                                                                                                           ACCEPTED
                                                                                                      13-14-00457-CR
        FILED                                                                         THIRTEENTH COURT OF APPEALS
                                                                                             CORPUS CHRISTI, TEXAS
IN THE 13TH COURT OF APPEALS                                                                     9/18/2015 2:52:01 PM
        CORPUS CHRISTI                                                                               Dorian E. Ramirez
                                                                                                                CLERK
         09/18/15
DORIAN E. RAMIREZ, CLERK                 CAUSE NO. 13-14-00457-CR
BY cholloway
                                                                  RECEIVED IN
                                                            13th COURT OF APPEALS
                                     IN THE COURT OF APPEALS
                                                         CORPUS CHRISTI/EDINBURG, TEXAS
                                                             9/18/2015 2:52:01 PM
                               THIRTEENTH JUDICIAL DISTRICT OFDORIAN
                                                                 TEXAS E. RAMIREZ
                                                                     Clerk

                                  CORPUS CHRISTI - EDINBURG, TEXAS


                                           VICTOR HERNANDEZ,
                                                Appellant

                                                       v.

                                              STATE OF TEXAS,
                                                  Appellee.


                                On appeal from the 357th Judicial District Court
                                          of Cameron County, Texas
                                Trial Court Cause Number 2013-DCR-01953-E


                                        STATE’S APPELLATE BRIEF


                                                     Luis V. Saenz
                                                     Cameron County District Attorney

                                                     René B. González
                                                     Assistant District Attorney
                                                     964 East Harrison Street, 4th Floor
                                                     Brownsville, Texas 78520
                                                     Phone: (956) 544-0849
                                                     Fax: (956) 544-0869

                                                     Attorneys for the State of Texas
                                           TABLE OF CONTENTS

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Salutation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Argument and Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

         State’s response to points of error one through 18. . . . . . . . . . . . . . . . . . . . . 3

         State’s response to points of error 19 through 26.. . . . . . . . . . . . . . . . . . . . . 6

         State’s response to points of error 27 through 44.. . . . . . . . . . . . . . . . . . . . 10

         State’s response to points of error 45 and 46. . . . . . . . . . . . . . . . . . . . . . . . 14

         State’s response to points of error 47 and 48. . . . . . . . . . . . . . . . . . . . . . . . 17

         State’s response to points of error 49 and 50. . . . . . . . . . . . . . . . . . . . . . . . 22

         State’s response to point of error 51. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30




                                                              -i-
                                   INDEX OF AUTHORITIES

Cases

Anderson v. State,
     633 S.W.2d. 851 (Tex. Crim. App. 1982).. . . . . . . . . . . . . . . . . . 8, 10, 11, 12

Brooks v. State,
     961 S.W.2d 396 (Tex. App.--Houston [1st Dist.] 1997, no writ).. . . . . 23, 24

Cardenas v. State,
     325 S.W.3d 179 (Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . . . . . 5, 13, 14

Cortez v. State,
      683 S.W.2d 419 (Tex. Crim. App. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Cumbo v. State,
    760 S.W.2d 251 (Tex. Crim. App. 1988). . . . . . . . . . . . . . . . . . . . . . . . . 5, 12

Dewberry v. State,
     4 S.W.3d 735 (Tex. Crim. App. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Dinkins v. State,
      894 S.W.2d 330 (Tex. Crim. App. 1995). . . . . . . . . . . . . . . . . . . . . . . . 15, 17

Doyle v. Ohio,
      426 U.S. 610 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Duncan v. Louisiana,
     391 U.S. 145 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Faulder v. State,
     745 S.W.2d 327 (Tex. Crim. App. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Faulkner v. State,
     940 S.W.2d 308 (Tex. App.--Fort Worth 1997, pet. ref’d). . . . . . . . . . . . . 15



                                                      -ii-
Feldman v. State,
     71 S.W.3d 738 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Fletcher v. State,
      852 S.W.2d 271 (Tex. App.--Dallas 1993, pet. ref’d). . . . . . . . . . . . . . 19, 20

Hernandez v. State,
     563 S.W.2d 947 (Tex. Crim. App. 1978). . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Hudson v. State,
     675 S.W.2d 507 (Tex. Crim. App. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Johnson v. State,
     83 S.W.3d 229 (Tex. App.--Waco 2002, pet. ref’d). . . . . . . . . . . . . . . . . . . 22

Jones v. State,
      982 S.W.2d 386 (Tex. Crim. App. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Jordan v. State,
     635 S.W.2d 522 (Tex. Crim. App. 1982). . . . . . . . . . . . . . . . . . . . . . . . . 5, 12

Ladd v. State,
      3 S.W.3d 547 (Tex. Crim. App. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Little v. State,
       758 S.W.2d 551 (Tex. Crim. App. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Mendoza v. State,
     959 S.W.2d 321 (Tex. App.--Waco 1997, pet. ref’d). . . . . . . . . . . . . . . . . . 20

Moore v. State,
     999 S.W.2d 385 (Tex. Crim. App. 1999). . . . . . . . . . . . . . . . . . 5, 6, 9, 13, 14

Moreno v. State,
     38 S.W.3d 774 (Tex. App.--Houston [14th Dist.] 2001, no pet.).. . . . . . . . 24




                                                -iii-
Patton v. Yount,
      467 U.S. 1025 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Peoples v. State,
      874 S.W.2d 804 (Tex. App.--Fort Worth 1994, no pet.). . . . . . . . . . . . . . . 24

Pierce v. State,
      696 S.W.2d 899 (Tex. Crim. App. 1985). . . . . . . . . . . . . . . . . . . . . . . . . 5, 12

Reynolds v. United States,
     98 U.S. 145 (1879). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Robinson v. State,
     851 S.W.2d 216 (Tex. Crim. App. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Rodriguez v. State,
      649 S.W.2d 329 (Tex. App.--Corpus Christi 1983, no pet.). . . . . . . . . 15, 16

Ross v. Oklahoma,
      487 U.S. 81 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Sanchez v. State,
     707 S.W.2d 575 (Tex. Crim. App. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Shaver v. State,
     280 S.W.2d 740 (Tex. Crim. App. 1955). . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Spaulding v. State,
      656 S.W.2d 538 (Tex. App.--Corpus Christi 1983, pet. ref’d).. . . . . . . . . . 16

Stavinoha v. State,
      808 S.W.2d 76 (Tex. Crim. App. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Veteto v. State,
      8 S.W.3d 805 (Tex. App.--Waco 2000, pet. ref’d). . . . . . . . . . . . . . 19, 20, 21




                                                       -iv-
Wainwright v. Witt,
     469 U.S. 412 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Waldo v. State,
     746 S.W.2d 750 (Tex. Crim. App. 1988). . . . . . . . . . . . . . . . . . . . . 19, 20, 21

Walter v. State,
      267 S.W.3d 883 (Tex. Crim. App. 2008). . . . . . . . . . . . . . . . . . . . . 25, 26, 27

Wilkerson v. State,
      510 S.W.2d 589 (Tex. Crim. App. 1974). . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Williams v. State,
      417 S.W.3d 162 (Tex. App.--Houston [1st Dist.] 2013, . . . . . . . . . . . . . . . 16

Williams v. State,
      565 S.W.2d 63 (Tex. Crim. App. 1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Williams v. State,
      773 S.W.2d 525 (Tex. Crim. App. 1988). . . . . . . . . . . . . . . . . . . . . . . . . 4, 12

Wood v. State,
     18 S.W.3d 642 (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Woodall v. State,
    77 S.W.3d 388 (Tex. App.--Fort Worth 2002, pet. ref’d). . . . . . . . . . . 14, 15

Zuliani v. State,
      97 S.W.3d 589 (Tex. Crim. App. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Statutes

Tex. Const. art. I, § 10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Tex. Code Crim. Proc. art. 35.16(a)(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Tex. Code Crim. Proc. art. 35.16(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 4

                                                          -v-
Tex. Code Crim. Proc. art. 37.07 § 3(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Rules

Tex. R. App. P. 38.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Tex. R. Evid. 803(24). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26




                                                         -vi-
                         CAUSE NO. 13-14-00457-CR
                   ____________________________________

                        IN THE COURT OF APPEALS

                THIRTEENTH JUDICIAL DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG, TEXAS
                  ____________________________________

                            VICTOR HERNANDEZ,
                                 Appellant

                                         v.

                            STATE OF TEXAS,
                                 Appellee
                   ____________________________________

                       STATE’S APPELLATE BRIEF
                   ____________________________________

TO THE HONORABLE COURT OF APPEALS:

       COMES NOW, Appellee, the STATE OF TEXAS, by and through the

Cameron County District Attorney, the Honorable Luis V. Saenz, and, pursuant to

Rule 38.2 of the Texas Rules of Appellate Procedure, files this, its Appellate Brief

in the above-styled and -numbered cause of action, and in support thereof, would

show this Honorable Court as follows:




State’s Brief                                                                 Page 1
                          SUMMARY OF ARGUMENT

       Appellant raises fifty-one points of error on appeal. In points of error one

through 18, Appellant argues that the trial court erred in failing to sustain a

challenge for cause to the eighteen panel members listed in these points, and

thereby violated article 35.16(c)(2) of the Texas Code of Criminal Procedure. The

State responds by asserting that Appellant has failed to demonstrate any error. In

points of error 19 through 26, Appellant complains that he was denied a fair and

impartial trial as guaranteed by the Sixth Amendment to the U.S. Constitution,

because the jury consisted of eight unqualified jurors. The State responds by

asserting that Appellant has not demonstrated that he has suffered a violation of

the Sixth Amendment. In points of error 27 through 44, Appellant argues that he

was denied his Sixth Amendment right to a fair and impartial jury when the trial

court re-qualified eighteen panel members. The State responds by asserting that

Appellant’s Sixth Amendment right has not been violated. In points of error 45

and 46, Appellant argues that the trial court erred in not granting a mistrial during

the State’s closing argument. The State responds by asserting that the trial court

did not err in denying Appellant’s request for a mistrial. In points of error 47 and

48, Appellant complains that the trial court erred in not granting a mistrial relating

to a comment on the Appellant’s post-arrest silence. The State responds by

State’s Brief                                                                     Page 2
asserting that the trial court did not err in denying the request for mistrial. In

points of error 49 and 50, Appellant complains that the trial court erred in allowing

the victim’s father to testify to certain matters that amounted to victim impact

statements. The State responds by asserting that the trial court did not err in

allowing the victim’s father to testify concerning the foreseeable effects of

Appellant’s crime on the victim’s immediate family. In point of error 51,

Appellant complains that the trial court erred allowing the admission of hearsay

evidence before the jury. The State responds by asserting that the trial court did

not err in admitting said hearsay, and further, Appellant has failed to preserve this

issue for appellate review.



                         ARGUMENT & AUTHORITIES

State’s response to points of error one through 18

       In points of error one through 18, Appellant argues that the trial court erred

in failing to sustain a challenge for cause to the eighteen panel members listed in

these points, and thereby violated article 35.16(c)(2) of the Texas Code of

Criminal Procedure. The State responds by asserting that Appellant has failed to

demonstrate any error.

       Appellant’s first eighteen issues relate to the eighteen jury panel members

State’s Brief                                                                        Page 3
whom he similarly challenged under “range of punishment” and whom the trial

court did not release from the jury list by either granting that challenge or

otherwise excusing the jurors through the State’s agreement or on other

challengeable grounds. Appellant argues that these panel members’ negative

responses to his question show that they could not follow the law by considering

the minimum punishment and that they were therefore challengeable for cause.

Tex. Code Crim. Proc. art. 35.16(c)(2); see also Faulder v. State, 745 S.W.2d 327,

339 (Tex. Crim. App. 1987) (explaining that it is “axiomatic that a prospective

juror who states that he cannot consider [the full range of punishment] is subject to

challenge for cause”) (citation omitted). However, the State responds by asserting

that the trial court did not err in refusing to sustain the challenges for cause as to

these panel members, because further questioning by the court indicated that they

were not subject to a challenge for cause.

       The Court of Criminal Appeals has held that once a juror expressly admits

his bias against a phase of law upon which both the State and defense are entitled

to rely, a sufficient foundation has been laid to support a challenge for cause. See

Williams v. State, 773 S.W.2d 525, 536 (Tex. Crim. App. 1988) (holding that a

juror is biased as a matter of law if he unequivocally expresses an inability to

consider five years probation as possible punishment for the lesser-included

State’s Brief                                                                      Page 4
offense of murder in a capital-murder trial); see also Jordan v. State, 635 S.W.2d

522, 523 (Tex. Crim. App. 1982) (reversible error to deny a defendant’s challenge

for cause against a juror who could not consider probation for the lesser-included

offense of murder in a capital murder case). Therefore, a juror who states that he

cannot consider the minimum punishment for a particular statutory offense is

subject to a challenge for cause. Cumbo v. State, 760 S.W.2d 251, 255–56 (Tex.

Crim. App. 1988); Pierce v. State, 696 S.W.2d 899, 902 (Tex. Crim. App. 1985)

(defendant has the right to challenge for cause any juror who could not give the

minimum punishment, including probation). Nevertheless, the Court of Criminal

Appeals has also explicitly stated that once a juror states he cannot consider the

minimum punishment for a particular offense, the “opposing party or trial judge

may then examine the juror further to ensure that he fully understands and

appreciates the position that he is taking.” Cardenas v. State, 325 S.W.3d 179,

185 (Tex. Crim. App. 2010); see also Moore v. State, 999 S.W.2d 385, 400 (Tex.

Crim. App. 1999) (“When the record reflects that a venireman vacillates or

equivocates on his ability to follow the law, the reviewing court must defer to the

trial court.”). Unless there is further clarification or vacillation by the juror, the

trial judge must grant a challenge for cause if the juror states that he cannot

consider the full range of punishment. Cardenas, 325 S.W.3d at 185.

State’s Brief                                                                     Page 5
       In the present case, numerous panel members stated that they could not

consider probation in the present case. (R.R. Vol. 2, pp. 45-46). Thereafter, these

panel members, being the panel members mentioned in points of error one through

18, were asked additional questions concerning their ability to follow the full

range of punishment. (R.R. Vol. 2, pp. 66-70). All of these panel members

clarified that they could consider the full range of punishment. Because there was

further clarification that these panel members could follow the law and could

consider the full range of punishment, this Court must defer to the trial court’s

decision to deny the challenge for cause. Moore, 999 S.W.2d at 400.

       Therefore, Appellant’s points of error one through eighteen should be

overruled.



State’s response to points of error 19 through 26

       In points of error 19 through 26, Appellant complains that he was denied a

fair and impartial trial as guaranteed by the Sixth Amendment to the U.S.

Constitution, because the jury consisted of eight unqualified jurors. The State

responds by asserting that Appellant has not demonstrated that he has suffered a

violation of the Sixth Amendment.

       The Sixth Amendment does guarantee individuals the right to an impartial

State’s Brief                                                                     Page 6
jury; however, the Courts have interpreted this right to mean that a challenge for

cause to a prospective juror, that is based on his views about the appropriateness

of a certain punishment, need not be granted unless the views of the prospective

juror would substantially impair the performance of his duties as a juror in

accordance with his instructions and oath. Wainwright v. Witt, 469 U.S. 412, 424

(1985); Robinson v. State, 851 S.W.2d 216, 228 (Tex. Crim. App. 1991). In other

words, neither peremptory challenges nor challenges for cause are of

constitutional dimension. See Ross v. Oklahoma, 487 U.S. 81, 88 (1988); Jones v.

State, 982 S.W.2d 386, 391 (Tex. Crim. App. 1998). So long as the jury that sits is

impartial, a mere error in ruling on a challenge for cause does not mean the Sixth

Amendment was violated. Ross, 487 U.S. at 88; Jones, 982 S.W.2d at 391.

       As with any other trial situation where an adversary wishes to exclude a

juror because of bias, then, it is the adversary seeking exclusion who must

demonstrate, through questioning, that the potential juror lacks impartiality. See

Reynolds v. United States, 98 U.S. 145, 157 (1879). It is then the trial judge’s duty

to determine whether the potential juror is impartial. Wainwright, 469 U.S. at

423-24; see also Patton v. Yount, 467 U.S. 1025, 1036 (1984) (where a criminal

defendant sought to excuse a juror for cause and the trial judge refused, the

question was simply “did [the] juror swear that he could set aside any opinion he

State’s Brief                                                                   Page 7
might hold and decide the case on the evidence, and should the juror’s

protestations of impartiality have been believed”). Therefore, when a defendant

complains that his Sixth Amendment right to a fair and impartial jury has been

violated, it is that defendant’s burden to demonstrate that the persons selected to

serve on the jury were not, in fact, fair and impartial. An impartial jury is one

which favors neither party, which is unprejudiced, disinterested, equitable, and

just and is composed of jurors who have not prejudged the merits of the case.

Shaver v. State, 280 S.W.2d 740, 742 (Tex. Crim. App. 1955). On the other hand,

bias exists, as a matter of law, when a prospective juror admits he is biased for or

against a defendant. Anderson v. State, 633 S.W.2d. 851, 854 (Tex. Crim. App.

1982). When bias is not established as a matter of law, the trial court then has

discretion to determine whether bias actually exists to a degree that the juror is

disqualified and should be excused from jury service. Id. at 853-54.

       In the present case, jurors listed in points of error 19 through 26 first stated

that they could not consider the full range of punishment; however, on further

examination by the court, the jurors all stated that they could follow the law and

consider the full range of punishment. The trial judge then ruled that these jurors

were not subject to a challenge for cause, thus implicitly ruling that these jurors

were fair and impartial. Appellant has not demonstrated that the trial court abused

State’s Brief                                                                     Page 8
its discretion in making such ruling.

       The facts herein demonstrate that the jurors listed in points of error 19

through 26 all initially stated that they could not consider the full range of

punishment. (R.R. Vol. 2, pp. 45-46). Thereafter, these panel members, including

Esmeralda Valdez, Eddie Jaimes, Myrna Stockton, Roman Torres, Eduardo

Gonzalez, Maria Delourdes Liendo, Norberto Flores, Jr., and Belinda Zavala (the

jurors listed in points of error 19 through 26), were asked additional questions

concerning their ability to follow the full range of punishment. (R.R. Vol. 2, pp.

66-75). All of these panel members clarified that they could consider the full

range of punishment. Because there was further clarification that these panel

members could follow the law and could consider the full range of punishment,

this Court must defer to the trial court’s decision to deny the challenge for cause.

Moore, 999 S.W.2d at 400. Appellant has not provided any basis upon which to

find that the answers of these jurors are not to be believed, and therefore,

Appellant has failed to demonstrate that his case was not heard by a fair and

impartial jury.

       Accordingly, Appellant’s points of error 19 through 26 should be overruled.




State’s Brief                                                                      Page 9
State’s response to points of error 27 through 44

       In points of error 27 through 44, Appellant argues that he was denied his

Sixth Amendment right to a fair and impartial jury when the trial court re-qualified

eighteen panel members. The State responds by asserting that Appellant’s Sixth

Amendment right has not been violated.

       Appellant argues that based on the record the potential jurors listed in points

of error 27 through 44 were biased as a matter of law; therefore, the trial court was

required to excuse him even if he stated he could set aside his bias and provide a

fair trial. See Williams v. State, 565 S.W.2d 63, 65 (Tex. Crim. App. 1978).

Appellant does not argue that these persons were not rehabilitated - he argues only

that such rehabilitation was erroneously permitted, and that these persons should

have been excused for cause because they was biased as a matter of law.

       Appellant relies on various authorities, including Anderson v. State, 633

S.W.2d 851 (Tex. Crim. App. 1982). Distilled, Appellant’s argument is that if a

challenged prospective juror is biased as a matter of law, the juror must be struck

and cannot be rehabilitated; and bias as a matter of law exists when the

prospective juror admits he is biased for or against the defendant. Id. at 854.

Hence, being biased as a matter of law, Appellant argues, these potential jurors

should have been struck and not subject to rehabilitation by the State. The State

State’s Brief                                                                  Page 10
responds, however, that the initial statement of these potential jurors did not admit

they had any sort of “personal issue” or that the issue was a bias against Appellant.

Rather, these prospective jurors noted that they had a problem with the law, as it

had been explained to them.

       The Sixth Amendment to the United States Constitution guarantees that in

all criminal prosecutions the defendant is entitled to a trial “by an impartial jury.”

This right is applicable to the States through the Fourteenth Amendment. Duncan

v. Louisiana, 391 U.S. 145 (1968); see also Hernandez v. State, 563 S.W.2d 947,

950 (Tex. Crim. App. 1978). A party may challenge any prospective juror who

demonstrates a bias or prejudice against the defendant. Tex. Code Crim. Proc. art.

35.16(a)(9). The test is whether the bias or prejudice would substantially impair

the prospective juror’s ability to carry out his oath and instructions in accordance

with the law. Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002). Bias

is established as a matter of law when a prospective juror admits he is biased for or

against the defendant. Anderson, 633 S.W.2d at 854. When a prospective juror is

shown to be biased as a matter of law, he must be excused when challenged, even

if he states he can set aside his bias and provide a fair trial. Anderson, 633 S.W.2d

at 854. When bias is not established as a matter of law, the trial court then has

discretion to determine whether bias actually exists to a degree that the juror is

State’s Brief                                                                   Page 11
disqualified and should be excused from jury service. Id. at 853-54. It is left to

the discretion of the trial court, however, to initially determine whether such a bias

exists and the trial court’s decision will be reviewed in light of all of the answers

given. Id. Unless bias or prejudice is established as a matter of law, the appellate

court cannot overturn the trial court’s ruling. Little v. State, 758 S.W.2d 551, 556

(Tex. Crim. App. 1988).

       The Court of Criminal Appeals has held that once a juror expressly admits

his bias against a phase of law upon which both the State and defense are entitled

to rely, a sufficient foundation has been laid to support a challenge for cause. See

Williams v. State, 773 S.W.2d 525, 536 (Tex. Crim. App. 1988) (holding that a

juror is biased as a matter of law if he unequivocally expresses an inability to

consider five years probation as possible punishment for the lesser-included

offense of murder in a capital-murder trial); see also Jordan v. State, 635 S.W.2d

522, 523 (Tex. Crim. App. 1982) (reversible error to deny a defendant’s challenge

for cause against a juror who could not consider probation for the lesser-included

offense of murder in a capital murder case). Therefore, a juror who states that he

cannot consider the minimum punishment for a particular statutory offense is

subject to a challenge for cause. Cumbo, 760 S.W.2d at 255–56; Pierce v. State,

696 S.W.2d 899, 902 (Tex. Crim. App. 1985) (defendant has the right to challenge

State’s Brief                                                                   Page 12
for cause any juror who could not give the minimum punishment, including

probation). Nevertheless, the Court of Criminal Appeals has also explicitly stated

that once a juror states he cannot consider the minimum punishment for a

particular offense, the “opposing party or trial judge may then examine the juror

further to ensure that he fully understands and appreciates the position that he is

taking.” Cardenas v. State, 325 S.W.3d 179, 185 (Tex. Crim. App. 2010); see also

Moore, 999 S.W.2d at 400 (“When the record reflects that a venireman vacillates

or equivocates on his ability to follow the law, the reviewing court must defer to

the trial court.”). Unless there is further clarification or vacillation by the juror,

the trial judge must grant a challenge for cause if the juror states that he cannot

consider the full range of punishment. Cardenas, 325 S.W.3d at 185.

       In the present case, the panel members listed in issues 27 through 44 all

stated that they could not consider probation in the present case. (R.R. Vol. 2, pp.

45-46). Thereafter, these panel members were asked additional questions

concerning their ability to follow the full range of punishment. (R.R. Vol. 2, pp.

66-70). All of these panel members clarified that they could consider the full

range of punishment. Because there was further clarification that these panel

members could follow the law and could consider the full range of punishment,

this Court must defer to the trial court’s decision to deny the challenge for cause.

State’s Brief                                                                    Page 13
Moore, 999 S.W.2d at 400.

       Appellant has not demonstrated that the trial court abused its discretion in

allowing the subject panel members to clarify their answers. Further, this type of

clarification has been specifically authorized by the Court of Criminal Appeals.

See Cardenas, 325 S.W.3d at 185. Therefore, Appellant’s issues 27 through 44

should be overruled.



State’s response to points of error 45 and 46

       In his forty-fifth and forty-sixth points of error, Appellant argues that the

trial court erred in not granting a mistrial during the State’s closing argument. The

State responds by asserting that the trial court did not err in denying Appellant’s

request for a mistrial.

       This Court must review the trial court’s denial of a defendant’s motions for

mistrial for an abuse of discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim.

App. 1999); Woodall v. State, 77 S.W.3d 388, 399 (Tex. App.--Fort Worth 2002,

pet. ref’d). A trial court may declare a mistrial when an error occurs that is so

prejudicial that the expenditure of further time and expense would be wasteful.

Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). Whether a trial court

abused its discretion in denying a motion for mistrial depends on whether the

State’s Brief                                                                   Page 14
court’s instruction cured any prejudicial effect. Dinkins v. State, 894 S.W.2d 330,

357 (Tex. Crim. App. 1995); Faulkner v. State, 940 S.W.2d 308, 312 (Tex. App.-

-Fort Worth 1997, pet. ref’d). Generally, almost any improper argument may be

cured by an instruction to disregard. Faulkner v. State, 940 S.W.2d 308, 312 (Tex.

App.--Fort Worth 1997, pet. ref’d) (citing Dinkins, 894 S.W.2d at 357); see also

Woodall, 77 S.W.3d at 399. However, a comment may be so egregious or

inflammatory as to render the instruction ineffective in curing the prejudice.

Dinkins, 894 S.W.2d at 357; Woodall, 77 S.W.3d at 399.

       Initially, this Court must determine whether the prosecutor’s comment

during closing argument was improper. Therefore, the question raised by these

points of error is whether the State’s argument falls in the category of asking the

jury to be the voice of the community-a proper plea for law enforcement-or of

asking the jury to lend its ear to the community-an improper argument directed at

the expectations of the community. See Cortez v. State, 683 S.W.2d 419, 421

(Tex. Crim. App. 1984). Arguments directed at what the community wants,

expects, is asking for, or desires are improper expectations of the community

arguments. Rodriguez v. State, 649 S.W.2d 329, 330 (Tex. App.--Corpus Christi

1983, no pet.). Arguments asking that the jury send a message to the community

are proper pleas for law enforcement. Id.

State’s Brief                                                                    Page 15
       Here, the arguments about which Appellant complains clearly asked the jury

to “send a message” that “we are not going to tolerate this...” (R.R. Vol. 5, pp.

100-101). Therefore, these arguments are proper pleas for law enforcement. See

Spaulding v. State, 656 S.W.2d 538, 541 (Tex. App.--Corpus Christi 1983, pet.

ref’d, untimely filed) (court held that the State’s argument, “the good people of

Jackson County are not going to tolerate this kind of conduct,” was a proper plea

for law enforcement).

       Nevertheless, the trial court sustained Appellant’s objection to this

argument and then made a prompt instruction to disregard the comment. Under

similar circumstances, Texas courts have held that a prompt instruction to

disregard cures any resulting harm. See Wilkerson v. State, 510 S.W.2d 589,

591–92 (Tex. Crim. App. 1974). Appellant does not cite any cases in which

similar comments in closing argument were held to be incurable by a prompt jury

instruction.

       From this record, this cannot conclude that the prosecutor’s statement was

so egregious or inflammatory that it was not cured by the trial court’s instruction

to disregard. See Williams v. State, 417 S.W.3d 162, 172-73 (Tex. App.--Houston

[1st Dist.] 2013, pet. ref’d). Accordingly, this Court should find that Appellant

has not demonstrated that the trial court abused its discretion and overrule

State’s Brief                                                                  Page 16
Appellant’s forty-fifth and forty-sixth issues.



State’s response to points of error 47 and 48

       In his forty-seventh and forty-eighth points of error, Appellant complains

that the trial court erred in not granting a mistrial relating to a comment on the

Appellant’s post-arrest silence. The State responds by asserting that the trial court

did not err in denying the request for mistrial.

       A comment on a defendant’s post-arrest silence violates the rights of the

accused under the Fifth Amendment of the United States Constitution and article I,

section 10 of the Texas Constitution. See Doyle v. Ohio, 426 U.S. 610, 618

(1976); Dinkins v. State, 894 S.W.2d 330, 356 (Tex. Crim. App. 1995); Sanchez v.

State, 707 S.W.2d 575, 582 (Tex. Crim. App. 1986). Under the U.S. Constitution,

the State cannot use the post-arrest silence of an accused, after assurances such as

Miranda warnings, to impeach an explanation subsequently offered at trial. See

Doyle, 426 U.S. at 618. The Texas Court of Criminal Appeals has determined

that, in addition to the Doyle prohibition, post-arrest, pre-Miranda silence also

may not be used against an accused at trial. See Sanchez, 707 S.W.2d at 582.

       During the State’s cross-examination of Appellant, the following exchange

occurred:

State’s Brief                                                                   Page 17
       Q. So, and just to be clear that when you and your lawyer turned you
       over to the police at the bridge, you never gave a statement?

       MR. STAPLETON: I’ll object, Your Honor. That’s -- we’ve
       previously discussed that. It's a violation of 38.22, the right not to
       testify. It's completely improper.

       MR. GUZMAN: I didn't make any comment on the fact that he is the
       reason why he did give a statement or not. I said did he give one or
       not.

       THE COURT: I am sustaining the objection.

       MR. STAPLETON: And I ask that the jury be instructed to disregard.

       THE COURT: Jury is instructed to disregard.

       MR. STAPLETON: And I move for a mistrial.

       THE COURT: It's denied. (R.R. Vol. 5, pp. 12-13).

       At this time, Appellant’s counsel objected and the trial court sustained his

objection. The court then instructed the jury to disregard the question by the

prosecutor. Appellant’s request for a mistrial was denied by the court. The

prosecutor did not again comment on Appellant’s post-arrest silence during

cross-examination or closing argument.

       The State concedes that the record clearly shows that the State improperly

commented on Appellant’s post-arrest silence in violation of the United States and

Texas Constitutions. This Court must now consider whether the trial court’s



State’s Brief                                                                   Page 18
instruction cured the prejudice.

       Potential prejudice resulting from a question concerning post-arrest silence

can be cured by an instruction to disregard. See Waldo v. State, 746 S.W.2d 750,

754 (Tex. Crim. App. 1988). An instruction to disregard will be presumed

effective unless the facts of the case suggest the impossibility of removing the

impression produced on the minds of the jury. Id.; see also Veteto v. State, 8

S.W.3d 805, 811 (Tex. App.--Waco 2000, pet. ref’d). The effectiveness of a

curative instruction is determined on a case-by-case basis. See Veteto, 8 S.W.3d at

811. Although not specifically adopted as definitive or exhaustive, the courts have

looked to several factors to determine whether an instruction to disregard cured

the prejudicial effect. See Waldo, 746 S.W.2d at 754; see also Veteto, 8 S.W.3d at

811; Fletcher v. State, 852 S.W.2d 271, 275 (Tex. App.--Dallas 1993, pet. ref’d).

They are as follows: 1) the nature of the error; 2) the persistence of the prosecution

in committing the error; 3) the flagrancy of the violation; 4) the particular

instruction given; 5) the weight of the incriminating evidence; and 6) the harm to

the accused as measured by the severity of sentence. Waldo, 746 S.W.2d at 754.

Nature of the Error

       Although the nature of the error is not such that an instruction can never

cure it, the State concedes that a question infringing on Appellant’s

State’s Brief                                                                   Page 19
constitutionally protected rights is serious in nature. See Veteto, 8 S.W.3d at 811.

Persistence and Flagrancy

       Unlike the repeated improper comments in Veteto and Mendoza, the State

did not repeat its improper question concerning Appellant’s post-arrest silence.

Veteto, 8 S.W.3d at 811; Mendoza v. State, 959 S.W.2d 321, 324–25 (Tex. App.--

Waco 1997, pet. ref’d). The State did not broach this subject again during

cross-examination, nor did the State comment on Appellant’s post-arrest silence

during the remainder of the trial. Therefore, this Court should not find any

persistence or flagrancy by the State in the present case.

Particular Instruction Given

       The trial court instructed the jurors as follows: “Jury is instructed to

disregard.” The courts have found similar instructions adequate to cure the error.

See Waldo, 746 S.W.2d at 755–56 (“Jury is instructed to disregard the last

comment of the witness.”); Mendoza, 959 S.W.2d at 324 (“I again instruct the jury

that they will not consider the last statement made by the State's attorney for any

purpose whatsoever.”); Fletcher, 852 S.W.2d at 275 (“It is going to be assumed by

the court that the jury is going to follow the court's instructions, not to consider

that, and that line of questions.”). Therefore, this Court should find the trial

court’s instruction adequate under the circumstances.

State’s Brief                                                                      Page 20
Weight of the Evidence

       The evidence is uncontradicted that Appellant shot the victim, and

Appellant judicially confessed to the commission of the offense. The question at

trial was solely one of punishment. As such, the totality of the evidence supports

the finding that the question on Appellant’s post-arrest silence was not of a

material character calculated to influence or affect the jury adversely to Appellant.

See Waldo, 746 S.W.2d at 756.

Severity of Punishment

       After being found guilty of aggravated assault with an affirmative finding of

a deadly weapon, the jury sentenced Appellant to fifty (50) years’ imprisonment.

The range of punishment after affirmatively answering the special issue was five

(5) to ninety-nine (99) years’, or life, imprisonment. Considering the nature of the

offense of first-degree aggravated assault with the use of a firearm, this Court

should conclude that the improper question did not increase the severity of the

sentence. See Veteto, 8 S.W.3d at 812.

Summary of Factors

       The improper question on Appellant’s post-arrest silence is serious in

nature, but not such that an instruction cannot cure it. Id. at 811. Because the

State did not repeat its question, the instruction was adequate, and there is no

State’s Brief                                                                   Page 21
indication that the jury’s verdict or sentence was influenced by the improper

question, this Court must find that the instruction cured the prejudicial effect. See

Johnson v. State, 83 S.W.3d 229, 232-33 (Tex. App.--Waco 2002, pet. ref’d).

Accordingly, the trial court did not err by overruling the motion for mistrial.

Points forty-seven and forty-eight should be overruled.



State’s response to points of error 49 and 50

       In his forty-ninth and fiftieth points of error, Appellant complains that the

trial court erred in allowing the victim’s father to testify to certain matters that

amounted to victim impact statements. The State responds by asserting that the

trial court did not err in allowing the victim’s father to testify concerning the

foreseeable effects of Appellant’s crime on the victim’s immediate family.

       Specifically, Appellant complains of the testimony of the victim’s father on

direct examination, where he described the emotional effects that this offense had

on the victim’s immediate family. Appellant’s trial counsel objected to this

testimony as being irrelevant; however, the trial court overruled said objection.

(R.R. Vol. 3, pp. 20-21). Appellant now complains that this evidence was

irrelevant and amounted to improper victim impact statements.

       In non-capital felony cases, the State may present evidence “as to any matter

State’s Brief                                                                     Page 22
that the court deems relevant to sentencing.” See Tex. Code Crim. Proc. art. 37.07

§ 3(a). Where such evidence constitutes victim impact testimony, the Court of

Criminal Appeals has held that relevancy depends upon whether the testimony has

“some bearing on the defendant’s personal responsibility and moral guilt.”

Stavinoha v. State, 808 S.W.2d 76, 79 (Tex. Crim. App. 1991). Stated differently,

the relevance of victim impact testimony in a non-capital felony case requires that

such testimony have a “close, direct link to the circumstances of the case.” Brooks

v. State, 961 S.W.2d 396, 399 (Tex. App.--Houston [1st Dist.] 1997, no writ).

       In Stavinoha, the defendant, a priest, pled guilty to the offense of aggravated

sexual assault of a nine year-old parishioner. See Stavinoha, 808 S.W.2d at 77.

During the punishment phase, the trial court admitted victim impact testimony

from a psychologist detailing the mental trauma suffered by complainant’s mother

as a result of the defendant’s act. Id. On appeal, the Court upheld this testimony

as relevant, reasoning that, because the defendant had cultivated the trust of

complainant’s mother and understood her vulnerabilities as a single parent, he

could easily have anticipated the impact his betrayal of trust would have on her.

Id. at 79.

       Subsequently, the First Court of Appeals reached a similar result in Brooks

v. State, also a non-capital felony trial. See Brooks, 961 S.W.2d at 401. In

State’s Brief                                                                    Page 23
Brooks, a jury found the defendant guilty of murdering William Wooten, brother

of Brenda Williams. During the punishment phase, Williams testified that as a

result of her brother’s death, she had been suffering from stress and that a

physician diagnosed her as being on the verge of a nervous breakdown. Id. at 397.

On appeal, the Brooks court upheld the impact testimony of the decedent’s sister

as relevant to sentencing. Id. at 401; see also Peoples v. State, 874 S.W.2d 804,

807 (Tex. App.--Fort Worth 1994, no pet.) (finding that impact testimony relating

a mother’s anguish as her son died in her arms bore on the defendant's personal

responsibility and moral guilt because he should have anticipated this).

       Applying this to the present case, this Court should find that the trial court’s

admission of victim impact testimony from the victim’s father was a logical

extension of Stavinoha. Here, Appellant could easily have anticipated the

psychological impact of his crime on members of the victim’s extended family.

Accordingly, this Court should find that the effect of Appellant’s crime on the

victim’s immediate family, as testified to by the victim’s father, was foreseeable to

Appellant and thus relevant. See also Moreno v. State, 38 S.W.3d 774, 777-78

(Tex. App.--Houston [14th Dist.] 2001, no pet.). Accordingly, this Court should

overrule Appellant’s forty-ninth and fiftieth points of error.




State’s Brief                                                                   Page 24
State’s response to point of error 51

       In his fifty-first and final issue, Appellant complains that the trial court

erred allowing the admission of hearsay evidence before the jury. The State

responds by asserting that the trial court did not err in admitting said hearsay, and

further, Appellant has failed to preserve this issue for appellate review.

        Appellant specifically complains of the admission of the testimony of

Officer Julian Ramirez concerning statements made by the Appellant’s mother.

These statements outlined the fact that Appellant’s mother visited Appellant while

in Mexico and assisted him with money, after the commission of the offense, but

before his surrender.

       Appellant alleges that the above statements were admitted in violation of

Rule 803(24) of the Texas Rules of Evidence. Specifically, Appellant asserts that

the statements were not corroborated as required by the Rules of Evidence.

       Generally speaking, the hearsay rule excludes any out-of-court statement

offered to prove the truth of the matter asserted. Walter v. State, 267 S.W.3d 883,

889 (Tex. Crim. App. 2008). Rule 803(24), however, provides an exception for

statements against interest. Id. at 890. The rationale behind this exception is that

people ordinarily do not make damaging statements about themselves unless they

believe that the statements are true. Id. The rule sets out a two-step protocol for

State’s Brief                                                                    Page 25
the determination of admissibility. Id. First, the trial court must determine

whether the statement, considering all the circumstances, subjects the declarant to

criminal liability and whether the declarant realized this when he made the

statement. Id. at 890–91. Second, the court must determine whether there are

sufficient corroborating circumstances that clearly support the trustworthiness of

the statement. Dewberry v. State, 4 S.W.3d 735, 751 (Tex. Crim. App. 1999). A

trial court should consider a number of factors: (1) whether the guilt of the

declarant is inconsistent with the guilt of the defendant; (2) whether the declarant

was so situated that he might have committed the crime; (3) the timing of the

declaration; (4) the spontaneity of the declaration; (5) the relationship between the

declarant and the party to whom the statement is made; and (6) the existence of

independent corroborative facts. Id.

       Statements that are directly against the declarant’s interest and collateral

“blame-sharing” statements may be admissible under Rule 803(24) if

corroborating circumstances clearly indicate their trustworthiness. Walter, 267

S.W.3d at 896. However, “blame-shifting” statements that minimize the speaker’s

culpability are not admissible, absent extraordinary circumstances. Id. Thus, the

trial judge is obligated to parse a generally self-inculpatory narrative and weed out

those specific factual statements that are self-exculpatory or that shift blame to

State’s Brief                                                                   Page 26
another. Id. at 897. The trial court’s ruling on the admissibility of a hearsay

statement pursuant to an exception is reviewed under an abuse of discretion

standard. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003).

       The statements at issue in the present case were statements made by

Appellant’s mother that were self-inculpatory or “blame-sharing”, in that she

admitted to having assisted Appellant evade apprehension by the police. The

statements were corroborated by Appellant’s testimony, who testified that his

mother did visit him while he was hiding out in Matamoros, Mexico, and that she

did assist him with money. (R.R. Vol. 5, p. 24). Therefore, the trial court did not

abuse its discretion in admitting this evidence.

       Moreover, an error in admission of evidence is cured where substantially the

same evidence comes in elsewhere without objection. See Hudson v. State, 675

S.W.2d 507, 511 (Tex. Crim. App. 1984). Assuming, arguendo, that the

complained-of evidence was inadmissible, Appellant did not preserve error

because the same or substantially the same evidence was admitted without

objection through testimony from Appellant himself. Id. Therefore, this Court

should overrule Appellant’s fifty-first issue.




State’s Brief                                                                 Page 27
                                     PRAYER

       WHEREFORE, PREMISES CONSIDERED, the State of Texas prays

that this Court will overrule Appellant’s issues on appeal, and affirm both the

judgment of conviction and the sentence herein.




State’s Brief                                                                Page 28
                                           Respectfully Submitted,

                                           LUIS V. SAENZ
                                           Cameron County District Attorney
                                           964 East Harrison Street, 4th Floor
                                           Brownsville, Texas 78520
                                           Phone: (956) 544-0849
                                           Fax: (956) 544-0869



                                     By:   /s/ René B. González
                                           René B. González
                                           Assistant District Attorney
                                           State Bar No. 08131380
                                           rgonzalez1@co.cameron.tx.us

                                           Attorneys for the State of Texas




                       CERTIFICATE OF COMPLIANCE

       I certify that this document contains 6,131 words (excluding the cover, table

of contents and table of authorities). The body text is in 14 point font, and the

footnote text is in 12 point font.



                                           /s/ René B. González
                                           René B. González




State’s Brief                                                                    Page 29
                          CERTIFICATE OF SERVICE

       I certify that a copy of the foregoing State’s appellate Brief was served upon

Mr. Edmund K. Cyganiewicz, Attorney at Law, 1000 East Madison Street,

Brownsville, Texas 78520, edcyganiewicz@rgv.twcbc.com on the 18th day of

September, 2015.



                                       /s/ René B. González
                                       René B. González




State’s Brief                                                                 Page 30
