      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-09-00605-CR



                                     Albert Segura, Appellant

                                                   v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
        NO. D-1-DC-07-100058, HONORABLE JON N. WISSER, JUDGE PRESIDING



                             MEMORANDUM OPINION


                A jury convicted appellant Albert Segura of the offense of capital murder. See

Tex. Penal Code Ann. § 19.03(a)(7)(A) (West Supp. 2009).               Punishment was assessed at

life imprisonment. In four points of error, Segura asserts that the district court abused its discretion

by admitting extraneous offense evidence, submitted an erroneous supplemental instruction to the

jury, and erred by allowing the jury to separate during deliberations. We will affirm the judgment.


                                          BACKGROUND

                Segura was charged with murdering two individuals and brought to trial. Evidence

considered by the jury, which we will discuss in more detail as it is relevant to Segura’s points of

error, included the testimony of David Valdez, an alleged accomplice in the murders, and evidence

of Segura’s alleged criminal history, which was offered, according to the State, to show why Valdez

was fearful of Segura and did not report the murders to the authorities.
               At the conclusion of the guilt/innocence phase of trial, the district court submitted its

charge to the jury. Included in the charge was an accomplice-witness instruction and an instruction

that the jury’s verdict must be unanimous. During deliberations, the district court received a note

from the jury asking, “Must the jury be unanimous in its determination of David Valdez as

an accomplice?” Over objection by defense counsel, the district court submitted the following

supplemental instruction: “You are instructed that each juror should apply the facts to the law and

arrive at an individual verdict. For the jury to arrive at a verdict, each of the 12 individual jurors’

verdicts must be the same; either 12 for guilty or 12 for not guilty.”

               The jury continued deliberating, but was unable to reach a verdict by the end of the

day, a Friday. The district court released the jury for the weekend, and deliberations resumed the

following Monday morning. That day, the jury found Segura guilty of the offense of capital murder

as alleged in the indictment. At the conclusion of the punishment phase of trial, the jury answered

“no” to the future-dangerousness special issue, and Segura was subsequently sentenced to

life imprisonment without the possibility of parole. This appeal followed.


                                            ANALYSIS

Extraneous offense evidence

               In his first point of error, Segura asserts that the district court abused its discretion

in admitting evidence of other crimes, wrongs, and acts which, according to Segura, “had no

relevance apart from character conformity.” The State counters that the evidence was admissible to

rebut the defensive theory that State witness Valdez was a party to the offense and was not providing

truthful testimony regarding his reluctance to contact law enforcement following the murders.

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                When reviewing a trial court’s decision to admit or exclude evidence, we apply

an abuse-of-discretion standard. Ramos v. State, 245 S.W.3d 410, 417-18 (Tex. Crim. App. 2008).

The trial court does not abuse its discretion unless its ruling lies “outside the zone of reasonable

disagreement.” Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007).

                Evidence of other crimes, wrongs, or acts is not admissible to prove the character of

a person in order to show action in conformity therewith. Tex. R. Evid. 404(b). It may, however,

be admissible for other purposes, such as proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident. Id. “The exceptions listed under

Rule 404(b) are neither mutually exclusive nor collectively exhaustive.” De La Paz v. State,

279 S.W.3d 336, 343 (Tex. Crim. App. 2009). “‘Rule 404(b) is a rule of inclusion rather than

exclusion.’” Id. (quoting United States v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000)). “The rule

excludes only that evidence that is offered (or will be used) solely for the purpose of proving

bad character and hence conduct in conformity with that bad character.” Id. (citing Rankin v. State,

974 S.W.2d 707, 709 (Tex. Crim. App. 1996)). A trial court’s ruling on extraneous offense evidence

is generally within the zone of reasonable disagreement “if the evidence shows that 1) an extraneous

transaction is relevant to a material, non-propensity issue, and 2) the probative value of that evidence

is not substantially outweighed by the danger of unfair prejudice, confusion of the issues,

or misleading of the jury.” Id. at 344 (citing Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim.

App. 1997)).




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               Rebuttal of a defensive theory is one of the permissible purposes for which extraneous

offense evidence may be admitted. See Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App.

2003). Further, extraneous offenses are admissible to rebut defensive theories raised by the

testimony of a State’s witness during cross-examination. Ransom v. State, 920 S.W.2d 288, 301

(Tex. Crim. App. 1996).

               The jury heard evidence that on the night of the murders, Segura and Valdez, who

were friends at the time, went to the Austin home of Mario Rivera, where they used drugs and

drank alcohol. Other individuals were also present in the house that night, including the murder

victims—Rivera’s girlfriend, Patty Smith, and her adult son, Billy Ferguson. Rivera testified that

during the night, Segura spoke with an individual who accused Rivera of calling Segura a “snitch.”

After that, Rivera recalled, Segura and Valdez “both took off.” According to Rivera, later that night,

Segura returned to Rivera’s house and confronted Rivera with a firearm. During the confrontation,

Rivera explained, Smith came out of the bathroom, Segura turned the gun on her, Ferguson tried to

defend his mother, and Segura shot both Rivera and Ferguson. Rivera survived the shooting but

Ferguson was killed. Segura then grabbed Smith, ran out of the house with her, and got into a car.

The driver of the car was Valdez.

               Valdez, who claimed that he was under the impression that Segura had wanted to

return to Rivera’s house for the sole purpose of using more drugs, testified that he heard several

gunshots as he was waiting in the car. Then, Valdez saw Segura exit the house and forcibly drag

Smith, who was screaming and crying, to the car. According to Valdez, once Segura and Smith were

inside the car, Segura forced him at gunpoint to drive away, first to Segura’s father’s house in Kyle



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(where Smith was tied up) and then to an open field along the frontage road of South IH-35 between

Kyle and San Marcos. There, Valdez recalled, Segura pulled Smith by her hair into the field and,

approximately five to fifteen minutes later, returned to the car without her.

               Later that night, Segura and Valdez drove to a friend’s house in San Antonio. The

friend drove them to Del Rio, where Segura crossed the border into Mexico. Valdez and the friend

returned to San Antonio. Three weeks later, Segura was arrested in Mexico. At around the same

time, law enforcement initiated contacted with Valdez, who led them to the field where he and

Segura had taken Smith. Officers subsequently found Smith’s body in the field. The cause of death,

according to the State’s medical examiner, was a gunshot wound to the back of the neck.

               During Segura’s cross-examination of Valdez, defense counsel implied that Valdez

had been more extensively involved in the murders than he had claimed and that Valdez had actually

been inside the house during the shootings. Counsel also elicited testimony that Valdez “felt very

relieved” when Segura crossed the border, that he was encouraged by a friend to “talk to somebody”

about “what had happened” but did not, and that, rather than returning to Austin, Valdez got a job

in San Antonio and stayed there for approximately 19 days with a friend. Counsel also emphasized

that Valdez did not contact law enforcement himself but that it was the police who “came and picked

[Valdez] up.” Additionally, counsel had established through an earlier witness that the police had

detained Valdez at gunpoint when they first encountered him. Thus, counsel attempted to portray

the fact that Valdez did not contact the authorities following the murders in a sinister light—Valdez

was a party to the murders, counsel had implied through his questioning, and Valdez did not want

the extent of his participation to be discovered by the police.



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               During redirect, in a hearing outside the presence of the jury, the State requested

permission to introduce evidence suggesting an alternative hypothesis for why Valdez had not

contacted the authorities. The State explained,


       The defense has essentially called into question the witness’s veracity with respect
       to why he wouldn’t contact law enforcement, and is attempting to make him a party
       to the offense. I think at that point . . . we get to cover the issue of the amount of
       duress that he was under and what would go to that level of duress would be his
       knowledge of the defendant’s violent past. . . .

       I think based on what they have raised, we’re allowed to get into that. Why he
       doesn’t tell—why he’s there for 19 days, gets a job in San Antonio but doesn’t tell
       law enforcement, that is a very clear implication of the question.

       They ended their cross essentially with an allegation that he was inside the house.
       I think we get to rebut that with he’s not—he didn’t contact law enforcement during
       those 19 days because he’s scared of the defendant here. It’s what he knows about
       the defendant that causes him to be scared.


Over defense counsel’s objection, the district court allowed the State to introduce evidence that

Valdez was afraid of Segura and why. The district court explained its reasoning on the record:


       I would think . . . that a juror would wonder why the witness didn’t at several points
       in time, if they were to believe his testimony, did not, given the opportunity,
       depart. . . .

       And, as the State has said, once the defendant has gone to another country, why
       would the witness not have come forward? . . .

       However, if the witness is suffering from the belief that the defendant is somehow
       able to retaliate or commit acts against him even when he’s not present, that is
       certainly something that the jurors could consider in ascertaining this witness’s
       credibility. I don’t think that would in any way be admitted to show the character of
       the defendant or whether he acted in conformity, but solely as the explanation of
       this—who everyone must admit is a pivotal witness, his testimony in this case.



                                                  6
The district court agreed, however, to provide a contemporaneous limiting instruction immediately

following the presentation of this evidence. The State subsequently elicited the following testimony

from Valdez:


       Q:      Mr. Valdez, did AJ [Segura] tell you things about himself that caused you to
               fear him?

       A:      Yes, sir, he did.

       Q:      What things did AJ tell you about himself that caused you to fear him?

       A:      That he had been to prison a couple of times; that he was a member of the
               Texas Syndicate.

       Q:      What did you understand the Texas Syndicate to be?

       A:      A prison gang, as well as with connections to the outside.

       Q:      And what else did he tell you?

       A:      He ran dope for the cartels; he ran pounds of meth; he ran pounds of
               cocaine—kilos of cocaine, I’m sorry; pounds of marihuana to all the big cities
               in the state of Texas, El Paso, San Antonio, Dallas, Houston.

       Q:      What concern did that cause you?

       A:      A lot of concern. He had mentioned how he had connections
               throughout—you know, that nobody was untouchable and he could make a
               phone call and he could have things handled.


Immediately following this testimony, the district court provided the following limiting instruction:


       I will just instruct the jurors that the statements just made by the witness were not
       admitted to prove the character of the defendant or show any actions that he may
       have taken that would be in conformity. They were just admitted to establish, if it
       does, the basis for the witness’s fears, if any, of the defendant.



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               We cannot conclude on this record that the district court abused its discretion

in admitting the above evidence. The evidence was admissible, the district court could have found,

to rebut the defensive theory that Valdez was not providing truthful testimony concerning the extent

of his involvement in the offense and why he did not inform law enforcement of the murders. The

district court could have found that this was a material, non-propensity issue in the case.

Additionally, the district court would not have abused its discretion in finding that the probative

value of the evidence was not substantially outweighed by the danger of unfair prejudice, confusion

of the issues, or misleading of the jury. The district court could have found that Valdez was a pivotal

witness in the case and, therefore, that the probative value of evidence bearing on the jury’s

determination of Valdez’s credibility and veracity was high. At the same time, the district court

could have found that the extraneous offense evidence, involving Segura’s membership in a

prison gang and past drug activity but not mentioning past instances of actual violence, was not

so prejudicial that it substantially outweighed the probative value of the evidence. Given the

importance of Valdez’s testimony to both the State and the defense, we cannot conclude that the

district court’s decision was outside the zone of reasonable disagreement.

               Moreover, given the other evidence in the case, including the testimony of Rivera,

the eyewitness and victim who survived the shooting, and the district court’s limiting instruction

regarding the evidence, we cannot conclude on this record that the admission of the evidence, even

if erroneous, harmed Segura. See Tex. R. App. P. 44.2(b) (providing that non-constitutional error

that does not affect substantial rights must be disregarded); King v. State, 953 S.W.2d 266, 271

(Tex. Crim. App. 1997) (“A substantial right is affected when the error had a substantial and



                                                  8
injurious effect or influence in determining the jury’s verdict.”); Vega v. State, 255 S.W.3d 87, 105

(Tex. App.—Corpus Christi 2007, pet. ref’d) (holding that, even if trial court erred in admitting

extraneous offense evidence, “any error was harmless because the [limiting] instruction, which we

presume the jury followed, identified material issues for which the evidence could be considered

under rule 404(b)”).

               We overrule Segura’s first point of error.


Supplemental instruction

               In his second and third points of error, Segura contends that the district court’s

supplemental instruction authorized the jury to return a less than unanimous verdict and to “ignore

the previously given accomplice-witness instruction.” The State responds that the instruction did

not authorize a non-unanimous verdict on any element of the offense and that it did not nullify the

accomplice-witness instruction. Alternatively, the State argues that any error in the supplemental

instruction was harmless.

               We review claims of jury charge error under the two-pronged test set out in

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh’g). See Swearingen v. State,

270 S.W.3d 804, 808 (Tex. App.—Austin 2008, pet. ref’d) (citing Almanza, 686 S.W.2d at 171).

We first determine whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005);

Swearingen, 270 S.W.3d at 808. If error is found, the standard for reversal depends on whether

a timely objection was made in the trial court. Almanza, 686 S.W.2d at 171. If the error was the

subject of a timely objection, reversal is required upon a showing of “some harm.” Id. If no proper

objection was made at trial, reversal is only proper in the presence of egregious harm. Id.

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                  The trial court is required to deliver to the jury “a written charge distinctly

setting forth the law applicable to the case.” Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007).

The purpose of the jury charge is to inform the jury of the applicable law and guide the jury in

its application to the case. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996). The

jury charge must allow the jury to determine the defendant’s guilt in light of the evidence and

the law. Id. Absent evidence to the contrary, we presume the jury followed the law provided by

the charge. Id.

                  In this case, the district court’s charge included an accomplice-witness instruction

regarding State witness David Valdez. See Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005). The

jury was also instructed that its verdict “must be unanimous.” During deliberations, the district court

received a note from the jury asking, “Must the jury be unanimous in its determination of

David Valdez as an accomplice?” The district court proposed the following answer: “You are

instructed that each juror should apply the facts to the law and arrive at an individual verdict. For

the jury to arrive at a verdict, each of the 12 individual jurors’ verdicts must be the same; either

12 for guilty or 12 for not guilty.” Defense counsel objected, requesting instead that the jury be

instructed that “the law necessary to arrive at their decision is contained within the original charge

given to the jury. They should reread that charge and continue to deliberate, if possible—or continue

to deliberate.” The district court overruled the objection and sent its response back to the jury.

                  We find no error in the district court’s response. “When the trial judge responds

substantively to a jury question during deliberations, that communication essentially amounts to

an additional or supplemental jury instruction.” Daniell v. State, 848 S.W.2d 145, 147 (Tex. Crim.



                                                   10
App. 1993). Thus, in determining whether the subject matter of the communication was proper, we

look to the same rules governing the court’s charge. See id. “If an instruction may properly be given

in the original charge, it may be given as an additional instruction.” Allaben v. State, 418 S.W.2d

517, 521 (Tex. Crim. App. 1967). Here, the district court’s supplemental instruction was a correct

statement of the law that could have been given in the original charge. Each juror is required to

apply the facts to the law and arrive at an individual verdict, but, for the jury to arrive at a verdict,

each of the 12 individual jurors must reach the same verdict—either guilty or not guilty. See

Tex. Code Crim. Proc. Ann. art. 37.05 (West 2006) (providing that, when jury is polled, each juror

must be asked whether verdict is his or her own); see also Jefferson v. State, 189 S.W.3d 305, 311

(Tex. Crim. App. 2006) (“The principal justification for the unanimity requirement is that it ensures

that each juror is convinced beyond a reasonable doubt that the prosecution has proved each

essential element of the offense.” (Emphasis added) (quoting State v. Johnson, 627 N.W.2d 455,

459 (Wis. 2001))); Ngo, 175 S.W.3d at 745 (“Unanimity . . . means that each and every juror agrees

that the defendant committed the same, single, specific criminal act.” (Emphasis added)).

                We also disagree with Segura’s contention that the supplemental instruction given

to the jury “instructed them that they were not unanimously bound by the accomplice witness rule as

contained within article 38.14 [of the code of criminal procedure] and the original charge.” We find

nothing in the supplemental instruction that would lead the jury to believe that it was not bound

by the accomplice-witness instruction provided in the original charge. Moreover, we are aware of

no authority, and Segura cites to no authority, that requires jury unanimity with respect to whether

a given witness is an accomplice. To the contrary, it is well settled that the facts a jury must



                                                   11
unanimously agree on are the facts that constitute the essential elements of the offense. See

Richardson v. United States, 526 U.S. 813, 817 (1999); Pizzo v. State, 235 S.W.3d 711, 714

(Tex. Crim. App. 2007); see also Webb v. State, No. 01-94-01081-CR, 1995 Tex. App. LEXIS 3087,

*13 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d) (not designated for publication) (“Contrary

to appellant’s claim, the law and the court’s charge do not require that the jury unanimously

determine whether [the witness] was an accomplice to the murder.”). In this case, Valdez’s status

as an accomplice is not such a fact. One juror could find that Valdez was an accomplice but that his

testimony was sufficiently corroborated by other evidence, while another juror could find that Valdez

was not an accomplice and that his testimony did not need to be corroborated. Either way, despite

their disagreement as to Valdez’s status as an accomplice, both jurors could find Segura guilty of the

charged offense.

               We overrule Segura’s second and third points of error.


Jury deliberations

               Prior to trial, Segura filed a motion to sequester the jurors. See Tex. Code Crim. Proc.

Ann. art. 35.23 (West 2006). The district court granted the motion. However, after the jury was

unable to reach a verdict by the end of the day on a Friday, the jury requested to be released for

the weekend, and the district court granted the request. In his fourth point of error, Segura asserts

that the district court reversibly erred by doing so. We disagree.

               The error in failing to sequester a jury is a statutory violation that must be

disregarded unless it affected Segura’s substantial rights. See Casias v. State, 36 S.W.3d 897, 900

(Tex. App.—Austin 2001, no pet.) (citing Tex. R. App. P. 44.2(b)). A substantial right is affected

                                                 12
when the error had a substantial and injurious effect or influence in determining the jury’s verdict.

King, 953 S.W.2d at 271. Here, prior to releasing the jury, the district court instructed the jury as

follows:


        I would just ask again that you please follow very carefully all the instructions we
        have given you, especially the ones . . . about not discussing the case with anyone
        whomsoever, nor should you watch any accounts on television, listen to any accounts
        on the radio, or read any accounts in any publications. And, furthermore, if you
        would please not engage in any type of computer research or any social networking
        pertaining to this case.

        And we just ask that if you would all be so kind as to return to the jury room at 9:00
        [Monday] morning, and continue your deliberations.

        I would also ask that you please not commence your deliberations until after all 12
        of you are assembled in the jury room.


There is no indication in the record that the jury disregarded the district court’s instructions or that

the jury separating had a substantial and injurious effect or influence in determining the jury’s

verdict. Thus, we cannot conclude that Segura was harmed. See Campbell v. State, 189 S.W.3d 822,

826 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

                We overrule Segura’s fourth point of error.




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                                       CONCLUSION

              We affirm the judgment of the district court.




                                            __________________________________________

                                            Bob Pemberton, Justice

Before Chief Justice Jones, Justices Pemberton and Waldrop

Affirmed

Filed: August 13, 2010

Do Not Publish




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