Citations:

Valle v. State, 109 S.W.3d 500 (Tex.Crim.App. 2003). (Direct Appeal)
Ex parte Valle, Not Reported in S.W.3d, 2005 WL 3307058 (Tex.Crim.App. 2005) (State Habeas).
Valle v. Quarterman, Slip Copy, 2008 WL 4656945 (5th Cir. 2008) (Habeas).

Final/Special Meal:

French fries, jalapeno cheese, onions, four hamburgers, Mexican rice and a tomato.

Final Words:

Valle had denied fatally shooting Junco, but said there was little he could do to avoid lethal injection once he lost appeals in the courts. “I blame myself. I am not going to blame nobody,” he said, speaking to witnesses alternately in both English and Spanish. “I understand why I am paying this price. That's the reality of life. I am sorry. I got to pay for it. I am sorry with all my heart.” The witnesses Valle spoke to in the death chamber were relatives of Gregory Garcia, 20, killed two months after Junco with a shotgun belonging to Valle. “I never wanted to kill your family. I was forced to do it. I was a gang member.” He apologized for his broken English, thanked the warden and chaplain and expressed loved to everyone. "I feel good. I love my family. I love you Jesus."

Texas Department of Criminal Justice

Valle, Yosvanis
Date of Birth: 09/07/1975
DR#: 999384
Date Received: 05/09/2001
Education: 8 years
Occupation: construction, carpentry, laborer
Date of Offense: 06/07/1999
County of Offense: Harris
Native County: Havana, Cuba
Race: Hispanic
Gender: Male
Hair Color: Black
Eye Color: Brown
Height: 5' 07"
Weight: 150

Summary of incident: On 06/07/1999 in Pasadena, Valle forced his way into a 28 year old Hispanic male victim's residence at gunpoint. The victim was robbed and shot several times, resulting in his death.

Co-defendants: None.

Prior Prison Record: #714912 on an 8 year sentence from Harris County for one count of possession of a firearm. 05/09/1997 released on mandatory supervision.

Yosvanis Valle

Texas Execution Information Center by David Carson - Txexecutions.org

Yosvanis Valle, 34, was executed by lethal injection on 10 November 2009 in Huntsville, Texas for the robbery and murder of a man in his home.

On 7 June 1999, Valle, then 23, and four other men went to the Pasadena home of Jose Junco, a known drug dealer. Assuming they wanted to buy drugs, Junco went outside to meet them. They then produced guns and ordered Junco to return inside, with his hands in the air. Junco told his girlfriend, Amy Lindgren, not to look at the men, and he covered her face with a pillow. Next, the men argued with Junco about drugs and money. Eight or nine shots were fired. Lindgren stayed on the floor until the men drove away. She then got up, saw Junco's dead body, and called 9-1-1. The assailants stole two rifles and a cookie tin containing money, drugs, and sexually explicit photographs.

Based on a tip, police conducted a lineup, where Lindgren identified one of the assailants.

Valle was arrested two months after the killing when he went to Pasadena to bail a fellow gang member of out jail. He was unaware that his friend had implicated him in the murder.

At Valle's trial, the prosecution presented testimony that earlier in the day that Junco was killed, Valle met with four other men to discuss robbing him. Valle led the meeting and assigned roles to all of the participants. The group understood that because Junco would see one of the men's faces, someone would have to kill him. The testimony also indicated that Valle was the shooter.

Valle had a previous felony conviction for possessing a firearm. He was sentenced to 8 years in prison in November 1993. He was released in May 1997. He also had several juvenile and misdemeanor convictions, mostly weapons-related. At his punishment hearing, prosecutors presented evidence that Valle, a native of Cuba, was a member of a Hispanic gang called "La Raza Unida", and that in August 1999, he ordered the murder of fellow member Raymond Duenas so that he could become the leader of the gang's operations in Houston. That same month, Valle arranged the murder of Carlos Escamilla, and fatally shot Gregory Garcia with a sawed-off shotgun in the parking lot of a convenience store.

A jury convicted Valle of capital murder in April 2001 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in July 2003. All of his subsequent appeals in state and federal court were denied.

"I did wrong...to a lot of people," Valle said in an interview from death row a few days before his execution. "I've been trying to work on my life since then."

Valle's execution was attended by members of his family as well as relatives of Gregory Garcia. Jose Junco's relatives did not attend.

"I am sorry with all my heart," Valle said in his last statement. "That's the reality of life. I am sorry. I got to pay for it." Valle then expressed love to his family members who attended his execution. Concluding his statement, he told the warden, "I am ready." The lethal injection was then started. He was pronounced dead at 6:21 p.m.

Valle v. State, 109 S.W.3d 500 (Tex.Crim.App. 2003). (Direct Appeal)

Defendant was convicted in a jury trial in the District Court, Harris County, George H. Godwin, J., of capital murder and sentenced to death. Defendant appealed. The Court of Criminal Appeals, Keller, P.J., held that: (1) lack of sufficiency review of special issue giving rise to death sentence regarding whether there was sufficient mitigating circumstance to warrant sentence of life imprisonment rather than death did not violate defendant's constitutional rights; (2) trial court's overruling capital murder defendant's request to use peremptory challenges following examination of entire venire did not violate defendant's constitutional rights; (3) videotaped interview of defendant's mother was not admissible under statement of personal or family history hearsay exception; (4) videotaped interview of defendant's mother was not admissible as basis for expert opinion; (5) defendant failed to preserve for appeal complaint regarding court reporter's failure to record bench conferences; and (6) defendant established no good cause to unseal jury list or to hire licensed investigator to interview all jurors. Affirmed.

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

Appellant was convicted in April 2001 of capital murder.FN1 Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure art. 37.071 §§ 2(b) and 2(e), the trial judge sentenced appellant to death.FN2 Direct appeal to this Court is automatic. FN3 We shall affirm.

FN1. See TEX. PEN. CODE § 19.03(a). FN2. See TEX. CODE CRIM. PROC., art. 37.071 § 2(g). FN3. See TEX. CODE CRIM. PROC., art. 37.071 § 2(h).

In his first point of error, appellant claims the Texas death penalty scheme is unconstitutional because it allows for the application of the death penalty without providing meaningful appellate review of any of the special issues giving rise to the sentence of death. The first special issue asks whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. FN4 Appellant claims that the jury's finding of future dangerousness is not afforded meaningful appellate review because under the JacksonFN5 standard every capital murder has circumstances of the offense which can support a finding of future dangerousness. We have held that the circumstances of an offense can be sufficient to sustain an affirmative finding as to a defendant's future dangerousness.FN6 But our holding did not imply that the circumstances of an offense will always support a finding of future dangerousness. Because there are situations in which the circumstances of the offense alone would not support a finding of future dangerousness, appellant's complaint is without merit. Appellant's complaint regarding the second special issue is reiterated in his seventeenth point of error, and we will address it there.

The third special issue asks whether, taking into consideration all of the evidence, there is a sufficient mitigating circumstance to warrant a sentence of life imprisonment rather than death.FN7 Appellant complains that we do not conduct a sufficiency review of the mitigation issue. It is true that we do not conduct such a review.FN8 We have previously held that this does not violate appellant's constitutional rights.FN9 Appellant gives us no reason to reconsider that holding. Point of error one is overruled. In point of error seventeen appellant complains of the anti-parties special issue. The second special issue, required in cases in which the jury was given a parties instruction at the guilt portion of trial, asks whether the defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken.FN10 The jury answered the question in the affirmative. Appellant claims that the jury's answer to the anti-parties special issue is not amenable to meaningful appellate review because it depends upon the threshold determination of whether the evidence is legally and factually sufficient to support a conviction for capital murder under the law of parties. Appellant also claims that the anti-parties special issue is unconstitutional because it fails to provide individualized assessment as to appellant's deathworthiness by failing to require a finding beyond that already found at the guilt stage. Although in some cases a jury's finding of guilt will be the functional equivalent of an affirmative answer to the anti-parties special issue, that is not always so. A defendant may be convicted of capital murder under § 7.02(b) FN11 without having the intent or actual anticipation that a human life would be taken that is required for an affirmative answer to the anti-parties issue. FN12 The fact that the anti-parties issue is redundant in this case does not mean it cannot be afforded meaningful appellate review, as it is amenable to both factual and legal sufficiency review and does provide assessment of deathworthiness. Point of error seventeen is overruled.

FN10. See TEX. CODE CRIM. PROC., art. 37.071, 2(b)(2). FN11. TEX. PEN. CODE § 7.02(b) provides: If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy. (Emphasis added). FN12. See Prystash v. State, 3 S.W.3d 522, 541 n. 4 (Tex.Crim.App.1999)(Keller, J. concurring), cert. denied, 529 U.S. 1102, 120 S.Ct. 1840, 146 L.Ed.2d 782 (2000); Johnson v. State, 853 S.W.2d 527, 535 (Tex.Crim.App.1992).

In point of error twenty-one appellant complains that the third special issue is unconstitutional because it omits a burden of proof. Appellant claims the mitigation special issue violates the Eighth Amendment by providing a conduit for the State to introduce evidence that supports an affirmative finding of future dangerousness without a burden of proof. We have addressed the issue and held that the lack of a burden of proof does not violate the Constitution.FN13 Point of error twenty-one is overruled.

FN13. See Prystash 3 S.W.3d at 535-36.

In appellant's second, fourth, and sixth points of error, he claims that his rights to due process, equal protection and effective assistance of counsel were violated when the trial court overruled his request to use peremptory challenges following examination of the entire venire. In points of error three, five, and seven, appellant also claims that his rights were violated by this Court's unconstitutional interpretation of the Code of Criminal Procedure Article 35.13. We have previously addressed the argument that capital defendants are discriminated against in relation to non-capital defendants and held that there is no due process,FN14 equal protection FN15 or effective assistance of counsel FN16 violation for refusing to permit retrospective strikes in capital cases. Appellant argues that a plain reading of Article 35.13 reflects that it governs the order of acceptance or challenge of a qualified juror and not the time for exercising challenges against qualified jurors. He contends that this court, in Grijalva v. State, erred to read into the statute a requirement that peremptory challenges be exercised at the time the particular jurors are qualified.FN17 But even if he were correct in that regard, and Grijalva was wrongly decided, appellant would not be entitled to relief. Trial courts have broad discretion to control the conduct of jury selection. FN18 The fact that a court may permit the proposed voir dire procedure, does not mean that the court must permit the procedure. Absent a constitutional violation, appellant cannot show that the trial court erred. Points of error two through seven are overruled.

FN14. See Janecka v. State, 739 S.W.2d 813, 833-34 (Tex.Crim.App.1987). FN15. See Id. FN16. See Dowthitt v. State, 931 S.W.2d 244, 251 (Tex.Crim.App.1996). FN17. Grijalva v. State, 614 S.W.2d 420, 424 (Tex.Crim.App.1980). FN18. Curry v. State, 910 S.W.2d 490, 492 (Tex.Crim.App.1995).

In points of error fourteen through sixteen appellant complains of the trial court's exclusion of the audio portion of the videotaped interview of appellant's mother and the transcript of that interview. He argues that (1) the evidence is admissible as the basis of expert testimony, (2) the evidence is admissible as statement of personal or family history under Texas Rule of Evidence 804, and (3) exclusion of this evidence violates his due process rights.

The problem posed here is that the videotaped interview is hearsay,FN19 which is inadmissible unless there is an exception.FN20 Appellant claims the evidence is admissible under the “Statement of Personal or Family History” exception found in Rule 804. As a threshold matter, all hearsay exceptions under Rule 804 require a showing that the witness is unavailable. Appellant contends that he meets that showing because his mother is in Cuba, and he cannot procure her presence due to travel restrictions imposed by the United States government and the lack of subpoena power over Cuban residents. We will assume that appellant has satisfied the showing of unavailability under Rule 804(a)(5).FN21

FN19. See TEX. R. EVID. 801(a)-(d). FN20. See TEX. R. EVID. 802. FN21. Rule 804(a)(5) provides: “Unavailability as a witness” includes situations in which the declarant ... is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance or testimony by process or other reasonable means.

The “Statement of Personal or Family History” exception, found in Rule 804(b)(3), permits the admission of: (A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) A statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage, or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared.

Appellant's mother's testimony concerned matters such as her own medical problems, appellant's difficulties in the Texas Youth Commission, appellant's desire to leave Cuba, his lack of legal difficulties in Cuba, and abuse inflicted upon appellant by his stepfather. These matters do not fall under Rule 804(b)(3).

The next question is whether this otherwise inadmissible evidence can be admitted as a basis for expert opinion. Texas Rules of Evidence 705(d) sets forth a balancing test for determining when otherwise inadmissible evidence can be admitted when it is relied upon by an expert in forming opinions:

When underlying facts or data would be inadmissible in evidence, the court shall exclude the underlying facts or data if the danger that they will be used for a purpose other than as explanation or support for the expert's opinion outweighs their value as an explanation or support or are unfairly prejudicial.

Judge Frank Maloney once remarked, “One of the greatest dangers in allowing otherwise inadmissible evidence under Rule 705 is that the jury will consider the facts and data as substantive evidence rather than as merely constituting the underlying basis for the expert's opinion.” FN22 We agree, and we find that there is such a danger here. Allowing the defense to present appellant's mother's statements to the jury would have entailed a danger that the jury would consider those statements as substantive evidence. Moreover, appellant's expert Dr. Cervantes testified that he relied on the videotaped interview with appellant's mother and stated some of the facts from the interview that were the basis of his expert opinion. Given that testimony, appellant did not need to present the actual videotaped statements to show the jury that the expert was relying upon significant information conveyed by appellant's mother. The proponent's need for the evidence-for a legitimate purpose-is a traditional factor in conducting a Rule 403 balancing test,FN23 and we find that factor applicable.FN24 Under the circumstances present here, the trial court did not abuse its discretion in declining to admit the evidence under Rule 705.

FN22. Cole v. State, 839 S.W.2d 798, 815 (Tex.Crim.App.1990)(Maloney, J. concurring on rehearing); see also Aguilar v. State, 887 S.W.2d 27, 30 (Tex.Crim.App.1994)(discussing Judge Maloney's concurring opinion in Cole ). FN23. Salazar v. State, 90 S.W.3d 330, 337 (Tex.Crim.App.2002). FN24. See Prystash, 3 S.W.3d at 529 (trial court within its discretion in preventing expert witness from disclosing the defendant's jail classification, even though it formed part of the basis of the expert's opinion, where trial court allowed the expert to state that he had reviewed the jail records).

Appellant's final claim is that exclusion of the evidence violated his constitutional right to due process. Appellant cites Chambers v. MississippiFN25 for the proposition that the hearsay rule must bend when the State has no sufficient basis for doubting the reliability of the hearsay statement and it could have aided the jury in its determination of a material issue. The Supreme Court has stated that Chambers does not stand for the proposition that the defendant is denied a fair opportunity to defend himself whenever a state or federal rule excludes favorable evidence.FN26 In Chambers, the Court stated: FN25. Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).

FN26. See United States v. Scheffer, 523 U.S. 303, 316, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998).

Although perhaps no rule of evidence has been more respected or more frequently applied in jury trials than that applicable to the exclusion of hearsay, exceptions tailored to allow the introduction of evidence which in fact is likely to be trustworthy have long existed. The testimony rejected by the trial court here bore persuasive assurances of trustworthiness and thus was well within the basic rationale of the exception for declarations against interest.FN27. Chambers v. Mississippi, 410 U.S. at 302, 93 S.Ct. 1038.

In the present case, the excluded evidence does not fall under any exception to the hearsay rule and does not bear persuasive assurances of trustworthiness. Even if we were to assume that the exclusion of this evidence was erroneous under state law, we held in Potier v. State that in order for the exclusion of defensive evidence to rise to the level of constitutional error the evidence must form such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense.FN28. Potier v. State, 68 S.W.3d 657 (Tex.Crim.App.2002).

Appellant was allowed to present evidence of his childhood in Cuba. Dr. Cervantes, appellant's expert witness, testified that appellant: (1) was exposed to a mother who had multiple sex partners, (2) witnessed abuse of his mother by various men including Angel Pineda, (3) witnessed her being forced into various sexual acts, (4) was beaten multiple times and was forced to kneel on sharp objects, (5) suffered from severe poverty, (6) suffered severe anxiety attacks after overhearing his mother being sodomized by one of the men, (7) began to have behavioral problems after his father left Cuba, (8) wet his bed until the age of eleven or twelve, and (9) desperately wanted to be come to the United States to be reunited with his father. In addition, appellant was allowed to play the videotaped interview without the audio portion and the jury was able to see the living conditions in Cuba. Appellant's brother, Gabriel Valle, also testified to some of the same things as Dr. Cervantes, as well as that: (1) appellant's mother was in an accident when she was three years old and suffered a head injury, (2) he and appellant witnessed their mother's suicide attempts, (3) appellant's mother was paid to have sex with Angel while he was in jail, (4) one of the men in their mother's life would make the boys take their clothes off, kneel on bottle caps, and extend their arms, and he would hit them with sticks if they put their arms down, (5) they were teased by the community for letting Angel hit their mother, (6) Angel hit their mother with a thick board on her ribs, and (7) Angel killed appellant's dog in front of him.

The evidence that was excluded by the trial court contained some of the same information to which Dr. Cervantes and Gabriel Valle testified, but it also included statements that the mother had taken appellant to a psychologist, he was never in any trouble while he was in Cuba, and he was abused by his stepfather. The excluded evidence was relevant to the mitigation special issue, but the exclusion of this evidence does not amount to a denial of the constitutional right to due process. The fact that appellant was not able to present his case in the form he desired does not amount to constitutional error when he was not prevented from presenting the substance of his defense to the jury.FN29 Points of error fourteen through sixteen are overruled.

FN29. See United States v. Willie, 941 F.2d 1384, 1398-99 (10th Cir.1997), cert. denied, 502 U.S. 1106, 112 S.Ct. 1200, 117 L.Ed.2d 440 (1992).

In points of error eight through thirteen appellant claims the trial court's failure to preclude the State from seeking the death penalty violated his constitutional rights because of his inability to obtain and present known mitigating evidence, caused by the travel restrictions to Cuba and the lack of subpoena power over Cuban citizens and authorities. Appellant claims that his mother, who lives in Cuba, could have testified about circumstances of appellant's childhood that were relevant to the mitigation issue. Appellant filed a Motion to Preclude the State From Seeking the Death Penalty and a Motion to Set Aside the Indictment in the trial court. Both motions were denied.

Appellant's contention that he suffered a constitutional violation is dependent upon the resolution of points of error fourteen through sixteen. Because he suffered no constitutional violation, he is not entitled to relief.

In point of error eighteen appellant claims he was denied meaningful appellate review of his death sentence when the court reporter failed to record a bench conference in which appellant had made an objection to the introduction of evidence. During the punishment phase of the trial the following occurred: Mr. Goodhart: Judge, at this time, the state would move to introduce States's exhibit 36, 37, 39 through 41. (State's Exhibit(s) No. 36, 37, 39 through 41 offered) (discussion off the record between defense and prosecutor) Mr. Morrow: May we approach, your Honor? The Court: You may. (At the bench, off the record) (Open court, defendant and jury present) Mr. Morrow: Judge, subject to the argument we made at the bench, we have no objections to 36, 40, 41, and 37. The Court: They will be admitted into evidence. (State's Exhibit(s) No. 36, 37, 39 through 41 admitted)

Appellant argues that Texas Rules of Appellate Procedure 13.1 makes the creation of a full record mandatory unless affirmatively waived. Appellant also claims that under the new rule appellant is not required to object to the court reporter's failure to make a full record. For support, he cites to an opinion from the Thirteenth Court of Appeals.FN30. Tanguma v. State, 47 S.W.3d 663, 674 (Tex.App.Corpus Christi 2001, pet. ref'd).

Rule 13.1 of the Texas Rules of Appellate Procedure states in part that the official court reporter must “attend court sessions and make a full record of the proceedings unless excused by agreement of the parties.” FN31 Under former Rules 11(a)(1) and (2), a record was required only when requested by the trial court or a party. The current rule therefore makes automatic a procedure that used to be conditioned upon a request.

FN31. We quote from the rule's 1997 version, applicable to appellant's case. A nonsubstantive revision of the rule's wording occurred in 2003.

In Moore v. State-a case decided under the former rules-the trial court granted the defendant's motion to record bench conferences.FN32 We held that bench conferences are different from normal “trial proceedings” and that a motion to record bench conferences is akin to a motion in limine, in that it tells the trial participants how to proceed upon the occurrence of certain events.FN33 While the granting of a pretrial motion to record bench conferences relieves a party of the burden of asking to have each bench conference recorded as it occurs, it does not preserve error.FN34 As a part of error preservation, a party is required to object.FN35

FN32. Moore v. State, 999 S.W.2d 385, 397 (Tex.Crim.App.1999), cert. denied, 530 U.S. 1216, 120 S.Ct. 2220, 147 L.Ed.2d 252 (2000). FN33. Id. at 398. FN34. Id. FN35. Id.

We need not decide whether the current rule requires court reporters to record all bench conferences whether or not such recording is requested. If the rule does so require, it simply places a party in the same position he would be in if recording of bench conferences had been requested before trial. Under Moore, even when a defendant requested under the old rule that bench conferences be recorded-and the court reporter was thus required to record the proceedings-it was incumbent upon him to object if the bench conferences were not recorded.FN36 Consequently, we disapprove of Tanguma's holding that the current rule dispenses with the requirement of an objection to preserve error. An objection is still required.

FN36. Id.; see also Walthall v. State, 594 S.W.2d 74, 81 (Tex.Crim.App.1981).

The record does not reflect that appellant made an objection to the court reporter's failure to record the bench conferences nor does appellant allege he made such an objection at trial. Therefore, appellant has failed to preserve his complaint for appeal. We overrule point of error eighteen.

In point of error nineteen, appellant claims he was denied his right to effective assistance of counsel when the trial court denied his motion to unseal the jury list and provide $500 to hire a licensed investigator to interview all the jurors. Appellant's motion appears to have the sole purpose of discovering the jurors' personal information. He is not entitled to such information unless he shows good cause.FN37 Appellant alleged at trial that he needed the information to determine whether he should file a motion for new trial. Such a general allegation is not sufficient to establish good cause. Nor does appellant give any other reason for needing an investigator. Point of error nineteen is overruled.

FN37. See TEX. CODE CRIM. PROC., art. 35.29: Information collected by the court or by a prosecuting attorney during the jury selection process about a person who serves as a juror, including the juror's home address, home telephone number, social security number, driver's license number, and other personal information, is confidential and may not be disclosed by the court, the prosecuting attorney, the defense counsel, or any court personnel except on application by a party in the trial or on application by a bona fide member of the news media acting in such capacity to the court in which the person is serving or did serve as a juror. On a showing of good cause, the court shall permit disclosure of the information sought. (Emphasis added).

In point of error twenty, appellant claims the trial court erred by overruling his relevance objection to the testimony of State's witness Robert Dolan. On direct examination the following occurred: Q. Are you scared about testifying against Cubano? A. Yes, sir. Q. Are you in fear of your life? A. Yes, sir. Mr. Cunningham: I object to relevance, Your Honor. The Court: That will be overruled. Q. (By Mr. Goodhart) What did you say? A. Yes, sir. Q. Listen carefully. Sometime after August 15th of 1999, did you approach the police? A. Yes, Sir. Q. Why did you approach the police and with what? A. I was scared. Q. Scared of what? A. That maybe I was going to be killed.

(Emphasis added). To preserve error in admitting evidence, a party must make a proper objection and get a ruling on that objection.FN38 In addition, a party must object each time the inadmissible evidence is offered or obtain a running objection.FN39 An error in the admission of evidence is cured where the same evidence comes in elsewhere without objection.FN40 In the present case appellant failed to object when the witness testified the second time that he was fearful for his life. Any error in the admission of the objected-to testimony was therefore cured. Point of error twenty is overruled. The judgment of the trial court is AFFIRMED. PRICE and JOHNSON, JJ., concurred in the result.

COCHRAN, J., concurred in point of error eighteen and otherwise joined.

Ex parte Valle, Not Reported in S.W.3d, 2005 WL 3307058 (Tex.Crim.App. 2005) (State Habeas).

PER CURIAM.

This is a post-conviction application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure article 11.071.

On April 17, 2001, a jury convicted applicant of the offense of capital murder. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure article 37.071, and the trial court, accordingly, set punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Valle v. State, 109 S.W.3d 500 (Tex.Crim.App.2003).

Applicant presents seven allegations in his application in which he challenges the validity of his conviction and resulting sentence. Although an evidentiary hearing was not held, the trial judge entered findings of fact and conclusions of law. The trial court recommended that relief be denied.

This Court has reviewed the record with respect to the allegations made by applicant. We adopt the trial judge's findings and conclusions. Based upon the trial court's findings and conclusions and our own review, the relief sought is denied.

IT IS SO ORDERED THIS THE 7TH DAY OF DECEMBER, 2005.

Valle v. Quarterman, Slip Copy, 2008 WL 4656945 (5th Cir. 2008) (Habeas).

PER CURIAM:

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

Yosvannis Valle was convicted of murder and sentenced to death. The district court denied his Petition for Writ of Habeas Corpus, denied a certificate of appealability, and granted respondent Nathaniel Quarterman's Motion for Summary Judgment. Valle now seeks a certificate of appealability (“COA”) to appeal the district court's denial of habeas relief on three claims: (1) his Sixth Amendment right to counsel was violated when his trial counsel failed to obtain a psychological evaluation of him by a mental health professional and present evidence of his post-traumatic stress disorder (“PTSD”); (2) he was denied due process by the trial court's exclusion as inadmissible hearsay of the audio and transcript of an interview with petitioner's mother; (3) his Eighth Amendment rights were violated by Texas's capital-sentencing statutory scheme, because it does not assign a burden of proof to the mitigation special issue and does not afford meaningful appellate review to the special issues of mitigation and future dangerousness.

I

Yosvannis Valle seeks habeas corpus relief from his capital conviction for the murder of Jose “Yogi” Junco. The jury found Valle guilty of capital murder for intentionally causing Junco's death while in the course of committing or attempting to commit robbery.

At the penalty phase of Valle's trial, the State presented evidence of Valle's previous time in prison, as well as evidence linking Valle to three other murders. The State demonstrated that Valle was a sergeant in a prison gang called La Raza Unida and that he had possession of a “shank,” or homemade knife, during his pretrial detention.

Valle presented evidence that he had been exposed to several family-risk factors as a child growing up in Cuba. Dr. Richard Cervantes, a clinical psychologist, testified that Valle had witnessed his mother forced in various sexual acts by multiple partners, and that Valle was himself the victim of physical abuse and severe poverty that led to his exhibiting aggressive behavior later in life. Dr. Cervantes relied on his interviews with Valle and tapes of interviews conducted with Valle's mother and other relatives in Cuba by Dr. Cervantes's research assistant Edurna Imana. Valle offered into evidence a videotaped interview with those relatives, but the trial court ruled that the statements contained on the tape were inadmissible hearsay and ordered the tape played without sound. Instead, Valle played the video portion of the tape and Imana narrated its contents for the jury.

Valle's brother Gabriel also testified as to the abusive circumstances of their childhood in Cuba. Gabriel testified that their mother had attempted suicide several times and that her boyfriends were violent towards her and her sons.

The jury unanimously answered affirmatively to the questions of whether the State proved beyond a reasonable doubt that: (1) Valle actually caused Junco's death, intended to kill Junco, or anticipated that human life would be taken; and (2) Valle would commit future criminal acts of violence constituting a continuing threat to society. The jury also unanimously concluded that the mitigating evidence was insufficient to justify a life sentence. The trial court subsequently sentenced Valle to death.

The Texas Court of Criminal Appeals affirmed the conviction and sentence and denied a writ of habeas corpus. Valle timely filed a petition for habeas corpus in the District Court on 14 claims. Respondent Quarterman moved for summary judgment. The District Court granted summary judgment, denied the writ, and denied a COA. Valle now appeals for a COA from this court.

II

In order to appeal the district court's denial of habeas relief, Valle must be granted a COA as a “jurisdictional prerequisite.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). A COA issues only if Valle makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Tennard v. Dretke, 542 U.S. 274, 282 (2004). The district court denied Valle's constitutional claims on the merits. Thus, Valle must show that “jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327 (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). A COA determination consists of an overview of the habeas claims and a general assessment of their merits; we do not at this stage fully consider the factual or legal bases that support the claims. Id. at 336.

We review the district court's resolution of Valle's claims under the deferential standard of the Antiterrorism and Effective Death Penalty Act (AEDPA). Tennard, 542 U.S. at 282; Leal v. Dretke, 428 F.3d 543, 548 (5th Cir.2005). Under the AEDPA, a petitioner is granted relief on any issue adjudicated in a state court proceeding only if (1) the state court's decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court”; or (2) the state court decision was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); see also Reed v. Quarterman, 504 F.3d 465, 471 (2007).

Finally, “any doubt as to whether a COA should issue in a death penalty case must be resolved in favor of the petitioner.” Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir.2005).

A

Valle first seeks a COA on the issue of whether Valle's Sixth Amendment right to counsel was violated by his trial counsel's failure to obtain a psychological evaluation of him by a mental health professional and offer evidence of Valle's PTSD.

We evaluate an ineffective-assistance-of-counsel claim under the two-pronged test set out in Strickland v. Washington, 466 U.S. 668 (1984). First, Valle must show that his attorney's performance was deficient. The court measures deficiency against an objective standard of reasonableness. Id. at 2064. In assessing the performance of trial counsel under Strickland, we accord deference to the strategic decisions made by counsel, endeavoring to “eliminate the distorting effects of hindsight,” Harrison v. Quarterman, 496 F.3d 419, 424 (5th Cir.2007)(quoting Strickland, 466 U.S. at 690-91), and applying the presumption that counsel's performance “falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Second, Valle must show that the deficient performance prejudiced his defense. Id. at 687. Prejudice is found when “there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceedings would have been different.” Smith v. Quarterman, 515 F.3d 392, 404 (5th Cir.2008)(citing Dowthitt v. Johnson, 230 F.3d 733, 743 (5th Cir .2000)). Where the prejudice inquiry takes place in the context of a capital-sentencing hearing, the relevant question is whether “there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695.

Valle argues that his trial counsel should not have relied solely on the evidence provided by Dr. Cervantes as to the risk factors affecting his childhood development and should have obtained a thorough examination of Valle by a mental health professional. After trial, Valle was evaluated by Dr. Paula Lundberg-Love, a psychologist who concluded that Valle suffered from PTSD stemming from his childhood abuse. Dr. Lundberg-Love opined that the symptoms of PTSD would cause Valle to take extreme measures to protect himself and to lash out at perceived threats. Valle contends that this evidence would have swayed a jury to find that mitigation to a life sentence was justified.

Valle's trial counsel made the judgment not to obtain a psychological evaluation before trial because of the possibility that the state trial court would order a state-sponsored psychological examination pursuant to Lagrone v. State, 942 S.W.2d 602 (Tex.Crim.App.1997). As the state court found, FN1 and the district court affirmed, the trial counsel was justifiably concerned that such an examination would reveal evidence regarding Valle's violent behavior that would damage his mitigation case. Valle v. Quarterman, No. H-06-cv-3867, 2008 WL 416241, *11 (S.D .Tex.2008). Valle's attorney instead put forth the evidence of Dr. Cervantes as to Valle's childhood, much of which was mirrored in Dr. Love's findings. The state court concluded that Dr. Cervantes's evidence, which included interviews with Valle's relatives conducted in Cuba by his research assistant, was thorough enough to warrant the decision by trial counsel not to pursue a formal psychiatric evaluation. Valle's trial counsel's decision was reasonable, and does not meet the standard for deficiency under the performance prong of Strickland.

FN1. The state appeals court issued a summary order affirming the trial judge's findings of fact and conclusions of law as to Valle's habeas petition. These findings and conclusions did not result from an evidentiary hearing but were essentially adopted from the State's brief; however, the State submitted an affidavit from Valle's trial counsel confirming that the decision not to use psychological evidence was a strategic one in light of Valle's erratic and violent tendencies and the State's expressed desire to examine Valle pursuant to Lagrone. Aff. of David Cunningham, Tr. R. 128.

The decision by trial counsel not to have Valle examined by a mental health professional also did not prejudice Valle's defense. Dr. Love's examination elicited information about Valle's childhood in Cuba that for the most part had already been addressed in Dr. Cervantes's trial testimony. The only additional evidence that might have been derived from a pre-trial psychiatric evaluation is the diagnosis of PTSD, which the district court noted could just as easily have led the jury to conclude that Valle's tendencies to lash out violently constituted an ongoing threat to society. Valle, 2008 WL 416241, at *13. The utility of the evidence about his mental health disorders is thus marginal considered in light of the fact that it might have subjected Valle to cross-examination about his ability to restrain his violent impulses. Valle has failed to show a reasonable probability that the inclusion of the evidence of his mental health disorders would have led to a different outcome. The district court was correct in affirming the state court's rejection of Valle's ineffective assistance of counsel claim. Reasonable jurists could not disagree with the district court's resolution of this question.

B

The trial court excluded as inadmissible hearsay the audio portion of an interview conducted with Valle's mother in Cuba. The court also excluded a transcript of that interview. Valle makes two arguments with respect to the exclusion of the audio and transcript: one, that they should have been admitted under an exception to the hearsay rule; and two, that Valle's constitutional interest in producing the mitigation evidence outweighed the State's interest in enforcing its hearsay rule.

Valle appears to argue that the interview audio and transcript fall into two exceptions to the hearsay rule: the “unavailability exception” and the basis-of-expert-testimony exception. However, we are not in a position to evaluate this claim as Valle failed to include any citation to relevant authorities or analysis. See Pet'r's Br. 20-22. The invocation of the expert-testimony exception appears once and is not mentioned again in the brief. Because Valle failed to advance any arguments in support of the issue, we consider the issue abandoned. See Justiss Oil Co., Inc. v. Kerr-McGee Ref. Corp., 75 F.3d 1057, 1067 (5th Cir.1996); see also Fed. R.App. P. 28 (requiring the brief to contain, inter alia, “the argument, which must contain ... appellant's contentions and the reasons for them, with citations to the authorities and part of the record on which the appellant relies ...”)

Even if this issue had been properly briefed, Valle would still not succeed on the merits. The district court reviewed the state habeas findings as to the basis-of-expert-testimony exception in its opinion. There, Valle argued that the interview testimony should have been included because Dr. Cervantes relied on it for his expert opinion as to the effects of Valle's childhood.FN2 The state appeals court found that the trial court had not committed an abuse of discretion in excluding the audio and transcript, as there was a substantial risk that the jury would treat the videotaped hearsay statements as substantive evidence rather than information relied upon by the expert in formulating his opinion. Valle, 2008 WL 416241, at * 8; Valle v. State, 109 S.W.3d 500, 505-06 (Tex.Crim .App.2003). The district court found, and we agree, that Valle has not shown that the state appellate court's application of the Texas evidentiary rule was incorrect.

FN2. Rule 705(d) of the Texas Rules of Evidence provides: When the underlying facts or data would be inadmissible in evidence, the court shall exclude the underlying facts or data if the danger that they will be used for a purpose other than as explanation or support for the expert's opinion outweighs their value as explanation or support or are unfairly prejudicial.

Valle's discussion of the “unavailability exception” to the hearsay rule omits any reference to Texas evidence law, and ultimately does not actually appear to argue that a hearsay exception applies. Instead, the brief states that the audio and transcript of the interview with Valle's mother verify other testimony about Valle's childhood and that their exclusion “allowed the State to argue to the jury that there was no credible mitigating evidence produced by Petitioner.” Pet'r's Br. 21-22. Valle appears to reiterate the claim he raised before the district court; namely, that the evidence is admissible under the “Statement of Personal or Family History” exception found in Texas Rule of Evidence 804, which requires a showing of unavailability.FN3 Tex.R. Evid. 804(b)(3). Valle cannot prevail on this claim. Both the Texas Court of Criminal Appeals and the district court properly applied Rule 804(b)(3), which only allows statements about the fact of “birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry,” or other similar facts. The rule does not cover the interview testimony of Valle's mother, which dealt with, among other things, her medical problems, Valle's childhood abuse, and his problems with authority. Valle, 2008 WL 416241, at *7. Valle's claim that a hearsay exception applies therefore does not merit the grant of a COA.

FN3. Texas Rule of Evidence 804(b)(3) states the following as exceptions to the hearsay rule where the declarant is unavailable as a witness: (A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) A statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared.

As an alternative to his hearsay exception claim, Valle argues that he has a due process interest in being able to provide evidence and witnesses on his behalf, and that this interest outweighs the state's competing interest in enforcing the hearsay rule. Valle relies primarily upon Chambers v. Mississippi, 410 U.S. 284 (1973), which held that the application of the hearsay rule could not be applied mechanistically where constitutional rights directly affecting the determination of guilt are implicated. Id. at 302. The Court extended this holding to the capital-sentencing context in Green v. Georgia, 442 U.S. 95 (1979), finding that application of Georgia's hearsay rule violated due process where the excluded evidence was “highly relevant to a critical issue in the punishment phase of the trial ... and substantial reasons existed to assume its reliability.” Id. at 97.

The district court engaged in a careful analysis that distinguished Chambers and Green from this case. In both of those cases, there were strong indicia of reliability, including (1) the existence of corroborating evidence; (2) the fact that the statements at issue were made spontaneously to close acquaintances after the murders; and (3) the fact that the statements were “unquestionably against [the] interest” of the declarants. See Valle, 2008 WL 416241, at * 9 (citing Green, 442 U.S. at 96-97; Chambers, 410 U.S. at 299-300). No comparable indicia are present here.

This court has also limited Chambers and Green to their facts and has interpreted them to mean that “certain egregious evidentiary errors may be redressed by the due process clause.” Edwards v. Scroggy, 849 F.2d 204, 212 (5th Cir.1988); see also McGinnis v. Johnson, 181 F.3d 686, 693 (5th Cir.1999) (holding that exclusion of hearsay testimony of expert psychologist during punishment phase of trial was not “unnecessarily limiting, nor did it operate to render [the] trial fundamentally unfair”). As reasonable jurists would not disagree that there is nothing “fundamentally unfair” about the exclusion of Valle's mother's hearsay testimony, we must deny a COA on this issue.

C

Valle also petitions for a COA to appeal the district court's decision on the constitutionality of Texas's death penalty scheme, arguing that the “mitigation special issue allows the state to introduce evidence that supports an affirmative finding of future dangerousness without a burden of proof.” Pet'r's Br. 30. This is a misstatement, as the mitigation special issue is distinct from the future-dangerousness special issue. Valle appears to argue that the mitigation special issue is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000) and Ring v. Arizona, 536 U.S. 584 (2002) because it does not require the State to prove beyond a reasonable doubt the absence of those mitigating factors that would warrant life imprisonment.

Under Tex.Code Crim. Proc. Ann. art. 30.071 § 2(e), the jury is asked to answer the following mitigation special issue: Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment without parole rather than a death sentence be imposed. See Tex.Code Crim. Proc. Ann. art. 37.071 § 2(e)(1) (Vernon 1999). If the jury answers the special issue in the negative, the trial court must sentence the defendant to death. If the jury answers in the affirmative or is unable to answer the issue, the statute requires the trial court to sentence the defendant to “confinement in the institutional division of the Texas Department of Criminal Justice for life imprisonment without parole.” See id. § 2(g) (Vernon 1999). Valle argues that this scheme means that the State can increase the defendant's authorized punishment from life imprisonment to death “contingent on” a negative answer to the mitigation special issue and is thus required by Apprendi and Ring to prove the absence of mitigating factors beyond a reasonable doubt.

The Texas Court of Criminal Appeals denied Valle's claim on the basis of Prystash v. State, 3 S.W.3d 522, 535-36 (Tex.Crim.App.1999), which held that the lack of burden of proof requirement in the mitigation special issue was constitutional, as it does not lessen the State's burden to prove the elements of the capital offense and any aggravating circumstances. While Valle raised a slightly different issue before the district court-focusing on the use of victim impact evidence to rebut mitigation evidence offered by the defendant-the district court found the arguments foreclosed by our precedent.

In Rowell v. Dretke, 398 F.3d 370 (5th Cir.2005), we held that “no Supreme Court or Circuit precedent constitutionally requires that Texas's mitigation special issue be assigned a burden of proof.” Id. at 378. “Reasonable jurists would not debate the district court's dismissal of this claim as it has been previously rejected in both state and federal court, and is not supported by Supreme Court authority.” Scheanette v. Quarterman, 482 F.3d 815, 828 (5th Cir.2007); see also Granados v. Quarterman, 455 F.3d 529, 536-37 (5th Cir.2006), cert. denied, 127 S.Ct. 732 (2006). We therefore may not grant a COA to Valle on this issue.

Valle also appears to claim that the mitigation issue and future-dangerousness special issues are unconstitutional because they are not subject to meaningful appellate review. The district court properly rejected both arguments. Valle's claim that the mitigation special issue is unconstitutional is foreclosed by this court's holding in Moore v. Johnson, 225 F.3d 495 (5th Cir.2000) that Texas's special mitigation issue complies with Supreme Court precedent stating that sentencers are to be given “unbridled discretion” in considering mitigating factors. Id. at 506-07 (quoting Tuilaepa v. California, 512 U.S. 967, 979-80 (1994)). The argument that the future dangerousness issue cannot be meaningfully reviewed also holds no water. The district court pointed to several factors that are the basis for an appellate court to review a jury's consideration of the future-dangerousness issue. Valle, 2008 WL 416241, at *16 (citing Keeton v. State, 724 S.W.2d 58, 61 (Tex.Crim.App.1987).