulated a three-part test for determining
whether a voir dire question is an improper commitment question.  Id.
at 179–84; Braxton, 226 S.W.3d at
604; Harris v. State, 122 S.W.3d 871,
879 (Tex. App.—Fort Worth 2003, pet. ref’d). 
First, the trial court must determine whether the particular question is
a commitment question.  Standefer, 59 S.W.3d at 179.  A question is a commitment question if “one
or more of the possible answers is that the prospective juror would resolve or
refrain from resolving an issue in the case on the basis of one or more facts
contained in the question.”  Id. at 180.  Second, if the question is a commitment
question, the trial court must then determine whether it is a proper commitment
question.  Id. at 181 (“When the law requires a certain type of commitment
from jurors, the attorneys may ask the prospective jurors whether they can
follow the law in that regard.”); Braxton,
226 S.W.3d at 604.  A commitment question
is proper if one of the possible answers to the question gives rise to a valid
challenge for cause.  Standefer, 59 S.W.3d at 182; Braxton, 226 S.W.3d at 604.  If the question does not, then it is not a
proper commitment question and it should not be allowed by the trial
court.  Standefer, 59 S.W.3d at 182. 
Third, if the question does give rise to a valid challenge for cause,
then the court must determine whether the question “contain[s] only those facts necessary to test
whether a prospective juror is challengeable for cause.”  Id.
(emphasis in original).  “Additional
facts supplied beyond what is necessary to sustain a challenge for cause render
improper what otherwise would have been a proper question.”  Braxton,
226 S.W.3d at 604.
 
A.  
Was the State’s question a commitment
question?
Appellant contends that the trial
court improperly allowed the State to ask the veniremembers variations of the
following question:
I bring you other types of
evidence.  I bring you direct
evidence.  I bring you maybe
circumstantial evidence.  I bring you any
other type of evidence you can think of. 
And I prove my case to you beyond a reasonable doubt through that
evidence, but I don’t bring you any physical evidence.  Can you convict?
 
Appellant and the State agree that this question was
a commitment question.  This question
asked veniremembers whether they could convict based upon a particular factual
scenario—no physical evidence.  See
Standefer, 59 S.W.3d at 179 (holding that commitment questions commit
prospective jurors to resolve issue a certain way after learning particular
facts).  We agree with the parties and
conclude that this question was a commitment question.  Id.;
see also Braxton, 226 S.W.3d at 605
(holding that question asking whether prospective jurors would be more likely
to consider self-defense just because defendant was a woman was commitment
question).  We therefore determine
whether the commitment question was proper.
B.  
Did the question give rise to a valid
challenge for cause?
A veniremember may be challenged
for cause if he possesses a bias against a phase of the law upon which the
State or defendant is entitled to rely.  Mason v. State, 116 S.W.3d 248, 255
(Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (citing Barajas, 93 S.W.3d at 39); see
Tex. Code Crim. Proc. Ann.
art. 35.16(b)(3) (Vernon 2006).  The
State may properly challenge a prospective juror for cause when the juror would
hold the State to a burden higher than beyond a reasonable doubt.  Mason,
116 S.W.3d at 255 (citing Coleman v.
State, 881 S.W.2d 344, 360 (Tex. Crim. App. 1994)); see also Blackwell v. State, 193 S.W.3d 1, 20 (Tex. App.—Houston
[1st Dist.] 2006, pet. ref’d) (“[A] juror who would require more evidence than
necessary to prove a case beyond a reasonable doubt would be subject to a
challenge for cause.”); Harris, 122
S.W.3d at 880 (“Although the State may not bind a prospective juror to a
specific set of facts, the State is permitted to determine whether a
prospective juror will require evidence the law does not require to convict a
defendant.”).  Sufficient evidence can
support a murder conviction even in the absence of physical evidence such as
DNA evidence, fingerprinting evidence, and the murder weapon; thus, such
evidence is not required to obtain a conviction.  See
Harmon v. State, 167 S.W.3d 610, 614 (Tex. App.—Houston [14th Dist.] 2005,
pet. ref’d) (“A rational jury could have found appellant guilty of aggravated
robbery without DNA evidence, fingerprint evidence, or evidence of the gun or
cash Newby gave to appellant.”).
Here, the challenged question
sought to determine whether prospective jurors could convict appellant in the
absence of “physical evidence” if the State otherwise proved the elements of
the offense beyond a reasonable doubt. 
Because the State is not required to produce such evidence to prove its
case beyond a reasonable doubt, a negative answer to this question gives rise
to a valid challenge for cause because it reveals a bias against a “phase of
the law upon which the State is entitled to rely for conviction or punishment.”  See Tex. Code Crim. Proc. Ann. art.
35.16(b)(3); Harris, 122 S.W.3d at
880 (holding, in sexual assault case, that question asking whether jurors could
convict in absence of scientific or medical evidence, was proper commitment
question because State could obtain conviction in absence of such
evidence).  In this situation, a juror
who requires physical evidence holds the State to a higher burden than beyond a
reasonable doubt, and, therefore, the State may properly challenge such a juror
for cause.  See Mason, 116 S.W.3d at 255–56 (holding question that “identified
veniremen who would not convict [of aggravated sexual assault and indecency
with a child] in the absence of DNA or medical evidence—even though Texas law does not require it and
the State might otherwise prove its case beyond a reasonable doubt” was proper
commitment question); Harris, 122
S.W.3d at 880 (“[T]he State is permitted to determine whether a prospective
juror will require evidence the law does not require to convict a defendant.”).
We therefore conclude that, because
a negative answer to the State’s question would lead to a valid challenge for
cause, we must proceed to the third step of the inquiry—whether the question included only the facts
necessary to test whether a prospective juror was challengeable for cause—to determine if this was a proper commitment
question.
C.  
Did the question include only
necessary facts?
A commitment question may be
improper if it “includes facts in
addition to those necessary to establish a challenge for cause,” and,
therefore, a commitment question “must contain only those facts necessary to test whether a prospective juror is
challengeable for cause.”  Standefer, 59 S.W.3d at 182 (emphasis in
original); Braxton, 226 S.W.3d at 606
(“[T]he question should not contain more case-specific facts than needed to
give rise to a valid challenge for cause.”). 
In Atkins, for example, the
Court of Criminal Appeals held that the following commitment question was
improper:  “If the evidence, in a
hypothetical case, showed that a person was arrested and they had a crack pipe
in their pocket, and they had a residue amount in it, and it could be measured,
and it could be seen, is there anyone who could not convict a person based on
that—[?]”  Atkins,
951 S.W.2d at 789.  The court reasoned
that this question was improper because it “serve[d] no purpose other than to
commit the jury to specific set of facts prior to the presentation of any
evidence at trial.”  Id.
Here, the questions asked by the
State did not include facts that were unnecessary to determining a valid
challenge for cause.  Braxton, 226 S.W.3d at 606.  The questions “did not attempt to commit the
prospective jurors to a specific set of facts prior to the presentation of
evidence at trial.”  Id.  Rather, the only fact
that the questions included was the absence of physical evidence, such as DNA
or fingerprinting evidence, and this fact was necessary to test whether a
prospective juror possessed a bias against a phase of the law upon which the
State was entitled to rely, and was, therefore, challengeable for cause.  See
Standefer, 59 S.W.3d at 182; Harris,
122 S.W.3d at 881 (“The questions were not fact intensive, but rather only
included those facts necessary to determine whether a prospective juror was
challengeable for cause.”).  We therefore
hold that, because the questions asked by the State included only the facts
necessary to discover a valid challenge for cause, the questions were proper
commitment questions, and the trial court did not err in allowing these
questions.
We overrule appellant’s second
issue.
Failure to Pronounce Exhibit Admitted
          In
his third issue, appellant contends that the trial court erred in failing to
pronounce that Defense Exhibit 2, Jose Carreon’s written police statement, was
admitted after it overruled the State’s hearsay objection to the exhibit.  Appellant argues that this failure precluded
the jury from considering this exhibit during its deliberations.
          During
cross-examination of Jose, defense counsel attempted to impeach Jose by using
his written police statement.  After the
State objected on the ground that counsel was improperly reading from a
document not admitted into evidence, defense counsel offered the statement into
evidence as Defense Exhibit 2.  The State
objected to the admission of this document on hearsay grounds.  Defense counsel, the prosecutor, and the
trial court then had the following exchange:
[Defense]:             Is the State still objecting to the
introduction of the statement?
 
[State]:                  Yes,
of the statement.
 
[Defense]:             I’m still offering it.  I’m offering it into evidence.  What’s the basis of the objection?
 
[State]:                 Hearsay, certainly.
 
The Court:            Denied.
 
Appellant’s interpretation of this exchange is that
the trial court overruled the State’s objection and admitted Exhibit 2, but
failed to pronounce that it had admitted the exhibit.  The State contends that the more logical
interpretation is that trial court sustained its objection and “denied the
admission of the statement into evidence.”
          Based
on a review of other instances in the record in which the trial court either
admitted evidence over a party’s objection or excluded evidence, we agree with
the State.  The trial court admitted
exhibits over the objection of defense counsel on five separate occasions
throughout both phases of the trial.  For
example, when the State offered a 9mm handgun into evidence for demonstrative
purposes, the following exchange occurred:
[State]:                 Your Honor, at this time State
would offer State’s 62 in evidence for demonstrative purposes only after
tendering to opposing counsel.
 
[Defense]:             Objection.  Not relevant.
 
The
Court:            Overruled.  Entered over objection for demonstrative
purposes.
 
Although this was the only occasion that the trial
court explicitly said “overruled,” on each of the other four occasions, the
court said “admitted over objection.”  In
contrast, on two occasions, defense counsel attempted to introduce the written
statement of Edgar Rangel into evidence and the following occurred:
[Defense]:             For the record, now that the jury
is retired, I want to reoffer Defense Exhibit Number 3, the statement of Edgar
Rangel, which rebuts the witness’ testimony about this witness telling him that
David was the shooter.
 
[State]:                 Judge, I renew the previous
objections.  You heard the witness’
testimony.  I’m sorry.  Previous response.  You heard the witness’ testimony.
 
The Court:            Same ruling.  Denied.
 
On both of these occasions, the trial court excluded
the proffered evidence and stated “denied,” which is what the court stated when
defense counsel offered Jose’s written statement.
          When
we examine the record and contrast the trial court’s statements when it
admitted exhibits over defense counsel’s objection with its statements when it
excluded exhibits, we conclude that the trial court did not admit Defense
Exhibit 2 and “inadvertently” fail to state that the exhibit was admitted.  We therefore hold that the trial court did
not err in failing to pronounce the exhibit admitted.  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.”); Guajardo
v. State, 109 S.W.3d 456, 462 n.17 (Tex. Crim. App. 2003) (“It is, however,
the appealing party’s burden to ensure that the record on appeal is sufficient
to resolve the issue he presents.”); Ortiz
v. State, 144 S.W.3d 225, 230 (Tex. App.—Houston [14th Dist.] 2004, pet.
ref’d) (“[The appellant] is required to develop the record to show the nature
and source of error and, in some cases, its prejudice to him.”).
          We
overrule appellant’s third issue.
Characterization of Police Interview
          Appellant
contends, in his fourth issue, that the trial court erroneously allowed HPD Investigator
H.A. Chavez to discuss his interview of appellant and to characterize that
interview as “not helpful” because appellant was under the jurisdiction of the
juvenile justice system at the time. 
Appellant argues that his statement was a product of custodial
interrogation and, thus, because the police did not follow the procedures in
the Family Code that govern the admissibility of statements made by minors, the
trial court should not have allowed Investigator Chavez either to discuss his
conversation with appellant or to testify regarding his impressions following
the conversation.  In his fifth issue,
appellant contends that the trial court erroneously denied his motion for
mistrial made after Investigator Chavez testified that, after interviewing
appellant, he “felt that [appellant] possibly knew more [about the shooting]
than he was telling.”
A.  
Statement that Appellant’s Interview
was “Not Helpful”
          The
State did not offer, and the trial court did not admit into evidence, any
portion of appellant’s oral statement to Investigator Chavez.  There is no indication that, during his
conversation with Chavez, appellant confessed to his involvement in the
shooting.  Chavez did not testify that
appellant’s statements were “not helpful” because they were inculpatory and
incriminating; rather, he testified that appellant was not “helpful in
[Chavez’s] investigation” of the shooting.
Former Family Code section 51.09,
applicable at the time of appellant’s interview, set forth certain procedural
requirements that must be met for a child’s statement to be admissible in
evidence.  Act of May 24, 1991, 72d Leg.,
R.S., ch. 593, 1991 Tex. Gen. Laws 2129, 2129–30 (amended 1997) (current
version at Tex. Fam. Code Ann.
§ 51.095(a) (Vernon 2008)); see also
Tex. Fam. Code Ann.
§§ 52.02–.026 (Vernon 2008) (requiring, among other things, that person
taking child into custody must “without unnecessary delay” take child to
designated juvenile processing office). 
For example, the statute provided that, when the child is in a detention
facility or in the custody of an officer, the statement must be in writing and
must reflect that the child received his Miranda
warnings from a magistrate before making the statement.  Act of May 24, 1991, 72d Leg., R.S., ch. 593,
1991 Tex. Gen. Laws 2130 (amended 1997). 
Section 51.09(d)(2) expressly provided that it “does not preclude the
admission of a statement made by the child if the statement does not stem from
custodial interrogation.”  Act of May 24,
1991, 72d Leg., R.S., ch. 593, 1991 Tex. Gen. Laws 2129, 2129–30 (amended 1997)
(current version at Tex. Fam. Code Ann.
§ 51.095(b)(2) (Vernon 2008)); see
also Laird v. State, 933 S.W.2d 707, 713 (Tex. App.—Houston [14th Dist.]
1996, pet. ref’d) (“[S]ection 51.09(b)(2) of the Family Code [does] not apply
to this case because appellant’s confession was not made as a result of
custodial interrogation. . . .  In such a situation,
section 51.09(d)(2) of the Family Code applies. 
This section allows an oral statement to be admitted if it is not in
response to custodial interrogation.”). 
As a threshold issue, we must first determine whether appellant was in
custody when he spoke with Investigator Chavez.
          Custodial
interrogation is questioning that is initiated by law enforcement after a
person has been taken into custody or otherwise deprived of his freedom in any
significant way.  See Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526,
1528 (1994); In re D.J.C., 312 S.W.3d
704, 712 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (addressing whether
juvenile was in custody for purpose of determining admissibility of confession
in juvenile delinquency proceeding).  “A
custodial interrogation occurs when a defendant is in custody and is exposed
‘to any words or actions on the part of the
police . . . that [the police] should know are reasonably
likely to elicit an incriminating response.’” 
Roquemore v. State, 60 S.W.3d
862, 868 (Tex. Crim. App. 2001) (quoting Rhode
Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689–90 (1980)).  A child is in custody if, under the objective
circumstances, a reasonable child of the same age would believe that his
freedom of movement was significantly restricted.  In re
D.J.C., 312 S.W.3d at 712 (citing In
re U.G., 128 S.W.3d 797, 799 (Tex. App.—Corpus Christi 2004, pet. denied)
and Jeffley v. State, 38 S.W.3d 847,
855 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d)).
          In
determining whether an individual is in custody, we first examine all of the
circumstances surrounding the interrogation to determine if there was a formal
arrest or “restraint of freedom of movement to the degree associated with a
formal arrest.”  Stansbury, 511 U.S. at 322, 114 S. Ct. at 1528–29; In re D.J.C., 312 S.W.3d at 712.  This determination focuses on the objective
circumstances of the interrogation and not on the subjective views of either
the interrogating officers or the person being questioned.  Stansbury,
511 U.S. at 323, 114 S. Ct. at 1529; In
re D.J.C., 312 S.W.3d at 712.  We
next consider whether, in light of the particular circumstances, a reasonable
person would have felt that he was at liberty to terminate the interrogation
and leave.  Thompson v. Keohane, 516 U.S. 99, 112, 116 S. Ct. 457, 465 (1995); In re D.J.C., 312 S.W.3d at 712.  Factors relevant to a custody determination
include:  (1) probable cause to arrest;
(2) focus of the investigation; (3) subjective intent of the police; and (4)
subjective belief of the defendant.  Dowthitt v. State, 931 S.W.2d 244, 254
(Tex. Crim. App. 1996); In re D.J.C.,
312 S.W.3d at 712.  Because the custody
determination is based entirely on objective circumstances, whether the law
enforcement officials had the subjective intent to arrest is irrelevant unless
that intent is somehow communicated to the suspect.  Stansbury,
511 U.S. at 323, 114 S. Ct. at 1529; Dowthitt,
931 S.W.2d at 254; In re D.J.C., 312
S.W.3d at 713.
          The
following situations generally constitute custody:  (1) when the suspect is physically deprived
of his freedom of action in any way; (2) when a law enforcement officer tells
the suspect that he cannot leave; (3) when law enforcement officers create a
situation that would lead a reasonable person to believe that his freedom of movement
has been significantly restricted; or (4) when there is probable cause to
arrest and law enforcement officers do not tell the suspect that he is free to
leave.  Dowthitt, 931 S.W.2d at 255; In
re D.J.C., 312 S.W.3d at 713.
          Being
the focus of the investigation does not amount to being in custody.  Meek v.
State, 790 S.W.2d 618, 621 (Tex. Crim. App. 1990) (citing Beckwith v. United States, 425 U.S. 341,
347, 96 S. Ct. 1612, 1616 (1976)); In re
D.J.C., 312 S.W.3d at 713. 
Similarly, stationhouse questioning does not, in and of itself,
constitute custody.  Dowthitt, 931 S.W.2d at 255; In
re D.J.C., 312 S.W.3d at 713. 
Ordinarily, when a person voluntarily accompanies a law enforcement
officer to a certain location, even though the person knows or should know that
the officer suspects that he may have committed or may be implicated in the
commission of a crime, the person is not restrained or “in custody.”  Garcia
v. State, 237 S.W.3d 833, 836 (Tex. App.—Amarillo 2007, no pet.) (citing Miller v. State, 196 S.W.3d 256, 264
(Tex. App.—Fort Worth 2006, pet. ref’d)). 
“When the circumstances show that the individual acts upon the
invitation or request of the police and there are no threats, express or
implied, that he will be forcibly taken, then that person is not in custody at
that time.”  In re D.J.C., 312 S.W.3d at 713; Garcia, 237 S.W.3d at 836 (citing Shiflet v. State, 732 S.W.2d 622, 628 (Tex. Crim. App. 1985)).
          The
only evidence in the record regarding the circumstances of appellant’s
interview with Investigator Chavez is Chavez’s testimony.  According to Investigator Chavez, HPD
Homicide Division received an anonymous Crime Stoppers tip that provided
appellant’s name.  Several officers,
including Chavez, went to appellant’s house on January 24, 1997, to ask him to
come to the station and give a statement. 
The officers discovered that appellant was only sixteen, and so they
informed his mother that “[appellant’s] name had come up on an investigation
and advised her that [the officers] needed to speak with [appellant] about this
case.”  Appellant’s mother gave the
officers permission to speak with him.  The
officers transported appellant to the Homicide Division.  Investigator Chavez testified that they did
not read appellant any Miranda
warnings because he “wasn’t in custody.” 
When asked whether he was planning to arrest appellant on that day,
Investigator Chavez responded that “[a]t that particular time, his name just
came up and we wanted to see what he knew about the case.”  Investigator Chavez stated that he did not
make a written statement or a recording of the interview because, when the
witness does not have any “useful” information, normal practice is to “document
[the interview] as an oral statement.”  After
appellant gave his oral statement, Investigator Chavez had a patrol officer
escort appellant to his father’s business. 
Investigator Chavez did not testify about the contents of appellant’s
oral interview.
Based on this record, in which
there is no testimony about the circumstances of the interview itself, there is
no indication that appellant’s freedom of movement was restrained or that he
felt as though he could not terminate the interview and leave at any time.[7]  See In
re D.J.C., 312 S.W.3d at 714 (holding that “there was restraint of freedom
of movement to the degree associated with formal arrest” when magistrate read
defendant his Miranda warnings,
defendant’s grandmother was excluded from interview despite her request, and
defendant was alone in locked interrogation room with armed officer).  Investigator Chavez testified that, at the
time of the interview, appellant was not a suspect, but that his name “came up”
in an anonymous tip, and therefore detectives wanted to speak with appellant
and see if he knew anything about the incident. 
Investigator Chavez also testified that, with the permission of his
mother, appellant voluntarily went with the officers to the Homicide Division
office.  Merely being questioned at the
stationhouse, by itself, does not constitute custody.  Dowthitt,
931 S.W.2d at 255; In re D.J.C., 312
S.W.3d at 713.  We conclude that
appellant’s oral statement to Investigator Chavez did not stem from custodial
interrogation, and, therefore, was admissible in evidence.  See Act
of May 24, 1991, 72d Leg., R.S., ch. 593, 1991 Tex. Gen. Laws 2129, 2129–30
(amended 1997); see also Laird, 933
S.W.2d at 713 (holding section 51.09(b)(2) inapplicable when confession was not
result of custodial interrogation). 
Because appellant’s oral statement was admissible, we hold that the
trial court did not abuse its discretion in allowing Investigator Chavez to
testify that appellant’s statement was not helpful to his investigation.
B.  
Statement that Appellant “Possibly
Knew More than He Was Telling”
          In
his fifth issue, appellant contends that the trial court erroneously denied his
motion for mistrial made after Investigator Chavez testified, in response to
the State’s question of whether he had an indication that appellant had any
knowledge of the shooting, that, after his interview with appellant, he felt
“that [appellant] possibly knew more than he was telling.”  The trial court sustained appellant’s
objection on speculation grounds and instructed the jury to disregard Chavez’s
statement.
          When
the trial court instructs the jury to disregard a question, but denies the
appellant’s motion for mistrial, we must determine whether the improper conduct
is “so harmful that the case must be redone.” 
Hawkins v. State, 135 S.W.3d
72, 77 (Tex. Crim. App. 2004).  In
determining harm, we consider three factors: 
(1) severity of the misconduct; (2) measures adopted to cure the
misconduct; and (3) certainty of conviction absent the misconduct.  Mosley
v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).  Asking an improper question seldom calls for
a mistrial because, in most cases, any harm can be cured by an instruction to
disregard.  Russeau v. State, 171 S.W.3d 871, 885 (Tex. Crim. App. 2005)
(citing Ladd v. State, 3 S.W.3d 547,
567 (Tex. Crim. App. 1999)); Ovalle v.
State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000) (“Ordinarily, a prompt
instruction to disregard will cure error associated with an improper question
and answer . . . .”). 
A mistrial is required “only when the improper question is clearly
prejudicial to the defendant and is of such character as to suggest the
impossibility of withdrawing the impression produced on the minds of the
jurors.”  Russeau, 171 S.W.3d at 885. 
We review the trial court’s denial of a motion for mistrial for an abuse
of discretion.  Id.
          Here,
the State, defense counsel, and the trial court had the following exchange:
[State]:                 Was there any indication—again,
without going into what was said, was there any indication in your meeting
[with appellant] that he had any knowledge of this incident?
 
[Defense]:             Again, calls for hearsay.  The only way he can answer that is by going
into what was discussed.  So, I object to
it.
 
The Court:            Overruled.
 
[Chavez]:              He—
 
[State]:                 Again, you can’t go into what
he said.
 
[Chavez]:              Right, right.  I felt that he possibly knew more than he was
telling, but—
 
[Defense]:             Objection
to his opinion as speculation.
 
The Court:            Sustained.
 
[Defense]:             Ask
that it be—I’d ask we have a jury instruction.
 
The
Court:            The jury is so
instructed to disregard the answer to that question.
 
[Defense]:             Move
for a mistrial.
 
The Court:            Denied.
 
Although appellant contends on appeal that, in
sustaining his objection to “speculation,” the trial court gave an inadequate
instruction that “does not admonish the jury to disregard the statements made
by Officer Chavez,” the record reflects that the trial court promptly
instructed the jury to disregard Chavez’s statement.  Such an instruction generally cures any error
associated with improper questions and answers. 
Ovalle, 13 S.W.3d at 783.
This statement was the only
reference to Chavez’s belief that appellant may have known more about the
incident than he told the officers—the State did not emphasize this statement and it did not bring up this
testimony during closing argument. 
Furthermore, Chavez stated that he felt that appellant “possibly” knew
more than he was telling, and thus Chavez was equivocal in his statement.  Chavez further testified that, at this time,
appellant was not a suspect, but was merely someone who may have had relevant
information about the incident, and that appellant did not become a suspect
until after Chavez spoke with Carlos Martinez and David Cruz, several days
after appellant’s interview.[8]  We therefore conclude that Investigator
Chavez’s statement was not clearly prejudicial to appellant and of such
character as to suggest the impossibility of withdrawing the impression
produced on the jurors as to warrant a new trial.  See
Russeau, 171 S.W.3d at 885.  We hold
that, even if the State asked an improper question, the trial court did not
abuse its discretion in denying appellant’s motion for mistrial.
          We
overrule appellant’s fourth and fifth issues.
Statement Made During Photospread
          In
his sixth issue, appellant contends that the trial court erred in permitting
Officer Guerrero to testify that, while viewing a photospread, Albert Contreras
identified David Cruz as the person he saw in the back of the truck, after
Albert had previously testified that he did not identify the person in the back
of the truck when he viewed the display. 
Defense counsel objected to Officer Guerrero’s testimony on hearsay
grounds.
We review a trial court’s decision
to admit evidence for an abuse of discretion. 
Zuliani v. State, 97 S.W.3d 589,
595 (Tex. Crim. App. 2003).  A trial
court abuses its discretion only if its decision is “so clearly wrong as to lie
outside the zone within which reasonable people might disagree.”  Taylor
v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008); Roberts v. State, 29 S.W.3d 596, 600 (Tex. App.—Houston [1st Dist.]
2000, pet. ref’d).  A trial court does
not abuse its discretion if any evidence supports its decision.  See
Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002).  If the trial court’s decision is correct on
any theory of law applicable to the case, we will uphold the decision.  De La
Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
Hearsay is a statement, other than
one made by the declarant while testifying at trial, offered in evidence to
prove the truth of the matter asserted.  Tex. R. Evid. 801(d).  A statement is not hearsay if the declarant
testifies at trial and is subject to cross-examination concerning the statement
and the statement is one of identification of a person made after perceiving
the person.  Tex. R. Evid. 801(e)(1)(C); see also Thomas v. State, 811 S.W.2d 201, 208 (Tex. App.—Houston
[1st Dist.] 1991, pet. ref’d) (holding that, under Rule 801(e)(1)(C),
bolstering declarant’s identification with police testimony is admissible if
declarant testifies and is subject to cross-examination concerning
statement).  The rule only requires that
the declarant testify at trial and be subject to cross-examination concerning
the identification, not that the declarant actually be cross-examined about the
identification.  Rodriguez v. State, 975 S.W.2d 667, 682–83 (Tex. App.—Texarkana
1998, pet. ref’d).
Contrary to appellant’s assertion
on appeal, the language of Rule 801(e)(1)(C) imposes no requirement that the
declarant testify at trial that he previously identified a particular
person.  See Tex. R. Evid. 801(e)(1)(C).  Federal Rule 801(d)(1)(C), which is identical
to its Texas counterpart, was “intended to solve the problem of a witness who
identifies a defendant before trial, but then at trial refuses to acknowledge
the identification because of fear of reprisal.”  United
States v. Jarrad, 754 F.2d 1451, 1456 (9th Cir. 1985); see also United States v. O’Malley, 796 F.2d 891, 899 (7th Cir.
1986) (allowing admission of prior identification evidence when witness
admitted he previously identified defendant but recanted defendant’s
involvement in offense at trial).  “Rule
801(d)(1)(C) was in part directed to the very problem here at issue:  a memory loss that makes it impossible for
the witness to provide an in-court identification or testify about details of
the events underlying an earlier identification.”  United
States v. Owens, 484 U.S. 554, 562–63, 108 S. Ct. 838, 844 (1988); United States v. Brink, 39 F.3d 419, 426
(3d Cir. 1994) (“Generally, evidence is admitted under Rule 801(d)(1)(C) when a
witness has identified the defendant in a lineup or photospread, but forgets,
or changes, his testimony at trial.”). 
The Rule contemplates that third parties, such as the law enforcement
officer who showed the declarant the photospread, will testify to the
declarant’s statement of identification. 
See Brink, 39 F.3d at 426; United States v. Kaquatosh, 242 F. Supp.
2d 562, 563 (E.D. Wis. 2003) (“[T]he out-of-court identification may be
introduced through the witness/declarant or through a third party witness to
the identification, such as a law enforcement officer.”).
Texas courts have not addressed the
scope of the identification exclusion to the hearsay rule; that is, whether the
rule encompasses not merely the declarant’s previous identification but also
the declarant’s statements regarding what he observed the identified person
doing.  The Illinois Supreme Court, in construing
a statutory exclusion to the hearsay rule substantively identical to Federal
Rule 801(d)(1)(C) and Texas Rule 801(e)(1)(C), rejected an interpretation that
would limit admissible testimony under the statute solely to the “actual
identification” of a person, reasoning instead that “construing ‘statements of
identification’ to include the entire identification process would ensure that
a trier of fact is fully informed concerning the reliability of a witness’
identification, as well as the suggestiveness or lack thereof in that
identification.”  People v. Tisdel, 775 N.E.2d 921, 926–27 (Ill. 2002); People v. Newbill, 873 N.E.2d 408, 413
(Ill. App. Ct. 2007) (applying Tisdel).  Similarly, the District of Columbia Court of
Appeals has held, under its substantively identical exception, that although
“detailed accounts of the actual crime” are not admissible, the declarant’s
“description of the offense itself is admissible under this exception only to
the extent necessary to make the identification understandable to the
jury.”  Brown v. United States, 840 A.2d 82, 89 (D.C. 2004); see also Porter v. United States, 826
A.2d 398, 410 (D.C. 2003) (“Some limited reference in the identification to the
criminal act is permissible.”); Johnson
v. United States, 820 A.2d 551, 559 n.4 (D.C. 2003) (“To be understandable
and therefore probative, an identification must have context, and the
circumstances of Heard’s identification which the jury learned about from his
prior statement were relevant to the identification.”).
On direct examination, Albert
Contreras testified that he thought he had seen the person in the back of the
truck at school a few times.  He stated
that he did not recognize the passenger as a fellow student.  The State did not ask Albert whether he viewed
a photospread or whether he identified anyone in a photospread.  Defense counsel then had the following
exchange with Albert on cross-examination:
[Defense]:             [The police] showed you some
photographs of some people, just some people, I guess you don’t know where
they’re from, but you couldn’t identify any of them; is that right?
 
[Albert]:               That’s right.
 
. . . .
 
[Defense]:             And you were trying to see if they
were the same—if any of them were the person that was in the bed of the pickup that
kept popping up?
 
[Albert]:               Yes.  I was trying to recognize if I know them.
 
[Defense]:             Okay.  And you didn’t see the person or you couldn’t
tell if it was the person you saw popping up in the bed of the pickup truck?
 
[Albert]:               Yes, I didn’t see it.
 
[Defense]:             Pardon?
 
[Albert]:               I didn’t see him in the photographs
they showed me.
 
On redirect, the State asked Albert if he remembered
picking out one person from the display “as a person he saw in the bed of the
truck.”  Albert responded that he did not
remember identifying the person he saw in the bed of the truck and he did not
remember “picking out one person in the photographs.”  The next morning, the State recalled Albert
and asked him if he recognized the photo display that he had viewed.  Albert identified his signature on the second
page of the display, next to position two, but he again testified that he did
not remember identifying anyone in the photographs.
          Later,
the State called Officer Guerrero, who was involved in compiling the photospreads
for the case.  Officer Guerrero stated
that the photospread used in this case contained pictures of both David Cruz
and appellant.  Officer Guerrero
testified, without defense objection, that Albert had positively identified
David Cruz.  After the State asked what Albert
identified David as doing, defense counsel objected, arguing that the State had
already proven the identification and that any testimony regarding Albert’s
further statements to Officer Guerrero constituted inadmissible hearsay.  The State responded that because a picture of
appellant was in the display as well, Guerrero’s testimony that Albert
identified David “doesn’t clear up the identification,” and, therefore, the
testimony regarding what Albert saw David doing was necessary to avoid creating
an erroneous impression with the jury that Albert identified David as the
shooter.  The trial court overruled the
objection, and Officer Guerrero agreed with the prosecutor that “the person
that Albert Contreras identified is the person he sees in the bed of the
truck.”  Officer Guerrero testified,
without objection, that Albert was not able to identify the shooter.
Officer Guerrero later stated that,
when officers show photospreads to witnesses, and the witness makes an
identification, the officer has the witness sign the display “to show that they
viewed the photospread and identified a certain person.”  At the end of his direct examination, Officer
Guerrero testified, without defense objection, that Albert identified “the
number-two spot” of the photospread and that he identified this person “as the
person he saw laying in the bed of the truck” and not as the shooter.[9]
          We
agree with the rationale of the Illinois Supreme Court and the District of
Columbia Court of Appeals that limiting admissible testimony under the
identification exclusion to the hearsay rule solely to the declarant’s naming
of the identified individual and not allowing testimony regarding what the
declarant identified the individual as doing is unduly restrictive.[10]  See
Tisdel, 775 N.E.2d at 926–27 (construing “statement of identification” to
include “the entire identification process”); Brown, 840 A.2d at 89 (holding description of offense admissible
“to the extent necessary to make the identification understandable”); Johnson, 820 A.2d at 559 n.4 (holding
that identification “must have context” to be understandable and
probative).  Here, Albert testified at
trial and was subject to cross-examination concerning his statements regarding
identification.  Under these facts,
Albert’s statement to Officer Guerrero that he recognized David Cruz as the
person he saw in the back of the truck and not as the shooter, when appellant’s
picture was in the same display, was an indispensable part of his “statement of
identification.”  We conclude that Officer
Guerrero’s testimony regarding Albert’s identification of David as the person
in the back of the truck falls within Rule 801(e)(1)(C)’s exclusion of
identifications from the definition of hearsay statements.  We hold that the trial court did not abuse its
discretion in permitting this testimony.
          We
overrule appellant’s sixth issue.
Admission of Autopsy Photographs
          Appellant
next contends, in his seventh issue, that the trial court erred in admitting
three photographs located within the file containing the victim’s autopsy
report because the State did not establish the proper predicate for the
pictures.  Specifically, appellant
contends that the State failed to establish (1) that the pictures were taken of
the victim at the time the medical examiner performed the autopsy; (2) that Dr.
Gumpeni, the sponsoring medical examiner, took the pictures; (3) that Dr.
Brown, who performed the autopsy, took the pictures; and (4) that the pictures
were part of the autopsy report, because only one of the pictures displayed the
autopsy case number.  The photographs
were admitted over appellant’s objection that an improper predicate had been
laid.
          Before
being admitted into evidence, a photograph must ordinarily be shown to be a
correct representation of the subject at a given time.  Huffman
v. State, 746 S.W.2d 212, 222 (Tex. Crim. App. 1988); Quinonez-Saa v. State, 860 S.W.2d 704, 706 (Tex. App.—Houston [1st
Dist.] 1993, pet. ref’d); see also Tex. R. Evid. 901(a) (“The requirement
of authentication or identification as a condition precedent to admissibility
is satisfied by evidence sufficient to support a finding that the matter in
question is what its proponent claims.”). 
“[T]he only identification or authentication required is that the
offered evidence properly represent the person, object, or scene in
question.”  Quinonez-Saa, 860 S.W.2d at 706. 
This requirement may be met by the photographer or “any other witness
who knows the facts, even though the witness did not take the photograph
himself or see it taken.”  Id.; see
also Hughes v. State, 878 S.W.2d 142, 155 (Tex. Crim. App. 1992) (holding
that sponsoring witness not required to be present when photograph taken in
order to properly authenticate).  A trial
judge has considerable discretion in ruling on the admission or exclusion of
photographic evidence.  Quinonez-Saa, 860 S.W.2d at 706.
          In Quinonez-Saa, we addressed whether
autopsy photographs that were not mentioned in the autopsy report were admissible
as business records under Rule 803(6). 
The sponsoring medical examiner, who did not perform the autopsy, view
the body of the deceased, or testify that the autopsy photographs were a true
and accurate depiction of the body at the time of the autopsy, testified that
“the business records pertaining to the autopsy of the deceased included ‘any
photographs that would have been taken during that autopsy report’ and that
these records were ‘entered by a person who has knowledge at or near the time
that the events occurred.’”  Id. 
The medical examiner also testified that he was a custodian of records
for the medical examiner’s office and the records were made and kept as part of
the normal course of business for the office. 
Id.  We thus concluded that the autopsy
photographs were admissible under Rule 803(6) as part of the autopsy
record.  Id.
          Here,
Dr. Pramod Gumpeni, an assistant Harris County Medical Examiner, testified
regarding the autopsy results.  Dr.
Gumpeni testified that Dr. Tommy Brown, a former medical examiner, performed
the autopsy of Robert Contreras in 1997. 
He stated that, as an assistant medical examiner, he is a custodian of
the office’s records, and that autopsy reports are made at or near the time
that the autopsy is conducted by the medical examiner who conducts the autopsy
and the records are kept in the regular course of the office’s business.  Dr. Gumpeni testified that he recognized the
three photographs offered by the State as photographs from Robert Contreras’s
autopsy and that the photographs were kept in the same file as the
previously-admitted autopsy report.  He
further testified that pictures are “also a record that is kept with the
autopsy report,” that the medical examiner’s office keeps records of autopsy
photographs “just like [it] keeps records of the autopsy report,” and that the
photographs are also business records kept within the particular autopsy’s
file.
          We
conclude that these photographs were admissible under Rule 803(6) as part of
the business record of the autopsy report. 
See Quinonez-Saa, 860 S.W.2d
at 706–07 (“In the instant case, the testimony adduced at trial was sufficient
to show that the photographs were, like the written autopsy report, entered by
a person with knowledge and kept as a normal course of business with the
medical examiner’s office.”).  We hold
that the trial court did not abuse its discretion in admitting these
photographs.
          We
overrule appellant’s seventh issue.
Denial of Requested Accomplice Witness Instruction
          In
his eighth issue, appellant contends that the trial court erred in denying his
requested accomplice witness instruction, which included Emily Hugo and Carlos
Martinez as accomplice witnesses in addition to Jose Carreon and David Cruz,
who were included in the trial court’s instruction, because fact issues existed
regarding whether Emily and Carlos were accomplice witnesses.
          An
accomplice participates with the defendant before, during, or after the
commission of the crime and acts with the required culpable mental state for
the crime.  Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007); Paredes v. State, 129 S.W.3d 530, 536
(Tex. Crim. App. 2004) (citing Kutzner v.
State, 994 S.W.2d 180, 187 (Tex. Crim. App. 1999)).  To be considered an accomplice witness, the
participation with the defendant must have involved an affirmative act that
promotes the commission of the offense with which the defendant is
charged.  Druery, 225 S.W.3d at 498; Paredes,
129 S.W.3d at 536.  A witness is not an
accomplice witness merely because he or she knew of the offense and did not
disclose it, or even if he or she concealed the offense.  Druery,
225 S.W.3d at 498.  Similarly, a
witness’s mere presence at the scene of the crime does not render that witness an
accomplice witness.  Id.; Cocke v. State, 201
S.W.3d 744, 748 (Tex. Crim. App. 2006). 
If the witness cannot be prosecuted for the same offense with which the
defendant is charged, or a lesser-included offense, the witness is not an
accomplice witness as a matter of law.  Druery, 225 S.W.3d at 498; Cocke, 201 S.W.3d at 748 (“There must
exist evidence sufficient to connect the alleged accomplice to the criminal
offense as a ‘blameworthy participant,’ but whether the alleged
accomplice-witness is actually charged or prosecuted for his participation is
irrelevant.”).
          A
trial court has no duty to instruct the jury that a witness is an accomplice
witness as a matter of law “unless there exists no doubt that the witness is an
accomplice.”  Druery, 225 S.W.3d at 498. 
“If the evidence presented by the parties is conflicting and it remains
unclear whether the witness is an accomplice, the trial judge should allow the
jury to decide whether the inculpatory witness is an accomplice witness as a
matter of fact under instructions defining the term ‘accomplice.’”  Id.
at 498–99; Paredes, 129 S.W.3d at 536
(citing Blake v. State, 971 S.W.2d
451, 455 (Tex. Crim. App. 1998)).  As
with an accomplice as a matter of law, however, “there must still be some
evidence of an affirmative act on the part of the witness to assist in the
commission of the charged offense before such an instruction is required.”  Druery,
225 S.W.3d at 499; see also Cocke,
201 S.W.3d at 748 (“The trial court is not required to give the jury an
accomplice-witness instruction when the evidence is clear that the witness is
neither an accomplice as a matter of law nor as a matter of fact.”).  We review the trial court’s decision to deny
a requested accomplice witness instruction for an abuse of discretion.  Paredes,
129 S.W.3d at 538; Nelson v. State,
297 S.W.3d 424, 428–29 (Tex. App.—Amarillo 2009, pet. ref’d).
          Here,
appellant contends that the following evidence raises a fact issue regarding
whether Emily Hugo was an accomplice: 
(1) Jose was driving her truck and, therefore, “she could have stopped
this thing at any time”; (2) the gun was right next to her and she made no
attempt to stop appellant; (3) David Cruz made the statement, “you’ll find out
about a drive-by”; (4) the license plate was missing from her truck; (5) she
was aware that David was being threatened at school; (6) Jose’s brother
washed her truck after the shooting and disposed of shell casings found in the
truck; (7) she heard appellant and a group of people exchange words and gang
signs but did not prevent Jose from turning her truck around and driving back
toward the group; (8) she waited five days to tell her parents what happened;
(9) her lawyer negotiated an immunity deal; (10) she allowed appellant to
remain in her truck after the shooting for the drive back across Houston; and
(11) she told her friend, who was dating appellant at the time, to say that she
drove appellant home from school on the day of the shooting.
          Appellant
contends that the following evidence raises a fact issue regarding whether
Carlos Martinez was an accomplice:  (1)
he saw David Cruz with a gun and knew that David had been having difficulties
with classmates; (2) he heard David say “you’re going to find out about a
drive-by”; (3) he was hiding in the back of the truck; (4) he did not go
to police and tell them what happened; and (5) when he spoke to the
police, he initially identified David as the shooter, but later told the police
that appellant was the shooter.
          The
evidence does not indicate that either Emily or Carlos “performed any
affirmative act to assist in the commission of [the murder] or a
lesser-included offense,” or that any of their actions were made with the
required culpable mental state.  See Druery, 225 S.W.3d 499–500; see also Nelson, 297 S.W.3d at 430
(“Horton’s actions in assisting with the washing of the pickup truck were not
done with the intent to cause Schraer’s death nor with the knowledge that such
an action would cause the death of Schraer.”). 
Merely being present at the crime, having knowledge of the planned
offense but failing to disclose it, and even concealing the offense does not
turn a witness into an accomplice witness. 
Druery, 225 S.W.3d at 498; see Paredes, 129 S.W.3d at 536
(“Although [Priscilla] may have suspected that foul play would occur when
Torres arrived at her house, there is no evidence suggesting that she assisted
in the preparation for or planning of the murders.  Priscilla was not susceptible to prosecution
for capital murder or a lesser-included offense.”); see also McCallum v. State, 311 S.W.3d 9, 14 (Tex. App.—San Antonio
2010, no pet.) (“Any false reports given [to police] were completely
disconnected from actual participation with McCallum before, during, or after
the commission of the crime.”).
In Druery, the Court of Criminal Appeals noted that assisting in the
disposal of the body and the murder weapon “does not transform a witness into
an accomplice witness in a prosecution for murder.”  225 S.W.3d at 500.  “The witness must still be susceptible to
prosecution for the murder itself by having affirmatively assisting in
committing the offense.”  Id.; see
also Paredes, 129 S.W.3d at 537 (“Although Ayala assisted after the fact in
the disposal of the bodies, he is not an accomplice as a matter of law because
he is not susceptible to prosecution for capital murder.”).  Although Emily may have told her friend to
lie and say that appellant was with her, and although Carlos, in his first
statement to the police, lied and said that David was the shooter, these are
not affirmative acts “assist[ing] in the commission of” the murder.  See
Kunkle v. State, 771 S.W.2d 435, 441 (Tex. Crim. App. 1986) (“In the
absence of such an [affirmative] act, he cannot be an accomplice witness, even
as a matter of fact.”).  Neither Emily
nor Carlos was susceptible to prosecution for murder or a lesser-included
offense of murder.
We conclude that the evidence did
not raise a fact issue regarding whether Emily or Carlos engaged in an
affirmative act promoting the commission of the offense or whether they acted
with the required culpable mental state. 
We therefore hold that the trial court correctly denied appellant’s
requested jury instruction that included Emily and Carlos as accomplice
witnesses.
          We
overrule appellant’s eighth issue.
Inclusion of Transferred Intent Instruction
          Appellant
next contends, in his ninth issue, that the trial court erred in overruling his
objection to the inclusion of a transferred intent jury instruction.  The instruction informed the jurors that they
could find appellant guilty of murder if they believed, beyond a reasonable
doubt, that appellant intentionally or knowingly shot a firearm at an unknown
person, intending or knowing that serious bodily injury or death would occur to
that unknown person, but instead missed and hit Robert Contreras, causing his
death.[11]
          Texas
Penal Code section 6.04(b)(2) provides that “[a] person is nevertheless
criminally responsible for causing a result if the only difference between what
actually occurred and what he desired, contemplated, or risked is that a
different person or property was injured, harmed, or otherwise affected.”  Tex.
Penal Code Ann. § 6.04(b)(2) (Vernon 2011).  “This statutory principle of ‘transferred
intent’ is raised when there is evidence a defendant with the required culpable
mental state intends to injure or harm a specific person but injures or harms a
different person . . . .” 
Manrique v. State, 994 S.W.2d
640, 647 (Tex. Crim. App. 1999) (McCormick, J., concurring).  A “classic example” of the application of the
transferred intent doctrine is “the act of firing [a gun] at an intended victim
while that person is in a group of other persons.  If the intended person is killed, the offense
is murder.  If a different person in the
group is killed, the offense is murder pursuant to Texas Penal Code
§ 6.04(b)(2) . . . .” 
Roberts v. State, 273 S.W.3d
322, 330 (Tex. Crim. App. 2008) (addressing transferred intent in capital
murder case where requisite mental state was specific intent to kill); Chimney v. State, 6 S.W.3d 681, 700
(Tex. App.—Waco 1999, pet. ref’d) (“Under the statute, a defendant can be held
‘criminally responsible’ (i.e., guilty) for the death of another even if he did
not intend to harm the victim so long as he caused the actual victim’s death
while acting with the intent to kill a different person.”).  If a defendant “intentionally discharg[es] a
firearm toward a group of people,” he demonstrates that “he was aware that
someone could be killed or that serious bodily injury could result from his
committing an act clearly dangerous to human life.”  Pettigrew
v. State, 999 S.W.2d 810, 813 (Tex. App.—Tyler 1999, no pet.).
          Here,
the written charge included an instruction that tracked the language of section
6.04(b) and contained the following application paragraph:
Now, if you believe from the
evidence beyond a reasonable doubt that the defendant, Rogelio Delacerda, in
Harris County, Texas, on or about the 21st day of January, 1997, did then and
there unlawfully and intentionally or knowingly shoot a firearm at an unknown
person, intending or knowing that serious bodily injury or death would occur to
an unknown person, but instead missed an unknown person and hit Jesus Roberto
Contreras, causing the death of Jesus Roberto Contreras with the use of a
deadly weapon, namely a firearm, then you will find the defendant guilty of
murder, as charged in the indictment.
 
Appellant contends that the transferred intent
instruction is erroneous because the application paragraph does not name the
specific person that appellant allegedly intended to harm.  Appellant cites no authority to support this
proposition.
          It is
undisputed that appellant did not know Robert Contreras and thus did not intend
to kill or cause serious bodily injury to him specifically.  Although appellant contends that the
evidence, particularly Jose’s testimony that appellant “just start[ed] randomly
shooting” at the group of people that had thrown things at the truck,
establishes that appellant was not shooting at a particular person but missed
and hit Robert instead, he does not assert on appeal that, by shooting toward
the group of boys, he lacked the intent to, at the least, cause serious bodily
injury to someone in that group.  See Pettigrew, 999 S.W.2d at 813.  Murder is a “result of conduct” offense,
“which requires that the culpable mental state relate to the result of the
conduct, i.e., the causing of the death.” 
Roberts, 273 S.W.3d at 328–29
(quoting Schroeder v. State, 123
S.W.3d 398, 400 (Tex. Crim. App. 2003)); see
also Manrique, 994 S.W.2d at 650 (Meyers, J., concurring) (“The identity of
the victim is not an element of the crime to which the culpable mental state
attaches.”).
          Even
assuming, without deciding, that the trial court erroneously failed to name the
specific intended victim in the application paragraph of the transferred intent
instruction, appellant has not demonstrated harm from this failure.  See
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (requiring,
when defendant objected to charge at trial, that error cause “some harm” to
justify reversal).  For example,
appellant contends that if the State could not determine appellant’s intended
victim, the transferred intent instruction should have included application
paragraphs for the other five potential victims walking nearby.  Appellant does not contend that, had the
trial court charged the jury in this particular manner, the result of the trial
would have been different.  Moreover, the
State presented evidence that appellant opened fire on the group of boys at
relatively close range and shot at least five or six times.  This conduct is more than evidence of mere
recklessness; it is evidence of intent to kill. 
See Medina v. State, 7 S.W.3d
633, 637 (Tex. Crim. App. 1999) (“[A]ppellant is guilty of murder because he
was aware that firing an automatic weapon into a crowd of people was, by the
nature of the conduct, reasonably certain to result in death.”); Vuong v. State, 830 S.W.2d 929, 934
(Tex. Crim. App. 1992) (“Appellant’s use of a deadly weapon in a tavern filled
with patrons supplies ample evidence for a rational jury to conclude beyond a
reasonable doubt that Appellant had the requisite intent to kill.”); see also Ishmael v. State, 688 S.W.2d
252, 258 (Tex. App.—Fort Worth 1985, pet. ref’d) (“When a person fires a gun
into a crowd of people with no particular intended victim, the probability that
serious bodily injury will result is so great that it is worse than reckless
disregard of the consequences; if a death is thus caused, it is murder.”).
          We
overrule appellant’s ninth issue.
Statements Not Introduced in Evidence Mentioned in Closing
          In
his tenth issue, appellant contends that the trial court erroneously denied his
motion for mistrial on improper argument grounds made after the State mentioned
a hearsay statement of Tommy Barron, not introduced into evidence, in its
closing argument.
          Proper
jury argument falls within four general categories:  (1) summation of the evidence, (2) reasonable
deduction from the evidence, (3) answer to argument of opposing counsel, and
(4) plea for law enforcement.  Wesbrook v. State, 29 S.W.3d 103, 115
(Tex. Crim. App. 2000).  Even if an
argument does not fall within one of these four categories, the argument will
not constitute reversible error unless, in light of the record as a whole, the
argument is “extreme or manifestly improper” or “injects new facts harmful to
the accused into the trial proceeding.”  Id.; Hawkins,
135 S.W.3d at 77–82.  We conduct a harm
analysis in light of any curative instructions given by the trial court.  Hawkins,
135 S.W.3d at 77.  Only in extreme
circumstances, where the prejudice is incurable, will a mistrial be
required.  Id.  We review the trial
court’s refusal to grant a mistrial for an abuse of discretion.  Id.
(citing Simpson v. State, 119 S.W.3d
262, 272 (Tex. Crim. App. 2003)); see
also Archie v. State, No. PD-0189-10, 2011 WL 2200809, at *3 (Tex. Crim.
App. June 8, 2011) (holding that, when trial court sustains objection and gives
instruction to disregard, only adverse ruling is denial of motion for mistrial,
which we review for abuse of discretion).
When determining whether a trial
court abused its discretion in denying a mistrial on improper argument grounds,
we apply the factors articulated in Mosley
v. State:  (1) severity of the
misconduct (the magnitude of the prejudicial effect of the prosecutor’s
remarks); (2) measures adopted to cure the misconduct (efficacy of any cautionary
instruction by the judge); and (3) certainty of conviction absent the
misconduct (strength of evidence supporting the conviction).  Mosley,
983 S.W.2d 249, 259 (Tex. Crim. App. 1998); see
also Archie v. State, 221 S.W.3d 695, 700 (Tex. Crim. App. 2007).  “Mistrial is the appropriate remedy
when . . . the objectionable events ‘are so emotionally
inflammatory that curative instructions are not likely to prevent the jury from
being unfairly prejudiced against the defendant.”  Archie,
2011 WL 2200809, at *3 (quoting Young v.
State, 137 S.W.3d 65, 71 (Tex. Crim. App. 2004)).
          Here,
the State made the following argument during closing:
[State]:                 Well, let’s talk about the
people who were in the car that day.  We
didn’t hear from Tommy Barron.  You know
that Tommy Barron is deceased, but you heard from Officer Chavez and we know
that Tommy Barron says he was in the bed of the truck with Carlos and David.
 
[Defense]:             Objection, Your Honor.  That’s outside of the record.
 
[State]:                 Officer Chavez testified as to identification.
 
[Defense]:             Objection,
it’s outside of the record.
 
The Court:            Sustained.
 
[Defense]:             Ask
for a jury instruction.
 
The Court:            The jury is so instructed.
 
[Defense]:             Move
for a mistrial.
 
The Court:            Denied.
 
Both Carlos and David testified that Tommy Barron
was in the back of the truck with them; however, Investigator Chavez did not
testify that Tommy told him that he was in the back of the truck with Carlos
and David.  Appellant is therefore
correct that this argument is outside of the record, and, thus, this remark
does not fall within a permissible category of jury argument.
          We
disagree, however, with appellant’s contention that this argument is so
manifestly improper that a new trial is warranted.  One of the critical contested issues at trial
was whether appellant was sitting in the front passenger seat and David was in
the back of the truck or whether David was in the front seat, and thus was the
shooter, and appellant was in the back.  The
prosecutor’s statement that Tommy told Investigator Chavez that he was in the
back of the truck with Carlos and David
supports the first alternative.  In most
instances, an instruction to disregard the State’s remarks will cure the
error.  Wesbrook, 29 S.W.3d at 115. 
The trial court gave a jury instruction immediately following the
State’s remarks, and we presume that juries obey instructions to disregard.[12]  Id.
at 116 (“[T]he prosecutor’s comment was quickly followed by an instruction to
disregard from the trial court which we presume was complied with by the
jury.”).  When the trial court gives a
curative instruction, only “offensive or flagrant error” warrants a
reversal.  See id.  Here, the
prosecutor’s brief comment that Tommy told Investigator Chavez that he was in
the bed of the truck with Carlos and David is not so “offensive and flagrant”
that the trial court’s instruction was ineffective.  See id.;
see also Archie, 2011 WL 2200809, at
*5 (“[T]he improper questions posed by the prosecutor in this case [to the
defendant during closing argument] . . . were not so
indelible that the jury would simply ignore the trial court’s specific and
timely instruction to disregard them.”).
Furthermore, in determining whether
the trial court abused its discretion in denying appellant’s motion for mistrial,
we look to the certainty of conviction absent the misconduct.  See
Archie, 2011 WL 2200809, at *5. 
Here, both Carlos and David testified that Tommy was in the back of the
truck with them.  Albert Contreras
identified David, someone whom he had seen “a few times” around school, as the
person he saw in the bed of the truck, and he testified that he did not
recognize the passenger as a fellow student. 
Carlos, David, Jose, and Emily all testified that appellant sat in the
front seat and that he was the shooter. 
Gene Cantu testified that he recognized the person in the back of the
truck, who did not have a gun, as someone he went to school with.  Raul Rodriguez identified appellant at trial
as the shooter.
We conclude that strong evidence
supports appellant’s conviction.  Based
on the evidence presented, the jury “would almost surely have convicted the
appellant regardless of” the prosecutor’s brief comment during closing argument
that Tommy Barron told Investigator Chavez that he was in the back of the truck
with Carlos and David.  See id. 
We therefore hold that the trial court did not abuse its discretion when
it denied appellant’s motion for mistrial following the State’s remarks
regarding Tommy Barron’s alleged statements to Investigator Chavez.
          We overrule
appellant’s tenth issue.
 
Testimony Regarding Criminal Activity of Latin Kings
          Appellant
next contends, in his eleventh issue, that the trial court erroneously
permitted Deputy Squyres to testify during the punishment phase of the trial
regarding the organizational structure and national criminal activities of the
Latin Kings gang without specifically connecting such testimony to
appellant.  In his twelfth issue,
appellant contends that the trial court erroneously denied his motion for
mistrial, made during the State’s closing argument in the punishment phase when
the prosecutor referred to the criminal activities of the Latin Kings gang
without connecting such activity to appellant. 
We consider these issues together.
          The
trial court has broad discretion in determining the admissibility of evidence
presented at the punishment phase of the trial. 
Flores v. State, 125 S.W.3d
744, 746 (Tex. App.—Houston [1st Dist.] 2003, no pet.).  Under Code of Criminal Procedure article
37.07, section 3(a)(1), the State may offer evidence “as to any matter the
court deems relevant to sentencing, including but not limited
to . . . [the defendant’s]
character . . . .”  Tex. Code Crim. Proc. Ann. art. 37.07
§ 3(a)(1) (Vernon Supp. 2010).  At
the punishment hearing, relevant evidence is that which “assists the fact
finder in determining the appropriate sentence given the particular defendant
in the circumstances presented.”  Flores, 125 S.W.3d at 746; Garcia v. State, 239 S.W.3d 862, 865
(Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (“Relevance in this context is
more a matter of policy than an application of Rule of Evidence 401; it
fundamentally consists of what would be helpful to the jury in determining the
appropriate punishment.”) (citing Mendiola
v. State, 21 S.W.3d 282, 285 (Tex. Crim. App. 2000)).  Even relevant evidence may, however, be
excluded if its probative value is substantially outweighed by the danger of
unfair prejudice.  See Flores, 125 S.W.3d at 746; Tex.
R. Evid. 403.  We will not disturb
the trial court’s determination regarding the admissibility of relevant
evidence unless the appellant demonstrates an abuse of discretion.  Flores,
125 S.W.3d at 746.
          As a
general rule, testimony regarding the defendant’s affiliation with a gang is
relevant and admissible at the punishment phase to show the defendant’s
character.  Garcia, 239 S.W.3d at 866–67. 
Evidence of gang membership alone, however, “may not be enough for the
jury to make an informed decision of appellant’s character.”  Beasley
v. State, 902 S.W.2d 452, 456 (Tex. Crim. App. 1995).  Instead,
[i]t is essential for the
jury to know the types of activities the gang generally engages in so that they
can determine if his gang membership is a positive or negative aspect of his
character, and subsequently his character as a whole.  Only after the jury has been provided with
this information can there be a fair evaluation of how gang membership reflects
on the gang member’s character.
 
Id.; see Anderson v. State, 901 S.W.2d 946,
950 (Tex. Crim. App. 1995) (“Although relevant, gang membership alone would be
meaningless to a jury which has no knowledge of the gang’s purpose or
activities.”).  It is not necessary to
link the defendant to the bad acts or misconduct generally engaged in by the
gang members, so long as the jury is (1) provided with evidence of the
defendant’s gang membership, (2) provided with evidence of the character and
reputation of the gang, (3) not required to determine if the defendant
committed the bad acts or misconduct, and (4) only asked to consider reputation
or character of the accused.  Beasley, 902 S.W.2d at 457; Garcia, 239 S.W.3d at 867.  Article 37.07 explicitly allows the
introduction of evidence of gang membership “even without satisfying the
requirements set forth in Beasley.”  Sierra
v. State, 266 S.W.3d 72, 79 (Tex. App.—Houston [1st Dist.] 2008, pet.
ref’d) (holding evidence of gang membership admissible even when trial court
did not instruct jury on last two Beasley
factors).
          Here,
Deputy Squyres testified as an expert on criminal street gangs.  Appellant admitted that he was a member of
the Latin Kings gang from 1994 to 1996, and Squyres, who photographed
appellant’s tattoos, testified that at least two of appellant’s tattoos
suggested membership in the Latin Kings and that one of those tattoos was dated
March 2002.  Deputy Squyres also
testified that the Latin Kings is a very large gang and is known for engaging
in criminal activity such as “narcotics distribution, random assaultive
behavior against other gang members,” and murder.  Defense counsel objected to such testimony
“unless it’s tied to this defendant somehow.”
          Appellant’s
membership in the Latin Kings and the specific kinds of criminal activities in
which its members engage is the type of relevant character evidence that is
permissible during the punishment phase. 
See Garcia, 239 S.W.3d at 866
(allowing expert testimony that gangs to which appellant belonged were involved
in drive-by shootings, robberies, murders, home invasions, prostitution,
narcotics, car thefts, and graffiti); Ho
v. State, 171 S.W.3d 295, 305 (Tex. App.—Houston [14th Dist.] 2005, pet.
ref’d) (“Even if appellant was no longer affiliated with the gang at the time
of the shooting, evidence that he was a gang member is relevant—and thus admissible at punishment—because it relates to his character.”).  The State may offer this evidence without linking
the bad acts and misconduct engaged in by the gang’s members specifically to
the appellant.  See Beasley, 902 S.W.2d at 457. 
Appellant admitted his gang membership. 
Deputy Squyres testified regarding the character of the Latin
Kings.  The jury was not required to
determine if appellant committed any bad acts or misconduct generally
attributable to Latin Kings members.  And
the jury was not asked to consider the evidence for any purpose other than
appellant’s reputation and character.  See id. 
We therefore hold that the trial court did not abuse its discretion in
allowing Deputy Squyres’ testimony regarding the organizational structure and
national criminal activities of the Latin Kings.
          Appellant
additionally contends, in his twelfth issue, that the trial court erroneously
denied his motion for mistrial made during closing argument in the punishment
phase when the State referred to the criminal activities of the Latin Kings and
called appellant a “gangster.”
          As we
have already discussed, two permissible categories of jury argument are (1)
summation of the evidence and (2) reasonable deduction from the evidence.  Wesbrook,
29 S.W.3d at 115.  Even if an argument
does not fall within a category of permissible jury argument, the argument will
not constitute reversible error unless, in light of the record as a whole, the
argument is “extreme or manifestly improper” or “injects new facts harmful to
the accused into the trial proceeding.”  Id.; Hawkins,
135 S.W.3d at 77–82.  We conduct a harm
analysis in light of any curative instructions given by the trial court.  Hawkins,
135 S.W.3d at 77.  We use a modified
version of the Mosley harm analysis
in evaluating the harm arising from improper jury argument during the punishment
phase and balance three factors:  (1)
severity of the misconduct (prejudicial effect); (2) curative measures; and
(3) the certainty of the punishment assessed absent the misconduct
(likelihood of the same punishment being assessed).  Id.
(citing Martinez v. State, 17 S.W.3d
677, 693–94 (Tex. Crim. App. 2000)). 
Only in extreme circumstances, where the prejudice is incurable, will a
mistrial be required.  Id. 
We review the trial court’s refusal to grant a mistrial for an abuse of
discretion.  Id. (citing Simpson, 119
S.W.3d at 272).
          The
State made the following argument during the punishment phase:
You have a Latin Kings gang
member.  You heard from Deputy
Squyres.  Latin Kings are one of the
largest criminal street gangs in the United States.  Not only a national gang, but a worldwide
gang.  A gang that’s known for selling
drugs.  A gang that’s known for
murder.  You have a gangster.
 
Defense counsel objected and requested a jury
instruction.  After the trial court
instructed the jury to disregard the State’s remarks, defense counsel moved for
a mistrial.
As we have already held, testimony
regarding the defendant’s gang membership and the criminal activities of that
gang is permissible character evidence during the punishment phase that is
relevant to assisting the jury in determining the appropriate punishment, and
the State need not specifically link the activities of the gang to the
defendant.  Beasley, 902 S.W.2d at 456–57; Garcia,
239 S.W.3d at 866–67.  Deputy Squyres
permissibly testified regarding the Latin Kings and the activities for which
they are known, such as narcotics distribution, “random assaultive behavior,”
and murder, and the State was not required to link the gang’s general
activities specifically to appellant. 
The State’s argument concerning the criminal activities of the Latin
Kings is, thus, a summation of the evidence presented in the punishment phase
and falls within a permissible category of jury argument.  See
Wesbrook, 29 S.W.3d at 115.
Furthermore, not only did Deputy
Squyres testify that appellant’s tattoos indicated that he had been a member of
the Latin Kings, appellant himself admitted that he had been a member.  A “gangster” is defined as a “member of a
gang of criminals.”  Merriam Webster’s Collegiate Dictionary
515 (11th ed. 2003).  By his own
admission, appellant was a member of a criminal gang, and therefore the
prosecutor’s characterization of appellant as a “gangster” is a reasonable
deduction from the evidence.[13]  See
Wesbrook, 29 S.W.3d at 115.  We
conclude that the State’s arguments were proper, and we therefore hold that the
trial court did not abuse its discretion in denying appellant’s motion for
mistrial.
          We
overrule appellant’s eleventh and twelfth issues.


 
Conclusion
          We
affirm the judgment of the trial court.
 
 
                                                                   Evelyn
V. Keyes
                                                                   Justice

 
Panel
consists of Justices Keyes, Sharp, and Massengale.
Publish.   Tex. R. App. P. 47.2(b).
 




[1]           See
Tex. Penal Code Ann.
§ 19.02(b)(1)–(2) (Vernon 2011).


[2]
          Gene Cantu also testified that
the person in the back of the truck looked like someone he had seen at
school.  He agreed that only the
passenger, whom he did not recognize, had a gun and that the person in the back
of the truck did not.


[3]
          On cross-examination, Raul
acknowledged that in his original police statement he informed the police that
he did not see the person who fired the gun.


[4]
          Monica DeLeon, appellant’s
girlfriend at the time of the shooting, testified that appellant told her that,
if anyone asked where he was on January 21, she was to say that she took him
home from school.  Monica acknowledged
that in her written statement she informed the police several times that Emily
had told her to say that she had driven appellant home, but Monica could not
recall having such a conversation with Emily. 
She also acknowledged that, in her statement, she did not say that
appellant told her to lie.


[5]
          See also
Martinez v. State, No. 2-02-013-CR, 2003 WL 360942, at *1 (Tex. App.—Fort Worth Feb. 20,
2003, pet. ref’d) (mem. op., not designated for publication) (holding article
4.18’s preservation requirements inapplicable when defendant challenges order
waiving jurisdiction as void on its face because order stated that defendant
was seventeen at time of crime).


[6]
          Appellant contends that, for the
order assuming jurisdiction to be valid, it must follow the same requirements
for judgments pursuant to Code of Criminal Procedure article 42.01, and, thus,
the order must be a written declaration accepting jurisdiction, signed by the
trial judge, entered of record, and must demonstrate the date signed or entered
of record.  See Tex. Code Crim. Proc.
Ann. art. 42.01, § 1 (Vernon Supp. 2010).  Appellant cites no authority for the
contention that the requirements for the form of judgments should apply to the
form of an order assuming jurisdiction from a juvenile court.


[7]
          Defense counsel made the
following objection when the prosecutor first asked Investigator Chavez about
whether he thought appellant was helpful in their interview:  “I object to any conversation with him unless
it’s properly recorded according to the rules that existed then for juveniles and
for criminal law and I object to the implication that he wasn’t helpful but he
was dishonest because they can’t go into the conversation, period.”  After the trial court overruled this
objection, Investigator Chavez testified that he did not read Miranda warnings to appellant because
“[h]e wasn’t in custody.”  At no point
did defense counsel challenge this statement or otherwise argue and develop
facts indicating that Investigator Chavez’s interview of appellant constituted
custodial interrogation and, therefore, the procedural protections of the
Family Code should apply.


[8]
          Because we have already held
that appellant was not in custody at the time of his interview with
Investigator Chavez, we conclude that Chavez’s testimony does not infringe upon
appellant’s right to remain silent.  Furthermore,
although appellant argues on appeal that Chavez’s testimony implicates
appellant’s right to remain silent, he objected in the trial court solely on
the basis that Chavez’s testimony was speculative.  Because appellant’s argument on appeal does not
comport with his trial objection, we conclude that appellant failed to preserve
this contention for appellate review.  See Pena v. State, 285 S.W.3d 459, 464
(Tex. Crim. App. 2009).


[9]
          Even if the trial court
erroneously overruled appellant’s hearsay objection, Officer Guerrero later
testified, without defense objection, that Albert identified “the number-two
spot” in the photospread—David
Cruz—“as the person
he saw laying in the bed of the truck” and not as the shooter.  “The admission of inadmissible evidence can
be rendered harmless if the same or similar evidence is introduced without
objection elsewhere during trial.”  Elder v. State, 132 S.W.3d 20, 27 (Tex.
App.—Fort Worth 2004, pet. ref’d); see
also Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (“An error
in the admission of evidence is cured when the same evidence comes in elsewhere
without objection.”).


[10]
        We have implicitly endorsed this
construction of Rule 801(e)(1)(C) in two previous unpublished memorandum
opinions.  In Chaney v. State, No. 01-08-00204-CR, 2009 WL 1086952 (Tex.
App.—Houston [1st Dist.] Apr. 23, 2009, no pet.) (mem. op., not designated for
publication), we held that trial counsel did not render ineffective assistance
of counsel for failing to object to an officer’s testimony that a witness
recognized the defendant in a photospread as “the man who went into the room
where [the complainant] was at . . . shortly before the
shooting.”  Id. at *10.  We concluded
that because the declarant testified at trial and was cross-examined regarding
her previous identification, the officer’s statements did not constitute
inadmissible hearsay.  Id. 
Vu Tran v. State, No.
01-97-00953-CR, 1999 WL 144045 (Tex. App.—Houston [1st Dist.] Mar. 18, 1999, no
pet.) (not designated for publication), involved a similar factual situation as
this case, where there was a debate regarding whether the appellant or his
co-defendant was the driver of a car or the passenger/shooter, and, thus, their
relative positions in the car were important. 
Id. at *4.  A police officer testified that the declarant,
another officer, identified the co-defendant. 
Id.  The appellant objected when the State asked
what the declarant identified the co-defendant as doing, and after the trial
court overruled the hearsay objection, the officer testified that the declarant
identified the co-defendant as the driver of the car.  Id.  We held that this statement was not hearsay
under Rule 801(e)(1)(C) because the declarant testified, was subject to
cross-examination, and made the statement of identification after perceiving
the co-defendant.  Id.


[11]
        Appellant also contends, in his
ninth issue, that the trial court should not have included a transferred intent
instruction in the written charge because the indictment did not allege that
appellant intended to shoot an “unknown person” but instead missed and hit the
victim.  However, a transferred intent
theory need not be alleged in the indictment as a prerequisite to the trial
court including such an instruction in the charge.  See
Malik v. State, 953 S.W.2d 234, 239 (Tex. Crim. App. 1997) (“[W]e recognize
that measuring sufficiency [of the evidence] by the indictment is an inadequate
substitute because some important issues relating to sufficiency—e.g. the law of the
parties and the law of transferred intent—are not contained in the indictment.”); see also Castillo v. State, 71 S.W.3d
812, 814 (Tex. App.—Amarillo 2002, pet. ref’d) (citing prior cases holding
transferred intent “may be incorporated in the charge though omitted from the
indictment”); In re K.M.G., 953
S.W.2d 483, 488 (Tex. App.—Texarkana 1997, pet. denied) (holding same).


[12]
        On appeal, appellant contends that
the trial court’s instruction was inadequate because “it does not admonish the
jury to disregard the statements made by the State.”  Here, appellant made the following
request:  “Ask for a jury
instruction.”  The trial court
responded:  “The jury is so instructed.”  When defense counsel asks for a particular
instruction “and the trial court accedes to the request by saying ‘the jury is
so instructed,’ that instruction will in most cases be considered effective to
cure the harm from an improper argument.” 
Hawkins v. State, 135 S.W.3d
72, 84 (Tex. Crim. App. 2004). 
Furthermore, appellant made no complaint at trial that the instruction
was inadequate to cure any prejudice arising from the prosecutor’s
statement.  See Lucero v. State, 246 S.W.3d 86, 102 n.21 (Tex. Crim. App. 2008)
(“Appellant claims on appeal that the trial court’s instruction to disregard
was ‘tepid’ and ‘not forceful enough to cure the error.’  The record, however, reflects that appellant
made no such claim at trial.  In
addition, appellant’s argument that the trial court’s instruction to disregard
‘was not forceful enough to cure the error’ effectively concedes that any
prejudice in the argument was curable by an instruction to disregard.”).


[13]
        Right after this exchange, the
State made the following argument:  “He
gets a gang tattoo on his back in 2002, years after he killed that innocent
young man.  He is still a gang member.  Now he cleans up nice, but he is a
gangster.  That’s the type of person that
you have before you.”  Appellant did not
object to this argument.


