                                                                               AP-77,025
                                                            COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                         No. AP-77,025                   Transmitted 4/15/2015 12:03:53 PM
April 15, 2015                                             Accepted 4/15/2015 12:37:33 PM
                                                                              ABEL ACOSTA
                              In the                                                  CLERK
                  Texas Court of Criminal Appeals
                            At Austin
                      

                            No. 1384794
                     In the 337th District Court
                      Of Harris County, Texas
                      

                 OBEL CRUZ-GARCIA
                                 v.
                 THE STATE OF TEXAS
                      

                  STATE’S APPELLATE BRIEF
                      


                                             DEVON ANDERSON
                                             District Attorney
                                             Harris County, Texas

                                             JESSICA AKINS
                                             Assistant District Attorney
                                             Harris County, Texas

                                             NATALIE TISE
                                             JUSTIN WOOD
                                             Assistant District Attorneys
                                             Harris County, Texas

                                             1201 Franklin, Suite 600
                                             Houston, Texas 77002
                                             Telephone: 713.755.5826
                                             Fax: 713.755.5809

                                             Counsel for the State of Texas

                 Oral argument conditionally waived
                       IDENTIFICATION OF THE PARTIES

      Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all

interested parties is provided below.

      Victim:

             A.G.  a child victim referred to as Adam, age six

      Counsel for the State:

             Devon Anderson, District Attorney of Harris County
             Jessica Akins, Assistant District Attorney on appeal
             Natalie Tise & Justin Wood, Assistant District Attorneys at trial
             1201 Franklin, Suite 600, Houston, Texas 77002

             Lisa McMinn, State Prosecuting Attorney
             P. O. Box 13046, Austin, Texas 78711

      Appellant or criminal defendant:

             Obel Cruz-Garcia

      Counsel for Appellant:

             R.P. Cornelius & Mario Madrid  Counsel at trial
             Wayne T. Hill  Counsel on appeal
             4615 Southwest Frwy, Suite 600, Houston, Texas 77027

      Trial Judge:

             Honorable Renee Magee  Presiding Judge
                                              TABLE OF CONTENTS



IDENTIFICATION OF THE PARTIES ................................................................................ i

INDEX OF AUTHORITIES ................................................................................................... iii

STATEMENT REGARDING ORAL ARGUMENT .......................................................... 1

STATEMENT OF THE CASE ................................................................................................. 1

STATEMENT OF FACTS ....................................................................................................... 2

SUMMARY OF THE ARGUMENT .................................................................................... 15

REPLY TO APPELLANT’S FIRST ISSUE ..........................................................................16

REPLY TO APPELLANT’S SECOND ISSUE ................................................................... 23

REPLY TO APPELLANT’S THIRD ISSUE ....................................................................... 26

REPLY TO APPELLANT’S FOURTH & FIFTH ISSUES ............................................. 33

REPLY TO APPELLANT’S SIXTH & SEVENTH ISSUES ........................................... 38

REPLY TO APPELLANT’S EIGHTH, NINTH, TENTH & ELEVENTH ISSUES .. 43

REPLY TO APPELLANT’S TWELFTH ISSUE ............................................................... 55

CONCLUSION ........................................................................................................................ 65

CERTIFICATE OF SERVICE .............................................................................................. 66




                                                                 ii
                                           INDEX OF AUTHORITIES


CASES

Allen v. State,
  149 S.W.3d 254 (Tex. App.—
  Fort Worth 2004, pet. ref’d) .............................................................................................48
Bargas v. State,
  252 S.W.3d 876 (Tex. App.—
  Houston [14th Dist.] 2008, no pet.) ................................................................................ 30
Bigby v. State,
  892 S.W.2d 864 (Tex. Crim. App. 1994).................................................................. 35, 37
Borjan v. State,
  787 S.W.2d 53 (Tex. Crim. App. 1990) ........................................................................... 43
Brooks v. State,
  323 S.W.3d 893 (Tex. Crim. App. 2010) ........................................................................ 26
Brown v. State,
  270 S.W.3d 564 (Tex. Crim. App. 2008) ....................................................................... 43
Burks v. State,
  227 S.W.3d 138 (Tex. App—
  Houston [1st Dist.] 2006, pet. ref’d) ............................................................................... 36
Burks v. State,
  876 S.W.2d 877 (Tex. Crim. App. 1994) ..................................................................35, 36
Cantrell v. State,
  731 S.W.2d 84 (Tex. Crim. App. 1987) ........................................................................... 35
Carlock v. State,
  8 S.W.3d 717 (Tex. App.—
  Waco 1999, pet. ref’d) ..........................................................................................................51
Chambers v. Mississippi,
  410 U.S. 284 (1972) .............................................................................................................. 41
Clark v. State,
  365 S.W.3d 333 (Tex. Crim. App. 2012).........................................................................24



                                                                  iii
Cockrell v. State,
  933 S.W.2d 73 (Tex. Crim. App. 1996) ...........................................................................49
Cofield v. State,
  891 S.W.2d 952 (Tex. Crim. App. 1994) ....................................................................... 40
Colyer v. State,
  428 S.W.3d 117 (Tex. Crim. App. 2014) .................................................................. 57, 62
Curry v. State,
  30 S.W.3d 394 (Tex. Crim. App. 2000) ......................................................................... 29
Darrow v. State,
  504 S.W.2d 416 (Tex. Crim. App. 1974) ........................................................................ 23
Dossett v. State,
  216 S.W.3d 7 (Tex. App.—
  San Antonio 2006, pet. ref’d) ..................................................................................... 22, 23
Druery v. State,
  225 S.W.3d 491 (Tex. Crim. App. 2007) ........................................................................ 19
Foster v. State,
  180 S.W.3d 248 (Tex. App.—
  Fort Worth 2005, pet. ref’d) ............................................................................................. 25
Fountain v. State,
  401 S.W.3d 344 (Tex. App.—
  Houston [14th Dist.] 2013, pet. ref’d) ............................................................................. 30
Freeman v. State,
  340 S.W.3d 717 (Tex. Crim. App. 2011) ............................................................ 43, 45, 46
Fuentes v. State,
  991 S.W.2d 267 (Tex. Crim. App. 1999) ......................................................................... 50
Garcia v. State,
  246 S.W.3d 121 (Tex. App.—
  San Antonio 2007, pet. ref’d) .............................................................................................51
Garcia v. State,
  537 S.W.2d 930 (Tex. Crim. App. 1976)......................................................................... 23
Geeslin v. State,
  630 S.W.2d 512 (Tex. App.—
  Fort Worth 1982, no pet.).................................................................................................. 35



                                                              iv
Green v. State,
  No. AP-76458, 2012 WL 4673756
  (Tex. Crim. App. 2012) .......................................................................................................54
Hawkins v. State,
  135 S.W.3d 72 (Tex. Crim. App. 2004) .......................................................................... 52
Hines v. State,
  3 S.W.3d 618 (Tex. App.—
  Texarkana 1999, pet. ref’d) ................................................................................................ 63
Hines v. State,
  38 S.W.3d 805 (Tex. App.—
  Houston [14th Dist.] 2001, no pet.) .................................................................................20
Holden v. State,
  201 S.W.3d 761 (Tex. Crim. App. 2006) ......................................................................... 57
Holmes v. South Carolina,
  547 U.S. 319 (2006).............................................................................................................. 41
Hyde v. State,
  846 S.W.2d 503 (Tex. App.—
  Corpus Christi 1993, pet. ref’d) ........................................................................................ 37
In re E.A.K.,
   192 S.W.3d 133 (Tex. App.—
   Houston [14th Dist.] 2006, pet. denied) ........................................................................ 41
Irby v. State,
   327 S.W.3d 138 (Tex. Crim. App. 2010) .........................................................................24
Jackson v. State,
   17 S.W.3d 664 (Tex. Crim. App. 2000) ..........................................................................20
Jackson v. Virginia,
   443 U.S. 307 (1979) .............................................................................................................. 26
Johnson v. State,
  698 S.W.2d 154 (Tex. Crim. App. 1985).........................................................................46
Jones v. State,
  944 S.W.2d 642 (Tex. Crim. App. 1996) ....................................................................... 27
Kelly v. State,
  24 S.W.2d 568 (Tex. Crim. App. 1992) ..........................................................................20



                                                                   v
Krebsbach v. State,
  962 S.W.2d 728 (Tex. App.—
  Amarillo 1998, pet. ref’d) .................................................................................................... 32
Ladd v. State,
  3 S.W.3d 547 (Tex. Crim. App. 1999) .............................................................................54
Lagrone v. State,
  942 S.W.2d 602 (Tex. Crim. App. 1997) ........................................................................ 22
Lewis v. State,
  815 S.W.2d 560 (Tex. Crim. App. 1991) ......................................................................... 41
Lucero v. State,
  246 S.W.3d 86 (Tex. Crim. App. 2008) .........................................................................64
Maddox v. State,
 682 S.W.2d 563 (Tex. Crim. App. 1985) ........................................................................ 16
Martinez v. State,
 17 S.W.3d 677 (Tex. Crim. App. 2000) .................................................................... 45, 53
Martinez v. State,
 178 S.W.3d 806 (Tex. Crim. App. 2005) ....................................................................... 40
McDuff v. State,
 939 S.W.2d 607 (Tex. Crim. App. 1997) .........................................................................31
McFarland v. State,
 845 S.W.2d 824 (Tex. Crim. App. 1992)........................................................................ 50
McGregor v. State,
 394 S.W.3d 90 (Tex. App.—
 Houston [1st Dist.] 2012, pet. ref’d) .......................................................................... 19, 33
McKay v. State,
 707 S.W.2d 23 (Tex. Crim. App. 1985) ........................................................................... 47
McQuarrie v. State,
 380 S.W.3d 145 (Tex. Crim. App. 2012).............................................................57, 61, 62
Melendez–Diaz v. Massachusetts,
 557 U.S. 305 (2009) .............................................................................................................24
Morris v. State,
 322 S.W.2d 632 (Tex. Crim. App. 1959) .........................................................................31




                                                                vi
Mosley v. State,
 983 S.W.2d 249 (Tex. Crim. App. 1998) ........................................................... 45, 47, 53
Muniz v. State,
 851 S.W.2d 238 (Tex. Crim. App. 1993) ......................................................................... 27
Oliver v. Quaterman,
  541 F.3d 329 (5th 2008)............................................................................................... 63, 64
Page v. State,
  137 S.W.3d 75 (Tex. Crim. App. 2004) ........................................................................... 33
Penry v. State,
  903 S.W.2d 715 (Tex. Crim. App. 1995) ......................................................................... 50
Ramon v. State,
  159 S.W.3d 927 (Tex. Crim. App. 2004) ........................................................................ 53
Renteria v. State
  206 S.W.3d 689 (Tex. Crim. App. 2006) ....................................................................... 41
Rodriguez v. State,
  486 S.W.2d 355 (Tex. Crim. App. 1972) ........................................................................ 32
Romero v. State,
  800 S.W.2d 539 (Tex. Crim. App. 1990) ................................................................... 16, 17
Salazar v. State,
  38 S.W.3d 141 (Tex. Crim. App. 2001) ............................................................................ 56
Sharp v. State,
  707 S.W.2d 611 (Tex. Crim. App. 1986) .......................................................................... 29
Smith v. State,
  No. AP-75793, 2010 WL 3787576
  (Tex. Crim. App. 2010) .......................................................................................................42
State v. Ross,
  32 S.W.3d 853 (Tex. Crim. App. 2000) .......................................................................... 16
Tate v. State,
  414 S.W.3d 260 (Tex. App.—
  Houston [1st Dist.] 2013, no pet.) .................................................................................... 65
Torres v. State,
  71 S.W.3d 758 (Tex. Crim. App. 2002) .......................................................................... 40




                                                               vii
Torres v. State,
  794 S.W.2d 596 (Tex. App.—
  Austin 1990, no pet.) ........................................................................................................... 36
Trout v. State,
  702 S.W.2d 618 (Tex. Crim. App. 1985) ......................................................................... 57
Turro v. State,
  950 S.W.2d 390 (Tex. App.—
  Fort Worth 1997, pet. ref’d) ...............................................................................................31
Wallace v. State,
 106 S.W.3d 103 (Tex. Crim. App. 2003) .........................................................................64
Weatherred v. State,
 15 S.W.3d 540 (Tex. Crim. App. 2000) ......................................................................... 40
Wesbrook v. State,
 29 S.W.3d 103 (Tex. Crim. App. 2000) .......................................................................... 47
White v. State,
 225 S.W.3d 571 (Tex. Crim. App. 2007) ........................................................................ 55
Wilson v. State,
  179 S.W.3d 240 (Tex. App.—
  Texarkana 2005, no pet.) ................................................................................................... 50
Wilson v. State,
  7 S.W.3d 136 (Tex. Crim. App. 1999) .............................................................................. 27
Wilson v. State,
  938 S.W.2d 57 (Tex. Crim. App. 1996)........................................................................... 47
Zarate v. State,
  908 S.W.2d 544 (Tex. App.—
  Fort Worth 1995, pet. ref’d) ..............................................................................................48
STATUTES

TEX. CODE CRIM. PROC. ANN.
  art. 37.071 § 2 (a)(1) (West 2013) ..................................................................................... 38
TEX. PENAL CODE ANN.
  § 7.02(a)(2) (West 2013) ................................................................................................... 26
TEX. PENAL CODE ANN.
  § 7.02(b) (West 2013) ......................................................................................................... 26

                                                                viii
TEX. PENAL CODE ANN.
  § 19.03(a)(2)(West 2013)...................................................................................................... 1
RULES

TEX. R. APP. P. 21.3 ............................................................................................................. 55, 65
TEX. R. APP. P. 33.1 ....................................................................................................................24
TEX. R. APP. P. 33.1(a) .............................................................................................................. 50
TEX. R. APP. P. 38.2(a)(1)(A) ..................................................................................................... i
TEX. R. APP. P. 44.2(b)...................................................................................................... 45, 47
TEX. R. EVID. 401 ....................................................................................................................... 25
TEX. R. EVID. 402 ...................................................................................................................... 25
TEX. R. EVID. 403.......................................................................................................... 25, 33, 36
TEX. R. EVID. 404(b) ................................................................................................................ 33
TEX. R. EVID. 606(b)................................................................................................................. 57
TEX. R. EVID. 702 .......................................................................................................................20
TEX. R. EVID. 801(d) ................................................................................................................ 40
TEX. R. EVID. 802...................................................................................................................... 40
TEX. R. EVID. 901(a).................................................................................................................. 19




                                                                    ix
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

               STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to TEX. R. APP. P. 39.7, the State only requests oral argument if this

Court deems it necessary. Appellant waived argument on the front cover of his

brief and within his brief.

                         


                              STATEMENT OF THE CASE

      Appellant was charged by indictment with the offense of capital murder.

(CR 2-3). The indictment alleges appellant intentionally killed Adam while in the

course of committing kidnapping on September 30, 1992. (CR 2-3; RR XVII 17-18).

TEX. PENAL CODE ANN. § 19.03(a)(2)(West 2013).

      After finding appellant guilty of the charged offense, the jury answered the

punishment special issues in a manner mandating the imposition of the death

penalty. (CR 506, 523-527, 530-531; RR XXIII 100-104; RR XXVII 9-11). TEX.

CODE CRIM. PROC. ANN. art. 37.071 §2(g) (West 2013). Direct appeal to this Court

is automatic. TEX. CODE CRIM. PROC. ANN. art. 37.071 §2(h) (West 2013).

                         
                           STATEMENT OF FACTS

      The victim in this case is six-year-old Adam, the son of Diana Garcia; he

lived with his mother and her boyfriend Arturo Rodriguez in an apartment in 1992.

(CR 2-3; RR XVIII 125, 144-145, 195-197, 205). After Arturo lost his job, he began

selling drugs out of their apartment to support the family. (RR XVIII 127-128, 197-

199). When Diana found out, she was unhappy, but ended up helping him since he

could not find work. (RR XVIII 128, 198).

      Appellant supplied the drugs to Arturo and Diana; they knew him as

“Chico.” (RR XVIII 128-129, 141, 167, 172, 177, 199-201; RR XX 84, 93; State’s

Exhibit Number 83). They also knew one of his associates, Carmelo Martinez

Santana, who went by the name “Rudy.” (RR XVIII 138, 142; RR XX 85; RR XXI

39; State’s Exhibit Number 85). The family knew both of them very well, and

Diana even leased an apartment for appellant and his wife Angelita because they

had credit issues. (RR XVIII 135-138, 201-202; RR XIX 11; RR XX 93-94; State’s

Exhibit Number 42). Although they were close friends, Diana and others noted

that appellant was a strong person, the leader of the drug operation and everyone

in the group took direction from him. (RR XVIII 138-139; RR XIX 152-155; RR XX

123). Two to three weeks prior to the offense, Diana and Arturo decided to stop

selling drugs for appellant, and he was not happy about it. (RR XVIII 133-134,

203-204).



                                        2
      On the evening of September 30, 1992, shortly before midnight, the couple

was awakened to a loud noise; the front door of their apartment was kicked in.

(RR XVIII 47-48, 69, 149, 206-207; RR XIX 58; State’s Exhibit Number 11). Arturo

got out of bed and encountered a tall masked man holding a gun. (RR XVIII 149-

151, 208-209; RR XIX 34). This man gave them both instructions; he forced Diana

on the bed and tied up Arturo with the alarm clock cord. (RR XVIII 74, 77, 152-

153, 158-160, 210-212). He repeatedly kicked Arturo and hit him over the head with

the handgun until he was knocked unconscious. (RR XVIII 153-158, 212-213; RR

XIX 77).

      A second gunman entered the room, tied up Diana and sexually assaulted

her. (RR XVIII 78, 157-158, 210, 212, 214). Diana testified she knew the assailant

ejaculated because she felt a substance between her legs. (RR XVIII 165). Adam

was lying on a pallet on the floor and Diana heard him crying while she was being

raped and Arturo was being assaulted. (RR XVIII 146, 155, 158). After the sexual

assault, the two men ransacked the bedroom and left the apartment. (RR XVIII

160-162; State’s Exhibit Numbers 20, 23, 24, 27 & 28). Soon after, Diana realized

Adam was no longer in the apartment and went outside; her neighbor called the

police to report the sexual assault and kidnapping. (RR XVIII 163-164).

      The couple needed immediate medical attention; Arturo suffered injuries to

the back of his head and Diana went to the hospital for a sexual assault exam. (RR



                                        3
XVIII 51-52, 89, 163, 165, 217; RR XIX 57). SANE nurse Gloria Kologinczok

performed a sexual assault examination of Diana at 3:45 a.m. on October 1, 1992 at

St. Joseph’s Hospital in Houston. (RR XIX 41-50; State’s Exhibit Number 33). At

4:25 a.m., she turned over the evidence collection kit, which included panties,

vaginal swabs, a known saliva sample and a known blood sample, to HPD Officer

Bredemeyer. (RR XIX 49-50, 58-59; State’s Exhibit Numbers 33A, 33B, 33C &

33D). Bredemeyer maintained custody of the evidence and transported it to the

HPD property room. (RR XIX 59-60). A cigar found in the apartment that did not

belong to Diana or Arturo was collected as evidence. (RR XVIII 80-82).

      Diana was unable to give a description of the second man who raped her, as

she did not see his face or hear his voice. (RR XVIII 162). But she described the

first man, the tall one who assaulted her husband. (RR XVIII 98-99, 101-102). She

recalled he had a dark complexion and spoke in the Spanish language, but with a

foreign accent, not a Hispanic accent that one would hear in Mexico. (RR XVIII

99, 152). Arturo described it as a Central American accent. (RR XVIII 211).

      Police learned from neighbors that Diana and Arturo had recently been

selling drugs out of their apartment. (RR XVIII 56). Believing this was crucial to

the investigation of Adam’s kidnapping, Officer Hernandez interviewed both

Diana and Arturo. (RR XIX 65-67). They initially denied being involved with




                                        4
drugs, but later admitted their involvement and told authorities appellant was

their drug supplier. (RR XVIII 166-167, 199, 218; RR XIX 65-75).

      The FBI initially suspected appellant in the abduction of Adam, but learned

he fled the country soon after the offense. (RR XIX 135-139, 144-145; XX 98-100).

When appellant’s wife Angelita learned about Adam’s abduction on the news, she

was shocked. (RR XX 96). She recalled appellant did not have an appropriate

reaction and then abruptly informed her he was going to Puerto Rico. (RR XX 96-

100, 102-103).

      HPD Sergeant Swaim went to appellant’s apartment on October 6, 1992.

(RR XIX 184-185). At the apartment, Swaim encountered a Hispanic man who

identified himself as Candido Lebron. (RR XIX 185-186; State’s Exhibit Number

84). Swaim interviewed him, but doubted his identity because the man could not

provide the name of his parents that were listed on the birth certificate he

provided. (RR XIX 186). Swaim later learned the man’s true identity was Rogelio

Aviles-Barroso, appellant’s co-defendant in this case. (RR XIX 186-187; RR XX

130-131; RR XXI 88-89; State’s Exhibit Number 84).

      More than a month after the abduction, on November 5, 1992, the body of a

young boy was found in Baytown. (RR XVIII 91-92, 218-219; RR XIX 191-192; RR

XXI 86). Dental records confirmed the identity as Adam and the manner of death

was ruled a homicide. (RR XVIII 92; RR XIX 205; XX 4-15, 24-25). Although his



                                        5
remains were skeletal by that time, Adam was still wearing the Batman pajamas he

had gone to bed in on September 30, 1992. (RR XVIII 92, 168-169; RR XIX 193-194,

202-204; State’s Exhibit Numbers 48, 51 & 61).

      Approximately one month after Adam’s body was found, Angelita

Rodriguez traveled to Puerto Rico. (RR XX 105). While there, she met with

appellant and told him she wanted a divorce. (RR XX 105-106). Appellant told

Angelita he would not agree to a divorce and threated to harm her family. (RR XX

106-107).   Angelita asked appellant if he had anything to do with Adam’s

disappearance and appellant admitted he killed Adam. (RR XX 107).

      Several years passed and the case went unsolved. In 2007, as part of a cold

case investigation, HPD Sergeant Mehl reviewed the case file and located

appellant in Puerto Rico. (RR XX 37-43, 49). A sample of appellant’s DNA was

obtained and compared to the sexual assault kit and cigar left at the crime scene;

analysis revealed appellant was the man who raped Diana in 1992. (RR XX 44-52,

55, 72-78; RR XXI 92-93, 105-107, 109, 117-120, 156-157, 160-162, 168; State’s Exhibit

Numbers 32, 33, 65, 66, 68, 76, 77 & 95).

      When the case was re-opened, FBI Special Agent Eric Johnson located

Carmelo Martinez Santana in a Pennsylvania prison. (RR XX 165-166, 176-178).

At the time of this trial, Santana was serving time on two federal convictions for

drug trafficking and weapons possession. (RR XX 118-119; RR XXI 18-19, 29-30).



                                            6
When he interviewed Santana, FBI Special Agent William Ebersole gathered

significantly more information than was previously known about Adam’s murder.

(RR XX 175-183; RR XXI 11-14, 65-77).

      Santana is Angelita’s cousin and moved from the Dominican Republic to

Puerto Rico, and then to the United States in 1992 with Angelita and appellant.

(RR XX 117-120). Santana came to the U.S. with appellant to work in the drug

business with him, selling cocaine. (RR XX 120-123). He was known to the

parties in appellant’s drug ring as “Rudy.” (RR XX 116). Santana described

appellant as a violent, controlling leader; one who was protective of his drug

business and became angry when his people wanted out of the business. (RR XX

123-127). Santana testified appellant had once tied him up and threatened to kill

him when he thought Santana was taking drug clients from him. (RR XX 124).

      Santana recalled on September 30, 1992, appellant wanted to go to Diana’s

apartment to look for drugs and money, so he and Aviles-Barroso accompanied

appellant. (RR XX 135-137). Santana remained in the car while appellant and

Aviles-Barroso went inside the apartment. (RR XX 137-138). Both appellant and

Aviles-Barroso were wearing ski masks and possessed weapons; Santana recalled

appellant had a gun and Aviles-Barroso had a knife. (RR XX 137-142; RR XXI 52).

      Santana estimated they were in the apartment for approximately 30

minutes. (RR XX 143). When they returned, Santana was surprised to see



                                        7
appellant holding a little boy in his arms. (RR XX 143-144). Santana immediately

asked appellant why he had taken Adam and appellant replied that the child had

seen his face and recognized him. (RR XX 144; State’s Exhibit Number 31).

Santana was unsuccessful in trying to convince appellant to take Adam back

inside to his mother. (RR XX 145-147). Appellant then admitted to Santana that

he raped Diana. (RR XX 145).

      Appellant put Adam in the backseat of the vehicle and drove the group to

Baytown. (RR XX 147-149). He stopped in a secluded area and they all got out of

the vehicle; appellant stated to Aviles-Barroso, “You already know what you have

to do.” (RR XX 149-150; RR XXI 60). Santana immediately felt nauseous and

became ill; he walked away from them and defecated in the woods. (RR XX 150;

RR XXI 9). During this time, appellant followed Santana to see what he was

doing and Santana heard Adam scream and moan. (RR XX 150-151, 160). When

Santana returned to the vehicle, he saw that Adam was dead and covered in blood

throughout his torso. (RR XX 151-152; RR XXI 10).

      Appellant ordered Santana and Aviles-Barroso to put the body back into the

vehicle and they obeyed. (RR XX 152). Appellant drove them to a rural area and

instructed them to throw the body in a nearby river. (RR XX 152-153). He further

instructed them to sink the child, so Santana and Aviles-Barroso gathered some

rocks and placed them on top of the body. (RR XX 153-154).



                                       8
       Afterward, when they were driving back toward Pasadena, they had several

flat tires.   (RR XX 154-155).    They called a friend Charlie for help with

transportation and appellant made Santana and Aviles-Barroso swear they would

never tell anyone what happened. (RR XIX 156-161, 172; RR XX 156; RR XXI 44,

61). Charlie would not come get them, so they took a taxi to Charlie’s house to

borrow a vehicle. (RR XIX 161-166; RR XX 156-157). Charlie’s girlfriend, Linda

Hernandez, recalled that Santana seemed extremely nervous. (RR XIX 163; RR

XX 157). Appellant instructed Santana to get rid of the knife and told Santana he

was leaving town because of what he did that night. (RR XX 158-159, 166).

       The following day, appellant changed the tires on his vehicle, washed out

the blood and sold it. (RR XX 160-162). Appellant used the money he got from

the car sale to buy a plane ticket out of the country. (RR XX 162). Santana took

appellant to the airport and never saw him again. (RR XX 162, 164).

       16 years after Adam’s death, capital murder charges were filed against

appellant and Rogelio Aviles-Barroso. (RR XX 55-56; RR XXI 91). After the jury

found appellant guilty of capital murder, they heard evidence that appellant

committed multiple other violent crimes, demonstrating he is a continuing threat

to society. (CR 506, 523).

       Carmelo Martinez Santana testified during the punishment phase to shed

light on appellant’s actions prior to Adam’s murder. (RR XXV 59-89). Santana



                                        9
described appellant’s behavior when appellant believed Santana was stealing his

money and drug customers. Appellant tied him up, threw him in a bathtub,

gagged him and threatened to kill him, until Santana gave him money and

promised never to betray him. (RR XXV 61-64).

      Santana relayed another incident where appellant sought retribution

against a drug competitor, a man named Patiko. (RR XXV 65-71). In a distinctly

similar manner to the charged offense, appellant, Santana and another man broke

into Patiko’s apartment. (RR XXV 66-69). Santana waited in the car while

appellant and the other man went inside to burglarize the apartment. (RR XXV

69). When they returned 20 minutes later, they were carrying drugs and money.

(RR XXV 69-70). Appellant told Santana that he had tied up and beaten Patiko

and then raped his girlfriend. (RR XXV 70-71). Santana recalled when he spent

time with appellant, they frequently burglarized people in the drug business. (RR

XXV 71).

      In July of 1989, appellant kidnapped and killed a drug associate named Saul

Flores. (RR XXV 22-33, 72-85, 99, 121; State’s Exhibit Number 122). Appellant

learned that Saul was interested in his girlfriend, Elizabeth Ramos, and became

infuriated. (RR XXV 49-50, 74-75). Appellant, Santana and a man named Robert

went over to Elizabeth’s apartment where they found Saul. (RR XXV 75-76).




                                       10
They grabbed him, put him in their car and transported him to a drug apartment

on Winkler where they sold drugs. (RR XXV 76-77).

      Appellant tied up Saul and began beating him. (RR XXV 79). Appellant

repeatedly hit Saul with a hammer and injected him with drugs. (RR XXV 80-81,

93-94). Santana saw appellant get on top of Saul and apply pressure to his neck

until he died. (RR XXV 81-82). Appellant instructed Santana to help him put

Saul’s body in the bathtub and they left the apartment. (RR XXV 82-83).

      Tina Perez, a friend of Elizabeth’s, went over to the apartment on Winkler

looking to buy some drugs. (RR XXV 24-30). The door was open, but no one was

there; she went inside and saw Saul’s body in the bathtub. (RR XXV 30-33).

When appellant learned the police wanted to question Tina about Saul, he told

her to keep quiet, and tell the police she had not seen anything. (RR XXV 32-35).

      Soon after, appellant returned to the apartment with his drug associates and

they carried Saul’s body to the dumpster. (RR XXV 7-19, 84-85). An autopsy

revealed Saul had suffered multiple blunt force traumas, had cocaine in his blood

and had been restrained and strangulated. (RR XXV 97-111).

      In October of 2001, while in Puerto Rico, appellant attempted to kill a

restaurant business owner and kidnapped two men. (RR XXIV 14-42). Appellant

pointed a revolver at Manuel Buten and attempted to shoot him two times, but




                                        11
luckily the gun did not fire and Buten was able to run away. (RR XXIV 23-25, 82-

83, 102).

      Buten later learned appellant had kidnapped two family members who

worked at the restaurant, his brother Andres Buten and his step-son William

Martinez, who was only 16. (RR XXIV 18, 20, 26, 83-97, 99, 102-106). Appellant

called Buten and demanded a large amount of cocaine and cash in exchange for the

safe release of the two men. (RR XXIV 29-32, 47). Appellant threatened to kill

them if Buten called the police or failed to comply with his demands. (RR XXIV

31, 37). With the assistance of law enforcement, Buten negotiated with appellant

and he was apprehended. (RR XXIV 41, 48-58).

      Agent Rodriguez convinced appellant to let the men go; while in custody

appellant called his wife and instructed her to release Andres and William. (RR

XXIV 58-60). Both of the men had been severely injured and were taken to the

hospital. (RR XXIV 60, 95-96, 105-111).

      Andres described how appellant treated him while he was confined. (RR

XXIV 84-94). Andres was bound with wire from a coat hanger while appellant

repeatedly punched him, kicked him, hit him over the head with a shower curtain,

hit his feet with a mallet and urinated on him.      (RR XXIV 86-90, 93-94).

Appellant told Andres he was going to kill him. (RR XXIV 87). William testified

appellant physically beat him as well; appellant threw him to the floor, stomped



                                          12
on his back and spit on him. (RR XXIV 105-108). Appellant also hit William with

a revolver, tied him up with the wire from a coat hanger and held a knife to his

throat, toes and penis, threatening to cut him. (RR XXIV 109-110).

      Appellant and his accomplices were charged with kidnapping and

possession of weapons. (RR XXIV 64-65). Appellant pled guilty to the charges

and was sentenced to 16 years confinement in Puerto Rico. (RR XXIV 65-67;

State’s Exhibit Number 121). While incarcerated, an inspection of appellant’s cell

revealed his plans to escape, the window pane was loose and open to the outside

and he had hidden a rope of bed sheets and a map of Puerto Rico. (RR XXIV 120-

127). A cell phone was also found on his person, which is prohibited in a

correctional facility. (RR XXIV 128).

      Appellant continued to cause safety concerns while incarcerated in the

United States. (XXV 134-135, 139-140). He was booked into the Harris County

Jail on February 12, 2010 and was classified as a high-risk inmate and placed into

administrative separation, where he remained for two years. (RR XXV 145). Two

months after being moved from separation, on September 23, 2012, appellant

possessed a prohibited weapon in a penal institution, by confiscating a razor blade

and hiding it inside his bed. (XXV 126-133, 137-138, 145, 147).




                                         13
      After the presentment of punishment evidence, the jury answered the

special issues in a manner mandating the imposition of the death penalty. (CR

523-527; RR XXVIII 3-5).

      In the first special issue, the jury unanimously found from the evidence

beyond a reasonable doubt there is a probability that appellant would commit acts

of violence that would constitute a continuing threat to society. (CR 523; RR

XXVIII 3).

      In the second special issue, the jury unanimously found from the evidence

beyond a reasonable doubt that appellant himself actually caused the death of

Adam, on the occasion in question, or if he did not actually cause the death of

Adam, that he intended to kill Adam, or that he anticipated that a human life

would be taken. (CR 524; RR XXVIII 3-4).

      In the third special issue, the jury unanimously found, after taking into

consideration all of the evidence, including the circumstances of the offense, the

defendant’s character and background, and the personal moral culpability of the

defendant, that there was not sufficient mitigating circumstances to warrant that

a sentence of life imprisonment rather than a death sentence be imposed. (CR

525-526; RR XXVIII 4).

      The trial court orally sentenced appellant to death. (RR XVIII 4-5).

                         



                                       14
                       SUMMARY OF THE ARGUMENT

      Appellant’s conviction for capital murder and imposition of the death

penalty should be affirmed by this Court.

Reply to appellant’s first issue — Appellant has not shown the trial court abused
its discretion in denying his motion to suppress evidence, where the State
established the chain of custody and there was nothing to indicate the evidence
was contaminated. None of the evidence admitted into evidence was tested by the
HPD crime lab.

Reply to appellant’s second issue — Appellant’s confrontation complaints are
not preserved for this Court’s review because he did not make an objection at trial.

Reply to appellant’s third issue — The evidence is legally sufficient to support
appellant’s conviction for capital murder. Appellant kidnapped a six-year old
child and ordered his accomplice to kill him.

Reply to appellant’s fourth and fifth issues — Appellant has not shown the trial
court abused its discretion in admitting extraneous evidence of his bond forfeiture
and failure to appear under Rules 403 and 404(b).

Reply to appellant sixth and seventh issues — Appellant has not shown the trial
court abused its discretion in excluding mitigation evidence regarding his
completion of bible study or assistance to law enforcement because it constituted
hearsay.

Reply to appellant’s eighth, ninth, tenth and eleventh issues — Appellant has
not shown that closing argument by the prosecutor was impermissible, or that it
caused him to suffer harm in this case.

Reply to appellant’s twelfth issue — Appellant has not shown the trial court
erred in denying his motion for a new trial based upon jury misconduct, where he
claims the act of the jury foreman referring to his Bible during deliberations was an
outside influence.

                         




                                         15
                    REPLY TO APPELLANT’S FIRST ISSUE

      In his first point of error, appellant challenges the trial court’s denial of his

motion to suppress. Appellant filed a written motion to suppress the results of all

DNA testing. (CR 454-456). At the pre-trial hearing, he focused on problems

with the HPD crime lab, and suggested the physical evidence in his case was

contaminated, and thus the DNA analysis was unreliable. (RR XVI 3-121). The

trial court disagreed and found the evidence and test results were relevant and

reliable, and denied appellant’s motion to suppress. (RR XVII 3-17).

Standard of Review

      A trial court’s ruling on a motion to suppress evidence will not be set aside

absent a showing of abuse of discretion. Maddox v. State, 682 S.W.2d 563, 564 (Tex.

Crim. App. 1985). This Court does not engage in its own factual review. Instead,

viewing the evidence in the light most favorable to the trial court’s ruling, this

Court considers only whether the trial court improperly applied the law to the

facts. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).

      At a suppression hearing, the trial court is the sole judge of the credibility of

the witnesses and the weight to be given their testimony. Id; see also State v. Ross, 32

S.W.3d 853, 855 (Tex. Crim. App. 2000) (because the trial court is the exclusive

finder of fact in a motion to suppress hearing, it may choose to believe or disbelieve

all or any part of a witness’s testimony). Therefore, if the record supports the trial


                                          16
court’s findings, this Court should not disturb those findings. Romero, 800 S.W.2d

at 543.

Motion to Suppress Evidence

      The State presented testimony from SANE nurse Gloria Kologinczok. (RR

XVI 23-25; XIX 37-50; State’s Exhibit Number 1). She was working at St. Joseph’s

Hospital in Houston on October 1, 1992 and performed a sexual assault

examination of Diana Garcia at 3:45 a.m. (RR XVI 25; RR XIX 43). Shortly after,

at 4:24 a.m., she turned over the sexual assault evidence collection kit to HPD

Officer W.T. Bredemeyer. (RR XVI 25; RR XIX 49, 59; State’s Exhibit Number

33). He maintained custody of the evidence and transported it to the HPD

property room. (RR XIX 59-60).

      Police were unsuccessful in making contact with appellant during the initial

investigation of this case in 1992; appellant fled the country after the offense was

committed. (RR XVI 36). The case went unsolved and was re-opened 15 years

later. (RR XVI 28-30).

      In November of 2004, a cold case squad within HPD homicide was created.

(RR XVI 28). In September 2007, HPD Sergeant Mehl located evidence in the

HPD property room that had been collected in 1992. (RR XVI 29-30). On October

2, 2007, Mehl sent some blood samples and three pieces of evidence to Orchid

Cellmark for analysis — a cigar, a sexual assault examination kit and a cutting



                                        17
from a pair of women’s panties. (RR XVI 30-35). At that time, HPD did not

possess a DNA sample for appellant. (RR XVI 36-37).

      In 2008, HPD Sergeant Stephens located appellant in a Puerto Rican prison

and obtained a court order for a sample of his DNA. (RR XVI 37-38). FBI agents

in Puerto Rico went to the prison where appellant was incarcerated and obtained

the DNA sample. (RR XVI 38). Mehl received the sample on May 23, 2008 and

then shipped it to Orchid for analysis with the previous items. (RR XVI 38-39).

      The evidence was received by Matt Quartaro, a supervisor with Orchid

Cellmark. (RR XVI 48-60). Instead of relying on the DNA extractions done by

HPD, Orchid performed their own DNA extractions from the evidence. (RR XVI

51). When Orchid received appellant’s DNA sample, it was compared against the

three main pieces of evidence — the cigar, the sexual assault examination kit and a

cutting from the panties. (RR XVI 59-60).

      Orchid’s report indicated: the DNA profile on the cigar left at the crime

scene was a match for appellant; the sperm fraction from the cutting of the panties

was a mixture of DNA and the major DNA profile belonged to appellant; and

appellant could not be ruled out as the contributor to the DNA mixture from the

vaginal swab. (RR XVI 39, 59-60). In terms of the statistical profile match,

Quartaro testified the probability of that DNA profile repeating in the North

American population was 1 in 71.5 quadrillion of unrelated individuals. (RR XVI



                                        18
59-60). Once Mehl received this report, he filed capital murder charges on

appellant. (RR XVI 39).

Analysis

      Appellant claims the trial court abused its discretion in admitting evidence,

the cigar, panties and sexual assault kit that included blood samples and vaginal

swabs, because the State failed to establish a proper chain of custody; this

objection was made during trial and was overruled by the trial judge. (RR XXI

120-124; State’s Exhibit Numbers 33-A, 33-B, 33-C, 33-D and 95).

      The State meets the authentication requirement for admissibility of

evidence once it has shown the beginning and the end of the chain of custody,

particularly when the chain ends at a laboratory. McGregor v. State, 394 S.W.3d 90,

125 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d); see also TEX. R. EVID. 901(a).

Absent evidence of tampering or fraud, any gaps in the chain of custody do not

affect the admissibility of the evidence, but rather go to the weight that the fact-

finder should give the evidence, which may be brought out and argued by the

parties.   Druery v. State, 225 S.W.3d 491, 503–504 (Tex. Crim. App. 2007).

Appellant does not make a specific claim about a gap in the chain, but instead

seems to allege that the evidence was tampered with and/or compromised due to

issues at the HPD crime lab before the evidence was tested.




                                        19
      The proponent of scientific evidence, such as the DNA test results offered by

the State in this case, must prove to the trial judge, by clear and convincing

evidence and outside the presence of the jury, that the proferred evidence is

reliable and therefore relevant. TEX. R. EVID. 702; Kelly v. State, 824 S.W.2d 568, 573

(Tex. Crim. App. 1992) (interpreting Rule 702). Any issue of contamination

would be pertinent to the trial court in deciding if the evidence was reliable. See

Jackson v. State, 17 S.W.3d 664, 670–72 (Tex. Crim. App. 2000) (analyzing whether

DNA evidence was reliable when allegations of contamination were raised); Hines

v. State, 38 S.W.3d 805, 808 (Tex. App.—Houston [14th Dist.] 2001, no pet.)

(applying the Kelly reliability analysis to claims of contaminated DNA).

       The sexual assault kit of Diana Garcia was collected by a qualified SANE

nurse hours after the sexual assault. The kit included Diana’s panties, vaginal

swabs and blood samples. (RR XVII 6). The kit was sealed and stored in the HPD

property room at 1200 Travis. (RR XVII 6-7). In 1992, the evidence was processed

and analyzed by employees of the HPD crime lab and then returned to storage,

where it remained until 2007, when it was sent to Orchid Cellmark for analysis.

(RR XVII 7).

      Several blood samples were collected in 1992 and also stored at the HPD

property room on Travis — those of Arturo Garcia, Candido Lebron, Bienviendo

Melo, Leonardo German and Carmelo Martinez Santana. (RR XVII 7-8). They


                                          20
were tested by the HPD crime lab and returned to the property room in 1992. (RR

XVII 8). They were not retrieved again until December 2, 2007, when Sergeant

Mehl sent them to Orchid Cellmark. (RR XVII 8). The results from the HPD

crime lab were not admitted in this trial; only the results from Orchid Cellmark

were admitted. (RR XVII 8).

      The cigar taken from the crime scene was stored at the HPD property room

on Goliad from October 1992 to October 2007. (RR XVII 6). The cigar was

located in a larger container of evidence and there was nothing to indicate it had

been tampered with during that time. (RR XVII 6). Although it may have been

sent to the HPD crime lab with other evidence, there is nothing to indicate it was

ever tested by the lab. (RR XVI 112-113). The package appeared unopened when it

was sent to Orchid Cellmark for DNA testing on October 2, 2007. (RR XVII 6, 8).

      In 2008, a sample of appellant’s DNA sample was obtained and shipped

directly to Orchid for analysis. (RR XVI 37-39; RR XVII 10). It was never stored

or tested by the HPD crime lab. This known sample was compared against the

profiles found in the sexual assault kit evidence and cigar. (RR XVII 10).

      In support of his contention that the evidence was tainted, appellant

provided the trial court with the Bromwich Report, which detailed issues in the

HPD crime lab. (Defense Exhibits 2-7). The report was initiated in 2003 upon the

closing of the HPD crime lab and discussed errors that were made by the lab, as



                                         21
well as deficiency in documentation and allegations of misconduct. (RR XVII 12-

13). The trial court noted the report made specific recommendations to the

address the issues, all of which were followed by HPD. (RR XVII 13-14).

       Appellant’s contamination argument fails for two reasons. First, the State

did not present any evidence in this case that was tested by the old HPD crime

lab.1 Every piece of evidence he complains about was tested by Orchid Cellmark.

Second, although the evidence was stored at two of the HPD property rooms,

there was no evidence of contamination or tampering.

       A time delay in the collection and testing of evidence does not render the

evidence unreliable when there is no evidence of contamination or tampering. See

Dossett v. State, 216 S.W.3d 7, 21-22 (Tex. App.—San Antonio 2006, pet. ref’d) (State

sufficiently established chain of custody of victim’s sexual assault kit to admit

expert testimony about results on DNA testing on samples contained in kit, even

though 20–year period existed between collection of kit and DNA testing).

       Similarly, the fact that the evidence was previously tested by the HPD crime

lab and then returned to HPD storage does not render the evidence unreliable. See

Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997) (absent affirmative

evidence of tampering, no reason to exclude evidence merely because it was kept

1
  A known DNA sample of appellant was tested by the new HPD crime lab in 2010. The trial
court found this evidence was admissible since there were no longer concerns with the lab at
that time. And this evidence just corroborated the earlier findings from Orchid Cellmark in
2008. (RR XVII 11-12).


                                            22
in evidence room for extended period of time and had undergone prior forensic

testing).

      The State has no burden to disprove tampering; rather, appellant has the

burden to present affirmative evidence of tampering. Garcia v. State, 537 S.W.2d

930, 934 (Tex. Crim. App. 1976). A showing of the possibility of tampering is not

sufficient to bar admission of the evidence, and goes only to the weight of the

evidence. See Darrow v. State, 504 S.W.2d 416, 417 (Tex. Crim. App. 1974) (evidence

that marihuana was stored in officer’s locker for two weeks in room to which

others had access, but no key to locker, showed only the possibility of tampering,

and did not prohibit admission); see also Dossett, 216 S.W.3d at 21 (defendant only

showed there was a possibility of tampering or contamination, which was

insufficient to exclude the evidence).

      Appellant has not shown the trial court abused its discretion in denying his

motion to suppress. See Romero, 800 S.W.2d at 543. Therefore, appellant’s first

point of error should be overruled.


                  REPLY TO APPELLANT’S SECOND ISSUE

      In his second issue, appellant claims the trial court violated his right to

confrontation, by not allowing him to cross-examine witnesses and present an

investigative report to support his defense during his motion to suppress and at

trial. The constitutional right of confrontation includes the right to cross-examine

                                         23
the witnesses at trial and the opportunity to show that a witness is biased or that

his testimony is exaggerated or unbelievable. Irby v. State, 327 S.W.3d 138, 145 (Tex.

Crim. App. 2010).

      Appellant complains he was unable to cross-examine three of the State’s

witnesses, Sergeant Mehl, Agent Guzman and Courtney Head, regarding

contamination issues at the HPD crime lab during trial. (Appellant’s brief 71-72).

But this issue is not preserved for this Court’s review. Appellant did not lodge an

objection at the hearing or trial on this basis. (RR XVI 108-110; RR XX 56-66; 77;

RR XXI 155, 157).       A defendant waives his constitutional right to confront

witnesses if he does not object at trial. Melendez–Diaz v. Massachusetts, 557 U.S. 305,

314 n. 3 (2009); Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). Because

appellant did not object on confrontation grounds, he has waived appellate review

of his second point of error. See TEX. R. APP. P. 33.1.

      Further, the subject of appellant’s attempted cross-examination was

previous contamination problems in the HPD crime lab outlined in a report

authored by Michael Bromwich. As discussed in more detail in the State’s reply to

appellant’s first issue, none of the evidence admitted in this case was tested at the

HPD crime lab during the time frame of contamination concern, making the

evidence irrelevant to the issues in this case.




                                           24
      During the motion to suppress, the trial court determined the report and

areas of cross-examination regarding it were not relevant, and thus not admissible

under Rules 401 and 402. (RR XVII 12-14). See TEX. R. EVID. 401 (evidence is

relevant if it tends to make the existence of any fact of consequence tot eh

determination of the action more probable or less probable than it would be

without the evidence); TEX. R. EVID. 402 (only relevant evidence is admissible).

The trial court also found that any potential probative value of the evidence was

outweighed by the danger of unfair prejudice, finding it would cause confusion of

the DNA issues and mislead the jury. (RR XVII 13-14). See TEX. R. EVID. 403.

      Because the evidence was not relevant, the trial court did not err in limiting

appellant’s cross-examination on the subject of contamination. See Foster v. State,

180 S.W.3d 248, 251 (Tex. App.—Fort Worth 2005, pet. ref’d) (trial court did not

abuse its discretion or violate defendant’s right to confrontation when it limited

his cross-examination; defendant sought to ask a question that was irrelevant and

calculated to confuse the jury because it injected new facts into the case regarding

a situation that was not before the jury).

      Appellant did not offer any additional argument on why the evidence should

be admitted at trial. His second point of error should be overruled.

                        




                                         25
                      REPLY TO APPELLANT’S THIRD ISSUE

         In his third issue on appeal, appellant challenges the legal sufficiency of the

evidence supporting his conviction for capital murder.

         Appellant was charged with the offense of capital murder, that on or about

September 30, 1992, while in the course of committing or attempting to commit

the kidnapping of Adam, he intentionally caused the death of Adam by stabbing

him with a deadly weapon, namely, a sharp instrument or by some unknown

manner and means. (CR 2-3; RR XXIII 4, 31). The jury was charged they could

find him guilty as a principal or party to the offense. (CR 487-488). TEX. PENAL

CODE ANN. § 7.02(a)(2) (West 2013); TEX. PENAL CODE ANN. § 7.02(b) (West

2013).

         In reviewing the legal sufficiency of the evidence to support a conviction,

the appellate court views the evidence in the light most favorable to the verdict

when determining whether any rational trier of fact could have found the elements

of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19

(1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (the Jackson

standard is the only standard a reviewing court should apply in determining

whether the evidence is sufficient to support a conviction).

         The jury, as the sole judge of the facts, is entitled to resolve any conflicts in

the evidence, to evaluate the credibility of witnesses, and to determine the weight


                                            26
given to any particular piece of evidence. Jones v. State, 944 S.W.2d 642, 647 (Tex.

Crim. App. 1996). When conducting a legal sufficiency review, this Court does

not engage in a second evaluation of the weight and credibility of the evidence, but

only ensures the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238,

246 (Tex. Crim. App. 1993).

      Appellant lists several reasons why the evidence is insufficient to support

his conviction. He challenges his identification as the culprit, the credibility of

four witnesses, as well as the strength of the evidence regarding Diana’s sexual

assault and Adam’s death. Appellant also claims there was no evidence of his

motive to commit this crime. (Appellant’s brief 76-85).

      Appellant challenges the evidence identifying him, focusing on the incorrect

descriptions of the suspects as black men by police early in the investigation.

Diana and Arturo had described the men as having dark complexions, speaking

with Spanish accents.      Nothing about the police’s initial report renders the

evidence of appellant’s identity insufficient, especially in the light of the DNA

evidence revealing he was the man who sexually assaulted Diana. Although

appellant has challenged the admissibility of the DNA evidence, even improperly

admitted evidence may be considered when reviewing the legal sufficiency of the

evidence. Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999). The evidence of

appellant’s identity as the perpetrator is sufficient.


                                           27
      Appellant complains that several of the State’s key witnesses posed

credibility problems and provided testimony that was inconsistent. Diana Garcia

and Arturo Rodriguez testified regarding what happened to them at the apartment

on September 30, 1992, establishing the sexual assault of Diana, the beating of

Arturo and kidnapping of Adam. Appellant complains their testimony was not

credible because the couple initially lied to police about their involvement in

selling drugs. Diana admitted they lied to police the first night, because they were

afraid, but told the truth the following day. (RR XVIII 166-167).

      Carmelo Santana provided evidence about the kidnapping and murder of

Adam, as he had been with appellant on that night. He established that appellant

took Adam from the apartment and ordered Aviles-Barrosso to kill him. Appellant

complains Santana’s testimony is not credible because he was serving a federal

sentence at the time of trial, he had a motive to distance himself from the crime

and some of his testimony contradicted his earlier statements.

      Angelita Rodriguez was appellant’s wife at the time of this offense. She

provided evidence about appellant’s drug dealing, his immediate flight from the

country and testified appellant admitted to her that he killed Adam. Appellant

complains she was not a credible witness because she had a motive to see

appellant punished, because he had been unfaithful and left her in the U.S.




                                        28
      The concerns appellant has articulated with regard to these witnesses were

all presented and argued to the jury during trial. The jury was free to accept one

version of the facts and reject another, and they could reject any part of a witness’s

testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). None of these

matters render the evidence insufficient. See Curry v. State, 30 S.W.3d 394, 406

(Tex. Crim. App. 2000) (any inconsistencies in the evidence are viewed in favor of

the verdict).

      Appellant complains there was insufficient evidence to show he sexually

assaulted Diana. He claims the lack of physical evidence, coupled with the DNA

evidence, merely shows sexual contact with Diana, not sexual assault. During

closing argument, defense counsel suggested Diana and appellant had a consensual

sexual relationship. (RR XXIII 44-45).

      But this is contrary to Diana’s testimony. She gave very specific details

about being blindfolded and sexually assaulted that night. Diana recalled that the

perpetrator ejaculated, which was consistent with her physical exam, where DNA

evidence was left behind. SANE nurse Kologinczok testified she did not observe

any signs of physical injury during Diana’s sexual assault exam, but noted that in

most exams, she did not find physical injuries. (RR XIX 48-49). Appellant

admitted to Santana that he sexually assaulted Diana. (RR XX 145).




                                         29
      Although there was no physical injuries tending to show sexual assault,

Diana’s testimony and the DNA results were more than sufficient to show

appellant was the man who sexually assaulted her. See Bargas v. State, 252 S.W.3d

876, 889 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (it is well-settled that a

victim’s uncorroborated testimony is sufficient on its own to support a conviction

for sexual assault and the lack of physical evidence will not render the evidence

insufficient).   Although the sexual assault evidence was important to show

appellant’s presence and participation in the kidnapping and murder of Adam, the

jury did not have to find the elements of sexual assault beyond a reasonable doubt.

Appellant was not charged with the sexual assault of Diana; the underlying felony

in the capital murder indictment was kidnapping. (CR 2-3).

      Appellant complains the evidence is insufficient to prove he killed Adam as

alleged in the indictment because the State, through Dr. Wolf, was unable to

provide conclusive evidence regarding Adam’s cause of death. But direct evidence

is not required. Expert opinion testimony is not required to prove cause of death,

and cause of death may be proven solely by circumstantial evidence. See Fountain v.

State, 401 S.W.3d 344, 356-357 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d).

      Dr. Wolf testified Adam’s manner of death was homicide. (RR XX 10-12;

State’s Exhibit Number 55). He opined that Adam may have been stabbed, but he

was unable to provide an opinion on the cause of death due to Adam’s


                                        30
decomposition. (RR XX 8-9, 12). Adam’s body was found over a month after his

kidnapping and had been submerged in water, so Dr. Wolf was unable to assess

his skin surfaces and organs. (RR XX 8). He also stated that any blood from

Adam’s pajamas would have washed away during the time he was in the water.

(RR XX 14-15).

      Both DNA evidence and the testimony of Santana placed appellant at the

apartment when Adam was kidnapped. Santana explained how appellant directed

Aviles-Barrosso, who was carrying a knife, to kill Adam. Santana saw Adam’s

torso covered in blood and helped sink the body, where it was located a month

later, decomposed. Appellant later admitted to his wife that he killed Adam. This

evidence establishes Adam’s cause of death. See Morris v. State, 322 S.W.2d 632, 634

(Tex. Crim. App. 1959) (where the State did not present expert medical testimony

regarding victim’s cause of death, testimony regarding the victim being stabbed by

the defendant was sufficient to establish the cause of death); see also McDuff v. State,

939 S.W.2d 607, 614 (Tex. Crim. App. 1997) (the State’s inability to produce or

identify the body or remains does not preclude a murder conviction).

      The evidence is sufficient to support that Adam was stabbed with a deadly

weapon, a sharp instrument, or by some unknown manner and means. See Turro v.

State, 950 S.W.2d 390, 397 (Tex. App.—Fort Worth 1997, pet. ref’d) (although

medical examiner conceded his opinions on the time and cause of death were not


                                          31
absolute and that he could not entirely eliminate the possibility that the victim

died from accidental drowning, the evidence was sufficient to support defendant’s

conviction for murder because proof beyond a reasonable doubt need not be proof

beyond all doubt).

      Motive is not an element of the offense and thus does not need to be proved

in order to establish the commission of capital murder. See Rodriguez v. State, 486

S.W.2d 355, 358 (Tex. Crim. App. 1972). While the State need not have proved

motive, evidence of motive for the offense was presented, that motive being

appellant’s revenge for Diana and Arturo leaving the drug trade. Krebsbach v. State,

962 S.W.2d 728, 732 (Tex. App.—Amarillo 1998, pet. ref’d). Santana testified they

went to the apartment that night to look for drugs and money. When Santana

opposed the kidnapping of Adam, appellant explained he took him because Adam

saw his face, and arguably could identify him. This evidence could have been

considered by the jury in determining appellant’s guilt.

      Viewing the evidence in the light most favorable to the verdict, the jury

could have found the essential elements of capital murder — that appellant

murdered Adam in the course of committing kidnapping — beyond a reasonable

doubt. Appellant’s third point of error should be overruled.

                       




                                         32
            REPLY TO APPELLANT’S FOURTH & FIFTH ISSUES

      In two points of error, appellant complains the trial court erred by

admitting extraneous evidence that appellant failed to appear for a court

appearance on October 8, 1992 relating to a criminal offense. Appellant’s fourth

point of error appears to challenge the admission of evidence under Rule 404(b),

and his fifth point of error contests the trial court’s ruling with regard to Rule 403.

      This Court reviews a trial court’s decision to admit evidence concerning an

extraneous offense for an abuse of discretion. Page v. State, 137 S.W.3d 75, 78 (Tex.

Crim. App. 2004). As long as the trial court’s ruling is within the “zone of

reasonable disagreement,” the trial court does not abuse its discretion, and this

Court should uphold the ruling. McGregor v. State, 394 S.W.3d 90, 117 (Tex. App.—

Houston [1st Dist.] 2012, pet. ref’d).

      Rule 404(b) prohibits the admission of an extraneous offense at trial to

prove a defendant’s character or to show that the defendant acted in conformity

with that character unless admitted for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake

or accident. TEX. R. EVID. 404(b). Relevant evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice. TEX.

R. EVID. 403.




                                          33
       The State offered testimony from FBI Special Agent Eric Johnson. (RR XIX

131-145). He joined the kidnapping investigation on October 1, 1992 and his

primary suspect was appellant. (RR XIX 135-139). Agent Johnson learned that

appellant missed a court appearance on October 8, 1992 for a criminal case in

Harris County and his bond was forfeited. (RR XIX 140-142; RR XX 103-104;

State’s Exhibit Number 36). This was one week after Adam’s kidnapping. (RR

XIX 142). After speaking with appellant’s wife, Agent Johnson began looking for

appellant in Puerto Rico. (RR XIX 144-145).

       Prior to the presentment of this bond forfeiture evidence, the parties had a

lengthy discussion about the admissibility of this evidence. (RR XIX 105-130).

The trial court limited its ruling to the fact that appellant had failed to appear for a

court appearance and his bond was forfeited. (RR XIX 113-115). The trial judge

did not allow Agent Johnson to reveal that the offense was for drug possession or

that it was a pending felony offense, finding this information would be too

prejudicial. (RR XIX 121). The judge also ordered that the bond forfeiture

paperwork be redacted, to delete any references to the offense being a felony or for

drug possession.2 (RR XIX 123-124, 127; State’s Exhibit Number 36).



2
  FBI Special Agent Johnson explained to the trial judge that he had filed an unlawful flight to
avoid prosecution case against appellant after he bond forfeited; he explained he obtained the
warrant so he could legally search for appellant throughout the United States. (RR XIX 111-112).
But the trial court did not allow evidence of this federal charge to be heard by the jury. (RR XIX
113-115).


                                               34
      Evidence of bond forfeiture may be admissible to show flight under Rule

404(b). Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994); Geeslin v. State,

630 S.W.2d 512, 513 (Tex. App.—Fort Worth 1982, no pet.). The evidence of flight

is admissible as a circumstance from which guilt may be inferred, even though it

may show the commission of an extraneous offense. Bigby, 892 S.W.2d at 883.

This evidence is also relevant to show efforts made to locate or apprehend a

defendant, his pursuit and capture, circumstances of his arrest including his

resistance. Cantrell v. State, 731 S.W.2d 84, 92-93 (Tex. Crim. App. 1987).

      To exclude evidence of flight after relevancy has been established, the

defendant has the burden to affirmatively show that the flight was unrelated to

the charged offense. Burks v. State, 876 S.W.2d 877, 903 (Tex. Crim. App. 1994).

Appellant acknowledges the authority upon which the trial court admitted the

evidence, but attempts to distinguish it from his case. Cantrell, 731 S.W.2d at 92-

93. (RR XIX 125-126). Appellant argues because he bond forfeited on a criminal

charge that was not the one he was on trial for, i.e. the drug possession case, it was

error for the trial court to admit the evidence.

      But the timing of appellant’s flight from the United States demonstrates it

was related to the capital murder. The day after Adam’s kidnapping and murder,

appellant told his wife and Santana that he was leaving the country and traveling

to Puerto Rico. (RR XX 99, 158-159). It was not a planned trip. (RR XX 100, 158-


                                          35
159). Appellant immediately sold his car, used the money to purchase a plane

ticket and had Santana take him to the airport. (RR XX 162, 164). When his wife

visited him two months later, appellant admitted he had killed Adam. (RR XX

107). See Burks v. State, 227 S.W.3d 138, 148–49 (Tex. App—Houston [1st Dist.]

2006, pet. ref’d) (evidence is relevant to show defendant’s consciousness of guilt).

      Appellant did not present any evidence to show his failure to appear for

court was anything but flight from prosecution for this capital murder. Therefore,

he has failed to meet his burden to exclude evidence of flight. See Burks, 876 S.W.2d

at 904 (flight evidence was relevant and admissible where defendant made no

showing that flight was related to a circumstances unrelated to the offense).

      Similarly, appellant has not established the prejudicial effect of this evidence

outweighs the probative value. TEX. R. EVID. 403. The bond forfeiture evidence in

this case was evidence of flight, relevant to show appellant’s consciousness of

guilt. Torres v. State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990, no pet.)

(consciousness of guilt is perhaps one of the strongest kinds of evidence of guilt).

      The evidence was significant in that it demonstrated the timing and context

of appellant’s departure from the United States. Court records indicated appellant

had been present for every court appearance on his pending drug case in 1992, at

least 14 settings over the span of 15 months, prior to his missed appearance on

October 8, 1992.     (State’s Exhibit Number 36).       The documents also reveal


                                         36
appellant forfeited a $5,000 bond for failing to appear in court. (State’s Exhibit

Number 36). This evidence established appellant had been diligent about his

court appearances until the murder occurred and forfeited a large amount of

money when he left the country, making the evidence more probative than

prejudicial. See Hyde v. State, 846 S.W.2d 503, 505 (Tex. App.—Corpus Christi

1993, pet. ref’d) (a defendant’s failure to appear is not the type of misconduct that

has a great unfair prejudicial danger).

      Appellant has not shown the trial court abused its discretion in admitting

evidence of his bond forfeiture under Rule 404(b) or Rule 403. See Bigby, 892

S.W.2d at 883-884 (evidence of defendant’s flight was admissible under both Rule

404(b) and Rule 403 as relevant evidence of defendant’s guilt of the charged crime

of capital murder where the State sought the death penalty); Hyde, 846 S.W.2d at

505 (evidence of defendant’s failure to appear at first scheduled trial and his

forfeiture of bond was properly admissible to show flight, and trial court did not

abuse its discretion in determining that danger of unfair prejudice did not

outweigh probative value of flight evidence under Rule 403).

      Appellant’s fourth and fifth issues should be overruled.

                        




                                          37
           REPLY TO APPELLANT’S SIXTH & SEVENTH ISSUES

      In two points of error, appellant complains the trial court erred in

preventing him from presenting evidence during the punishment phase of trial,

relevant to the mitigation special issue outlined in Article 37.071. See TEX. CODE

CRIM. PROC. ANN. art. 37.071 § 2 (a)(1) (West 2013).

      In his sixth issue, appellant complains the trial court erred in excluding

bible study certificates. Appellant attempted to offer Defense Exhibit Numbers

48-55, which are bible study certificates appellant claimed he earned while in

prison in Puerto Rico, through his brother, punishment witness Joel Cruz-Garcia.

(RR XXVI 56-58). The defense claimed the basis for offering them was that

appellant had talked to the witness about these things, “Not that the witness took

the courses with him, but he’s talked to him about it.” Joel Cruz-Garcia testified

he went to church with appellant on one occasion, but he did not indicate he

possessed any personal knowledge about appellant’s participation in bible study.

(RR XXVI 41-42, 54).

      The State objected on the basis of hearsay and defense counsel admitted the

certificates were hearsay. (RR XXVI 57-58). He did not argue that any exception

to the hearsay rule applied. (RR XXVI 57-58). The trial court inquired whether

appellant had gotten a business record affidavit for the certificates. (RR XXVI 58).

Defense counsel replied no and that he was not inclined to put appellant on the



                                        38
stand just to get them into evidence. (RR XXVI 58). The trial judge ruled that

while the certificates may be relevant, they were hearsay if admitted through that

particular witness. (RR XXVI 58).

      In his seventh issue, appellant claims the trial court prevented him from

introducing evidence that he was an informant for the FBI, DEA or INS. Agent

Juan DeJesus Rodriguez, who works with the police in Puerto Rico, testified he

investigated the kidnappings of Andres Buten and William Martinez. (RR XXIV

43-61). During cross-examination, defense counsel wanted to inquire whether

Rodriguez had learned during his investigation that appellant was a corroborating

witness for the FBI, DEA or INS. (RR XXIV69-70).

      The jury was taken out and defense counsel asked the witness on voir dire

whether he could verify this information. (RR XXIV 70-73). Rodriguez stated he

was told orally that appellant had cooperated with law enforcement in the past,

but he never got confirmation in writing. (RR XXIV 72-73). There was no

evidence appellant was cooperating with law enforcement in regard to the

kidnapping cases in Puerto Rico. (RR XXIV 73). And Rodriguez did not provide

the source of this information; thus the State objected on hearsay grounds. (RR

XXIV 72-74). Defense counsel again did not argue that any hearsay exceptions

applied.   The judge ruled it was inadmissible hearsay at this juncture, but

instructed defense counsel if he could present a witness who had personal



                                       39
knowledge that appellant had previously cooperated with law enforcement, she

would admit the evidence, as being relevant to mitigation. (RR XXIV 74).

      The decision to admit or exclude evidence is within the discretion of the

trial court. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). Unless

the trial judge’s decision was outside the “zone of reasonable disagreement,” an

appellate court should uphold the ruling. Torres v. State, 71 S.W.3d 758, 760 (Tex.

Crim. App. 2002).

      Hearsay is a statement, other than one made by the declarant while

testifying at trial or hearing, offered in evidence to prove the truth of the matter

asserted. TEX. R. EVID. 801(d). As a general rule, hearsay evidence is inadmissible

unless it falls within one of the many exceptions. TEX. R. EVID. 802. It is well-

settled if the testimony fits an exception to the hearsay rule (or if the evidence was

not being offered for the truth of the matter asserted) appellant, as the proponent

of the evidence, had the burden of demonstrating the applicability of that

exemption or exception. Martinez v. State, 178 S.W.3d 806, 815 (Tex. Crim. App.

2005); see also Cofield v. State, 891 S.W.2d 952, 954 (Tex. Crim. App. 1994)

(proponent of hearsay has the burden of showing that the testimony fits within an

exception to the general rule prohibiting the admission of hearsay evidence).

Appellant did not provide any avenue for admissibility regarding the evidence he

complains should have been admitted. See In re E.A.K., 192 S.W.3d 133, 145 (Tex.


                                         40
App.—Houston [14th Dist.] 2006, pet. denied) (trial court erred in admitting

hearsay evidence where party failed to lay proper predicate for admission).

      Relying heavily on cases from the United States Supreme Court, appellant

argues that this mitigation evidence should have been admitted, despite his failure

to adhere to the rules of evidence, because it is violative of his Sixth and

Fourteenth Amendment’s due process right to present a defense. See Holmes v. South

Carolina, 547 U.S. 319 (2006) (exclusion of defense evidence of third-party guilt

denied the defendant a fair trial); Chambers v. Mississippi, 410 U.S. 284 (1972) (same).

      But this Court has reviewed the scenario appellant presents and ruled

against him. This Court held that the United States Constitution does not require

admission of mitigating evidence when it is inadmissible under state law, even

when the evidence meets the test of constitutional relevancy. See Renteria v. State

206 S.W.3d 689, 697 (Tex. Crim. App. 2006).

      Although both the United States Supreme Court and this Court have

recognized that no person shall be executed without the opportunity to bring all

evidence of mitigating circumstances, the United States Constitution does not

require the admission of evidence if it is in a form that is objectionable. Id.; see also

Lewis v. State, 815 S.W.2d 560, 568 (Tex. Crim. App. 1991).

      The bottom line — relevant evidence must be presented in a form that is

acceptable to the laws of evidence of the State in order to be received over


                                           41
objection. Id. And this principle was re-affirmed in 2010 by this Court. See Smith v.

State, No. AP-75793, 2010 WL 3787576 *19-23 (Tex. Crim. App. 2010) (not

designated for publication).

       In Smith, this Court evaluated a defense claim that mitigating evidence

should have been admitted, despite the hearsay nature of the evidence. See Smith,

2010 WL 3787576 at *19-23. The trial court excluded appellant’s school records

and a videotape because they did not comply with the rules of evidence pertaining

to business records and hearsay. Id. Appellant did not argue that any exception to

the hearsay rule applied. Id. at *22.

       This Court determined the trial judge did not abuse its discretion in

excluding the evidence over the State’s well-founded hearsay objection, holding

the defendant could not rely on the fundamental protections of due process to cure

the preventable error. Smith, 2010 WL 3787576 at *21. And the Court further

opined that the United State Supreme Court’s decisions in Chambers and Holmes do

not alter this principle. Id. at *20.

       This Court should similarly overrule appellant’s suggestion that his

constitutional right to present mitigation evidence trumps the rules of evidence.

Appellant’s sixth and seventh points of error should be overruled.

                         



                                         42
REPLY TO APPELLANT’S EIGHTH, NINTH, TENTH & ELEVENTH ISSUES

      In four points of error, appellant complains the trial court erred by allowing

the prosecutor to present improper closing argument during both phases of trial.

The eighth and ninth points of error address closing argument during the guilt

phase; the tenth and eleventh points of error address closing argument during the

punishment phase.

      The Court of Criminal Appeals has determined that proper jury argument

generally falls within one of four areas: 1) summation of the evidence, 2) reasonable

deduction from the evidence, 3) answer to an argument of opposing counsel, and

4) plea for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App.

2008). A prosecutor may not use closing arguments to present evidence that is

outside the record. Freeman v. State, 340 S.W.3d 717, 728 (Tex. Crim. App. 2011).

Improper references to facts that are neither in evidence nor inferable from the

evidence are generally designed to arouse the passion and prejudice of the jury and,

as such, are inappropriate. Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim. App. 1990).

Eighth & Ninth Points of Error

      In his eighth issue, appellant complains the prosecutor engaged in improper

argument when she injected facts outside the record during the guilt phase of trial.

Appellant specifically complains of this passage:

      PROSECUTOR: Let me give you another example, another example
      of half the story. The SANE nurse. She came here and she said: Well,

                                         43
      there were no injuries. Wow, that must mean Obel Cruz-Garcia is
      guilty — is not guilty of capital murder according to the defense
      attorneys. No. Let’s talk about what else the SANE nurse said. And I
      want to say she said 95 percent — it was a very high percentage — of
      rape cases that she does SANE nurse examinations on —

      DEFENSE ATTORNEY: Objection. Outside the record.

      PROSECUTOR: — do not have any injuries.

      THE COURT: Overruled. But I will remind the jury that you recall
      the testimony from the witness stand and that is — that will be your
      guide in your deliberations. Arguments of counsel is not evidence.
      (sic) (RR XXIII 80).

      SANE nurse Gloria Kologinczok testified she performed several hundred

sexual assault exams during her tenure at St. Joseph’s Hospital. (RR XIX 40). She

performed the sexual assault exam of Diana on October 1, 1992. (RR XIX 48). She

did not see any signs of physical injury or trauma during this exam. (RR XIX 48).

Kologinczok testified that in most of the sexual assault exams she has performed,

she did not find physical injuries. (RR XIX 48-49).

      Appellant is correct that the prosecutor mischaracterized the testimony

provided by the SANE nurse.        There is nothing in the record to indicate

Kologinczok quantified her testimony with a statistic regarding the lack of

physical injuries in her examinations. Although the prosecutor’s use of the high

percentage could be inferable from Kologinczok’s testimony that “in most cases,”

she sees no physical injury. (RR XIX 48-49).




                                        44
      Regardless, error during closing argument is non-constitutional in nature,

and a non-constitutional error that does not affect substantial rights must be

disregarded. TEX. R. APP. P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692–93 (Tex.

Crim. App. 2000). To determine whether appellant’s substantial rights were

affected, this Court should balance the severity of the misconduct (i.e., the

prejudicial effect), any curative measures, and the certainty of conviction absent

the misconduct. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).

      Viewing the State’s closing argument as a whole, this comment does not

appear to be a willful and calculated effort to deprive appellant of a fair and

impartial trial. The prosecutor’s comment was a very small portion of her entire

closing argument at the guilt phase. (RR XXIII 80). She did not emphasize the

comment and immediately moved on after the objection. (RR XXIII 81). Further,

viewing the record as a whole, appellant does not appear to have been prejudiced

by the comment, as the SANE nurse did testify she rarely sees physical injuries.

      While the trial court did sua sponte remind the jury that closing arguments

were not evidence, there was no curative instruction. See Freeman, 340 S.W.3d at

728-729 (although not a curative instruction, court’s reminder to jury that

argument was not evidence weighed in favor of harmless error). The evidence

presented during the guilt phase demonstrated appellant was man who raped

Diana, kidnapped Adam and ordered his death.            Given the brevity of the


                                        45
prosecutor’s comment, the lack of prejudice, and the strength of the evidence

supporting appellant’s conviction, any error associated with this comment was

harmless. Freeman, 340 S.W.3d at 728-729. Appellant’s eighth issue should be

overruled.

      In his ninth issue, appellant complains the prosecutor improperly injected

her personal beliefs regarding appellant’s guilt as a party during closing argument

in the guilt phase of trial. Appellant specifically complains about a comment the

prosecutor made after going through the party language in the charge:

      PROSECUTOR: We ask you to find him guilty as a party because
      what we believed happened is the defendant directed and
      encouraged—

      DEFENSE ATTORNEY: Objection to putting beliefs into the
      argument, Your Honor. It’s improper.

      THE COURT: That will be overruled.

      PROSECUTOR: What the evidence supports is that the defendant
      directed and encouraged Roger to kill the little boy. (RR XXIII 92).

      Appellant complains the State’s argument went outside the record and

invited the jury to consider the prosecutor’s opinion. A prosecutor may not inject

her personal opinion in statements to the jury or imply a special expertise about a

contested factual matter. Johnson v. State, 698 S.W.2d 154, 167 (Tex. Crim. App.

1985). But it is well settled that the prosecutor may argue her opinion concerning

issues in the case so long as the opinion is based on the evidence in the record and



                                        46
does not constitute unsworn testimony. McKay v. State, 707 S.W.2d 23, 37 (Tex.

Crim. App. 1985). And a prosecutor has some leeway to respond to particular

points made in defense counsel’s closing. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.

Crim. App. 2000).

      Prior to this comment, defense counsel in closing argument stated, “And I

have to tell you, I don’t know what happened. I wasn’t there. The State wasn’t

there. You weren’t there. It’s a tough decision to try to reconstruct beyond a

reasonable doubt what happened.” (RR XXIII 63). The prosecutor’s comment

was clearly a response to this argument and was the prosecutor’s opinion of the

evidence presented in the trial. The prosecutor did not claim to possess any

special expertise of knowledge outside of the record. Therefore, the trial court did

not err in overruling appellant’s objection.       See McKay, 707 S.W.2d at 37

(prosecutor’s opinion of the evidence was not improper since the prosecutor

didn’t argue possession of any special expertise constituting unsworn testimony);

see also Wilson v. State, 938 S.W.2d 57, 60 (Tex. Crim. App. 1996) (the invited

argument rule permits prosecutorial argument outside the record in response to

defense argument which goes outside the record).

      Even assuming the comment was error, it was harmless because it did not

affect appellant’s substantial rights. TEX. R. APP. P. 44.2(b); Mosley, 983 S.W.2d at

259 (factors to consider include the severity of the misconduct, any curative


                                         47
measures and the certainty of conviction absent the misconduct). When the

prosecutor stated what she thought happened that night, she was in essence

telling the jury the State’s theory of the case with regard to party liability.3

Although there was no curative instruction, the prosecutor immediately re-

phrased her argument, “What the evidence supports is that the defendant directed

and encouraged Roger to kill the little boy.” (RR XXIII 92). See Zarate v. State, 908

S.W.2d 544, 549-550 (Tex. App.—Fort Worth 1995, pet. ref’d) (prosecutor’s

references in closing argument regarding her personal opinion were harmless

because she immediately abandoned the line of reasoning when an objection was

made).

       It is unlikely the use of the words “we believe” in this isolated instance

influenced the jury in such a manner to question appellant’s conviction, based

upon the wealth of evidence supporting his guilt. See Allen v. State, 149 S.W.3d 254,

261 (Tex. App.—Fort Worth 2004, pet. ref’d) (prosecutor’s improper act of

injecting his personal opinion during closing argument was harmless where

evidence of defendant’s guilt was ample).

       Appellant’s ninth issue should be overruled.




3
    It is common for practitioners to use terms like “I believe, we believe” and inadvertently
provide their opinion when they are really just summarizing the evidence. Defense counsel did
it twice during closing argument at the punishment phase. (RR XXVI 116, 130).


                                             48
Tenth & Eleventh Points of Error

      In his tenth issue, appellant similarly complains the prosecutor went

outside the record and injected her personal belief during her closing argument in

the punishment phase. The prosecutor summarized the evidence demonstrating

appellant ordered Aviles-Barroso (Roger) to kill Adam:

      PROSECUTOR: Who is orchestrating this deal? Who is
      orchestrating all the criminal conduct that he’s involved in from all of
      the evidence that you’ve heard? Him. He is the boss. And that’s why
      when he told Roger to stab that little boy, he did. And Roger will pay
      the price for that when his turn comes, but don’t take the blame off of
      the man who told him to do it. Don’t excuse him. Because I will tell you
      right now, if it were up to Roger alone, Angelo would still be alive. (RR XXVI
      163-164) (emphasis added).

      Defense counsel objected the last line of that passage was outside of

the record. (RR XXVI 164-165). The trial court overruled his objection but

instructed the prosecutor to clear up her argument. (RR XXVI 165). The

prosecutor complied:

      PROSECUTOR: What I’m saying to you is, is that the defendant was
      the boss. The defendant told Roger to kill the little boy… And without
      hesitation, he got out of the car and opened the door and he told
      Roger in Spanish: You know what you have to do. And guess what?
      Roger did it. (RR XXVI 165-166).

      Appellant’s tenth point of error is waived. To complain on appeal about

improper jury argument, appellant must “show that he objected and pursued his

objection to an adverse ruling.” Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App.

1996). Prior to the passage appellant complains of in his tenth point of error, the


                                           49
other prosecutor made virtually the same argument during closing argument and

appellant failed to object.

      PROSECUTOR: You can answer based on what you know in the
      facts and evidence that Obel Cruz-Garcia is responsible for Angelo’s
      death. But for Obel Cruz-Garcia, don’t you know that Angelo Garcia, Jr. would
      be alive. Baby Angelo would be here but for Obel Cruz-Garcia. (RR XXVI 153)
      (emphasis added).

      Appellant has waived this argument because he failed to object to all the

alleged objectionable arguments. TEX. R. APP. P. 33.1(a); Fuentes v. State, 991 S.W.2d

267, 273 (Tex. Crim. App. 1999) (a defendant must object each time the

impermissible argument is made, or the complaint is waived); Wilson v. State, 179

S.W.3d 240, 249 (Tex. App.—Texarkana 2005, no pet.) (same).

      Even assuming the issue was preserved, the argument was proper as a

reasonable deduction from the evidence. Counsel is allowed wide latitude in

drawing inferences from evidence so long as they are reasonable, fair, legitimate

and offered in good faith. McFarland v. State, 845 S.W.2d 824, 840 (Tex. Crim. App.

1992). Further, even if the prosecutor’s statements could be construed as stating

her opinion, a prosecutor may argue her opinions concerning issues in the case so

long as the opinions are based on the evidence in the record and do not constitute

unsworn testimony. Penry v. State, 903 S.W.2d 715, 756 (Tex. Crim. App. 1995).

      The jury learned from Santana, Diana and Linda Hernandez that appellant

was the leader of the drug operation and everyone took direction from him.


                                           50
Evidence at trial demonstrated that appellant physically carried Adam out of the

apartment that night. Santana tried to convince appellant to take Adam back

inside, but he would not. There was absolutely no evidence that Santana or

Aviles-Barroso wanted to kidnap or kill Adam.

      Appellant choose the location for Adam’s death and burial. He drove his co-

conspirators and Adam to Baytown and once in a secluded area, gave the order for

Aviles-Barroso to kill Adam. Appellant directed Santana and Aviles-Barroso to put

Adam’s body back in the car, and he drove to another rural area and instructed

them to submerge Adam’s body in the river.

      The evidence revealed not only was appellant the leader of the drug ring, he

orchestrated the burglary, as well as Adam’s kidnapping and murder.             The

prosecutor’s argument — that appellant is the reason Adam is dead — whether a

reasonable deduction of the evidence or the prosecutor’s opinion of the evidence,

was not improper. See Garcia v. State, 246 S.W.3d 121, 145 (Tex. App.—San Antonio

2007, pet. ref’d) (prosecutor’s statement regarding personal belief of guilt was

based upon the evidence and thus, not improper); Carlock v. State, 8 S.W.3d 717, 725-

726 (Tex. App.—Waco 1999, pet. ref’d) (prosecution’s arguments were properly

based on reasonable deductions from evidence and did not improperly invite jury

to speculate). Appellant’s tenth point of error should be overruled.




                                         51
         In his eleventh issue, appellant complains the trial court erred by denying

his motion for mistrial based upon improper jury argument during the punishment

phase.

         PROSECUTOR: What else? They want to minimize the escape
         attempt. Justin talked to you about that. What do you think
         happened after he attempted to escape? You think he might have
         wound up in administrative segregation. I bet he did. (RR XXVI 171).

         The defense attorney objected this was outside the record and the trial court

agreed. (RR XXVI 171-172). The trial judge sustained the objection and instructed

the jury to disregard the last statement made by the prosecutor. (RR XXVI 171-

172). Appellant moved for a mistrial which was denied. (RR XXVI 172).

         A mistrial is the trial court’s remedy for improper conduct that is “so

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

futile.” Hawkins v. State, 135 S.W.3d 72, 76 (Tex. Crim. App. 2004). Only in extreme

circumstances, where the prejudice is incurable, will a mistrial be required. Id. at

77. When the trial court sustains an objection and grants an instruction to

disregard, but denies the motion for mistrial, the proper issue to address is

whether the refusal to grant the mistrial was an abuse of discretion on the part of

the trial court. Id. at 76-77. The question of whether a mistrial for improper

argument should have been granted involves most, if not all, of the same

considerations that attend a harm analysis. Id. at 77.




                                           52
      In determining whether improper jury argument warrants a mistrial, three

factors should be evaluated: 1) severity of the misconduct (the magnitude of the

prejudicial effect of the prosecutor’s remarks); 2) measures adopted to cure the

misconduct (the efficacy of any cautionary instruction by the judge); and 3) the

certainty of conviction absent the misconduct (the strength of the evidence

supporting the conviction). Ramon v. State, 159 S.W.3d 927, 929 (Tex. Crim. App.

2004), citing Mosley, 983 S.W.2d at 259.       Since the argument occurred at

punishment, this Court analyzes the third factor with regard to the certainty of

the punishment assessed. Martinez, 17 S.W.3d at 693.

      An officer from the Department of Corrections and Correctional Institution

of Guayama, Puerto Rico testified about appellant’s escape attempt while he was

incarcerated on October 10, 2003. (RR XXIV 118-128).         He mentioned that

afterward, during the investigation of the escape attempt, appellant was

interviewed, and after he provided no information, the classification committee

determined his punishment would be another type of custody. (RR XXIV 128).

When appellant was booked into the Harris County Jail on February 12, 2010, he

was place into administrative segregation, as a high-risk inmate. (RR XXV 145).

      The complained-of passage was a small part of the prosecutor’s closing

argument. The comment likely had little or no prejudicial effect. The jury was

aware of appellant’s escape attempt and inmate classification. The only possible


                                       53
new fact was whether he had been punished for the escape attempt. With regard

to curative measures, the trial judge sustained appellant’s objection and gave a

prompt curative instruction telling the jury to disregard the State’s remark. See

Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999) (the appellate court should

presume the jury followed the instruction to disregard).

      In support of special issue number 1 — whether appellant would commit

criminal acts of violence that would constitute a continuing threat to society —

the State presented evidence that appellant committed several other violent

crimes, including the murder of Saul Flores, the attempted murder of Manuel

Buten, the aggravated kidnapping of Andres Buten, the aggravated kidnapping of

William Martinez, the burglary and assault of Patiko as well as the sexual assault

of his girlfriend. In light of this powerful evidence, it is unlikely a comment

regarding appellant’s punishment for an escape attempt affected the jury’s

certainty on the punishment of death.

      Given the brevity of the prosecutor’s comment, the lack of prejudice, the

curative measures, and the strength of the evidence supporting appellant’s

sentence, appellant has not shown the trial court abuse its discretion in denying

his motion for mistrial. See Green v. State, No. AP-76458, 2012 WL 4673756 *33

(Tex. Crim. App. 2012) (not designated for publication) (trial court did not abuse

its discretion in denying defendant’s motion for mistrial based on the prosecutor’s


                                        54
improper remarks during closing argument regarding the defendant’s prison

disciplinary problems that were outside the record in the punishment phase of a

capital murder death case, noting the trial court sustained defense counsel’s

objection to the testimony and instructed the jury to disregard the testimony).

      Appellant’s eleventh point of error should be overruled.

                        


                  REPLY TO APPELLANT’S TWELFTH ISSUE

      In his final point of error, appellant argues the trial court erred in denying

his motion for new trial. (CR 569-577).

Standard of Review

      Appellant contends his motion for new trial should have been granted due

to jury misconduct, specifically evidence of an outside influence during the

punishment deliberations. See TEX. R. APP. P. 21.3; White v. State, 225 S.W.3d 571

(Tex. Crim. App. 2007) (setting out three grounds for jury misconduct that can

potentially get a defendant a new trial: 1) deciding a verdict unfairly; 2) receiving

other evidence, unauthorized conversation, or being intoxicated while

deliberating; or 3) depriving the defendant of a fair trial).

      Appellant complained of jury misconduct, in that one juror, Angela

Bowman, felt undue pressure to return her verdict, and the jury foreman, Matthew

Clinger, read Bible scriptures in the jury room, which constituted an outside


                                           55
influence. (RR XXIX 4, 12, 22-26). In support of his allegations, appellant offered

three affidavits: one from his trial attorney Mario Madrid, defense investigator J.J.

Gradoni, and jury member Angela Bowman. (CR 569-577; RR XXXV 28-36;

Defense Exhibit Numbers 1, 2 & 3).

      The State responded the affidavits were not admissible under Rule 606(b),

and even if they were, they did not demonstrate any conversation about the Bible

unduly influenced the jury, and the State offered affidavits in response to that

issue. (RR XXIX 11-18; RR XXXV 3-9; State’s Exhibit Numbers 1 & 2).

      After review of appellant’s motion and the affidavits, the trial court denied

appellant’s motion for new trial. (RR XXIX 28). The court admitted appellant’s

three affidavits into evidence, as well as two provided by the State, but noted:

      “And I find obviously by making those — by finding those affidavits
      are admissible that there is enough question as to whether this Bible
      production or Bible reading, whatever occurred, may be an outside
      influence. I’m not of the opinion that it was based on everything
      that’s been provided to me in the case law, but we’re going to send it
      up and see if the Court of Appeals — Court of Criminal Appeals
      agrees with us on that.

      And so, based on that I’m not granting the Motion For New Trial.”
      (RR XXIX 28).

      This Court reviews a trial court’s denial of a motion for new trial for an

abuse of discretion. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). In

conducting this review, this Court may not substitute its judgment for that of the

trial court; rather, it should decide only whether the trial court’s decision was


                                         56
arbitrary or unreasonable. Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App.

2006). A trial court abuses its discretion in denying a motion for new trial only

when no reasonable view of the record could support the trial court’s ruling. Id.

      A motion for new trial alleging jury misconduct must be supported by the

affidavit of a juror or other person who is in a position to know the facts. Trout v.

State, 702 S.W.2d 618, 620 (Tex. Crim. App. 1985). Texas Rule of Evidence 606(b)

prohibits post-verdict testimony about events or statements that occurred during

jury deliberations, the jurors’ mental processes, or how an improper influence

affected the jurors. TEX. R. EVID. 606(b); Colyer v. State, 428 S.W.3d 117, 123 (Tex.

Crim. App. 2014). It also prohibits such evidence by affidavit. Id. at 124. An

outside influence about which a juror may testify includes a discussion originating

from a source outside of the jury room and other than from the jurors themselves.

McQuarrie v. State, 380 S.W.3d 145, 154 (Tex. Crim. App. 2012).

Motion For New Trial Evidence

      On July 19, 2013, the jury was in the second day of punishment deliberations.

(RR XXVI 176-178; RR XXVII 3-14). At approximately 3:20 p.m., jury member

Angela Bowman sent a note asking to speak to the trial judge. (CR 512). The trial

judge allowed this jury member to speak to her in the privacy of her chambers,

within the presence of the court reporter. (RR XXVII 3-4).




                                         57
      When the trial judge asked Bowman what she needed to relay to the court,

Bowman replied that she could not agree with other jurors on the special issues

and felt pressured. (RR XXVII 4-5). Bowman urged the judge to allow an

alternate to take her place. (RR XXVII 5). The judge educated Bowman on the

law in this regard, and Bowman replied that the jury was never going to come to

an agreement. (RR XXVII 6). Bowman also stated that she did not want to have

to stay another night. (RR XXVII 8). The judge instructed her to resume her

deliberations with the jury until otherwise directed by the court. (RR XXVII 6-8).

Bowman returned to the jury room and the jury returned its punishment verdict

on all three special issues at approximately 4:30 p.m. (CR 523-527).

      One of appellant’s trial attorneys, Mario Madrid, provided an affidavit

where he summarized a conversation he had with Bowman later that night.

(Defense Exhibit Number 1).         He stated Bowman was distraught over the

punishment deliberations and claimed she was pressured into changing her

decision. Id. She explained her decision was complicated by the fact that her

daughter was ill and she was unable to attend to her due to sequestration. Id.

Bowman also stated the jury foreman quoted from his Bible during the

deliberations, and she felt it influenced other jurors. Id.

      Angela Bowman provided an affidavit as well and expanded on what she

initially told the trial judge and Mario Madrid. (Defense Exhibit Number 3).


                                           58
Bowman claimed she received a phone call from her daughter’s camp counselor on

the first day of deliberations, July 18, 2013. Id. In her affidavit, she claims her

daughter had a fever and stated, “If it had not been for my concern over my

daughter’s health condition, I would have remained committed to voting for life in

prison.” Id. She also noted that the jury foreman took out his Bible when another

juror, Casey Guillotte, sought spiritual guidance to make her decision.            Id.

Bowman did not claim the act of referencing the Bible caused her to change her

decision, she was clear, “I changed my verdict so I could go home and take care of

my child.” Id.

      The defense also submitted an affidavit from their investigator, J.J. Gradoni.

(Defense Exhibit Number 2). His statement substantiates much of what was

included in the affidavits provided by Mario Madrid and Angela Bowman. Id. He

also added that he interviewed the jury foreman, Matthew Clinger, who admitted

he pulled out his personal Bible during deliberations and read from it. Id. Clinger

shared the fact that he looked to his Bible for spiritual guidance with Casey

Guillotte. Id.

      The State presented two affidavits in its response to appellant’s motion for

new trial, in the alternative, if the trial court ruled the affidavits were admissible

under Rule 609(b). (RR XXIX 11).




                                         59
      The first was from Casey Guillotte. (States’ Exhibit Number 1). She stated

the jury came back on the first two special issues unanimously, then turned to the

third special issue—whether there was sufficient mitigation evidence to warrant

life in prison rather than the death penalty. Id. She said at this point, she asked the

entire jury about how each of them would come to terms with the verdict, from an

emotional standpoint. Id. Guillotte stated in response to her question, Clinger

retrieved his personal Bible from his belongings and read a passage to himself. Id.

He told her he found comfort with his decision because of a verse in the book of

Romans. Id. She stated Clinger did not read the Bible to the jury or direct any of

them to a particular passage, and it not influence her decision. Id.

      The State also presented an affidavit from Matthew Clinger, the jury

foreman. (State’s Exhibit Number 2). He recalled when deciding the three special

issues, the jury agreed to focus their discussions on the facts and not emotions. Id.

Clinger remembered that Casey Guillotte, while staying true to this intention,

wondered aloud how they would all deal with the aftermath of their verdict. Id.

Several of the jurors shared how they dealt with their emotions and he told

Guillotte he found comfort in the Bible. Id. Although he pulled out his Bible for

himself, he did not read from it aloud, nor did Guillotte read it.            Id. He

characterized the conversation as sharing advice for coping with the emotional

ramifications of their decision. Id.

                                          60
Analysis

      The record reveals the trial court admitted the affidavits in an abundance of

caution, but held the belief the affidavits were not admissible under Rule 606(b).

The judge specifically stated that she did not think a Bible production or Bible

reading (which ever occurred) constituted an “outside influence.” (RR XXIX 28).

This is legally correct based on the facts of this case.

      This Court has considered the term “outside influence” when evaluating

whether evidence from jurors is admissible in a motion for new trial under Rule

606(b). In 2012, this Court decided McQuarrie v. State; the defendant in that case

was charged with sexual assault and he maintained it was consensual sex,

although the victim claimed she was drugged. McQuarrie, 380 S.W.3d at 147-148,

150-155. After one day of deliberating, the jury was unable to reach a unanimous

verdict, so they resumed deliberations the following day. Id. at 148. The next day,

one of the jurors shared information with the rest of the jury concerning internet

research he performed the night before, on the effects of date rape drugs, pertinent

to the case. Id. In holding the internet research qualified as an outside influence

for which the defendant should have been permitted to conduct a post-trial

inquiry, this Court stated, “A Rule 606(b) inquiry is limited to that which occurs

outside the jury room and outside of the juror’s personal knowledge and

experience.” Id. at 153.


                                           61
      In 2014, this Court clarified that personal pressures—such as fear of

inclement weather or concern about a child’s illness—are not “outside influences

under Rule 606(b). See Colyer, 428 S.W.3d at 119. Juror testimony on these subjects

is not admissible to show jury misconduct. Id. at 127-128 (rejecting defense

contention that weather and a call from child’s doctor constitute information

outside the jury room, since these are influences unrelated to the trial issues);

compare McQuarrie, 380 S.W.3d at 154-155.

      A collective reading of this authority demonstrates why the affidavits in this

case are not admissible to show an “outside influence” under Rule 606(b). (CR

12). First, Bowman never asserted the bible reading affected her decision. She

claimed the stress over her daughter’s illness caused her to change her vote. This

falls squarely within the holding of Colyer and her affidavit should not be

admissible in support of appellant’s new trial. See Colyer, 428 S.W.3d at 127-128

(rejecting defendant’s interpretation of “outside influence,” which could include a

juror that has second thoughts about his vote and then retroactively claim that a

personal pressure, such as his job, marriage, or children, made him apprehensive

and eager to conclude the deliberations).

      And the religious conversation in the jury room was characterized as one of

comfort, from one jury member to another, on dealing with the emotions of

participating in this trial and assessing a difficult punishment. The foreman did


                                        62
not read the Bible out loud to the jury, but to himself. It was not a source of new

evidence pertaining to the issues in this case, as in McQuarrie. It was the foreman’s

personal belief that he shared during deliberations, which is not a permissible

challenge to the verdict. See Hines v. State, 3 S.W.3d 618, 623 (Tex. App.—Texarkana

1999, pet. ref’d) (a juror’s injection of his own personal experiences, knowledge, or

expertise is not considered an “outside influence,” because those representations

emanate from inside the jury). And even assuming the record demonstrated the

foreman was using his religious beliefs to coerce other jurors, it does not

constitute an “outside influence.” Id. (coercive influence of one juror on the rest of

the panel does not constitute an “outside influence”).

      Therefore, the defense affidavits relating to this incident are not admissible

under Rule 606(b) to support his motion for new trial. Compare Oliver v. Quaterman,

541 F.3d 329, 340 (5th 2008) (jury’s Bible consultation as a group constituted an

external influence on deliberations where the jury did not simply discuss their

own understanding of religious law and morality or merely quote the Bible, but

instead compared the facts of their case to a specific passage in the Bible that

taught capital punishment was appropriate for murder).

      Even assuming the affidavits are admissible in this case, appellant has not

shown the trial court abused its discretion in denying his motion for new trial. In

2008, this Court decided Lucero v. State; the defendant in that case was charged


                                         63
with capital murder and claimed on appeal he was entitled to a new trial because

the jury foreman read scripture from the Bible during punishment deliberations.

Lucero v. State, 246 S.W.3d 86 (Tex. Crim. App. 2008). Evidence in that case

revealed that the jury foreman read a passage from the Bible that lasted

approximately 2-3 minutes during the hours-long deliberations. Id. at 92. This

Court declined to decide whether the jury foreman’s reading of the Bible was an

“outside influence,” and denied the defendant’s motion for new trial because the

affidavits were devoid of any evidence that the scripture reading affected the jury’s

punishment verdict of death. Id. at 95.

       The affidavits in this case similarly contain no evidence that references to

the Bible affected any juror’s punishment decision.4 (State’s Exhibit Number 1;

Defense Exhibit Number 3). Thus, appellant has not shown he should have been

granted a new trial, even when considering this evidence. See Oliver, 541 F.3d at

341-344 (jury’s decision to impose the death penalty, despite the fact they

consulted an external influence, was harmless due to evidence from the jurors that

it did not prejudice their decision).
4
  Appellant also claims the trial court erred by not having a hearing on his motion. (Appellant’s
brief 114-115). The defense was asked specifically about any other evidence that would show a
juror was influenced by the bible reference, and he acknowledged there was nothing more than
the affidavits presented. (RR XXIX 24). Lucero is instructive on this issue, finding the lack of
evidence from any juror showing the bible reading affected their verdict supported the trial
court’s decision not to hold a hearing. Lucero, 246 S.W.3d at 94-95; see also Wallace v. State, 106
S.W.3d 103, 108 (Tex. Crim. App. 2003) (defendant is entitled to an evidentiary hearing on his
motion for new trial if the motion and accompanying affidavits raise matters not determinable
from the record, upon which the accused would be entitled to relief).


                                                64
      Appellant’s twelfth point of error should be overruled. See TEX. R. APP. P.

21.3; Tate v. State, 414 S.W.3d 260, 264 (Tex. App.—Houston [1st Dist.] 2013, no

pet.) (mere showing of outside influence, by jury’s foreman research of defendant’s

criminal history, was insufficient to establish juror misconduct, where the record

contained no evidence that this knowledge affected the jury’s decision).


                        


                                 CONCLUSION

      It is respectfully submitted that this Court affirm appellant’s conviction and

sentence.



                                               DEVON ANDERSON
                                               District Attorney
                                               Harris County, Texas



                                               /s/   Jessica Akins
                                              JESSICA AKINS
                                              Assistant District Attorney
                                              Harris County, Texas
                                              1201 Franklin, Suite 600
                                              Houston, Texas 77002
                                              (713) 755-5826
                                              TBC No. 24029415
                                              akins_jessica@dao.hctx.net




                                        65
                           CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing instrument has been mailed to

the following address:

      Wayne T. Hill                          Lisa McMinn
      Attorney at Law                        State Prosecuting Attorney
      4615 Southwest Frwy, Suite 600         P.O. Box 13046
      Houston, Texas 77027                   Austin, Texas 78711
      wthlaw@aol.com                         Lisa.McMinn@SPA.texas.gov



                                             /s/   Jessica Akins
                                             JESSICA AKINS
                                             Assistant District Attorney
                                             Harris County, Texas
                                             1201 Franklin, Suite 600
                                             Houston, Texas 77002
                                             (713) 755-5826
                                             TBC No. 24029415
                                             akins_jessica@dao.hctx.net


                         CERTIFICATE OF COMPLIANCE

       This is to certify that this computer-generated document has a word count
of 16,843 words, based upon the representation provided by the word processing
program that was used to create the document.

                                                    /s/   Jessica Akins
                                                    JESSICA AKINS
                                                    Assistant District Attorney
                                                    Harris County, Texas

Date: 4/15/2015


                                        66
