IN THE COURT OF
CRIMINAL APPEALS OF TEXAS
VIRGILIO MALDONADO, Appellant
THE STATE OF TEXAS
ON DIRECT APPEAL
FROM HARRIS COUNTY
delivered the opinion of the Court in which Price, Holland,
Johnson and Keasler, J.J., joined. Price, J., filed a concurring
opinion in which Johnson, J., joined. Womack, J., delivered a
concurring opinion in which McCormick, P.J., and Mansfield and
Keller, JJ., joined.
O P I N I O
Appellant was convicted in October 1997 of
capital murder. Tex. Penal Code Ann. ß19.03(a). Pursuant to the
juryís answers to the special issues set forth in Texas
Code of Criminal Procedure art. 37.071 ßß2(b) and 2(e), the trial
judge sentenced appellant to death. Article 37.071 ß2(g).1
Direct appeal to this Court is automatic. Article 37.071 ß2(h).
Appellant raises eleven points of error. We will affirm.
In his first point of error, appellant contends we must reverse
his conviction because the verdict cannot be supported under the
theory of law and fact submitted to the jury, citing
Malik v. State, 953 S.W.2d
234, 238 n.3 (Tex. Crim. App. 1997) (noting line of cases holding
that due process prevents appellate court from affirming
conviction based upon legal and factual grounds not submitted to
jury). Appellant was indicted for murder committed during the
course of committing or attempting to commit robbery. Tex. Penal
Code Ann. ß19.03(a)(2). He argues the offense of robbery requires
proof of an attempted or completed theft. Yet, in appellantís
recorded statement, which represented the only evidence connecting
appellant to the crime, appellant did not admit to personally
taking part in the theft of the victimís property. Appellant
opines his recorded statement does not support a showing that he
personally (as the primary actor) committed the underlying offense
of robbery. Therefore, appellant argues, since the jury was not
instructed on a parties theory of liability, he should not have
been convicted of capital murder under the charge given.
This argument boils down to a challenge to the
legal sufficiency of the evidence to support the underlying
offense of robbery.2
Thus, we will proceed with an analysis of the evidence under the
Jackson v. Virginia3
standard. Viewing the evidence in the light most favorable to the
verdict, the trial testimony showed the following facts. On
Friday, November 11, 1995, after an evening playing volleyball,
Augustin Saucedo dropped his father, Cruz Saucedo, off at his
apartment. Augustin tried to contact his father that weekend, but
received no response when he paged him (his father did not have a
phone, only a pager). On the following Tuesday, when Augustin
still had not heard from his father, he contacted his sisters,
Paula and Hericelda, who lived in the same apartment complex as
their father. Paula provided Augustin with a key to their
fatherís apartment and accompanied him to the apartment. Augustin
then discovered the decomposing body of his father lying on the
Cruz Saucedoís hands had
been bound with the electric cord of a Black & Decker iron and he
had been shot twice in the head with a .45-caliber semi-automatic
weapon. The police discovered four bricks of marijuana hidden in
the apartment and recovered a pillow with two bullet holes soaked
with "body fluids." Augustin noticed his father was not wearing a
necklace he normally wore. Also, investigators found several cans
of air freshener in the apartment, which Augustin had not noticed
before his fatherís death. Investigators deduced the air
freshener indicated someone stayed in the apartment for a period
of time after the victimís death and sought to mask the stench of
On April 24th
of the following year, the police "received information"
implicating appellant in this homicide. Officer Jaime Escalante
went to the Harris County Jail to interview appellant who was
incarcerated on unrelated charges. Escalante read appellant his
rights in Spanish. Appellant was talkative, but refused to
discuss the instant offense. He asked Escalante to come back the
next day and he would think about giving him a statement.
Escalante returned the following day and, after he read appellant
his constitutional rights again, appellant gave a tape recorded
statement admitting his participation in this offense and others.
In the recorded statement, appellant admitted
entering the victimís apartment with another man named Felix or
Benito, while a third man, Adan, waited in the car. Appellant was
carrying a .45-caliber pistol. They went to the apartment because
Felix wanted to borrow a "cuerno" (AK-47). Appellant also asked
the victim to loan them a pistol. When the victim refused to give
them a "cuerno" or a pistol, Felix bound the victim with the cord
of the iron in the kitchen. Appellant and Felix then demanded to
know where the pistol was and also demanded to know the location
of some marijuana they believed the victim had in his possession.
The victim told them the marijuana was under the bed and the
pistol was in the vacuum cleaner. Felix retrieved these items,
then told appellant to kill the victim. Appellant remembered
shooting the victim three times in the head, using a pillow to
muffle the sound. Appellant noted that Felix was giving the
orders and Felix took the marijuana out to the car.
Proof of a completed theft is not required to establish the
underlying offense of robbery.
Wolfe v. State, 917 S.W.2d
270, 275 (Tex. Crim. App. 1996). At a minimum, to show attempted
robbery, the State carried the burden of proving beyond a
reasonable doubt that appellant had the specific intent to commit
robbery and that appellant committed an act amounting to more than
mere preparation for robbing the victim. See Tex. Penal
Code Ann. ß15.01(a) (criminal attempt). Thus, if the State
introduced evidence from which the jury could rationally conclude
that appellant possessed the specific intent to obtain or
maintain control of the victimís property either before or during
the commission of the murder, it has proven that the murder
occurred in the course of robbery. See Williams v.
State, 937 S.W.2d 479, 483 (Tex. Crim. App. 1996);
Robertson v. State, 871 S.W.2d 701, 705 (Tex. Crim. App.
1993), cert. denied, 513 U.S. 853, 115 S.Ct. 155, 130 L.Ed.2d
94 (1994); Nelson v. State, 848 S.W.2d 126, 132 (Tex. Crim.
App. 1992), cert. denied, 510 U.S. 830 (1993). In
resolving this question, the requisite intent may be inferred from
circumstantial evidence and from the defendantís conduct.
Wolfe, 917 S.W.2d at 275; Robertson, 871 S.W.2d at
In the instant case,
appellantís statement indicates he personally asked to borrow the
victimís pistol and, after binding the victim, he and Felix both
demanded that the victim tell them where the marijuana and the
pistol were kept. Appellant claimed he and Felix had originally
asked if the victim would loan them a "cuerno" or his pistol. It
strains credulity to assert that appellant only sought to borrow a
gun, especially after the victim refused to give it to them and
Felix tied him up with an electrical cord. Moreover, the fact
that appellant then immediately killed the victim rationally
supports the conclusion that he personally intended at that time
to steal the items he sought, rather than take them with the
victimís consent. See Williams, 937 S.W.2d at 483.
In addition, while appellant did not admit to
personally removing the marijuana from the victimís
apartment, he did not explain who took the pistol from the
apartment and did not even mention the victimís necklace, which
was missing. The jury could have inferred that appellant himself
took one or both of these items from the apartment. Further,
appellantís statements that Felix ordered him to kill the victim
and Felix took the marijuana were self-serving. A rational jury
might not have believed them. In sum, appellantís statement, in
combination with the other circumstantial evidence corroborating
the statement, would allow a rational juror to conclude that
appellant possessed the specific intent to obtain or maintain
control of the victimís property before or during the commission
of the murder. Thus, the evidence was sufficient to convict
appellant as a primary actor. Appellantís first point of error is
Appellantís second through sixth points of error deal with the
admissibility of his tape recorded statement and the transcription
of that recording. In points two and three he argues the trial
court erred in admitting the statement at the guilt/innocence and
punishment phases of trial because "it was undisputed that the
tape recording was not accurate." Appellant emphasizes that the
transcript of the full recording shows "skips" in two places on
the tape. Appellant avers these interruptions demonstrate that
the tape recording lacked integrity and is not admissible under
Article 38.22 ß3, and the similar predicate laid out in by this
Edwards v. State, 551
S.W.2d 731 (Tex. Crim. App. 1977).
The State contends this Court, in
Angleton v. State, 971
S.W.2d 65, 69 (Tex. Crim. App. 1998), held that Rule of Evidence
901 has replaced Edwards, supra, as the method by
which tape recordings are authenticated. Thus, the State asserts,
it only needed to show that the recording was what its proponent
claimed under the Rule 901 analysis set out in Angleton.
ß3(a) governs admissibility of "oral or sign language statement[s]
of an accused made as a result of custodial interrogation." The
record shows that Officer Escalante interrogated appellant while
he was in custody in the Harris County Jail. Rule 901 (an
evidentiary rule) cannot allow a proponent of evidence to bypass
the requirements of Article 38.22 (a statute). See
generally Tex. R. Crim. Evid. 101(c).5
In fact, Rule 901(b)(10) lists "Methods Provided by Statute or
Rule" as an example of authentication/identification methods
complying with Rule 901. Thus, we must now consider whether the
recording was properly admitted under Article 38.22 ß3.
Appellant argues the "skips" or "anomalies"
violate Article 38.22 ß3(a)(3), which reads:
(a) No oral or sign
language statement of an accused made as a result of custodial
interrogation shall be admissible against the accused in a
criminal proceeding unless . . .
(3) the recording device
was capable of making an accurate recording, the operator was
competent, and the recording is accurate and has not been
At the suppression hearing
and at trial, appellant presented the testimony of Dwight Cook, an
expert on sound recordings. Cook described the two anomalies as "over-records."
He said that the record button had been pressed and a total of
four seconds had been recorded over the original tape (a three
second interval and a one second interval). He could not say
whether the over-records were done intentionally and could not say
what had transpired on the original tape underneath the over-recorded
portions. Cook noted that it was possible to stop the tape for an
indefinite period, then place a short over-record over the tell-tale
clicks on the tape. However, he heard nothing on this tape which
would indicate that this trick had been performed. In fact, the
flow of the conversation and the background noise on the tape was
consistent before and after the over-records. Further, Cook found
no evidence of any edits or other anomalies except these over-records
and conceded the tape was otherwise apparently reliable. He also
acknowledged that the over-records could have occurred
accidentally as the tape was being copied.
Appellant took the stand
at the suppression hearing. He asserted that Escalante had not
informed him that he was being recorded. He said he never saw a
tape recorder, although he saw something inside an envelope which
could have been a small recording device. He insisted that
Escalante had promised to talk to the prosecutor about helping him
out in some way (a promise which does not appear on the tape).
Appellant said he never saw Escalante stop a recorder.
Escalante testified at the
suppression hearing that he informed appellant that he was
recording their conversation and appellant consented to the
recording. He remembered dropping the tape recorder at the
beginning of the recording process and noted that the metal table
top may have caused strange noises on the tape, but he could not
explain the anomalies. He remembered that at least three people
had taken the tape to listen to it or make copies and he admitted
he had not removed the plastic tabs which permitted over-recording
from the tape.6
Escalante demonstrated how it was possible to accidentally slide
the tape recorder into the "record" position when intending only
to stop the tape. Escalante adamantly denied making any promises
of leniency to appellant or coercing appellant. He fervently
maintained that he continuously recorded his and appellantís whole
conversation, that he did not stop the tape during this process,
and that no additional conversations were concealed by the over-records.
Our review of the tape
confirms that neither of the two anomalies occurs in the portion
of the tape where appellant admits killing the victim. The first
interruption occurs during a discussion of a different crime8
and the second one happens during appellantís discussion of
entering the victimís apartment. The transcript appears to be
consistent with only about a one second gap in the conversation in
the latter case.
This inquiry distills to a
question of witness credibility: (1) did the State use the over-records
to intentionally attempt to disguise editing the tape in order to
excise evidence of inappropriate promises made to the defendant,
or (2) did these brief interruptions occur accidentally, obscuring
nothing of value in the dialogue. There is adequate evidence here
to support the latter conclusion that the anomalies were merely
inadvertent and did not affect the overall reliability of the
In other words, the evidence supports the position that the tape
was accurate and had not been impermissibly "altered" in the sense
contemplated by Article 38.22 ß3(a)(3). Cf.
Quinones v. State, 592
S.W.2d 933, 944 (Tex. Crim. App. 1980), cert. denied, 449
U.S. 893 (1980) (based on Edwards requirements, not just
any alteration renders a tape per se inadmissible: "If the
alteration is accidental and is sufficiently explained so that its
presence does not affect the reliability and trustworthiness of
the evidence, the recording can still be admitted"). The trial
judge did not abuse her discretion in refusing to suppress the
recorded statement and transcript at the guilt/innocence and
punishment phases of trial. Appellantís second and third points
of error are overruled.
In point of error four,
appellant argues the trial court committed reversible error in
failing to instruct the jury to disregard appellantís audio-taped
statement and the transcription of that recording if they found
the tape was inaccurate or had been altered. Appellant cites us
to Article 38.23(a), which mandates that the jury be instructed to
disregard evidence obtained in violation of the law if the issue
is raised by the evidence.10
Appellant asserts, because the recording lacked integrity due to
the "skips" discussed above, he was entitled to have the jury
resolve the issue of the accuracy of the tape under Article
The Article 38.23(a) jury instruction requirement only applies
when there exists a factual issue that evidence was obtained
in violation of the Constitution or laws of the State of Texas, or
of the Constitution or laws of the United States of America.
See Baker v. State, 956 S.W.2d 19, 23 (Tex. Crim.
App. 1997) (Article 38.23(a) not implicated when violation of mere
prophylactic measures at issue); Janecka v. State, 937 S.W.2d
456, 465 (Tex. Crim. App. 1996), cert. denied, 118 S.Ct. 86
(1997) (Article 38.23 only applies when evidence obtained via
violation of law). The presence of skips or over-records on the
audio-taped statement does not indicate the tape was obtained in
violation of the Constitution or a state or federal law, and
appellant presented no evidence showing the skips were created as
a result of a violation of the law. At worst, the anomalies could
have rendered the tape inaccurate and, therefore, inadmissible (see
our discussion of points of error two and three), but this was a
determination for the trial judge, not the jury. See
Article 38.22 ß3(a)(3); Tex R. Crim. Evid. 104(a).11
Appellant was not entitled to an instruction under Article 38.23.
Point of error four is overruled.
In point of error five,
appellant again contends the trial court failed to give a jury
instruction in violation of Article 38.23(a). He argues he was
entitled to an instruction ordering the jury to ignore appellantís
audio-taped in-custody statement and the transcription of the tape
if it found appellant had not been advised of his right to contact
the Mexican Consulate before making a statement to the police.
Appellant cites Article 36 of the Vienna Convention on Consular
Relations. Vienna Convention on Consular Relations (Vienna
Convention), Apr. 24, 1963, art. 36(1)(a), 21 U.S.T. 77, 100-101,
595 U.N.T.S. 261, 292 (ratified by the United States on Nov. 24,
Appellant asserts he is a Mexican citizen and emphasizes that
Officer Escalante admitted he never mentioned the Mexican
Consulate to him.
The Vienna Convention on Consular Relations grants a foreign
national who has been arrested, imprisoned or taken into custody a
right to contact his consulate and requires the arresting
government authorities to inform the individual of this right "without
delay." Vienna Convention, art. 36(1)(b), 21 U.S.T. at 100-101;
595 U.N.T.S. at 292; see also
Faulder v. Johnson, 81
F.3d 515, 520 (5th Cir.), cert. denied, 117 S.Ct. 487
(1996). Article 38.23(a) provides that evidence obtained in
violation of a federal or state law or constitutional provision
shall not be admitted against the accused and mandates that the
jury be instructed to disregard evidence obtained in violation of
the law if the issue is raised by the evidence. Under the
Supremacy Clause of the United States Constitution, states must
adhere to United States treaties and give them the same force and
effect as any other federal law. U.S. Const. Art. VI, cl. 2;
Hanson v. Town of Flower Mound, 679 F.2d 497, 503 (5th Cir.
1982); see also Breard v. Greene, 118 S.Ct. 1352,
1355 (1998). Thus, a violation of this treaty would arguably fall
under the language in Article 38.23(a) if the issue is raised by
the evidence. Compare Cardona v. State, 973 S.W.2d
412, 417-18 (Tex. App.-Austin 1998) (finding violation of treaty
merited exclusion of evidence under Article 38.23(a), but holding
error did not affect defendantís substantial rights). In order to
warrant the Article 38.23 instruction, a factual issue must be
raised concerning whether evidence was obtained in violation of
the treaty. See Bell v. State, 938 S.W.2d 35, 48 (Tex.
Crim. App. 1996), cert. denied, 118 S.Ct. 90 (1997).
Only if appellant is a foreign national did authorities have an
obligation to notify him of his right to consular access.
Testimony at trial showed that appellant lived in Mexico when he
was a child and that is where he knew the victimís son, Augustin
Saucedo. This evidence does not preclude the possibility that
appellant became a United States citizen after coming to this
country. Other evidence showed appellant had lived in the United
States for many years, spoke some English, had a Texas driverís
license, and had purchased a car in the United States. No one
testified that applicant was not a United States citizen. In sum,
trial evidence did not show appellant was a Mexican citizen.
Therefore, appellant was not entitled to an instruction under
Article 38.23. See id. Appellantís fifth point of
error is overruled.
Appellant next contends,
in point of error six, that the trial court should have suppressed
his recorded statement because the statement was not freely and
voluntarily made. Appellant notes he testified at the suppression
hearing that Officer Escalante had promised to help him with the
prosecutors if he made a statement. He insists such a promise
would render the resulting statement inadmissible.
As a general rule,
appellate courts should afford almost total deference to a trial
courtís determination of the historical facts that the record
supports especially when the trial courtís fact findings are based
on an evaluation of credibility and demeanor. Guzman, 955
S.W.2d at 89. Appellate courts should afford the same amount of
deference to trial courtsí rulings on "application of law to fact
questions" if the resolution of those questions turns on an
evaluation of credibility and demeanor. Id.
In the instant case, at
the suppression hearing, appellant claimed Escalante repeatedly
offered to speak to the prosecutor on his behalf:
And he told me not to be
stupid, because if not, he was going to take me down. And he
told me that if I would talk, that he was going to talk to the
prosecutor so that they could help me out some way.
vehemently denied making promises or otherwise using coercion to
convince appellant to confess. When faced with appellantís claims,
he asserted: "I would never make a promise like that." Thus, the
determination of the factual basis of appellantís claim turned on
an evaluation of the credibility and demeanor of these two primary
witnesses. In such a situation, we have recognized the trial
courtís superior position. See Guzman, supra.
In this case, we cannot say the court abused its discretion. We
overrule appellantís sixth point.
In his seventh point of
error, appellant argues the evidence is insufficient to support
his conviction, as a matter of law, because the State alleged the
victimís name was Cruz C. Saucedo when the victimís real name was
Primo Correa Saucedo. The indictment and the charge list the
victimís name as Cruz C. Saucedo. However, the victimís son
testified at trial that his fatherís given name was Primo Correa
Saucedo. Appellant contends this discrepancy represents a "fatal
variance" in the Stateís pleadings. When a person is known by
two or more names, Article 21.07 allows the State to allege either
name in the indictment.13
Blankenship v. State,
785 S.W.2d 158, 159 (Tex. Crim. App. 1990). In the instant case,
Augustin testified on redirect examination that his father was
known as Cruz C. Saucedo. Therefore, the evidence at trial was
sufficient to show the individual named in the indictment was the
victim and no fatal variance existed. We overrule appellantís
seventh point of error.
Appellantís final four
points of error concern the voir dire process. In point eight,
appellant alleges the trial court committed reversible error in
failing to strike prospective juror Davis for cause where the
venireman stated he could not give the trial his full attention.
Appellant cites no article
in the Code of Criminal Procedure, rule, or judicial opinion in
support of his argument that Davis should have been excluded for
cause. Article 35.16 lists the reasons justifying challenges for
cause, but does not include a provision for "could not give the
trial his full attention." A trial court does not abuse its
discretion for failing to grant a challenge for cause on the basis
of a reason not expressly enumerated in Article 35.15.14
The relevant portion of
Venireman Davisís responses follows:
Q: [by the Prosecutor]
I think weíve talked about whether or not you have any problems
in serving around the 29th. Oh, you did say -- you said yes?
A: Well, I run a
business. But, I mean, itís no different than anybody elseís
problem. Iím sure everybodyís got them. I run a business.
Q: You think you can
work around this without having any impact on your service?
A: I would definitely
have to get some other personnel in there and everything else or
it would be a hardship.
A: Just as much as
Q: Could you devote
your concentration to this trial while youíre there at the trial?
. . . You think you could handle that with your business?
A: My mindís going to
be on my business. Iím going to have to be honest about that.
A: But Iíll do the best I can.
Q: What Iím saying:
Everybodyís mind is on, you know, how they make a living?
A: Yes, sir.
Q: Could you also
devote your full attention to the evidence that is before you?
A: Iíll say, Iíll do
Q: And, I guess, from
you saying youíre doing your best, youíre not going to do
anything in this trial or -- or, you know, not listen to
evidence or do anything like that because youíre so concerned
about your business? You wouldnít do that, you wouldnít --
A: Not intentionally,
no, sir. Not intentionally.
* * *
Q: [by Defense Counsel]
... And just touching up on what [the Prosecutor] was talking
about your job, and you said it was going to be a hardship for
A: Just -- yeah. I
run -- own a business.
Q: Yeah. And because
itís a hardship, I believe you also said that your mindís going
to be on your job as well; is that right?
A: Iíll certainly do
my best to, you know, be a good juror, if thatís what I need to
do. But, yes, sir, Iím afraid in the back of my mind, that Iím
going to be thinking about my business the whole time Iím gone.
On the phone, every time I have a break, you know.
Q: Do you think that
that would have some impact on your ability to sit for a week,
maybe two weeks -- two-week trial listening to evidence and
perhaps maybe that might have some impact on your ability to pay
full attention to this trial here sir?
A: I would hope not.
But itís possible, yes, sir.
On the basis of this
testimony, the trial court could have concluded that, although he
might be thinking about his company Ďin the back of his mind,í
Davis would dedicate himself to fulfilling his duties as a juror.
On these facts we cannot say the trial court abused its discretion
by overruling appellantís challenge for cause. We overrule
appellantís eighth point of error.
In point nine, appellant
complains that the trial court erred in refusing to grant his
challenge for cause to prospective juror Jacobs because he said he
would take into consideration appellantís decision not to testify.
Appellant emphasizes his constitutional right for the jury not to
consider his election not to testify as evidence of guilt. He
asserts Jacobsí statement that he thought appellantís decision not
to testify might be "a missing link in the chain" shows that he
was biased against the law on which appellant was entitled to rely.
The trial record reveals
that prospective juror Jacobs really struggled with the question
of whether he would consider appellantís failure not to testify as
evidence of guilt. First, the prosecutor explained the law to him
and he hesitatingly conceded that, if he were torn as to whether
appellant were guilty, the fact appellant did not testify would
not throw him over the edge toward a finding of guilt. As defense
counsel further probed Jacobsí feelings on the matter, he admitted
the fact that appellant had chosen not to testify "would be in the
back of [his] mind." When the prosecutor then presented him with
a hypothetical situation in which he thought the defendant was
guilty, but retained a reasonable doubt, Jacobs said the fact that
the defendant did not testify would not take away his reasonable
doubt: "No, maíam, I couldnít do that to anyone." Finally, when
defense counsel sought to clarify his position, Jacobs stated he
would not hold the fact that a defendant chose not to testify
against that person.
When a potential jurorís answers are vacillating, unclear, or
contradictory, we accord particular deference to the trial courtís
Colburn v. State, 966
S.W.2d 511, 517 (Tex. Crim. App. 1998); Brown v. State,
913 S.W.2d 577, 580 (Tex. Crim. App. 1996). We follow this
approach because we recognize that elements such as demeanor and
tone of voice are critical to understanding the jurorís precise
position. See Earhart v. State, 823 S.W.2d 607, 627
(Tex. Crim. App. 1991), vacated on other grounds, 509 U.S.
917 (1993). In the instant case, as summarized above, Jacobs
vacillated and gave responses which seem contradictory, yet
exhibited an inclination to follow the law. In such a situation
we defer to the trial courtís informed judgment on the matter.
See Earhart, supra (we deferred to trial court
where, when fully questioned, veniremember indicated he would not
hold failure to testify against defendant). Appellantís ninth
point of error is overruled.
Appellant next complains the trial court improperly denied his
challenge for cause to venireman Carter. Appellant alleges Carter
said he would only consider the facts and circumstances of the
offense and would not consider appellantís character and
background in answering the second and third punishment issues.
Appellant argues this approach offends the spirit of the Supreme
Courtís holding in
Penry v. Lynaugh, 492
U.S. 302 (1989). He contends the jurors must be willing to
consider a defendantís general character as mitigation evidence
during the punishment phase of trial.
In compliance with Penry, supra, Article 37.071
ß2(e) of the Texas Code of Criminal Procedure requires the trial
court to instruct the jury to answer the following issue:
Whether, taking into
consideration all of the evidence, including the circumstances
of the offense, the defendantís character and background, and
the personal moral culpability of the defendant, there is a
sufficient mitigating circumstance or circumstances to warrant
that a sentence of life imprisonment rather than a death
sentence be imposed.
See Article 37.071
Thus, jurors must be willing to at least consider the
defendantís background and character in answering this punishment
issue, although they need not give mitigating weight to any
particular type of evidence. See Penry, 492 U.S. at
319, 109 S.Ct. at 2947;
Eddings v. Oklahoma,
455 U.S. 104, 113-15 (1982); Rachal v. State, 917 S.W.2d
799, 813 (Tex. Crim. App.), cert. denied, 117 S.Ct. 614
(1996); Coleman v. State, 881 S.W.2d 344, 351 (Tex. Crim.
App. 1994), cert. denied, 513 U.S. 1096 (1995).
In the instant case, after
contradicting himself and expressing some amount of confusion on
this issue, venireman Carter finally told the prosecutor that he
would consider all of the evidence presented at the punishment
phase, including evidence of character and background, in deciding
how to answer the mitigation question. Because this juror
vacillated, then expressed his willingness to consider character
and background evidence, we will defer to the trial courtís
discretion in denying appellantís challenge for cause. See
Colburn, 966 S.W.2d at 517. Appellantís tenth point is
In his final point of
error, appellant argues the trial court reversibly erred in its
refusal to strike venireman Kegans for cause. Appellant claims
Kegans said, after having found a defendant guilty of capital
murder, he would be predisposed toward answering the punishment
questions in such a way that the defendant would receive the death
penalty. Appellant maintains Kegansí position offended the
principle that jurors must be able to consider the full range of
punishment for the crime.
Venireman Kegans indicated that, after having found a defendant
guilty of capital murder and answering affirmatively the first
punishment question regarding whether the defendant would be a
future danger, he would tend to be predisposed toward the death
penalty. However, he repeatedly stated he would consider all of
the evidence in answering each of the punishment questions and his
decision would depend on the particular circumstances presented.
Because this veniremember indicated he would answer the punishment
questions based on the evidence and not simply as an automatic
response, he was not subject to a challenge for cause.
Garcia v. State, 887
S.W.2d 846, 858-59 (Tex. Crim. App. 1994), cert. denied,
514 U.S. 1005 (1995). Appellantís eleventh point of error is
We affirm the judgment of
the trial court.
Unless otherwise indicated all future references to articles refer
to the Texas Code of Criminal Procedure.
Appellant suggests this is a problem under
McCormick v. United States,
500 U.S. 257 (1991), Dunn v. United States, 442 U.S. 100
(1979), and Cole v. Arkansas, 333 U.S. 196 (1948). Those
cases are not implicated here, however, as they stand for the
proposition that due process is violated when a conviction is
affirmed on appeal on the basis of a legal or factual theory not
passed upon by the jury at trial; in contrast, appellant argues
the evidence is insufficient to support his conviction under the
charge given (which did not include a parties charge). See
Fisher v. State, 887 S.W.2d 49, 57 (Tex. Crim. App. 1994)(discussing
McCormick, Dunn and Cole line of cases).
In performing a legal sufficiency analysis, we review the evidence
in the light most favorable to the verdict, and ask whether any
rational trier of fact could have rendered the juryís findings
beyond a reasonable doubt.
Jackson v. Virginia,
443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979);
Barnes v. State, 876 S.W.2d 316, 321-322 (Tex. Crim. App.),
cert. denied, 513 U.S. 861, 115 S.Ct. 174, 130 L.Ed.2d 110
Miranda v. Arizona, 384
U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
5 This rule is now
codified as Texas Rule of Evidence 101(c), effective March 1,
1998. The trial in this case occurred prior to that date.
In fact, Escalante said he never punched out the little tabs on
tapes. When asked if he knew that the purpose of the removable
tabs was to prevent over-records, he replied, "I do now."
The audio tape itself was not included with the record on appeal.
The jury did not see or hear this part of the statement during the
guilt/innocence phase of this trial.
Appellant urges that the addition of Article 38.22 ß3(e) regarding
strict construction of this article means the accuracy of a
recording can no longer be shown by the testimony of a witness to
the recorded conversation. Appellant provides no authority to
support this assertion and we do not find his argument compelling.
Article 38.23(a) reads:
No evidence obtained by an officer or other person in violation
of any provisions of the Constitution or laws of the State of
Texas, or of the Constitution or laws of the United States of
America, shall be admitted in evidence against the accused on
the trial of any criminal case. In any case where the legal
evidence raises an issue hereunder, the jury shall be instructed
that if it believes, or has a reasonable doubt, that the
evidence was obtained in violation of the provisions of this
Article, then and in such event, the jury shall disregard any
such evidence so obtained.
This rule is now codified as Texas Rule of Evidence 104(a),
effective March 1, 1998.
Appellant preserved error regarding this complaint by requesting
an instruction on the requirements of the Vienna Convention at
trial which was denied by the trial court.
13 The relevant
portion of Article 21.07 reads:
In alleging the
name of the defendant, or of any other person necessary to be
stated in the indictment, it shall be sufficient to state one or
more of the initials of the given name and the surname. When a
person is known by two or more names, it shall be sufficient to
state either name.
There are two opposing lines of cases pertaining to whether
Article 35.16 contains a comprehensive list.
Moore v. State, 542 S.W.2d
664 (Tex. Crim. App. 1976), and its progeny hold that challenges
for cause can be properly asserted on grounds not specifically
enumerated in Article 35.16 if the facts show the prospective
juror would be "incapable or unfit to serve on the jury."
Mason v. State, 905 S.W.2d 570, 577 (Tex. Crim. App. 1995),
cert. denied, 516 U.S. 1051 (1996). Such challenges are
typically left to the sound discretion of the trial judge.
Mason, supra. This Court has held, where the record as
a whole indicates the prospective jurorís personal affairs would
not prevent or impair his performance of his duties and would not
keep him from being a fair and impartial juror, the trial court
does not abuse its discretion in refusing to strike the juror.
Burks v. State, 876 S.W.2d 877, 896-97 (Tex. Crim. App. 1994),
cert. denied, 513 U.S. 1114 (1995).
and its progeny were overruled by
Butler v. State. 830
S.W.2d 125, 130 (Tex. Crim. App. 1992), which held that Article
35.16 "is a complete list of challenges for cause." The Court
noted there, however, that article 35.03 provided no enumerated
bases for excusing a venireperson at any time during the voir dire.
Moore was revived after Butler, supra, by
Mason v. State.,
supra. Like Moore, Mason held that challenges
for cause could be properly asserted on grounds not specifically
enumerated in Article 35.16, where the challenge "is based on
facts that show that the prospective juror would be Ďincapable or
unfit to serve on the jury.í"
of which line of cases is now prevailing, even under Mason,
a trial court is not required to grant a challenge for
cause not enumerated in Article 35.16. Rather, challenges not
based upon a ground specifically enumerated in Article 35.16 are
addressed to the sound discretion of the trial judge. Mason
905 S.W.2d at 577.
Because no parties charge was given at the guilt/innocence phase,
the jury was only given two punishment questions, not three.
See Article 37.071 ß2(b)(2).