                                                                                       ACCEPTED
                                                                                   01-15-00279-CR
                                                                        FIRST COURT OF APPEALS
                                                                                HOUSTON, TEXAS
                                                                             11/25/2015 4:09:07 PM
                                                                             CHRISTOPHER PRINE
                                                                                            CLERK

                       No. 01-15-00279-CR

                                In the                          FILED IN
                         Court of Appeals                1st COURT OF APPEALS
                                                             HOUSTON, TEXAS
                               For the                   11/25/2015 4:09:07 PM
                       First District of Texas           CHRISTOPHER A. PRINE
                             At Houston                           Clerk

                       ♦
                           No. 1344346
                     In the 338th District Court
                      Of Harris County, Texas
                       ♦
                         Joseph Facundo
                             Appellant
                                 v.
                        The State of Texas
                             Appellee
                       ♦
                      State’s Appellate Brief
                       ♦



Clinton A. Morgan                                Devon Anderson
Assistant District Attorney                      District Attorney
Harris County, Texas                             Harris County, Texas
State Bar No. 24071454
morgan_clinton@dao.hctx.net                      Justin Wood
                                                 Julie Fletcher
1201 Franklin St., Suite 600                     Assistant District Attorneys
Houston, Texas 77002                             Harris County, Texas
Telephone: 713.274.5826




                   Oral Argument Not Requested
               Statement Regarding Oral Argument

     The appellant requested oral argument, though he gave no

particular reason why. The State believes the briefs in this case

adequately apprise this Court of the issues and the law, and any

marginal benefit from oral argument does not justify the considerable

amount of time that preparation for oral argument requires of the

parties and the Court. Therefore, the State does not request oral

argument.




                                  i
                         Identification of the Parties

Counsel for the State:

      Devon Anderson
            District Attorney of Harris County

      Justin Wood & Julie Fletcher
            — Assistant District Attorneys at trial

      Clinton A. Morgan
             Assistant District Attorney on appeal

Appellant:

      Joseph Juan Facundo

Counsel for the Appellant:

      Alvin E. Nunnery & Brennen Paul Dunn
            — Counsel at trial

      Patrick McCann & Dawn Zell Wright
            — Counsel on appeal

Trial Court:

      Frank Price
            Presiding judge




                                      ii
                                                 Table of Contents

Statement Regarding Oral Argument ................................................. i
Identification of the Parties .............................................................. ii
Table of Contents ................................................................................ iii
Index of Authorities ............................................................................. v
Statement of the Case .......................................................................... 1
Statement of Facts ................................................................................ 1
Reply to Points One, Two, Three, and Four
   The only preserved objection to the admission of the appellant’s jail
   calls is his Fifth Amendment complaint. However, because the
   appellant was not being interrogated by anyone associated with law
   enforcement, the Fifth Amendment has no application here. ................... 3
      I.        Background ....................................................................................................... 3
           A.      The State’s Evidence and the Jail Calls .............................................. 3
           B.      The Appellant’s Trial Objections ......................................................... 8
      II. The Appellant’s Points ............................................................................... 10
           A. Reply to Point Four: The appellant’s objection, made the day
           after the evidence was admitted, was untimely and preserved
           nothing for review............................................................................................ 10
           B. Reply to Point One: Statements made on a phone call to
           family members are not custodial statements for Fifth
           Amendment purposes. ................................................................................... 14
           C. Reply to Points Two and Three: The appellant’s Sixth-
           Amendment and “due process” complaints were not timely
           presented to the trial court and thus present nothing for this
           Court’s review. ................................................................................................... 15




                                                                iii
Reply to Points Five and Six
   The appellant’s points make sense only if one presumes all Hispanic
   people live in ethnically segregated communities. Asking a venire
   member for his opinion on law enforcement “in your community
   where you live” is not a race-based question. ............................................... 16
      I.      Factual Background: The Appellant’s Batson Challenges .......... 17
      II. Legal Background: The Familiar Batson Framework ................... 18
      III. Argument: The trial court was within its discretion to believe
      the State’s facially race-neutral question was, in fact, a race-neutral
      question. ................................................................................................................... 19
Reply to Point Seven
   The alleged hearsay the appellant complains about is so insignificant
   that it could not possibly have affected the trial. ......................................... 21
Conclusion .......................................................................................... 25
Certificate of Compliance and Service ........................................... 26




                                                                iv
                                          Index of Authorities



Cases
Banargent v. State
  228 S.W.3d 393 (Tex. App.—
  Houston [14th Dist.] 2007, pet. ref'd) .............................................................. 14
Beall v. Ditmore
  867 S.W.2d 791 (Tex. App.—
  El Paso 1993, writ denied) ............................................................................. 12, 13
Castrejon v. State
  428 S.W.3d 179 (Tex. App.—
  Houston [1st Dist.] 2014, no pet.) ...................................................................... 11
Garcia v. State
  126 S.W.3d 921 (Tex. Crim. App. 2004) ........................................................... 24
Gibson v. State
  144 S.W.3d 530 (Tex. Crim. App. 2004) .................................................... 18, 21
Jasper v. State
  61 S.W.3d 413 (Tex. Crim. App. 2001) .............................................................. 21
Johnson v. State
  878 S.W.2d 164 (Tex. Crim. App. 1994) ........................................................... 11
King v. State
  953 S.W.2d 266 (Tex. Crim. App. 1997) ........................................................... 22
Lagrone v. State
  942 S.W.2d 602 (Tex. Crim. App. 1997) ........................................................... 13
Moyer v. State
 948 S.W.2d 525 (Tex. App.—
 Fort Worth 1997, pet. ref’d) ................................................................................. 24
Purkett v. Elem
  514 U.S. 765 (1995) ................................................................................................. 18
Smith v. State
  420 S.W.3d 207 (Tex. App.—
  Houston [1st Dist.] 2013, pet. ref’d) ................................................................. 22


                                                            v
State v. Scheineman
  77 S.W.3d 810 (Tex. Crim. App. 2002) .............................................................. 15
Union City Body Co., v. Ramirez
  911 S.W.2d 196 (Tex. App.—
  San Antonio 1995) (orig. proceeding) ............................................................. 12


Rules
TEX. R. EVID. 103............................................................................................................... 15
TEX. R. EVID. 803 .............................................................................................................. 23




                                                                vi
                         Statement of the Case

      The appellant was indicted for capital murder committed during

the course of a robbery. (CR 7). The appellant pleaded not guilty, but a

jury found him guilty as charged. (CR 99, 101). As the State had not

sought the death penalty, the trial court assessed punishment at

confinement for life without the possibility of parole. (CR 101). The trial

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

notice of appeal. (CR 100, 104).


                           Statement of Facts

      The appellant used to go to a vacant house and get high with his

friends Amber Thornton and Tony Escobar. (4 RR 55, 62). One day, they

decided to rob and kill their drug dealer, Russell Lopez, so that they

could get more drugs. (4 RR 72). The appellant called Lopez and

arranged to go over to Lopez’s house and trade a laptop for $60 worth of

cocaine. (4 RR 74, 77). When they arrived, Lopez was sitting in the

dining room; his 7-month old daughter was in a high chair, and the

cocaine was on the table. (4 RR 77). The appellant took out a hammer

that he was carrying in his pocket and struck Lopez on the head. (4 RR

78). Lopez wobbled a bit, then the appellant struck him again. (4 RR 78-

                                    1
79). Lopez fell down, and the appellant continued to strike him

repeatedly with both the face and claw of the hammer. 1 (4 RR 79).

Escobar went into the back of the house and tied up Lopez’s other two

children in their bedroom. (4 RR 79-80). The robbers then ransacked

the house, looking for valuables to steal. (4 RR 82).

      At some point while looking for valuables, the appellant and

Escobar dragged Lopez — who seems to have still be alive — from the

kitchen into the bedroom. (4 RR 84). The appellant found a decorative

sword and stabbed Lopez several times, including in the throat. (4 RR

84-86; 5 RR 50-51). The robbers loaded up a safe and a couple of

thousand dollars’ worth of items into Lopez’s SUV. (4 RR 87). They

dropped off the stolen goods at the vacant house, and then they dumped

the SUV in a secluded location. (4 RR 87-88). Lopez’s wife returned

home shortly thereafter and discovered the gruesome scene. (3 RR 34-

36, 205-06).




1The medical examiner testified that Lopez suffered “at least 16” blunt force
impacts, and “approximately eight” instances of “sharp force trauma” that were
consistent with being struck with the claw of a hammer. (5 RR 41-42, 48).
                                      2
              Reply to Points One, Two, Three, and Four


The only preserved objection to the admission of the appellant’s
jail calls is his Fifth Amendment complaint. However, because the
appellant was not being interrogated by anyone associated with
law enforcement, the Fifth Amendment has no application here.

      The appellant’s first four points all relate to the admission of

recorded phone calls he made while he was in jail.


    I.   Background

            A. The State’s Evidence and the Jail Calls

      The State presented a fair amount of straight-forward evidence of

the appellant’s guilt. Thornton testified to the all of the events

surrounding the robbery and identified the appellant as the killer. (4 RR

74-88). Lopez’s young son, C.L., identified the appellant as one of the

robbers. (5 RR 142). And a jailhouse informant testified that the

appellant had confessed to the murder, and that the appellant’s

nickname in jail was “Hammer.” (5 RR 81-85).

      The State also admitted evidence regarding the appellant’s actions

in the days after the murder. David Tillman testified that around that

time the appellant came to his house and asked if he knew of a chop

shop where he could get rid of a truck. (4 RR 177-78). Witnesses

testified that after the appellant became a suspect in the police
                                   3
investigation, he attempted to flee to Mexico but was arrested in Laredo.

(4 RR 99-100; 5 RR 80).

      While the appellant was in the Webb County jail, he made several

phone calls that were recorded. State’s Exhibit 111 is a CD containing

audio file recordings of four of these phone calls. Because the file names

on the exhibit are cumbersome and not helpfully descriptive, the State

will assign numbers to the calls. Nothing in the record indicates what

order these calls occurred in, but based on the content the State’s

appellate counsel would guess it is this order:

   1. “JOSEPH FACUNDO DOB 11-17-1993.mp3” (6 minutes, 14

      seconds)

   2. “JOSEPH FACUNDO DOB 11-17-1993 2.mp3” (5 minutes, 43

      seconds)

   3. “13253675488328592674.wav” (11 minutes, 28 seconds)

   4. “13254591348327662174.wav” (3 minutes, 4 seconds)

      Phone call 1 is between the appellant and his mother. He starts off

by proclaiming his innocence and saying that she needs to believe he is

innocent. She asks if he did not do it, who did: “Because I know you

know.” He reiterates his innocence and then asks her to get him a lawyer.

She is surprised to learn that he is presently in jail, so she asks for
                                    4
details about that. He says that he is in Laredo. He then asks her whether

she has gotten him a lawyer yet, and she details her efforts. The

appellant then begins proclaiming his innocence, stating that he has

people who will testify that he was “at the bayou” at the time of the

murder, which will prove that he is innocent. She replies that he needs to

wait until he has a lawyer and then tell “the detectives” about his alibi.

The appellant begins crying, telling her that he is innocent and he wants

to see her. His mother gets angry and tells him that he is going to have to

start with a court-appointed lawyer before she can hire one for him. The

appellant then detailed his arrest, and relayed the little bit of

information he had been provided by the authorities in Webb County.

His mother tells him that he needs to request a court-appointed lawyer

so that he can then provide the police with his alibi. The appellant states

that his alibi is that he and Escobar were at the bayou “with another

friend of ours.” The appellant says that he is working on finding out that

other person’s name. His mother replies that she knows that the

appellant “knows something” about the murder. She also tells him not to

talk to the police without his lawyer present.

      Phone call 2 is between the appellant and Roy. The appellant tells

Roy that he needs Roy to get someone’s phone number, but he does not
                                    5
know the name of the person. The appellant tells Roy that this unnamed

person was his alibi. The appellant says that, while he does not know the

person’s name, he knows him as “Blinky.” Roy says that he knows of

Blinky. Roy asks the appellant how he knows that Blinky will provide

him with an alibi, and the appellant says he knows because he talked

with Blinky about the matter before getting arrested. The appellant then

changed the topic and told Roy to pressure the appellant’s mother to get

him a lawyer. Roy— who the appellant calls “dad” at times on this call —

asks the appellant about his failed effort to escape to Mexico, and the

appellant explains that he was unable to cross the border because he

was “set up.” Roy then returns to talking about getting a lawyer for the

appellant. The appellant reiterates that he is innocent and has an alibi.

Roy says that he would need to explain that to the lawyer, and the

appellant entreats Roy to help his mother find a lawyer for him. Roy says

that he will “see what [he] can do.”

      Phone call 3 is the appellant calling his mother. The conversation

begins at the 1:39 mark. The call begins with the appellant’s mother

telling him that these phone calls are expensive. The appellant asks if

she has hired a lawyer for him yet, and she says she has not. She advises

him to watch what he says because the calls are recorded. They discuss
                                       6
the logistics of a relative visiting him, and then they turn the topic back

to the family hiring a lawyer for him. His mother gets upset at him and

demands that he “have patience with us” in his demands for a lawyer.

She advises him that if he’s innocent, he “better start praying,” after

which he insists that he is innocent and claims that the only evidence

against him was “that white girl” who said he was with her at the

murder, but he was not there. The appellant’s mother cautioned him

against talking about the case on the phone; the appellant responded by

claiming that police had not found his fingerprints at the scene. The

discussion turned back toward acquiring a lawyer for him. The appellant

said that Escobar had a lawyer, so he gave his mother information on

how to find out how to contact Escobar’s lawyer. The appellant’s mother

told the appellant that when he got a lawyer he needed to tell the lawyer

everything, and not try to protect others or cover up information. After

that, the conversation turned to mundane details of life from the

appellant’s mother. The call concludes with the appellant telling her he

loves her, and then pleading for help.

      Phone call 4 is the appellant calling a male whose name is

inaudible. The conversation on call 4 begins at the 1:33 mark and lasts



                                    7
less than half a minute. In this call, the appellant asks the other person

to “give Blinky’s number” to Roy.

      At trial, the State also presented evidence that in the days after the

murder the appellant pressured Jimmy Whalen, aka Blinky, to lie and

state that he was the appellant’s alibi. (5 RR 17).


            B. The Appellant’s Trial Objections

      When the State offered the jail calls into evidence, the appellant

made numerous objections. First, defense counsel objected to “the

predicate,” claiming that no one had identified who the voices on the

recording were and “whether the person operating this equipment was

capable of doing it.” (4 RR 32). Then, defense counsel claimed that

recording inmates’ jail calls was “tantamount to a wire tap,” and, as there

was no authority for a wire tap, the recordings were illegally obtained

evidence that should be excluded. (4 RR 33). The trial court overruled

these objections. (4 RR 33).

      Defense counsel then objected based on “the violation of the Fifth

Amendment.” (4 RR 34). The only explanation defense counsel offered of

this argument was that “[h]e’s in custody at that point.” (4 RR 34). A

prosecutor responded that the appellant “is not subject to counsel on


                                     8
the phone. He has no right to privacy to that conversation in jail, and the

State would assert there’s no Fifth Amendment violation.” (4 RR 34-35).

The trial court overruled the objection and stated that State’s 111 was

admitted into evidence. (4 RR 35). The State, however, asked to play the

recordings “at a later time,” and the trial court said that would be fine. (4

RR 35).

      The next day, defense counsel stated that he had additional

objections prior to the recordings being published to the jury. (5 RR 3).

      I would object to those portion of those conversations
      between my client and family members that deal with
      specifically his parents’ efforts at retaining counsel on his
      behalf, his admonitions or warnings from his mother about
      not talking to law enforcement and everything pertaining to
      that subject matter of representation and counsel and his
      need not to talk to anyone, his need to immediately invoke
      his rights to counsel, and that whole line of conversation as
      being irrelevant. And since these are post arrest statements,
      a jury could hear that to potentially infer comments on his
      post-arrest right to silence. It is tantamount to an implicit
      suggestion perhaps of his guilt, and I just think it’s
      irrelevant, inflammatory, and prejudicial.

(5 RR 3).

      The trial court overruled the objection. (5 RR 3). A prosecutor

then asked to “put something on the record,” and noted that the exhibit

was already in evidence and the objection was untimely. (5 RR 3-4). The

prosecutor addressed the merits of the appellant’s objection by noting
                                     9
that none of the phone calls did involved law enforcement officers, thus

the Fifth and Sixth Amendments were not implicated. (5 RR 4-5). The

trial court replied by noting that the objection was overruled as “not

timely.” (5 RR 5).


    II.     The Appellant’s Points

      Because of the disjointed manner in which the appellant’s

arguments were presented to the trial court, the threshold question

regarding the appellant’s first three points is what arguments, exactly,

were preserved. This is the matter addressed in his fourth point, which

asserts that the trial court erred in overruling his second objection,

made the day after the evidence was admitted, as untimely. The State

will address the appellant’s fourth point first.


               A. Reply to Point Four: The appellant’s objection, made
                  the day after the evidence was admitted, was
                  untimely and preserved nothing for review.

          In his fourth point of error, the appellant asserts that the trial

court erred by overruling his second objection as untimely. (See

Appellant’s Brief at 27-29). The normal rule is that an objection must be

raised as soon as the basis for objection becomes apparent, or else the

matter is forfeited. Johnson v. State, 878 S.W.2d 164, 167 (Tex. Crim. App.

                                      10
1994). The appellant argues that this rule should not apply here because

his objection, though made well after the basis for the objection was

apparent, still occurred before the evidence was published to the jury.

      This Court faced an almost identical situation in Castrejon v. State,

428 S.W.3d 179 (Tex. App.—Houston [1st Dist.] 2014, no pet.). There,

the State offered into evidence an audio recording and, over one

objection, the trial court admitted it into evidence. Castrejon, 428 S.W.3d

at 182-83. However, the State did not play the audio recording until

closing argument, at which time the defendant raise a second, separate

objection. Id. at 183. This Court held that, even though the second

objection was made prior to the audio recording being published to the

jury, the objection was untimely and presented nothing for review on

appeal. Id. at 186.

      The State believes that Castrejon controls here. The appellant’s

second objection, though made prior to publication of the audio

recordings, was made well after the recordings were admitted into

evidence. Therefore that objection was untimely and preserved nothing

for review.

      The only authority cited by the appellant to show that his second

objection was still timely is dicta from a 20-year-old civil case from the
                                    11
Fourth Court of Appeals. (See Appellant’s Brief at 28). Upon closer

analysis, though, this case does not actually help the appellant.

      The appellant quotes Union City Body Co., v. Ramirez, 911 S.W.2d

196 (Tex. App.—San Antonio 1995) (orig. proceeding). This case

involved multiple defendants. One of them moved for severance. The

trial court granted the severance, but the next day another defendant,

the Union City Body Company, objected to the severance. The trial court

held the objection to severance was untimely, and a mandamus action

ensued. In discussing the timeliness of the trial objection, the Union City

Body Co. court used the sentence that the appellant quotes in his brief:

‘Timeliness’ defies definition and generally the question of what is

timely or otherwise must be left to the sound discretion of the trial

judge, but such objection need not be immediate.” 911 S.W.2d at 201

(quoting Beall v. Ditmore, 867 S.W.2d 791, 795 (Tex. App.—El Paso 1993,

writ denied)). The Fourth Court then went on to hold that the trial court

was within its discretion to reject the objection as untimely. Id. at 202-

203. Thus, if the rule of Union City Body Co. is that a trial court has

discretion in determining whether a non-contemporaneous objection is

timely, that would weigh in favor of upholding the trial court’s



                                    12
determination, in this case, that the appellant’s non-contemporaneous

objection was untimely.

       The dicta in Union City Body Co. was a quote from another civil

case, this one from the Eight Court of Appeals. In Beall, the defendant’s

attorney seems to have accidentally elicited inadmissible evidence on

cross-examination, but then asked another, unrelated question and only

objected after this subsequent question was answered. Beall, 867 S.W.2d

at 793. The trial court seems to have treated the objection as timely

enough and ruled on it. On appeal, the Eighth Court rejected the

appellee’s preservation argument and held that, even though the

objection was not contemporaneous it was “timely” enough. Id. at 795.

The Eighth Court then rejected the appellant’s claim on the merits. Id. at

796.

       Whatever the merits of the holding in Beall at the time and in the

context of when it was decided, modern Texas criminal law applies a

much stricter preservation requirement. See, e.g., Lagrone v. State, 942

S.W.2d 602, 618 (Tex. Crim. App. 1997) (where defense counsel did not

object until after objectionable question was answered, objection was

untimely and preserved nothing for review).



                                   13
      The appellant’s second objection was untimely, and none of the

arguments made in that objection are preserved for appeal. This Court

should reject the appellant’s fourth point (challenging the overruling of

his second objection), and in dealing with the appellant’s first three

points this Court should restrict itself to considering the matters

preserved in the appellant’s first, timely objection.


            B. Reply to Point One: Statements made on a phone call
               to family members are not custodial statements for
               Fifth Amendment purposes.

      In his first point, the appellant claims that the statements he made

on the phone calls were custodial statements, and thus they were

inadmissible because he was not mirandized. (Appellant’s Brief at 25;

see 4 RR 34-35). However, the Fifth Amendment right to counsel applies

only during interrogations with law enforcement agents; the appellant

was placing phone calls to family members who seem to have had no

connection with law enforcement, thus the Fifth Amendment has no

application. See Banargent v. State, 228 S.W.3d 393, 402 (Tex. App.—

Houston [14th Dist.] 2007, pet. ref’d) (recordings of phone calls made

by defendant from prison were not the product of custodial

interrogation); State v. Scheineman, 77 S.W.3d 810, 813 (Tex. Crim. App.


                                    14
2002) (no custodial interrogation occurred when incarcerated

defendant spoke in bugged jail room with incarcerated co-defendant).

Because the objected-to statements were not the product of custodial

interrogation, this Court should overrule the appellant’s first point.


            C. Reply to Points Two and Three: The appellant’s Sixth-
               Amendment and “due process” complaints were not
               timely presented to the trial court and thus present
               nothing for this Court’s review.

      In his second point of error, the appellant claims that recording

the phone calls violated his Sixth Amendment right to counsel.

(Appellant’s Brief at 23-24, 26). However, the only time the appellant

mentioned the Sixth Amendment at trial was during his second,

untimely objection to the evidence. (See 4 RR 32-35; 5 RR 3-5). Because

this argument was not presented to the trial court in a timely manner, it

cannot be the basis of reversal on appeal. TEX. R. EVID. 103(a).

      In his third point, the appellant claims that recording his phone

calls violated “due process.” (Appellant’s Brief at 24-25, 27). This

argument was never presented to the trial court and thus presents

nothing for this court’s review.




                                    15
                      Reply to Points Five and Six


The appellant’s points make sense only if one presumes all
Hispanic people live in ethnically segregated communities. Asking
a venire member for his opinion on law enforcement “in your
community where you live” is not a race-based question.

      In his fifth and sixth points of error, the appellant complains about

the trial court’s denial of a Batson challenge he raised during voir dire.

The appellant separates this argument into two different points. In his

sixth point, the appellant claims that the State violated the ban on

striking jurors based on race announced in Batson v. Kentucky, 476 U.S.

79 (1986). (Appellant’s Brief at 35-37). In his fifth point, the appellant

argues that the State violated the Texas statutory ban on striking jurors

based on race contained in Code of Criminal Procedure Article 35.261.

(Appellant’s Brief at 34-37). But Article 35.261 is simply a state

codification of Batson. The State is not aware of any way in which

appellate review of these claims differs, and the appellant does not point

out any such distinctions in his brief. The State will brief this matter as a

Batson challenge, as that is the more regularly cited authority.




                                     16
    I.   Factual Background: The Appellant’s Batson
         Challenges

      After the parties had made their strikes but before the jury was

sworn, defense counsel objected because the State had used two of its

peremptory strikes on venire members 26 and 34, who were Hispanic.

(2 RR 196-97). According to defense counsel, there were three Hispanic

members of the venire after the court had excused those who were

challengeable for cause, meaning the State had struck “66% or two-

thirds of the Hispanics on this panel.” (2 RR 197).

      The trial court asked the State to explain why it had struck venire

members 26 and 34. (2 RR 197). The State explained that it had struck

venire member 26 because when a prosecutor asked him to rate, on a 1-

to-4 scale, his view of law enforcement, venire member 26 had selected

2. (2 RR 198, see 2 RR 81, 83). The State pointed out that it had struck

everyone who answered 2 to that question. (2 RR 198). The State also

said that venire member 26 had said he suffered from arthritis and

believed he would have a hard time focusing on the case because of the

pain. (2 RR 198).

      Regarding venire member 34, the State explained that he, too, had

answered “2” on the law-enforcement question. (2 RR 198-99, see 2 RR


                                    17
81, 84). In addition, the State pointed out that venire member 34 had

said he did not believe the State should prosecute capital murder cases.

(2 RR 199, see 2 RR 74, 77). The State also pointed out that venire

member 34 had said he did not find jailhouse informants credible. (2 RR

198, see 2 RR 65, 68). The trial court overruled the appellant’s Batson

challenge. (2 RR 199).


   II.   Legal Background: The Familiar Batson Framework

      The three steps of a Batson hearing are well-known. First, the

opponent of a peremptory strike must make out a prima facie case of

racial discrimination. Second, the burden of production shifts to the

proponent of the strike to come forward with a race-neutral

explanation. Third, the trial court determines whether the opponent of

the strike has proved purposeful racial discrimination. The burden of

persuasion rests with, and never shifts from, the opponent of the strike.

Purkett v. Elem, 514 U.S. 765, 767 (1995).

      The determination of whether the proponent's explanation is a

pretext “is solely a question of fact; there is no issue of law.” Gibson v.

State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004). Because the trial

court's fact finding will be based on factors not evident in the record,


                                    18
such as the lawyers' courtroom demeanor and credibility, a reviewing

court will give great deference to the fact finding and reverse only if the

finding was clearly erroneous. Ibid.


   III.   Argument: The trial court was within its discretion to
          believe the State’s facially race-neutral question was, in
          fact, a race-neutral question.

      The appellant does not dispute that the State, as it claimed,

actually struck all the remaining venire members who answered “2” to

the question regarding law enforcement. (Appellant’s Brief at 32).

Instead, the appellant claims that the question itself was a method of

racial discrimination because it inquired into the venire members’

opinion of law enforcement “in your community where you live”:

      Since it is not uncommon for people of similar race,
      nationalities, cultures and/or backgrounds to live in the
      same area and share similar opinions, including opinions
      about law enforcement, the answer solicited resulted in the
      same outcome as if the State would have asked, “In you
      Hispanic neighborhood, what is your opinion of law
      enforcement.”

(Appellant’s Brief at 36) (footnote omitted).

      There are several possible ways to address this assertion. The first

is to point out that it makes sense only if one assumes that all Hispanic




                                       19
people live in ethnically segregated communities. That assumption is

incorrect 2 and without basis in the record.

       Another possible response to the appellant’s assertion is that,

even if true, it would not show racial discrimination. Defense counsel

identified venire member 38 as the other Hispanic venire member. (2 RR

197). He answered “3” on the question about law enforcement and the

State did not strike him.3 (See 2 RR 81, 84). Accepting the appellant’s

assumption that all Hispanic people live in ethnically segregated

communities, the State’s failure to strike venire member 38 shows that

the State was willing to accept people who lived in Hispanic

communities where people had a more positive view of law

enforcement. This would prove that the State struck venire members 26

and 34 based on their view of law enforcement and not on the fact that

they lived in Hispanic communities.

       The simplest and most basic response to the appellant’s assertion

is that the State provided a race-neutral explanation for its strikes, that


2See https://upload.wikimedia.org/wikipedia/commons/8/8a/Race_and_ethnicity_
2010-_Houston.png (map, based on 2010 Census data, showing racial makeup of
Houston).

3The State did not use all its strike, thus the prosecutors could have struck venire
member 38 if they had intended to strike all Hispanic people from the jury. (See 2 RR
197).
                                        20
explanation is supported by the record, and the trial court observed the

demeanor of the prosecutors and believed the race-neutral explanation.

In such a situation, this Court must defer to the trial court’s finding and

overrule the appellant’s points. See, e.g., Jasper v. State, 61 S.W.3d 413,

422 (Tex. Crim. App. 2001); Gibson, 114 S.W.3d at 534.


                          Reply to Point Seven


The alleged hearsay the appellant complains about is so
insignificant that it could not possibly have affected the trial.

      State’s Exhibit 3 is the report created by the paramedic who

responded to the scene and found Lopez dead. (3 RR 54-57). The author

of the report testified at trial. (3 RR 54). The State proffered it as a

business record, exempt from the hearsay rule. (3 RR 55). When it was

offered into evidence, the appellant objected that the narrative portion

of the report contained hearsay within hearsay. (3 RR 55-56). The trial

court overruled that objection. (3 RR 56). In his seventh point the

appellant asserts that the trial court erred. (Appellant’s Brief at 37-40).

      The narrative portion of the report reads:

      Upon arrival PT presented supine in bedroom of home. PT
      was covered in blood, Pulse less and Apneic. PT was cold
      and cyanotic with lividity. PT had sword laying across his
      left chest and left arm. PT had brain matter and skull

                                    21
       fragments beside his body. PT had laceration to right chest
       and throat. PT had penetrating trauma to right cheek
       esposing bone and tissue. 6 second strip performed
       showing Astyote. PT pronounced DOS due to unknown
       downtime and injuries incompatible with life. House had
       blood splatter on ceiling of bedroom just above the body as
       well as in living room and kitchen. Kitchen pantry had
       copious amounts of coagulated blood on floor. House
       appeared to be ran sacked as TV in bedroom was upside
       down on floor. Drawers in living room and bedroom were
       overturned. TV in living room was missing. PT family was
       taken to back bedroom awaiting SO arrival. Upon arrival of
       SO report given to officer. Assistant chief and Medic 41
       remained on scene to give report to homicide detective.

(State’s Ex. 3).

       Error in the admission of evidence is non-constitutional error

subject to harm analysis under Rule of Appellate Procedure 44.2(b).

Smith v. State, 420 S.W.3d 207, 219 (Tex. App.—Houston [1st Dist.] 2013,

pet. ref’d). Under this standard, appellate courts must disregard any

error that did not affect the defendant’s substantial rights. Ibid. A

substantial right is affected when the error had a substantial and

injurious effector influence in determining the jury’s verdict. Ibid.

(quoting King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)). This

Court should affirm the conviction if, after reviewing the record, it has

fair assurance that the error did not influence the jury, or had but a

slight effect. Ibid.


                                   22
        Assuming, without conceding, that this was inadmissible hearsay,

the State notes that the appellant offers no explanation of how the

admission of the narrative paragraph harmed him. (See Appellant’s Brief

at 37-40). There was no dispute at trial over the fact that Lopez was

killed, or over the manner in which he was killed. The narrative

paragraph contains nothing that makes it more or less likely that the

appellant was involved with the murder. The only information in this

paragraph that was not admitted, without objection, through other

witnesses are a couple of minor medical details (e.g. “6 second strip

performed showing Astyote”) that had no bearing on any issue at trial.

This Court should reject the appellant’s seventh point because the

evidence of which he complained could not possibly have influenced the

jury.

        On the merits, though, this paragraph is not even inadmissible

hearsay. All it contains is the observations of the paramedic who made

the record, and this is plainly what is allowed under the business-

records exception to the hearsay rule. See TEX. R. EVID. 803(6); Moyer v.

State, 948 S.W.2d 525, 528 (Tex. App.—Fort Worth 1997, pet. ref’d)

(paramedic’s report of observations admissible as business record). Had

the report contained information that someone else told the paramedic,
                                   23
that would have been inadmissible hearsay within hearsay. See, e.g.,

Garcia v. State, 126 S.W.3d 921, 926 (Tex. Crim. App. 2004). There is no

indication that is the case here, however. The only example of supposed

hearsay-within-hearsay that the appellants specified in his objection

was the paramedic’s observation that a television was missing.

According to the appellant, “[s]omeone had to have told her” that there

had been a television at the house in order for the paramedic to infer

that a television was missing. But nothing in State’s Exhibit 3 or the

paramedic’s testimony implies that someone told her a television was

missing. According to another witness, there was a place in the living

room where “it appeared to have had at some time a television in that

location. There were cables coming out that … would have been going

into a television.” (3 RR 149 (describing crime scene photo, State’s

Exhibit 14, that is very difficult to make out in the appellate record)).

Anyone familiar with a typical home could observe a blank spot on the

wall or cabinet with wires going to it and conclude that a television was

missing.

      This Court should reject the appellant’s seventh point. The

evidence he complains of was not hearsay, and even if it was it was so

insignificant that its admission does not warrant reversal.
                                   24
                                 Conclusion

      The State respectfully submits that all things are regular and the

judgment of the trial court should be affirmed.



                                              DEVON ANDERSON
                                              District Attorney
                                              Harris County, Texas


                                              /s/ C.A. Morgan
                                              CLINTON A. MORGAN
                                              Assistant District Attorney
                                              Harris County, Texas
                                              1201 Franklin, Suite 600
                                              Houston, Texas 77002
                                              713.274.5826
                                              Texas Bar No. 24071454




                                   25
                 Certificate of Compliance and Service

      I certify that, according to Microsoft Word’s word counting

function, the portion of this brief for which Rule of Appellate Procedure

9.4(i)(1) requires a word count contains 5,132 words.

      I also certify that I have requested that efile.txcourts.gov

electronically serve a copy of this brief to:

      Patrick McCann
      writlawyer@justice.com

      Dawn Zell Wright
      zellwright@zwlaw.us

                                                /s/ C.A. Morgan
                                                CLINTON A. MORGAN
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002-1923
                                                713.274.5826
                                                Texas Bar No. 24071454


Date: November 25, 2015




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