                                                                                      AP-77,036
                                                                  COURT OF CRIMINAL APPEALS
                                                                                   AUSTIN, TEXAS
                                                                  Transmitted 6/24/2015 4:56:49 PM
                                                                    Accepted 6/24/2015 5:00:42 PM
June 24, 2015                                                                       ABEL ACOSTA
                                                                                            CLERK

                                   No. AP-77,036

                                   In the
                     Court of Criminal Appeals of Texas
                                 At Austin
                            ♦
                                No. 1412826
                          In the 179th District Court
                           Of Harris County, Texas
                            ♦
                     JUAN BALDERAS aka APACHE
                              Appellant
                                        v.
                           THE STATE OF TEXAS
                                 Appellee
                            ♦
                           State’s Appellate Brief
                            ♦



    Clinton A. Morgan                               Devon Anderson
    Assistant District Attorney                     District Attorney
    Harris County, Texas                            Harris County, Texas
    State Bar No. 24071454
    morgan_clinton@dao.hctx.net                     Caroline Dozier
                                                    Traci Bennett
    1201 Franklin St., Suite 600
    Houston, Texas 77006                            Mary McFaden
    Telephone: 713.755.5826                         Assistant District Attorneys
                                                    Harris County, Texas




                          Oral Argument Requested
                 Statement Regarding Oral Argument

      The appellant requested oral argument and so does the State.


                         Identification of the Parties

Counsel for the State:

      Devon Anderson
            District Attorney of Harris County

      Caroline Dozier, Traci Bennett, & Mary McFaden
            — Assistant District Attorneys at trial

      Clinton A. Morgan
             Assistant District Attorney on appeal

Appellant:

      Juan Balderas aka Apache

Counsel for the Appellant:

      Jerome Godinich, Alvin Nunnery, Bob Scott & R. Scott Shearer
           — Counsel at trial

      R. Scott Shearer
            — Counsel on appeal

Trial Judges:

      Kristen M. Guiney & Doug Shaver
             Presiding judges




                                       i
                                                  Table of Contents

Statement Regarding Oral Argument ................................................. i
Identification of the Parties ................................................................ i
Table of Contents ................................................................................. ii
Index of Authorities ............................................................................. v
Statement of the Case .......................................................................... 1
Summary of the Facts .......................................................................... 1
Statement of Facts ................................................................................ 1
Summary of the Argument .................................................................. 5
Reply to Point One
   The evidence is sufficient to support the appellant’s conviction. His
   only argument to the contrary is that one of the State’s witnesses was
   not credible, but this Court does not reweigh the jury’s credibility
   determinations on appeal......................................................................................... 8
Reply to Point Two
   The trial court did not err in denying the appellant’s mid-trial motion
   to dismiss that was based upon a supposed speedy-trial violation. ... 10
      I. Legal Background: Barker’s attempt to assess an “amorphous”
      right ............................................................................................................................ 11
      II. Factual Background: Testimony at the hearing explaining the
      delay ........................................................................................................................... 12
      III. Argument: The appellant’s right to a speedy trial was not
      violated because he did not assert it in a timely manner..................... 16
          A.      Length of the Delay................................................................................. 17
          B.      Reason for the Delay .............................................................................. 17
          C.      Defendant’s Assertion of the Right .................................................. 20
          D.      Prejudice ..................................................................................................... 22
          E.      Balancing the Factors ............................................................................ 23




                                                                   ii
Reply to Points Three, Four, Five, and Six
 Point Three: The trial court did not violate the Sixth Amendment
 when it allowed Wendy to testify through an interpreter........................ 25
     I. Factual Background: Wendy wanted to testify through an
     interpreter, but the appellant sought to cross-examine her in
     English. ...................................................................................................................... 25
     II. Argument: Allowing Wendy to testify through an interpreter
     did not violate the Sixth Amendment. ......................................................... 27
         A. Allowing a witness to testify through an interpreter does not
         implicate the right to confrontation. ........................................................ 28
         B. Even if the use of interpreters implicates some of the
         concerns of the Sixth Amendment, the use of an interpreter here
         would still not be a constitutional violation because the Sixth
         Amendment is not absolute and the trial court’s decision to use a
         translator was reasonable. ........................................................................... 31
 Point Five: The trial court did not violate state statutory law by
 allowing Wendy to testify through an interpreter. ...................................... 34
 Point Four: The trial court did not abuse its discretion in refusing to
 admit an audio recording because it was improper impeachment on
 an uncontested matter. Moreover, because the audio recording was
 cumulative, any error in excluding it should not result in reversal. .... 35
 Point Six: The appellant’s claim is that the trial court violated Rule 615
 by not admitting the recording, but Rule 615 is a rule of discovery, not
 admissibility. The trial court’s ruling on admissibility did not implicate
 Rule 615. ....................................................................................................................... 39
Reply to Point Seven
 The jurors were not unduly influenced when someone waived at
 them. ............................................................................................................................... 41




                                                                 iii
Reply to Point Eight
   The photo lineup was not impermissibly suggestive................................. 45
      I.      Factual Background .................................................................................... 45
      II. Legal Background ........................................................................................ 50
      III. Argument ........................................................................................................ 52
           A. The appellant did not “st[i]ck out like a sore thumb” in the
           photo lineup. ...................................................................................................... 52
           B. The totality of the circumstances does not show a substantial
           likelihood of misidentification.................................................................... 55
Reply to Point Nine
   The jury’s note to the trial court did not indicate a point of
   disagreement, therefore the trial court was correct in its decision not
   to have testimony read back in response to that note. .............................. 58
Conclusion .......................................................................................... 63
Certificate of Compliance and Service ........................................... 64
Appendix: State’s Exhibit 56




                                                               iv
                                           Index of Authorities



Cases
Anderson v. State
  717 S.W.2d 622 (Tex. Crim. App. 1986) ........................................................... 39
Balterierra v. State
  586 S.W.2d 553 (Tex. Crim. App. 1979) ........................................................... 34
Barker v. Wingo
  407 U.S. 514 (1972) ........................................................................... 11, 17, 18, 22
Barley v. State
  906 S.W.2d 27 (Tex. Crim. App. 1995) .............................................................. 51
Cantu v. State
  253 S.W.3d 273 (Tex. Crim. App. 2008) ........................................................... 11
Clayton v. State
  235 S.W.3d 772 (Tex. Crim. App. 2007) .............................................................. 8
Cooks v. State
  844 S.W.2d 697 (Tex. Crim. App. 1992) ........................................................... 51
Crawford v. Washington
  541 U.S. 36 (2004) .................................................................................................... 29
Diaz v. State
  491 S.W.2d 166 (Tex. Crim. App. 1973) ........................................................... 34
Dragoo v. State
  96 S.W.3d 308 (Tex. Crim. App. 2003) ....................................................... 17, 21
Emery v. State
 881 S.W.2d 702 (Tex. Crim. App. 1994) ........................................................... 16
Garcia v. State
  149 S.W.3d 135 (Tex. Crim. App. 2004) ........................................................... 26
Gaskin v. State
  353 S.W.2d 467 (Tex. Crim. App. 1961) ........................................................... 39
Harris v. State
 827 S.W.2d 949 (Tex. Crim. App. 1992) ............................................ 17, 21, 51



                                                             v
Haugh v. Jones & Laughlin Steel Corp.
 949 F.2d 914 (7th Cir. 1991)................................................................................. 43
Hernandez v. State
  986 S.W.2d 817 (Tex. App.—
  Austin 1999, pet. ref’d) ........................................................................................... 26
Howell v. State
  175 S.W.3d 786 (Tex. Crim. App. 2005) ........................................................... 60
Janecka v. State
  937 S.W.2d 456 (Tex. Crim. App. 1996) ........................................................... 20
Loserth v. State
  963 S.W.2d 770 (Tex. Crim. App. 1998) ........................................................... 52
Martinez v. State
 91 S.W.3d 331 (Tex. Crim. App. 2002) .............................................................. 40
Maryland v. Craig
 497 U.S. 836 (1990) ................................................................................................. 29
McQuarrie v. State
 380 S.W.3d 145 (Tex. Crim. App. 2012) ........................................................... 43
Merritt v. State
 368 S.W.3d 516 (Tex. Crim. App. 2012) .............................................................. 8
Moore v. State
 874 S.W.2d 671 (Tex. Crim. App. 1994) ........................................................... 60
Mosley v. State
 983 S.W.2d 249 (Tex. Crim. App. 1998) ........................................................... 38
Neil v. Biggers
  409 U.S. 188 (1972) ................................................................................................. 52
Robison v. State
  888 S.W.2d 473 (Tex. Crim. App. 1994) ........................................................... 61
Romero v. State
  173 S.W.3d 502 (Tex. Crim. App. 2005) .................................................... 31, 32
Shaw v. State
  117 S.W.3d 883(Tex. Crim. App. 2003) ............................................................ 21




                                                           vi
Smith v. State
  65 S.W.3d 332, 343 (Tex. App.—
  Waco 2001, no pet.) ................................................................................................. 39
State v. Munoz
  991 S.W.2d 818 (Tex. Crim. App. 1999) ........................................................... 23
State v. Wei
  447 S.W.3d 549 (Tex. App.—
  Houston [14th Dist.] 2014, pet. ref’d) .............................................................. 17
Stovall v. Denno
  388 U.S. 293 (1967) ................................................................................................. 51
United States v. Carrion
  488 F.2d 12 (1st Cir. 1973) .................................................................................... 27
Vermont v. Brillon
  561 U.S. 81 (2009) ................................................................................................... 19
Weatherred v. State
 15 S.W.3d 540 (Tex. Crim. App. 2000) .............................................................. 57
Webb v. State
 760 S.W.2d 263 (Tex. Crim. App. 1988) .................................................... 50, 51
Willingham v. State
 897 S.W.2d 351 (Tex. Crim. App. 1995) ........................................................... 37
Wyatt v. State
 23 S.W.3d 18 (Tex. Crim. App. 2000).................................................................... 9
Zamorano v. State
  84 S.W.3d 643 (Tex. Crim. App. 2002) ....................................................... 19, 22


Statutes
18 U.S.C. § 1827 .............................................................................................................. 28
18 U.S.C. § 1828 .............................................................................................................. 28
TEX. CODE CRIM. PROC. art. 27.08................................................................................. 10
TEX. CODE CRIM. PROC. art. 38.30.......................................................................... 28, 34




                                                               vii
Constitutional Provisions
U. S. CONST. amend. VI ................................................................................................... 11


Rules
TEX. R. EVID. 611............................................................................................................... 35
TEX. R. EVID. 615............................................................................................................... 40


Other Authorities
American Academy of Dermatology
 “Different Kinds of Birthmarks”
 https://www.aad.org/dermatology-a-to-z/for-kids/about-
 skin/birthmarks/different-kinds-of-birthmarks ........................................ 56
Steven Goode, Olin Guy Wellborn III, & M. Michael Sharlot
  1 TEXAS PRACTICE: GUIDE TO THE TEXAS RULES OF EVIDENCE. § 607.1 (3d ed.
  2002) .............................................................................................................................. 38




                                                                  viii
                          Statement of the Case

      The appellant was indicted for capital murder. (CR 2). The

appellant pleaded not guilty. (24 RR 15-16). A jury found him guilty as

charged. (CR 3284, 3355). Based on the jury’s findings regarding special

issues that were submitted at the punishment phase, the trial court

sentenced the appellant to death. (CR 3342-45, 3355). The trial court

certified the appellant’s right of appeal and the appellant filed a timely

notice of appeal. (CR 3359, 3360).


                          Summary of the Facts

      The appellant murdered a fellow gang member for being

insufficiently loyal to the gang.


                            Statement of Facts

      In 2003, the appellant started his own small chapter of the La

Tercera Crips (“LTC”) street gang. (26 RR 133-34). Soon thereafter,

Eduardo Hernandez, then about 13-years old, began hanging around the

gang. (26 RR 136-36). Eventually, with the appellant’s sponsorship,

Hernandez became a full member of the gang. (26 RR 137-38).




                                     1
     In December, 2004, fellow LTC member Israel Diaz stole a car at

gunpoint and let Hernandez borrow it for a few days. (26 RR 140-41).

When police stopped Hernandez and arrested him for driving the stolen

car, he told them it was Diaz who had committed the carjacking. (26 RR

140-41). Diaz was eventually able to persuade Hernandez not to testify

against him, but the incident caused other LTC members to start

avoiding Hernandez. (26 RR 146).

     Ostracized from his own gang, Hernandez began hanging out with

individuals from other gangs. (26 RR 146-48). In late 2005, LTC

members held a meeting regarding Hernandez. (26 RR 149). At the

meeting, pictures were circulated that showed Hernandez hanging out

with members of rival gangs and — even worse — flashing another

gang’s signs. (26 RR 149-52). The LTC members came to a consensus

that someone needed to find Hernandez and kill him. (26 RR 152-53).

     A few days later, on December 6, 2005, Hernandez was hanging

out at an apartment on Corporate Drive with his girlfriend, Karen

Bardales, her sister Wendy, and Wendy’s boyfriend Edgar Ferrufino. (24

RR 44-45). That afternoon, an LTC member named Jose Vazquez

dropped by and had a conversation with Hernandez that left Hernandez

feeling worried. (24 RR 46-48; 27 RR 241-43). Vazquez left the
                                   2
Corporate Drive apartment and placed a phone call to the appellant. (27

RR 10).

     Hernandez, Ferrufino, and the Bardales sisters went out to

another friends’ house that evening. (24 RR 49-50). When they returned

to the Corporate Drive apartment, there was some LTC graffiti spray-

painted on the outside of the building. (24 RR 51-52; State’s Ex. 41).

Hernandez understood from this that “something was going to happen.”

(24 RR 53).

     Ferrufino and Wendy had gone into the apartment first; Wendy sat

on the couch and Ferrufino sat down in front of him. (24 RR 241, 243).

When Hernandez and Karen came into the apartment, as soon as the

door shut behind them someone fired a gun immediately outside the

door. (24 RR 241-42). A gunman burst through the door and began

shooting into the apartment. (24 RR 54). Hernandez and Karen fell to

the ground, and the shooter began walking around the apartment,

apparently searching for something. (24 RR 54-55, 248). The gunman

walked up to where Hernandez was laying, shot him several times in the

head, and then left. (24 RR 56-57, 248). Hernandez was shot at least

nine times and died at the scene; no one else was injured. (24 RR 258;

27 RR 136, 172).
                                  3
      Shortly thereafter, word circulated among LTC members that

Hernandez was dead. (26 RR 155-57). The gang met across the street

from the Corporate Drive apartment and observed the emergency

vehicles at the murder scene. (26 RR 158). The gang members saw the

appellant lingering in the apartment complex near the scene. (26 RR

159). He crossed the street to join his gang members, and he joyfully

hugged them all. (26 RR 159). As the appellant loaded a new magazine

into his silver pistol, he said that he had “finally got him.” (26 RR 160).

      Of the witnesses to the murder, only Wendy Bardales got a good

look at the gunman’s face. (24 RR 60, 254; 27 RR 207, 229-30). A few

days after the murder, police showed Wendy a photo lineup and asked if

she recognized anyone; she identified one of the photos as being of

Israel Diaz, but she said he was not the gunman. (27 RR 215, 220-21). A

few days later, police showed Wendy another photo lineup and she

immediately picked out a photo of the appellant and identified him as

the gunman. (27 RR 226, 229-30).

      Houston police obtained a pocket warrant for the appellant and

went to arrest him on December 16, 2005. (25 RR 205-07; 27 RR 14-15).

Police staked out an apartment where they believed the appellant to be,

and eventually the appellant and an associate, Silder, came out. (25 RR
                                      4
212). The appellant was carrying a large black bag and a green box, and

Silder was carrying a long box. (25 RR 212). Police arrested both of

them and discovered that the boxes and bag they were carrying

contained numerous firearms, magazines, and rounds of ammunition.

(25 RR 219-29; State’s Exs. 64-75). One of the guns recovered was a

silver .40-caliber Taurus pistol that forensic examination would later

reveal was the gun used to kill Hernandez. (25 RR 236-39; 28 RR 37-40).

      On appeal, the appellant raises no complaint regarding the

punishment phase of trial. It is worth noting, though, that the State’s

extensive punishment-phase evidence showed that, between September

and December 2005, the appellant committed three other murders and

two aggravated assaults in which he shot people.


                      Summary of the Argument

      The appellant raises nine points of error. In his first point, he

challenges the sufficiency of the evidence to support his conviction. His

only argument, however, relates to the credibility of a State’s witness

and thus does not undermine the legal sufficiency of the State’s

evidence.




                                   5
      In his second point of error, the appellant claims that the trial

court erred in denying his motion to dismiss based on a speedy trial

violation. However, the fact that the appellant did not file his motion to

dismiss until jury selection had begun — more than eight years after his

arrest — shows that he acquiesced to the lengthy pre-trial delay and his

right to a speedy trial was not violated.

      In his third and fifth points the appellant complains that the trial

court erred by allowing Wendy Bardales to testify through an

interpreter. However, there is no authority — constitutional or statutory

— limiting a trial court’s discretion to appoint an interpreter for a

witness who requests one.

      On a related subject, the appellant’s fourth and sixth points

complain about the trial court’s decision not to allow him to admit an

audio recording of Wendy speaking English. However, the sole relevance

of this evidence was to show that Wendy could speak English, and that

point was not in dispute. Therefore, the evidence was improper

impeachment and cumulative, therefore the trial court did not err in

excluding it.

      In his seventh point, the appellant argues that the trial court

should have granted a mistrial after someone waved at the jurors as
                                     6
they were leaving the courthouse. However, this wave conveyed no

information to the jurors, meaning there is nothing in the record to

suggest how or whether it exerted influence on the jury, thus this Court

should reject this point.

      In his eighth point of error the appellant complains that Wendy’s

identification of him as the shooter was tainted by an impermissibly

suggestive photo lineup. However, the lineup was not impermissibly

suggestive, and, considering the totality of the circumstances, there is no

reason to believe the lineup created            a substantial     risk or

misidentification.

      In his ninth point, the appellant complains about the trial court’s

decision not to read back testimony to the jury in response to a jury

note. However, that note did not specify that the jury had a dispute over

the testimony and, at any rate, the testimony the appellant wanted to

have read back was not responsive to the jury’s note, thus the trial court

did not abuse its discretion in not having the testimony read back.




                                    7
                              Reply to Point One


The evidence is sufficient to support the appellant’s conviction. His
only argument to the contrary is that one of the State’s witnesses
was not credible, but this Court does not reweigh the jury’s
credibility determinations on appeal.

      In his first point of error, the appellant claims that the evidence is

insufficient to support his conviction. The appellant’s argument consists

exclusively of questioning Wendy Bardales’s identification of the

appellant as the gunman. (See Appellant’s Brief at 22-24). This argument

repeats many of the themes of the appellant’s guilt-phase jury

argument. (See 30 RR 5-30).

      When reviewing the sufficiency of the evidence, this Court

considers all of the evidence in the light most favorable to the verdict to

determine whether, based on that evidence and the reasonable

inferences therefrom, a jury was rationally justified in finding guilt

beyond a reasonable doubt. Merritt v. State, 368 S.W.3d 516, 525 (Tex.

Crim. App. 2012). Because the Texas legal system assigns to the

factfinder at trial the duty of resolving conflicting testimony, an

appellate court conducting sufficiency review must defer to the jury’s

credibility determinations. See Clayton v. State, 235 S.W.3d 772, 778

(Tex. Crim. App. 2007). The jury may choose to believe some testimony

                                     8
and disbelieve other testimony. Wyatt v. State, 23 S.W.3d 18, 30 (Tex.

Crim. App. 2000). When the record supports conflicting inferences, this

Court presumes that the jury resolved the conflicts in favor of the

verdict, and will defer to that determination. Thomas v. State, 444 S.W.3d

4, 8 (Tex. Crim. App. 2014).

      In this case, the appellant was charged with committing capital

murder during the commission of a burglary. (CR 2). Wendy Bardales

testified that as she sat on the floor of a friend’s apartment, she

observed the appellant break into the apartment, uninvited, and

intentionally shoot Eduardo Hernandez in the head. (25 RR 182-86). She

identified the appellant as the gunman to police officers during the

investigation, and in the court room. (25 RR 194-97).

      The State supposes that a jury could have disbelieved Wendy’s

identification because, as the appellant points out in his brief, she did

not identify the appellant as the gunman until several days later.

However, the jury found Wendy credible and this Court must defer to

that determination. Viewing the evidence in the light most favorable to

the verdict, the evidence in this case is sufficient.




                                      9
                           Reply to Point Two


The trial court did not err in denying the appellant’s mid-trial
motion to dismiss that was based upon a supposed speedy-trial
violation.

      The appellant was arrested in December, 2005. Jury selection for

his trial did not begin until January, 2014. On the fifth day of jury

selection, the appellant filed a pro se “motion for speedy trial.” (State’s

Ex. 5). The motion did not request any particular relief, but instead the

prayer asked that the trial court “grant this Motion for Speedy Trail [sic]

in all things sought therein.” (State’s Ex. 5). The trial court made no

ruling on this motion and it is not mentioned in the docket.

      On January 29, the eleventh day of jury selection, defense counsel

filed a “Motion to Dismiss the Indictment for Lack of a Speedy Trial.” (CR

3121). The subtitle of the motion invoked Code of Criminal Procedure

Article 27.08, which relates to exceptions to the substance of an

indictment. (CR 3121); see TEX. CODE CRIM. PROC. art. 27.08. On February

12 — after the jury had been selected but before it had been sworn —

the trial court held a hearing on this motion and denied it. (22 RR 5-81).

In his second point of error the appellant claims that trial court erred in

denying the motion. (Appellant’s Brief at 24-36).


                                    10
    I.   Legal Background:         Barker’s    attempt     to   assess    an
         “amorphous” right

      The Sixth Amendment to the federal constitution provides that

defendants “shall enjoy the right to a speedy … trial.” U. S. CONST. amend.

VI. This right, though, is a difficult one to assess because, among other

reasons, it is often the case that a criminal defendant would prefer not to

go to trial, or at least to have his trial delayed. Barker v. Wingo, 407 U.S.

514, 520-23 (1972). In an effort to vindicate defendants’ rights without

allowing them to easily game the system, the Supreme Court in Barker

established a now-familiar four-part test for assessing whether the pre-

trial delay in a particular case has violated the Sixth Amendment’s

guarantee. See Id. at 530-32. In short, the four factors are: 1) whether

the delay was long enough to trigger an inquiry; 2) what caused the

delay; 3) whether the defendant timely asserted his right to a speedy

trial; and 4) what harm was caused by the delay. Ibid.

      On appeal, a trial court’s ruling on a speedy-trial motion is

reviewed for an abuse of discretion. Cantu v. State, 253 S.W.3d 273, 282

(Tex. Crim. App. 2008). Under this standard, the appellate court views

all of the evidence in the light most favorable to the trial court’s ruling.

Ibid. Because the trial court made no findings of fact related to this


                                     11
motion (nor did the appellant request any), this Court will presume that

the trial court resolved all factual disputes in favor of the State and made

all reasonable fact-findings required to support its decision. Ibid.


    II.   Factual Background: Testimony at the hearing explaining
          the delay

      At the hearing in this case, the State presented the testimony of

Spence Graham and Paula Hartman, both of whom had been the chief

prosecutor for the 179th District Court in years past and had worked on

this case.

      Graham became chief prosecutor of the 179th in May 2009, shortly

after a new judge had been elected to the bench. (22 RR 28). At the time,

more than a thousand cases were pending on the court’s docket, with

“almost 200” cases already set for trial. (22 RR 27-28, 34). At that point,

the State’s file for the appellant consisted of “approximately six to eight

… banker boxes, full of offense reports and evidence …”. (22 RR 9-10).

The appellant’s prosecution was part of a larger investigation into the La

Tercera Crips, and at that time the State’s file included “voluminous

offense reports [of] 11 total homicides that … were linked in some way

to [the appellant].” (22 RR 10).



                                    12
      When Graham took over the case, the State had not decided

whether to seek the death penalty, so Graham sent defense counsel a

“mitigation letter” asking for any mitigating evidence that might assist

the State in making its decision. (22 RR 11). Defense counsel submitted

the “mitigation packet” in late 2009 or early 2010. (22 RR 31). While the

case was pending, and the appellant was making his regular court

appearances, one of the appellant’s lawyers was attempting to persuade

the appellant to make a plea agreement in return for the State not

seeking death. (22 RR 13-14). This defense attorney urged Graham not

to present the case to the district attorney for a decision regarding the

death penalty because “that would get the ball rolling and make it much

more difficult for him to ever work this out [as a plea bargain].” (22 RR

16). Graham said that one of the appellant’s other lawyers seemed

resigned to the fact that this case would go to trial, but he never

requested a trial date. (22 RR 16-17).

      In April 2011, the State filed its notice of intent to seek the death

penalty, and at that point Graham was ready to go to trial. (22 RR 19,

32). The case was set on the trial docket, with a pre-trial conference set

for May 10, 2012, and a jury-trial setting for August 9, 2012. (22 RR 20).



                                    13
      At the hearing, the next witness was Paula Hartman, who became

chief prosecutor of the 179th in January 2012. (22 RR 43). She said that

when she took over, she began preparing for the August trial date. (22

RR 44-45). However, on May 10 defense counsel filed a motion for

continuance asserting that the defense could not finish its investigation

in time to go to trial in August. (State’s Ex. 4). The trial court granted the

motion, but noted on the order that it was “[g]ranted over strong

opposition of the State.” (State’s Ex. 4). The case was reset for the

following year, but in the meantime another judge — who would

eventually be the trial judge in this case — was elected to the bench. (22

RR 49).

      The appellant testified at the speedy-trial hearing. He explained

that he had been in the county jail non-stop since his December 2005

arrest, and that this had caused various problems in his life: he had to

call off his attempts to go to college and pursue a career in architectural

drafting; he had to go to court once every month or so; he had lost

contact with his “very Christian” relatives who “didn’t want to come visit

a[n] inmate accused of multiple capital murders”; and he had suffered

“severe stress” and had considered killing himself. (22 RR 61-64). He

said he had been in jail so long that the Houston Chronicle had written a
                                     14
story about how long he had been in jail. (22 RR 64). Finally, the

appellant said that one of his brothers had died and he had not been

able to attend the funeral due to being in jail. (22 RR 63, 73). Though

there is no assertion anywhere in the record that the brother was a

witness to anything relevant to the trial, the appellant said that the

brother would have testified had he not died. (22 RR 73).

      On cross-examination, the prosecutor asked the appellant why he

had filed a motion for speedy trial after trial had started. (22 RR 67).

The appellant said this was due to “[l]ack of ignorance of legal system,

not knowing procedure.” (22 RR 67-68). He explained that he had

become “educated” about speedy-trial law because of the article in the

Chronicle about his situation. (22 RR 68). The prosecutor asked why he

had not filed his motion until nine months after the Chronicle article was

published, and the appellant explained that, due to some medication

issues, he was “drowsy at times” during his regular visits to the jail’s law

library. (22 RR 68).

      After testimony, defense counsel argued to the trial court that the

length of the pre-trial delay was so egregious that it outweighed any

other Barker factor, and asked the trial court to dismiss the case “as a

matter of equity, as a matter of setting the standard here in Harris
                                    15
County, and to prevent this kind of thing happening in the future.” (22

RR 76-77). The State responded by looking at each of the Barker factors:

1) The delay was long enough to trigger an inquiry; 2) The delay was

either caused by neutral causes (such as changes in the trial judge) or by

delays from the defense; 3) The appellant never asserted his right to a

speedy trial until after trial started; and 4) The appellant was not

harmed, because the only supposed witness who was rendered

unavailable by the delay was the appellant’s brother, and there was no

evidence suggesting what that brother could have testified about. (22

RR 77-79). The State cited to Emery v. State, 881 S.W.2d 702, 709 (Tex.

Crim. App. 1994) for the proposition that an eight-and-a-half year delay

in a capital case did not violate the Sixth Amendment if the prosecution

was not responsible for the delay. (22 RR 78). The trial court denied the

motion. (22 RR 80-81).


   III.   Argument: The appellant’s right to a speedy trial was not
          violated because he did not assert it in a timely manner.

      The State will address all four of the Barker factors, but the

deciding issue in addressing the appellant’s claim is that he waited until

trial proceedings had started before asserting his right to a speedy trial.

Allowing a defendant who has waited in jail eight-and-a-half years

                                    16
without complaint to file a speedy-trial claim in the middle of jury

selection and win a dismissal would fly in the face of Barker’s

admonitions against letting defendants game the system.


              A. Length of the Delay

       The total delay between the appellant’s arrest and the filing of his

motion was 97 months, slightly more than eight years. This is long

enough to trigger a speedy-trial inquiry. Dragoo v. State, 96 S.W.3d 308,

314 (Tex. Crim. App. 2003) (one year sufficient to trigger inquiry). 1


              B. Reason for the Delay

       As one might expect with a 97-month delay, the causes of the

delay in this case are numerous and complex. In a speedy-trial analysis,

the key issue in assessing the cause of the delay is to look at the

intentions of the State. Barker, 407 U.S. at 531. If the delay is caused by



1 There are at present two lines of cases in Texas, one holding that a speedy-trial
inquiry is triggered at the one-year point, the other holding that the inquiry is
triggered after eight months. See State v. Wei, 447 S.W.3d 549, 554 (Tex. App.—
Houston [14th Dist.] 2014, pet. ref’d) (citing Harris v. State, 827 S.W.2d 949, 956
(Tex. Crim. App. 1992) for eight-month threshold)). Neither of these lines of cases
mention the other, and there are no consistent factual differences between them that
would explain their coexistence. The State suggests that, since this is a matter of
federal law and the Supreme Court has used the one-year threshold, the one-year
threshold is a better statement of law. See Doggett v. United States, 505 U.S. 647, 652
n.1 (1992). At any rate, a brief statement from this Court clarifying the matter would
be of assistance to the bench and bar.

                                         17
actions that are intended to aid the truth-seeking function of trial, then

the delay will not weigh in favor of dismissal. Ibid. If the delay is caused

by things like ordinary docket backlog or general neglect by the State in

pursuing a trial (causes that are generally referred to as “negligence”),

the delay will weigh somewhat in favor of a dismissal, though not

heavily. Ibid. And if the delay is due to an effort by the State to hinder the

defendant’s ability to mount a defense, the delay will weigh heavily in

favor of dismissal. Ibid.

      In this case, the record is largely silent as to what occurred

between December 2005 and February 2009. At the hearing, the State

admitted into evidence 36 reset forms with dates ranging from 2006 to

2013. (State’s Ex. 1-2). Most of these resets give no reason for the reset,

but a few provide evidence that the State was still deliberating whether

to seek the death penalty. (See 46 RR 18 (case reset from October 3,

2007 to November 13, 2007, with note: “State to review case with Sgt.

[illegible] and make a decision”), 19 (case reset from April 10, 2008 to

May 1, 2008, with note: “Still waiting for pros to descide course of

prosecution”), 47 (case reset from an illegible date to March 29, 2010,

with note: “Waiting on word on mitigation packet”). To the degree this

reflects an honest effort by the State to reach a just decision on whether
                                     18
to seek death, and perhaps an effort to allow defense counsel to talk his

client into striking a plea bargain to save his life, that portion of the

delay does not weigh in favor of dismissal. See State v. Munoz, 991

S.W.2d 818, 824 (Tex. Crim. App. 1999) (“good faith plea negotiations is

a valid reason for the delay and should not be weighed against the

prosecution”).

      The appellant’s 2012 continuance in this case should be factored

into assessing the cause of any delay. While there are situations where a

defendant can move for a continuance without it necessarily reflecting

on his readiness for trial,2 this was not one of those. The appellant’s

motion for continuance explicitly states that defense counsel was still

investigating the case and was not prepared for trial. (State’s Ex. 4). This

motion was filed six years after the appellant’s arrest. In light of this

declaration that the appellant needed more than six years to gather

evidence and mount a defense, the State suggests that none of the delay

prior to the filing of this motion should weigh in favor of dismissal.

Vermont v. Brillon, 561 U.S. 81, 92 (2009) (delay caused by defense


2 See Zamorano v. State, 84 S.W.3d 643, 650 n.31 (Tex. Crim. App. 2002) (noting how
“medical, personal, and professional problems or conflicts” might cause a defendant
to announce “not ready” for particular trial dates, even though, generally speaking,
defense was prepared for trial).

                                        19
counsel’s failure “to move the case forward” is not attributed to the state

and weighs against finding a Sixth-Amendment violation). Indeed,

depending on the nature of the defense investigation, it may well have

been an abuse of discretion for the trial court to have forced a trial at

any point earlier. See Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim.

App. 1996) (“Where denial of a continuance has resulted in

demonstrated prejudice, we have not hesitated to declare an abuse of

discretion.”).

      In sum, though there was more than eight years of delay in this

case, there is no evidence that any of the delay was the result of any

effort by the State to hinder the defense. The amount of delay

attributable to “negligence” by the State in this case is negligible.

Instead, the vast majority of the delay seems to have been used by the

defense to assemble its case, thus this delay should not weigh in favor of

finding a Sixth-Amendment violation.


             C. Defendant’s Assertion of the Right

      The definitive issue in this speedy-trial analysis is the appellant’s

untimely assertion of his right to a speedy trial. The lack of a timely

demand for a speedy trial strongly indicates that a defendant did not


                                    20
really want a speedy trial. Dragoo, 96 S.W.3d at 314. In this case, the

appellant waited 97 months before filing his speedy-trial motions;

delays far shorter than this have been held to be fatal to speedy-trial

claims. See ibid. (41-month delay in asserting right “weighs very heavily

against finding a violation of the speedy trial right”); Shaw v. State, 117

S.W.3d 883, 890 (Tex. Crim. App. 2003) (35-month delay in asserting

right weighed “very heavily” against finding violation).

      It is not only the length of time that passed before the appellant

filed his motion that should weigh against him, it is the fact that he

waited until after trial proceedings had started. The State can find no

case involving a mid-trial speedy-trial motion, but day-of-trial and day-

before-trial motions have been held to indicate that the defendant

acquiesced to the delay and did not actually want a speedy trial. Harris v.

State, 827 S.W.2d 949, 957 (Tex. Crim. App. 1992) (day-of-trial motion

“indicates strongly that [defendant] did not really want a speedy trial”);

Dragoo, 96 S.W.3d at 314-15 (rejecting speedy-trial claim filed the day

before trial started). The presumption of acquiescence created by an

untimely assertion of the right should be particularly strong in a capital

case; a defendant looking at either a death sentence or a sentence of life-



                                    21
without-parole may well have nothing whatsoever to lose from delay if

he knows that the State’s evidence is strong.


            D. Prejudice

      In most cases, a defendant must show some sort of actual harm

caused by the delay. Barker explained that the harm from delay will

normally fall into one of three categories: 1) pretrial incarceration; 2)

anxiety caused by pending charges; and 3) impairment of the

defendant’s ability to mount a defense. Barker, 407 U.S. at 532.

      The State accepts that the appellant has shown some prejudice

from the pre-trial delay. He spent the entire time incarcerated on this

charge, and he testified that he suffered stress as a result of the pending

charge. (22 RR 61-64); see Zamorano, 84 S.W.3d at 654 (stress from

pending charges is “some evidence” of prejudice).

      This “prejudice,” though, takes on a somewhat different light in a

capital context. A convicted capital defendant will be transferred either

to a high-security prison or to death row; it is likely that the appellant

will never again reside in a facility as pleasant as the Harris County jail.

Had the appellant’s trial occurred sooner, the result would have been to




                                    22
reduce the prejudice of pre-trial incarceration by getting the appellant

to death row sooner.

      The appellant testified that his brother died during the pre-trial

delay and that his brother would have testified for him. However, there

is no evidence of what his brother would have testified about. Nothing at

trial indicates that his brother had relevant evidence that the appellant

was not able to procure elsewhere. The appellant made no other claim

that his defense was hindered by the delay.


            E. Balancing the Factors

      In a Barker analysis, no one factor should be controlling. State v.

Munoz, 991 S.W.2d 818, 828 (Tex. Crim. App. 1999). In this case, the pre-

trial delay was certainly lengthy, but the record shows that the appellant

needed nearly all of that time in order to prepare his defense. The

appellant’s motion for continuance, filed more than 6 years after his

arrest and indicating that he had not yet finished with pre-trial

investigation, should serve to largely absolve the State from the

responsibility for the early portion of the delay. Even once the defense

team was ready for trial, though, the appellant did not file a motion for

speedy trial until proceedings had begun, indicating that he acquiesced


                                   23
to the delay and received a trial precisely when he wished to. Though

the appellant was incarcerated during the entire delay, the fact that he

used that time to assemble his defense and the fact that he exhibited no

interest in a speedy trial should combine to show that his Sixth

Amendment right to a speedy trial was not violated, and the trial court

did not abuse its discretion in overruling the appellant’s motion to

dismiss. Thus, this Court should overrule his second point of error.


               Reply to Points Three, Four, Five, and Six

      The appellant’s third through sixth points all involve Wendy

Bardales’s ability, or lack thereof, to speak English, which the defense

made a focus of the trial. The appellant’s third and fifth points complain

of the trial court’s decision to allow Wendy to testify through an

interpreter. The appellant’s fourth and sixth points complain about what

he claims were limitations placed on his ability to impeach Wendy

regarding her ability to speak English.




                                   24
Point Three: The trial court did not violate the Sixth Amendment
when it allowed Wendy to testify through an interpreter.

    I.   Factual Background: Wendy wanted to testify through an
         interpreter, but the appellant sought to cross-examine her
         in English.

      Wendy’s testimony took place over two days, and both days she

testified through an interpreter. (25 RR 33; 26 RR 10). Wendy explained

that she was born in Honduras and did not begin learning English until

she came to the United State at age 12; at the time of Hernandez’s

murder, she was 15. (25 RR 35). At trial, some eight years later, she

requested to testify through an interpreter “to make sure [she]

understood everything.” (25 RR 35).

      On the second day of her testimony, prior to beginning cross-

examination, the appellant filed a “Motion to Compel Witness to Provide

Cross-Examination Testimony in the English Language.” (CR 3230-

3233). In this motion, the appellant listed several facts tending to show

that Wendy spoke English. He then asserted that “the State is using the

interpreter as a shield to prevent the jury from noticing her deception

and lies. The interpreter is completely unnecessary.” (CR 3232). The

appellant objected to Wendy’s use of a translator because he believed it

hindered his ability to cross examine her: “The jury cannot notice or


                                   25
detect the witness’[s] voice inflection, facial expressions, speech

patterns, etc. when the jury speaks English and the witness testifies in

Spanish through an interpreter.” (CR 3232). The appellant alleged that

this violated his “right to confront witnesses, [his] right to cross-

examinations, and [his] right to due process of law.” (CR 3232).

      The trial court held a brief hearing on this motion. (26 RR 5-10).

The appellant offered as an exhibit a short recording that police had

made of their discussion (in English) with Wendy back in 2005. (Def.’s

Ex. 3). At the hearing, defense counsel accused the State of “improperly

using the interpreter as a shield to shield Ms. Bardaeles’[s] testimony so

that the jury can’t see that she is, in fact, not being truthful.” (26 RR 6).

      In response, the State noted that the only law cited by the

appellant dealt with situations where the question was whether a trial

court was required to appoint an interpreter. (26 RR 6). The State cited

to Hernandez v. State, 986 S.W.2d 817 (Tex. App.—Austin 1999, pet.

ref’d) and Garcia v. State, 149 S.W.3d 135 (Tex. Crim. App. 2004) for the

proposition that that if there is a chance a defendant might not fully

understand English, the “best practice is to err on the side of caution”

and appoint an interpreter. (26 RR 7-8). The prosecutor said that she

could find no caselaw applying the same principle to witnesses, but also
                                      26
noted that she could think of no reason why the same rule would not

apply. (26 RR 7). The prosecutor noted that Wendy had said she still

speaks Spanish in her home, and urged the court to “err on the side of

caution” and allow Wendy to continue testifying through an interpreter.

(26 RR 9).

          The trial court noted that in listening to Bardeles speak at a

hearing the prior day it had noticed “an inherent language barrier.” (26

RR 9-10). The trial court stated its “belief that the jury will get a … more

accurate view of Ms. Bardeles’[s] testimony if allowed through a

translator. So the motion is overruled.” (26 RR 10).


    II.     Argument: Allowing Wendy to testify through                  an
            interpreter did not violate the Sixth Amendment.

      In his third point, the appellant claims that allowing Wendy to

testify through an interpreter violated his Sixth Amendment right to

confrontation. (Appellant’s Brief at 37-59). This is a novel claim. There

are numerous cases that stand for the proposition that the Sixth

Amendment right to confrontation requires that the trial court appoint

an interpreter for a non-English-speaking defendant. See, e.g., United

States v. Carrion, 488 F.2d 12, 14 (1st Cir. 1973). (“Clearly, the right to

confront witnesses would be meaningless if the accused could not

                                    27
understand their testimony, and the effectiveness of cross-examination

would be severely hampered.”). There are statutes — both state and

federal — regulating the appointment of interpreters for defendants and

witnesses, and establishing guidelines for trial courts. See TEX. CODE

CRIM. PROC. art. 38.30; 18 U.S.C. § 1827, 1828. However, the State can find

no authorities discussing when, if ever, the appointment of an

interpreter violates a defendant’s right to confrontation; the appellant

has cited to no on-point authority and presents his argument only by

way of analogy.

      The State’s response to this argument is two-fold. First, the use of

an interpreter does not implicate any of the essential elements that

constitute the right of confrontation. Second, even if the use of an

interpreter did implicate the right of confrontation, this Court would

still need to defer to the trial court’s findings that an interpreter was

appropriate in this trial.


             A. Allowing a witness to testify through an interpreter
                does not implicate the right to confrontation.

      First, it is worth noting that the appellant’s point effectively

challenges the use, under any circumstances, of an interpreter in a

criminal trial. The appellant phrases his point such that he seems to

                                    28
challenge the use of an interpreter only where the witness can speak

English. But the problems he describes with the use of interpreters are

not limited to those circumstances. If using an interpreter conceals a

witness’s demeanor such that it effectively prevents cross-examination,

it does so regardless of whether the witness can speak English.

      If the use of interpreters so impedes a defendant’s ability to

confront witnesses that it violated the Sixth Amendment, this would

have the effect of prohibiting non-English speakers from testifying for

the prosecution in criminal cases. The State is aware of no authority

suggesting that this is the purpose of the Sixth Amendment. See

Crawford v. Washington, 541 U.S. 36, 43-50 (2004) (discussing

development of English and colonial American law prior to adoption of

the Sixth Amendment, and concluding that “the principal evil at which

the Confrontation Clause was directed was the civil-law mode of

criminal procedure, and particularly its use of ex parte examinations as

evidence against the accused”).

      In Maryland v. Craig, 497 U.S. 836 (1990), the Supreme Court

analyzed the right of confrontation as comprising four elements:

“physical presence, oath, cross-examination, and observation of

demeanor by the trier of fact.” Craig, 497 U.S. at 846. None of these
                                   29
elements are seriously implicated by the use of interpreters: the witness

is still physically present, under oath, subject to cross-examination, and

can be observed by the trier of fact.

      The appellant claims that by speaking Spanish Wendy was able to

conceal from the jury her “voice inflection, facial expressions, speech

patterns, etc.” (Appellant’s Brief at 49), but that is incorrect. The jury

could see and hear Wendy speak just as they could any other witness,

only her words were in Spanish. Moreover, the appellant’s point begs the

question by assuming that her “voice inflections, facial expressions,

speech patterns, etc.” would have been accurately conveyed had she

been forced to testify in English, her second language. If one objective of

cross-examination is to get a gauge of the witness’s demeanor, surely

that demeanor is at least as well-conveyed by testimony in a native

language as it would be by testimony in a language in which the witness

must spend time mentally translating. 3




3Wendy testified that she thinks in Spanish, thus to speak in English she needed to
do her own translation, which sometimes meant she was not able to express herself
well in English. (25 RR 200).
                                       30
            B. Even if the use of interpreters implicates some of the
               concerns of the Sixth Amendment, the use of an
               interpreter here would still not be a constitutional
               violation because the Sixth Amendment is not
               absolute and the trial court’s decision to use a
               translator was reasonable.

      Even if the use of an interpreter implicated an element of the

confrontation right, that does not mean that using an interpreter

necessarily violates the confrontation right. In Romero v. State, 173

S.W.3d 502 (Tex. Crim. App. 2005), this Court was faced with a situation

where a witness testified while wearing sunglasses and a disguise that

concealed his “mouth, jaw, and the lower half of his nose. Romero, 173

S.W.3d at 503. This Court held that this implicated two of the elements

of confrontation. First, by obscuring the witness’s eyes, the physical

presence element was compromised because the defendant was not

able to look the witness in the eye. Id. at 505. Second, because most of

the witness’s face was concealed the observation-of-the-witness’s-

demeanor element was compromised. Id. at 505-06. This Court held that

the defendant’s confrontation right was violated because two elements

of that right had been compromised but there was no compelling reason

to justify those compromises. Id. at 506.




                                    31
      Here, the appellant alleges that allowing Wendy to testify through

an interpreter compromised the fact finder’s ability to view her

demeanor. Assuming that this is true, as this Court recognized in Romero

the confrontation right is not absolute. Id. at 505 (recognizing Craig’s

holding that an “important” interest could justify the complete denial of

the physical-presence element). Indeed, the element that may have been

compromised in this case — the viewing of the witness’s demeanor — is

the subject of the longest-standing and most well-known exception to

the confrontation right: the admission of former testimony of an

unavailable witness. See generally Mattox v. United States, 156 U.S. 237

(1895) (admission of deceased witness’s testimony from prior trial did

not violate Sixth Amendment). In cases like that, where testimony is

read back to the jury from a transcript, the fact finder has no ability

whatsoever to view the witness’s demeanor, thus it cannot be that slight

abrogation of the fact finder’s ability to view the witness’s demeanor

(which is what the appellant alleges in this case) necessarily violates the

right of confrontation.

      As Craig and Romero accepted, elements of the confrontation right

can be compromised if there is a sufficiently good reason for doing so. In

this case, Wendy said that she was not sufficiently comfortable in
                                    32
English to testify without an interpreter. Moreover, the trial court

personally interacted with Wendy and came away with the impression

that her testimony would be more accurate if Wendy testified through

an interpreter. If using an interpreter is enough to implicate the right of

confrontation, it must surely be the case that the trial court’s

determination that an interpreter is necessary to get accurate and useful

testimony from a witness would be a sufficient justification for the slight

abrogation of that right.

      Both at trial and on appeal the appellant has pointed to evidence

in the record showing that Wendy had some ability to speak English.

The State does not dispute that evidence, but that does not mean that

the trial court was incorrect in believing other evidence — including its

own personal interactions with Wendy — over the evidence cited by the

appellant. And it would be inappropriate for this Court, after viewing

the cold record, to decide that the trial court was incorrect on a question

for which there is conflicting evidence.

      This Court should overrule the appellant’s third point because

there is no authority for the proposition that using an interpreter

violates the Sixth Amendment, and it would be bad policy if this Court

were to create such authority. Even if using an interpreter implicates an
                                    33
element of the confrontation right, the abrogation of that element is so

minor, and the importance of getting accurate testimony from witnesses

so important, that this does not constitute a violation of the appellant’s

right of confrontation.


Point Five: The trial court did not violate state statutory law by
allowing Wendy to testify through an interpreter.

      In his fifth point, the appellant claims that the trial court abused

its discretion and violated Code of Criminal Procedure Article 38.30 by

allowing Wendy to testify through an interpreter. (Appellant’s Brief at

68-70). However, the appellant does not cite any case that supports the

proposition that a trial court can err by appointing an interpreter; all of

his cases deal only with the question of whether trial courts abused

their discretion in situations where they did not appoint interpreters.

(See Appellant’s Brief at 68, 70 (citing Balterierra v. State, 586 S.W.2d

553 (Tex. Crim. App. 1979) and Diaz v. State, 491 S.W.2d 166 (Tex. Crim.

App. 1973)).

      Article 38.30 sets guidelines for when a court must appoint an

interpreter, but there is no state law establishing guidelines for when a

court is prohibited from appointing an interpreter. See TEX. CODE CRIM.

PROC. art. 38.30. The State submits that, aside from situations where a

                                    34
trial court must appoint an interpreter, a trial court’s decision to use an

interpreter is strictly a matter of discretion in how a trial court manages

a trial,4 and there is little role for an appellate court to second guess that

decision.

      Even if this Court were to second guess the trial court’s decision,

the evidence of Wendy’s English language skills was mixed: She seemed

capable of speaking English, but she said she was more comfortable in

Spanish, she spoke Spanish in her home, and the trial court found her

English phrases to be awkward. On such a fact-intensive question, this

Court should defer to the determination of the trial court and reject the

appellant’s fifth point.


Point Four: The trial court did not abuse its discretion in refusing
to admit an audio recording because it was improper impeachment
on an uncontested matter. Moreover, because the audio recording
was cumulative, any error in excluding it should not result in
reversal.

       In his fourth point, the appellant purports to ask the question of

whether a defendant has a right to cross-examine and impeach a

witness “concerning her ability to speak English so that the jury might


4 Rule of Evidence 611 imposes on the trial court the obligation to “exercise
reasonable control over the mode and order of interrogating witnesses … so as to …
make the interrogation and presentation effective for the ascertainment of the truth
….” TEX. R. EVID. 611(a).
                                        35
be made aware of her attempt to mask the extent of her fluency?”

(Appellant’s Brief at 59). However, that is not the substance of the

appellant’s point. The only adverse ruling that the appellant raises in his

fifth point is the trial court’s denial of his request to admit a brief audio

recording of Wendy speaking with police in 2005. (Appellant’s Brief at

59-67; see Def.’s Ex. 3).

       On this recording, Wendy has a conversation, in English, 5 with

police officers and identifies “Apache” as the shooter; she also says that

before his death Hernandez told her that Apache committed another

murder. (Def.’s Ex. 3). Defense counsel proffered this recording at the

end of trial prior to the close of evidence. (29 RR 60-62). The trial court

asked why the recording should not be excluded as hearsay and defense

counsel replied that it was not being offered for the truth of the matter

asserted, but merely to show that Wendy could speak English. (29 RR

62). The State replied that Wendy had never denied being able to speak



5  The appellant asserts that Wendy speaks “perfect English” on the audio.
(Appellant’s Brief at 61). While this matter is not terribly important, the State
disputes that characterization. Most of her answers are “yes” or “no.” She speaks
with an accent that, combined with the softness of her voice, leaves some of her
comments inaudible. Near the end of the interview an officer asks her if Apache has
a car and Wendy says that he does. The officer then asks if Wendy has seen Apache
in his car lately, and Wendy says that no, he had sold it. This confusion regarding
tense is indicative of a certain lack of fluency and certainly was not an example of
“perfect English.”
                                        36
English and had testified that she spoke to the police in English, so the

defense’s proposed use of this recording was improper impeachment.

(29 RR 62). The trial court excluded the recording:

      I think it’s been made clear that [Wendy], both from her and
      from cross[-examination] that she never did ask for an
      interpreter [during the police interview] and one clearly
      was not provided for her. So I will let the jury make any
      conclusions about her ability to speak English from the
      testimony from the live witnesses.

(29 RR 63).

      The trial court’s description of the testimony was correct. Wendy

said that she spoke with police in English. (25 RR 189, 191-92; 26 RR

22-25, 32, 36, 49-50, 52). The police officer who interviewed Wendy

said that he spoke with her in English and had no difficulty

understanding her. (26 RR 238-39; 27 RR 33-34, 51). Another police

officer who spoke with Wendy testified that he spoke with her in English

and Wendy did not request an interpreter. (28 RR 27-28). Aside from

Eduardo Herndez’s death, Wendy’s ability to speak English was the most

well-established fact at this trial.

      Impeaching a witness consists of introducing evidence that tends

to show that the witness is unworthy of belief or credit. Willingham v.

State, 897 S.W.2d 351, 358 (Tex. Crim. App. 1995). “The law authorizes


                                       37
five basic methods of impeachment: character, bias, prior inconsistent

statements, lack of capacity, and contradiction.” Steven Goode, Olin Guy

Wellborn III, & M. Michael Sharlot, 1 TEXAS PRACTICE: GUIDE TO THE TEXAS

RULES OF EVIDENCE. § 607.1 (3d ed. 2002). Defendant’s Exhibit 3 does not

fall into any of those categories: Had it been admitted for the proffered

purpose, all it would have shown that was that Wendy spoke to the

police in English. Considering that there was no real contradiction in the

evidence on this point, the recording in no way impeached Wendy or

any other prosecution witness.

      Even if this Court believes that the trial court should have

admitted the recording, the fact that the recording (if admitted for the

purpose of showing that Wendy spoke English) was cumulative of other

evidence means that reversal on this ground would be inappropriate. A

trial court’s erroneous exclusion of evidence will not result in reversal

unless the exclusion affects a party’s substantial rights. TEX. R. EVID.

103(a). The improper exclusion of evidence does not effect a party’s

substantial rights if the excluded evidence was cumulative of evidence

admitted elsewhere. See Mosley v. State, 983 S.W.2d 249, 258 (Tex. Crim.

App. 1998) (op. on reh’g) (explaining that the harm from the erroneous

exclusion of evidence may be mitigated by the admission of evidence
                                   38
similar to what the appellant wished to offer); Anderson v. State, 717

S.W.2d 622, 628 (Tex.Crim.App.1986) (holding that to show harm, the

excluded evidence must be controlling on a material issue and not

cumulative of other evidence). The jury was repeatedly advised that

Wendy spoke English; the appellant could not have been harmed by the

trial court’s exclusion of evidence whose only purpose was to reiterate

that point. Accordingly, this Court should reject the appellant’s fourth

point.


Point Six: The appellant’s claim is that the trial court violated Rule
615 by not admitting the recording, but Rule 615 is a rule of
discovery, not admissibility. The trial court’s ruling on
admissibility did not implicate Rule 615.

         In his sixth point, the appellant asks whether the trial court

“violat[ed] the rule of Gaskin v. State[, 353 S.W.2d 467 (Tex. Crim. App.

1961)] by preventing appellant from impeaching [Wendy] with the prior

audiotaped statement she gave to the police.” (Appellant’s Brief at 71).

As the appellant notes in his brief, Gaskin provided that the State must

provide to the defense any statements that witnesses made to the police

during the investigation; this has since become part of Rule of Evidence

615. Smith v. State, 65 S.W.3d 332, 343 (Tex. App.—Waco 2001, no pet.).



                                   39
      On its face, Rule 615 is not an independent ground for

admissibility. See TEX. R. EVID. 615. Rule 615(e) provides for the exclusion

of a witness’s testimony if the sponsoring party refuses to provide that

witness’s prior statement to the other party, but no other part of Rule

615 concerns the admission or exclusion of evidence. The purpose of the

rule is to provide parties with witnesses’ statements so that those

witnesses can be cross-examined, not to admit those statements in lieu

of testimony. If Rule 615 was a basis for admitting witnesses’ out-of-

court statements, it would do great damage to the general rule against

hearsay.

      The appellant cites to no authority for the proposition that Rule

615 is an independent basis for admissibility, nor did the appellant raise

this argument in the trial court. See Martinez v. State, 91 S.W.3d 331, 336

(Tex. Crim. App. 2002) (appellate courts “usually may not reverse a trial

court's ruling on any theory or basis that might have been applicable to

the case, but was not raised [in the trial court]). This Court should reject

the appellant’s sixth point because it presents nothing for this Court’s

review and, if examined, is without merit.




                                    40
                          Reply to Point Seven


The jurors were not unduly influenced when someone waived at
them.

      At the end of the second day of deliberation, the jury was placed

on a bus to be taken to a hotel for sequestration. (32 RR 12). As the bus

was beginning to drive off, someone wearing a white sweatshirt waved

at the jurors while “smirking.” (32 RR 23-25). Because they had seen

this man in the courtroom, some of the jurors concluded that he was the

appellant’s brother. (32 RR 24).

      The next morning, the jury resumed deliberations and reached a

verdict. After that, the trial court held a brief hearing into the waving

incident and what effect, if any, it had on the jury. (32 RR 12). One juror,

identified as A.B., testified that she thought the waving was “a tactic to

intimidate or threaten”; when asked if she felt threatened, she replied

that she felt “cautious.” (32 RR 18). After the waving incident, A.B. asked

for permission to contact her family “out of caution.” (32 RR 18). A.B.

said that the next day prior to deliberations, she asked other jurors

whether they thought the waver would be in the courtroom that day. (32

RR 20). However, A.B. said she did not know if the waver was in the

courtroom because she had not actually seen the waver, she had only

                                    41
heard about him. (32 RR 20). A.B. said that she did not believe the

waving incident affected her ability to be fair and impartial in the

punishment phase. (32 RR 21).

       The second juror to testify, D.T., said that she actually saw the

waver, though she did not know who he was. (32 RR 23-25). D.T. said

that she was concerned because she “thought they were supposed to

keep people away from us.” (32 RR 26). D.T. said that the next morning

she mentioned to the deputies guarding the jury that she was

concerned, and “[d]ue to the nature of the case … I was going to hold my

gun closer at night.” (32 RR 26). However, a conversation with one of the

deputies put D.T. at ease and she said she was feeling better. (32 RR 27).

D.T. said that the incident would not affect her going forward because

the incident had “nothing to do with [the appellant].” (32 RR 27).

       After this hearing, the appellant moved for a mistrial based on his

claim that “the verdict was reached as a result of an outside influence”

(32 RR 28). The trial court denied the motion. (32 RR 29). The appellant

raises this matter in his seventh point of error. (Appellant’s Brief at 75-

79).

       The standard for analyzing outside-influence claims was recently

discussed by this Court in McQuarrie v. State, 380 S.W.3d 145 (Tex. Crim.
                                    42
App. 2012). This analysis consists of determining what outside influence

was exerted on the jury, and then determining whether “there is a

reasonable possibility that it had a prejudicial effect on the ‘hypothetical

average juror.’” McQuarrie, 380 S.W.3d at 154 (quoting federal caselaw).

This is an objective analysis performed by the courts in order to avoid

delving into jury deliberations as to whether the influence actually

affected the deliberations. Ibid.

      In Manley v. AmBase Corp., 337 F.3d 237 (2d Cir. 2003), the Second

Circuit identified “the three categories [of outside influences] that most

frequently raise prejudice concerns”: extra-record information being

conveyed to jurors; advise to jurors on how to decide the case; and

coercion. Manley, 337 F.3d at 252. What distinguishes these categories

of influence from this case is that they involve the actual conveyance of

information to the jury, and it is information whose effect can be

analyzed objectively by a court. When, for example, a U.S. marshal tells a

jury that there is no such thing as a hung jury and that the jurors will be

held until they reach a verdict, it is obvious that this would have some

impact on the jury’s deliberations. See Haugh v. Jones & Laughlin Steel

Corp., 949 F.2d 914, 919 (7th Cir. 1991).



                                    43
       Here, someone who had been in the court room — perhaps the

appellant’s brother, perhaps not — waved at a bus full of jurors and

smirked. That conveyed no information to the jury, thus this Court

cannot make an objective determination of what effect, if any, it would

have on a hypothetical average juror. Indeed, the testimony from the

jurors established that they did not know what to make of this.

Whatever fear they had came from a generalized apprehension that was

created by the nature of this case. The testifying jurors said that the

wave would have no impact on their deliberations going forward, thus it

seems reasonable to assume that it had no impact on their guilt-phase

deliberations.6

       The State can find no cases addressing the importance of a gesture

as an “outside influence.” The State urges this Court to hold that

ambiguous, non-verbal, non-communicative conduct from a non-party

would not influence a hypothetical average juror. The alternative

holding — that a wave and a “smirk” from a stranger on the street is

sufficient grounds to overturn a jury verdict — would open up too many

cases to claims of outside influence.


6 Had the jury interpreted the wave as a threat from the appellant’s family, and had
they allowed that threat to impact their deliberations, it seems that would have
pushed them toward acquittal, not conviction.
                                        44
                             Reply to Point Eight


The photo lineup was not impermissibly suggestive.

         Prior to trial, the appellant filed a boilerplate “Motion to Suppress

Identification” alleging that the State might attempt to introduce at trial

an identification that was tainted by impermissibly suggestive

procedures. (CR 2982-83). The trial court interpreted this motion as

challenging the admissibility of Wendy Bardales’s identification of the

appellant as the shooter. (25 RR 44). During Wendy’s testimony, but

before she identified the appellant as the killer, the trial court held a

hearing on the motion to suppress. (25 RR 44). After hearing from

Wendy, the police officer to whom she made the identification, and a

defense expert on eyewitness evidence, the trial court denied the

motion. (25 RR 178-79). In his eighth point the appellant asserts that

the trial court’s ruling was erroneous. (Appellant’s Brief at 79-90).


    I.      Factual Background

      Houston Police Sergeant Tommy Ruland was the lead investigator

on this case. (25 RR 79). He first spoke with Wendy on December 6, the

night of the murder. (25 RR 80). Although Wendy had seen the shooter’s



                                      45
face, his identity did not register with her and she told the police she did

not know who it was. (25 RR 48-51).

        The next day, based on information that Israel Diaz had some

connection to Hernandez, police showed Wendy a photo lineup that had

a picture of Diaz; Wendy picked him out as someone she knew but said

that he was not the shooter. (25 RR 51-53, 84-86; State’s Ex. 57). That

day Wendy also gave a sworn statement to police detailing what she saw

and what she remembered about the shooter’s appearance. (State’s Ex.

160).

        On December 12, police showed Wendy a different photo lineup,

this time including a picture of the appellant. (25 RR 88-89; State’s Ex.

56). Wendy “immediately” pointed out the picture of the appellant and

identified him as Apache. (25 RR 94-95). Wendy said that his face looked

“exactly like the shooter’s face.” (25 RR 95). This photo lineup is

attached to the State’s brief as an appendix.

        Regarding what happened next, there are mixed accounts in the

record. Wendy testified that in that interview on the 12th she told Ruland

that she was positive that the appellant was the shooter. (25 RR 54).

This is supported by the handwritten notes on the identification, where

Wendy wrote her name and “12/12/05” on the picture of the appellant.
                                    46
(State’s Ex. 56). On the back of the photo lineup card Wendy wrote a

note in Spanish that was translated to the trial court as stating, “I am

positive that he is the one that killed Eduardo.” (25 RR 55). That note is

not dated. Wendy testified that Ruland came back the next day to ask her

if she really was sure that the appellant was the shooter; Wendy testified

that there had probably been some lack of communication caused by her

limited English skills that had left Ruland confused to her degree of

certainty. (25 RR 56-57). At any rate, Wendy said that her identification

remained the same. (25 RR 56-57).

      Ruland testified from a slightly different perspective. According to

Ruland, in the December 12 interview Wendy had said that the appellant

“looked like” the shooter, but Ruland was not certain what she meant by

this. (25 RR 95). Ruland asked her to clarify, and she responded that

“the face was the same and that [the appellant] could be the shooter.”

(25 RR 96). In his investigation notes, Ruland did not categorize this

identification as positive, negative, or tentative, but instead noted that

he was confused by what Wendy had said. (25 RR 96-97).

      Ruland said that he spoke with Wendy again on December 13 to

clear up his confusion. (25 RR 97-98). Ruland said that when he told

Wendy that he wanted to clear up his own confusion, she repeated that
                                   47
the appellant “had the same face” as the shooter. (25 RR 100). Wendy

told Ruland that the shooter was wearing a hood, which is why she kept

talking about the face. (25 RR 100). Ruland asked Wendy to look at the

photo spread again, this time covering up the hair on each picture to

simulate the effects of wearing a hood. (25 RR 100). According to

Ruland, Wendy’s “eyes became wide and she covered her mouth. Her

eyes started watering. She then said Apache did the killing. She stated

she was absolutely positive the male in the picture was the same male

that killed [Hernandez].” (25 RR 101). According to Ruland, it was at this

point that Wendy “wrote some things on the back [of the photo lineup].”

(25 RR 101).

      After Ruland testified, the defense presented Roy Malpass, a

professor at the University of Texas — El Paso and an expert regarding

eyewitness identification. (25 RR 122-124). Malpass testified that he

had some “concerns” about the photo lineup from which Wendy

identified the appellant. (25 RR 137). He believed that the fillers on the

photo lineup were not sufficiently similar to the appellant: the appellant

was the only one with “a distinct mark on his left cheek,” the appellant

was the only one wearing a black hoodie, and three of the people did not

have haircuts that could be characterized as “fades,” which is how
                                   48
Wendy originally described the suspect. (25 RR 138-39; see State’s Ex.

56). On a 10-point scale of quality, with 10 being the best, Malpass

characterized the lineup in this case as being a 2 or a 3, and stated that

there was “a substantial likelihood that a misidentification has been

made in this case.” (25 RR 150-51). However, Malpass later clarified this

comment by stating that he was not commenting on the actual accuracy

of Wendy’s identification, but rather he was commenting “about

whether the photo spread and the procedures used would lend

themselves towards error.” (25 RR 158-59).

      Malpass provided some generalized testimony concerning

problems with eyewitness identifications. (25 RR 139-145). He then

said that when witnesses make multiple identifications, generally the

first identification is the most reliable and subsequent identifications

become more and more subject to outside pressures. (25 RR 145). In

this case, he said that because Ruland went back to speak with Wendy

on December 13, it signaled that something was wrong with the

December 12 identification and that is why Wendy’s identification

became more certain on the 13th. (25 RR 145-46).

      After Malpass’s testimony, the trial court made findings of fact. It

found that the lineup did not appear impermissibly suggestive: “[T]he
                                   49
suspect did not stand out in the six-phot photo array, all subjects … all

light-skinned Hispanic males, they were all of the same general build, all

of the same general age range, all had short haircuts.” (25 RR 178; see

State’s Ex. 56). The trial court then found that even if the photo lineup

were impermissibly suggestive, under controlling legal authority “the

totality of the circumstances reveals no substantial likelihood of

misidentification … and [Wendy’s] identification testimony is deemed

reliable after reviewing the five factors set out in [Webb v. State, 760

S.W.2d 263 (Tex. Crim. App. 1988)].” The trial court denied the

appellant’s motion to suppress. (25 RR 179).

         Wendy testified in front of the jury, over the appellant’s objection,

regarding her pre-trial identification. (25 RR 191-95). She then

identified the appellant in the courtroom. (25 RR 197).


   II.      Legal Background

      A pre-trial identification, and any ensuing in-court identification,

must be excluded if the procedure police use to obtain the pre-trial

identification is so overly suggestive and conducive to mistaken

identification that it infringes upon a defendant’s Fourteenth

Amendment right to due process of law. See Barley v. State, 906 S.W.2d


                                      50
27, 32-33 (Tex. Crim. App. 1995). In determining whether an in-court

identification is properly admissible, courts assess: (1) whether the

police used an impermissibly suggestive identification procedure for the

pre-trial identification; and (2) whether the procedure resulted in a

substantial likelihood of irreparable misidentification. Barley, 906

S.W.2d at 33. This two-step analysis also depends upon an evaluation of

the totality of the circumstances. Stovall v. Denno, 388 U.S. 293, 302

(1967). Identification testimony is admissible if the totality of the

circumstances reveals no “substantial likelihood of misidentification.”

Cooks v. State, 844 S.W.2d 697, 731 (Tex. Crim. App. 1992); Webb, 760

S.W.2d 263, 269 (Tex. Crim. App. 1988). A defendant bears the burden to

demonstrate by clear and convincing evidence that the pre-trial

identification is unreliable. Cooks, 844 S.W.2d at 731; Harris v. State, 827

S.W.2d 949, 959 (Tex. Crim. App. 1992).

      If a court believes that the procedure was suggestive, to determine

whether that procedure created a likelihood of false identification there

are five factors to look at: 1.) The opportunity of the witness to view the

criminal at the time of the crime; 2.) The witness’s degree of attention;

3.) The accuracy of the witness’s prior description of the criminal;

4.) The level of certainty demonstrated by the witness at the
                                    51
confrontation; and 5.) The length of time between the crime and the

confrontation. Loserth v. State, 963 S.W.2d 770, 772-73 (Tex. Crim. App.

1998) (citing Neil v. Biggers, 409 U.S. 188, 199 (1972)).

      Whether      a   photographic       identification    procedure   was

impermissibly suggestive is a mixed question of law and fact that does

not turn on an evaluation of credibility and demeanor; therefore the

trial court’s decision is reviewed de novo. See Id. at 772-73. However,

whether, under the totality of the circumstances, there was a substantial

likelihood of misidentification is question of historical fact, and as such

an appellate court gives deference to the trial court’s findings. Id. at 773-

74.


   III.   Argument

            A. The appellant did not “st[i]ck out like a sore thumb”
               in the photo lineup.

      The appellant claims that the photo lineup was “obviously

suggestive” for three reasons: “The Appellant’s photo was the only one

of the six with a mark on his face and the only person wearing a hoodie.

… Appellant was the only individual closely resembling the pre-

procedure description.” (Appellant’s Brief at 83-84). According to the



                                     52
appellant, this made his picture “st[i]ck out like a sore thumb.”

(Appellant’s Brief at 84).

      In her statement, Wendy gave the following description of the

shooter:

      He was Hispanic and about 16-17 years old. He was around
      5 foot 6 inches to 5 foot 7 inches tall. I remember him having
      a dark birth mark on his face but I can’t remember exactly
      where. He was very skinny and clean shaven. He had black
      hair, it was short. He had a fade type haircut. He was
      wearing a black sweat shirt hooded jacket and khaki pants.

(State’s Ex. 160).

      Looking at the photo lineup, there are numerous similarities

between all six: They are all young, Hispanic men who might plausibly

be in their late teens; they all have short black hair; and, except for one

with a light mustache, are clean-shaven. Several of them might well

qualify as “skinny,” which is a fairly subjective term, particularly when

all that is shown is the face. In none of the six pictures is it apparent how

tall the individuals were. Additionally, at the time of the photo lineup

Wendy was admonished that individuals might be wearing different

clothing in the photo lineup, that their hair might be different, or that

their skin tone might be different depending on the lighting. (25 RR 91).




                                     53
      As to the supposed differences that the appellant points out in his

brief, the State disputes his assertion that none of the other individuals

were wearing a hoodie or had a mark on his face. The appellant’s picture

appears in the middle of the bottom row. In the left-hand picture on the

bottom row is an individual wearing a grey hoodie. In the right-hand

picture of the upper row is an individual wearing some sort of black

sweater or jacket with a thick collar that could be a hoodie with the

hood inverted. At any rate, Wendy was advised that the individuals could

be wearing different attire than on the night of the killing. (25 RR 91).

      Regarding the mark on his face, the individual in the left side of

the top row has a mark on the left side of his neck and perhaps a mark

on the left side of his face. The individual in the middle of the top row

has some sort of injury or tattoo on the left side of his face that is at least

as prominent as the mark on the left side of the appellant’s face. For the

other three individuals, they all have parts of their faces obscured by

shadow or camera angle; because Wendy said she did not remember

which part of his face had a mark on it, it is possible that the mark could

have been in one of these obscured areas.




                                      54
            B. The totality of the circumstances does not show a
               substantial likelihood of misidentification.

      Reviewing the Biggers factors shows that there is adequate

support for the trial court’s finding that the totality of the circumstances

does not show a substantial likelihood of misidentification. Wendy

testified that she had a good opportunity to view the shooter when his

hood fell off. (25 RR 47-48). Wendy said that, though she was shocked

and could not move during the shooting, she kept her eyes on the

shooter. (25 RR 46).

      Regarding the third Biggers factor, Wendy gave police a

description of the shooter that fairly well matches up with the appellant.

(State’s Ex. 160). In his brief, the appellant takes conflicting positions on

the accuracy of her description. In arguing that the lineup was too

suggestive, he asserts that the appellant was “the only individual closely

resembling the pre-procedure description.” (Appellant’s Brief at 84).

However, in his argument about the totality of the circumstances he

asserts that Wendy’s pre-identification description was “way off.”

(Appellant’s Brief at 87).

      The State believes that the appellant was correct the first time.

The only inaccuracies he mentions from her pre-identification are


                                     55
irrelevant. First, he points out that she originally said that the shooter

had a black gun, but the murder weapon turned out to be black.

(Appellant’s Brief at 87). This does not detract from the accuracy of her

description of the shooter; indeed, it could add to because it

demonstrates that she was looking at the shooter’s face and not the gun.

(See 25 RR 142-44 (defense expert describing how “weapon focus”

sometimes causes witnesses to focus on a gun rather than the shooter’s

face)).

      The second inaccuracy that the appellant points to is that Wendy

originally told the police that the shooter had a “birth mark,” but at trial

she described the mark on the appellant’s face as a “mole.” (Compare

State’s Ex. 160 to 25 RR 71-72). Considering that English was not

Wendy’s first language, any failure on her part to grasp the difference

between a mole and a birthmark is such a minor thing that this Court

should disregard it. See American Academy of Dermatology, “Different

Kinds of Birthmarks,” https://www.aad.org/dermatology-a-to-z/for-

kids/about-skin/birthmarks/different-kinds-of-birthmarks (last visited

June 24, 2015) (“If you are born with a mole, it is considered a

birthmark.… But not all moles are birthmarks.”).



                                    56
      The third inaccuracy that the appellant points out is that Wendy

originally told police that the appellant fired at her repeatedly, but the

ballistics from the crime scene showed that this had not been the case.

(Compare State’s Ex. 160 to 28 RR 121, 123). However, the ballistics

testimony was not admitted until after the trial court ruled on the

motion to suppress, thus the appellant cannot use that fact to assert that

the trial court abused its discretion in denying his motion to suppress.

See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000)

(rulings on motion to suppress reviewed based on evidence before trial

court at time of ruling). Additionally, this inaccuracy does not

undermine Wendy’s identification of the shooter.

      Regarding the fourth and fifth Biggers factors, Wendy made her

identification within a week of the shooting, and she was completely

certain in that identification, even if there was some confusion in how

that certainty was conveyed to the police.

      In conclusion, the lineup in this case was not impermissibly

suggestive. Moreover, the trial court’s determination that, even if there

were a level of suggestiveness, the totality of the circumstances do not

show a substantial chance of misidentification is well-supported by the



                                   57
record and this Court should defer to that determination and overrule

the appellant’s eighth point of error.


                           Reply to Point Nine


The jury’s note to the trial court did not indicate a point of
disagreement, therefore the trial court was correct in its decision
not to have testimony read back in response to that note.

      The jury in this case was uncommonly communicative, sending

out no fewer than 22 requests for testimony to be read back to them, in

addition to numerous notes requesting physical evidence. (See CR 3285-

3319). The appellant’s ninth point of error relates to the trial court’s

determination that one of these notes did not reflect a disagreement

about testimony and thus there was no need to have the requested

testimony read back to the jury.

      On the first day of deliberation, the jury sent out a note that

concerned the testimony of Sergeant Ruland and asked “to hear when

the defense asked Officer [Ruland] if he would question Wendy’s

credibility if she knew [the appellant] prior to the incident.” (CR 3295).

The trial court replied in writing that there was “no testimony in the

record that is specifically responsive to the question.” (CR 3296). The

trial court asked the jurors to “explain the dispute that you have among

                                    58
yourselves” so that it could “find a responsive answer.” (CR 3296). The

next day the jury sent out a note requesting “to hear [Ruland’s]

testimony where the witness was asked if Wendy’s credibility would be

different if there was evidence that her relationship with [the appellant]

was more involved.” (CR 3297).

      The parties held a discussion on the record concerning this

second note. (31 RR 4-7). The reporter’s record seems to pick up mid-

discussion, because defense counsel asked to have testimony read back

to the jury, though he did not specify what testimony he wished to have

read back. (31 RR 4-5). A prosecutor then replied that she believed the

question concerned different testimony than that which defense counsel

wished to have read back. (31 RR 5). The trial court said that it would

reply to the note by instructing the jurors “to be specific as to the point

in dispute.” (31 RR 5; see CR 3297). Defense counsel “vehemently

object[ed]” to this, stating that the trial court’s response was

“disrespecting the jury” because “[t]hey have clearly indicated what it is

that they want.” (31 RR 5). The trial court overruled this objection. (31

RR 6).

      The defense then admitted into evidence Defendant’s Exhibit 9,

which is a portion of testimony in which Ruland explained that Wendy
                                    59
said she had last seen the appellant “approximately six months” prior to

the shooting. (Def.’s Ex. 9). In the testimony, Ruland was asked whether

“if [Wendy] had later said to investigators or testified that it was two

weeks prior to the incident, would that cause you to question her

credibility or veracity?” (Def.’s Ex. 9). Ruland replied, “Yes.” (Def.’s Ex. 9).

      On appeal, a trial court’s decision of whether to have testimony

read back to the jury in response to a question is reviewed only for an

abuse of discretion. Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App.

2005). Article 36.28 authorizes trial courts to have testimony read back

to the jury, but only if there is “disagree[ment] as to the statement.” TEX.

CODE CRIM. PROC. art. 36.28. The jury must indicate its disagreement to

the trial court so that the trial court will know what testimony is

responsive to that disagreement. Moore v. State, 874 S.W.2d 671, 674

(Tex. Crim. App. 1994). “[A] request for testimony, without more, is not

an indication of implicit disagreement.” Ibid.

      The jury’s note in this case did not indicate disagreement. Even

after the trial court requested that the jury “explain the dispute,” the

jury’s note consisted only of a statement that they wanted to hear

particular testimony. (CR 3297). While it is true, as the appellant points

out, that the case law allows a trial court in this situation to infer a
                                      60
dispute, nothing in the case law requires a trial court to do so. Cf.

Robison v. State, 888 S.W.2d 473, 481 (Tex. Crim. App. 1994) (where trial

court replies to jury note by instructing on need for disagreement and

jury sends back note not explicitly mentioning disagreement, trial court

does not abuse discretion by inferring disagreement). Here, because the

jury note did not describe a point that was in dispute, the trial court did

not abuse its discretion by not having testimony read back to the jury.

      Moreover, it is worth noting that the testimony in Defendant’s

Exhibit 9 is not responsive to the jury’s request. The jurors asked for

testimony regarding how Wendy’s “relationship” with the appellant

would impact Ruland’s assessment of her credibility. In the context of

the trial, this “relationship” question was plainly a reference to Wendy’s

testimony that she had hung out at the appellant’s apartment a few

times and talked with the appellant. (See 26 RR 61). Defense counsel

asked Wendy if the appellant had grabbed Wendy by the hair and

thrown her out of his apartment and Wendy replied that she did not

recall that happening. (26 RR 61-62). Ruland did not testify to the

“relationship” between Wendy and the appellant; the testimony in

Defendant’s Exhibit 9 regards when Wendy had last seen the appellant,

not the depth of their relationship.
                                       61
      The trial court did not abuse its discretion in declining to have an

irrelevant section of testimony read back to the jury in response to a

note that did not indicate a point in dispute. This Court should reject the

appellant’s ninth point.




                                    62
                                 Conclusion

      The State respectfully submits that all things are regular and the

judgment of the trial court should be affirmed.

                                              DEVON ANDERSON
                                              District Attorney
                                              Harris County, Texas


                                              /s/ C.A. Morgan
                                              CLINTON A. MORGAN
                                              Assistant District Attorney
                                              Harris County, Texas
                                              1201 Franklin, Suite 600
                                              Houston, Texas 77002
                                              713.755.5826
                                              Texas Bar No. 24071454




                                   63
                 Certificate of Compliance and Service

      I certify that, according to Microsoft Word’s word counting

function, the portion of this brief for which Rule of Appellate Procedure

9.4(i)(1) requires a word count contains 13,183 words.

      I also certify that I have requested that efile.txcourts.gov

electronically serve a copy of this brief to:

      R. Scott Shearer
      shearerleagl@yahoo.com

                                                /s/ C.A. Morgan
                                                CLINTON A. MORGAN
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002-1923
                                                (713) 755-5826
                                                Texas Bar No. 24071454


Date: June 24, 2015




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Appendix: State’s Exhibit 56
