In the Court of
Criminal Appeals of Texas
No. AP-75,477
Joe Franco
Garza, Jr,, Appellant
v.
The State of Texas
On Direct Appeal from Lubbock County
Meyers,
J., delivered the opinion of the Court, in which
Keller, P.J., and Price, Keasler, Hervey, Holcomb, and
Cochran, JJ., joined. Womack and Johnson, JJ.,
concurred.
O P I N I O N
Appellant was convicted in April 2000
of capital murder committed on December 31, 1998. Tex.
Penal Code Ann. ? 19.03(a)(2). Based on the jury's
answers to the special issues set forth in the Texas
Code of Criminal Procedure, Article 37.071, sections
2(b) and 2(e), the trial judge sentenced appellant to
death. Art. 37.071, ? 2(g). (1)
This Court affirmed appellant's conviction and
sentence on direct appeal. Garza v. State,
No. AP-73,850 (Tex. Crim. App. Sept. 18, 2002) (not
designated for publication). This Court denied relief
on his Article 11.071 application for a writ of habeas
corpus. Ex parte Garza, No. WR-56,961-01 (Tex.
Crim. App. Oct. 22, 2003). He then filed an
application for a writ of habeas corpus in federal
district court, where relief was granted on his claim
of ineffective assistance of counsel for failing to
obtain and use mitigating evidence at punishment. The
federal district court vacated his death sentence and
remanded the case to the trial court with instructions
to conduct a new punishment hearing or to impose a
life sentence. Garza v. Dretke, No.
5:03-CV-284-C (N.D. Tex.-Lubbock Aug. 31, 2005).
Following a new punishment hearing, based on the
jury's answers to the special issues, the trial court
again sentenced appellant to death on April 24, 2006.
Direct appeal to this Court is automatic. Art. 37.071,
? 2(h). After reviewing appellant's fourteen points of
error, we find them to be without merit. Consequently,
we affirm the trial court's judgment and sentence of
death.
FUTURE DANGEROUSNESS
In appellant's ninth point of error, he
argues that the evidence is legally insufficient to
support an affirmative finding on the issue of future
dangerousness. When reviewing the future-dangerousness
special issue, we view the evidence in the light most
favorable to the verdict and determine whether any
rational trier of fact could have found beyond a
reasonable doubt that there is a probability that
appellant would commit criminal acts of violence
constituting a continuing threat to society. See
Wardrip v. State, 56 S.W.3d 588 (Tex. Crim. App.
2001). In some cases, the circumstances of the offense
"can be among the most revealing evidence of future
dangerousness and alone may be sufficient to support
an affirmative answer to that special issue." Id.
(quoting Wilson v. State, 7 S.W.3d 136, 142 (Tex.
Crim. App. 1999)).
Here, the jury heard that appellant had
been drinking at his cousin's house when someone there
called the 71-year-old victim, Silbiano Rangel, and
asked him to come over. Rangel gave appellant and his
cousin a ride to a liquor store to buy beer. After
they got to the store, appellant and his cousin
realized that they had no money. Rangel then drove
them to the house of a friend, where appellant's
cousin went inside to try to borrow money. While she
was in the house, appellant, who was sitting behind
Rangel, strangled him with a sock. When his cousin
returned to the truck, appellant ordered her to help
him move Rangel's body into the back of the truck. He
took Rangel's wallet, jewelry, and truck, and he
dropped his cousin off at her friend's house. He drove
the stolen truck to the house of his 13-year-old
pregnant girlfriend, where he lied to Rangel's friend
who noticed the truck and asked about Rangel. He then
woke his girlfriend and took her with him to Dallas in
Rangel's truck, stopping along the way to pawn
Rangel's ring and make purchases with Rangel's checks.
While in Dallas he gave or sold the truck to a
stranger and borrowed money from a friend. He and his
girlfriend returned by bus to Lubbock. Later, he
bought a newspaper and read it to see if there had
been a report of Rangel's death.
The morning after the murder, Rangel's
body was found on the side of the road with the sock
still tied around his neck. There was testimony that
Rangel's injuries were consistent with him having
struggled before he died. The medical examiner
testified that injuries on Rangel's face were
consistent with blunt force trauma.
Appellant's prior juvenile
adjudications included burglary and arson. He had been
belligerent to a police officer who had stopped a
stolen car in which appellant was a passenger. He had
attempted to escape from the juvenile justice center
by kicking out the windows, and he had fought with the
responding officers. He was arrested for carrying a
homemade dagger when he was seventeen years old. As an
adult, appellant had been arrested for public
intoxication more than once. There was evidence that
he had assaulted his girlfriend's sister by punching
her in the face and then chasing her to a closet. He
broke down the closet door and then kicked her
repeatedly as she lay on the closet floor. He did not
stop until the police arrived, and then he fled the
house. He had stolen a car, guitar, and leather jacket
from a man who had given him a ride in the rain. The
records introduced by the State revealed that by the
time of the instant offense, appellant had been
adjudicated delinquent as a juvenile or convicted as
an adult of several offenses including burglary,
criminal mischief, theft, arson, evading arrest,
resisting arrest, attempted escape, and aggravated
robbery. Appellant was on parole from a burglary
conviction when he committed the instant offense.
Appellant's prison disciplinary record
included numerous disciplinary violations, such as
possessing homemade weapons, assaulting inmates, and
verbally threatening and verbally abusing corrections
officers. One inmate that he assaulted required
seventeen stitches after the attack. Another
disciplinary violation involved throwing hot water at
a corrections officer. In addition, appellant had been
investigated as a possible prison-gang member in 1994
and 1995. During an interview that was conducted as
part of that investigation, appellant did not admit to
being a gang member, but he told gang- intelligence
officers that if the San Antonio inmates were not
shipped off the unit, they would be "shipped off in
coffins." Although appellant's gang membership was not
confirmed at that time, the Security Threat Group ("STG")
management office of the Texas Department of Criminal
Justice ("TDCJ") later confirmed appellant as a Texas
Syndicate ("TS") gang member.
The evidence presented at trial was
such that a rational jury could find beyond a
reasonable doubt that there was a probability that
appellant would commit criminal acts of violence
constituting a continuing threat to society. We hold
the evidence to be legally sufficient to support the
jury's answer to the future-dangerousness special
issue. Point of error nine is overruled.
VOIR DIRE
In his first six points of error,
appellant complains of trial court errors during
individual jury voir dire. In points one, two, and
four through six, he alleges error in the trial
court's denying his challenges for cause to
prospective jurors. Appellant sufficiently preserved
these points for appellate review. See Saldano v.
State, 232 S.W.3d 77, 91 (Tex. Crim. App. 2007),
cert. denied, 128 S. Ct. 1446 (2008).
In appellant's first point of error, he
argues that the trial court erred when it denied his
challenge for cause against prospective juror Gerald
Smith, thereby violating his rights under the Fifth
and Fourteenth Amendments to the United States
Constitution, Article 1, sections 13 and 19 of the
Texas Constitution, and Article 35.16(c)(2) of the
Texas Code of Criminal Procedure. Appellant argues
that Smith responded in the affirmative when defense
counsel asked him whether the fact that appellant had
been convicted of capital murder was some evidence of
future dangerousness, such that appellant would be "starting
out a little behind." Appellant further asserts that
Smith stated that he might not be able to follow the
court's charge that he was not to consider the
possibility of parole.
When reviewing a trial court's decision
to grant or deny a challenge for cause, we look at the
entire record to determine if there is sufficient
evidence to support the court's ruling. We give great
deference to the trial court's decision because the
trial judge is present to observe the demeanor of the
prospective juror and to listen to his tone of voice.
See Feldman v. State, 71 S.W.3d 738, 744 (Tex.
Crim. App. 2002). The proponent of a challenge for
cause has the burden of establishing that his
challenge is proper. The proponent does not meet his
burden until he has shown that the prospective juror
understood the requirement of the law and could not
overcome his prejudice well enough to follow it.
Id. at 747.
A juror who would automatically say "life"
or "death" without knowing more than the fact of
conviction, or who would not be able to consider all
the evidence in making a decision as to which
punishment to impose, is challengeable for cause
because he is not impartial. See Morgan v.
Illinois, 504 U.S. 719, 729 (1992). Any
prospective juror who would automatically answer the
future-dangerousness special issue in the affirmative,
or who would place the burden of proof on the defense,
is challengeable for cause under Article 35.16(c)(2)
for having a bias or prejudice against a law
applicable to the case upon which the defense is
entitled to rely. See Ladd v. State, 3 S.W.3d
547, 559 (Tex. Crim. App. 1999). It is not error on
the part of the trial court to deny a challenge for
cause to a prospective juror who gives equivocal
answers on whether he would automatically say "yes" to
one of the punishment issues. Ladd, 3 S.W.3d
at 559; Banda v. State, 890 S.W.2d 42, 55 (Tex.
Crim. App. 1994).
Here, Smith stated that he understood
the word "probability," as part of the future-
dangerousness special issue, to mean "possibility." He
responded affirmatively when defense counsel asked him
whether the defense would be starting out "a little
bit behind" because of the fact that appellant had
already been convicted of capital murder committed
during the course of robbery. After defense counsel
explained that "probability" meant "more likely than
not," Smith continued to indicate that the fact that
appellant had already been convicted of capital murder
would have some influence or evidentiary value in his
consideration of the future-dangerousness special
issue.
Concerning parole eligibility, Smith
stated that he did not know how the knowledge that the
defendant would be eligible for parole in forty years
would affect his deliberations.
(2) Initially, he indicated that he would
not be able to follow an instruction not to consider
the issue of parole. However, he then indicated that
the issue of parole would not influence how he voted
on the special issues and would not cause him to make
sure that the defendant received a death sentence. He
affirmed on redirect that the parole issue would not
influence him and cause him to answer the special
issues in such a way as to impose a death sentence.
The trial court did not abuse its
discretion in denying appellant's challenge for cause
to Smith. His responses did not show that he would
automatically answer the future-dangerousness issue in
the affirmative. The fact that appellant had been
convicted of capital murder committed during the
course of a robbery was a factor that Smith could, but
was not required to, consider in determining
punishment. Cf. Standefer v. State, 59 S.W.3d
177, 179 (Tex. Crim. App. 2001); see also Sadler
v. State, 977 S.W.2d 140, 143 (Tex. Crim. App.
1998). Smith's responses concerning whether he would
be able to follow an instruction not to consider the
possibility of parole were equivocal. Point of error
one is overruled.
In appellant's second point of error,
he argues that the trial court erred when it denied
his challenge for cause against prospective juror Juan
Camacho. Appellant argues that Camacho lacked the
intellectual capacity to understand the legal concepts
involved and that he had a limited understanding of
the English language.
Defense counsel questioned Camacho
about specific terms that would be included in the
issues submitted to the jury. Concerning "probability,"
Camacho first stated, "To me, it's somebody's opinion."
When pressed further, he stated, "All right, they have
done something. Do you think they're going to do it
again?" When asked to define a "criminal act of
violence," Camacho stated, "anything - not obeying the
law." As to "society," Camacho stated, "Society is
where we're living in right now." Counsel asked, "All
of us?" and Camacho answered, "Yes." Asked to define
"personal moral culpability," he offered, "Whatever
you would think. I mean, your thoughts about the -" at
which point counsel interjected, "You mean a juror's
opinion about a person's morals?" and Camacho
responded affirmatively. When questioned about "mitigating,"
Camacho stated that he really did not know what "mitigating"
meant. Counsel then asked him whether he could read
and write and how far he had gone through school. He
responded that he could read and write and that he had
graduated from Lubbock High School. When counsel asked
him again about the meaning of "personal moral
culpability" and "mitigating," Camacho indicated that
he did not "catch" all of the question but that he
thought the question was asking why the defendant
committed the crime.
Counsel then challenged Camacho for
cause based on Article 35.16(a)(5):
[I]n that his answers to these
questions indicate that he lacks the capacity and
sophistication to understand the legal concepts
discussed and that will be submitted in the special
issues. He does not understand the terms that will be
submitted by the Court in the Charge. And, as a result,
within the definition of Section 5 of Article 36.16
[sic], he is not fit for jury service because of his
limited understanding of the English language.
Further, Your Honor, to permit a person
of this limited understanding of the legal concepts
involved to serve would deny the Defendant due process
of law in violation of the 5th and 14th
Amendment to the Constitution of the United States,
and would deny him due course of law in violation of
Article 1, Sections 13 and 19 of the Texas
Constitution.
He just doesn't have the sophistication
or understanding of the legal terms to be fit for
service, Your Honor.
Article 35.16(a)(5) provides that a
challenge for cause may be made by either the state or
the defense for the reason that:
[T]he juror has such defect in the
organs of feeling or hearing, or such bodily or mental
defect or disease as to render the juror unfit for
jury service, or that the juror is legally blind and
the court in its discretion is not satisfied that the
juror is fit for jury service in that particular
case[.]
A "mental defect" may be present when
the prospective juror's responses show an inability to
understand the jury's role in capital proceedings.
Matamoros v. State, 901 S.W.2d 470, 476 (Tex.
Crim. App. 1995).
The trial court did not abuse its
discretion in denying appellant's challenge for cause.
Camacho's answers to the questions posed by defense
counsel indicated that he was not familiar with some
of the terms that would be included in the issues
submitted to the jury. However, counsel did not
attempt to explain the law to him and ascertain
whether he could understand it. Without more,
Camacho's lack of familiarity with certain terms does
not establish that Camacho was unable to comprehend
his duties as a juror. The record does not show that
he had such a mental defect as to render him unfit for
jury service. Point of error two is overruled.
In appellant's fourth point of error,
he argues that the trial court erred when it denied
his challenge for cause against prospective juror
Earlinda Vickers. (3)
He argues that she would have found him to be a future
danger based solely on the fact of his having been
convicted of capital murder unless he presented
evidence that he would not be a future danger. He also
argues that she shifted the burden to the defense on
the mitigation special issue.
Concerning the future-dangerousness
special issue, Vickers initially responded in the
affirmative when defense counsel asked her if she
would want to hear something from defendant or his
attorneys to convince her that defendant would not be
dangerous. Concerning mitigation, she stated that
after answering the future-dangerousness and anti-parties
special issues in the affirmative, she would have to
hear more in order to determine how to answer the
mitigation special issue. When defense counsel asked
her if she would have to hear testimony or evidence
from the defense before she could answer the
mitigation special issue affirmatively, she responded
that she would. Counsel then asked her whether her
determination of future dangerousness would be
influenced by the fact that she had already found the
defendant guilty of capital murder, and she responded
that it would.
On redirect, Vickers agreed with the
prosecutor that she would not automatically find a
defendant to be a future danger just because he had
already been convicted. She responded affirmatively
when the prosecutor asked her whether it would depend
on the evidence. She stated that she could not foresee
a set of circumstances where she would not answer the
future-dangerousness special issue affirmatively after
finding a defendant guilty of capital murder, but then
she stated that she could see such a set of
circumstances where she could answer the questions in
such a way as to impose a life sentence. In response
to further questioning, Vickers stated that she could
answer the future- dangerousness special issue in the
negative if the circumstances were right. When the
prosecutor asked her if she would always answer "yes"
to the future-dangerousness issue or if it would
depend on the evidence, she stated that it would
depend on the evidence. Vickers gave a similar
response when asked about the mitigation special issue.
After the prosecutor explained to her that the State
had the burden of proof on future dangerousness,
Vickers affirmed that she would not hold it against
the defense if the defense did not present any
evidence. Counsel challenged Vickers for cause,
arguing that she was an automatic vote on the future-dangerousness
special issue and that she was "mitigation impaired."
The trial court did not abuse its
discretion in denying appellant's challenge for cause
against Vickers. The fact that appellant had been
convicted of capital murder was a factor that Vickers
properly could consider in determining punishment. She
initially stated that, in deciding whether appellant
would be a future danger, she would be influenced by
the fact that he had been convicted of capital murder,
but she also stated that she would not automatically
answer the future dangerousness question in the
affirmative and that her answer would depend on the
evidence. Although she could not immediately foresee a
set of circumstances where she would not answer the
future- dangerousness special issue affirmatively
after finding a defendant guilty of capital murder,
she later stated that she could answer the future
dangerousness special issue negatively if the
circumstances were right. Where Vickers's responses
were equivocating, the trial court did not abuse its
discretion by denying appellant's challenges for
cause. Point of error four is overruled.
In appellant's fifth point of error, he
argues that the trial court erred when it denied
appellant's challenge for cause against prospective
juror Charlene Sport. Appellant argues that his
challenge should have been granted because Sport
wanted appellant's lawyers to present some kind of
evidence before she could consider a life sentence.
Initially, concerning the mitigation special issue,
Sport responded in the affirmative when counsel asked
whether she would expect and want the defense to put
on evidence before she could consider a life sentence.
However, when the prosecutor asked her whether she
would consider anything she perceived to be mitigating
even if the defense had not presented it, and whether
under those circumstances she could consider a life
sentence, she agreed that she would. When counsel
asked her to elaborate on her earlier statement about
wanting to hear from the defense, she explained that
she would want to hear from the defense to understand
"where [the defendant] was at the time he committed
the crime" in order to make a good decision on whether
he deserved to live or die. When counsel asked if she
meant that she would want to understand the
defendant's thought processes, she responded
affirmatively.
The trial court did not abuse its
discretion in denying appellant's challenge for cause
against Sport. Although initially she indicated that
she would want to hear from the defense before she
would be willing to consider a life sentence, she then
agreed that she could consider a life sentence if she
became aware of mitigating evidence, even though the
lawyers for the defense had not spoken up. Where the
juror's answers were equivocating, she would not have
been subject to a challenge for cause. Point of error
five is overruled.
In appellant's sixth point of error, he
argues that the trial court erred when it denied his
challenge for cause against prospective juror Dale
Smith. Appellant argues that his challenge should have
been granted because Smith said he would lean toward
the death penalty after finding a person guilty of
capital murder. He argues that Smith also said that
the defense would need to persuade him in some way to
assess a life sentence rather than death. He admits
that the State secured Smith's acknowledgment that the
State would have to prove to him that the defendant
needed to be put to death.
The State initially asked Smith, "[W]ould
you require the defense to put on evidence before you
could answer those questions in such a way that a life
sentence was imposed?" He replied, "I think they would
have to do something before I could answer some of
them." After the prosecutor explained the burden of
proof, Smith agreed that he would not hold the
defense's failure to present evidence against
appellant and that he would not require the defense to
put on evidence before he could answer the questions
in such a way as to impose a life sentence. During
cross examination, he conceded that he would be
curious about the defendant's side of the case if he
did not testify. Smith stated that if the defense did
not present any evidence, he could follow the law and
consider a life sentence, but he might be wondering in
the back of his mind why the defense did not do
anything. He clarified that he would not demand a
defense and he could probably set it aside, although
he would be curious as to why the defense had not done
anything.
When questioned about the mitigation
special issue, Smith responded affirmatively when
defense counsel asked him whether, after a defendant
had been found guilty of capital murder with no
defenses and no justification, he would "lean toward
the death penalty." When counsel asked him whether it
would be necessary for the defense to persuade him
toward a life sentence, he acknowledged that he would
look to the defense to persuade him on mitigation. On
redirect examination, Smith stated that if all he knew
was that a defendant had been convicted of capital
murder, then the prosecutor would have to prove to him
that the defendant needed to be put to death. He
agreed that he could follow the instructions and
consider all the evidence before answering the
mitigation special issue. He responded affirmatively
when the prosecutor asked him whether he could set
aside the defense's failure to present evidence, and
whether the State had the burden of proof. On recross,
Smith again stated that he would not expect the
defense to try to persuade him or present evidence
before he would consider a life sentence.
The trial court did not abuse its
discretion by denying appellant's challenge for cause
against Smith. As to the future-dangerousness special
issue, he stated that he could set aside his personal
feelings and follow the law on the State's burden of
proof. As to the mitigation special issue, he was not
challengeable for cause. Point of error six is
overruled.
In appellant's third point of error, he
complains of error in denying his proposed question to
prospective juror Linda Bridges.
(4) He argues that he was denied the
opportunity to question her about the effect the
victim's age would have on her ability to consider
punishment. Bridges stated that she would have
difficulty being fair in a case where the victim was
elderly. Counsel proposed to ask her, "If it were
shown at trial that the victim were 71, would that be
enough to make you vote in such a way that the death
penalty would be imposed, as opposed to a life
sentence?" The trial court denied counsel's request to
ask this question, explaining that the proposed
question went too much into the specifics of the
particular case.
Bridges was asked to explain a response
she had given on the jury questionnaire, which was
that she supported the death penalty in certain cases.
She volunteered that if the case involved a child or
an elderly person, defense counsel would not want her
on the jury. On further questioning, most of her
answers suggested that she would favor the death
penalty in a case where an elderly victim could not
take care of himself, and the person responsible for
caring for him had murdered him. A few of her answers
suggested that she would favor the death penalty in
any case in which an elderly victim had been murdered.
Concerning the mitigation special issue,
Bridges initially stated that she could not conceive
of any scenario where she would answer the future-dangerousness
issue affirmatively but then also find mitigating
circumstances warranting a life sentence. After the
law had been explained to her, however, she agreed
that she could follow the law and consider mitigating
circumstances even if she answered the first two
special issues affirmatively.
The trial court has broad discretion
over the process of selecting a jury. The trial
court's decision concerning the propriety of a
particular question will not be disturbed absent an
abuse of discretion. A trial court's discretion is
abused only when a proper question about a proper area
of inquiry is prohibited. A question is proper if it
seeks to discover a juror's views on an issue
applicable to the case. However, an otherwise proper
question is impermissible if it attempts to commit the
juror to a particular verdict based on particular
facts. Barajas v. State, 93 S.W.3d 36, 38-39
(Tex. Crim. App. 2002) (citing Standefer v. State,
59 S.W.3d 177, 181 (Tex. Crim. App. 2001)); see
also Atkins v. State, 951 S.W.2d 787, 789 (Tex.
Crim. App. 1997). Furthermore, the trial court may
prohibit "duplicitous questions" so long as
investigation into proper matters is not entirely
prevented. Allridge v. State, 762 S.W.2d 146,
167 (Tex. Crim. App. 1988).
Here, Bridges could, but she was not
required to, consider the victim's age in determining
punishment. She had already stated that she would
favor the death penalty in a case where the victim was
elderly. Therefore, it would have been improper as
well as repetitious for appellant to ask Bridges
whether she would favor the death penalty if it were
shown that the victim was 71 years of age. Appellant
was not entitled to commit Bridges to assess or
refrain from assessing punishment on a specific age.
The trial court did not abuse its
discretion by denying the proposed question. Point of
error three is overruled.
EXPERT WITNESS
In appellant's seventh point of error,
he complains that the trial court erred in admitting
testimony from Gus Vaquera (5)
as an expert on prison gangs because the State failed
to meet its burden to prove that he was qualified to
testify as an expert. Tex. R. Evid. 702. Appellant
complains that Vaquera's training was limited to hours
spent in the field and seminars presented by TDCJ, the
Department of Public Safety, and Sam Houston College.
Appellant asserts that at the Rule 702 hearing,
Vaquera testified that classifying prisoners as gang
members is not a scientific enterprise, but yet he
also implied that there was a "scientific quality" to
his testimony when he stated that only someone with
his specialized training would be able to classify
appellant as a TS prison- gang member based on his
tattoos and his written correspondence. Appellant
urges that the predictive nature of Vaquera's
testimony concerning appellant's gang affiliation (and
therefore his future dangerousness) brought it within
the purview of scientific evidence. At trial, Vaquera
testified to his opinion that appellant was an active,
fairly highly placed member of the TS prison gang.
Texas Rule of Evidence 702 permits a
witness qualified by knowledge, skill, experience,
training, or education to testify on scientific,
technical, or other specialized subjects if the
testimony would assist the trier of fact in
understanding or determining a fact issue. The party
presenting the witness as an expert has the burden of
proving that the expert is qualified. Wyatt v.
State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000). A
witness's qualification to give an expert opinion may
be derived from specialized education, practical
experience, a study of technical works, or a varying
combination of these things.
Id.
When addressing fields of study that
are based primarily upon experience and training as
opposed to the scientific method, the appropriate
questions are: (1) whether the field of expertise is a
legitimate one; (2) whether the subject matter of the
expert's testimony is within the scope of that field;
and (3) whether the expert's testimony properly relies
upon and/or utilizes the principles involved in the
field. Nenno v. State, 970 S.W.2d 549, 561 (Tex.
Crim. App. 1998), overruled on other grounds by
State v. Terrazas, 4 S.W.3d 720, 727 (Tex. Crim.
App. 1999). "A trial court need not exclude expert
testimony simply because the subject matter is within
the comprehension of the average jury." Rodgers v.
State, 205 S.W.3d 525, 527 (Tex. Crim. App.
2006).
"The question of whether a witness
offered as an expert possesses the required
qualifications rests largely in the trial court's
discretion. Absent a clear abuse of that discretion,
the trial court's decision to admit or exclude
testimony will not be disturbed." Nenno, 970
S.W.2d at 561. The appellate court must uphold the
trial court's ruling if it was within the zone of
reasonable disagreement. Weatherred v. State,
15 S.W.3d 540, 542 (Tex. Crim. App. 2000). In addition,
the appellate court must review the trial court's
ruling in light of what was before that court at the
time the ruling was made. Rodgers, 205 S.W.3d
at 528-29.
Appellate courts may consider several
criteria in assessing whether a trial court has
clearly abused its discretion in ruling on an expert's
qualifications, including the complexity of the field
of expertise, the conclusiveness of the expert's
opinion, and the centrality of the area of expertise
to the case:
First, is the field of expertise
complex? The degree of education, training, or
experience that a witness should have before he can
qualify as an expert is directly related to the
complexity of the field about which he proposes to
testify. If the expert evidence is close to the jury's
common understanding, the witness's qualifications are
less important than when the evidence is well outside
the jury's own experience. For example, DNA profiling
is scientifically complex; latent-print comparison (whether
of fingerprints, tires, or shoes) is not. Second, how
conclusive is the expert's opinion? The more
conclusive the expert's opinion, the more important is
his degree of expertise. Testimony that "a given
profile occurred one time in 2.578 sextillion (2.578
followed by 21 zeroes), a number larger than the
number of known stars in the universe (estimated at
one sextillion)" requires a much higher degree of
scientific expertise than testimony "that the
defendant's tennis shoe could have made the bloody
shoe print found on a piece of paper in the victim's
apartment." And third, how central is the area of
expertise to the resolution of the lawsuit? The more
dispositive it is of the disputed issues, the more
important the expert's qualifications are. If DNA is
the only thing tying the defendant to the crime, the
reliability of the expertise and the witness's
qualifications to give his opinion are more crucial
than if eyewitnesses and a confession also connect the
defendant to the crime.
Rodgers,
205 S.W.3d at 528 (internal citations omitted).
At the Rule 702 hearing, Vaquera
testified that he was employed by TDCJ as an STG
coordinator. He testified that he supervised 27 gang
officers throughout the region.
(6) He testified that his duties included
reviewing packets of information submitted by the gang-intelligence
officers who conducted investigations into prisoners'
suspected gang-related activities and making
determinations whether the information submitted was "good
to concur or not concur" with the gang-intelligence
officers' conclusions concerning prisoners' gang
membership. That information would then be submitted
to Huntsville "for confirmation on gang members."
Vaquera testified that he had worked as a gang-intelligence
officer and in the office of the STG coordinator for
over thirteen years. He had attended roughly 400 hours
of training on gang intelligence that was provided by
TDCJ in Huntsville as well as training on gangs that
was provided by other state agencies. He explained
that the courses he had taken dealt with recognizing
the tattoos, slang, and codes used by STG's. He had
been promoted to his position as STG coordinator in
2003. He testified that he had taught courses in the
area of prison-gang identification and that he had
testified previously as a prison-gang expert. He
described the criteria and the process followed within
TDCJ for making a determination whether a person is a
member of a gang. He testified that he had personally
reviewed photographs of tattoos on appellant's body
and that he had also viewed appellant's body to verify
that the photographs were accurate. He had reviewed
the STG file prepared on appellant, including
correspondence between appellant and known TS members.
He described the distinguishing characteristics of
appellant's tattoos that he had identified as
signifying TS membership.
Vaquera acknowledged that his
specialized knowledge was not the product of academic
training or the subject of any academic discipline.
Vaquera agreed that if he testified, he would be
describing his observations to the jurors and then the
jurors would be free to draw their own conclusions. At
the end of the hearing, defense counsel objected to
Vaquera being designated as an expert witness, arguing
that Vaquera's conclusions were based on observations
of matters that could be presented to the jury for
their own conclusions, and that Vaquera demonstrated
no special academic knowledge or training that would
qualify him more than a juror to draw a conclusion
concerning appellant's gang membership:
I'm going to object to the officer
offering an expert opinion because he does not meet
the requirements of Rule 702. The basis for his
conclusions are nothing more than a recitation of his
observations of matters that can be presented to the
jury for their own conclusion. And he demonstrates no
special academic knowledge and no special training or
experience outside of on-the-job training that would
qualify him more so than a juror to draw a conclusion
concerning gang membership. And we object for that
reason.
The court overruled the objection
without explanation.
The trial court did not abuse its
discretion in allowing Vaquera to testify as an expert
regarding prison gangs. Cf. Wyatt, 23 S.W.3d
at 28. Vaquera's testimony described his years of
professional experience and hundreds of hours of
training in the field of prison gang intelligence and
identification. Vaquera testified that his opinion was
based on his observations and investigation, and that
he would describe his observations to the jurors who
would then draw their own conclusions. In light of
what was before the court at the time the ruling was
made, the trial court did not abuse its discretion by
determining
that Vaquera's specialized knowledge would aid the
trier of fact and that he was qualified to testify.
Point of error seven is overruled.
In his eighth point of error, appellant
complains that the trial court erroneously permitted
Vaquera to testify as an expert, in violation of the
Eighth and Fourteenth Amendments of the United States
Constitution and Article 1, section 19, of the Texas
Constitution. He argues that the United States
Constitution imposes a heightened need for reliability
and individualized sentencing determinations in
assessing the death penalty. He urges that Vaquera's
testimony should not have been admitted because it was
generalized and unreliable. He states, "[t]he very
essence of [Vaquera's] testimony was based on the
propensity of individuals bearing certain tattoos and
markings to join prison gangs, and on the propensity
of members of prison gangs to commit acts of violence
within the prison system."
Appellant has failed to preserve error
because he never objected at trial that the admission
of Vaquera's testimony violated the federal or state
constitutions. See Tex Rule App. P. 33.1;
Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim.
App. 1990). Point of error eight is overruled.
RIGHT OF ALLOCUTION
In his twelfth point of error,
appellant claims that the trial court violated the
Eighth and Fourteenth Amendments to the United States
Constitution by denying his request to issue a
statement of allocution not subject to cross-examination.
Appellant asserts that he should have been allowed to
express his remorse before the punishment was assessed,
while it could have had some effect. By a pre-trial
motion, appellant made a request to personally express
his remorse to the victim's family in the presence of
the jury without being subject to cross-examination.
Appellant asserts that the trial court's denial of
this request violated his constitutional right to
present mitigating evidence.
(7)
Although he uses the term "allocution,"
appellant's argument is in substance that he should
have been able to introduce mitigating evidence free
from cross-examination. Neither the United States
Supreme Court nor this Court has held that a defendant
has a constitutional right to present mitigating
evidence free from cross-examination before punishment
has been assessed. See, e.g., Jenkins v. Anderson,
447 U.S. 231, 238 (1980); Renteria v. State,
206 S.W.3d 689, 698 (Tex. Crim. App. 2006).
Furthermore, the United States Supreme Court has not
found that the federal constitution mandates a right
of allocution free from cross-examination before
punishment has been assessed. See, e.g., Hill v.
United States, 368 U.S. 424, 429 (1962) (finding
no constitutional violation when trial court violated
federal procedural rule mandating that court ask
defendant if he had anything to say before sentence
was imposed). The Supreme Court declined to consider
this question after the Court of Appeals for the Fifth
Circuit held that a defendant in a capital case did
not have a constitutional right to make a statement of
remorse free from cross-examination before punishment
had been assessed. See United States v. Hall,
152 F.3d 381, 397 (5th Cir. 1998), cert. denied,
526 U.S. 1117 (1999) (abrogated on other grounds by
United States v. Martinez-Salazar, 528 U.S.
304 (2000)). Likewise, this Court has not interpreted
the constitution as requiring such a right. "Remorse
following commission of a serious crime may well be a
circumstance tending in some measure to mitigate the
degree of a criminal's fault, but it must be presented
in a form acceptable to the law of evidence."
Lewis v. State, 815 S.W.2d 560, 568 (Tex. Crim.
App. 1991). Point of error twelve is overruled.
10-12 RULE
In appellant's point of error eleven,
he argues that failing to instruct the jury that a
vote by one of them would result in a life sentence
despite the statutory requirement of ten votes for a
"no" answer on the future-dangerousness issue or a "yes"
answer on the mitigation issue constituted a violation
of the Sixth, Eighth, and Fourteenth Amendments of the
United States Constitution. Appellant acknowledges
that we have rejected his arguments in previous cases.
See, e.g., Druery v. State, 225 S.W.3d 491,
509 (Tex. Crim. App.), cert. denied, 128 S.
Ct. 627 (2007); Prystash v. State, 3 S.W.3d
522, 536 (Tex. Crim. App. 1999). Appellant has not
distinguished his case from those cases. Point of
error eleven is overruled.
REASONABLE DOUBT INSTRUCTION
In his thirteenth point of error,
appellant claims that the trial court violated the
Eighth and Fourteenth Amendments of the United States
Constitution by denying his request to instruct the
jury that each individual juror should determine his
or her own personal definition of reasonable doubt. He
argues that this omission created a substantial risk
that the death sentence would be administered
arbitrarily or capriciously.
Appellant acknowledges that the United
States Constitution neither prohibits trial courts
from defining reasonable doubt nor requires them to do
so as a matter of course. See Paulson v. State,
28 S.W.3d 570, 573 (Tex. Crim. App. 2000) (citing
Victor v. Nebraska, 511 U.S. 1 (1994)). He urges,
however, that the instruction he proposed would not
have been a definition of reasonable doubt but instead
would have safeguarded the fairness of the proceeding
by giving guidance to the jurors in answering the
special issues and applying "reasonable doubt" as a
term of art. He asserts that failing to give the
instruction created a substantial risk that the death
sentence would be administered arbitrarily or
capriciously. This argument is without merit.
The Supreme Court has stated that a
capital-sentencing scheme should channel the
sentencer's discretion by objective standards that
make the sentencing process rationally reviewable:
[A] capital sentencing scheme must
suitably direct and limit the sentencer's discretion
so as to minimize the risk of wholly arbitrary and
capricious action. The State must channel the
sentencer's discretion by clear and objective
standards that provide specific and detailed guidance,
and that make rationally reviewable the process for
imposing a sentence of death.
Arave v. Creech,
507 U.S. 463, 471 (1993) (quoting Lewis v. Jeffers,
497 U.S. 764 (1990)) (internal quotation marks omitted).
"A trial judge's duty is to give
instructions sufficient to explain the law." Kelly
v. South Carolina, 534 U.S. 246, 257 (2002). "Words
which are not statutorily defined are to be given
their usual meanings and no specific instructions are
required." Martinez v. State, 924 S.W.2d 693,
698 (Tex. Crim. App. 1996). The instruction requested
here is not required by Texas law or federal law.
Here, the court's charge included the
following jury instructions:
The State must prove Special Issue No.
1 submitted to you beyond a reasonable doubt, and you
shall return a Special Verdict of "Yes" or "No" on
Special Issue No. 1.
In deliberating on Special Issue No. 1
you shall consider all the evidence in this trial,
including evidence of the defendant's background or
character or the circumstances of the offense that
militates for or mitigates against the imposition of
the death penalty.
You may not answer Special Issue No. 1
"Yes" unless you agree unanimously.
You may not answer Special Issue No. 1
"No" unless ten (10) or more jurors agree.
Members of the jury need not agree on
what particular evidence supports a negative answer to
Special Issue No. 1.
You are further instructed that you are
not to be swayed by mere sentiment, conjecture,
sympathy, passion, prejudice, public opinion or public
feeling in considering all of the evidence before you
and in answering Special Issue No. 1.
The State must prove Special Issue No.
2 submitted to you beyond a reasonable doubt, and you
shall return a Special Verdict of "Yes" or "No" on
Special Issue No. 2.
It is not required that the State prove
Special Issue No. 1 and Special Issue No. 2 beyond all
possible doubt, it is only required that the State's
proof excludes all "reasonable doubt" concerning the
defendant.
The final page of the court's charge
included the following language:
In arriving at the answers to the
Special Issues submitted, it will not be proper for
you to fix the same by lot, chance, or any other
method than by a full, fair and free exchange of the
opinion of each individual juror.
After reading of this charge, you shall
not be permitted to separate from each other, nor
shall you talk with anyone not of your jury. After
argument of this charge, you shall be permitted to
consider your answers to the Special Issues submitted
to you. It is the duty of the Foreman of the Jury to
preside in the jury room and vote with you on the
answers to the Special Issues submitted.
You are the exclusive judges of the
facts proved, the credibility of the witnesses, and
the weight to be given to their testimony, but you are
bound to receive the law from the Court which has been
given you and you are bound thereby.
Accordingly, the court's charge
included admonishments to the jurors that they were
not to be swayed by mere sentiment or, inter alia,
public opinion, and that it would not be proper for
them to fix their answers by any other method than by
a full, fair and free exchange of the opinion of each
individual juror. Appellant has not shown that the
requested instruction - that each juror individually
was to determine what a reasonable doubt meant to him
or her - would have diminished the risk that the
sentence would be imposed arbitrarily and capriciously
and without clear and objective standards that would
make the process rationally reviewable. Point of error
thirteen is overruled.
GOOD CONDUCT TIME AND PAROLE
ELIGIBILITY JURY INSTRUCTIONS
In appellant's tenth point of error, he
argues that the trial court erred in overruling his
objection to the jury instruction that informed the
jury of the possibility that a life sentence could be
reduced by the award of good-conduct time and/or
through parole. He asserts that the court's
instruction tracked Article 37.07, section 4(b), which
is applicable only to non-capital cases, except that
the fourth paragraph concerning parole eligibility was
modified to apply to a capital life sentence.
(8) He notes that after he objected, the
State joined him in his objection and agreed that the
good-conduct-time language should be taken out of the
jury instruction, but the trial court overruled the
objection.
Appellant challenges the entire
instruction on appeal, but he did not object to the
parole-eligibility instruction at any time before or
during the proceeding. Appellant asserts that the
entire instruction was erroneous and caused egregious
harm, in that "the misstatement of law harmed
appellant because it created a scenario where an
individual juror who may have been considering a life
sentence could have been influenced to instead vote
for death because of the prospect that a life sentence
could be reduced through parole and/or good conduct
time."
Assuming arguendo that the
parole-eligibility instruction was erroneous, it did
not cause egregious harm. The parole-eligibility
instruction informed the jury correctly that appellant
would not become eligible for parole until he had
served forty calendar years, without consideration of
good-conduct time, and that eligibility for parole did
not guarantee that parole would be granted.
Furthermore, the record does not show that this
accurate parole-eligibility instruction deprived
appellant of a fair and impartial trial.
Many cases strongly suggest that parole-eligibility
instructions such as the one set forth in the post-September
1, 1999 version of Article 37.071, section 2(e)(2)(B),
generally inure to the benefit of the defendant.
See, e.g., Brown v. Texas, 522 U.S. 940 (1997) (Stevens,
J., joined by Souter, Ginsberg, and Breyer, JJ.,
concurring in denial of certiorari) (recognizing "obvious
tension" between Court's decisions holding
unconstitutional South Carolina's practice of
preventing jurors in a capital case from learning that
a life-sentenced defendant was parole ineligible, and
Court's decision not to consider constitutionality of
Texas's practice of giving trial court discretion
whether to instruct jury in a capital case concerning
life-sentenced defendant's minimum parole eligibility
date); O'Dell v. Netherland, 521 U.S. 151,
166 n.3 (1997) (observing that South Carolina's
practice, found unconstitutional in Simmons,
was "similar" to other states' practices that the
Court had declined to find unconstitutional, and
citing, inter alia, its denial of certiorari
on three Texas cases concerning practice of giving
trial court discretion whether to allow jury voir dire
and jury instructions concerning minimum parole
eligibility date); Simmons v. South Carolina,
512 U.S. 154 (1994) (recognizing that making jurors
aware of defendant's parole ineligibility may rebut
the State's future dangerousness argument);
Cockrell v. State, 933 S.W.2d 73, 91 (Tex. Crim.
App. 1996) ("[W]e note the usual scenario in which
this issue has arisen is where capital defendants have
complained on appeal about a trial court's failure to
submit the type of charge appellant 'acquiesced' to in
this case"); Smith v. State, 898 S.W.2d 838,
857-72 (Tex. Crim. App. 1995) (Clinton, J., dissenting)
(surveying cases and discussing mitigating value of
minimum parole eligibility date). We see no reason to
hold differently in this case.
We next turn to the erroneous good-conduct-time
instruction. Appellant objected to that part of the
jury instruction at the charge conference. However,
this Court has found a virtually identical error to be
harmless, so long as there was no reasonable
probability that the jury was misled into believing
that if the defendant received a life sentence he
might become eligible for parole in less than forty
years through the award of good-conduct time, or that
he was certain to be released after he became eligible
for parole. See Ross v. State, 133 S.W.3d
618, 623 (Tex. Crim. App. 2004).
(9)
Appellant argues that this Court should
reconsider the harm analysis in Ross because
it directly conflicts with the Supreme Court's harm
analysis concerning parole- eligibility instructions
in capital cases. He cites Kelly v. South Carolina
for the proposition that, in a capital case, the
absence of evidence of juror confusion in the record
does not mean that an erroneous parole-eligibility
instruction was harmless. 534 U.S. 246 (2002).
In Kelly, the Supreme Court
discussed the harm of failing to give a
constitutionally required parole-ineligibility
instruction when the sentencing options were life
without parole and death. 534 U.S. at 257. In another
case, the Supreme Court expressly limited this
constitutional requirement to cases where, as a legal
matter, there was no possibility of parole if the jury
assessed a sentence of life in prison. Ramdass v.
Angelone, 530 U.S. 156, 170 (2000). There, the
Court reaffirmed the general rule that "the States
have some discretion in determining the extent to
which a sentencing jury should be advised of probable
future custody and parole status in a future
dangerousness case." Id. at 165.
The Supreme Court in Kelly did
not purport to address a situation such as this one,
in which a correct parole-eligibility instruction was
given simultaneously with an erroneous good-conduct-time
instruction. As in Ross, the instruction
given here accurately informed the jury that a life-sentenced
defendant would not be eligible for parole for forty
years; the charge informed the jury that a life-sentenced
defendant "may" be released from prison after forty
years, not that he necessarily would be; the jury was
instructed not to consider how good-conduct time might
be applied to the defendant; and there was no evidence
in the record to rebut the presumption that the jury
followed this instruction. See Ross, 133 S.W.3d
at 624.
Having reviewed the challenged
instruction in the context of the jury instructions as
a whole and the trial record, we hold that the
inclusion of the parole-eligibility instruction, even
if erroneous, caused no egregious harm. The inclusion
of the good- conduct-time instruction, although
erroneous, was harmless. Point of error ten is
overruled.
EXECUTION PROTOCOL
In his fourteenth point of error,
appellant contends that Texas's execution protocol
violates the Eighth Amendment of the United States
Constitution which prohibits cruel and unusual
punishment. He argues that the execution protocol is
inconsistently administered and that it uses chemicals
which have been banned for euthanizing animals.
Appellant's execution is not imminent;
therefore, the method in which it is currently carried
out is not determinative of the way it will be
administered at appellant's execution. This claim is
not ripe for our review. See Gallo v. State,
239 S.W.3d 757, 780 (Tex. Crim. App. 2007). Point of
error fourteen is overruled.
We affirm the judgment of the trial
court.
Meyers, J.
Delivered: November 26, 2008
Do
Not Publish
1.
Unless otherwise indicated all references to Articles
refer to the Code of Criminal Procedure.
2. For crimes
committed prior to September 1, 1999, parole was not a
proper consideration for the jury in a capital case.
Ford v. State, 919 S.W.2d 107, 116 (Tex. Crim.
App. 1996).
3. In his brief,
appellant lists this prospective juror's name as "Earlinda
Vick," but the record on appeal indicates the name of
"Earlinda Vickers."
4. In argument,
appellant also complained that the trial court erred
by denying his challenge for cause against this
prospective juror. Appellant did not include this
complaint in his points of error. Therefore the Court
does not address it. See Tex. R. App. P.
38.1(f), (h).
5. Appellant's
brief lists the name as "Gustavo Vaquero," but the
record on appeal lists the name as "Gustava Vaquera"
or "Gus Vaquera."
6. He testified
that Texas is divided into six regions, each of which
has an STG coordinator. He was the STG coordinator for
Region 5.
7. In his
argument on appeal, appellant also appears to suggest
that his pre-trial motion should have been granted in
accordance with Article 42.07: "Appellant's motion to
make a statement of allocution free from cross-examination
rose to the level of a Constitutional right since
Article 42.07 provides a vehicle with which the
relevant mitigating evidence could be properly
admitted." Article 42.07 states that, before the
sentence is pronounced, the defendant shall be asked
whether he has anything to say as to why the sentence
should not be pronounced against him. Article 42.07
sets forth three specific legal reasons why a sentence
cannot be pronounced against the defendant: (1) that
he has received a pardon; (2) that he is incompetent;
and (3) that he is not the person convicted. Appellant
has not shown that his pre-trial motion to express
remorse free from cross-examination implicated Article
42.07. The record reflects that the court asked
appellant whether he had anything to say before
sentence was pronounced. Appellant stated that he did
not.
8. Here, as in
Ross v. State, 133 S.W.3d 618, 623 (Tex. Crim.
App. 2004), the jury received the good-conduct time/parole-eligibility
instructions set forth in Article 37.07, section 4(b),
applicable to non-capital offenses, except that the
trial court replaced the parole eligibility
instruction set forth in the fourth paragraph of
Article 37.07, section 4(b), with the parole-
eligibility instruction set forth in Article 37.071,
section 2(e)(2)(B), effective for capital offenses
committed on or after September 1, 1999.
As such, the jury instruction given was:
Under the law applicable in this case,
the defendant, if sentenced to a term of life
imprisonment, may earn time off the period of
incarceration imposed through the award of good
conduct time. Prison authorities may award good
conduct time to a prisoner who exhibits good behavior,
diligence in carrying out prison work assignments, and
attempts rehabilitation. If a prisoner engages in
misconduct, prison authorities may take away all or
part of any good conduct time earned by the prisoner.
It is also possible that the length of
time for which the defendant will be imprisoned on a
life sentence might be reduced by the award of parole.
Under the law applicable in this case,
if the defendant is sentenced to a term of
imprisonment in the Correctional Institutions Division
of the Texas Department of Criminal Justice for life,
he will not become eligible for parole until the
actual calendar time served, without consideration of
good conduct time, equals forty (40) calendar years.
Eligibility for parole does not guarantee that parole
will be granted.
It cannot be accurately predicted how
the parole law and good conduct time might be applied
to this defendant if he is sentenced to a term of
imprisonment for life, because the application of
these laws will depend on decisions made by prison and
parole authorities.
You
may consider the existence of the parole law and good
conduct time. However, you are not to consider the
extent to which good conduct time may be awarded or
forfeited by this particular defendant. You are not to
consider the manner in which the parole law may be
applied to this particular defendant.
9.
The jury instruction given
in Ross was:
Under the law applicable in this case,
the defendant, if sentenced to a term of life
imprisonment, may earn time off the period of
incarceration imposed through the award of good
conduct time. Prison authorities may award good
conduct time to a prisoner who exhibits good behavior,
diligence in carrying out prison work assignments, and
attempts rehabilitation. If a prisoner engages in
misconduct, prison authorities may also take away all
or part of any good conduct time earned by the
prisoner.
It is also possible that the length of
time for which the defendant will be imprisoned on a
life sentence might be reduced by the award of parole.
Under the law applicable in this case,
if the defendant is sentenced to a term of
imprisonment in the Institutional Division of the
Texas Department of Criminal Justice for life, he will
not become eligible for parole until the actual
calendar time served without consideration of good
conduct time, equals forty calendar years. Eligibility
for parole does not guarantee that parole will be
granted.
It cannot accurately be predicted how
the parole law and good conduct time might be applied
to this defendant if he is sentenced to a term of
imprisonment for life, because the application of
these laws will depend on decisions made by prison and
parole authorities.
You may consider the existence of the
parole law and good conduct time. However, you are not
to consider the extent to which good conduct time may
be awarded or forfeited by this particular defendant.
133 S.W.3d at 622-23 (footnotes and
original emphasis omitted).
