Murderpedia

 

 

Juan Ignacio Blanco  

 

home

last updates

MALE murderers

by country

by name   A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
   

FEMALE murderers

by country

by name   A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
 

Yolanda SALDÍVAR

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Argument over accusations from the singer's father that Saldívar stole money from Selena's accounts
Number of victims: 1
Date of murder: March 31, 1995
Date of arrest: Same day
Date of birth: September 19, 1950
Victim profile: Famed Tejano singer Selena Quintanilla, 23
Method of murder: Shooting
Location: Corpus Christi, Texas, USA
Status: Sentenced to life in prison in October 1995, with parole eligibility set for thirty years
 
 

 
 

photo gallery

 
 

 
 

Yolanda Saldívar (born September 19, 1960) was convicted in 1995 for the murder of famed Tejano singer Selena Quintanilla, which occurred on March 31, 1995.

She is currently serving a life sentence but must serve 30 years before parole is possible (2025) in a Texas prison for Selena's murder.

Saldívar was a registered nurse from San Antonio, Texas who met with Selena after a concert in 1993. They quickly became friends and Selena offered her a job as her fan club's president and working at Selena's boutique. As time went by, Selena and Saldívar began to grow apart, and the Quintanilla family uncovered evidence of embezzlement and fraud being perpetrated by Saldívar.

On March 31, 1995, Saldívar and Quintanilla met at a Days Inn in Corpus Christi. The accepted course of events is that Selena told Saldívar that she was being fired and Saldívar responded by grabbing a gun and shooting Selena as she was exiting the room.

Fatally wounded, the singer managed to run in to the motel lobby and state that Yolanda Saldívar shot her, before collapsing in front of motel staff members. She was taken to a local hospital and died one hour later.

Saldívar barricaded herself in her pickup truck in the motel's parking lot. She held police at bay for several hours before surrendering. The dramatic image of Saldivar in the truck with her gun pointed to her head was broadcast live on television all throughout the United States.

Saldívar's trial for the murder of Selena Quintanilla-Perez was followed closely by the Latino community in the United States. The trial venue was moved to Houston after Saldívar's lawyers successfully argued that she could not receive a fair trial in Corpus Christi, Selena's hometown. She was convicted and sentenced to life in prison in October of 1995, with parole eligibility set for thirty years.

When she began her jail term, she alleged she would soon say something about 'the truth' that she knew about Selena. The television network VH1 interviewed Saldivar in 1998. She told the network that a deposit box in Mexico contained some sort of information about Selena, but no such box could be located.

Saldívar had to be isolated for safety reasons, because prisoners had taken a liking to Selena and her music, and they sent death threats to Saldívar when Selena died. Yolanda spends 23 of her 24 hours in her 9x6 prison cell alone, without contact from visitors. She can purchase a radio from the commissionary, and she can have a two hour visit with family or friends each week.

Saldívar was portrayed in the Selena movie by Lupe Ontiveros.


Yolanda Saldívar (born September 19, 1960) is a Mexican American woman who was convicted in 1995 for the murder of Tejano music singer Selena at a Days Inn motel in Corpus Christi, Texas, on March 31, 1995.

Early life

Saldívar was the youngest of eight children born to Frank and Juanita Saldívar in San Antonio, Texas. While growing up, she was teased and occasionally bullied at school because of her weight. She rarely made any friends and isolated herself from social activities. Her father was a head waiter at Jacala, a Mexican restaurant in the West End. She attended three different elementary schools in the Edgewood School district. Saldívar first attended Kennedy High School, then transferred to Holmes, followed by Jay High School, before graduating in 1979 from McCollom High School. While at McCollum, Saldívar belonged to the Junior ROTC. Few classmates recall Saldívar, who was a classmate of Ram Herrera, who graduated in 1978, and Emilio Navaria, who graduated in 1980.

Saldívar was accepted at the University of Texas in 1985, then transferred to Palo Alto College. She studied to be a registered nurse, and on December 10, 1990, received a Bachelor of Science in Nursing from Texas A&M International University. At this time, she became obsessed with losing weight. She also began work as a graduate nurse at Medical Center Hospital. In March 1990, she received her license as a registered nurse from the Texas Board of Nurse Examiners and earned $60,000 a year. Saldívar, who married, had to work part time after adopting three children, one of them her niece.

Saldívar's employers, Dr. Faustino Gomez, a dermatologist, sued her for $9,200 that he said she stole from him starting in 1983. The lawsuit was eventually settled out of court. Within two months, Saldívar was back in court again when the Texas Guaranteed Student Loan Corporation obtained a Travis county court judgement in Austin against her for failing to repay a student loan of $7,361. At that time, Saldívar had switched jobs and was working as a nurse at St. Luke's Lutheran Hospital.

Selena fan club

In the next four years, Saldívar worked at two other hospitals; however, she began to lose interest in her career in health care. Having become a fan of Tejano music, she attended a Shelly Lares concert in San Antonio and approached the singer about starting a fan club. Her request was declined by Lares' father, Fred, who would only approve of family members working with the singer. Saldívar was convinced by her friends to give Selena a try, although she originally disliked the singer because she dominated the Tejano Music Awards.

Saldívar attended a concert changed her views. She approached Selena's father, Abraham Quintanilla, Jr., about starting a fan club in San Antonio. He approved and she immediately became the club's president; later she became the manager of Selena's clothing boutiques, Selena Etc.. By 1993, the fan club had reached 1,500 members in less than four years, and eventually grew to over 5,000. It became one of the largest fan clubs in the San Antonio area.

Murder

In early 1995, the Quintanillas discovered that Saldívar was embezzling money from the fan club and fired her. Three weeks later, Selena agreed to meet Saldívar in a Days Inn hotel in Corpus Christi on the morning of March 31, 1995, to retrieve financial records Saldívar had been refusing to turn over. Saldívar once again delayed the handover by claiming she had been raped in Mexico. Selena drove Saldívar to a local hospital, where doctors found no evidence of rape. They returned to the motel, where Selena again demanded the financial papers. Saldívar took a pistol from her purse and pointed it at the singer. Selena tried to flee, but Saldívar shot her once in her right shoulder, severing an artery. Critically wounded, Selena ran towards the lobby for help. She collapsed on the floor as the clerk called 911, with Saldívar chasing her, calling her a "bitch". Selena died in a hospital from loss of blood at 1:05 p.m, 16 days before her 24th birthday.

Trial and imprisonment

Saldívar's trial for the murder of Selena was followed closely by the Latino community in the United States. The trial was not televised, but cameras were allowed outside the courthouse. The venue was moved to Houston, Texas, after Saldívar's lawyers successfully argued that she could not receive a fair trial in Selena's home town. Before the start of the trial, CNN reported that prosecutors were expected to introduce a controversial police confession signed by Saldívar in which she said she shot Selena "during an argument over accusations from the singer's father that Saldívar stole money from Selena's accounts." The defense was expected to introduce testimony from Texas Ranger Robert Garza that "he overheard Saldívar claim the shooting was accidental, and that she objected when police failed to include it in her statement".

The defense attorney argued the shooting was accidental, but the prosecution pointed out that that Saldívar, a trained nurse, neither called 911 nor tried to help Selena after she was shot. Saldivar claimed that the gun "[accidentally] went off". However, it was shown that the pistol, a 5-shot .38 cal. revolver, required 11 pounds of pressure on the trigger to fire it, which can only occur when the trigger is intentionally pulled. The judge did not to give the jury the option of lesser charges of manslaughter or negligent homicide, and told the jurors they must convict or acquit Saldívar on the sole charge of first-degree murder.

The jury deliberated for two hours before finding Saldívar guilty of murder. She was sentenced to life in prison on October 23, 1995, with parole eligibility set for thirty years; this is the maximum prison term allowed in Texas. November 22, 1995 she arrived at the Gatesville Unit (now Christina Crain Unit) in Gatesville, Texas to be processed.

Saldívar is currently serving her life sentence at the Mountain View Unit in Gatesville, operated by the Texas Department of Criminal Justice. She will become eligible for parole on March 30, 2025. Because of multiple death threats against her by imprisoned fans of Selena, Saldivar was placed in isolation. She spends 23 hours each day alone in her 9 by 6 feet (2.7 × 1.8 m) prison cell. She was allowed to purchase a radio from the commissary, and she may have a two-hour visit with family or friends each week.

After the conviction

Saldívar has never offered a motive for murdering Selena still insisting it was an accident. In later years, she began claiming she had been protecting the singer's private life. Interviewed by journalist María Celeste Arrarás, Saldívar claimed she had a diary, a letter, and a video proving Selena's infidelity to her husband, Chris Pérez. She also claimed to possess a suitcase of clothes Selena had asked her to keep, alleging Selena had planned to abandon her career and run away with her "lover", Ricardo Martínez. Martínez, chief financier of Selena's clothing business, expressed outrage at Saldívar's charges. "This woman continues doing harm," he said. "I don't know how they can continue to believe a murderer."

The revolver used to kill Selena was misplaced after the trial, but was finally found in a court reporter's home. It was dismantled and the pieces thrown into Corpus Christi Bay.

Saldívar has asked the Texas Court of Criminal Appeals to accept a petition that challenges her conviction. She claims the petition was filed in 2000 with the 214th District Court, but was never sent to the higher court. Her request was received on March 31, 2008, the thirteenth anniversary of Selena's death.

In popular culture

Saldívar was portrayed in the movie Selena by late actress Lupe Ontiveros.

Wikipedia.org


Murder of Selena

Selena, an American singer-songwriter who gained worldwide fame as the lead vocalist of her family-oriented band Selena y Los Dinos and for her community involvement, was murdered by Yolanda Saldívar on the morning of March 31, 1995.

Saldívar, Selena's former fan club president and clothing boutique manager, with whom she was breaking ties, persuaded the singer to meet with her secretly. Saldívar shot Selena in the back, piercing an artery that led from her heart, killing her. Saldívar claimed that in an attempt to end her own life she accidentally shot Selena, but the jury at her trial did not believe her; she was sentenced to life imprisonment with possibility of parole.

The Hispanic community reacted negatively to the murder, naming the event "Black Friday". Radio personality Howard Stern mocked Selena's mourners and funeral, spawning public boycotts from fans. The reaction to Selena's murder was compared to the deaths of John Lennon and Elvis Presley. Her funeral drew 60,000 mourners, while numerous tributes and memorials were held throughout the United States and Spanish-speaking countries. Selena's story had been documented on biographical shows, series and talk shows worldwide. Her murder boosted her popularity. She became a household name in the United States, more popular than when she was alive. George W. Bush, designated 16 April "Selena Day" in Texas.

The posthumous album Dreaming of You (1995), a crossover attempt, helped Selena to become that year's second-fastest selling female artist, behind Janet Jackson. She was given two life-sized statues – one was built in Corpus Christi, Texas (Mirador de la Flor) while the other one was built in Apodaca, Nuevo León. In 1997, Warner Bros. produced Selena, the eponymous biographical film that catapulted Jennifer Lopez to fame. Two years later, the story of Selena inspired a Broadway musical which starred Veronica Vasquez. In 2005, Selena ˇVIVE!, a tribute concert, was held a week after the tenth anniversary of the murder. The concert was aired live on Univision; it was the most-watched Spanish-language show in the history of American television.

Life and career

During the early 1990s, Selena became the "Queen of Tejano music" and was poised to become a successful American solo artist. To manage her growing group of admirers, Selena hired Saldívar as her fan club president. Before Selena was murdered, she had sold approximately 1.8 million albums in the U.S. At the time of her murder, Selena was recording songs for a crossover album, which was intended to multiply her success in the U.S. and expand her English-speaking fan base. Selena's goal was to become a pop icon similar to Donna Summer, Paula Abdul, Madonna and Mariah Carey.

Selena Etc. and Saldívar

In early 1994, Selena opened her Selena Etc. boutiques in Corpus Christi, Texas, and hired Yolanda Saldívar to manage the chain. Eight months later, she signed Saldívar as the registered agent in San Antonio, Texas. The Quintanilla family believed Saldívar was the best choice due to her excellent job in boosting membership of the Selena Fan Club to over 400,000, organizing special events, and helping Selena deal with admirers at public events. After being hired for the boutiques, Saldívar moved from South San Antonio to Corpus Christi to be closer to Selena.

Saldívar's room was covered with Selena posters and pictures, burning votive candles, and a library of Selena videos, which she used to entertain guests. During an interview with Saldívar in 1995, interviewers of The Dallas Morning News believed that Saldívar's devotion to Selena bordered on obsessive.

Saldívar then began telling the staff that she wanted to "be like Selena". Around this time, Selena gave Saldívar her American Express card to conduct company business. With it, Saldívar rented Lincoln Town Cars, traveled to and from Mexico, entertained associates in fancy restaurants, and purchased two cellular phones she carried. She also altered Ellen Tracy designer jackets made for the boutiques, backing up her authority to do so with the card. When Saldívar became a business associate in addition to being a friend, her relationship with Selena began to fall apart. Staff members at Selena Etc. complained that Saldívar was always "nice" when Selena was around, but when she was not, Saldívar treated everyone terribly.

Employee dissatisfaction

In January 1995, Debra Ramirez, Selena's cousin, was hired to work in the boutiques and to help Selena expand the fashion venture into Mexico. Ramirez quit within a week, telling Saldívar that she was not happy and was dissatisfied with how staff members failed to report their sales. Saldívar replied that it was not Ramirez's business and that she would take care of it. Martin Gomez, a fashion designer for Selena, and Saldívar constantly clashed. Gomez complained that Saldívar was mismanaging Selena's affairs. The animosity between them intensified during Selena's fashion shows. Gomez accused Saldívar of mutilating or destroying some of his original creations, while also claiming that she never paid any bills.

When Saldívar visited the factory in Mexico, she intimidated the seamstresses by telling them to either leave or side with her. Gomez tried to convince Selena that Saldívar was "bad news", but Saldívar claimed that he was exaggerating. A few weeks later, Saldívar asked employees to help pay for a gift for Selena. Philip Randolph, who had helped design the gift, a diamond-encrusted-egg ring, noticed that not only did Saldívar not want Selena to know that she had bought anything, but also did not want Selena to know the cost of anything she bought.

In December 1994, the boutiques began to suffer. Staff at both stores had been reduced from 38 to 14 employees, largely because Saldívar fired anyone she did not like personally. The remaining employees began complaining to Selena about Saldívar, but Selena did not believe that her "friend" would do anything to hurt her or her business. The employees then began to take their concerns to Selena's father, Abraham Quintanilla Jr., who cautioned Selena that Saldívar might be a bad influence. Selena did not suspect that Saldívar had turned on her because her father had always distrusted people.

Termination

On March 9, 1995, Selena, her father and her sister, Suzette Quintanilla, held a closed meeting at Q-Productions with Saldívar. Abraham presented Saldívar with inconsistencies concerning disappearing funds. Abraham stated that Saldívar simply stared at him and did not answer any of his questions. He told Saldívar that he was going to pursue the matter legally. Again Saldívar gave no response, and Suzette accused Saldívar of being a liar and a thief.

The next morning, Eddie Quintanilla, Abraham's brother, called him to let him know that Saldívar had shown up at Q-Productions with Laurie Rothe, another employee. Abraham drove to Q-Productions and informed Saldívar that she was no longer welcome on the premises. The same day, Selena and Saldívar engaged in an intense argument over the phone; Selena hung up and told her husband, Chris Pérez, that she could no longer trust Saldívar. However, she did not want to dissolve their friendship, especially since Saldívar was essential to whether the clothing line was going to take off in Mexico. Selena also wanted to keep Saldívar close because she possessed bank records, statements, and financial records necessary for preparing taxes.

.38 Special

On March 13, 1995, the day after Saldívar was banned from Q-Productions, she went to A Place To Shoot, a gun shop and range house in south San Antonio, and bought a Taurus 45 snub-nosed .38-caliber revolver. Saldívar told the clerk that she needed protection for her job as an in-house nurse care for terminally ill patients because a patient's relatives had threatened her. Two days later, Selena asked Saldívar to accompany her on a Monterrey, Mexico, tour. Saldívar then returned the handgun to the shop, claiming that her father had given her a .22 caliber pistol. During the trip, Selena began pressuring Saldívar to return the bank statements; when they got back, Saldívar bought the gun again.

The following week, Saldívar's name was removed as the chief executive officer for Selena Design House Inc., and was replaced as fan club president by Irene Herrera. On March 26, 1995, Saldívar stole a perfume sample and more bank statements from Selena in Mexico. On March 29, 1995, Saldívar told Dr. Ricardo Martinez, Selena's primary care physician, that she had been raped, but he did not believe her, as he had been informed by Selena's family that Saldívar and Selena's relationship was beginning to deteriorate.

Black Friday

Around midnight on March 30, 1995, Selena and Chris Pérez went to Saldívar's room at the Days Inn motel in Corpus Christi to pick up the missing documents Selena needed for tax purposes. When Selena and Pérez returned home, Selena discovered that there were still some bank statements missing. Saldívar later called Selena, saying that she had been raped in Mexico, and told Selena to come alone to the hotel. Pérez told Selena to tell Saldívar that it was too late, but Selena agreed to meet secretly with Saldívar the following morning. At the motel, Selena demanded the financial papers. Saldívar delayed the handover by claiming she had been raped in Mexico. The singer then drove Saldívar to Doctors Regional Hospital, where doctors found no evidence of rape. Saldívar returned to the motel where Selena again demanded the financial papers. Selena told Saldívar that she could no longer be trusted.

At 11:49 am, Saldívar drew the gun from her purse and pointed it at Selena. As the singer turned to leave the room, Saldívar shot her once on the right lower shoulder, severing a major artery which led from Selena's heart, resulting in a massive loss of blood. Critically wounded, Selena ran towards the lobby, leaving a trail of blood 392 feet (119 m) long. She collapsed on the floor as the clerk called 9-1-1, with Saldívar chasing after her and calling her a "bitch". Selena began holding her chest and screaming "Help me! Help me! I've been shot!" Before collapsing to the floor, she named Saldívar as her assailant and gave the number of the room where she had been shot. Selena's condition began to deteriorate rapidly as motel staff tried to comfort her. A staff member tried to talk to Selena, but noted that she was beginning to fade away. He also stated that there was less and less moaning and movement from her.

An ambulance arrived at the scene in one minute and 52 seconds. The paramedics applied a Vaseline gloss on Selena's wound which immediately stopped the internal bleeding. At this time, Selena's heartbeat was very slow, as a paramedic performed cardiopulmonary resuscitation to keep her blood circulating. Meanwhile, Saldívar got into her pickup truck and attempted to leave the motel. However, a police cruiser saw the vehicle. Saldívar then backed up and parked adjacent to two cars. The police blocked Saldívar's truck and told her to come out. She then picked up the pistol, pointed it at her right temple, and threatened to commit suicide. SWAT and the FBI Crisis Negotiation Unit were brought in.

During this time, a paramedic tried inserting an IV in Selena, but due to her massive blood loss and low or no blood pressure, her veins had collapsed, making it extremely difficult to insert the IV. Navigation Boulevard was shut down by local police.

At 12:00 pm, the paramedics delivered Selena to Corpus Christi Memorial Hospital. She was transferred to the trauma room, where doctors and surgeons began blood transfusions in an attempt to reestablish blood circulation after they had opened Selena's chest and found major internal bleeding. The bullet had pierced an artery, and after 50 minutes the doctors realized that the damage was irreparable. Selena was pronounced dead at 1:05 pm due to blood loss and cardiac arrest.

Standoff

Meanwhile, negotiators ran a phone line between their base of operations adjacent to Saldívar's pickup truck as the standoff continued. Lead negotiator Larry Young tried to establish a rapport with Saldívar and persuade her to give herself up. Another negotiator, Isaac Valencia, planted the idea with her that the shooting was accidental; Saldívar later changed her story, claiming that the "gun went off" by itself.

During the third hour, an autopsy was performed due to overwhelming media interest. It revealed that the bullet had entered Selena's lower back, passed through the chest cavity, directly severing the right secluded carotid artery, and exited the right upper chest. It had also revealed that Selena's heart, fueled by adrenaline, literally pumped her blood out of her circulatory system. Doctors also found that if the bullet had been only one millimeter higher or lower, the wound would not have been as severe.

After the standoff entered its fourth hour, Valencia succeeded in getting Saldívar to confess that she had intended to shoot herself. Saldívar claimed that Selena tried to tell her not to kill herself, while pointing the gun to her head. But when Selena opened the door to leave, Saldívar stated that she told Selena to close it. Saldívar also claimed that the gun went off when she exited. During the sixth hour, Saldívar agreed to give herself up. However, when she saw a police officer pointing a rifle at her, she panicked and ran back to her truck. Saldívar finally surrendered after nearly nine and a half hours. By that time, hundreds of fans had gathered at the scene; many wept as police took Saldívar away.

Within hours of Selena's murder, a press conference was called. Assistant Police Chief Ken Bung and Selena's father, Abraham Quintanilla, Jr., informed the press that the possible motive was that Selena went to the Days Inn motel to terminate her employment; Saldívar was still not being identified by name in media reports. Rudy Trevińo, the director of the Texas Talent Music Association, and sponsor of the Tejano Music Awards, declared that March 31 would go down as "Black Friday."

Impact

Fan response

When radio station KEDA-AM broke the news, many people accused them of lying. In San Antonio, major Spanish-language radio stations, including Tejano 107, KXTN-FM, KRIO-FM, and KEDA-AM, interrupted their programming to break the news. Listeners were shocked and in disbelief. The lead item on national network evening news programs in Corpus Christi had been the end of the 1994–95 Major League Baseball strike; within thirty minutes, Selena's murder was the lead item on all television stations in South Texas.

The news struck the Hispanic community extremely hard; many traveled thousands of miles to Selena's house, boutiques, and the crime scene. By mid-afternoon, police were asked to form a diversion route as a line of automobiles began backing up traffic from the Quintanillas' houses. On the street where Selena had lived, gang graffiti and cacti distinguished the blue-collar community from other subdivisions across America. The chain-link fence in front of Selena's house became a shrine festooned. Fans from Puerto Rico and Wisconsin left messages and notes to both Selena and the Quintanilla family.

The majority of cars traveling to Interstate 37 from South America and cars in Corpus Christi turned their headlights on in memoriam. Fans scribbled on the door of room 158 with notes and messages and left handwritten messages on the doorstep.

Julio Iglesias interrupted a recording session in Miami for a moment in silence, Celia Cruz called Q-Productions to offer condolences, while Madonna sent a fax. Concerts across the state of Texas were called off. La Mafia canceled their Guatemala concert and flew back to Texas. American singer Stefanie Ridel called KXTN-FM in San Antonio, talking and crying about the loss.

Soon after learning of Selena's death, people began theorizing and gossiping about who had murdered her. Emilio Navaria's wife was the prime suspect, since many believed that she had been jealous of Selena and Emilio's relationship. Johnny Pasillas, Emilio's brother-in-law and manager, frantically called radio stations, trying to quash the jealous-lover rumor. The newsstands were swarmed for anything to do with Selena. Her death was front page news in The New York Times for two days and was featured prominently on BBC World News. She was cited in China as one of the "Ten representatives of Latin Music".

A People magazine issue was released several days after her murder. Its publishers believed that interest would soon wane, but released a commemorative issue within a week, when it became apparent that it was only growing, while news about Selena appeared on national television. Commemorative issues have only been issued for Princess Diana, Jackie Kennedy and most recently, Elizabeth Taylor. The issue sold nearly a million copies, moving the entire first and second run within two weeks. It became a collectors item, which had never happened before in the history of People magazine. Betty Cortina, editor of People, told Biography that they never had an issue that was 100% sold out, stating "it was unheard of". In the following months, the company released People en Espańol, aimed at the Hispanic market, which came directly out of the success of the Selena issue.

Other reactions

On April 12, 1995, two weeks after her death, George W. Bush, governor of Texas at the time, declared her birthday Selena Day in Texas. On Selena Day, one thousand fans gathered at her grave and began to sing traditional Mexican folk songs. Police were brought in to control the crowd. On the same day, a crowd of 3,000 attended an organized Votive Mass of Resurrection for Selena at Johnnyland Concert Park.

Many white Texans wrote to the editors of the Brazosport Facts during April and May, asking "What was the big deal?" Some were also offended that Selena Day fell on Easter Sunday. Others agreed that "Easter is more important than Selena Day", but they also believed that everyone should let Selena rest and go on with their lives. Mexican Americans in Texas wrote vociferously to the newspaper, while some agreed that others were too critical of "Selena Day", and that they did not have to celebrate the day and should not have responded so rudely.

A few days later, Howard Stern mocked Selena's murder and burial, poked fun at her mourners, and criticized her music. Stern said, "This music does absolutely nothing for me. Alvin and the Chipmunks have more soul ... Spanish people have the worst taste in music. They have no depth." Stern's comments infuriated the Hispanic community across Texas. After a disorderly conduct arrest warrant was issued against him, Stern later made an on-air apology in Spanish for his comments.

The League of United Latin American Citizens boycotted Stern's show, finding his apology unacceptable. Within a week, on NBC's Tonight Show with Jay Leno, Stern and Robin Quivers, an African American writer, were asked if Stern's remarks about Selena were acceptable. Quivers decided not to talk about the situation in order to avoid arguing with Stern. However, when Linda Ronstadt, a pop singer of Mexican American heritage, came on the show, she and Quivers quickly got into an argument when Ronstadt defended Selena.

Music

Within hours, record stores had sold out of Selena's albums; EMI Latin began pressing several million CDs and cassettes to meet the expected demand. Selena was inducted into the Latin Music Hall of Fame in 1995. Dreaming of You (1995), a posthumous album by Selena, made its debut at the number-one spot on the Billboard 200 in the U.S. and stayed on the chart for 49 weeks, selling 175,000 copies on the first day, a record for a female pop singer. Eventually, Selena became the first female recording artist to place five albums simultaneously on the Billboard 200. The album was also the 75th top-seller in the U.S. for BMG Music Club. Dreaming of You also debuted at number-one on the Latin Albums chart and the Latin Pop Albums charts in the U.S. and remained on the charts for 128 and 104 weeks respectively. The album helped Selena to become the second-fastest selling female artist, behind Janet Jackson.

Dreaming of You became the second-highest debut, behind Michael Jackson. For selling 1,700,000 copies in the U.S. alone, Dreaming of You was listed as one of the "Best-Selling Records of 1995", according to Billboard magazine and SoundScan. After the album's release, singles "I Could Fall in Love" and "Dreaming of You" topped the charts and received extensive airplay in the United States.

Billboard named Selena the "Best Selling Latin Artist of the Decade" and "Top Latin Artist of the 90's". As of 2012, Selena has sold over 60 million copies in the United States.

Selena continues to outsell many living artists. Many music critics believed if Selena were alive, she would have surpassed the record sales of Madonna, Gloria Estefan, Paula Abdul and Whitney Houston.

By 1996, Selena held the record for most wins at the Latin Music Awards then any other artist. The Guinness Book of World Records named Selena as the "most dominating artist". Selena is one of the most widely known Mexican-American vocal artists and most popular Latin artist in the United States. Tejano music has not recovered since her murder. Selena has retained great devotion from many fans. Mexican-American singer-actress Selena Gomez was named after Selena, and stated that Selena means a lot to her and her family.

Funeral and tributes

Numerous vigils and memorials were held in her honor, and radio stations in Texas played her music non-stop. On the day of the murder, Tejano 107 sponsored a candlelight vigil at Sunken Gardens, while KRIO-FM sponsored its own at South Park Mall, which was attended by 5,000.

On April 1, Bayfront Plaza in Corpus Christi held a vigil that drew 3,000 fans. State Senator Carlos Truan made an appearance and spoke about Selena. During the event, it was announced that a public viewing of the casket would be held at the Bayfront Auditorium the following day. Fans lined up for almost a mile. An hour before the doors opened, rumors began circulating that the casket was empty, which caused the Quintanilla family to have an open-casket viewing. About 30,000 to 40,000 fans passed by Selena's coffin. The same day, an unannounced bilingual Sunday morning mass for Selena was held at the San Fernando Cathedral in downtown San Antonio, before a mariachi choir.

Selena's funeral was held on April 2, 1995. Six hundred guests, mostly family members, attended the morning services, which were broadcast live by a Corpus Christi and San Antonio radio station. A Jehovah's Witness minister from Lake Jackson preached in English. He also sampled Paul the Apostle's words in 1 Corinthians 15. Selena was then buried on the following day at Seaside Memorial Park, while hundreds of cars circled the area. A special mass in the Los Angeles Sports Arena on the same day, drew a crowd of four thousand. Selena had been booked there that night for her Amor Prohibido Tour. The promoter charged admission, which upset Abraham Quintanilla Jr. In Lake Jackson, Selena's hometown, one thousand fans and friends gathered at the municipal park in neighboring Clute, where she had played at the Mosquito Festival in July 1994.

The next day, Our Lady of Pillar Church, a church in Spain, held a Selena mass which drew 450 people to their 225-seat church. In the week following her murder, seven out of every hundred newborns in Santa Clara County, California were named after Selena. On April 28, during a firework display for Buccaneer Days in Corpus Christi, the music was reworked to include "Bidi Bidi Bom Bom" in memory of Selena.

Trial

Within 20 minutes of Saldívar's surrender, she was taken to the downtown police station and placed in an interrogation room with Paul and Ray Rivera. Paul Rivera, who had investigated homicides since 1978, informed Saldívar of her right to a lawyer, which she waived. When police investigators surrounded Saldívar's truck, she had cried out, "I can't believe I killed my best friend". Within hours, she claimed that the shooting was accidental.

Saldívar's bond was initially set at $100,000, though District Attorney Carlos Valdez got the amount raised to $500,000. The Nueces County jail was deluged with death threats and public calls for vigilante justice. Some gang members in Texas were reported to have taken up collections to raise the bond for Saldívar so they could kill her when she was released. In prison, she faced more death threats from inmates. The Mexican Mafia, a dominant gang in the Texas penal system, reportedly placed a price on her head, and spread the word that anyone who committed the crime would be a hero. Saldívar's crime was punishable to up to 99 years in prison and a $10,000 fine. Saldívar was kept at Nueces County jail under a suicide watch before her trial. The state sought to find a defense counsel for Saldívar, but as news of the crime had spread throughout the United States, they were unsuccessful. The state commented that any lawyer defending Saldívar could face death threats.

After her trial, the jury deliberated for two hours before finding Saldívar guilty of murder. She was sentenced to life in prison on October 23, 1995, with parole eligibility set for thirty years, the maximum sentence.

On November 22, 1995, she arrived at the Gatesville Unit (now Christina Crain Unit) in Gatesville, Texas, for processing. Saldívar is currently serving her life sentence at the Mountain View Unit in Gatesville, operated by the Texas Department of Criminal Justice. She will be eligible for parole on March 30, 2025.

Because of multiple internal death threats from incarcerated Selena fans, she was placed in isolation. Currently, she spends 23 of 24 hours in her 9 by 6 feet (2.7 by 1.8 m) prison cell alone, without contact with other inmates.

Post trial

During an interview with 20/20, Saldívar told reporter Deborah Roberts that "I did not killed [sic] Selena, the shooting was accidental, and my conscience is clear". She also told Roberts that she had intended to commit suicide, and had wanted to tell Selena that she could no longer work for her. Saldívar then claimed to Roberts that Selena had gone to her knees and begged, "Mom, we have to talk about this". (Selena's mother, Marcella Samoa, told Roberts that the family doubted that Selena would have called Saldívar "Mom"). Saldívar claimed that following this exchange, Selena got up and walked at an angle towards the door to open it. Saldívar said that she then pointed the gun away from her head and towards the door, telling Selena to close the door. She said that at that instant the gun went off. When asked if she had known at that moment that Selena had been shot, she responded that she had not. Roberts then told her that there was blood all over the room. Saldívar responded that she was not looking at the door, she was trying to find Selena.

Saldívar told Roberts that she had never stolen money from the fan club. Abraham Quintanilla Jr. later told Roberts that there was proof that she had stolen over $100,000 from Selena. Selena's father told Roberts that Saldívar was stalking Selena by telephone. During the interview, when Saldívar was asked why she needed a gun, Saldívar insisted that it was because Selena's father had threatened her life. Quintanilla Jr. disputed this, telling Roberts that he had never threatened Saldívar.

Forensic psychologist Dr. Reed Monlore studied Roberts' interview of Saldívar and told Roberts that Saldívar showed signs of obsessive–compulsive disorder throughout the interview. Dr. Monlore also told Roberts that Saldívar has a personality disorder. When the tape was played, Dr. Monlore was intrigued by Saldívar's response to the question "If you could go back to March 31, 1995, what would you do differently?" Saldívar replied, "I would want her to kill me". Monlore told Roberts that Saldívar had a homicidal impulse.

After the interview, Saldívar told Roberts that she wanted to appeal, stating that the police had ignored her statements about the shooting being accidental. Saldívar requested that the Texas Court of Criminal Appeals review a petition challenging her conviction. She claims the petition was filed in 2000 with the 214th District Court, but was never sent to the higher court. Her request was received on March 31, 2008, the 13th anniversary of Selena's murder.

The gun used to kill Selena was later destroyed and the pieces thrown into Corpus Christi Bay in 2002 under a judge's order, despite protests from historians.

Lorenzo Salinas accusations

During a special screening of VH1's Behind the Music, Saldívar revealed information about a person named Lorenzo Salinas. Saldívar continually stated that Selena "wasn't the person everyone had thought she was". The reporter had retrieved mailed-in letters that Saldívar and her parents claimed to be from Salinas. In one, the letter writes of Salinas' conscience being torn because "he knows the truth". Salinas also argues, in the letter, that the information could help Saldívar be released from prison. He also stated that he feels remorseful for Saldívar because he had beaten her. The Texas Department of Correction confirmed that the letters were sent from Mexico. The VH1 reporter tried unsuccessfully for seven months to find his whereabouts or confirm his existence. Salinas, as Saldívar claims, was a businessman who had worked with Selena in Mexico in early 1995.

Saldívar claimed that, two weeks prior to the murder, she had discovered videotapes damaging to Selena's career. She also confirmed that she had Selena's diary that corroborated information about the tapes. In the second letter, Salinas wrote that he was hired by a third party to brutally beat Saldívar to retrieve the tapes, as a plot to exploit Selena. Saldívar claimed that she was attacked but managed to get away. Saldívar told VH1 reporter Jim Forbes that she has the tapes and diary stashed in a safe deposit box in Monterrey, Mexico. Forbes and a defense attorney of Saldívar went to Mexico and reportedly went to every storage facility that Saldívar and her parents had told them to search. They found no evidence of the existence of the tapes and diary. The defense attorney removed himself as counsel for Saldívar after they returned.

Memorials and tributes

Selena's family and her former band, Los Dinos, held a tribute concert a week after the tenth anniversary of her murder on 7 April 2005. The concert, entitled Selena ˇVIVE!, was broadcast live on Univision and achieved a 35.9 household rating. It was the highest-rated and most-viewed Spanish-language television special in the history of American television. The special was also the number-one program regardless of language among adults 18 to 34 in Los Angeles, Chicago and San Francisco, while tying for first in New York, beating that night's episode of Fox's American Idol. Among Hispanic viewers, Selena ˇVIVE! outperformed the Super Bowl XLV (Giants-Patriots) and the telenovela Soy Tu Dueńa and was considered the "Most-Watched NFL Season Ever among Hispanics".

In 1997, Selena was commemorated with a museum and a bronze life-sized statue (Mirador de la Flor in Corpus Christi, Texas), which are visited by hundreds of fans each week. During the sixteenth anniversary of her murder on March 31, 2011, Selena was given a statue in Apodaca, Nuevo León.

Media

Autopsy photographs

On November 14, 1995, the tabloid Globe's cover story on Selena's death showed six of her autopsy pictures, taken by a police photographer. The headlines were "Shot in the Back!" and "Exclusive! Dramatic autopsy photos reveal innocent beauty was gunned down by lying coward." Retailers across South Texas and the United States removed copies from their shelves. Abraham Quintanilla Jr. filed a lawsuit against Globe, which was later dropped.

Biographical film and play

Jennifer Lopez played Selena in a film about her life. Directed by Gregory Nava, the biographical film opened to mostly positive reviews. Over 24,000 people auditioned for the lead role. Selena's fans supported the movie, and Lopez's performance helped create her entire career. Lopez was nominated for a Golden Globe award for Best Actress in a Musical. Although Lopez went on to become a pop star a few years later, Selena's voice was dubbed in for all the songs. The film grossed $35,281,794.

In 1999, a new Broadway-bound musical entitled Selena was announced to premier in San Antonio in March 2000 to commemorate the fifth anniversary of her murder. Broadway producers Tom Quinn, Jerry Frankel, Peter Fitzgerald and Michael Vega staged the musical. Later Edward Gallardo wrote the show's book and lyrics. Fernando Rivas then composed the show's songs. In 2000, Selena Forever was first produced for a thirty city national tour with a budget of over US$2 million. After a national casting call, the producers chose Veronica Vasquez to portray Selena. She alternated in the role with Rebecca Valdez. The musical previewed on March 21 and opened on March 23 at the San Antonio Municipal Auditorium.

On television

Selena's legacy, music and life was covered by various media including The Oprah Winfrey Show, George Lopez's Lopez Tonight, María Celeste Arrarás's Selena's Secret: The Revealing Story Behind Her Tragic Death and various specials in both English and Spanish including Dave Holmes, Nick Lachey, Mariah Carey, Lola Ogunnaike, who talks briefly about Selena's death. Selena was covered in many documentary shows on VH1, MTV, A&E and Investigation Discovery, such as E! True Hollywood Story (1998), Famous Crime Scene (2010), and Reel Crime/Reel Story (2012). Selena's life was also covered in The Biography Channel's Biography and Notorious. The Spanish-language Univision and Telemundo networks broadcast Selena's biography on the anniversary of her murder.

On 6 January 2010, Spanish-language channel Telefutura aired Buscando La Doble de Selena (Searching For Selena's Double). It featured impersonators competing for the title as the "next Selena". The hopefuls had to compete in competitive dances, singing, and personality competitions. In the season finale the episode attracted nearly two million viewers, beating all previous records for that channel. It also became the "highest-ranked entertainment special" in the history of Telefutura. The season finale on 26 February 2010 helped Telefutura to become the second most-watched Spanish-language television channel during the finale, while it also performed better than the competitor Telemundo by 82%. The season finale was a 77% increase, compared to the last four week schedule of Telefutura. Ilyssa Sáenz was crowned as the winner, taking home $10,000.

Wikipedia.org


Texas Court of Appeals

Saldivar v. State

October 01, 1998

YOLANDA SALDIVAR, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE

Panel consists of Chief Justice Murphy and Justices Hudson and Sears. *fn 13

The opinion of the court was delivered by: Paul C. Murphy Chief Justice

Affirmed and Opinion filed October 1, 1998.

On Appeal from the 228th District Court Harris County, Texas Trial Court Cause No. 704424

Appellant entered a plea of not guilty to the offense of murder. See Tex. Penal Code Ann. § 19.02 (Vernon 1994). A jury found her guilty and assessed punishment at confinement for life in the Institutional Division of the Texas Department of Criminal Justice. In seventeen points of error, appellant contends the trial court erred in: (1) permitting the prosecutor to exclude venire persons solely on account of their race; (2) sustaining the State's challenge of a venire person; (3) denying certain constitutional protections because the State did not disclose impeachment evidence; (4) admitting her written statement; (5) admitting evidence of extraneous misconduct; (6) denying a requested jury instruction and a special issue; (7) admitting irrelevant and prejudicial opinion evidence at the punishment phase of trial; (8) denying her motion for mistrial because of prosecutorial misconduct; and (9) denying her motion for new trial because exhibits have been lost or destroyed. We affirm.

Appellant shot complainant, Selena Quintanilla Perez, in the back as complainant walked toward the door of appellant's room at the Corpus Christi Days Inn. Complainant ran from the room toward the lobby of the motel, screaming. Appellant followed her in armed pursuit. Upon entering the lobby, complainant collapsed. Before passing out, complainant told motel employees that appellant shot her.

In the meantime, appellant returned to her room. Shortly, thereafter, she went to her truck in the motel parking lot, where she was confronted by police officers. For more than nine hours, appellant sat in the truck and threatened to commit suicide. She eventually surrendered to police after conversing for several hours with members of a special hostage negotiation team.

I. Discriminatory Exercise of Peremptory Strike

In her first point of error, appellant contends the trial court erred in permitting the State to exercise its peremptory challenges to exclude venire members solely on account of their race. The Fourteenth Amendment to the United States Constitution prohibits the State from using its peremptory strikes in a racially discriminatory manner. See Powers v. Ohio, 499 U.S. 400 (1991); Batson v. Kentucky, 476 U.S. 79 (1986). To codify and implement this prohibition in Texas, the Legislature enacted article 35.261 of the Texas Code of Criminal Procedure. See Hill v. State, 827 S.W.2d 860, 863 (Tex. Crim. App. 1992). Article 35.261 provides in pertinent part:

"After the parties have delivered their lists [of peremptory challenges] to the clerk . . . and before the court has impaneled the jury, the defendant may request the court to dismiss the array and call a new array in the case. The court shall grant the motion of a defendant for dismissal of the array if the court determines that the defendant is a member of an identifiable racial group, that the attorney representing the state exercised peremptory challenges for the purpose of excluding persons from the jury on the basis of their race, and that the defendant has offered evidence of relevant facts that tend to show that challenges made by the attorney representing the state were made for reasons based on race. If the defendant establishes a prima facie case, the burden then shifts to the attorney representing the state to give a racially neutral explanation for the challenges. The burden of persuasion remains with the defendant to establish purposeful discrimination."

"(b) If the court determines that the attorney representing the state challenged prospective jurors on the basis of race, the court shall call a new array in the case." Tex. Code Crim. Proc. Ann. art. 35.261 (Vernon 1989).

The record reflects that appellant's trial counsel did not raise the Batson challenge until after the jury was seated and sworn. After both parties exercised their peremptory challenges but prior to seating the jury, appellant's trial counsel requested an opportunity to make a record regarding the trial court's denial of his request for additional peremptory challenges. Appellant's trial counsel said, "I need to make a record with regard to that before they are seated with regard to the challenges that you denied me. We had to settle on this jury. I can make that record after you seat them as though I made it now?" The trial Judge responded, "That's correct." The trial Judge asked if everyone had inspected the jury list. Both parties responded that they would like to inspect it. The jury was then sworn and seated. After the trial court released the jury, appellant's trial counsel objected to the State's use of its peremptory challenges as follows:

"Secondly, Your Honor, with regard to the jury selection, I just want to make a note that the juror -- the prosecution has struck all but one of the African-Americans that were on the panel. There's only one African-American there. They have struck eight African-Americans from the panel. They struck 13, 21, 26, 34, 38, 39, 48, and 49. We demand that the panel be quashed because of the way they did their striking, and they did it in a prejudicial way by striking racially."

The prosecutor objected that the motion was untimely. The trial Judge, however, questioned whether the prosecutor was present when appellant's trial attorney made the objection. After a brief Discussion as to whether the objection was preserved, the trial court postponed argument on the motion until the next morning.

The following day, appellant's trial counsel reminded the trial court that he asked to make objections to the impaneling of the jury and that the court permitted him to do so after the jury was seated. Once again, a Discussion ensued regarding when appellant's trial counsel made the Batson challenge and whether the trial court permitted him to make objections to the impaneling of the jury after the jury was seated. Appellant's trial counsel finally admitted, "Your Honor, let me say this: I had no inclination as to pass the challenge because I hadn't seen the color of the faces; and then, as they were seated, at the time that they did, I knew that I should do that, and I made it." Without deciding whether the objection was preserved, the trial Judge allowed appellant's trial counsel to renew his Batson challenge. The prosecutor once again objected, stating the challenge was untimely. When asked, the prosecutor declined the opportunity to state the reasons for striking the African-American venire members and objected that appellant had not met her burden to establish a prima facie case. After hearing argument, the trial court denied appellant's motion to quash the panel.

The record shows that appellant's trial attorney did not make a Batson challenge until after the jury was seated and sworn. Still, appellant contends the challenge was timely. She implies the parties discussed the Batson challenge during an unrecorded bench conference, thus explaining the trial court's response that the prosecutor who objected to the challenge was not present when the objection was made. *fn1 "Such supposition on the part of this Court, however, cannot substitute for what has actually found its way into the appellate record." Cockrum v. State, 758 S.W.2d 577, 585 n. 7 (Tex. Crim. App. 1988). Because the record reflects that appellant's trial attorney did not timely object, appellant's Batson challenge was not preserved for appellate review.

Even if the Batson challenge was untimely, appellant contends her request to strike the panel based on a Batson violation was timely and preserved for review in light of Moss v. State, 877 S.W.2d 895 (Tex. App.--Waco, 1994, no pet.) (opinion on reh'g). Moss is distinguishable from the facts of this case. The defendant in Moss filed a written Batson objection before the trial court called the jurors' names, but failed to obtain a ruling before the jury was seated and sworn. Id. at 897. "Thus, the objection was timely under article 35.261." Id. (emphasis in original). The question before the Waco Court of Appeals was whether the objection was preserved for appellate review. See id. That appellate court noted the purpose of requiring a timely specific objection under former rule 52(a) of the Texas Rules of Appellate Procedure is to allow the trial court the opportunity to rule on the complaint and then to proceed with trial in a proper procedural and substantive manner. Id. Consequently, the Waco Court of Appeals found the defendant obtained a timely ruling because the trial court could have granted a mistrial after empaneling the jury if it had found a Batson violation. Id. at 898.

Here, appellant did not make a timely Batson objection. Therefore, she did not preserve error for appellate review. We overrule appellant's first point of error.

II. Dismissal of Venire Person on State's Challenge for Cause

In her second point of error, appellant contends the trial court abused its discretion in sustaining the State's challenge for cause levied against prospective juror Gwendolyn J. Harris and in denying appellant's requests for additional peremptory challenges. Appellant contends Harris was a qualified venire person; thus, the trial court had no discretion to excuse her under article 35.16 of the code of criminal procedure. Article 35.16 "provides a framework under which unqualified potential jurors may be discovered by the parties and excised from the panel without a need to resort to the exercise of a peremptory strike." Butler v. State, 830 S.W.2d 125, 130 (Tex. Crim. App. 1992) (emphasis in original).

Harris indicated on a juror questionnaire that she had been a witness in a criminal case involving her girlfriend's son. While offering her girlfriend support in dealing with the boy, Harris observed police officers make promises to the boy, which were later broken. She also indicated that her sister-in-law had been killed in a drug house several years ago. When asked if she would have a problem with officers testifying in court that would affect her rendering a verdict or interfere with her deliberations in this case, she said she had a problem with officers, but it would not affect her service as a juror in this case. Harris also expressed concern about her children and financial problems that would prevent her from concentrating during trial. Nevertheless, the trial court asked her to return for additional questioning the following day.

Later, Harris expressed concern that her son needed her assistance because he had been suspended from school and she had to take him to see a psychiatrist the next day. She said, "I know I couldn't honestly sit up here and be a juror when I know I have a 14-year-old child that's having problems and I'm the only one that can help them." After the trial Judge questioned her about the appointment, Harris asked, "So do I come back tomorrow?" As the trial Judge considered whether to excuse Harris, the prosecutor challenged her for cause on the ground that she previously indicated she would have a problem with police officer testimony. The trial Judge corrected the prosecutor stating that her problem wasn't with testimony, to which the prosecutor replied, "It was officers themselves, she said. I asked her if it would effect [sic] her as a juror, and she said it would." Appellant's trial attorney asked the court to note his exception and requested additional challenges. The trial Judge replied, "Sure, I'll carry that." The trial court then excused Harris.

When conducting voir dire, the trial Judge has the discretion to excuse a venire person under articles 35.03, 35.16, and 35.19 of the code of criminal procedure. See Butler, 830 S.W.2d at 130. Under article 35.03, the trial Judge, upon a reason sufficient to satisfy the court, may excuse an otherwise qualified venire person from jury service. See id. (emphasis in original). Under 35.19, a Judge must excuse a venire person who suffers a disability sufficient to absolutely disqualify. See id. (emphasis in original). Under 35.16, a Judge must excuse a potential juror proven to be unqualified by either of the parties upon a challenge for cause for one of many reasons enumerated in article 35.16. See id.

Excusing an unqualified venire person under article 35.16, however, is qualitatively different from excusing a qualified venire person for personal reasons under article 35.03. Id. (emphasis in original). The reasons for challenges for causes enumerated in article 35.16 are, "as a matter of law, the only ones which a party may request that a Judge rule upon to disqualify a juror, while the Judge may, in accordance with Article 35.03, consider any other excusal factor with or without the prompting of counsel." Id. (emphasis in original). Hardship and family responsibilities are excusable grounds under article 35.03. See Kemp v. State, 846 S.W.2d 289, 294 (Tex. Crim. App. 1992).

Although the trial Judge did not state his reason for excusing Harris, the record clearly reflects the trial Judge relied on his authority under article 35.03, and not on article 35.16. Harris prompted the trial Judge for a personal excuse before the prosecutor exerted his challenge. After the prosecutor challenged Harris, the trial Judge corrected the prosecutor's misstatement regarding Harris's aversion to police testimony. Following some Discussion, in which appellant expressed her objection to the State's challenge, the trial Judge excused Harris. Because the trial Judge's decision to excuse venire person Harris for personal hardship was an appropriate exercise of his discretionary authority under article 35.03, we hold that he did not abuse his discretion in excusing Harris. Accordingly, we overrule appellant's second point of error.

III. Failure to Disclose Impeachment Evidence

In her third point of error, appellant contends she was denied the right to confront and cross-examine witnesses, the right to due process, and the right to effective assistance of counsel because the prosecution did not disclose impeachment evidence regarding the criminal history of a State's witness. Appellant filed a pretrial motion requesting the State to provide the criminal records of witnesses, and specifically, the criminal history of Norma Marie Martinez. After hearing argument on the motion, the trial court ordered the State to tender for in camera inspection, its record search on the State's witnesses and particularly on Norma Martinez. A computer search conducted the week before trial revealed no criminal history for Norma Marie Martinez. After the trial court rendered judgment, one of appellant's trial attorneys received information that led him to conduct a separate investigation of Martinez's criminal history. Using the name Maria Norma Martinez, appellant's trial attorney discovered Martinez had been convicted of theft in 1990 and, at the time of trial, had an outstanding warrant for her arrest on a second theft charge. Consequently, appellant filed a motion for new trial claiming newly discovered evidence showed the State failed to disclose exculpatory and impeachment evidence as required by Brady v. Maryland, 373 U.S. 83 (1963). The trial court denied the motion for new trial.

The granting or denying of a motion for new trial lies within the discretion of the trial court. See Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995); State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993). An appellate court does not substitute its judgment for that of the trial court, but rather decides whether the trial court's decision was arbitrary or unreasonable. Id. To be entitled to a new trial based on newly discovered evidence, appellant must show there is, in fact, new evidence, both competent and material to the case, the existence of which was unknown to appellant at the time of trial. See Jones v. State, 711 S.W.2d 35, 38 (Tex. Crim. App. 1986). Second, appellant must show her failure to discover such evidence before trial, or to utilize the evidence, once discovered, at the time of trial, was not a result of any lack of diligence on her part. Id. Generally, new evidence that is merely cumulative, corroborative, collateral, or impeaching is rarely of such weight as likely to bring about a different result. Id.

Appellant contends the newly discovered evidence of Martinez's criminal history is material to the outcome of the case, and the State's failure to disclose it deprived her of due process. *fn2 A prosecutor has an affirmative duty to disclose all material, exculpatory evidence to the defense. See Lagrone v. State, 942 S.W.2d 602, 615 (Tex. Crim. App.), cert. denied, 118 S.Ct. 305 (1997). A prosecutor violates the Due Process Clause of the Fourteenth Amendment of the United States Constitution when he or she fails to disclose material evidence that is favorable to the accused. See Thomas v. State, 841 S.W.2d 399, 404 (Tex. Crim. App. 1992). Favorable evidence is any evidence, including exculpatory and impeachment evidence, that, if disclosed and used effectively, may make the difference between conviction and acquittal. Id. (emphasis in original). Evidence is material if it creates a probability sufficient to undermine the confidence in the outcome of the proceeding. Id. A reviewing court determines materiality by examining the alleged error in the context of the entire record and in the context of the overall strength of the State's case. Id. at 404-05. The reviewing court may consider any adverse effect the nondisclosure might have had on the preparation or presentation of the defendant's case in light of the totality of the circumstances and with an awareness of the difficulty of reconstructing the course of the defense and the trial in a post-trial proceeding. Id. at 405.

At the hearing on the motion, the State's investigator testified that he searched for the criminal history of Norma Marie Martinez, the name Martinez signed on her statements to the State. Upon receiving the motion for new trial, the investigator ran a second search under the name Maria Norma Martinez and discovered the theft conviction and a second theft conviction, which occurred subsequent to appellant's trial. The State claimed it had no knowledge of Martinez's conviction until it received the motion for new trial.

Appellant does not dispute the prosecution's unawareness of Martinez's prior conviction or pending charges at trial, but questions the State's diligence in searching its records. The State's investigator testified that he did not search for Martinez's criminal history under any other name except Norma Marie Martinez because she was only a witness and he had no reason to believe she gave an alias. Yet, the Nueces County Sheriff's Department located Martinez's criminal history using the name Maria Martinez and her date of birth. Moreover, Martinez testified that the State never questioned her about her criminal history and State investigators wrote her name incorrectly on police documents.

The record reflects the prosecutor did not deliberately withhold impeachment evidence from appellant. Yet, the record also reflects the State made little effort to discover the information, which it possessed in its own records. Therefore, we find the State breached its affirmative duty to disclose impeachment evidence to which appellant was entitled.

Nevertheless, we do not find the conviction evidence to be material for impeachment purposes. While appellant's trial counsel could have offered Martinez's theft conviction, if disclosed, to impeach her credibility with jurors, Martinez's inconsistent statements permitted appellant's trial counsel to accomplish the same goal on cross-examination. In a sworn statement to police on the day of the murder, Martinez claimed she saw appellant shoot complainant and run to her vehicle. On cross-examination at trial, however, she admitted that she saw appellant chasing complainant but did not see appellant shoot complainant. Instead, Martinez said she heard a shot and then saw appellant come out of the room, pointing a gun at complainant. She claimed she did not see appellant run to her vehicle although she admitted she might have told police that she did on the day of the murder. Martinez also testified she heard appellant yell "bitch" at complainant, but admitted she did not tell police about appellant's epithet in her statement on the day of the incident. Moreover, Martinez described appellant's gun as really big, like a cowboy gun with a long barrel, while the evidence at trial showed the gun to be a snub-nose revolver.

Furthermore, the State's case against appellant was strong. In total, the State offered the testimony of thirty-three witnesses and more than 122 exhibits. Of the eighteen volumes of testimony in the guilt-innocence phase of trial, Martinez's testimony encompasses only fifty-two pages. For the most part, Martinez's testimony was cumulative of the testimony of other witnesses. Although she was the only witness to hear appellant yell "bitch" at complainant, Martinez was one of several who observed appellant chasing complainant while pointing the gun at her. For these reasons, we conclude Martinez's criminal history is not evidence that creates a probability sufficient to undermine the confidence in the outcome of the proceeding.

Appellant also argues that the State's failure to disclose Martinez's criminal record deprived her of the right to cross-examine Martinez and to the effective assistance of counsel. *fn3 Because evidence of Martinez's conviction was immaterial to the outcome of appellant's trial, we decline to address these arguments. The trial court did not err in overruling appellant's motion for new trial. Appellant's third point of error is overruled.

IV. Admissibility of Appellant's Written Statement

In her fourth and fifth points of error, appellant contends the trial court erred in denying her motion to suppress her written statement in violation of her right to counsel under the Fifth Amendment of the United States Constitution, Article I, Section 10 of the Texas Constitution, and article 38.22 of the Texas Code of Criminal Procedure. At a hearing on a motion to suppress, the trial court is the sole and exclusive trier of fact and Judge of the credibility of the witnesses as well as the weight to be given their testimony. See Green v. State, 934 S.W.2d 92, 98-99 (Tex. Crim. App. 1996), cert. denied, 117 S.Ct. 1561 (1997); Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.1990). The trial Judge may choose to believe or disbelieve any or all of a witness' testimony. See Allridge v. State, 850 S.W.2d 471, 492 (Tex. Crim. App. 1991). This Court, thus, is not at liberty to disturb any finding that is supported by the record. See Johnson v. State, 803 S.W.2d 272, 287 (Tex. Crim. App. 1990), overruled on other grounds by Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991); Atkins v. State, 919 S.W.2d 770, 773 (Tex. App.--Houston [14th Dist.] 1996, no pet.).

A. Invocation of Right to Counsel

In her fourth point of error, appellant contends her written statement was inadmissible under the Fifth Amendment to the United States Constitution because she unambiguously requested an attorney to assist her in questioning before she surrendered to authorities and the State did not honor her request before obtaining her statement. To effectuate the right against self-incrimination under the Fifth Amendment, police must cease all interrogation once a suspect invokes her right to counsel or until the suspect re-initiates conversation. See Minnick v. Mississippi, 498 U.S. 146, 153 (1990); Dinkins v. State, 894 S.W.2d 330, 350 (Tex. Crim. App. 1995). Consequently, when a suspect has invoked her right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that she responded to further police-initiated custodial interrogation even if she has been advised of her rights. See Jones v. State, 742 S.W.2d 398, 404 (Tex. Crim. App. 1987) (citing Edwards v. Arizona, 451 U.S. 477, 484 (1977)).

A person invokes the right to counsel when she indicates that she desires to speak to an attorney or have an attorney present during questioning. See Dinkins, 894 S.W.2d at 351. "An invocation must be clear and unambiguous; the mere mention of the word `attorney' or `lawyer' without more, does not automatically invoke the right to counsel." Id. The right to counsel is not inherent within the Fifth Amendment, but a prophylactic measure provided under Miranda v. Arizona, 384 U.S. 436 (1966). Id. (addressing issue of ambiguous invocations of right to counsel). Therefore, "[t]he prohibition against continued questioning following an invocation of the right to counsel is `justified only by reference to its prophylactic purpose.'" Id. (quoting Davis v. U.S., 512 U.S. 452, 458 (1994)). Accordingly, a court must focus on whether a suspect actually invokes her rights. Id. The inquiry is purely objective: whether a reasonable officer in light of the circumstances would understand the statement to be a request for an attorney. Id. at 351-52. Consequently, when reviewing allegations of the right to counsel, an appellate court examines the totality of the circumstances surrounding the interrogation and the alleged invocation. See Dinkins, 894 S.W.2d at 351.

At the pretrial hearing on appellant's motion to suppress her confession, Sergeant Paul Rivera testified that he instructed "the personnel with the negotiating team to bring appellant to the police station so that we could talk to her." He said upon her arrival, she was placed in an interview room and warned of her constitutional rights. Rivera further stated that appellant voluntarily initialed the warnings read to her from a police form and indicated she understood the rights. Thereafter, appellant gave her written statement. After hearing other testimony and argument, the trial court denied appellant's pretrial motion to suppress her written statement. In its findings of fact and Conclusions of law, the trial court found appellant knowingly, intelligently and voluntarily waived her rights and gave a statement to police. During trial, the trial court reconsidered appellant's motion to suppress after admitting audiotapes made during the parking lot standoff and after hearing the testimony of two members of the special negotiation team who facilitated appellant's surrender.

Appellant contends the officers' testimony and the following excerpt of the audiotape of the negotiations reflects her clear and unequivocal invocation of her right to counsel:

YOLANDA SALDIVAR: "Larry, I don't wanna live. I don't wanna live."

OFFICER YOUNG: "Do you wanna talk to your attorney?"

YOLANDA SALDIVAR: (Crying.)

OFFICER YOUNG: "You wanna get - do you want - When you come out of the truck, do you wanna call him, first? Richard? Richard Garza?"

YOLANDA SALDIVAR: (Crying.)

OFFICER YOUNG: "Isn't that - isn't that what you said his name was?"

YOLANDA SALDIVAR: "Yes."

OFFICER YOUNG: "You wanna talk to him, first?"

YOLANDA SALDIVAR: "Yes." (Crying.)

Officer Larry Young, a member of the negotiation team, acknowledged that he offered to call an attorney for appellant, but testified that he did not promise appellant an attorney as soon as she surrendered to police. *fn4 Young said he fulfilled all of his promises to appellant except letting her use the phone. Officer Isaac Valencia, another member of the negotiation team, testified that the team offered to call an attorney because appellant "needed to have a hope to talk to somebody else." *fn5 During negotiations, Valencia talked with Richard Garza, an attorney who had represented appellant's family in other matters. Valencia said Garza was apprehensive about talking to him, but assisted him after Valencia stressed that he was not conducting a criminal investigation but gathering personal information to build a rapport with appellant. Both officers testified they did not attempt to procure an attorney for appellant after her surrender.

After hearing argument outside the jury's presence, the trial court denied appellant's motion to suppress her written statement. In its findings of fact and Conclusions of law, the trial held the negotiations with police during the standoff did not constitute custodial interrogation and appellant never clearly and unambiguously invoked her right to counsel during the standoff.

Reviewing the record in light of the totality of the circumstances surrounding the parking lot standoff, we find the record supports the trial court's findings of fact and Conclusions of law. The record reflects that appellant did not clearly and unambiguously invoke her Fifth Amendment right to counsel as provided in Miranda. At most, the negotiation team offered her an opportunity to talk with an attorney.

Moreover, appellant did not invoke the right to counsel during custodial interrogation as required by Miranda. See Green v. State, 934 S.W.2d 92, 97 (Tex. Crim. App. 1996) (stating invocation of Fifth Amendment right requires at minimum some expression of desire for the assistance of counsel in dealing with custodial interrogation by the police), cert. denied, 117 S.Ct. 1561 (1997). Although appellant was clearly surrounded by police and could not escape the parking lot during the standoff, she was armed and not restrained. The communications between the negotiation team were clearly not intended to elicit an incriminating response. See Cooks v. State, 844 S.W.2d 697, 735 (Tex. Crim. App. 1992) (stating interrogation connotes a "calculated" practice on the part of a government official in an attempt to evoke an incriminating response). The negotiations regarding her surrender, therefore, cannot be characterized as custodial interrogation. See Hernandez v. State, 819 S.W.2d 806, 815 (Tex. Crim. App. 1991). Because she did not invoke her right to counsel, police officers acted properly by providing her with the Miranda warnings and obtaining a waiver of her rights before initiating custodial interrogation at the police station. Accordingly, we overrule appellant's fourth point of error.

B. Misstatement of Statutory Warning Before Interrogation

In her fifth point of error, appellant asserts her confession is involuntary and therefore, inadmissible under article 38.22 of the code of criminal procedure, the Fifth Amendment to the United States Constitution, and Article I, Section 10 of the Texas Constitution because members of the negotiation team told her that her statement could be used for her. Appellant claims Officers Young and Valencia violated these provisions when they repeatedly told her during negotiations that they wanted to help her, that it was in her best interest to publicly tell her story, and that the Lord, Himself, wanted her to publicly tell her story. In spite of the inappropriateness of these warnings, appellant asserts, the trial court admitted her written statement over objection.

Appellant, however, did not urge an article 38.22 objection or a constitutional objection to the admission of her statement at trial on the grounds that Officers Young and Valencia misstated the warnings before or during custodial interrogation. Appellant urged an article 38.22 objection at the pretrial hearing on the motion to suppress her written statement regarding proceedings that occurred after the police administered the warnings at the police station. The trial court heard no evidence regarding the standoff negotiations at the pretrial hearing.

Appellant voiced another objection to the admissibility of her statement after the trial court admitted the audiotapes and the testimony of Officers Young and Valencia. At the hearing outside the jury's presence, appellant objected to the admissibility of the statement on the ground that she invoked her right to counsel during the standoff and the State dishonored her request. The trial court entertained no objection and heard no argument regarding the officers' allegedly inappropriate warnings at this hearing. Finally, appellant reurged all of her previous objections when the trial court admitted her written statement. Because appellant did not object at trial on the ground she now asserts on appeal, she waives review of this point of error. See Serrano v. State, 936 S.W.2d 387, 390 (Tex. App.--Houston [14th Dist.] 1996, pet ref'd) (stating even constitutional errors may be waived by failing to object at trial). Accordingly, we overrule appellant's fifth point of error.

V. Evidence of Extraneous Misconduct

In her sixth through eleventh points of error, appellant complains of trial error in admitting evidence of extraneous misconduct and in failing to give the jury a limiting instruction regarding extraneous misconduct. In her seventeenth point of error, appellant contends she is entitled to a new trial because the documents related to the extraneous offense were lost or destroyed without her fault.

A. Admissibility of Extraneous Misconduct Evidence

An appellate court reviews the trial court's decision to admit or exclude evidence under an abuse of discretion standard. See Green, 934 S.W.2d at 102; Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App. 1990) (opinion on reh'g). Therefore, as long as the trial court's ruling is within the zone of reasonable disagreement, the appellate court will not intercede. See Montgomery, 810 S.W.2d at 391.

In point of error six, appellant contends the trial court abused its discretion in admitting evidence of extraneous misconduct because the State did not give adequate, timely notice as required by rule 404(b) of the Texas Rules of Criminal Evidence. Former rule 404(b) prohibits the admission of evidence of extraneous offenses committed by the defendant for the purpose of proving her character by showing she acted in conformity with that character on the occasion in question. See Tex. R. Crim. Evid. 404(b), 49 Tex. B.J. 223 (1986) (current version at Tex. R. Evid. 404(b)); see Santellan v. State, 939 S.W.2d 155, 168 (Tex. Crim. App. 1997). Evidence of extraneous misconduct is admissible, however, to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident provided that upon timely request the State provides reasonable notice in advance of trial of its intent to introduce evidence of the extraneous misconduct in its case-in-chief. See Tex. R. Evid. 404(b), 49 Tex. B.J. 223 (1986).

At a pretrial hearing on discovery motions held two months before trial, appellant asked the trial court to rule on her rule 404(b) motion requesting notification of the State's intent to introduce evidence of an extraneous offense in its case-in-chief. At that time, the State indicated its intent to introduce evidence that Quintanilla thought appellant was embezzling funds and confronted her about it. Because the record reflects that appellant received reasonable notice as required by rule 404(b), *fn6 we find the trial court did not abuse its discretion in admitting extraneous offense evidence. Appellant's sixth point of error is overruled.

In her eighth point of error, appellant contends the trial court abused its discretion in admitting evidence of extraneous misconduct during the guilt-innocence phase of the trial because the evidence was irrelevant and prejudicial, and the State did not prove embezzlement beyond a reasonable doubt. To preserve error in the admission of extraneous offenses under the rules of evidence, the opponent of extraneous offense evidence must first object under rule 404(b). See Santellan, 939 S.W.2d at 168; Harrell v. State, 884 S.W.2d 154, 161 n. 14 (Tex. Crim. App. 1994); Montgomery, 810 S.W.2d at 387. The State must then "show the proffered evidence is relevant apart from its tendency to show that the defendant is a criminal." Harrell, 884 S.W.2d at n. 14. At the defendant's request, the trial court should then require the State to articulate the limited purpose for which the evidence is offered. Id. In making a determination as to the relevancy of the evidence, the trial court must, under rule 104(b) of the rules of criminal evidence, determine, "at the proffer of the evidence, that a jury could reasonably find beyond a reasonable doubt that the defendant committed the extraneous offense." Id. at 160; Tex. R. Crim. Evid. 104(b), 49 Tex. B. J. 221 (1986) (current version at Tex. R. Evid. 104(b)) . If the trial court determines the evidence is relevant, the defendant must further object under rule 403 and obtain a ruling as to whether the probative value of the evidence is substantially outweighed by its prejudicial effect. See Tex. R. Crim. Evid. 403, 49 Tex. B. J. 223 (1986) (current version at Tex. R. Evid. 403); Harrell, 884 S.W.2d at n. 14.

Appellant did not raise a rule 404(b) or a rule 403 objection when Quintanilla testified at trial that he thought appellant was embezzling funds from the Selena fan club. *fn7 Instead, appellant objected that she had been denied discovery of the records supporting Quintanilla's testimony. *fn8 Appellant did not raise a rule 404(b) or rule 403 objection to the testimony of Chris Perez, complainant's husband, who testified that he and complainant removed appellant from complainant's checking accounts because they did not trust her. Moreover, appellant did not object on the basis of rules 404(b) and 403 to the testimony of complainant's sister, Suzette Arriaga. Arriaga testified, over a hearsay objection, that complainant intended to fire appellant because she thought appellant was embezzling funds from complainant's company. *fn9 Consequently, appellant failed to preserve error to the admission of extraneous offense evidence. Appellant's eighth point of error is overruled.

In points ten and eleven, appellant contends the trial court erred by not giving the jury a limiting instruction regarding extraneous misconduct as required by rule 105(a) of the Texas Rules of Criminal Evidence and by refusing her request to instruct the jury in the court's charge as to the limited use of the extraneous offense evidence and the standard of proof it must apply in considering the evidence. Former rule 105(a) requires the trial court, upon request, to restrict evidence to its proper scope and to instruct the jury accordingly, when evidence is admitted for a limited purpose. See Tex. R. Crim. Evid. 105(a), 49 Tex. B. J. 221 (1986) (current version at Tex. R. Evid. 105(a)); Abdnor v. State, 871 S.W.2d 726, 738 (Tex. Crim. App.1994) (stating when extraneous offenses are admitted for a limited purpose, defendant is entitled, on timely request, to instruction by the trial Judge to the jury limiting its consideration of the extraneous offenses to those purposes for which they are admitted). Moreover, "if the defendant so requests at the guilt/innocence phase of trial, the trial court must instruct the jury not to consider extraneous offense evidence admitted for a limited purpose unless it believes beyond a reasonable doubt that the defendant committed the extraneous offense." George v. State, 890 S.W.2d 73, 76 (Tex. Crim. App. 1994).

A party opposing evidence, nevertheless, has the burden of objecting and requesting a limiting instruction at the introduction of the evidence. See Garcia v. State, 887 S.W.2d 862, 878-79 (Tex. Crim. App. 1994). "Once evidence is received without a proper limiting instruction, it becomes part of the general evidence in the case and may be used as proof to the full extent of its rational persuasive power." Id. Once admitted, evidence that might have been inadmissible for certain purposes if the proper objection had been made is not limited in its use. Id.

In this case, appellant did not make a proper objection to the admission of unadjudicated extraneous offense evidence and did not request a limiting instruction when the State proffered the evidence at the guilt-innocence phase of trial. Therefore, appellant forfeited any error and the trial court admitted the evidence as probative of any question to which it was relevant. Thus, the trial court did not err by not charging the jury with a limiting instruction regarding extraneous offense evidence. We overrule appellant's tenth and eleventh points of error.

In point of error nine, appellant maintains the trial court erred in admitting harmful hearsay regarding extraneous misconduct in violation of her right to confront and cross-examine witnesses as guaranteed by the United States and Texas Constitutions. Appellant specifically complains about the admissibility of Perez's statement that complainant did not trust appellant and Arriaga's testimony that complainant was going to fire appellant because complainant thought appellant was embezzling funds from her company. The State contends appellant did not preserve error in both instances. In the alternative, the State contends Arriaga's testimony was admissible as an exception to the hearsay rule.

On direct examination, Perez testified that he and complainant removed appellant as a signatory to complainant's business checking accounts. When asked why they removed appellant as a signatory, Perez testified, over a hearsay objection, that "Selena and I didn't trust her." Then without further objection, Perez testified as follows:

Q. (By Mr. Valdez) "Why didn't you trust her?"

A. "Because there was a lot of things that were coming up, you know, unaccounted for; and we couldn't get an explanation that we were satisfied with for some of those things."

Q. "And do you remember approximately how long before she was killed, approximately?"

A. "That we did that?"

Q. "That you removed her from the accounts?"

A. "Maybe about two weeks."

Q. "Did you fire Yolanda Saldivar?"

A. "Yes, we did. I remember there was a phone conversation where Selena said that she couldn't trust her anymore. It was after that meeting that took place at the shop."

Generally, a party waives error regarding improperly admitted evidence if the same evidence is later admitted without objection. See Rogers v. State, 853 S.W.2d 29, 35 (Tex. Crim. App. 1993); House v. State, 909 S.W.2d 214, 216 (Tex. App.--Houston [14th Dist.] 1995) (stating any error in allowing inadmissible evidence is cured when the same evidence comes in without objection elsewhere in trial), aff'd, 947 S.W.2d 251 (Tex. Crim. App. 1997). In this case, Perez repeated his previous statement that complainant did not trust appellant without objection. Therefore, it is of no consequence whether Perez's testimony *fn10 constituted inadmissible hearsay because appellant did not properly preserve error.

On the other hand, appellant preserved error as to her claims that Arriaga's testimony constituted inadmissible hearsay. *fn11 Following Perez's testimony, Arriaga testified about the meeting in Quintanilla's office when Quintanilla confronted appellant about the fan club discrepancies. Arriaga testified she spoke with complainant in her home a week or so after the meeting. When the prosecutor asked Arriaga about her conversation with complainant, appellant objected to the testimony as hearsay and requested a limiting instruction. The prosecutor argued Arriaga's testimony was an exception to the hearsay rule as a statement of complainant's emotional intent or state of mind. Outside the jury's presence, the trial court heard argument from counsel regarding the testimony. Appellant's trial attorney argued the testimony was clearly hearsay as follows:

"It's clearly a hearsay statement of Selena. Selena's not here for us to cross-examine. It is not a present sense about the offense itself, which is when that rule can come into play. Going to fire doesn't have anything to do with the shooting and I object. We can't cross-examine Selena, she's not here, she's not available as a witness.""

Both sides agreed the statement, "I'm going to fire Yolanda," was a statement of what complainant was going to do, although they disagreed whether the statement went to complainant's state of mind. The trial court overruled the objection. Arriaga then testified that complainant "said that she was going to fire Yolanda because she thought she was embezzling from her company."

Hearsay is a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Tex. R. Crim. Evid. 801(d), 49 Tex. B. J. 229 (1986) (current version at Tex. R. Evid. 801(d)); Jackson v. State, 889 S.W.2d 615, 616 (Tex. App.--Houston [14th Dist.] 1994, pet. ref'd). Hearsay is inadmissible at trial except as provided by statute or by the rules of criminal evidence. See Tex. R. Crim. Evid. 802, 49 Tex. B. J. 230 (1986) (current version at Tex. R. Evid. 802); Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App.1990). Former rule 803(3) of the rules of criminal evidence provides for the admissibility of a "statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health)"; it does not permit a statement of memory or belief to prove the fact remembered or believed. Tex. R. Crim. Evid. 803(3), 49 Tex. B. J. 230 (1986) (current version at Tex. R. Evid. 803(3)).

In this case, Arriaga's statement consists of two distinct clauses. In the first, Arriaga states complainant told her she was going to fire appellant. Although appellant specifically objected to this clause at trial on the ground that the statement did not go to complainant's state of mind, she conceded the clause was a statement of what complainant was going to do. "Texas courts have admitted as an exception to the hearsay rule state of mind statements looking into the future." Norton v. State, 771 S.W.2d 160, 165 (Tex. App.--Texarkana 1989, pet. ref'd) (citations omitted); see also Blount v. Bordens, Inc., 892 S.W.2d 932, 937 (Tex. App.--Houston [1st Dist.] 1994) (noting "[c]courts have favored the admission of statements that show the declarant's then-existing intent to perform an act in the future"), rev'd on other grounds, 910 S.W.2d 931 (Tex. 1995). Moreover, complainant's intent to terminate appellant's employment was relevant to show the state of the relationship between complainant and appellant at the time of the shooting and to establish a motive for the shooting. Therefore, the statement was admissible as a state-of-mind exception to the hearsay rule.

The second clause of Arriaga's statement, that complainant thought appellant was embezzling from her company, does not fall within the rule 803(3) exception. Instead, the clause denotes complainant's belief about appellant's past actions, which rule 803(3) specifically prohibits. See Tex. R. Crim. Evid. 803(3), 49 Tex. B. J. 230 (1986) (current version at Tex. R. Evid. 803(3)). Therefore, the trial court abused its discretion in admitting the second clause of Arriaga's statement. Nevertheless, our review of the record in its entirety leads us to conclude that the error did not affect a substantial right of the appellant. See Tex. R. App. P. 44.2(b); 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 injurious effect or influence in determining the jury's verdict. See King, 953 S.W.2d at 271 (citing Kotteakos v. United States, 328 U.S. 750, 776 (1946)).

There are several reasons the admission of Arriaga's statement is harmless. First, her testimony regarding complainant's belief that appellant was embezzling funds was brief. The State did not offer any documentary evidence to support Arriaga's embezzlement allegation and did not pose any additional questions to Arriaga regarding the allegation.

Second, any potential harm was defused by other evidence, which the trial court admitted without proper objection. For instance, Quintanilla testified that he confronted appellant in complainant's presence about discrepancies in fan club records and his intent to pursue the matter legally. Perez also testified that he and complainant did not trust appellant because appellant could not give an adequate explanation to their questions regarding business matters. He further testified that complainant fired appellant.

Third, the State did not emphasize Arriaga's statement in closing argument at the guilt-innocence phase of trial. Instead, the prosecutor recounted Arriaga's testimony as follows:

"Also, Suzette testified to you that that [sic] Saturday before Selena was over for dinner, over at her house, and Selena told her that she was planning to fire the defendant because she thought that something was going on. But there was some evidence that she needed to finish that business in Mexico."

Even if the jurors considered Arriaga's statement, it is unlikely they would have placed any substantial weight on it. Accordingly, the admission of this evidence was not substantial or injurious.

Appellant, nevertheless, contends the admission of Perez's and Arriaga's testimony violated her rights under the Confrontation Clause of the United States and the Texas Constitutions. Hearsay, even if admissible under one of the evidentiary exceptions, may violate the Confrontation Clause of the Sixth Amendment to the United States Constitution and Article I, Section 10, of the Texas Constitution. See Idaho v. Wright, 497 U.S. 805, 817 (1990) (holding unless hearsay evidence either "falls within a firmly rooted hearsay exception" or is supported by a "showing of particularized guarantees of trustworthiness," it is inadmissible under the Confrontation Clause of the Sixth Amendment); Gonzales v. State, 818 S.W.2d 756, 762-63 (Tex. Crim. App. 1991) (noting Article I, Section 10, of Texas Constitution may afford greater right of confrontation than does Sixth Amendment to United States Constitution); Judd v. State, 923 S.W.2d 135, 138-39 (Tex. App.--Fort Worth 1996, pet. ref'd) (noting federal and state protection of confrontation).

Appellant, however, objected at trial on the ground of hearsay, not on the ground that the admission of hearsay violated her right of confrontation under either the state or federal constitutions. Therefore, appellant did not preserve error for appellate review. See Serrano, 936 S.W.2d at 390. Accordingly, we overrule appellant's ninth point of error.

B. Discovery of Extraneous Offense Evidence

In point of error seven, appellant contends the trial court abused its discretion and violated article 39.14 of the code of criminal procedure by denying her pretrial request for discovery of Selena fan club records, specifically those Quintanilla acquired shortly before complainant's death from the current fan club president. Appellant also argues the trial court erred by overruling her request for production of the documents as required by rule 611 of the rules of criminal evidence when Quintanilla testified about fan club records at trial. Because she was denied discovery of these documents, appellant claims she was denied due process of law, the right to confront and cross-examine witnesses, and the effective assistance of counsel when Quintanilla testified he believed appellant was embezzling funds from the fan club.

A defendant in a criminal trial does not have a general right to discovery of evidence in possession of the State. See Kinnamon v. State, 791 S.W.2d 84, 91 (Tex. Crim. App. 1990), overruled on other grounds by Cook v. State, 884 S.W.2d 485 (Tex. Crim. App. 1994). Article 39.14, however, provides limited discovery, independent of the constitutional right of access to exculpatory evidence. See id. Nevertheless, decisions involving pretrial discovery of evidence which is not exculpatory, mitigating, or privileged are within the discretion of the trial court. See id.

Article 39.14 provides that upon a timely motion showing good cause and notice to the other party, the trial court may order the State to provide discovery of designated documents, papers, written statements of the defendant, books, accounts, letters, photographs, objects, or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody, or control of the State or any of its agencies. See Tex. Code Crim. Proc. Ann. art. 39.14 (Vernon 1979). In this case, the trial court permitted appellant and the State limited discovery of complainant's business records that were in Quintanilla's possession by means of a subpoena duces tecum. At the trial court's request, Quintanilla turned over two boxes of business records to his attorney who remitted the boxes to the State. Quintanilla stated he thought the fan club records were in one of the boxes. The trial court inspected the boxes in camera and disclosed several documents to both parties, but did not disclose the fan club records to either party. Appellant tendered the documents in her possession to the trial court as Court Exhibit 1, but neither party ever offered the documents at trial. The undisclosed documents remaining in the two boxes after the trial court's inspection were not offered into evidence or placed in the trial court's file and are not before this Court.

As a general rule, evidence willfully withheld from disclosure under a discovery order should be excluded from evidence. See Pena v. State, 864 S.W.2d 147, 149 (Tex. App.--Waco 1993, no pet.) (noting same holding in Hollowell v. State, 571 S.W.2d 179, 180 (Tex. Crim. App. [Panel Op.] 1978)). There is no evidence the State willfully withheld fan club records from appellant. Moreover, there is no evidence the State ever possessed the records or had access to the records, apart from those the trial court disclosed to appellant. Instead, the record reflects that the trial court exerted its discretion in providing limited discovery of complainant's business records after reviewing the content of the boxes in camera. Because the documents and records were Quintanilla's private papers and not part of the State's file, we cannot say the trial court abused its discretion in disclosing the documents in Court Exhibit 1 to both parties and declining to disclose others.

Appellant also contends the trial court abused its discretion in denying her request for production of Selena fan club records when Quintanilla testified at trial. Former rule 611 of the Texas Rules of Criminal Evidence provides when a "witness uses a writing to refresh his memory for the purpose of testifying either while testifying or before testifying, an adverse party is entitled to have the writing produced at the hearing to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness." Tex. R. Crim. Evid. 611, 49 Tex. B. J. 228 (1986) (current version at Tex. R. Evid. 612). Nevertheless, appellant is only entitled to fan club records if Quintanilla actually used the records to refresh his memory. See Pondexter v. State, 942 S.W.2d 577, 582 (Tex. Crim. App. 1996), cert. denied, 118 S.Ct. 85 (1997). In this case, there is no evidence that Quintanilla used the fan club records to refresh his memory during or before his testimony. Outside the jury's presence, Quintanilla testified about the specific documents he thought were proof that appellant was embezzling funds, but he never stated he used those documents to refresh his memory at any time. Therefore, appellant's contention under rule 611 must fail. Because the trial court did not abuse its discretion in denying appellant's pretrial discovery request for fan club records and her request for the documents during trial, we overrule appellant's seventh point of error.

C. Limiting Instruction Extraneous Offense

In her twelveth point of error, appellant alleges the trial court did not properly inform the jury regarding the voluntariness of her conduct by overruling her objection to paragraph six of the jury charge and by refusing a requested instruction on the issue. "When reviewing charge errors, an appellate court must undertake a two-step review: first, the court must determine whether error actually exists in the charge, and second, the court must determine whether sufficient harm resulted from the error to require reversal." Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994).

In Defendant's Objections to the Charge, appellant specifically objected to paragraph six of the court's charge, which applies the law to the facts of the case.

"Now, if you believe from the evidence beyond a reasonable doubt that YOLANDA SALDIVAR on or about March 31, 1995, in Nueces County, Texas [sic] did then and there intentionally or knowingly cause the death of an individual, Selena Quintanilla Perez, by shooting Selena Quintanilla Perez with a firearm or that the defendant on or about March 31, 1995, in Nueces County, Texas [sic] did then and there with the intent to cause serious bodily injury to an individual, Selena Quintanilla Perez, do the act of shooting Selena Quintanilla Perez with a firearm; that this act was clearly dangerous to human life; and that this act caused the death of Selena Quintanilla Perez, but you further find from the evidence, or you have a reasonable doubt thereof, that the defendant did not voluntarily engage in said conduct as that term has been defined above, then you will find the defendant not guilty."

Appellant argued the paragraph did not adequately apply the law to the facts as proven in the case because it did not limit the jury's determination of voluntary conduct to her specific conduct at the time the gun discharged. Appellant asserted that the facts reflected, at the time of the fatal shot, she was threatening suicide by holding a loaded, cocked revolver to her head and the gun discharged as she waved it toward the door in her motel room.

Appellant requested the following instruction regarding voluntariness of her conduct:

"You are instructed that a person commits an offense only if she voluntarily engages in conduct, including an act, an omission or possession. Conduct is not rendered involuntary merely because the person did not intend the results of her conduct."

"Now, if you believe from the evidence beyond a reasonable doubt that on or about the 31st day of March, 1995, in Nueces County, Texas, that Selena Quintanilla Perez, suffered injuries from a firearm and that she died as a result thereof, but you further find from the evidence, or you have a reasonable doubt thereof, that YOLANDA SALDIVAR, while threatening suicide and holding a loaded, cocked firearm to her own head, waved the gun toward the door and in doing so the firearm involuntarily discharged thereby causing the injuries to Selena Quintanilla Perez, then you will find the defendant not guilty."

The trial court overruled the objection to the charge and refused the requested instruction.

On appeal, appellant asserts paragraph six is defective because it informs the jury not to consider voluntariness unless and until it is convinced appellant acted with the intent or knowledge that the death would occur, thus precluding a juror wavering on intent from considering the voluntariness issue. Appellant claims her requested instruction cures the defect because "it informs the jury that if it believes the death occurred, it may consider the voluntariness of the act which caused the death."

Proof of both a culpable mental state and a criminal act, committed voluntarily, are necessary to support criminal liability. See Alford v. State, 866 S.W.2d 619, 622 (Tex. Crim. App. 1993); see also Tex. Penal Code Ann. §§ 6.01; 6.02 (Vernon 1994). "[T]he issue of the voluntariness of one's conduct, or bodily movements, is separate from the issue of one's mental state." Adanandus v. State, 866 S.W.2d 210, 230 (Tex. Crim. App. 1993). Only if the evidence raises an issue regarding the voluntariness of the conduct charged must the trial court instruct the jury to acquit if there is reasonable doubt as to whether she voluntarily engaged in the conduct of which she is accused. See Brown v. State, 955 S.W.2d 276, 280 (Tex. Crim. App. 1997).

In this case, the trial court did not err in instructing the jury in paragraph six of the charge and in refusing appellant's requested instruction. The record reflects the State charged appellant with murder by shooting complainant with a firearm. The trial court instructed the jury to find appellant guilty if it found beyond a reasonable doubt that appellant committed the act of shooting complainant with a firearm with the requisite mental state. It further instructed the jury to acquit appellant if it found she did not voluntarily shoot complainant with a firearm. The charge did not condition the jury's consideration of the voluntariness of the act of shooting complainant on whether it also found appellant had the culpable mental state to commit the act. Appellant's requested instruction, on the other hand, summarizes facts derived from trial testimony, which article 36.14 specifically prohibits. See Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 1998). Accordingly, we overrule appellant's twelveth point of error.

D. Lost Exhibits

In her seventeenth point of error, appellant contends she is entitled to a new trial because original documents, specifically those related to the extraneous offense of embezzlement tendered to the trial court at a pretrial hearing for in camera inspection, have been lost or destroyed without her fault. At the time of appellant's trial, Rule 50(e) of the Texas Rules of Appellate Procedure provided as follows:

"When the record or any portion thereof is lost or destroyed it may be substituted in the trial court and when so substituted the record may be prepared and transmitted to the appellate court as in other cases. If the appellant has made a timely request for a statement of facts, but the court reporter's notes and records have been lost or destroyed without appellant's fault, the appellant is entitled to a new trial unless the parties agree on a statement of facts." Tex. R. App. P. 50(e), 49 Tex. B.J. 345 (1986) (current version at Tex. R. App. P. 34.5(e), 34.6(f)); Gomez v. State, 962 S.W.2d 572, 574 (Tex. Crim. App. 1998).

Appellant believed the State planned to charge her with embezzlement or introduce evidence at the murder trial that she was embezzling funds from the Selena fan club. To prepare her defense, appellant filed a discovery motion requesting the State to produce documents and papers that the State obtained from appellant, and records, documents, or summaries upon which a claim can be made that appellant was embezzling money from complainant. She sought the production of similar documents from complainant's father, Abraham Quintanilla, by means of a subpoenas duces tecum.

Quintanilla filed a motion to quash the subpoenas. After an evidentiary hearing, the trial court ordered Quintanilla to turn over records regarding Selena business entities to the trial court. Quintanilla turned over two boxes of documents to his attorney, who remitted the boxes to the trial court.

A few weeks later, at a hearing on another motion, the trial court granted appellant's request that the State produce documents that were obtained from appellant, except for papers belonging to Quintanilla. At the same hearing, the trial court denied appellant's request for documents or summaries upon which a claim could be made that appellant was embezzling money. Appellant then requested the trial court to seal the two boxes of documents obtained from Quintanilla if the court was not going to inspect the documents. The trial court took the request under consideration and indicated that it would inspect, in camera, the records from Quintanilla. A month later, at another pretrial hearing, the trial court indicated that it had reviewed two boxes of Quintanilla's documents and would turn over one or more documents to the State and to appellant.

At trial, Quintanilla testified he believed appellant was embezzling funds from the Selena fan club and confronted her about his suspicions. Outside the presence of the jury, Quintanilla stated he based this belief on a letter appellant had written to Bank One of San Antonio and on forged checks, which were payable to appellant. He said he gave the fan club records to his attorney and he thought his attorney gave them to the trial court. He further stated that of the two boxes turned over to the court, one box contained the checks and the letter appellant wrote and the other box contained records of another Selena business entity.

Under oath, one of appellant's trial attorneys testified appellant had not received Selena fan club records, although appellant had received some records of another Selena business entity. The trial court stated it had inspected the two boxes of documents on two occasions and turned over to appellant all matters to which the trial court believed she was entitled. The trial court also indicated it reviewed other fan club records that it declined to turn over to appellant. Following a brief recess, appellant's trial counsel tendered the records that the trial court had provided to appellant as Court Exhibit 1, but the documents were not admitted into evidence.

The trial court sentenced appellant on October 25, 1995. Appellant filed a Motion for New Trial and Arrest of Judgment on November 22, 1995, alleging she was denied the effective assistance of counsel because the trial court refused to allow discovery of financial records relating to allegations of embezzlement. On December 5, 1995, Quintanilla appeared on a television show with the forged checks and the Bank One letter to support his claim that appellant was embezzling funds from the Selena fan club. A videotape of the television program and an English translation of the transcript of the program were admitted as defense exhibits. The trial court denied the motion.

On August 3, 1996, appellant filed with this Court her third motion to supplement the record with the originals of all sealed records that were produced by the State and complainant's father for in camera inspection. On August 8, 1996, this Court ordered the trial court to certify and transmit (1) all sealed records produced by the State and by complainant's father for in camera inspection and (2) all records relating to embezzlement charges, which the trial court turned over to appellant and were admitted as Court Exhibit 1. The trial court clerk informed this Court that appellant's criminal file and exhibit file did not contain the documents requested. On October 15, 1996, appellant filed a motion to supplement the record with affidavits of various court personnel stating the sealed records produced for in camera inspection were not in the trial court's possession. Appellant alleged the documents had been lost or destroyed without her fault. On November 14, 1996, the State filed a motion to supplement the record with affidavits, one of which stated that Court Exhibit 1 had been located and forwarded to this Court. Because other documents produced by the State and by complainant's father for in camera inspection had not been located, we ordered the trial court to conduct an evidentiary hearing to determine whether any portions of the record were missing and whether they were missing without appellant's fault. After an evidentiary hearing, the trial court made the following findings of fact and Conclusions of law:

FINDINGS OF FACT

1. After reviewing those portions of the statement of facts and transcript submitted to this Court as Dx 1-8, the Court finds that those portions of the record do not support Appellant's contention that some "exhibits" have been lost or destroyed. Specifically, though there are several references in the statement of facts and transcript to (1) the documents subpoenaed from Abraham Quintanilla, (2) the mental health records of Rosario Garza, (3) the records of attorney Albert Huerta, and (4) a "manager for life" contract, Appellant never made these documents part of the trial record for appellate review.

2. No "manager for life" contract ever existed.

3. Other than the documents subpoenaed from Abraham Quintanilla and Court Exhibit No. 1, appellant made no inquiry as to any other missing documents prior to the hearing.

4. The clerks of the 214th and 228th District Courts never had custody or possession of whatever it is that appellant contends is lost or destroyed. Appellant never requested that they make it a part of the record.

5. The official court reporters of the 214th and 228th District Courts never had custody or possession of whatever it is that Appellant contends is lost or destroyed. Other than Court Exhibit No. 1, these items were never marked, offered or admitted into evidence.

6. Court Exhibit No. 1 has not been lost or destroyed.

7. The documents submitted to the Court by Sergeant Joel Castandeda for in camera inspection, not all of which are in Court Exhibit No. 1, were given to Appellant's counsel.

8. All exhibits which were properly marked, offered and admitted into the record are accounted for and are in the custody of the Fourteenth Court of Appeals.

9. Whatever it is that Appellant contends is lost or destroyed, other than Court Exhibit No. 1, was never properly marked for identification or admitted into evidence.

10. Appellant never made a formal or informal bill of exception regarding whatever it is that Appellant contends is lost or destroyed.

11. The great bulk of material that remained in the courtroom and the surrounding area after the trial was removed to the office of Appellant' counsel by a delivery service.

12. Exact copies of the documents subpoenaed from Abraham Quintanilla have been substituted in their entirety for the purposes of this hearing only.

13. The Court instructed a clerk and/or other court personnel to make the documents subpoenaed from Abraham Quintanilla a part of the record. This specific instruction is not part of the record. Both clerks and the official court reporter of the 228th District Court specifically recall not having been instructed to do this. The Court learned at this hearing that it is the custom and practice in Harris County to require a written order to facilitate the inclusion of in camera documents in the Court's file.

14. Appellant made a timely request for a complete record.

CONCLUSION OF LAW

1. Because Tex. R. App. P. 50(d) places the burden squarely on Appellant, rather than this Court, to see that a sufficient record is presented to show error requiring reversal, Appellant is not entitled to a new trial pursuant to Tex. R. App. P. 50(e) because whatever it is that Appellant contends is lost or destroyed were not "admitted exhibits." [citation omitted]

2. There exists a paucity of appellate and/or statutory guidelines for the proper handling of in camera records.

Appellant does not specifically dispute the trial court's findings of fact and Conclusions of law on appeal. Instead, she makes a general assertion that some of the original papers and exhibits on file or admitted at trial were lost or destroyed without her fault. After reviewing the record, we perceive nothing that shows the trial court abused its discretion in making its findings of fact or drawing incorrect Conclusions of law from the findings of fact. See Wynne v. State, 831 S.W.2d 513, 523 (Tex. App.--Amarillo 1992, pet. ref'd) (reviewing basic argument and unargued points). None of the documents that form the basis of appellant's complaint were admitted as evidence or placed in the trial court's file; consequently, none of the documents were ever part of the record. Therefore, rule 50(e) affords appellant no relief. Accordingly, we overrule appellant's seventeenth point of error.

VI. Comment on Failure to Testify

In point of error fourteen, appellant contends the trial court committed reversible error in overruling her objections and denying her motion for mistrial based on the prosecutor's comments on her failure to testify. "The purpose of closing argument is to facilitate the jury in properly analyzing the evidence presented at trial so that it may arrive at a just and reasonable Conclusion based on the evidence alone, and not on any fact not admitted in evidence." Campbell v. State, 610 S.W.2d 754, 756 (Tex. Crim. App. 1980). To be proper, jury argument must encompass one or more of the following: (1) summation of the evidence presented at trial; (2) reasonable deduction from that evidence; (3) answer to opposing counsel's argument; or (4) a plea for law enforcement. See Cockrell v. State, 933 S.W.2d 73, 97 (Tex. Crim. App. 1996), cert. denied, 117 S.Ct. 1447 (1997).

A comment on the defendant's failure to testify violates the privilege against self-incrimination contained in the Fifth Amendment to the United States, Article I, Section 10 of the Texas Constitution, and Article 38.08 of the Texas Code of Criminal Procedure. See U.S. Const. art. V; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 1979). To determine whether a prosecutor's remark constituted an impermissible reference to an accused's failure to testify, we consider whether the offending language, when viewed from the jury's standpoint, was manifestly intended or of such a character that the jury would necessarily and naturally take it as a comment on the accused's failure to testify. See Montoya v. State, 744 S.W.2d 15, 35 (Tex. Crim. App. 1987), overruled on other grounds by Cockrell, 933 S.W.2d at 89. It is not sufficient that the offending language might be construed as an implied or indirect allusion to the defendant's failure to testify; the implication that the offending language made reference to the failure to testify must be a necessary one. See Swallow v. State, 829 S.W.2d 223, 225 (Tex. Crim. App. 1992). On the other hand, "[l]anguage that can reasonably be construed to refer to a failure to present evidence other than from the defendant's own testimony does not amount to comment on failure to testify." Id. In applying this standard, we consider the facts and circumstances of each case to determine whether the language used was an impermissible comment. See Montoya, 744 S.W.2d at 35.

Appellant complains of the following two arguments, in which the prosecutor commented on appellant's failure to give an adequate explanation for her actions:

MR. SKURKA: "Mr. Quintanilla suspected her [appellant] of a lot of things and confronted her with it in front of Selena and in front of Suzette. What's happened? What's happened? She was never able to give a satisfactory explanation, she could never explain why these people that sent in their money hadn't gotten anything."

"* * * * *"

MR. SKURKA: "And, again, you've got a registered nurse here, folks, somebody that knows about reporting this kind of stuff and documenting this evidence and everything. How come she doesn't report it down in Mexico? How come she doesn't do that? How come she drives her sister back to San Antonio and then comes back to Corpus and never reports it?"

The trial court overruled appellant's objection to each argument.

Neither argument, in this case, was a comment on appellant's failure to testify at trial. The first argument was a summation of the evidence. Quintanilla, Arriaga, and Perez testified that appellant was unable to give an adequate explanation for fan club discrepancies and other document discrepancies when confronted with their suspicions.

The second argument was a rhetorical question based upon a reasonable deduction from the evidence. "Rhetorical questions are generally within the scope of jury argument so long as they are based upon a reasonable deduction from the evidence." Wolfe v. State, 917 S.W.2d 270, 280 (Tex. Crim. App. 1996). A rhetorical question, however, may constitute an impermissible comment on the failure to testify if it is accompanied by an statement pointing to the lack of an explanation. See id. In this case, the prosecutor's argument was based on a reasonable deduction from the evidence. Patricia Norma Biggs, the director of the emergency room at Doctor's Regional Medical Center in Corpus Christi, testified that complainant brought appellant to the hospital because appellant said she had been raped by two men the day before in Mexico. The hospital was unable to assist appellant in reporting the rape because it occurred in Mexico. As a courtesy, Biggs arranged for evidence to be collected at the University Medical Center in San Antonio because appellant was from San Antonio. From this testimony, the prosecutor questioned why appellant, who was a registered nurse, waited to report the rape. The prosecutor did not say, however, that an explanation had not been given. In this instance, the prosecutor properly used a rhetorical question to persuade the jury that the rape and appellant's theory of the case were untrue. *fn12

Appellant also complains of the following argument: MR. VALDEZ: "You know why he said things like that? There's a reason for it. To take your mind off the real issue in this case, take you mind off the real person who's at fault, right there. The one who stands up defiantly every time they point to her, she stands up defiantly. She doesn't say anything but she looks at you and she's very defiant to everybody who points at her, that's the one who's responsible and she's guilty."

Appellant, however, did not object to the argument. A defendant's failure to object to a jury argument forfeits her right to complain about the argument on appeal. See Tex. R. App. P. 33.1(a); Valencia v. State, 946 S.W.2d 81, 82-83 (Tex. Crim. App. 1997) (stating pertinent question in reviewing jury argument is whether defendant objected and pursued the objection to an adverse ruling); Cockrell, 933 S.W.2d at 89 (holding rule of appellate procedure undermines exception that appellant may object first time on appeal about an erroneous jury argument not cured by an instruction to disregard); Campos v. State, 946 S.W.2d 414, 413-18 (Tex. App.--Houston [14th Dist.] 1997, no pet.)(discussing rejection by court of criminal appeals of exception to general rule regarding prejudicial jury argument). Because appellant did not object, she waived any possible impropriety of this argument.

Finally, appellant argues the trial court erred in denying her request for a mistrial after sustaining her objection and instructing the jury to disregard the following argument:

MR. VALDEZ: "And the only thing that he has going is that he says the tapes prove it was an accident, they don't. He says Robert Garza proves it was an accident, it doesn't; it's not any evidence of accident. What kind of evidence is there in this case? What kind of evidence is there that this was an accident? When you think about it there isn't any. There is no evidence. The only evidence so far are the tapes, and on the tapes the defendant says she didn't intend to do it, that the gun went off accidentally. That's the evidence."

"Now, if that proved that a shooting was an accident, we'd never have any murder prosecutions. Never. If anybody who shot somebody else just had to come in and say it was an accident and that proved it, we couldn't prosecute anybody. That's the only evidence they have besides the Ranger who says he heard her say that the gun went off. Once again --."

The record reflects that during closing arguments, one of appellant's trial attorneys argued the State could not prove its case against appellant because the testimony of Robert Garza and the hostage negotiation tapes revealed the shooting was an accident. Appellant's trial attorney argued the State had attempted to minimize the importance of the tapes and Garza's testimony at trial because they were devastating to its case. He further argued Garza's testimony and the tapes were credible evidence because the State could not present evidence without vouching for its credibility. The trial court overruled the State's objection that appellant's trial attorney misstated the law. Appellant's trial attorney then argued Garza's testimony and the tapes were credible, as follows:

"They embrace it, and so they brought you by embracing it evidence that has to create a reasonable doubt. Because credible evidence on that tape time and time again consistently, unrehearsed, in an emotional state, not planned, not trying to excuse, says: This was an accident, it was unintentional, I didn't intend to hurt her, I didn't intend to shoot her. They brought you and embraced credible evidence, which cannot now be discounted by you. They may not like it, but they chose, because of that tactic, they chose to put themselves in a position where each of you can walk back there and say, "Yes. There is a reasonable doubt. I don't even really have to go any further than that because there is a reasonable doubt." And you say not guilty when you do that and you come right back."

After reviewing the record, we find the prosecutor's comments, in this instance, were not outside the bounds of proper jury argument. Instead, the prosecutor's comments were an answer to the argument of opposing counsel and a comment on appellant's failure to provide additional evidence to support her theory that the shooting was accidental.

Even if the prosecutor's argument could be construed as a comment on appellant's failure to testify, the trial court's instruction to disregard the statement cured any error. See Dinkins v. State, 894 S.W.2d at 357; see also Tex. R. App. P. 44.2(a). Because the trial court did not err in overruling appellant's objections to comments made by the prosecutor during closing arguments and did not err in denying appellant's motion for mistrial, we overrule appellant's fourteenth point of error.

VII. Prejudicial Opinion Testimony

In her thirteenth point of error, appellant maintains the trial court abused its discretion in admitting irrelevant and prejudicial opinion evidence during the punishment phase of trial. Appellant specifically objects to the testimony of Dr. Fastino Gomez, a San Antonio dermatologist. Outside the jury's presence, Dr. Gomez testified that he employed appellant twelve years ago as a medical receptionist/bookkeeper but he terminated appellant's employment when he discovered she misappropriated $9,200 from his business. Over objection, Dr. Gomez testified before the jury that in his opinion, appellant was not a law-abiding citizen. On cross-examination, he admitted he had not seen appellant in ten years.

Appellant argues Dr. Gomez's testimony should be inadmissible because his opinion is based on an experience that occurred twelve years ago. Appellant acknowledges that former rules 404 and 405 of the rules of criminal evidence regarding character evidence are silent as to the remoteness of the underlying events giving rise to opinion testimony. See Tex. R. Crim. Evid. 404, 49 Tex. B. J. 223 (1986) (current version at Tex. R. Evid. 404); Tex. R. Crim. Evid. 405, 53 Tex. B. J. 919 (1990) (current version at Tex. R. Evid. 405). Nevertheless, she contends the ten-year rule governing impeachment evidence under former rule 609(b) should apply to character evidence admitted for punishment purposes because an opinion based on a remote transgression is a poor indicator of present character. See Tex. R. Crim. Evid. 609(b), 49 Tex. B. J. 227 (1986) (current version at Tex. R. Evid. 609(b)).

A plain reading of section 3(a) of article 37.07 does not invoke the restriction that appellant invites us to apply. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (Vernon Supp. 1998). Article 37.07 simply does "not address the effects, if any, of a statute of limitations for previous criminal offenses or the staleness of bad acts." Tow v. State, 953 S.W.2d 546, 547-48 (Tex. App.-Fort Worth 1997, no pet.). Moreover, appellant cites no authority, nor have we found any, to support a holding restricting the admissibility of opinion evidence during the punishment phase to opinion based on offenses or acts less than ten years old. To the contrary, the plain language of the statute supports a broad interpretation in favor of the admissibility of all relevant evidence, unless the probative value of the evidence is substantially outweighed by its prejudicial effect. Taylor v. State, 970 S.W.2d 98, 102-03 (Tex. App.-Fort Worth 1998, pet. ref'd); Tow, 953 S.W.2d at 547-48. Article 37.07 expressly provides during the punishment phase, the State or the defendant may offer evidence as to any matter the trial court deems relevant to sentencing, including, but not limited to, the defendant's general reputation, her character, and an opinion regarding her character. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (Vernon Supp. 1997) (emphasis added).

Moreover, section 3(a) of article 37.07 empowers the trial court with authority on the threshold issue of admissibility of relevant evidence during the punishment phase of a trial. An appellate court reviews such evidence under an abuse of discretion standard. See Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996). Therefore, as long as the trial court's ruling was at least within the zone of reasonable disagreement, we will not intercede. See Montgomery v. State, 810 S.W.2d at 391 (recognizing that reasonable men may disagree whether in common experience a particular inference is available). A trial court abuses its discretion if by no reasonable perception of common experience it admits evidence that is not relevant by any reasonable interpretation or if what appears to be common experience is really no more than the operation of a common prejudice, not borne out in reason. Id.

Article IV of the former Texas Rules of Criminal Evidence addresses relevancy and its limits. Former rule 404(c) of Article IV provides that the prosecution or the accused may offer evidence of the accused's prior criminal record or other character evidence during the penalty phase of trial. See Tex. R. Crim. Evid. 404(c), 49 Tex. B. J. 223 (1986). Former rule 405(a) permits either party to provide proof of character by reputation testimony or opinion testimony conditioned only on the witness's familiarity with the reputation of the accused or with the underlying facts or information upon which the opinion is based, prior to the date of the offense. See Tex. R. Crim. Evid. 405(a), 53 Tex. B. J. 919 (1990) (current version at 405(a)). In either case, the trial court may permit inquiry into relevant specific instances of conduct on cross-examination. Id.

In this case, the trial court held a hearing outside the jury's presence to consider the relevancy and admissibility of Dr. Gomez's testimony. After hearing Gomez's testimony of the facts underlying his opinion and considering the argument of counsel, the trial court permitted Gomez to tell the jury that in his opinion appellant was not a law-abiding citizen. We find the trial court's ruling was at least within the "zone of reasonable disagreement" under the applicable rules of evidence; thus we will not intercede. See Montgomery, 810 S.W.2d at 391. Appellant's thirteenth point of error is overruled.

VIII. Instruction on Sudden Passion with Adequate Cause

In her fifteenth and sixteenth points of error, appellant claims the trial court erred in denying her request for an instruction and a special issue regarding sudden passion as permitted under section 19.02(d) of the Texas Penal Code. Section 19.02(d) provides in relevant part as follows:

"At the punishment stage of a trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree." Tex. Penal Code Ann. § 19.02(d) (Vernon 1994).

"The existence of sudden passion is simply a mitigating factor relevant to punishment, and the burden of proving sudden passion by a preponderance of the evidence during the punishment phase rests on the defendant." Rainey v. State, 949 S.W.2d 537, 541 (Tex. App.--Austin 1997, pet. ref'd), petition for cert. filed, (U.S. April 24, 1998) (No. 98-5002). The current definitions of sudden passion and adequate cause are identical to those set forth in the former voluntary manslaughter statute. Compare Tex. Penal Code Ann. § 19.02(a) with Act of May 24, 1973, 63rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 913 (former Tex. Penal Code Ann. § 19.04(b), (c)) repealed by Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3614. Therefore, we rely on prior decisions under the voluntary manslaughter law for guidance. See Roberts v. State, 590 S.W.2d 498, 501 (Tex. Crim. App. [Panel Op.] 1979). An accused is entitled to an instruction on every defensive issue raised by the evidence whether the evidence is strong, weak, contradicted, unimpeached, or unbelievable. See Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993). Consequently, if the record reflects any evidence that appellant acted under the immediate influence of sudden passion arising from an adequate cause, the trial court should submit an instruction on this mitigating circumstance. See Perez v. State, 940 S.W.2d 820, 822 (Tex. App.--Waco 1997, no pet.).

Appellant maintains her written statement raises the issue of whether she caused complainant's death under the immediate influence of sudden passion arising from adequate cause. Appellant contends she became enraged after complainant told her that complainant's father accused her of embezzlement and sexual deviance and subsequently argued with complainant, which immediately escalated into a killing.

Appellant attested in the statement to the following, in pertinent part: "As she [complainant] was driving me back to the motel in her truck, she told me that her father had told her that the papers I had brought from Monterrey were wrong and that her father had said that I was a lesbian. I got mad and I told her that I did not want to work for her anymore. We got to the motel and we both went inside the room and we both argued because I wanted to quit working for her. I gave her everything that I had, the cellular phone and the bank files as we argued. She started dumping all the files on the bed from the briefcase or handbag that I had. I took the gun from my purse which I had bought about two weeks ago in San Antonio for $250.00. . . . I took the gun from my purse and Selena started walking toward the door which was opened. I pulled the hammer back and I shot at her as she was walking towards the door which was open."

"Sudden passion" means passion directly caused by and arising out of provocation by the victim or another acting with the victim, which arises at the time of the offense and is not solely the result of former provocation. Tex. Penal Code Ann. § 19.02(a)(2) (Vernon 1994). In other words, sudden passion is "an excited and agitated mind at the time of the killing caused by an act of the deceased." Hobson v. State, 644 S.W.2d 473, 478 (Tex. Crim. App.1983); Powers v. State, 757 S.W.2d 88, 90 (Tex. App.--Houston [14th Dist.] 1988, pet. ref'd). "Adequate cause" is cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection. Tex. Penal Code Ann. § 19.02(a)(1).

In this case, appellant's written statement does not raise the issue of sudden passion arising from adequate cause. While the statement shows that complainant provoked appellant's anger by telling her about Quintanilla's accusations and that they argued over her continued employment, it does not reflect evidence of the extreme emotional and psychological state defining sudden passion or adequate cause. Shooting an employer and friend in the back as she walks away from an argument is not an objectively common response in an ordinary reasonable person. "The murderous acts of one not of ordinary temper or whose response to the alleged cause is not objectively common in the ordinary, reasonable person does not support a voluntary manslaughter issue." Willis v. State, 936 S.W.2d 302, 308 (Tex. App.--Tyler 1996, pet. ref'd); Lopez v. State, 716 S.W.2d 127, 129 (Tex. App.--El Paso 1986, pet. ref'd). "In other words, voluntary manslaughter is not available to one whose actual emotional responses are aberrational in this society." Willis, 936 S.W.2d at 308.

Because appellant's written statement did not raise the issue of sudden passion from adequate cause, the trial court did not err in overruling her objection to the jury charge and refusing her requested instruction on the issue. Accordingly, we overrule appellant's fifteenth and sixteenth points of error.

Finding no reversible error, we affirm the judgment of the court below.

Publish - Tex. R. App. P. 47.3(b).

 

 

 
 
 
 
contact