                              Fourth Court of Appeals
                                     San Antonio, Texas
                                            OPINION
                                        No. 04-13-00144-CR

                                 Gerardo Gabriel DE LA FUENTE,
                                            Appellant

                                                v.
                                            The State of
                                       The STATE of Texas,
                                             Appellee

                     From the 111th Judicial District Court, Webb County, Texas
                               Trial Court No. 2011-CRN-000962-D2
                           Honorable Monica Z. Notzon, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: April 2, 2014

AFFIRMED

           Gerardo Gabriel “G.G.” De La Fuente appeals his conviction for murder, challenging the

sufficiency of the evidence to corroborate accomplice witness testimony and to support his guilt

under the law of parties, in addition to other purported trial errors. We overrule De La Fuente’s

issues on appeal and affirm the trial court’s judgment.

                             FACTUAL AND PROCEDURAL BACKGROUND

           De La Fuente was charged with the murder of Agustin Tamayo. In the early morning hours

of August 11, 2011, De La Fuente and Sabrina Rubio, a cocaine supplier for the “Ghost Town”
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neighborhood of Laredo, were driving around making deliveries. At one point, they stopped and

picked up Mario Alberto Garza. De La Fuente continued driving Rubio’s black Chevy Impala;

Rubio was riding in the front passenger seat, and Garza was in the backseat. At approximately

4:05 a.m., a phone call was made from one of Rubio’s cell phones to Tamayo’s house. De La

Fuente then drove to Tamayo’s house, a known “crack house” in the Ghost Town area. Tamayo

walked out of his house and had a conversation with one of the people inside the black car. Garza

fired four shots at Tamayo from the backseat of the car. After the shots were fired, De La Fuente

drove away. Tamayo was shot in the heart and lungs and died at the scene. Garza, Rubio, and

De La Fuente were all indicted for Tamayo’s murder.

       The evidence at De La Fuente’s trial included accomplice witness Sabrina Rubio’s

testimony that De La Fuente was the driver of her black Chevy Impala that night and Garza was

the shooter. The State granted Rubio testimonial immunity. Rubio testified she picked up De La

Fuente about midnight and they drove around making her cocaine deliveries. Rubio had two cell

phones with her that night—numbers ***2684 and ***1275. She stated De La Fuente was using

the cell phone with the number ***2684 that night. De La Fuente called Mario Garza, whom

Rubio did not know. De La Fuente was the one who decided to drive over and pick up Garza.

Rubio testified that all three of them had used drugs and alcohol that night, and “not one of us was

sober.” Rubio testified that she was the one who used cell phone number ***2684 to call Tamayo’s

residence at about 3:00 a.m. or 4:00 a.m. Tamayo asked Rubio if she “had anything on [her],” and

Rubio said she did. De La Fuente then drove the car over to Tamayo’s house, with Rubio riding

in the front passenger seat and Garza in the back seat. Tamayo met them outside and walked up

to the driver’s side window. Tamayo told De La Fuente he was waiting for a guy to bring him

some money and De La Fuente replied they would come back later. Rubio stated that Tamayo

always paid her and did not owe her money and that the conversation was friendly. Garza suddenly
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fired four shots into Tamayo’s chest from the backseat of the car; Garza did not say anything, he

just shot. Rubio stated she turned around in her seat and asked Garza, “why . . . did you do that?”

Rubio saw that the gun was a revolver. De La Fuente drove away at “medium” speed after Garza

fired the shots, telling Rubio to “calm down.”

       Rubio testified that De La Fuente drove to her family ranch off of Highway 359. The ranch

house was locked but they broke inside and she, De La Fuente, and Garza stayed there together

for about seven or eight hours. Rubio testified that at the ranch house she overheard De La Fuente

ask Garza, “why did you do that?” and say, “I never wanted you to do anything.” Later,

De La Fuente told Rubio that, “if anything happened that he would take the blame,” and that “some

things are meant to happen and some things just happen.” De La Fuente also instructed Rubio to

erase Tamayo’s phone number. In her statement to Officer Richard Reyes, Rubio stated that

De La Fuente also told her “if anything happens, you don’t know nothing.” Rubio testified she

did not know why Garza shot Tamayo, and did not see Garza with a gun when he got into her car.

She stated De La Fuente never told her anything about a plan to kill Tamayo that night. Rubio

called her grandmother while they were at the ranch. Her grandmother drove to the ranch and

Rubio gave her purse to her grandmother who took it home. Rubio stated her purse had a thousand

dollars’ worth of cocaine and money in it. The next morning Garza’s brother picked the three of

them up in a yellow Hummer. Rubio left her black Impala at the ranch and eventually gave it to

her aunt in another city. Garza’s brother drove them to the Garza home where the three of them

stayed together another four or five hours. Eventually, Rubio asked Garza’s mother to drive her

home. No one ever called the police about Tamayo’s murder.

       In addition, Joey Salazar, who was inside Tamayo’s house at the time of the shooting,

testified he heard a car honk and Tamayo went outside. Salazar looked outside and saw a black

car. He heard Tamayo arguing with someone immediately before he heard three to five gun shots.
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When Salazar came out he saw the black car driving away and found Tamayo on the ground dead.

Veronica “Betty” Ramos testified that Rubio called her between 2:30 a.m. and 3:00 a.m. on the

night of Tamayo’s murder. Ramos could see that Rubio and De La Fuente were together in the

car because De La Fuente took the phone away from Rubio and told Ramos to open the gate and

let them in. Ramos refused. Ramos also testified that both Rubio and De La Fuente had told her

they were dating.

           Orlando Ibarra testified that, two weeks before Tamayo’s murder, De La Fuente asked him

for a gun but Ibarra did not have a gun at the time. Ibarra also testified that, two weeks after

Tamayo’s murder, he saw De La Fuente and they talked about the murder, with De La Fuente

asking him, “What you know?”1 Specifically, Ibarra testified that, “it came up again, just to talk

about the murder, just talk about it, hey, you know, talk about neighborhood stuff. Did you know

anything about him? Well no. Only what you know. Like what do you know? What do you

know? And well, you know, that’s the way I took it, what you know.” When asked what De La

Fuente’s mannerisms and demeanor were like, Ibarra said, “Well, the way he is, the way we all

carry ourselves. What, you know - - I guess I just took it as what you know. What do you know?

That’s what he said.” In addition, Rubio’s grandmother testified that Rubio was at the ranch house

with two men that night and that they broke the locks to get inside. Garza’s mother testified that

Rubio and De La Fuente were with her son at her home the next day.

           Detective Robert Garcia testified about his analysis of cell phone tower records for the

night of Tamayo’s murder. The records for cell phone number ***2684, which is registered to

Sabrina Rubio, showed that a call was placed to Tamayo’s residence at 4:05 a.m.; another call was

made from that phone at 4:14 a.m. The records show the phone was physically located close to



1
    In its brief, the State incorrectly paraphrases De La Fuente’s statement to Ibarra as “you know . . . what you know.”

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Tamayo’s house at the time of those calls. The time of the 911 call from Tamayo’s residence was

4:16 a.m., according to the lead investigator Richard Reyes. The phone records from later that day

show Rubio’s cell phone number ***2684 was near Highway 359, where Rubio’s family ranch is

located. The records also show, however, that the phone did not stay in one place, but was

continuously moving into different cell phone tower areas during the day. Garcia testified the

times shown on the cell phone tower records are not exact with respect to the time a call was

placed, but reflect when the data was received.

       Officer Richard Reyes testified concerning his investigation of Tamayo’s murder and his

interview of De La Fuente. The video recording of De La Fuente’s statement was admitted into

evidence and played for the jury. A written transcript with translations from Spanish to English

was also admitted. In response to questions asking what he knew about Tamayo’s murder,

De La Fuente stated he heard a black car was involved but he denied knowing why or how Tamayo

was killed. De La Fuente stated that he used drugs at Tamayo’s house at about 8:00 p.m. that night

and “was really high on drugs.” De La Fuente insisted that Tamayo was a very good friend.

De La Fuente admitted that he was driving Rubio’s black Impala as they cruised around later that

night. He stated that Rubio was a drug supplier and a friend with whom he hung out two to three

times per week, but stated she was not his girlfriend. He also admitted that he sometimes used

Rubio’s cell phone. De La Fuente admitted that he drove Rubio’s car to Tamayo’s house. De La

Fuente stated that Tamayo came out of the house, he spoke to Tamayo but did not get out of the

car, and then he and Rubio drove away. De La Fuente was evasive, however, about whether he

was the person who used Rubio’s cell phone to call Tamayo’s residence at 4:05 a.m. De La Fuente

explained that after they stopped by Tamayo’s house at about 4:00 a.m., he and Rubio drove to her

grandfather’s ranch off of Highway 359, but it was locked so they left. He and Rubio parted ways



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and he returned to Laredo at about 6:45 a.m. in a different vehicle with a friend that he refused to

name.

        The jury was instructed to find De La Fuente guilty of murder if they found that, either

acting alone or as a party with Mario Alberto Garza, he intentionally or knowingly caused

Tamayo’s death by shooting him in his body with a firearm. No lesser included offense instruction

was given. The jury found De La Fuente guilty of murder. De La Fuente pled true to the State’s

punishment enhancements based on his prior felony convictions, which raised the punishment

range to 15 years to life. Based on the jury’s punishment recommendation, the trial court sentenced

De La Fuente to 20 years’ imprisonment. De La Fuente now appeals.

                          ACCOMPLICE WITNESS — CORROBORATION

        In his first issue, De La Fuente challenges the sufficiency of the evidence to corroborate

Rubio’s accomplice witness testimony as well as the sufficiency of the evidence to support his

conviction as a party to the offense. We address the accomplice issue first.

        The jury was properly instructed that Sabrina Rubio was an accomplice witness, and that

it could not convict De La Fuente on the basis of her testimony, even if found to be credible, unless

the testimony was corroborated by other evidence tending to connect De La Fuente with

commission of the murder. See Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011) (an

accomplice is a person who participated with the defendant before, during, or after the commission

of the crime and acted with the required culpable mental state); see also Paredes v. State, 129

S.W.3d 530, 536 (Tex. Crim. App. 2004) (an accomplice as a matter of law is a person susceptible

to prosecution for the offense with which the defendant is charged or a lesser included offense).

Under article 38.14 of the Code of Criminal Procedure, a conviction cannot be upheld on the basis

of accomplice testimony unless it is corroborated by “other evidence tending to connect the

defendant with the offense committed.” TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005).
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The corroborating evidence need not be sufficient by itself to establish guilt, and need not directly

link the defendant to commission of the offense. Brown v. State, 270 S.W.3d 564, 567 (Tex. Crim.

App. 2008); Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999).

       In reviewing the sufficiency of the corroborating evidence in the record, we exclude the

accomplice testimony from our consideration and focus on the remainder of the record to

determine whether there is any independent evidence that tends to connect the defendant with the

commission of the crime. Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001); Cathey,

992 S.W.2d at 462-63. We view the independent evidence in the light most favorable to the jury’s

verdict. Brown, 270 S.W.3d at 567. The corroborating evidence may be direct or circumstantial,

and is sufficient if the combined weight of the non-accomplice evidence tends to connect the

defendant to the offense. Solomon, 49 S.W.3d at 361; Gosch v. State, 829 S.W.2d 775, 777 (Tex.

Crim. App. 1991). While a defendant’s mere presence at the scene of the crime is, by itself,

insufficient corroboration, the defendant’s presence combined with other suspicious circumstances

may be sufficient to tend to connect the defendant to the crime. Dowthitt v. State, 931 S.W.2d

244, 249 (Tex. Crim. App. 1996); Cox v. State, 830 S.W.2d 609, 611 (Tex. Crim. App. 1992).

Likewise, evidence that the defendant was in the presence of an accomplice at or near the time or

place of the crime is proper corroborating evidence. McDuff v. State, 939 S.W.2d 607, 612 (Tex.

Crim. App. 1997).

       Here, the record contains sufficient non-accomplice evidence independently tending to

connect De La Fuente with the commission of Tamayo’s murder. In De La Fuente’s own statement

he admits (1) driving a black car (2) to Tamayo’s house (3) at about 4:00 a.m., the approximate

time of Tamayo’s murder, (4) in the company of Sabrina Rubio, a person charged as an accomplice

to the murder. De La Fuente also stated that Tamayo walked out of the house, and he spoke to

Tamayo from the car before driving away. De La Fuente’s admissions match Joey Salazar’s
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testimony that Tamayo walked out of the house after a car honked, he looked out and saw a car

parked out front, he heard Tamayo speaking with someone, and he saw a black car driving away

immediately after he heard the gunshots and found Tamayo dead. Other evidence showed the 911

call was made at 4:16 a.m. In addition, De La Fuente also admitted he used one of Rubio’s cell

phones. The cell phone records showed that one of Rubio’s cell phones was used to call Tamayo’s

residence at 4:05 a.m., and the phone was located close to Tamayo’s residence at the time of the

call. Thus, the non-accomplice evidence places De La Fuente at or near the scene of Tamayo’s

murder and close in time to its commission. See Smith v. State, 392 S.W.3d 190, 195 (Tex. App.—

San Antonio 2012, pet. ref’d) (non-accomplice testimony that places the defendant at or near the

scene of the crime near the time of its commission is a factor that tends to connect the defendant

to the crime and can corroborate an accomplice’s testimony) (citing Brown v. State, 672 S.W.2d

487, 489 (Tex. Crim. App. 1984)).

       Conclusion. Considering the combined weight of the non-accomplice evidence detailed

above, we conclude it sufficiently tends to connect De La Fuente to the commission of Tamayo’s

murder, and corroborates the accomplice testimony given by Rubio. See Brown, 270 S.W.3d at

567 (corroborating evidence need not directly link defendant to commission of the crime and need

not be sufficient by itself to establish his guilt); see also Cathey, 992 S.W.2d at 462 (same).

                      SUFFICIENCY OF THE EVIDENCE — PARTY LIABILITY

       De La Fuente also challenges the sufficiency of the evidence to establish his liability as a

party for Tamayo’s murder. In his brief, De La Fuente argues there is no evidence he knew Garza

had a gun and that Garza was going to shoot Tamayo, or that he aided, assisted, or encouraged

Garza to do so. Because we have concluded there is sufficient independent evidence linking

De La Fuente to the commission of the murder to corroborate Rubio’s testimony, we may consider

her accomplice testimony in our sufficiency review.
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       In reviewing legal sufficiency, we consider all the evidence, both direct and circumstantial,

in the light most favorable to the verdict to determine whether any rational trier of fact could have

found all the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). It is the

jury’s role to resolve conflicts in the testimony, assess credibility and weigh the evidence, and

draw reasonable inferences from the basic facts to the ultimate facts. Brooks, 323 S.W.3d at 899.

In conducting a legal sufficiency review, we defer to the jury’s assessment of the credibility of the

witnesses and the weight to be given to their testimony. Id. The appellate court may not substitute

its own judgment for that of the jury. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.

2007). Further, we must resolve any inconsistencies in the evidence in favor of the jury’s verdict.

Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

       As applied to this case, the offense of murder is committed when a person intentionally or

knowingly causes the death of an individual. TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011).

The jury was instructed that it could convict De La Fuente of murder under the law of parties. A

person may be convicted as a party if the offense is committed by the conduct of another for which

he is criminally responsible. TEX. PENAL CODE ANN. § 7.01(a) (West 2011). A person is

criminally responsible for the conduct of another if “acting with intent to promote or assist the

commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person

to commit the offense. . . .” Id. § 7.02(a)(2) (West 2011). Mere presence of a person at the scene

of a crime either before, during or after the offense, or even flight from the scene, without more,

is insufficient to sustain a conviction as a party to the offense; however, combined with other

incriminating evidence it may be sufficient to sustain a conviction. Thompson v. State, 697 S.W.2d

413, 417 (Tex. Crim. App. 1985). In determining whether a defendant participated as a party in

the commission of an offense, the jury may consider events that occurred before, during or after
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the offense, and may rely on acts that show an understanding and common design. Ransom v.

State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1996) (opin. on reh’g); Barnes v. State, 56 S.W.3d

221, 238 (Tex. App.—Forth Worth 2001, pet. ref’d) (agreement to act together in a common design

is seldom proven by direct evidence, but by circumstantial evidence).

       Viewing the non-accomplice evidence along with Rubio’s testimony in the light most

favorable to the verdict, the evidence showed that De La Fuente was present at the time Garza shot

and killed Tamayo, and that De La Fuente was the driver of the black car before and during the

murder, as well as during their flight after the murder. His actions as the driver of the car aided in

the commission of the murder. Further, the jury could have believed that De La Fuente was the

person who called Tamayo to come outside before he was shot. In addition, there was other

evidence from which the jury could infer De La Fuente’s intent to aid in the commission of

Tamayo’s murder — De La Fuente tried to obtain a gun two weeks before; he was the person who

knew Garza and decided to call and pick him up before driving to Tamayo’s house that night; after

Garza fired the shots from the car, De La Fuente did not help his friend Tamayo or call for an

ambulance; instead, he drove away at a “medium” speed immediately after Garza shot Tamayo

and told Rubio to calm down; he drove to Rubio’s rural ranch where the three of them stayed

together for several hours; then, in a different vehicle, De La Fuente went with Garza and Rubio

to Garza’s house where they again stayed together for several more hours.              Both Rubio’s

grandmother and Garza’s mother saw the three together during the period immediately after the

murder. Thus, De La Fuente was in the company of the two accomplices, Rubio and Garza, before,

during, and after the murder. In addition, according to Rubio, right after the murder De La Fuente

instructed her to erase Tamayo’s phone number from her phone and told her that he would take

the blame, some things are meant to happen and some just happen, and “you don’t know nothing.”



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The jury was entitled to resolve conflicts in the evidence and could choose to believe or disbelieve

all or part of the testimony of any witness, including Rubio. Brooks, 323 S.W.3d at 899.

        Conclusion. Viewing the evidence in the light most favorable to the verdict, we conclude

the evidence is legally sufficient to support the jury’s finding that De La Fuente aided Garza in a

common plan to murder Tamayo and is therefore guilty of murder under the law of parties. TEX.

PENAL CODE ANN. §§ 7.01(a), 7.02(a)(2).

                    CONFRONTATION RIGHTS AND PROSECUTORIAL MISCONDUCT

        In his second issue, De La Fuente asserts the trial court erred in denying his motion for

mistrial based on a testimonial hearsay statement made by Officer Reyes in violation of the Sixth

Amendment’s Confrontation Clause. U.S. CONST. amends. VI, XIV. Specifically, De La Fuente

complains about Reyes’s testimony that during his investigation he learned that De La Fuente had

been “boasting” about Tamayo’s murder. In his third issue, De La Fuente argues the prosecutor

engaged in willful misconduct by including a reference to Reyes’s excluded testimony in the

State’s closing power point presentation.

        Motion for Mistrial — Confrontation Clause Violation

        With respect to the denial of his motion for mistrial, De La Fuente complains that, in

response to the prosecutor asking him what he learned next in his investigation, Officer Reyes

stated that he learned De La Fuente “had been boasting about committing the shooting.”

De La Fuente objected that Reyes’s statement was testimonial and violated his confrontation

rights, and moved for a mistrial. The trial court denied the mistrial, but sustained De La Fuente’s

objection and instructed the jury to disregard Reyes’s statement. De La Fuente argues on appeal

that the “boasting” statement was so egregious that the only way to remedy the prejudice was to

grant a mistrial.



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       A prompt instruction to disregard will ordinarily cure any error associated with an improper

question and answer. Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000) (per curiam).

We must presume the jury followed the trial court’s instruction to disregard the evidence. Gamboa

v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009). A mistrial is required only in “extreme

circumstances, where the prejudice is incurable.” Archie v. State, 221 S.W.3d 695, 699 (Tex.

Crim. App. 2007). We review a trial court’s denial of a motion for mistrial for an abuse of

discretion, which occurs when a decision is outside the zone of reasonable disagreement. Id.

       Here, assuming Reyes’s testimony was improper, any error was cured by the trial court’s

instruction to disregard. The objectionable testimony was one brief statement, to which the court

sustained De La Fuente’s objection and promptly instructed the jury to disregard. Nothing in the

record suggests the jury was unable to follow the instruction. See Gamboa, 296 S.W.3d at 581.

The record does not present such an emotionally inflammatory or extreme circumstance that the

rare remedy of a mistrial would be necessary to cure any prejudice. See Young v. State, 137 S.W.3d

65, 71 (Tex. Crim. App. 2004) (mistrial is reserved for rare circumstances where objectionable

action is “so emotionally inflammatory” that curative instruction is unlikely to prevent jury from

being unfairly prejudiced against defendant); see also Orellana v. State, 381 S.W.3d 645, 657

(Tex. App.—San Antonio 2012, pet. ref’d) (mistrial is extreme remedy that should be granted only

when prejudice remains even after less drastic measures such as a curative instruction). We

conclude the court did not abuse its discretion in denying De La Fuente’s motion for mistrial.

       Prosecutorial Misconduct – Closing Argument

       With respect to De La Fuente’s assertion of prosecutorial misconduct, he complains that

the prosecutor engaged in willful misconduct by including a reference to De La Fuente “bragging”

about Tamayo’s murder in the State’s closing argument power point. De La Fuente contends this

“bragging” evidence was a reference to Officer Reyes’s excluded testimony and therefore the State
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injected “new facts” outside the evidence. The four categories of proper jury argument are (1)

summation of the evidence, (2) reasonable deductions from the evidence, (3) responsive

arguments, and (4) pleas for law enforcement. Gallo v. State, 239 S.W.3d 757, 767 (Tex. Crim.

App. 2007). Reversible error occurs if the prosecutor’s closing argument “injects new facts,

harmful to the accused, into the trial.” Perez v. State, 352 S.W.3d 751, 760 (Tex. App.—San

Antonio 2011, no pet.).

       Shortly after the State began its closing argument, De La Fuente objected to one of the

State’s power point slides that contained a reference to De La Fuente “bragging,” arguing it was a

reference to Reyes’s excluded testimony. The prosecutor replied it was a reference to Ibarra’s

testimony that De La Fuente told him, “what you know,” not a reference to Reyes’s statement.

The trial court denied De La Fuente’s objection, but the State agreed to delete that line from the

power point slide. In addition, even though the court denied De La Fuente’s objection and motion

for mistrial, it instructed the jury that what the attorneys say during closing is just “argument and

summation of the evidence that they think, or they believe, was presented to you,” and that “the

evidence is what you heard in court from the witnesses and from the documents and other physical

evidence before you.” Even assuming the reference was not a proper summation of or deduction

from the evidence, we believe the court’s instruction to the jury was sufficient to cure any error in

the jury’s brief viewing of the statement. See Gallo, 239 S.W.3d at 767 (in evaluating harm from

improper jury argument, court considers the severity of the misconduct (the magnitude of the

prejudicial effect of the prosecutor’s remarks), the measures adopted to cure the misconduct (the

efficacy of any cautionary instruction by the judge), and the certainty of conviction absent the

misconduct (the strength of the evidence supporting the conviction)); see also Archie, 221 S.W.3d

at 700. Thus, any error was harmless.



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                         JURY INSTRUCTION — VOLUNTARINESS OF STATEMENT

           De La Fuente argues in his fourth and fifth issues that he was entitled to a requested jury

instruction pertaining to the voluntariness of his recorded statement, and that he was harmed by

the court’s refusal to include it in the jury charge. See TEX. CODE CRIM. PROC. ANN. arts. 38.22,

38.23 (West Supp. 2013 & 2005). The State argues De La Fuente did not raise the voluntariness

of his statement as an issue before the jury and was thus not entitled to the instruction.

           De La Fuente filed a pre-trial motion to suppress his statement, asserting he did not

voluntarily waive his Miranda 2 right to an attorney. The motion was denied, and the trial court

made a finding that he voluntarily waived his Miranda rights. As noted, supra, the DVD and

transcript of De La Fuente’s statement were subsequently admitted at trial. De La Fuente argues

on appeal that the DVD itself raised a disputed fact issue as to whether he voluntarily waived his

Miranda rights. He specifically points to a comment he made after Reyes read him his Miranda

rights and asked whether De La Fuente understood his rights and was voluntarily waiving those

rights. De La Fuente responds that he understands his rights and is voluntarily waiving them. He

then says, “An attorney ends up being costly.” De La Fuente argues on appeal that this comment

suggests that he did not, in fact, understand that he could have an attorney appointed if he was

unable to hire one. He asserts that he was therefore entitled to an instruction under sections 6 and

7 of article 38.22 and article 38.23 as to the voluntariness of his statement.

           Section 6 of article 38.22 provides that when, outside the jury’s presence, the trial court

has made a finding as a matter of law and fact that the statement was voluntarily made, as occurred

here, evidence pertaining to voluntariness may still be presented to the jury. TEX. CODE CRIM.

PROC. ANN. art. 38.22, § 6. When the issue of voluntariness is raised by the evidence, the trial



2
    Miranda v. Arizona, 384 U.S. 436 (1966).

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judge must instruct the jury that unless it believes beyond a reasonable doubt that the statement

was voluntarily made, it must not consider it for any purpose. Id. art. 38.22, § 6. When a

defendant’s statement was the result of custodial interrogation, he is also entitled to an instruction

under section 7 of article 38.22 if the trial evidence raises the issue of whether he was adequately

warned of his rights and knowingly and intelligently waived his rights. Id. art. 38.22, § 7; see

Oursbourn v. State, 259 S.W.3d 159, 175-76 (Tex. Crim. App. 2008).

       Article 38.23 provides that no evidence obtained in violation of the law may be admitted

in evidence against a criminal defendant. TEX. CODE CRIM. PROC. ANN. art. 38.23(a). That statute

further states that “where legal evidence raises an issue hereunder,” the jury shall be instructed that

if it believes, or has a reasonable doubt, that the evidence was obtained illegally then it shall

disregard such evidence. Id. To be entitled to an article 38.23 instruction, three predicates must

be met: (1) the evidence heard by the jury must raise an issue of fact; (2) the evidence on that fact

must be affirmatively contested; and (3) the contested factual issue must be material to the

lawfulness of the challenged conduct in obtaining the statement claimed to be involuntary.

Oursbourn, 259 S.W.3d at 177; Hamal v. State, 390 S.W.3d 302, 306 (Tex. Crim. App. 2012).

The jury instruction is required only if there is a genuine dispute about a material fact. Madden v.

State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). “The defendant must offer evidence that, if

credited, would create a reasonable doubt as to a specific factual matter essential to the

voluntariness of the statement. This factual dispute can be raised only by affirmative evidence,

not by mere cross-examination questions or argument.” Oursbourn, 259 S.W.3d at 177.

       Here, the record does not show that De La Fuente offered any affirmative evidence raising

a fact issue as to whether he understood his right to an appointed attorney. See id. at 174 (noting

that regardless of which type of voluntariness instruction a defendant is seeking, the trial evidence

must first raise a genuine factual dispute regarding “voluntariness”). On the DVD and transcript,
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he affirmatively acknowledges understanding his Miranda rights and states that he is voluntarily

waiving them. De La Fuente did not testify at trial. There was no evidence presented to the jury

affirmatively contesting the voluntariness of De La Fuente’s waiver of his right to an appointed

attorney. De La Fuente’s off-hand comment that a lawyer is expensive, when viewed within the

context of his acknowledgment and waiver of his Miranda rights, does not constitute affirmative

evidence raising a voluntariness issue. Therefore, the court did not err in denying the requested

jury instruction.

                                    PUBLIC TRIAL – VOIR DIRE

        Finally, in his sixth and seventh issues, De La Fuente asserts the courtroom was closed to

the public during voir dire in violation of his federal and state constitutional rights. De La Fuente

asserts that his family and friends were removed from the courtroom prior to the seating of the

venire panel and were not permitted to re-enter until after the jury was selected. The State argues

the issue is waived because De La Fuente’s attorney did not bring the matter to the trial court’s

attention at the time so it could be addressed, and first raised it in a motion for new trial filed two

weeks after trial.

Applicable Law

        An accused has a right to a public trial under the federal and state constitutions, as well as

under the Texas Code of Criminal Procedure. U.S. CONST., amend. VI; TEX. CONST., art. I, § 10;

TEX. CODE CRIM. PROC. ANN. art. 1.24 (West 2005). The state and federal rights are co-extensive.

Brandley v. State, 691 S.W.2d 699, 708 n.3 (Tex. Crim. App. 1985); Andrade v. State, 246 S.W.3d

217, 224 n.5 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d). The public trial right extends to

the jury selection phase, including voir dire. Presley v. Georgia, 558 U.S. 209, 212-13 (2010) (per

curiam); Steadman v. State, 360 S.W.3d 499, 510-11 (Tex. Crim. App. 2012). In determining

whether any portion of a trial was closed to the public, we look at “the totality of the evidence and
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determine whether the trial court fulfilled its obligation ‘to take every reasonable measure to

accommodate public attendance’. . . .” Lilly v. State, 365 S.W.3d 321, 331 (Tex. Crim. App. 2012)

(quoting Presley, 558 U.S. at 215); see also Cameron v. State, 415 S.W.3d 404, 409-10 (Tex.

App.—San Antonio 2013, pet. granted) (holding the Lilly analysis is not a sequential two-step

process, but rather one broad inquiry).

The Voir Dire Record

       The transcript of the voir dire proceedings reflects that prior to the seating of the venire

panel, the following exchange occurred:

       DEFENSE COUNSEL: Oh, Your Honor, there is one thing. My client’s family
       were asked to leave the courtroom, outside of the courtroom. And this is on the
       record, outside the courtroom are the following individuals: Gabriel De La Fuente,
       Eva De La Fuente, those are my client’s parents, Janet Ortega the sister, Emilio
       Ortega the brother, Jose Ortega the nephew, Claudia Benavides the wife, Lilibeth
       Benavides the sister-in-law, and Jose Luis Degollado the uncle. And they were
       asked to leave the courtroom, and we believe that they should be allowed in. This
       should be an open and public voir dire. And that this should be an open and public
       voir dire as to the 6th amendment to the United States Constitution and - -

       THE COURT: Why were they asked to leave?

       THE BAILIFF: Your Honor, the reason being is that it’s an 80-panel, and there’s
       no room for anybody else, not enough chairs for the Jury panel. They were not
       asked to leave.

       THE COURT: All right. They can stand in the back if there isn’t any room to sit,
       but anybody who needs to come in can come in.

       DEFENSE COUNSEL: Then I’ll let them know that once the panel walks in that
       they can.

       THE COURT: All right. So, that the record is clear, they were just asked to leave
       for a few minutes so we can get the panel in here. All right. So, they can come in.

       DEFENSE COUNSEL: All right.

The trial record contains no further objection or reference to the exclusion of De La Fuente’s family

or the public from the courtroom.


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The Motion for New Trial Record

       Two weeks after trial, De La Fuente raised the public trial issue in a motion for new trial.

At a hearing on the motion for new trial, several of De La Fuente’s family members testified that

the bailiff, Deputy Quintana, refused their repeated requests to re-enter the courtroom during jury

selection. Specifically, De La Fuente’s mother and father testified that defense counsel came out

to the hall and told them the judge said it was alright for them to come back into the courtroom as

soon as the panel was seated. However, despite their repeated requests to re-enter the courtroom

to watch jury selection, Deputy Quintana refused to allow them to enter the courtroom until after

the jury was selected. They did not tell defense counsel about it that day because they thought it

was the court’s rule or the judge changed her mind. They first informed defense counsel that they

were excluded during voir dire two weeks after trial. Six other family members gave similar

testimony.

       Deputy Quintana testified at the motion for new trial hearing that the judge instructed him

to “escort everybody who was in the courtroom so that the panel could come inside.” There were

70 or more panel members and the Fire Code provides the maximum number of people that can

be inside the courtroom are those that can be seated. After the panel was seated, it was crowded

and there were no more seats. In fact, he had to bring in seats for the panel from other courtrooms.

Quintana stated he did not recall the judge instructing him to let people in to stand up during jury

selection. He further stated, “there was no space for anybody to stand in the back” after the panel

was seated. Quintana testified he did not deny access or exclude anyone from the courtroom, and

that no one asked to come in after the panel was seated.

       At the conclusion of the hearing, the trial court reserved ruling on the motion for new trial

until it could review the transcript of the voir dire proceedings. However, the trial judge expressed

her recollection of that day on the record as, “if memory serves me correct, the entire courtroom
                                                - 18 -
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was needed for the panel to come in. I think we even had a whole additional set of seats lined

along the back wall.” The judge recalled there were family members of the defendant and the

victim as well as witnesses in the courtroom and, “I asked that everybody clear the benches and

the chairs so that the panel could be seated. And then, when that was done, I said, ‘whatever they

can find in terms of standing room in the back, that’s where they can stand’ . . . But it wasn’t that

they couldn’t come in and watch. It was just that they couldn’t sit down because they needed the

seats for the jury panel.”

Analysis

       Unlike in Cameron where the record contained a lengthy discussion between the trial judge

and counsel concerning the public’s exclusion during voir dire, along with the trial judge’s written

findings on the issue, here the record indicates the courtroom was not closed to the public during

voir dire. See Cameron, 415 S.W.3d at 406-08. As set forth above, at the beginning of the voir

dire phase, the judge twice affirmatively instructed that De La Fuente’s family “can come in” after

the seating of the venire panel. The record does not show the trial judge was ever informed that,

subsequent to her instruction, her bailiff purportedly refused entry to De La Fuente’s family during

jury selection. The first notice to the trial court of the family’s exclusion occurred two weeks after

trial. The trial judge was therefore deprived of the opportunity, at the time of the exclusion, to

take further steps to accommodate the family inside the courtroom and to make any necessary

findings on the record.      See Lilly, 365 S.W.3d at 331; Steadman, 360 S.W.3d at 506-08.

Considering the totality of the evidence, we conclude the trial court did not close the courtroom to

the public during voir dire. See Lilly, 365 S.W.3d at 331.




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                                          CONCLUSION

       Based on the foregoing reasons, we overrule all of De La Fuente’s appellate issues and

affirm the judgment of the trial court.

                                                Rebeca C. Martinez, Justice

PUBLISH




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