Panel consists of Chief Justice Murphy and Justices Hudson and
Sears. *fn 13
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
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
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.
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
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.
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.
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.),
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
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
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,
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
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?
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.
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
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
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.
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
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
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
*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
*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
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,
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
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
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
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
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
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.
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
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
955 S.W.2d 276, 280 (Tex. Crim. App.
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.
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
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
6. Court Exhibit No. 1 has not been lost or
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
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
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.
933 S.W.2d 73, 97 (Tex. Crim. App. 1996),
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
"* * * * *"
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
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
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.
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
"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)
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
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
"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).