                            NUMBER 13-10-00047-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

JOSE LUIS CANTU,                                                          Appellant,

                                          v.

THE STATE OF TEXAS,                                                       Appellee.


                   On appeal from the 92nd District Court
                        of Hidalgo County, Texas.


                        MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Garza
            Memorandum Opinion by Justice Rodriguez
      Appellant Jose Luis Cantu pleaded guilty to murder, and his punishment was tried

to a jury, which sentenced him to fifty-five years' incarceration. See TEX. PENAL CODE

ANN. § 19.02(b)(1) (West 2011). By five issues on appeal, Cantu argues that the trial

court erred in: (1) allowing hearsay testimony involving statements by the deceased; (2)
denying Cantu's proposed limiting instruction in the jury charge regarding certain prior

inconsistent statements made by two of the State's witnesses; (3) admitting various

autopsy photographs depicting the deceased's corpse; (4) granting two of the State's

challenges for cause during voir dire over Cantu's objections; and (5) refusing to admit

letters written by the deceased to Cantu because portions of the letters were in Spanish

and were not translated by a certified translator. We affirm.

                                        I. Background

       On March 16, 2006, the body of the deceased was found in a shed in her parents'

backyard in Pharr, Texas. She appeared to have been strangled to death, and the

autopsy by a Hidalgo County forensic pathologist confirmed the cause of death to be

asphyxia by suffocation and strangulation.            Cantu, the deceased's boyfriend, was

indicted for the murder. Cantu pleaded guilty to killing the deceased, but opted to have

his punishment tried to the jury. At the trial on punishment, Cantu raised a sudden

passion defense. His defensive theory was that he and the deceased had a violent

argument about whether either of them had been cheating and alleged that, as a result,

he caused the deceased's death under the immediate influence of a sudden passion

arising from an adequate cause. See id. § 19.02(d).

       At the punishment trial, both the State and Cantu presented evidence in support of

their respective positions on punishment. In its charge from the trial court, the jury was

ordered to find Cantu guilty of murder pursuant to his guilty plea; was questioned on

Cantu's sudden passion defense1; and was instructed to sentence Cantu according to its


       1
         If the jury had accepted Cantu's sudden passion defense, the degree of the crime would have
been reduced from first-degree to second-degree murder, and the punishment range would have been two
                                                 2
answer to the sudden passion question. In its verdict, the jury found Cantu guilty,

rejected his sudden passion defense, and sentenced him to fifty-five years' incarceration.

                             II. Statements Made by the Deceased

        By his first issue, Cantu argues that the trial court erred in allowing two of the

State's witnesses to testify as to statements made by the deceased regarding her fear of

Cantu; Cantu argues that the statements were hearsay. Cristina Casas, the deceased's

cousin, testified that the deceased told her that she was scared that if she left Cantu, he

would rape and kill her. Similarly, Jessica Robledo, a friend of the deceased, testified

that the deceased told her she was afraid of Cantu. The State contends that Cantu failed

to preserve his hearsay issue—we agree.

        As to Casas's testimony, she testified three times about the deceased's statement

that she was afraid Cantu would rape and kill her. Arguably, Cantu objected to the first

two instances.2 But Casas testified as to the same statement a third time, nearly five

pages in the reporter's record after the second instance, and Cantu made no objection.

               It is a well-settled principle that to preserve error for review on
        appeal, a defendant must object timely, specifically, and receive an adverse
        ruling at trial. TEX. R. APP. P. 33.1(a); Turner v. State, 805 S.W.2d 423,

to twenty years' incarceration. See TEX. PENAL CODE ANN. §§ 12.33(a), 19.02(d) (West 2011). The
punishment range for first-degree murder is five to ninety-nine years. See id. § 12.32(a) (West 2011).
Cantu also applied for community supervision, and the jury charge gave the jury the option to sentence
Cantu to a term of community supervision for either the first-degree or the second-degree murder. The
jury declined to do so.
        2
            Several questions prior to the first instance, Cantu made a hearsay objection that was overruled
by the trial court. He did not request a running objection, and three questions later, Casas testified for the
first time as to the deceased's statement about her fear that Cantu would rape and kill her. Several pages
later in the reporter's record, Casas testified for the second time about the deceased's statement. Cantu
objected, but not on specific grounds. The trial court sustained this objection, stating that "[s]he (Casas)
already answered that," which seems to indicate that the court considered Cantu's objection to be an
asked-and-answered objection. For purposes of our analysis, however, we will assume without deciding
that the foregoing objections were sufficient to timely alert the trial court to Cantu's hearsay objection
concerning the first two instances.
                                                      3
       431 (Tex. Crim. App. 1991). The objecting party must continue to object
       each time the objectionable evidence is offered. Fuentes v. State, 991
       S.W.2d 267, 273 (Tex. Crim. App. 1999); Ethington v. State, 819 S.W.2d
       854, 858–59 (Tex. Crim. App. 1991). A trial court's erroneous admission of
       evidence will not require reversal when other such evidence was received
       without objection, either before or after the complained-of ruling. Leday v.
       State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998).

Jaynes v. State, 216 S.W.3d 839, 850 (Tex. App.—Corpus Christi 2006, no pet.). Here,

Cantu did not make a running objection to Casas's hearsay statement. As such, he was

required to object each time she made the statement, and he failed to do so. The third

time Casas made the statement, Cantu lodged no objection to it. Thus, Cantu did not

preserve his hearsay issue as to Casas's testimony. See id. Further, even if the trial

court erred in allowing the first two instances of the statement, that error is not reversible

on appeal because the same evidence came in without objection when Casas referred to

the identical statement made by the deceased later in her testimony. See id.

       As to Robledo's testimony, our review of the record indicates that she testified

twice that the deceased told her she was afraid of Cantu. Cantu objected to both

instances, but not on hearsay grounds. The first objection was based on speculation,

which was overruled by the trial court, and the second was an asked-and-answered

objection, which was sustained by the court. When a trial objection does not comport

with the issue raised on appeal, the appellant has preserved nothing for review. See

TEX. R. APP. P. 33.1(a); Resendiz v. State, 112 S.W.3d 541, 547 (Tex. Crim. App. 2003)

(en banc) (citing Ibarra v. State, 11 S.W.3d 189, 196 (Tex. Crim. App. 1999)). Here,

Cantu's     objections    at    trial   to    Robledo's      testimony—speculation       and

asked-and-answered—do not comport with the hearsay issue he raises on appeal.


                                              4
Thus, he has not preserved his hearsay complaint about Robledo's testimony for appeal.

        Cantu's first issue is overruled.

                         III. Limiting Instruction in Jury Charge

        By his second issue, Cantu argues that the trial court erred in denying his request

to include a limiting instruction in the jury charge regarding certain testimony of two of the

State's witnesses, Rey Gaona and Princess Zuniga. Cantu contends that the testimony

of these two witnesses was impeached by prior inconsistent statements made by the

witnesses to the police and prosecutors. For this reason, Cantu argues that he was

entitled to an instruction in the jury charge that would have required the jury to consider

the prior inconsistent statements only for purposes of judging the credibility of Gaona and

Zuniga.

        First, Cantu points to testimony by Gaona on direct examination by the State in

which he stated that Cantu told him that he strangled the deceased with a rope or cord.

When Gaona testified as such, the State asked Gaona a series of questions related to the

statement Gaona gave police during the investigation of the murder. Gaona agreed that

he had said in the statement that Cantu told him he had strangled the deceased with his

hands and had then tied a cord around her neck to make sure she was dead. The

prosecutor then asked Gaona if what he said in his statement was "your testimony here

today," to which Gaona replied, "Yes, sir."

        Next, Cantu points to testimony by Zuniga on direct examination by the State in

which she stated that Cantu told her that he wanted to burn the deceased's family's house

down.     When Zuniga testified that "that's all [Cantu] said," the State asked Zuniga


                                              5
whether she made a statement to the prosecutor before trial in which she said that Cantu

told her "that he wanted to kill [the deceased] and the family by burning down the house."

Zuniga agreed that she had. The prosecutor then asked Zuniga if what she said in her

statement was "your testimony today," to which Zuniga replied, "Yes."

      A prior inconsistent statement is a statement made by a witness before trial that

contradicts testimony by the witness at trial. See Madry v. State, 200 S.W.3d 766, 769

(Tex. App.—Houston [14th Dist.] 2006, pet. ref'd) (citing Lopez v. State, 86 S.W.3d 228,

230 (Tex. Crim. App. 2002) (en banc)). Such a statement may be used to impeach the

witness, and when used for this purpose, a trial court must instruct the jury, when

requested by the defendant, to limit its consideration of the impeachment evidence to

determining the credibility of the witness. See TEX. R. EVID. 613(a); Rankin v. State, 974

S.W.2d 707, 712 (Tex. Crim. App. 1996) (en banc); see also TEX. R. EVID. 105(a).

However, having reviewed the record of the trial in this case, we cannot conclude that the

foregoing testimony by Gaona and Zuniga was inconsistent with the statements they

made prior to trial. Rather, it appears that the State was using the witnesses' prior

statements merely to refresh their memories. Thus, we disagree with the premise of

Cantu's assertion—neither Gaona nor Zuniga made a prior inconsistent statement, and

the State was not using their prior statements for impeachment purposes.

      Further, even were we to assume that the State had attempted to impeach its

witnesses with their prior statements, we note that Cantu did not request limiting

instructions at the time Gaona and Zuniga testified.      The Texas Court of Criminal

Appeals held in Hammock v. State that pursuant to Texas Rule of Evidence 105(a), a


                                            6
defendant must request a limiting instruction when the evidence is first admitted. 46

S.W.3d 889, 893-94 (Tex. Crim. App. 2001); see TEX. R. EVID. 105(a) ("When evidence

which is admissible as to one party or for one purpose but not admissible as to another

party or for another purpose is admitted, the court, upon request, shall restrict the

evidence to its proper scope and instruct the jury accordingly; but, in the absence of such

request the court's action in admitting such evidence without limitation shall not be a

ground for complaint on appeal.") (emphasis added). If the defendant fails to make such

a request at that time, the evidence is admitted for all purposes. Hammock, 46 S.W.3d

at 894-95; see TEX. R. EVID. 105(a). The trial court is not then required to include a

limiting instruction in the charge to the jury. Hammock, 46 S.W.3d at 895. In fact,

allowing the jury to consider evidence for all purposes throughout trial and then instructing

it, under the jury charge, to consider that same evidence for a limited purpose only "is

asking a jury to do the impossible." Id. at 894. The danger is that "'the improper

inference drawn [from the earlier-considered evidence] cannot later be erased by an

instruction in the charge.'" Id. (quoting Jackson v. State, 992 S.W.2d 469, 478 (Tex.

Crim. App. 1999) (en banc)).

       Here, because Cantu did not request limiting instructions at the time of Gaona and

Zuniga's testimony, the evidence from their testimony was admitted for all purposes, and

the jury likely considered it for all purposes throughout the trial.      Thus, we cannot

conclude that the trial court erred in refusing to include a limiting instruction in the jury

charge as it would have been impossible for the jury to erase the inferences it drew from

the evidence during the trial. Cantu was required to request a limiting instruction as soon


                                             7
as the complained-of testimony was first admitted. His failure to do so made any limiting

instruction in the jury charge untimely and futile for purposes of controlling the jury's

perception of the evidence.

      Cantu's second issue is overruled.

                               IV. Autopsy Photographs

      By his third issue, Cantu argues that the trial court erred in admitting seven

photographs from the deceased's autopsy. Cantu argues that the photographs were

irrelevant, more prejudicial than probative, and thus inadmissible.

      The standard of review for the admissibility of evidence is abuse of discretion.

Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005) (en banc). Under an abuse

of discretion standard, we will uphold the decision of the trial court concerning the

admissibility of evidence unless the ruling rests outside the zone of reasonable

disagreement. Id.

      Rule 403 provides that, "[a]lthough relevant, evidence may be excluded if its

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

R. EVID. 403. The rule creates a presumption of admissibility of all relevant evidence and

authorizes the trial court to exclude such evidence only when there is a "clear disparity

between the degree of prejudice of the offered evidence and its probative value." Mozon

v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999). In analyzing whether evidence is

more prejudicial than probative, the court should consider:        (1) how probative the

evidence is; (2) the potential of the evidence to impress the jury in some irrational and

indelible way; (3) the time needed by the proponent to develop the evidence; and (4) the


                                            8
proponent's need for the evidence. Reese v. State, 33 S.W.3d 238, 240-41 (Tex. Crim.

App. 2000).    Under the fourth factor, one relevant inquiry is whether the fact of

consequence meant to be established by the evidence is in dispute. Id. at 242.

       In addition to the foregoing rules of evidence, the admissibility of evidence during

the punishment phase is also governed by article 37.07 of the code of criminal procedure.

See Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999) (en banc). Article

37.07, section 3(a)(1) provides:

       Regardless of the plea and whether the punishment be assessed by the
       judge or the jury, evidence may be offered by the state and the defendant
       as to any matter the court deems relevant to sentencing, including but not
       limited to the prior criminal record of the defendant, his general reputation,
       his character, an opinion regarding his character, [and] the circumstances
       of the offense for which he is being tried . . . .

TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West Supp. 2011). The Texas Court of

Criminal Appeals has noted that article 37.07 does not define "relevant" and that the

definition of "relevant" under the rules of evidence "is not a perfect fit in the punishment

context." Rogers, 991 S.W.2d at 265. This is because "[s]entencing presents different

issues than a verdict of guilt or innocence [in that] the jury or trial judge chooses from a

punishment range, rather than deciding whether a defendant is guilty." Id. To that end,

the court opined that

       [the] admissibility of evidence at the punishment phase of a non-capital
       felony offense is a function of policy rather than relevancy. This is so
       because by and large there are no discreet [sic] factual issues at the
       punishment stage. There are simply no distinct "fact[s] ... of consequence"
       that proffered evidence can be said to make more or less likely to exist.
       Rather, "[d]eciding what punishment to assess is a normative process, not
       intrinsically factbound."

Id. (quoting Miller-El v. State, 782 S.W.2d 892, 895–96 (Tex. Crim. App. 1990) (internal

                                             9
footnote and citations omitted)).

       Although it is not a "perfect fit" for our analysis, we are nonetheless guided by what

the rules of evidence provide regarding relevance.          Id. (holding that Texas Rule of

Evidence 401 "is helpful to determine what should be admissible under article 37.07

section 3(a)"). Rule 401 defines relevant evidence as "evidence having any tendency to

make the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence." TEX. R. EVID.

401. As to photographs, specifically:

       Generally, a photograph is admissible if verbal testimony as to matters
       depicted in the photographs is also admissible. [Williams v. State, 958
       S.W.2d 186, 195 (Tex. Crim. App. 1997)]; Long v. State, 823 S.W.2d 259,
       271-72 (Tex. Crim. App. 1991). In other words, if verbal testimony is
       relevant, photographs of the same are also relevant. . . . A visual image of
       the injuries appellant inflicted on the victim is evidence that is relevant to the
       jury's determination. The fact that the jury also heard testimony regarding
       the injuries depicted does not reduce the relevance of the visual depiction.

              ....

              A court may consider several factors in determining whether the
       probative value of photographs is substantially outweighed by the danger of
       unfair prejudice. These factors include, but are not limited to: the number
       of exhibits offered, their gruesomeness, their detail, their size, whether they
       are black and white or color, whether they are close-up, and whether the
       body depicted is naked or clothed. [Williams, 958 S.W.2d at 196]. The
       availability of other means of proof and the circumstances unique to each
       individual case must also be considered. Id.

Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007).

       Here, the challenged photographs show that the deceased's body was in a state of

decomposition. All of the photos show severe discoloration of the skin and bloating.

Fulgencio Salinas, M.D., the Hidalgo County forensic pathologist who performed the


                                              10
autopsy on the deceased, testified as to each of the seven photographs, describing the

deceased's injuries depicted in each photograph.3 As described by Dr. Salinas, State's

exhibit 1 is a close-up of the deceased's neck and shows the groove in her skin made by

the cord that strangled her. State's exhibit 2 depicts the autopsy dissection of the

deceased's neck, which shows the injuries caused by the strangulation to her esophagus

and the blood vessels in her neck. State's exhibits 4 and 5 show the deceased's left and

right hands; both hands are in a state of decomposition. State's exhibit 6 is a photograph

of the backside of the deceased's body; the backside of her body exhibits white marks

where her clothing was, which is a further indication of decomposition. State's exhibit 7

is another picture of the deceased's neck, which also shows the injury to her neck caused

by the cord. Finally, State's exhibit 8 is a photograph of the deceased's body as it came

to the morgue, fully clothed and in an obvious state of decomposition. As they appear in

the record, the photographs are in color and have not been enlarged. 4 Exhibits 6 and 7

show parts of the deceased's naked body; exhibit 6 shows her buttocks, and exhibit 7

shows the top of her breasts. The State admitted a total of ninety-three photographs at

trial.

         Cantu contends that the photographs were not relevant to any disputed issue at

trial, as he never contested the cause of death or the type of injuries the deceased

suffered, and the photographs were therefore not probative of any issue that was in

dispute and were more prejudicial than probative.                  However, other factors weighed
         3
         Although Dr. Salinas did not identify each photo by exhibit number as he was describing them, a
comparison of the exhibits and Dr. Salinas's testimony makes plain that he testified as to each of the seven
challenged photographs.
         4
          It is not clear from the record whether the photographs were given to the jury in the form they
appear in the appellate record or whether they were published to the jury on an overhead projector.
                                                    11
heavily in favor of the photographs' admission. Primarily, although the photographs

were gruesome, as visual depictions of the injuries Dr. Salinas was describing, the

photographs were highly relevant.       The photographs were useful to the jury in

understanding the extent of the deceased's injuries.         And the depiction in the

photographs of the severely decomposed state of the deceased's corpse was directly

relevant to the State's rebuttal of Cantu's sudden passion defense. See id. The fact

that Cantu left the deceased's body to decompose in her parents' backyard rebutted his

assertions at trial that he cared deeply about the deceased and merely acted out of

sudden passion in killing her. In other words, the jury could have decided that Cantu's

decision to leave the deceased's body to decompose contradicted his claim that he had

strong feelings for the deceased, and the photographs were highly relevant in that regard.

      In sum, we conclude that the complained-of photographs helped the jury

understand the extent of Garcia's injuries and were demonstrative of Cantu's state of

mind. The photographs were highly relevant, and there was no clear disparity between

the degree of prejudice of the photographs and their probative value. See TEX. R. EVID.

403; Mozon, 991 S.W.2d at 847.

      What's more, in the punishment context, the photographs were even more relevant

because they depicted the circumstances of the crime—the strangulation of the

deceased and the manner in which Cantu disposed of the body and left it to decompose

in the deceased's parents' backyard. See TEX. CODE CRIM. PROC. ANN. art. 37.07, §

3(a)(1). Because our review of the admissibility of the evidence in the punishment

context serves a normative, policy function, we cannot say the trial court erred in


                                           12
admitting photographs which aided the jury in understanding the nature of the crime for

which it was sentencing Cantu. See Rogers, 991 S.W.2d at 265

       The trial court therefore did not abuse its discretion in admitting the photographs.

See Martin, 173 S.W.3d at 467. Cantu's third issue is overruled.

                  V. State's Challenges for Cause During Voir Dire

       By his fourth issue, Cantu argues that the trial court erred in granting two of the

State's challenges for cause over Cantu's objections. We disagree.

       "A challenge for cause is an objection made to a particular juror, alleging some fact

which renders the juror incapable or unfit to serve on the jury." TEX. CODE CRIM. PROC.

ANN. art. 35.16(a) (West 2006). A challenge for cause may be made for, among others,

the following reasons: "the juror has . . . such bodily or mental defect or disease as to

render the juror unfit for jury service"; or "the juror has a bias or prejudice in favor of or

against the defendant."     Id. art. 35.16(a)(5), (9).   Article 35.16's list of grounds for

challenges for cause is not exclusive; a challenge may also be based on any fact that

shows the venire member would be incapable or unfit to serve on the jury in that case.

See Mason v. State, 905 S.W.2d 570, 577 (Tex. Crim. App. 1995) (en banc) (citations

omitted).

       The trial court is in the best position to evaluate the demeanor and responses of

venire members and determine whether they are fit under the law to serve on the jury.

See Broxton v. State, 909 S.W.2d 912, 917 (Tex. Crim. App. 1995) (en banc) (holding that

during our review of voir dire testimony, "we recognize that we are faced with only a cold

record, and that we should grant considerable latitude to the trial judge, who had the


                                             13
opportunity to directly observe the demeanor of the venireperson"). Thus, we afford the

trial court considerable deference in ruling on challenges for cause; we will reverse a trial

court's rulings on a venire member's qualifications only when the record demonstrates a

clear abuse of discretion. See id.; Kemp v. State, 846 S.W.2d 289, 296 (Tex. Crim. App.

1992) (en banc). In particular, "[c]hallenges which are not based upon any ground

specifically enumerated in the statutes are ordinarily addressed to the sound discretion of

the trial judge." Mason, 905 S.W.2d at 577. We will uphold the trial court's decision so

long as it was correct under any theory of law applicable to the case. See Jones v. State,

982 S.W.2d 386, 389 (Tex. Crim. App. 1998) (en banc).

       In response to questioning during voir dire about his ability to be fair and impartial,

the first challenged venire member stated, "I don't want to be part of it period. I don't

want to have that burden on me." The State moved to strike the venire member for

cause; Cantu objected to the State's motion; and the trial court overruled Cantu's

objection and struck the venire member for cause. Cantu argues that none of the

enumerated challenges in article 35.16 apply to the first venire member's testimony. But

as we have already noted, the list of reasons in article 35.16 is not exclusive; so long as

the challenge is based on a fact that shows the venire member to be unfit for jury service,

it is within the discretion of the trial court to determine the venire member's capability or

fitness to serve. See Mason, 905 S.W.2d at 577. Because the trial court was in the

best position to observe the first venire member's responses and demeanor, we cannot

conclude that the court acted outside its discretion in determining that the venire

member's seemingly emphatic statement that he did not want "the burden" of deciding


                                             14
Cantu's fate rendered him unfit to serve as a fair and impartial member of the jury. 5

        In response to questioning during voir dire about her ability to pronounce judgment

in the case, the second challenged venire member stated, "I get very nervous. Right

now I am very nervous.            I get very emotional."         The venire member discussed a

previous criminal trial in which she served as a juror that was "horrible for her"; she stated,

"I get ill because I already have high blood pressure and I'm a diabetic. . . .                         So

nervousness just raises it." When asked by the prosecutor if "it's sometimes hard to

listen to all the evidence," she replied, "Yes." When asked by the prosecutor if this would

prevent her "from listening to the entire case or all the facts," she replied, "Yes." The

State then moved to strike the venire member for cause; Cantu objected to the State's

motion; and the trial court overruled Cantu's objection and struck the venire member for

cause. As to this second challenged venire person, there was a clear, enumerated

reason under article 35.16 for the trial court to excuse her—she had physical diseases

which she claimed would prevent her from listening to all of the evidence in the case.

See TEX. CODE CRIM. PROC. ANN. art. 35.16(a)(5). And having reviewed the entire voir

dire testimony of this venire member, it is clear to this Court that the trial court acted within

its discretion in granting the State's challenge for cause.


        5
           Citing Jones v. State, Cantu also argues that, "before a venire[]member can be properly
challenged for cause, the law must be fully explained to him." See 982 S.W.2d 386, 390 (Tex. Crim. App.
1998) (en banc). Cantu's reliance on Jones is misplaced. In Jones, the court of criminal appeals stated
that "[b]efore a venire[]member can be properly challenged under Article 35.16(b)(3), the law must be
explained to him and he must be asked whether he can follow that law regardless of his personal views."
Id. (emphasis added). Article 35.16(b)(3) provides that the State may make a challenge for cause if the
venire member "has a bias or prejudice against any phase of the law upon which the State is entitled to rely
for conviction or punishment." TEX. CODE CRIM. PROC. ANN. art. 35.16(b)(3) (West 2006). Here, however,
we have held that the trial court's excusing of the first challenged venire member was permissible not under
article 35.16(b)(3) but for reasons not enumerated in article 35.16. Thus, this rule from Jones does not
apply, and we are not persuaded by this portion of Cantu's argument.
                                                    15
       In sum, the record does not clearly show an abuse of discretion by the trial court in

excusing either of the foregoing venire members for cause. See Kemp, 846 S.W.2d at

296. Cantu's fourth issue is overruled.

                    VI. Letters Written by the Deceased to Cantu

       By his fifth issue, Cantu argues that the trial court erred in refusing to admit three

letters written by the deceased that were written partially in Spanish. Cantu argues that

the portions of the letters written in English were admissible and would have shown that

the deceased was a jealous, bitter, manipulative, and aggressive person. Cantu argues

that he was harmed by the exclusion of the letters as they directly supported his sudden

passion defense.

       When Cantu attempted to introduce the letters at trial, the State objected on two

grounds: first, that the letters were in Spanish and not properly translated by a certified

translator; and second, that the letters were hearsay. In response, Cantu proposed that

the bailiff, who had served as translator throughout the trial, translate the letters. The

trial court rejected this proposal. Cantu also responded to the State's hearsay objection,

stating that the letters were admissible because the declarant—the deceased—was

unavailable to testify at trial. The trial court sustained the State's objection, stating that

"[t]he letters do contain sentences and words in Spanish. . . . At this time I'm not going to

admit the documents being admitted as they are."

       We review a trial court's exclusion of evidence under an abuse of discretion

standard. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). But here, even

were we to assume the trial court abused its discretion in excluding the letters on the


                                             16
Spanish translation ground, Cantu was not harmed by the exclusion of the letters. "Error

may not be predicated upon a ruling which admits or excludes evidence unless a

substantial right of the party is affected . . . ." TEX. R. EVID. 103(a); see also TEX. R. APP

P. 44.2 (providing that non-constitutional errors "must be disregarded" if they do not

"affect substantial rights"); Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App. 2011).

To determine whether a substantial right was affected, we examine the record as a whole

and ask whether the error had a substantial and injurious affect on the outcome of the

proceeding. Barshaw, 342 S.W.3d at 93-94. If we have fair assurance that the error did

not influence the jury or had but a slight effect, we will not disturb the jury's finding. Id. at

94.

       Cantu sought to use the excluded letters to prove that the deceased was a jealous,

bitter, and manipulative person who could have provoked a fight that caused Cantu to act

out of sudden passion. However, because numerous witnesses at trial, introduced by

Cantu, testified as to the same evidence Cantu sought to introduce through the letters, we

cannot say that Cantu was harmed by the exclusion of the letters. Cantu's brother

testified that the deceased was a jealous person and that, while Cantu and the deceased

were dating, the deceased did not allow Cantu to spend time with his brother. Cantu's

brother also testified that the deceased would become angry if Cantu was not at home to

take her phone calls. Cantu's brother testified that Cantu would come home with torn

clothes and scratches, which he assumed were caused by the deceased because she

and Cantu were always together; he testified that he witnessed the deceased slap Cantu

on the face on multiple occasions. Cantu's sister testified similarly. She testified that


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Cantu and the deceased did not have a good relationship. She also noted that Cantu

often came home with scratches and bite marks and commented to his sister that he and

the deceased had had an argument. Finally, Cantu's mother testified that the deceased

mistreated Cantu.

       Through the foregoing testimony, Cantu provided the jury with the same evidence

of the deceased's behavior and demeanor that he sought to admit through the letters and,

as such, supported his sudden passion theory in the same way the letters would have.

Thus, having examined the record, we cannot conclude that the trial court's exclusion of

the letters had anything but a slight effect on the jury's punishment findings. Therefore,

even if the trial court erred in excluding the letters, such exclusion did not affect Cantu's

substantial rights and does not require reversal on appeal.          Cantu's fifth issue is

overruled.

                                     VII. Conclusion

       The judgment of the trial court is affirmed.


                                                                NELDA V. RODRIGUEZ
                                                                Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
1st day of March, 2012.




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