Appellant, Coy Wayne Wesbrook, was charged by indictment for
capital murder committed in Harris County on November 13, 1997.
See Tex. Pen. Code § 19.03(a)(7). A verdict of guilty was
returned by the jury. That same jury answered the special issues
in such a manner that the trial court was obligated to impose a
sentence of death. See Art. 37.071, § 2(b),(e) & (g).1
Direct appeal to this Court is automatic pursuant to Article
37.071, § 2(h).
Appellant presents thirteen points of error for
consideration. With the exception of those points challenging
the sufficiency of the evidence, each point of error will be
addressed in the order it occurred at trial. We will affirm
appellant’s conviction and punishment.
Appellant, in points of error two and three, challenges the
legal and factual sufficiency of the evidence presented during
the guilt/innocence stage of trial. To properly consider these
points, it is necessary to review the relevant facts, as
illustrated by the State’s evidence and by appellant’s own
Around two o’clock in the morning, on November 13, 1997,
9-1-1 operators in Harris County received several calls
reporting the sound of gunshots coming from a downstairs
apartment in a small complex located in the eastern portion of
the county. Five shots were heard within approximately forty
seconds. Neighbors, either already awake or awakened by the
gunshots, rushed outside to find one man lying on the ground and
appellant, armed with a hunting rifle, exiting the apartment.
Neighbors described appellant as calm as he walked to his truck,
placed the gun inside the cab, and then stood by the tailgate
where he waited for the sheriff’s deputies to arrive. As
appellant waited, he was overheard making comments like, “I did
it. I did it. Let’s get it over with,” or “I did what I had to
do.” Appellant continued to make similar statements, some of
which could be heard on various 9-1-1 calls made from the crime
scene that night.
The first deputy on the scene found appellant waiting
patiently and also observed a male figure, obviously deceased,
lying on the ground nearby. Appellant peacefully complied with
law enforcement demands as he was taken into custody. When law
enforcement officers looked inside the apartment, they saw the
bodies of a woman lying on a couch and a man in a kneeling
position on the floor next to a second couch. A fourth victim,
still alive, lay on the floor. When the deputy asked appellant
who was inside, he replied, “My ex-wife, that’s who I came here
to get.”2 Stepping inside, the deputy found
appellant’s estranged wife, also still alive, in the bedroom.
Appellant, who was handcuffed at this point, was questioned
about the location of the gun. He indicated with his head and
said, “It’s in my truck.” With appellant’s consent,
investigators searched the truck and recovered the weapon. A
search of the grounds outside the apartment turned up a live
round consistent with the bullet used in appellant’s rifle. A
firearms expert testified that appellant’s gun was capable of
holding five rounds, four in the magazine and one in the chamber.
The female victim on the couch, Ruth Money, was believed by
investigators to have been shot first. She sustained a single
wound to her chest from a bullet fired in a downward trajectory
that exited her lower back.
The second person shot was either
the victim found outside, Anthony Rogers, or the victim found
inside kneeling next to the couch, Antonio Cruz. Rogers was hit
with a bullet that passed through his right arm, entered his
chest, struck his right lung, and exited the body. Evidence
indicated that he was shot either just before he attempted to
exit the apartment door or as he was exiting. Cruz was killed by
a bullet fired into his ear that severed his spinal cord and
exited the back of his neck. The two remaining victims were
believed to have been shot in the apartment bedroom from a
distance of approximately two to four feet.
The last male
victim, Kelly Hazlip, was shot in the abdomen from a distance of
about two feet. Hazlip survived for five days before dying.
Appellant’s estranged wife, who died shortly after emergency
personnel arrived, appears to have held her hand up in a
defensive gesture just before appellant fired. That hand
suffered extensive damage as the bullet passed through. Bullet
and bone fragments were then blown back into her face, neck and
the right half of her chest and shoulder.
Appellant, the only surviving witness to the shooting,
testified on his own behalf to explain the sequence of events
that night. Appellant told the jury that he and his estranged
wife, Gloria Coons, had separated, but he had arrived at her
apartment after she had given indications of reconciliation. He
had hoped she would be alone but, instead, he found Coons with
her roommate, Ruth Money, and two male friends, Kelly Hazlip and
Anthony Rogers. It was apparent that all had been drinking
extensively. Appellant agreed to sit down and drink with the
group even though he claimed he was uncomfortable with the
situation. Antonio Cruz arrived a short time later.3
Eventually, the subject of conversation in the group turned to
that of a sexual nature and culminated with appellant’s
estranged wife walking into her bedroom with Hazlip. After a few
moments, Anthony Rogers joined them. A short time later she
reappeared with Rogers, whose pants were unzipped, announced
that she had just provided him with oral sex, and she was about
to have sex with Hazlip who was still in the bedroom.
At this point, as appellant testified, he was humiliated by
this behavior and left the apartment to get in his truck and
leave. Antonio Cruz followed, briefly talked with appellant, and
eventually grabbed the truck’s keys as appellant tried to start
the vehicle. Cruz kept the keys and reentered the apartment.4
Appellant grabbed his hunting rifle and followed to get the keys
back. Once inside, appellant claimed he was verbally harassed,
threatened, and physically abused by those present.
that Ruth Money threw a beer at him, and he fired the gun at her
in response. Rogers and Cruz, according to appellant, then
rushed toward him, and he shot both men. Finally, appellant
entered the bedroom, saw Coons and Hazlip still having sex and
shot both. In his defense, appellant told the jury that he “lost
it” and had no intention of killing any of the people inside
In his second point of error, appellant argues the evidence
used to establish his conviction for capital murder was legally
insufficient because alternative evidence established that he
was justified in using deadly force against Antonio Cruz. See
Tex. Pen. Code § 9.42.
Evidence is legally insufficient if, when viewed in a light
most favorable to the verdict, a rational jury could not have
found each element of the offense beyond a reasonable doubt.
Jackson v. Virginia, 99 S.Ct. 2781, 2789 (1979); Jones v.
State, 944 S.W.2d 642, 647 (1996), cert. denied, 118
S.Ct. 100 (1997). The jury is the exclusive judge of the
credibility of witnesses and of the weight to be given
testimony, and it is also the exclusive province of the jury to
reconcile conflicts in the evidence. Jones v. State, 944
S.W.2d at 647. A claim of legal insufficiency is, in effect, an
argument that the case should never have even been presented to
the jury. Clewis v. State, 922 S.W.2d 126, 132
By claiming legal insufficiency in this manner, appellant is
arguing that the evidence of justification to kill Antonio Cruz
in order to retrieve his personal property was so compelling
that the issue of his guilt should have never even been
presented to the jury for its consideration. We disagree.
Although the trial court decided that enough evidence existed to
warrant a jury instruction on justification to protect personal
property, we can confidently state that, after thoroughly
examining the available record and viewing it in a light
favorable to the verdict, this evidence of justification was not
so strong that it greatly preponderated against the jury’s
finding of capital murder to the point of completely
overwhelming it and rendering that evidence legally
Moreover, the jury’s implicit rejection of
appellant’s theory of justification could not be considered
irrational given the quantum of incriminating evidence presented
by the State. Appellant’s second point of error is overruled.
In his third point of error, appellant argues the evidence
was factually insufficient to “establish that [he] intentionally
and knowingly caused the death of Gloria Coons and Antonio
This Court possesses the authority to conduct a factual
sufficiency review on direct appeals. Jones v. State, 944
S.W.2d at 647. To conduct this review, we discard the prism
utilized in a legal sufficiency review and, instead, view all of
the evidence in a neutral light favoring neither side. Clewis
v. State, 922 S.W.2d at 129. We will set aside the verdict
only if it is so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust. Ibid.
factual sufficiency review must be appropriately deferential so
as to avoid the appellate court’s substituting its own judgment
for that of the fact finder. Jones v. State, 944 S.W.2d
at 647. “The court’s evaluation should not substantially intrude
upon the jury’s role as the sole judge of the weight and
credibility of witness testimony.” Id. at 648.
Whether he killed because of the rage he felt over his
estranged wife’s flagrant promiscuity or he killed because of
the need to retrieve his property, the evidence indicates
appellant made sure his weapon was loaded to its maximum
capacity,5 he walked into a small apartment with this
high- powered rifle and, from close range, fired a single bullet
into vulnerable regions of each of the five individuals who were
inside. Afterwards, he stepped outside and proclaimed to the
neighbors that he “did it.”
The only evidence that indicated
this was an act of sudden passion was appellant’s own testimony
in which he stated that while he shot the victims, there was no
intent to kill them. The jurors were free to place whatever
value they wished upon appellant’s testimony. They apparently
rejected his proclamation and reasonably concluded that the
evidence indicated appellant either acted with intent or acted
knowingly. Viewing this evidence in a neutral light, we see no
manifest injustice in this result and overrule the third point
Appellant, in his fourth and fifth points of error, argues
the trial court “erred in failing to declare the Texas Death
Penalty statute unconstitutional” on the grounds it violated the
Eighth and Fourteenth Amendments to the United States
Constitution. Specifically, appellant argues he was denied due
process and equal protection and subjected to cruel and unusual
punishment because he was prevented from submitting special
instructions to the jury at both guilt/innocence and punishment
on the issue of “sudden passion” arising out of “adequate
cause.” See Tex. Pen. Code § 19.02(a),(d).
The Legislature is vested with the lawmaking power of the
people in that it alone “may define crimes and prescribe
penalties.” Matchett v. State, 941 S.W.2d 922, 932 (Tex.Crim.App.
1996), cert. denied, 117 S.Ct. 2487 (1997); State ex
rel. Smith v. Blackwell, 500 S.W.2d 97, 104 (Tex.Crim.App.
1973). It is within the Legislature’s exclusive power to define
the elements of capital murder and establish guidelines for
deciding when the sentence of death is an appropriate penalty.
Matchett v. State, 941 S.W.2d at 932; Ex parte
Granviel, 561 S.W.2d 503, 515 (Tex.Crim.App. 1978). And
while all persons or things within a particular class or similar
situation must be affected alike, the State possesses broad
discretion in classification in the exercise of its power of
regulation. Taylor v. State, 513 S.W.2d 549, 551 (Tex.Crim.App.
The Legislature set out the guidelines and requirements
to be met before an individual could stand trial and be
convicted of either murder or capital murder, and appellant, in
the instant case, satisfied the criteria for capital murder when
he “murder[ed] more than one person during the same criminal
transaction.”6 Tex. Pen. Code § 19.03(a)(7)(A).
the time of appellant’s trial, the issue of sudden passion was
solely a punishment issue to be determined only after a
conviction of murder.7 The jury had been provided the
option of convicting appellant of the lesser-included offense of
murder but convicted him, instead, of the greater offense of
capital murder. At this point, the issue of “sudden passion”
could be considered only as a mitigating circumstance for the
jury when deciding the second punishment issue. See Art. 37.071,
§ 2(d)(1). See also Buhl v. State, 960 S.W.2d 927 (Tex.App.
- Waco, pet. ref’d), cert. denied, 119 S.Ct. 623 (1998).
The Legislature, through its broad power to classify crimes and
those who stand accused of crimes, chose not to permit the
defense of “sudden passion” in the context of capital murder. No
equal protection concerns are present as a result of the
Legislature’s prerogative to treat capital murder defendants
differently from other murder defendants in this manner.
Additionally, we are confident appellant experienced nothing
that affected the fundamental fairness of his trial in violation
of any right to due process. Finally, appellant fails to explain
how he was subjected to cruel and unusual punishment, and we can
discern no indications ourselves that the refusal to instruct
the jury on “sudden passion” constituted cruel and unusual
punishment. The trial court properly denied appellant’s requests
at both guilt/innocence and punishment to instruct the jury on
the issue of sudden passion. Points of error four and five are
Appellant, in his tenth point of error, claims the trial
court erroneously denied his request for a jury instruction on
the lesser-included offense of aggravated assault. The only
evidence supporting an aggravated assault instruction came from
appellant himself when he took the stand and, under direct
examination, admitted that he fired the rifle but denied he
possessed any intent to kill the five victims.
To determine if a defendant is entitled to a lesser-included
offense instruction, a two prong test applies: (1) the lesser-included
offense must be included within the proof necessary to establish
the offense charged, and (2) some evidence must exist in the
record that would permit a jury rationally to find that if the
defendant is guilty, he is guilty only of the lesser included
offense. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App.
1993). The evidence must establish the lesser-included offense
as a valid rational alternative to the charged offense.
Arevalo v. State, 943 S.W.2d 887, 889 (Tex.Crim.App. 1997).
In the instant case, the trial record shows appellant acted
intentionally, or at the least, knowingly, when he walked into
an apartment armed with a high- powered rifle. He fired a single
shot at close range into the chest of the first victim, a highly
vulnerable portion of the body. After witnessing the damage that
resulted from his actions, appellant continued to fire the
weapon, again at close range, into four more individuals,
choosing as his target, either their head, chest, or abdomen.
Physical evidence from the scene and the condition of the bodies
suggest that one victim was shot as he attempted to escape from
the apartment and another was shot while on his knees. The only
contrary evidence that this was not an intentional or knowing
act is appellant’s own assertion that he did not intend to kill.
Given the state of the entire record, this was not evidence from
which a jury could not rationally conclude that apellant was
guilty only of aggravated assault. See Jackson v. State,
992 S.W.2d 469, 475 (Tex.Crim.App. 1999) (not entitled to
instruction on the lesser included offense of aggravated assault
when evidence showed appellant, at least, guilty of homicide).
Appellant’s tenth point of error is overruled.
Appellant, in his eleventh point of error, asserts that the
trial court erred by failing to submit defense counsel’s
requested limiting instruction to the jury regarding extraneous
offenses introduced at the guilt/innocence stage of trial.
Appellant had been indicted and stood trial in the case at bar
for only the deaths of Gloria Coons and Antonio Cruz, and just
before the jury began deliberations at the guilt/innocence stage
of trial, appellant requested a limiting instruction regarding
the admission of evidence concerning the three other murders
that occurred that night and their status as extraneous offenses.
The following colloquy occurred:
TRIAL COURT: . . . Any other objections or requests?
DEFENSE COUNSEL: Yes, Judge, if I may read into the
record a request regarding extraneous offenses and a
limiting instruction be given to the jury. We would ask that
the Court charge the jury as follows. You are instructed
that if there is any testimony before you in this case
regarding the defendant having committed offenses other than
the offense alleged against him in the indictment in this
case, you cannot consider said testimony for any purpose
unless you find and believe beyond a reasonable doubt that
the defendant committed such other offense, if any were
committed, and even then, you may only consider the same in
determining the intent of the defendant, if any, in
connection with the offense, if any, alleged against him in
the indictment in this case and for no other purpose.
In other words, judge, there has been testimony that there
were killings of three other individuals not named in the
indictment, and obviously that would be an extraneous
offense or offenses. And we don’t want the jury being able
to use that for any purpose other than which the law allows,
which is the limiting instruction we’re requesting.
TRIAL COURT: Are those the only three extraneouses?
DEFENSE COUNSEL: I believe those are the only three.
* * * *
TRIAL COURT: All right. Mr. Rosenthal, your response?
PROSECUTOR: I need to make a telephone call before I can
respond to that, Your Honor.
TRIAL COURT: My plan would be to overrule that, that
request. If you - - if the State wants me to give that, if
you want to join in that, I think they’re allowed to
consider the totality of the circumstances in deciding and
looking at all of those factors and deciding his intent and
so forth, so I don’t think that’s a proper charge. If the
State feels it’s more prudent to give it, I will give it.
So, come back to me and let me know. But unless I hear from
you otherwise, I’m going to overrule that request.
Appellant claims harm in this point of error because “the
jury was allowed unfettered discretion in their use of
extraneous offenses to decide. . .guilt in the killing of Gloria
Coons and Antonio Cruz in contravention of the Eighth and
Fourteenth Amendments.” We cannot agree that a limiting
instruction, even if properly requested,8 would have
Evidence of the three additional killings from
that evening was same transaction contextual evidence and, as
such, admissible without a limiting instruction. See Camacho
v. State, 864 S.W.2d 524, 535 (Tex.Crim.App. 1993), cert.
denied, 114 S.Ct. 1339 (1994). Such extraneous offenses are
admissible to show the context in which the criminal act
occurred. Archer v. State, 607 S.W.2d 539, 542
(Tex.Crim.App. 1980), cert. denied, 101 S.Ct. 3037
This evidence is considered “res gestae,” under the
reasoning that events do not occur in a vacuum, and the jury has
a right to hear what occurred immediately prior to and
subsequent to the commission of that act so that it may
realistically evaluate the evidence. Ibid. When this
evidence of extraneous offenses is used to prove a main fact in
the case, an instruction limiting the jury’s consideration of
this evidence is generally not required. Porter v. State,
709 S.W.2d 213, 215 (Tex.Crim.App. 1986). The eleventh point of
error is overruled.
Appellant, in his twelfth point of error, claims he was
entitled to a mistrial after inappropriate comments were made by
the prosecutor during his closing argument. The comment,
provided below, referenced a statement that appellant provided
to police shortly after his arrest but which was never admitted
into evidence or shown to the jury:
They know that the evidence is overwhelming. The
defendant knows the evidence is overwhelming. His
fingerprints is (sic) on the rifle, found in his truck,
walking out of the residence with the rifle. He has to come
up with some story, and he does, ladies and gentlemen.
Two different stories. One to Detective Fikaris and one to
Defense counsel immediately lodged a successful objection and
asked that the jury be instructed to disregard the comment. The
judge complied but refused to grant defense counsel’s subsequent
request for a mistrial. Appellant argues reversal is appropriate
because the State “made highly prejudicial remarks that were
unsupported by the record and injected new and harmful facts
into the case.” While the prosecutor’s comment was
inappropriate, we cannot agree this harm warrants the remedy of
The approved general areas of argument are: (1) summation of
the evidence, (2) reasonable deduction from the evidence, (3)
answer to argument of opposing counsel, and (4) plea for law
enforcement. Hathorn v. State, 848 S.W.2d 101, 117 (Tex.Crim.App.
1992), cert. denied, 113 S.Ct 3062 (1993). Even when an
argument exceeds the permissible bounds of these approved areas,
such will not constitute reversible error unless, in light of
the record as a whole, the argument is extreme or manifestly
improper, violative of a mandatory statute, or injects new facts
harmful to the accused into the trial proceeding. Todd v.
State, 598 S.W2.d 286, 296-97 (Tex.Crim.App. 1980). The
remarks must have been a willful and calculated effort on the
part of the State to deprive appellant of a fair and impartial
trial. Cantu v. State, 939 S.W.2d 627, 633 (Tex.Crim.App.),
cert. denied, 118 S.Ct. 557 (1997). In most instances, an
instruction to disregard the remarks will cure the error.
Wilkerson v. State, 881 S.W.2d 321, 327 (Tex.Crim.App.),
cert. denied, 115 S.Ct 671 (1994); Cooks v. State,
844 S.W.2d 697, 727 (Tex.Crim.App. 1992), cert. denied,
113 S.Ct. 3048 (1993).
Clearly, it is improper to invite the jury to speculate on
the existence of evidence not presented and such was the case
here. However, the prosecutor’s comment was quickly followed by
an instruction to disregard from the trial court which we
presume was complied with by the jury. See Colburn v. State,
966 S.W.2d 511, 520 (Tex.Crim.App. 1998).
Only offensive or
flagrant error warrants reversal when there has been an
instruction to disregard, and, in the case at bar, this comment
was not so flagrant that the instruction to disregard was
ineffective. See Wilkerson v. State, 881 S.W.2d at 327.
The twelfth point of error is overruled.
In the sixth point of error, appellant argues the trial court
erroneously denied his motion to suppress evidence that had been
obtained in violation of his Sixth Amendment right to counsel.
Immediately prior to the punishment stage of trial, counsel for
appellant filed a motion to suppress certain evidence that would
be used by the State to establish appellant’s future
dangerousness but was arguably obtained in violation of his
Sixth Amendment right to counsel.
This evidence allegedly
established an attempt by appellant to solicit the murder of
various individuals, including witnesses at appellant’s own
trial. A hearing was held on the matter, and the following facts
were developed through the testimony of two witnesses: a
jailhouse informant and an investigator with the Harris County
Sheriff’s office. This testimony and audiotaped recordings of
appellant were then introduced at the punishment stage of trial.
The informant was Phillip Jones, an occupant of the Harris
County Jail, who became acquainted with appellant in March of
1998, about three months prior to appellant’s trial. During
numerous conversations between the two, appellant expressed a
desire to hire someone willing to kill his first wife9
and her common law husband.
Eventually, health problems arose
for appellant forcing him to be removed from the general
population of the jail and moved to the infirmary. Jones, hoping
to exploit this information about appellant, then contacted law
enforcement agents through the local Crime Stoppers program. He
informed a detective from the Houston Police Department about
appellant’s hopes to arrange the murder of his first wife and
her common-law husband, and offered his services to obtain more
information from appellant on the solicitation matter.
In return, the State agreed to provide a good word on Jones’ behalf
during the prosecution of his pending charges. At this point,
appellant’s trial was scheduled to begin with the presentation
of evidence in the next couple of weeks. The district attorney’s
office and police investigators acted in concert to develop a
plan that would place Jones back with appellant in order to
elicit additional information. Jones was instructed to “arrange”
a meeting between appellant and Gary Johnson, an undercover
investigator who would pose as a hit man.10
time this was plan was initiated, the trial was in its opening
days. Jones was transferred to the section of the jail housing
appellant and had instructions to “get into a conversation” with
appellant and “try to introduce Johnson as a hit man.” Jones did
manage to engage in this conversation about the solicitation,
and appellant, not only reiterated the desire to have his first
wife and her husband killed, but added five other individuals to
his list, four of whom were witnesses who had testified or were
going to testify against him at the guilt/innocence stage of
trial.11 Appellant eventually provided Jones a list
of names of those he wanted “taken out” and the type of car each
Jones managed to contact Johnson, the “hit-man,” over the
phone. Appellant got on the line and talked at length about his
desire to have these individuals killed. The next day, however,
appellant was placed in contact with Johnson again and called
off the arrangement saying he was afraid their conversations
were being tape recorded by jailers.12 Harry Fikaris,
a Harris County detective, testified that Phillip Jones, as an
informant, was “working for [him] and the State of Texas in this
matter,” and the objective of this investigation was to obtain
evidence for a solicitation of murder case. Fikaris also
admitted, however, that “there [was] no question in [his] mind”
that the information and evidence obtained would be used against
appellant during the prosecution of this capital murder case.
At the conclusion of this hearing, the trial judge determined
that no Sixth Amendment violation had taken place because no
right to counsel had attached with regard to the solicitation
offense, and evidence obtained from appellant on this matter
was, therefore, admissible. The motion to suppress was denied.
Appellant argues on this appeal that “the activities of Jones
and the officers violated [his] Sixth Amendment right to
counsel.” In response, the State contends that, while the right
to counsel had attached to the capital murder offense, it had
not attached with regard to the solicitation offense, and
investigators were free to question appellant in this matter.
Additionally, the State argues, if this Court were to agree with
appellant, it would effectively “prevent police from ever
questioning a suspect about a crime when that suspect is already
in custody for another offense.” For the reasons explained
below, a violation of appellant’s Sixth Amendment right to
counsel regarding the capital murder offense did occur.
The Sixth Amendment to the United States Constitution
guarantees that “[i]n all criminal prosecutions, the accused
shall enjoy the right. . . to have the Assistance of Counsel for
his defence.” U.S. Const., amend VI. This right to counsel was
made applicable to state felony prosecutions by the Due Process
Clause of the Fourteenth Amendment. Gideon v. Wainwright,
83 S.Ct. 792, 797 (1963); U.S. Const., amend XIV. Attachment of
this right occurs at all critical stages of prosecution,
including post-indictment interrogations. Michigan v. Jackson,
106 S.Ct. 1404, 1408 (1986); United States v. Henry, 100
S.Ct. 2183 (1980); State v. Frye, 897 S.W.2d 324, 327 (Tex.Crim.App.
1995); Holloway v. State, 780 S.W.2d 787 (Tex.Crim.App.
This right to counsel is considered offense specific and
cannot be invoked once for all future prosecution. McNeil v.
Wisconsin, 111 S.Ct. 2204, 2207 (1991). However, the accused
is guaranteed, at least after the initiation of formal charges,
the right to rely on counsel as a “medium” between him and the
State for matters concerning that specific offense. Maine v.
Moulton, 106 S.Ct. 477, 487 (1985).
The State is then
obligated to not act in a manner that circumvents the
protections accorded the accused by invoking his right. Ibid.
The Sixth Amendment is violated when the State obtains
incriminating statements by knowingly circumventing the
accused’s right to have counsel present in a confrontation
between the accused and a state agent. Ibid. The Sixth
Amendment right to the assistance of counsel is of such
importance that the police may no longer employ techniques for
eliciting information from an uncounseled defendant that may
have been entirely proper at an earlier stage of their
investigation. Michigan v. Jackson, 106 S.Ct. 1404, 1409
Thus, the surreptitious employment of a cellmate (see
United States v. Henry, 100 S.Ct. 2183 (1980)) to
“deliberately elicit” information violates the defendant’s Sixth
Amendment right to counsel even though the same methods of
investigation might have been permissible before arraignment or
indictment. Michigan v. Jackson, 106 S.Ct. at 1409. On
the other hand, the use of a cellmate as informant contains no
Sixth Amendment implications if the informant relays information
he/she passively obtained. Kuhlmann v. Wilson, 106 S.Ct
However, if an informant acting on behalf of the
government deliberately used his position to secure
incriminating information from the defendant when counsel was
not present, and the informant had “stimulated” conversations
with the defendant, even without direct questioning, in order to
elicit incriminating information, this amounts to an “indirect
and surreptitious interrogation.” Id. at 2629. See also
United States v. Henry, 100 S.Ct. 2183, 2186-88 (1980).
By intentionally creating a situation likely to induce
appellant to make incriminating statements without the
assistance of counsel, the State violated appellant’s Sixth
Amendment right to counsel. Jones, as an informant, was not
housed with appellant to act as a passive “listening post.” He
was sent in with instructions to exploit the existing
relationship he had forged with appellant in order to
“deliberately elicit” incriminating information regarding the
solicitation of murder.13 See United States v.
Henry, 100 S.Ct. 2183, 2187 (1980).
This information was
then to be used at appellant’s capital murder trial to help
satisfy the State’s burden of establishing that appellant posed
a continuing threat to society. Just as a psychiatrist, acting
as a state agent, cannot elicit information that would be used
to help demonstrate future dangerousness without counsel being
notified first (see Estelle v. Smith, 101 S.Ct. 1866
(1981)), so too, a jail house informant, acting at the behest of
the State, cannot elicit information to be used at any stage of
trial concerning charges in which the Sixth Amendment right to
counsel had already attached and counsel had not been notified.
The State’s arguments that it was conducting a separate
investigation detached from the capital murder offense and law
enforcement’s efforts to investigate these new or additional
crimes would be unfairly impinged have both been addressed in
past cases. The motive of the government in obtaining this
information from appellant is irrelevant.
To allow the admission of evidence obtained from the
accused in violation of his Sixth Amendment rights whenever
the police assert an alternative, legitimate reason for
their surveillance invites abuse by law enforcement
personnel in the form of fabricated investigations and risks
the evisceration of the Sixth Amendment right recognized in
Massiah.14 On the other hand, to exclude
evidence pertaining to charges as to which the Sixth
Amendment right to counsel had not attached at the time the
evidence was obtained, simply because other charges were
pending at that time, would unnecessarily frustrate the
public’s interest in the investigation of criminal
activities. Consequently, incriminating statements
pertaining to pending charges are inadmissible at the trial
of those charges, notwithstanding the fact that the police
were also investigating other crimes, if, in obtaining this
evidence, the State violated the Sixth Amendment by
knowingly circumventing the accused’s right to the
assistance of counsel.
Maine v. Moulton, 106 S.Ct. 477, 489 (1985). This
balance protects society’s interest in allowing police to
investigate new or additional crimes, but recognizes that the
State’s investigative powers concerning the indicted offense are
limited by the accused’s Sixth Amendment right to counsel.
We see no obstacle to the State using this evidence of
solicitation at a trial on those charges because the Sixth
Amendment right to counsel had clearly not attached with regard
to that offense. Additionally, in any future punishment
proceedings concerning the capital murder offense, prosecutors
are also free to utilize whatever relevant information the
informant obtained before he became an agent for the State.
However, that evidence obtained by Jones after the State
procured his services and which Jones elicited in order to help
demonstrate appellant’s future dangerousness was inadmissible at
his capital murder trial because it was obtained in violation of
his Sixth Amendment right to counsel.
Having determined an error of constitutional magnitude
occurred, we now conduct the concomitant harmless error analysis
to determine if reversal of appellant’s punishment is
appropriate. Tex. R. App. Pro. 44.2(a).15 See
Chapman v. California, 87 S.Ct. 824, at 829 (1967) (the
critical inquiry is whether the error may have contributed to
appellant’s conviction or punishment). If there is a reasonable
likelihood that the error materially affected the jury’s
deliberations, then the error was not harmless beyond a
reasonable doubt. Satterwhite v. Texas, 108 S.Ct. 1792,
We must be able to conclude from the record that
the erroneously admitted evidence was, in fact, harmless as to
punishment beyond a reasonable doubt. Ex Parte Russell,
738 S.W.2d 644, 646 (Tex.Crim.App. 1986). An appellate court
should not focus on the propriety of the outcome of the trial.
Garcia v. State, 919 S.W.2d 370, 380 (Tex.Crim.App.
1994). Instead, the appellate court should calculate as much as
possible the probable impact of the error on the jury in light
of the existence of other evidence. Miles v. State, 918
S.W.2d 511, 517 (Tex.Crim.App. 1996) (plurality opinion);
Harris v. State, 790 S.W.2d 568, 586-87 (Tex.Crim.App.
While the most significant concern must be the error and
its effects, the presence of overwhelming evidence supporting
the finding in question can be a factor in the evaluation of
harmless error. Moreno v. State, 858 S.W.2d 453, 466 (Tex.Crim.App.
1993), cert. denied, 114 S.Ct. 1389 (1994). If an
appellate court rules that an error is harmless, it is in
essence asserting that the nature of the error is such that it
could not have affected the jury. Miles v. State, 918 S.W.2d
at 517; Harris v. State, 790 S.W.2d at 586-87. Stated in
an interrogatory context, a reviewing court asks if there was a
reasonable possibility that the error, either alone or in
context, moved the jury from a state of nonpersuasion to one of
persuasion as to the issue in question. Jones v. State,
833 S.W.2d 118, 127 (Tex.Crim.App. 1992), cert. denied,
113 S.Ct. 1285 (1993).
To support a finding of future dangerousness in the case at
bar, prosecutors relied on the facts of the crime itself, the
unadjudicated extraneous solicitation offense, and several bad
acts committed by appellant.16 Aside from evidence of
a horrific killing spree that left five people dead, jurors
heard from Phillip Jones, who, before he became an agent for law
enforcement, independently discovered appellant’s efforts to
solicit the murders of two individuals. Jones’ testimony about
these particular facts was free from any Sixth Amendment
The jury, at that point, validly possessed a critical
indicator of future dangerousness: that appellant, despite his
incarceration for a brutal multiple homicide, was willing to
arrange and condone further murders, this time by proxy. Any
additional, inadmissible testimony of appellant’s hopes to
expand his list of desired targets was of minimal consequence.
In other words, because the jury possessed details of both the
crime itself and the solicitation to murder, there is no
reasonable likelihood that the inadmissible portion of Jones’
testimony, considered either alone or in context, moved the jury
from a state of nonpersuasion to persuasion regarding the issue
of future dangerousness. See, e.g., Lagrone v. State, 942
S.W.2d 602, 620 (Tex.Crim.App. 1997), cert. denied, 118
S.Ct. 305 (1997). The error that occurred was harmless beyond a
reasonable doubt. We overrule appellant’s sixth point of error.
In a related matter, appellant claims in his first point of
error that the judge appointed to decide a motion to recuse the
trial judge from this case abused his discretion in denying the
claim. Counsel for appellant filed a motion to disqualify the
Honorable Jan Krocker from the case on the grounds she
participated in two ex parte meetings with prosecutors
three days before the start of testimony concerning the ongoing
solicitation investigations involving appellant. These meetings
were memorialized by the court reporter, they were offered as
evidence during the recusal hearing, and made available for
appellate review. During these ex parte discussions the
prosecutors informed Judge Krocker of their investigative
Appellant contends that engaging in these
ex parte communications was a violation of the Code of
Judicial Conduct,18 and by exposing herself to this
potentially incriminating information, the impartiality of Judge
Krocker was compromised. Specifically, appellant argues Judge
Krocker should have been recused (or disqualified) because she
was to rule on the admissibility of the very evidence she
permitted the State to generate. The result, appellant claims,
is a violation of his Fourteenth Amendment right to due process.
After appellant filed his motion to disqualify, and pursuant
to Texas Rule of Civil Procedure 18a, another judge was assigned
to rule on the motion. A hearing was held on the matter in which
Judge Krocker was called to testify. Also, the record from those
two ex parte meetings was introduced in evidence. Based
on this information, the appointed judge denied appellant’s
motion to disqualify.
The refusal of a defendant’s motion to disqualify is
reviewable only for abuse of discretion. Tex. R. Civ. Pro.
18a(f). See Kemp v. State, 846 S.W.2d 289, 306 (Tex.Crim.App.
1992), cert. denied, 113 S.Ct. 2361 (1993). An appellate
court should not reverse a trial judge whose ruling on the
motion was within the zone of reasonable disagreement. Ibid.
Additionally, “mere violations of the Code of Judicial Conduct
alone, do not constitute reversible error. . ., and . . . [u]nethical
conduct. . . is not necessarily a legal ground for reversal.”
Kemp v. State, 846 S.W.2d at 305.
Even assuming arguendo
that a violation of the Code of Judicial Conduct did occur, and
also assuming arguendo that it is possible such a
violation has the potential to rise to the level of reversible
error, appellant has failed in this case to demonstrate
sufficient harm resulting from this alleged violation to the
degree a reversal would be warranted. It is true that while
sufficient bias can result in disqualification, it does so only
in those cases in which the bias is shown to be of such a nature
and to such an extent as to deny a defendant due process of law.
McClennan v. State, 661 S.W.2d 108, 109 (Tex.Crim.App.
The State argued at the hearing on this matter that no
showing was made by appellant that indicated Judge Krocker was
influenced or biased in any way as a result of these two ex
parte communications. The judge appointed to hear this
disqualification motion agreed, and so do we. The defendant
failed to demonstrate at the hearing, as was his burden, that
Judge Krocker possessed any bias, much less sufficient bias that
would have interfered with appellant’s rights to due process. It
is within the zone of reasonable disagreement that the
presumption of judicial impartiality was not overcome by
appellant. The assigned judge did not abuse his discretion in
denying appellant’s motion to disqualify Judge Krocker. Tex. R.
Civ. Proc. 18a(f). See Kemp v. State, 846 S.W.2d at 306.
Appellant’s first point of error is overruled.
In the seventh point of error, appellant argues the trial
court erroneously denied a requested jury instruction in the
court’s charge at punishment. Specifically, appellant claims he
was entitled to a jury instruction pursuant to Article 38.23
because, in reference to the testimony of the informant, Phillip
Jones, “the evidence raise[d] an issue about the legality of
evidence obtained by the State.” Regardless, a trial court is
required to include an Article 38.23 instruction in the jury
charge only if there is a factual dispute as to how the evidence
was obtained. Thomas v. State, 723 S.W.2d 696, 707
In the instant case, there was no dispute
as to the facts surrounding the acquisition of Jones’ testimony.
The only determination to be made in this case was of a legal
nature, not factual. See Bell v. State, 938 S.W.2d 35, 48
(Tex.Crim.App. 1996), cert. denied, 118 S.Ct. 90 (1997).
Appellant was not entitled to the requested jury instruction. We
overrule the seventh point of error.
Appellant, in his eighth and ninth points of error, claims
the trial court erred in denying him the opportunity to examine
potential jurors on the issue of parole and also erred by
denying a requested jury instruction on parole eligibility in
the court’s charge at punishment. We have addressed and
overruled each point of error in past cases and there is no need
to revisit these issues. See Shannon v. State, 942 S.W.2d
591, 596 (Tex.Crim.App. 1996); Green v. State, 934 S.W.2d
92, 105-06 (Tex.Crim.App. 1996), cert. denied, 117 S.Ct.
1561 (1997); Felder v. State, 758 S.W.2d 760, 761
(Tex.Crim.App. 1988), cert. denied, 114 S.Ct. 95 (1993).
Points of error eight and nine are overruled.
In appellant’s thirteenth and final point of error, he
contends the trial court erroneously failed to submit his
requested instruction on renunciation into the jury charge at
the punishment stage of trial. See Tex. Pen. Code § 15.04.19
The proposed renunciation instruction, it is argued, was
necessary after appellant called off his agreement with Gary
Johnson, the undercover “hit man,” because he was afraid his
phone conversations were being recorded by jail personnel. In
response, the State contends Section 15.04 (b) is inapplicable
because the affirmative defense instruction would only apply to
a prosecuted offense under Section 15.02 or Section 15.03.
agree with the State’s argument, but there is yet another reason
why appellant’s proposed instruction would have been
inappropriate. Appellant called off his agreement with Johnson
only because he was afraid their phone conversations were
susceptible to electronic eavesdropping. Appellant did not
renounce his intent to solicit the murders, and he did not take
“affirmative action” to prevent the commission of the object
offense. See Hackbarth v. State, 617 S.W.2d 944, 946 (Tex.Crim.App.
1981). There was no evidence that would have supported an
instruction on renunciation. The trial court did not abuse its
discretion in refusing its submission. Point of error thirteen
Finding no reversible error, we affirm the judgment of the
DELIVERED: September 20, 2000
1 All references to Articles are to those in the
Texas Code of Criminal Procedure in effect at the time of trial.
2 There was some conflict over appellant’s actual
statement at this point. Defense counsel pointed out on
cross-examination that during an earlier hearing the sheriff’s
deputy who testified about this statement indicated that
appellant had replied, “My wife, that’s who I came here to see.”
3 A neighbor testified that sometime during the
evening appellant’s truck was heard driving off and then
returned about thirty minutes later. Appellant testified that he
and Rogers left together to get more beer. Prosecutors presented
an alternative argument that appellant actually left alone in
his truck to retrieve his rifle from home. Appellant denied this
and claimed his rifle always remained in his truck.
4 The truck’s keys were finally recovered from the
sister of Antonio Cruz. After her brother’s autopsy, she was
allowed to retrieve his belongings and found them in the pocket
of his pants.
5 Prosecutors argued that, as evidenced by the
live round found on the ground outside the apartment, as
appellant checked to ensure the rifle was loaded, he ejected a
round from the rifle’s chamber and then replaced the bullet with
one of several he stored in his truck.
6 Appellant’s argument rests on the proposition
that the Legislature envisioned the killing of multiple people
arising from “sudden passion” because this passion can arise
“out of provocation by the individual killed or another
acting with the person killed. . . .” Tex. Pen. Code §
19.02(a)(2) (emphasis supplied). Appellant places a great deal
of faith in this emphasized phrase, faith that we feel is
misguided. A commonsense reading of the definition of “sudden
passion” describes the killing of only one person; provocation
by the individual killed or another acting with the
person killed. The language in this definition is couched in
singular terms. Appellant’s contention that the Legislature
intended that the defense of “sudden passion” include the murder
of more than one person has no merit.
7 For those murders committed after August 31,
1994, a defendant could attempt to prove the issue of sudden
passion by a preponderance of the evidence only at the
punishment stage of trial. Tex. Pen. Code § 19.02(d). The option
of convicting a defendant of voluntary manslaughter was no
longer available. See Moore v. State, 969 S.W.2d 4, 9
8 Even if a limiting instruction would have been
appropriate, appellant, under the circumstances, would have
waived any error. A party opposing evidence has the burden of
objecting and requesting the limiting instruction at the
introduction of the evidence. Tex. R. Crim. Evid. 105. See
Garcia v. State, 887 S.W.2d 862, 878 (Tex.Crim.App. 1994),
cert. denied, 115 S.Ct. 1368 (1995) (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). Appellant’s
objection and request for the limiting instruction occurred just
prior to arguments before the jury and, therefore, was untimely.
9 Gloria Coons, one of the victims in this case,
was appellant’s second wife.
10 This “hit man,” as Jones was told to explain to
appellant, was someone who owed the informant a favor and would
agree to carry out the arranged murders.
11 The fifth name on the list was a fellow inmate
of appellant at the Harris County jail.
12 The conversations appellant had with Johnson
were, in fact, recorded, not by jailers, but by investigators
and were introduced as evidence during the punishment phase of
trial and played for the jury.
13 It is clear that investigators considered Jones
an agent of the State. Jones, too, considered himself to be an
agent for the State, and even the trial judge as she heard
arguments on the matter referred to Jones as “an agent of law
14 Massiah v. United States, 84 S.Ct. 1199
15 Tex. R. App. Pro. 44.2(a) reads:
If the appellate record in a criminal case reveals
constitutional error that is subject to a harmless error
review, the court of appeals must reverse a judgment of
conviction or punishment unless the court determines beyond
a reasonable doubt that the error did not contribute to the
conviction or punishment.”
16 These extraneous bad acts, for the most part,
amounted to threats of violence that were made by appellant to a
variety of individuals over a number of years. During at least
one of these threats appellant brandished a gun.
17 During these meetings, Judge Krocker was always
cognizant of the need to inform defense counsel of these events
as soon as was realistically possible without jeopardizing the
18 Tex. Gov’t Code T.2, Subt. G, App. B, Jud.
Conduct, Canon 3(B)(8):
A judge shall accord to every person who has legal interest
in a proceeding, or that person’s lawyer, the right to be
heard according to law. A judge shall not initiate, permit,
or consider ex parte communications or other
communications made to the judge outside the presence of the
parties between the judge and a party [or] an attorney . . .
concerning the merits of a pending or impending judicial
proceeding. . . .
19 Section 15.04 reads in relevant part:
(b) it is an affirmative defense to prosecution under
Section 15.02 or 15.03 [criminal solicitation] that under
circumstances manifesting a voluntary and complete
renunciation of his criminal objective the actor
countermanded his solicitation or withdrew from the
conspiracy before commission of the object offense and took
further affirmative action that prevented the commission of
the object offense.