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Texas executes man who beat baby boy to death in 2001

By Corrie MacLaggan - Reuters.com

Mar 28, 2012

(Reuters) - A Texas man was executed on Wednesday by lethal injection for beating a 10-month-old boy to death in Dallas in 2001, state officials said.

Jesse Hernandez was babysitting 10-month-old Karlos Borja and Karlos' 4-year-old sister while their mother was at work when he assaulted both children. The girl survived injuries to her face and head, but her brother died a week after the beating. Karlos had a skull fracture and bruises on his forehead, temple, abdomen and genitalia, according to autopsy records described by the Dallas Morning News at the time of the trial.

Hernandez, a convicted child sex offender, said in a written statement that the children "were being very bad by crying a lot for nothing" and that he "just exploded and hit them with the back of my hand not realizing that I was hurting them," according to a summary by the Texas attorney general's office of the evidence presented at trial. During an interview with police, Hernandez said that he might have hit Karlos with a flashlight, but that was not part of the written statement, the summary said. Karlos' sister told police that "Jesse" hit her and her brother with a flashlight, according to a Dallas Morning News article in 2001.

Hernandez told the newspaper that police forced him to sign a confession (though police said that the confession was voluntary). "I didn't do it," Hernandez said, according to the Morning News. "I didn't hurt them like that."

Hernandez, 47, was the fourth person executed this year in Texas and the 12th inmate put to death this year in the United States. Texas executed 13 people in 2011 and has put to death more than four times as many people as any other state since the United States reinstated the death penalty in 1976, according to the Death Penalty Information Center.

"God bless everyone; continue to walk with God," Hernandez said as part of his final statement, according to Jason Clark, a spokesman for the Texas Department of Criminal Justice. Clark said Hernandez also yelled "Go Cowboys," an apparent reference to the Dallas Cowboys football team.

Child sex offender put to death

By Cody Stark - ItemOnline.com

March 28, 2012

HUNTSVILLE — A Dallas County man who was supposed to be taking care of an 10-month-old boy, but instead fatally beat him with a flashlight, was executed Wednesday night. Jesse Joe Hernandez, a 47-year-old convicted child sex offender, was pronounced dead at 6:18 p.m., 10 minutes after the lethal dose was administered into his body.

Hernandez was found guilty and sentenced to die by lethal injection for the murder of Karlos Borjas 11 years ago. Hernandez, who was staying with his girlfriend and the boy’s mother at the time, was supposed to be babysitting Borjas and his 4-year-old sister on the night of April 11, 2001. Hernandez was convicted of murder for hitting the boy, who suffered a skull fracture, and his sister with a flashlight. The girl survived, but Borjas was taken off life support a week later and died.

Wednesday night, Hernandez was in a cheerful mood, addressing friends through the glass as he lay strapped to the gurney. “Tell my son I love him very much. God bless everybody,” he said. “Continue to walk with God. Go Cowboys!”

During the murder trial, jurors saw photos of the badly beaten boy connected to tubes in the hospital and injuries his sister suffered. They also learned that Hernandez had a previous conviction for molesting a child and drug possession, had beat his ex-wife with a baseball bat, burned a girlfriend’s child with cigarettes and was found with a shank while locked up in jail.

Hernandez thanked the witnesses who were there to see him executed Wednesday night. “Thank you. I can feel it. I taste it. It is not bad,” he said before breathing heavily and losing consciousness.

Court records showed Hernandez and his wife of six years had been living for about three days with the two children and their 22-year-old mother in a Dallas house that had no running water. Hernandez and his wife were to watch the children while their mother was working as a waitress. On the night the children were attacked, Hernandez’s wife left to run some errands. When she returned he told her the kids were sleeping and not to disturb them. Hours later, after their mother returned from work, the girl complained her head was hurting and was taken to a hospital. In her absence, Hernandez’s wife discovered Borjas’ injuries and called paramedics. Police then were notified.

Hernandez’s DNA was found in Borjas’ blood on a pillowcase and on the child’s clothing. The girl drew stick figures for police to help describe her attack. Hernandez denied beating the children but later told a detective he may have hit the boy with a flashlight. He did not include the flashlight reference in a written confession in which he said he “just exploded and hit them with the back of (his) hand.” “They were being very bad by crying a lot for nothing,” Hernandez wrote.

The slain boy’s mother subsequently lost legal custody of her surviving daughter to the girl’s grandmother.

Texas man executed for 10-month-old boy's death

By Michael Graczyk - Associated Press

The Houston Chronicle

March 28, 2012

HUNTSVILLE, Texas (AP) — A convicted child sex offender was executed Wednesday for the beating death of a 10-month-old boy he was baby-sitting at a home in Dallas.

Jesse Joe Hernandez smiled and laughed at times before receiving a lethal injection for the slaying of Karlos Borja 11 years ago. "God bless everybody. Continue to walk with God," the 47-year-old Hernandez said. Moments later, he shouted "Go Cowboys!" in honor of his favorite football team.

As the drugs took effect, the condemned man repeated his appreciation for those he knew who had gathered to witness the execution. "Love y'all, man," Hernandez said. "... Thank you. I can feel it, taste it. It's not bad." He took about 10 deep breaths, which grew progressively weaker until he was no longer moving. Ten minutes later, at 6:18 p.m. CDT, he was pronounced dead. No one related to the slain child attended the execution, the fourth this year in Texas. It was carried out about two hours after the U.S. Supreme Court denied last-ditch appeals for Hernandez.

Ten-month-old Karlos was taken to a Dallas hospital in April 2001 with a skull fracture and bruises to his head, thigh and abdomen. A week later, he was taken off life support and died. His 4-year-old sister had similar beating injuries to her head, ears and eyes but survived. Hernandez's DNA was found in Karlos' blood on a pillowcase and on the child's clothing. The boy's sister drew stick figures for detectives to help describe her attack.

Hernandez denied beating the children but later told a detective he may have hit the boy with a flashlight. He did not include the flashlight reference in a written confession in which he said he "just exploded" and struck them with the back of his hand. "They were being very bad by crying a lot for nothing," Hernandez wrote.

Howard Blackmon, the former assistant district attorney in Dallas County who prosecuted Hernandez, recalled seeing photos of the badly bruised boy connected to tubes while in the hospital and his sister's red, bruised forehead. "I don't think Hernandez admitted to any intent to kill," he said. "He did admit to striking."

Jurors saw those images and also learned that Hernandez had a previous conviction for molesting a child and drug possession, had beat his ex-wife with a baseball bat, burned a girlfriend's child with cigarettes and was found with a shank while locked up in jail.

Court records showed Hernandez and his wife of six years had been living with the two children and their 22-year-old mother about three days in a Dallas house that had no running water. Hernandez and his wife were to watch the children while their mother was working as a waitress. On April 11, 2001, Hernandez's wife left to run some errands. When she returned he told her the kids were sleeping and not to disturb them. Hours later, after their mother returned from work, the girl complained her head was hurting and the mother took her to a hospital. While they were gone, Hernandez's wife checked on Karlos, discovered his injuries and called paramedics. Police were then notified.

In trying to stop the execution, Hernandez's attorneys unsuccessfully argued that his trial lawyers were deficient because they didn't pursue evidence that the boy was prematurely removed from life support and had toxic levels of the drug pentobarbital in his blood. The same barbiturate is used in the execution process in Texas. The attorneys also claimed an initial appeals lawyer did not investigate the case beyond the trial record and that failure cost Hernandez his lone opportunity to raise substantive legal claims following his conviction.

Brad Levenson, director of the Texas Office of Capital Writs, said a more thorough investigation could have shown Hernandez wasn't responsible for the child's death. The Texas attorney general's office opposed any delay, questioning whether the high court even had jurisdiction in the case because constitutional claims weren't raised earlier in state courts.

At least six other condemned Texas inmates have execution dates scheduled for the coming months.

Jesse Joe Hernandez

ProDeathPenalty.com

Misty Leverett and her children, Karlos, 10 months old and Melodi, 4, were living with Jesse Joe Hernandez, his wife Mary Rojas, their young son, Joshua, and Gilbert Gomez. On the day of the assaults, Leverett went to work and left the children in the care of Hernandez and Rojas. Rojas testified that after Leverett left for work around noon, she stayed home with the children while Hernandez and Gomez left to run errands. When Hernandez and Gomez returned about two hours later, Rojas left for her sister-in-law’s house and was gone approximately thirty to forty-five minutes. Rojas testified that when she got home, she heard Hernandez screaming at Joshua. She picked him up and took him to the room she shared with Hernandez. Rojas asked where Karlos and Melodi were, and Hernandez replied that they were sleeping in the next room.

Rojas then went into her room and relaxed with Joshua. Later, when she heard Hernandez preparing a bottle, she told Hernandez she was going to go into the room where Karlos and Melodi where sleeping. Hernandez instructed Rojas not to enter the room for fear she would wake them up. Despite having seen blood stains on Hernandez’s shirt, Rojas waited until Leverett got home from work to check on the children. Levertt testified that when she arrived home, she went into the dark room she shared with the children and found Melodi complaining that her head hurt. Rojas and Leverett took Melodi out into the kitchen and saw that her head was swollen with “red splotches." Alarmed, Leverett decided to take Melodi to the hospital.

After they left, Rojas checked on Karlos and noticed his lips were swollen. She determined Karlos was badly hurt and took Karlos and Joshua down the street to her sister-in-law’s house to call an ambulance. When Leverett and Melodi arrived at the hospital, hospital workers asked Leverett if she had any other children. When she replied that she did, the hospital workers instructed her to return home and get her son immediately. Leverett testified that when she returned home, Hernandez was alone and he told her that Karlos was at his sister’s house. Leverett asked Hernandez to take her there but he refused. Moments later, police arrived and informed Leverett that Karlos had been rushed to Children’s Hospital by ambulance where he later died.

When police began investigating the assault on Karlos, they went to Hernandez’s home and discovered that Hernandez had some outstanding warrants, arrested him, and transported him to the police station. While there, Detective Warren Breedlove spoke with Hernandez to obtain some general information and inquire about the injuries to the children. Hernandez gave an affidavit denying any knowledge of what happened to Karlos and Melodi and was later transported to the county jail. After police spoke with Karlos’ doctor and with Melodi, Hernandez became a suspect in the assaults.

Breedlove met with Hernandez, read him his Miranda warnings and began an interview. Over approximately an hour and a half, Hernandez repeatedly admitted and then denied striking the children. Breedlove asked Hernandez about a flashlight found at the scene and Hernandez admitted he may have hit Karlos with the flashlight. Detective Lesher took over the interview after Hernandez became upset with Breedlove....Lesher asked Hernandez to make a written, voluntary statement. After speaking with his wife and using the restroom, Hernandez agreed. In his statement, Hernandez admitted hitting Karlos and Melodi because they cried for no reason, because he was upset over recently losing his grandmother, and because he had a bad day with his wife. Hernandez stated in his voluntary written statement that he was babysitting Melodi and Karlos and “they were being very bad by crying a lot for nothing.” Hernandez continued that he “just exploded and hit them with the back of my hand not realizing I was hurting them.” He added that he was sorry for hitting them.

Hernandez v. State, Not Reported in S.W.2d, (Tex. Crim. App. 2004) (Direct Appeal)

Background: Defendant was convicted in the trial court, Dallas County, of the capital murder of a child under the age of six and was sentenced to death. Defendant appealed.

Holdings: The Court of Criminal Appeals, Cochran, J., held that: (1) defendant's custodial statement that he might have struck 10-month-old victim with a flashlight was admissible under the rule of optional completeness; (2) photographs of injuries sustained by victim's sibling were admissible as same transaction contextual evidence; (3) photographs of victim, including gruesome autopsy photographs, were admissible; (4) defendant was not entitled to jury instruction on parole law; (5) mitigation special issue that omitted burden of proof did not violate due process; (6) trial court was not required to define “probability,” “criminal acts of violence,” or “continuing threat to society” in jury charge; and (7) death penalty scheme‘s “12-10 rule” did not violate due process. Affirmed. Meyers, J., concurred in part and joined in part.

COCHRAN, J., delivered the opinion of the Court in which KELLER, P.J., PRICE, WOMACK, JOHNSON, KEASLER, HERVEY and HOLCOMB, JJ., joined.

In July of 2001, appellant was convicted of the capital murder of Karlos Borja, a child under the age of six. Tex. Pen.Code § 19.03(a)(8). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, §§ 2(b) and 2(e), the trial judge sentenced appellant to death. Art. 37.071 § 2(g).FN1 Direct appeal to this Court is automatic. Art. 37.071 § 2(h). Appellant raises fourteen points of error. We affirm. FN1. Unless otherwise indicated, all references to articles refer to the Texas Code of Criminal Procedure.

In his first point of error, appellant claims the trial court erred in admitting a custodial statement in violation of Article 38.22 § 3(c). Specifically, he claims his oral statement that he “may have used” a flashlight to kill Karlos should not have been admitted at the guilt or innocence phase of trial because “the record does not support a finding that the statement was found to be true and conduced to establish appellant's guilt.”

When police began investigating the assault on Karlos,FN2 they went to appellant's home where he and his wife had been babysitting Misty Leverett's ten-month-old son, Karlos, and Karlos' four-year-old sister Melodi. They discovered that appellant had some outstanding warrants, arrested him, and transported him to the police station. While there, Detective Warren Breedlove spoke with appellant to obtain some general information and inquire about the injuries to the children. At a pre-trial hearing regarding the voluntariness of appellant's written statement, Breedlove testified that appellant was not a suspect at that time so he was not informed of his Miranda FN3 rights. Appellant gave an affidavit denying any knowledge of what happened to Karlos and Melodi and was later transported to the county jail. After police spoke with Karlos' doctor and with Melodi, appellant became a suspect in the assaults. Breedlove met with appellant, read him his Miranda warnings and began an interview. Over approximately an hour and a half, appellant repeatedly admitted and then denied striking the children. Breedlove asked appellant about a flashlight found at the scene and appellant admitted he may have hit Karlos with the flashlight.

FN2. When police began their investigation, Karlos was still alive. He died approximately one week later. FN3. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Detective Daniel Lesher took over the interview after appellant became upset with Breedlove. After talking with Lesher for approximately thirty minutes, appellant asked for an attorney and Lesher stopped the interview. A few minutes later, when Lesher entered the interrogation room to take pictures of appellant's hand, appellant stated he wanted to resume the interview. Lesher replied that he could not resume the interview because appellant asked for an attorney. Lesher then consulted with Breedlove and Detective Jesus Trevino because he was unsure of what to do. Lesher resumed the interview after Trevino talked with appellant and determined appellant wanted to speak to Lesher without an attorney. Lesher asked appellant to make a written, voluntary statement. After speaking with his wife and using the restroom, appellant agreed. In his statement, appellant admitted hitting Karlos and Melodi because they cried for no reason, because he was upset over recently losing his grandmother, and because he had a bad day with his wife. He added that he was sorry for hitting them. There was nothing in appellant's written statement about hitting Karlos with a flashlight.

At a pre-trial hearing, the trial court found appellant's written statement was voluntarily given, and therefore, admissible. Breedlove testified to the contents of appellant's statement. Later in the trial, Breedlove was recalled to testify about the results of his investigation in the context of the indictment. Specifically, he testified that, other than appellant's hands and a flashlight found at the scene, he was unable to identify any other means by which appellant injured Karlos.

On cross-examination, appellant asked Breedlove numerous questions about what was said during the interrogation but was not included in appellant's written statement.FN4 After appellant concluded his cross-examination the State, outside the presence of the jury, asked the trial court to allow Breedlove to testify that appellant not only told him he hit the children, but that he may have hit Karlos with a flashlight. The State argued this testimony was admissible under Texas Rule of Evidence 107, “the Rule of Optional Completeness.” There was a lengthy discussion at the bench concerning the extent of appellant's cross-examination and the degree to which appellant's questioning had left a false impression about Breedlove's interrogation, the notes of that interrogation, and appellant's oral statements.FN5 The trial court then ruled that the State could present this testimony. Appellant objected at trial to the State's theory that Rule 107 permitted the admission of this testimony, but he does not address this theory of admissibility on appeal.

FN4. Appellant's interrogation was not recorded. FN5. After reviewing a written transcript of appellant's cross-examination of Breedlove, the trial court concluded that “there was sufficient questions and answers regarding [appellant's] having admitted doing things and denying doing things where it opened up further admissions by him that were not included in the [written] statement.”

This Court reviews the trial court's ruling under an abuse of discretion standard and will not reverse the trial court's ruling unless it falls outside the zone of reasonable disagreement. Salazar v. State, 38 S.W.3d 141, 151 (Tex.Crim.App.2001); Moreno v. State, 22 S.W.3d 482, 487 (Tex.Crim.App.1999). Rule 107 states: When part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence, as when a letter is read, all letters on the same subject between the same parties may be given. “Writing or recorded statement” includes depositions.

Appellant asked Breedlove to tell the jury about portions of his custodial interrogation with appellant and appellant's oral responses. Accordingly, the State was entitled to ask Breedlove about other portions of that same interrogation which were necessary for the jury to fully understand the conversation as a whole. Tex.R. Evid. 107; Wright v. State, 28 S.W.3d 526, 536 (Tex.Crim.App.2000). Thus, the trial court did not abuse its discretion in allowing Detective Breedlove to testify that appellant stated he may have used a flashlight to strike Karlos.FN6 Appellant's first point of error is overruled. FN6. Commendably, the trial court listened to Breedlove's proposed testimony outside the presence of the jury, and specified precisely for the parties and the witness what further evidence would and would not be admissible under Rule 107.

In his second point of error, appellant claims the trial court erred in excluding the testimony of Terry Garza from the punishment phase of trial. He claims he should have been allowed to present Garza's testimony to rebut the victim-impact testimony of the victim's mother, Misty Leverett, presented at punishment. Contrary to appellant's assertion, the record reflects that Garza's testimony was not offered at punishment, but rather at guilt-innocence.FN7 The record further reflects that Leverett did not testify at punishment. Nonetheless, we conclude that the trial court did not abuse its discretion in excluding Ms. Garza's testimony because Misti Leverett did not offer any victim impact testimony during the guilt stage. Although she cried during her testimony when she was shown pictures of Karlos and displayed some emotion during cross-examination, she did not provide any “victim impact” or “victim character” evidence. Appellant fails to point to any specific testimony by Leverett which might conceivably be construed as such. Furthermore, the fact that Leverett was not openly emotional when she met with her probation officer shortly after Karlos' death is not relevant to any material issue at guilt/innocence or punishment. The trial court's ruling was within the zone of reasonable disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990). Appellant's second point of error is overruled.

FN7. The excluded testimony simply recounted Ms. Garza's impressions of Misty Leverett's flat affect and lack of emotional reaction when she reported to Ms. Garza, her probation officer, shortly after Karlos' death.

In his third point of error, appellant claims the trial court erred by admitting photographs of Melodi's injuries because they were not relevant, under Texas Rule of Evidence 402, to the issue of Karlos's death. This Court reviews the trial court's ruling under an abuse of discretion standard and will not reverse that ruling unless it falls outside the zone of reasonable disagreement. Salazar, 38 S.W.3d at 151; Moreno, 22 S.W.3d at 487.

Same transaction contextual evidence is admissible when “several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, ... of any one of them cannot be given without showing the others.” Wyatt v. State, 23 S.W.3d 18, 25 (Tex.Crim.App.2000) (quoting Rogers v. State, 853 S.W.2d 29, 33 (Tex.Crim.App.1993)). Furthermore, it is well settled that the jury is entitled to know all relevant surrounding facts and circumstances because an offense is not tried in a vacuum.” Moreno v. State, 721 S.W.2d 295, 301 (Tex.Crim.App.1986).

The evidence at trial showed that at the time Karlos and Melodi were assaulted, Misty Leverett, Karlos, and Melodi, were living with appellant, his wife Mary Rojas, their young son, Joshua, and Gilbert Gomez. On the day of the assaults, Leverett went to work and left the children in the care of appellant and Rojas. Rojas testified that after Leverett left for work around noon, she stayed home with the children while appellant and Gomez left to run errands. When appellant and Gomez returned about two hours later, Rojas left for her sister-in-law's house and was gone approximately thirty to forty-five minutes. Rojas testified that when she got home, she heard appellant screaming at Joshua. She picked him up and took him to the room she shared with appellant. Rojas asked where Karlos and Melodi were, and appellant replied that they were sleeping in the next room. Rojas then went into her room and relaxed with Joshua. Later, when she heard appellant preparing a bottle, she told appellant she was going to go into the room where Karlos and Melodi were sleeping. Appellant instructed Rojas not to enter the room for fear she would wake them up. Despite having seen blood stains on appellant's shirt, Rojas waited until Leverett got home from work to check on the children.

Leverett testified that when she arrived home, she went into the dark room FN8 she shared with her children and found Melodi complaining that her head hurt. Rojas and Leverett took Melodi out into the kitchen and saw that her head was swollen with “red splotches.” Alarmed, Leverett decided to take Melodi to the hospital. After they left, Rojas checked on Karlos and noticed his lips were swollen. She determined Karlos was badly hurt and took Karlos and Joshua down the street to her sister-in-law's house to call an ambulance. FN8. Leverett testified that the room was dark because the light bulbs in the light fixture were burned out.

When Leverett and Melodi arrived at the hospital, hospital workers asked Leverett if she had any other children. When she replied that she did, the hospital workers instructed her to return home and get her son immediately. Leverett testified that when she returned home, appellant was alone and he told her that Karlos was at his sister's house. Leverett asked appellant to take her there but he refused. Moments later, police arrived and informed Leverett that Karlos had been rushed to Children's Hospital by ambulance. In addition to this evidence, appellant stated in his voluntary written statement that he was babysitting Melodi and Karlos and “they were being very bad by crying a lot for nothing.” Appellant continued that he “just exploded and hit them with the back of my hand not realizing I was hurting them[.]”

The assaults on Melodi and Karlos are so connected in time and space that they form one indivisible criminal transaction. To admit evidence of one without the other would be extremely difficult, to say the least. Because evidence of Melodi's injuries was relevant under Rule 402, we cannot say the trial court abused its discretion in finding the photographs of her injuries relevant as well. See Martin v. State, 475 S.W.2d 265, 267 (Tex.Crim.App.1972) (“if a photograph is competent, material and relevant to the issue on trial, it is not rendered inadmissible merely because it is gruesome or might tend to arouse the passions of the jury, unless it is offered solely to inflame the minds of the jury”). Appellant's third point of error is overruled.

In his fourth point of error, appellant contends the trial court erred by admitting the photographs of Melodi's injuries because their probative value was outweighed by the danger of unfair prejudice in violation of Rule of Evidence 403. The decision to admit photographs into evidence is within the discretion of the trial court and will not be disturbed absent an abuse of that discretion. Salazar, 38 S.W.3d at 151; Moreno v. State, 858 S.W.2d 453, 463 (Tex.Crim.App.1993). When considering the prejudicial nature of photographs, factors for this Court to consider are the number of exhibits offered, their gruesomeness, their detail, their size, whether they are in color or black and white, and whether they are close-ups. Long v. State, 823 S.W.2d 259, 272 (Tex.Crim.App.1991).

Appellant objected to the admission of six photos depicting Melodi's injuires. The photographs appear in the record as 8? x 10? black and white photocopies. FN9 State's Exhibit 33 depicts Melodi in a hospital bed with a bandage on her left hand and an ice pack on her forehead. State's Exhibit 34 is a photo of bruising on Melodi's thighs. State's Exhibit 35 is a photo which shows bruising on the right side of Melodi's face and depicts her sucking her thumb with bandages on her hand. State's Exhibit 36 is a photo of Melodi's face which shows severe bruising on the left side. State's Exhibit 37 is a photo of the left side of Melodi's face and shows a large swollen area on her forehead, beside which someone is holding a tape measure to scale to indicate the size of that swelling. State's Exhibit 38 is a photo of the right side of Melodi's face which appears to depict a separate swollen area on her forehead. FN9. Although the photographs appear as black and white photocopies in the record, their quality is sufficient to address this point of error.

As discussed above, the photographs are relevant as same transaction contextual evidence. Wyatt, 23 S.W.3d at 25. Thus, under Rule 403, they should have been excluded only if their probative value was “substantially outweighed” by one of the specific counterfactors listed in rule 403–here, the danger of unfair prejudice. These exhibits were admitted through Misty Leverett's testimony in which she related that Melodi did not have any bruises or swelling when Leverett left for work the morning Karlos and Melodi were assaulted. Rojas also testified regarding the photographs and stated that Melodi did not have injuries consistent with those depicted in the photographs when Rojas left Melodi and Karlos alone with appellant on the day of the assaults. Thus, the photos are probative to show it was appellant who inflicted the children's serious injuries. Further, they serve to impeach appellant's statement that he did not realize he was hurting the two children and are, therefore, probative of appellant's knowledge and intent. Most importantly, the photographs directly rebut appellant's defensive theory that he only hit the two children with the back of his hand. The jurors could determine for themselves whether the injuries depicted in the photographs of Karlos and Melodi were consistent with having been hit with the back on one's hand or whether they were consistent with being struck with a hard object, such as a flashlight. Tex. Pen.Code § 19.03.

We turn next to the issue of unfair prejudice. None of the photographs of Melodi's injuries are inflammatory, gruesome in nature, or cumulative. While some of them are close-up, they are not especially detailed or large in size. The pictures of four-year-old Melodi's bruises, cuts, swollen areas and black eye are mild indeed in comparison to the photographs of the ten-month-old Karlos. Thus, we conclude that their limited prejudicial effect was not unfair and it did not substantially outweigh their probative value and the trial court did not err in admitting them at trial. Appellant's fourth point of error is overruled.

In his fifth point of error, appellant claims the trial court erred by admitting autopsy photos of Karlos' body because their probative value was outweighed by the danger of unfair prejudice in violation of Rule of Evidence 403. Appellant objected to thirteen photographs.FN10 Dr. Jill Urban, a medical examiner, testified to the extent of Karlos' injuries using the autopsy photographs. Urban testified that State's Exhibit 57 is a photograph of Karlos' body before she began the autopsy. State's Exhibits 58 and 59 show injuries to Karlos' mouth. Specifically, Urban explained that Karlos' lip had been torn from his gum. State's Exhibits 60–63 are photos of Karlos' brain from different angles which Urban used to describe the different blunt-force injuries Karlos suffered. Karlos' skull was cut open and the skin on his head peeled back in order to take these photos. State's Exhibit 64 depicts the top of Karlos' skull which was removed from his body and shows a large fracture. State's Exhibit 65 depicts the left side of Karlos' brain where Urban explained a large subdural hemorrhage had occurred. State's Exhibits 66 and 67 show subarachnoid hemorrhaging of Karlos' brain. State's Exhibits 68 and 69 show hemorrhaging around and in Karlos' eyes. In order to take these photos, the medical examiner cut Karlos' eyes in half and then backlit them. Urban explained that hemorrhaging of the eyes indicates severe head trauma.

FN10. Again, the photographs appear as black and white photocopies in the record, but their quality is sufficient to address this point of error.

State's Exhibit 57 is not overly gruesome, is not cumulative, and is not especially detailed or close up. Thus, its prejudicial effect did not substantially outweigh its probative value and the trial court did not err in admitting it. Long, 823 S.W.2d at 272.

On the other hand, State's Exhibits 58–69 are all close-up, highly graphic, and extremely gruesome, rendering them highly prejudicial. Having determined these photos are highly prejudicial, we turn to the issue of whether, despite their gruesomeness, the photos are admissible. In Rojas v. State, 986 S.W.2d 241, 249 (Tex.Crim.App.1998), and Santellan v. State, 939 S.W.2d 155 (Tex.Crim.App.1997), this Court held that autopsy photographs are generally admissible unless they depict mutilation of the victim caused by the autopsy itself. The main concern in these cases was that the jury might attribute certain injuries caused by the autopsy to the defendant, which would unfairly prejudice the defendant's case. See Rojas, 986 S.W.2d at 249 (holding autopsy photographs admissible because the depicted gunshot wounds and trauma to the pelvic area were a result of defendant's actions, not the performance of the autopsy); Santellan, 939 S.W.2d at 173 (holding that a change rendered as part of the autopsy process which is of minor significance does not prevent the admission of the picture when the disturbing nature of the photograph is due primarily to the injuries caused by defendant).

Photographs depicting “mutilation” by the medical examiner may still be admissible, and therefore excepted from the general prohibition, when the resulting picture (such as a photo of an organ that has been removed from the body) shows bruising or other damage that is attributable to the defendant's actions, but was not visible externally, thereby making the photograph highly relevant to the manner of death. Ripkowski v. State, 61 S.W.3d 378, 392–93 (Tex.Crim.App.2001), cert. denied, 539 U.S. 916, 123 S.Ct. 2274, 156 L.Ed.2d 133 (2003); see also Salazar, 38 S.W.3d at 150–53.

State's Exhibits 58–69 present just such an exception to the general prohibition against photographs depicting mutilation. Although some bruising could be seen on the external surface of Karlos' body, it was not until the medical examiner opened his skull that the blunt force injuries appellant caused could be seen. These particular photographs visually depicted and reinforced the State's theory that Karlos' head injuries could have been caused only by the use of intentional or knowing force. Although extremely graphic and explicit, State's Exhibits 58–69 were highly probative of the manner of Karlos' death and the extent of his injuries, they were helpful demonstrative aids as the medical examiner described her findings and conclusions concerning the manner of Karlos' death, and, although prejudicial, they were not unfairly prejudicial. Thus, the trial judge did not abuse his discretion in allowing the admission of these exhibits. Appellant's fifth point of error is overruled.

In his sixth point of error, appellant contends fundamental error occurred when the prosecutor argued the following to the jury: Look, we haven't come in here and made promises that we can't back up. We presented evidence to you that shows him guilty. We haven't come in with innuendo. You know, where is this proof about him striking something over in the jail causing him to swell his hand? Where is that proof there? You haven't heard it from any witness. We're not the ones coming in here making these promises we can't back up.

Appellant claims the prosecutor's argument was an improper comment on appellant's failure to testify. Appellant did not object at trial to the prosecutor's argument. He has forfeited this claim by failing to object at trial and therefore may not raise this argument for the first time on appeal. Saldano v. State, 70 S.W.3d 873, 887–89 (Tex.Crim.App.2002); Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App.1996). Appellant's sixth point of error is overruled.

In his seventh point of error, appellant argues the trial court erred by denying his request to include an instruction in the jury charge which explained that before appellant could be released on parole, the Board of Pardons and Paroles must receive a risk assessment from the Texas Department of Criminal Justice and, after reviewing the assessment, two-thirds of the board must vote for his release to parole. Appellant relies on Simmons v. South Carolina, 512 U.S. 154, 163–64, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994). Appellant is not entitled to such an instruction. This Court has repeatedly held that parole eligibility is not a proper consideration for the jury in a capital punishment hearing. See Feldman v. State, 71 S.W.3d 738, 757 (Tex.Crim.App.2002). Thus, appellant was not constitutionally entitled to any jury instruction on parole law. Nonetheless, the trial court gave the statutory instruction regarding parole, Art. 37 .071 § 2(e)(b), thus appellant's interests were protected. Appellant's seventh point of error is overruled.

In his eighth point of error, appellant claims the mitigation special issue is infirm under the Due Process Clause of the United States Constitution because it omits a burden of proof. Specifically, he claims that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the State should bear the burden of proving the absence of mitigating circumstances beyond a reasonable doubt. Appellant's claim has been previously raised and rejected. Resendiz v. State, 112 S.W.3d 541, 549–50 (Tex.Crim.App.2003); Allen v. State, 108 S.W.3d 281, 285 (Tex.Crim.App.2003). Appellant's eighth point of error is overruled.

In his ninth point of error, appellant contends the trial court erred by failing to define the word “probability” and the phrases “criminal acts of violence” and “continuing threat to society” in the jury charge. We have repeatedly rejected identical claims. Feldman v. State, 71 S.W.3d 738, 757 (Tex.Crim.App.2002); Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App.1999); McDuff v. State, 939 S.W.2d 607, 620 (Tex.Crim.App.1997)). Appellant's ninth point of error is overruled.

In his tenth point of error, appellant argues the 12–10 rule of Article 37.071 which requires ten votes for the jury to return a negative answer to the first or second special issue and at least ten votes for the jury to return an affirmative answer to the third special issue violates due process and the Eighth and Fourteenth Amendments to the United States Constitution. We have repeatedly rejected identical claims. Johnson v. State, 68 S.W.3d 644, 656 (Tex.Crim.App.2002); Wright v. State, 28 S.W.3d 526, 537 (Tex.Crim.App.2000); Chamberlain, 998 S.W.2d at 238. Appellant's tenth point of error is overruled.

In his eleventh and twelfth points of error appellant contends the Texas death penalty scheme is unconstitutional under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I §§ 13 and 19 of the Texas Constitution because of the impossibility of simultaneously restricting the jury's discretion to impose the death penalty while also allowing the jury unlimited discretion to consider all evidence mitigating against the imposition of the death penalty. Appellant relies solely on Justice Blackmun's dissent from the United States Supreme Court's denial of certiorari in Callins v. Collins, 510 U.S. 1141, 114 S.Ct. 1127, 127 L.Ed.2d 435 (1994) (Blackmun, J., dissenting). We have addressed and rejected this identical claim. Murphy v. State, 112 S.W.3d 592, 607 (Tex.Crim.App.2003). Appellant's eleventh and twelfth points of error are overruled.

In his thirteenth and fourteenth points of error, appellant claims the cumulative effect of the trial court's errors denied him a fair trial in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article I § 19 of the Texas Constitution. Appellant has failed to show any error, therefore he has failed to show cumulative errors which denied him a fair trial. Appellant's thirteenth and fourteenth points of error are overruled.

We affirm the judgment of the trial court. MEYERS, J., concurred in point of error number six and otherwise joined the opinion of the court.

Hernandez v. Thaler, 440 Fed.Appx. 409 (5th Cir. 2011) (Habeas)

Background: Petitioner who was convicted in state court of capital murder sought federal habeas relief. The United States District Court for the Northern District of Texas, Jorge A. Solis, J., denied petition, 2008 WL 2097161, and petitioner requested a certificate of appealability (COA). Holdings: The Court of Appeals, Priscilla R. Owen, Circuit Judge, held that: (1) petitioner's failure to comply with Texas's contemporaneous objection rule was an adequate and independent state procedural ground for state court's decision not to address his claim that prosecutor violated his Fifth Amendment rights by commenting on his failure to testify on his own behalf, and (2) prosecutor did not comment on petitioner's failure to testify when he stated during rebuttal closing argument that there was no proof that petitioner injured his hand pounding the walls of his jail cell, as claimed by defense. Motion denied.