NO. 07-11-00085-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

SEPTEMBER 6, 2012

CESAR DAN HERNANDEZ-SANDOVAL, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

FROM THE 291ST DISTRICT COURT OF DALLAS COUNTY;

NO. F-0954675-U; HONORABLE SUSAN LYNN HAWK, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Appellant, Cesar Dan Hernandez-Sandoval, appeals from his conviction for 

murder1 for which the jury assessed punishment at life in prison. On appeal, he 

challenges the trial court’s denial of his motion to suppress his oral and written 

statements, its denial of his motion for mistrial based on a juror’s nondisclosure of 

material information, its in camera hearing held on the matter in appellant’s absence, 

and its admission of gruesome photographic evidence of the murder victim. We will 

affirm.

 1 See TEX. PENAL CODE ANN. § 19.02(b)(1), (2) (West 2011).
2

Factual and Procedural History

Nineteen-year-old appellant lived in a Dallas residence with his father, mother, 

and two younger sisters. On May 5, 2009, appellant’s mother, Esther Hernandez, 

disappeared without warning and could not be found despite family’s and friends’ 

efforts. Ten days later, on Mother’s Day, after an undetermined foul odor had been 

detected in the home, appellant’s father, Jose Hernandez, noticed that the odor seemed 

to be coming from a sealed storage closet in the hallway. As Jose undertook the task of 

unsealing the closet, appellant left the residence and did not return. When Jose 

successfully unsealed the closet, he discovered the decomposed body of Esther.

Further investigation yielded information regarding unauthorized credit cards in 

Jose’s and Esther’s names and money missing from the family bank account over which 

appellant had been given authority. In fact, there had been an ATM withdrawal on the 

morning Esther had gone missing, and, on the day before Esther’s disappearance, 

there had been a wire transfer from the family account to appellant’s account.

In mid-September 2009, appellant was found and arrested in Las Vegas, 

Nevada, where he was homeless. A Dallas homicide detective, Michael Mendez, 

interrogated appellant for approximately four and one-half hours, and appellant 

eventually gave a recorded, oral statement and a written statement. Appellant admitted 

that he had strangled his mother with a rope and put her body in the hall closet. He 

explained that his mother had asked him to do it to end her suffering brought about by 

her various medical problems.
3

Appellant was brought back to Texas and charged with the murder of his mother. 

A Dallas County jury found appellant guilty as charged and assessed life imprisonment 

as his punishment. On appeal from that conviction, appellant brings to this Court four 

issues for our review: (1) whether the trial court erred by denying his motion to suppress 

his oral and written statements, (2) whether the trial court abused its discretion by 

denying his motion for mistrial based on a juror’s nondisclosure of material information, 

(3) whether the trial court erred when it held an in camera hearing on the juror’s 

nondisclosure in appellant’s absence, and (4) whether the trial court abused its 

discretion when it admitted over objection a gruesome photograph of the victim. 

Suppression

Appellant sought suppression of his oral and written statements. On appeal, he 

maintains that the statements were products of “a prolonged, coercive interrogation” 

and “not the product of a free and unconstrained choice.” As he did below, appellant 

contends that he attempted to terminate the interrogation but Mendez disregarded his 

requests: “Despite Appellant’s repeated attempts to avoid any conversation regarding 

the alleged murder, the detective continued to press Appellant on that issue, and 

Appellant ultimately succumbed to those pressures.” Appellant contends that his due 

process rights were violated.2

 2 A statement that is “involuntary” as a matter of constitutional law is also “involuntary” 

under article 38.22, but the converse need not be true. Oursbourn v. State, 259 S.W.3d 

159, 169 (Tex.Crim.App. 2008); see TEX. CODE CRIM. PROC. ANN. art. 38.22 (West

2005). Appellant does not raise an article 38.22 issue. 
4

Standard of Review and Applicable Law

A statement is obtained in violation of constitutional due process only if the 

statement is causally related to coercive government misconduct. Davis v. State, 313 

S.W.3d 317, 337 (Tex.Crim.App. 2010), cert. denied, 2011 U.S. LEXIS 5270 (Oct. 3, 

2011). Coercive government misconduct renders a confession involuntary if the 

defendant’s “will has been overborne and his capacity for self-determination critically 

impaired.” Id. (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S.Ct. 2041, 

36 L.Ed.2d 854 (1973)). Whether this has occurred is determined by assessing the 

“totality of all the surrounding circumstances,” including “the characteristics of the 

accused and the details of the interrogation.” Id.

The Due Process Clause aims at protecting suspects from police overreaching. 

Oursbourn, 259 S.W.3d at 170. That is, a confession may be involuntary under the Due 

Process Clause only when there is police overreaching. Id. at 169. Even if a 

confession is otherwise not the product of a meaningful choice, it is nonetheless 

“voluntary” within the meaning of the Due Process Clause absent some coercive police 

activity.3

 Id. at 169–70. Absent police misconduct causally related to the confession, 

there is “simply no basis for concluding that any state actor has deprived a criminal 

defendant of due process of law.” Id. at 170 (quoting Connelly, 479 U.S. at 164). 

 3 As the Oursbourn court observed, the United States Supreme Court made this clear 

when it held that if there is no police coercion or overreaching, there is no due-process 

violation—even if a suspect is suffering from chronic schizophrenia and is in a psychotic 

state following the “voice of God” at the time he confesses. See Colorado v. Connelly,

479 U.S. 157, 170–71, 107 S.Ct. 515, 93 L.Ed.2d 473 (1964). Connelly also provides a

comprehensive collection of fact scenarios in which statements have been found to be 

involuntary under Miranda or the Due Process Clause. See id. at 163–65 & n.1.
5

Standing alone, a detective’s misrepresentations to a “suspect during an 

interrogation” do not render a confession involuntary. Green v. State, 934 S.W.2d 92, 

99 (Tex.Crim.App. 1996). It is “constitutionally permissible” for police to employ certain 

types of deception “designed to elicit a confession” as long as the suspect’s will is not 

overborne. Id. at 99–100. Factors to consider when determining whether a defendant’s 

will was overborne include length of detention, incommunicado or prolonged 

interrogation, denying access to a family member, refusing a defendant’s request to 

telephone a lawyer or family member, and physical brutality. Pace v. State, 986 S.W.2d 

740, 747 (Tex.App.—El Paso 1999, pet. ref’d). Additionally, “the fact that a friendly, 

supportive, low key, nonconfrontational style may prove effective in eliciting 

incriminating statements does not mean that the style of questioning is improper or that 

the resulting statements are involuntary.” Lane v. State, 933 S.W.2d 504, 513 

(Tex.Crim.App. 1996) (en banc). Nothing in Mendez’s style of interrogation appears to 

run afoul of any of the foregoing principles. Though appellant can be read to criticize 

Mendez’s style of interrogation, such does not appear to be the thrust of his contention 

on appeal. Instead, he asks us to examine what appellant said. 

Appellant’s contention on appeal focuses on Mendez’s continued discussion 

following appellant’s responses to questions concerning Esther’s death to the effect that 

he was too overwhelmed to discuss it at the time. Indeed, an officer’s failure to 

scrupulously honor a suspect’s unambiguous invocation of his right to remain silent or 

terminate the interview may render a confession involuntary: “[F]ailure to cut off 

questioning after a suspect invokes his right to remain silent violates his rights and 

renders any subsequently obtained statements inadmissible.” Dowthitt v. State, 931 
6

S.W.2d 244, 257 (Tex.Crim.App. 1996). However, “an officer need not stop his 

questioning unless the suspect’s invocation of rights is unambiguous, and the officer is 

not required to clarify ambiguous remarks.” Id. So, the question becomes whether 

appellant’s statements to Mendez constituted unambiguous invocations of his right to 

terminate the interview. Ambiguity exists when the suspect’s statement is subject to 

more than one reasonable interpretation under the circumstances. Williams v. State, 

257 S.W.3d 426, 433 (Tex.App.—Austin 2008, pet. ref’d).

In Dowthitt, the court examined a statement similar to the statements appellant 

made here. Dowthitt, 931 S.W.2d at 257. After Dowthitt admitted to having been 

present during the murders being investigated, he declared as follows: “I can’t say more 

than that. I need to rest.” Id. The Dowthitt court concluded that such statement was 

not an unambiguous invocation of the right to remain silent; rather, it concluded, 

Dowthitt’s statement “merely indicates that he believed he was physically unable to 

continue–not that he desired to quit.” Id. We see a similar statement interpreted in a 

similar manner in Franks v. State, 90 S.W.3d 771, 786–87 (Tex.App.—Fort Worth 2002, 

no pet.). In Franks, the court concluded that a suspect did not unambiguously invoke 

his rights when he stated, “I don't want to talk anymore. I’m tired.” See id.; accord Owen 

v. State, 862 So. 2d 687, 696–98 (Fla. 2003) (holding appellant’s statements “I don’t 

want to talk about it” and “I’d rather not talk about it” were ambiguous in the context of 

police officer’s specific questioning related to details of a homicide).

Some cases present clear examples of unambiguous assertions of the right to 

terminate the interview or to remain silent. For instance, when a suspect declared “I’m 

not answering any questions” and continued to invoke that right throughout the 
7

remainder of the interview, he unambiguously invoked his right to remain silent. See

Cooper v. State, 961 S.W.2d 222, 226–27 (Tex.App.—Houston [1st Dist.] 1997, pet. 

ref’d). We see an arguably more unambiguous invocation of the right to remain silent 

when a suspect responded immediately and emphatically, “No, man, no, no, Hell no, I’m 

ready to go.” See State v. Simon, No. 05-10-01503-CR, 2011 Tex. App. LEXIS 9703, at 

*3, 6–7 (Tex.App.—Dallas Dec. 12, 2011, pet. ref’d) (not designated for publication) 

When, about fifteen seconds later, another officer entered the interview room, the 

suspect shook his head and reiterated, “I’m ready to go . . . No. I’m ready to go now. 

I’m telling you man. No. Hell. No.” See id. at *7. The court concluded that his 

announcement “constituted a clear unambiguous attempt to end the interview.” Id.

Others are less unambiguous. In Ramos, the suspect told the interrogating 

officer that “he didn’t want to talk to [the officer]. That he didn’t want to talk about it 

anymore.” Ramos v. State, 245 S.W.3d 410, 413 (Tex.Crim.App. 2008). The Texas 

Court of Criminal Appeals held that Ramos’s statement to the officer that he did not 

want to talk to him was an unambiguous, unequivocal, and unqualified assertion of the 

right to remain silent. Id. at 418–19. A reasonable police officer in the officer’s position 

would not have found Ramos’s assertion of his right to be ambiguous. Id. at 419. 

Further, any ambiguity in his other statement to the effect that he did not want to talk 

about “it” anymore, was, in context, entirely irrelevant in light of his unambiguous 

assertion of his right to terminate the interview. See id.

Of course, the nature of every statement is not always clear from the statement 

itself; we must and may consider the context in which it was uttered to determine its 

meaning. See Williams, 257 S.W.3d at 434 (concluding that holding in Ramos did not 
8

preclude a reviewing court from examining the context in which a statement was made 

to determine its meaning). Notably, we consider the statement in Williams: “I want to 

terminate everything right now.” See id. at 433. Though it could seem fairly 

unambiguous on its face, in its context, the officer was permitted to clarify what 

appellant meant by his statement, and, therefore, the trial court did not abuse its 

discretion when it denied Williams’s motion to suppress. See id. at 433–34.

Consistently, the San Antonio court concluded that, “[i]n the context presented,” a 

suspect’s statement that he was “done talking” was not an unambiguous invocation of 

his right to remain silent when, immediately after the suspect said he was “done talking,” 

he continued talking. See Esquivel v. State, No. 04-08-00730-CR, 2009 Tex. App. 

LEXIS 7789, at *10–11 (Tex.App.—San Antonio Oct. 7, 2009, no pet.) (mem. op., not 

designated for publication). Esquivel’s conduct was inconsistent with his statement. Id. 

So, when the detective sought to clarify Esquivel’s wishes before continuing the 

interview, he did not violate Esquivel’s right to remain silent. Id. at *11. Relying on the 

reasoning in Williams, the Esquivel court concluded that, by continuing to talk after he 

stated he was “done talking,” Esquivel made his statement ambiguous, unlike the 

suspect in Ramos who similarly stated that he no longer wished to talk and then made 

clear, by refusing to talk that he, in fact, no longer wished to talk. See Esquivel, 2009 

Tex. App. LEXIS 7789, at *11 (discussing Ramos, 245 S.W.3d at 413, 418–19).

Analysis

Here, appellant made the following statements, each time in response to 

questions or prompts specifically dealing with Esther’s death:
9

“Don’t really want to say, it just overwhelms me right —.”

“I know they want closure but just don’t want to talk about it right now, 

when would I be, when would I be going to Texas? Then I probably 

compose myself.” 

“I don’t want to talk about it. Like I said, I’m just overwhelmed right now.”

“Could you come tomorrow, because, like I said I’m just overwhelmed right 

now, I don’t really want to talk about it right now.”

Just overwhelming, I’m shaking. I’d love to write it down but I can’t.”

On their faces, these statements do not appear to be unambiguous assertions of 

appellant’s right to remain silent or to terminate the interview. And, taken in context, 

they become even less so. That is, the fact that appellant wanted to avoid talking about 

the murder but continued to discuss a variety of other topics indicates that appellant 

simply wanted to redirect the conversation to more palatable, less “overwhelming” 

topics, and Mendez obliged. The transcript of the interrogation shows that appellant 

was willing to and did talk with Mendez on a variety of other topics. Although appellant 

expressed a reluctance to talk about the death of his mother because it seemed 

overwhelming to him, as the State points out, appellant was quite willing to talk about a 

number of other topics and never unambiguously requested to terminate the interview. 

Appellant seemed especially interested in hearing how the Dallas detectives found him 

and asked Mendez several questions relating to the investigation. The two also 

discussed cultural affairs in Dallas, appellant’s high school extracurricular activities, 

family matters, Mendez’s experiences as a police officer, television detective shows, 

smartphones, music, and places to go in Las Vegas. Ultimately, it was appellant who 

asked for paper and pen, expressing that he was ready to give his written statement.
10

So, much like the statements examined in Dowthitt and Franks, appellant’s 

statements are ambiguous, and they become more so in context. Though appellant 

expressed some reluctance to talk about the particular topic Mendez had posed, he 

continued to engage in discussion with Mendez about a number of other topics. So, like 

the statement made in Williams, the context lends to the ambiguity. Mendez was not 

required by the Due Process Clause to terminate the interview when appellant 

responded that the topic of his mother’s death was overwhelming and that he did not 

want to talk about it at the time. See Dowthitt, 931 S.W.2d at 257. Based on the record 

before it, the trial court did not abuse its discretion by denying appellant’s motion to 

suppress his oral and written statements. We overrule appellant’s first issue.

Juror’s Nondisclosure

The morning after trial began and after the trial court’s instructions to the jury 

before retiring for the evening, Juror H. disclosed to the bailiff that she had read an 

internet news article regarding the murder prior to her having been selected as a juror 

and prior to the trial court’s instructions not to do such research. Appellant contends 

that the article was prejudicial and that Juror H. failed to disclose a material fact during 

voir dire. Based on the nondisclosure of this material fact, appellant continues, the trial 

court should have granted his motion for mistrial.

Voir dire began on the morning of August 17, 2010. During lunch break, a 

venireperson, who ultimately would be selected to be on the jury and become Juror H., 

looked up appellant’s name on her mobile phone and found an article relating to his 
11

arrest. After lunch, voir dire resumed, during which defense counsel issued the 

following prompt for discussion:

And what I need from you guys, okay, I only need from you guys for 

y’all to be honest with me in this small little time that we have. And if 

there’s something out there that may make you have a problem with sitting

as a juror on this case, we need to know about it. Both sides need to 

know about it because the last thing in the world anybody wants is for you 

to be chosen as a juror over here and we get halfway through the trial and 

that little thing that you thought you might be able to put aside, that little 

part of you that was, you know, you’re sitting there right now saying man, 

that, I’m just not sure about, but I don’t think. I don’t think it’s going to 

bother me. I don’t think the Judge or the DA really needs to know about it 

or the defense attorney. I think I can get by it. We need to know about it. 

Okay.

On appeal, appellant maintains that Juror H. should have disclosed that she had read 

the article when so prompted. Ultimately, Juror H. was selected as a juror, and trial 

began. Just before it released the jury for the evening, the trial court issued the 

following instruction to the jury:

At times throughout the trial you might hear about a particular topic, 

a particular location, you are not to do any kind of independent 

investigation of your own.

I stress this. I always say you cannot get on the internet. And I 

take that very seriously. If you do[,] that’s in contempt of Court. So I just, I 

have to advise you of these things because I want only the evidence you 

are to consider . . . to come from the Courtroom and the Courtroom only, 

not from any other outside sources.

The next morning, prior to presentation of any other evidence, Juror H. notified the bailiff 

that, prior to having been selected as a juror and prior to the trial court’s admonition, she 

had, in fact, read an article about appellant’s capture. The bailiff reported this 

development to the trial court who held an in camera hearing on the matter.
12

During the hearing, Juror H. testified that she read something to the effect that 

the “Mother’s Day Killer” who had allegedly killed his mother was captured in Las 

Vegas. The trial court then questioned her on the matter:

Court: My question is to you, knowing that was in the newspaper and that

you did read that, is there anything about that that is going to influence 

you whatsoever in your decision-making process during this trial?

Juror H.: No.

Court: And are you going to be able to completely set that aside and base 

your verdict solely on the evidence that is presented in the Courtroom?

Juror H.: Yes, ma’am.

The State and the defense each questioned Juror H. Juror H. testified that she did not 

discuss with any other juror the article she had read and reaffirmed that she could base 

her verdict solely on the evidence presented in the courtroom. Nevertheless, defense 

counsel objected to the continued presence of Juror H. on the jury and requested a 

mistrial. The trial court overruled appellant’s objections.4

 

Standard of Review

A mistrial is an extreme remedy that is reserved for a very narrow classification of 

circumstances involving highly prejudicial and incurable errors. See Ocon v. State, 284 

S.W.3d 880, 884 (Tex.Crim.App. 2009). A mistrial is used to halt proceedings when the 

error involved makes the expenditure of further time and expense wasteful and futile. 

Id. The decision to grant a mistrial is governed by the particular facts of the case. Id. A 

trial court's decision to deny a motion for mistrial is reviewed under an abuse of 

 4 Though the trial court did not expressly deny the motion for mistrial, it is a fair reading 

of the record and the context in which the trial court overruled appellant’s objections that 

the trial court implicitly denied the motion for mistrial as well. See TEX. R. APP. P.

33.1(a)(2)(A).
13

discretion standard. Id.; Granados v. State, 85 S.W.3d 217, 236 (Tex.Crim.App. 2002). 

The denial of the motion for mistrial must be upheld if it was within the zone of 

reasonable disagreement. See Ocon, 284 S.W.3d at 884.

Applicable law

An accused in a criminal prosecution has the right to a fair trial by an impartial 

jury. See TEX. CONST. art. I, § 10. When a juror withholds material information during 

voir dire without fault or lack of diligence by the complaining party, the parties are 

denied an opportunity to exercise challenges, which hampers the selection of an 

impartial jury. Franklin v. State, 12 S.W.3d 473, 477–78 (Tex.Crim.App. 2000); 

Armstrong v. State, 897 S.W.2d 361, 363 (Tex.Crim.App. 1995) (en banc). Therefore, 

when a juror withholds material information during voir dire, a mistrial may be 

appropriate. See Franklin v. State, 138 S.W.3d 351, 353–54 (Tex.Crim.App. 2004).

To obtain a reversal on an allegation that a juror withheld information in voir dire, 

an appellant must show that material information was “withheld” despite due diligence 

exercised by the complaining party, who acted in good faith on the answers given by a 

juror in voir dire. See Franklin, 12 S.W.3d at 478; De La Rosa v. State, 658 S.W.2d 

162, 164 (Tex.Crim.App. 1983); see also Brown v. State, 183 S.W.3d 728, 737 

(Tex.App.—Houston [1st Dist.] 2005, pet. ref’d). We consider information “withheld” 

when defense counsel asked questions in voir dire that were calculated to uncover 

material information and the juror did not reveal the information. Jones v. State, 596 

S.W.2d 134, 137 (Tex.Crim.App. [Panel Op.] 1980), overruled on other grounds by

Sneed v. State, 670 S.W.2d 262, 266 (Tex.Crim.App. 1984) (en banc) (op. on reh’g). 
14

Defense counsel must be diligent in eliciting pertinent information from venire members 

during voir dire in an effort to reveal prejudice or potential bias. Gonzales v. State, 3 

S.W.3d 915, 917 (Tex.Crim.App. 1999) (en banc). Unless defense counsel asks such 

questions, the information, even if material, that a juror fails to disclose is not “withheld.” 

Id.; Armstrong, 897 S.W.2d at 364. Further, when the information withheld is not 

material and the record does not show that the defendant was denied an impartial jury 

or a fair trial, denying a motion for mistrial is not error. Decker v. State, 717 S.W.2d 

903, 907–08 (Tex.Crim.App. 1986) (en banc) (op. on reh’g); see Quinn v. State, 958 

S.W.2d 395, 402 (Tex.Crim.App. 1997) (concluding that the trial court did not abuse its 

discretion by denying motion for new trial when juror testified that he had not discussed 

an outside conversation with other jurors and other jurors confirmed such).

Analysis

Appellant attempts to cast this issue in terms of the juror’s failure to disclose 

having read the article when directly asked about such a thing when, in fact, the portion 

of voir dire on which appellant relies as the basis for his issue was much more general 

in nature, prompting the venire to mention “if there’s something out there that may make 

you have a problem with sitting as a juror on this case.” Further, the context of the 

invitation for discussion was directed at “life experiences” that would affect a juror’s 

ability to be impartial, less to do with publicity or prior knowledge of the case. Putting 

the aforementioned voir dire excerpt in its context, this observation becomes clearer:

. . . But all of us have life experiences. All of us have life 

experiences.

Mine, I grew up in a small town in McAllen. Predominantly Hispanic 

town in the Valley on the border. I went to college. I went to Baylor 
15

University, both under[]grad and law school. Got out. Went to work for 

the District Attorney[’]s office. Later on[,] I married an Assistant District 

Attorney who is now no longer with the District Attorney[’]s office, but 

these were life experiences that I have.

Okay. They’re not good necessarily, they’re not bad necessarily. 

Some were good, some were bad, but they were what made me to be who 

I am. Okay.

And what I need from you guys, okay, I only need from you guys for 

y’all to be honest with me in this small little time that we have. And if 

there’s something out there that may make you have a problem with sitting 

as a juror on this case, we need to know about it. Both sides need to 

know about it because the last thing in the world anybody wants is for you 

to be chosen as a juror over here and we get halfway through the trial and 

that little thing that you thought you might be able to put aside, that little 

part of you that was, you know, you’re sitting there right now saying man, 

that, I’m just not sure about, but I don’t think. I don’t think it’s going to 

bother me. I don’t think the Judge or the DA really needs to know about it 

or the defense attorney. I think I can get by it. We need to know about it. 

Okay.

Juror H.’s failure to disclose that she had read an article on the internet in response to 

this particular invitation for discourse during voir dire is not indicative of her failure to 

disclose a material fact in response to a direct question; Juror H.’s forthrightness is not 

brought into question by her failure to disclose having read the article in response to 

defense counsel’s cited prompt for discussion.

Further, the trial court questioned Juror H. in chambers and confirmed that she 

had not discussed the article with any other juror. Juror H. also answered that she 

could reach her verdict based solely on the evidence presented in court. The trial 

court’s and the parties’ inquiries were sufficient to determine that Juror H. remained 

unbiased. See Granados, 85 S.W.3d at 236. And the trial court admonished Juror H. 

on her responsibilities and reiterated for the record that the jury had been thoroughly 

admonished against outside research, noting that Juror H. had read the article prior to 
16

the trial court’s admonition. See id. at 237. Indeed, the trial court did issue to the jury 

very strict instructions to refrain from any independent research on the facts of the case, 

instructions which prompted Juror H. to disclose that she had done so prior to having 

been so instructed. Her candor with respect to having read the article prior to having 

been instructed suggests that Juror H. understood and complied with the trial court’s 

instructions after she was selected as a juror. Cf. id. (noting that there was no indication 

that the juror disobeyed the trial court’s instructions regarding his responsibilities). With 

that, the record does not reflect that appellant was denied an impartial jury or a fair trial. 

See Decker, 717 S.W.2d at 907–08. The trial court did not abuse its discretion by 

denying appellant’s motion for mistrial made on the basis of Juror H.’s revelation. See

Granados, 85 S.W.3d at 237. We overrule appellant’s second point of error.

In Camera Hearing in Appellant’s Absence

When Juror H. revealed that she had read the news article on the murder, the 

trial court held an in camera hearing on the matter in appellant’s absence. Appellant 

contends that, by holding this hearing in chambers in his absence, the trial court 

committed reversible error. He addresses the issue in terms of both statutory and 

constitutional error. He cites his right to be present as guaranteed by the United States 

and Texas Constitutions and as codified by the Texas Code of Criminal Procedure.

Constitutional Right to Be Present

A criminal defendant has a constitutional right to be present at all phases of his 

trial where his absence might frustrate the fairness of the proceeding. See U.S. CONST. 

amend. VI; TEX. CONST. art. I, § 10; Faretta v. California, 422 U.S. 806, 820 n.15, 95 
17

S.Ct. 2525, 45 L.Ed.2d 562 (1975); see also Miller v. State, 692 S.W.2d 88, 90 

(Tex.Crim.App. 1985) (en banc). The Texas Court of Criminal Appeals has adopted the 

reasonably substantial relationship test to satisfy the Fourteenth Amendment and Sixth 

Amendment concerns. See Routier v. State, 112 S.W.3d 554, 576 (Tex.Crim.App. 

2003). That is, the defendant’s presence must bear a reasonably substantial 

relationship to the opportunity to defend. See id.; Adanandus v. State, 866 S.W.2d 210, 

219 (Tex.Crim.App. 1993). However, “an accused who is present at the time voir dire

begins, but who thereafter voluntarily removes himself for any length of time forfeits his 

Sixth Amendment right to be present for that period of time during which he was 

absent.” Miller, 692 S.W.2d at 91.

Nonetheless, even constitutional error may be forfeited by the failure to object: 

“Except for complaints involving systemic (or absolute) requirements, or rights that are 

waivable only, which are not involved here, all other complaints, whether constitutional, 

statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a).” Mendez v. 

State, 138 S.W.3d 334, 342 (Tex.Crim.App. 2004) (en banc). More concisely, “if a party 

fails to properly object to constitutional errors at trial, these errors can be forfeited.” 

Clark v. State, 365 S.W.3d 333, 339 (Tex.Crim.App. 2012). And, more specifically, a 

defendant waives his constitutional right to confront witnesses if he does not make a 

timely and specific objection at trial on the basis of violation of his right to confrontation. 

See Holland v. State, 802 S.W.2d 696, 700 (Tex.Crim.App. 1991) (en banc); cf.

McNaspy v. State, No. 14-96-01317-CR, 1999 Tex. App. LEXIS 5594, at *2–4 

(Tex.App.—Houston [14th Dist.] July 29, 1999, pet. ref’d) (concluding that appellant 

failed to preserve his federal and state constitutional complaints when “the record [did] 
18

not reflect that appellant objected on any grounds to his exclusion from the trial court’s 

in camera hearing”). Here, appellant lodged no objection to his absence from the in 

camera hearing. His failure to object has forfeited his constitutional complaints on 

appeal. See Clark, 365 S.W.3d at 339.

Article 33.03

Nothing, then, in terms of constitutional rights, was preserved for our review. We 

are, therefore, left with the issue of appellant’s absence from the in camera hearing 

raised in terms of article 33.03, which generally affords greater protection than federal 

and state constitutional provisions in terms of waiver of the right to be present and 

which requires essentially the same substantive analysis.5

 See Roden v. State, 338 

S.W.3d 626, 631 n.1 (Tex.App.—Fort Worth 2011, pet. ref’d) (addressing only statutory 

complaint even though appellant also raised federal and state constitutional issue 

because article 33.03 arguably offers greater protection of rights and also 

acknowledging that the analysis is largely the same). Keeping in mind the exception 

 5 Notably, the Dallas Court of Appeals, from which this case was transferred to this 

Court pursuant to the Texas Supreme Court’s docket equalization efforts, has observed 

that article 33.03 provides even greater protection than the constitutional provisions. 

See Sumrell v. State, 326 S.W.3d 621, 624 n.2 (Tex.App.—Dallas 2009) (noting that 

federal constitutional right “is codified under state law in article 33.03 of the Texas Code 

of Criminal Procedure, which is even more protective of a defendant's rights than the 

constitutional provisions because the right to be present cannot be waived before the 

jury is selected”), pet. dism’d, improvidently granted, 320 S.W.3d 338 (Tex.Crim.App. 

2010) (per curiam). Not having directly spoken on this particular issue, we will proceed, 

taking guidance from Sumrell. See TEX. R. APP. P. 41.3.
19

that regular rules regarding preservation of error do not apply to rights that are 

“waivable only,” we turn to article 33.03. See Mendez, 138 S.W.3d at 342.6

Article 33.03 provides as follows:

In all prosecutions for felonies, the defendant must be personally present 

at the trial, and he must likewise be present in all cases of misdemeanor 

when the punishment or any part thereof is imprisonment in jail; provided, 

however, that in all cases, when the defendant voluntarily absents himself 

after pleading to the indictment or information, or after the jury has been 

selected when trial is before a jury, the trial may proceed to its conclusion. 

When the record in the appellate court shows that the defendant was 

present at the commencement, or any portion of the trial, it shall be 

presumed in the absence of all evidence in the record to the contrary that 

he was present during the whole trial. Provided, however, that the 

presence of the defendant shall not be required at the hearing on the 

motion for new trial in any misdemeanor case.

TEX. CODE CRIM. PROC. ANN. art. 33.03 (West 2006). By its own terms, article 33.03 

distinguishes between the right to be present at voir dire and the right to be present 

after a jury has been selected.

So, under article 33.03, an accused’s right to be present at his trial is unwaivable 

until such a time as a jury “has been selected.” Id.; Adanandus, 866 S.W.2d at 217; 

Miller, 692 S.W.2d at 91. After a jury has been selected, a defendant may choose to be 

absent. See TEX. CODE CRIM. PROC. ANN. art. 33.03; Routier, 112 S.W.3d at 575. So, 

 6 The Texas Court of Criminal Appeals has intimated that an appellant’s post-juryselection rights under article 33.03 may be forfeited by a failure to object at the earliest 

opportunity. See Routier, 112 S.W.3d at 575 (addressing appellant’s complaint that she 

was absent during trial court’s response to the jury’s request); see also Lacy v. State, 

374 S.W.2d 244, 245 (Tex.Crim.App. 1963) (denying appellant’s contention that trial 

court erred by holding hearing on motion for new trial in his absence when trial counsel 

was present, announced ready, and made no objection to appellant’s absence from 

hearing). However, because a great deal of authority suggests that article 33.03 rights, 

after a jury has been impaneled, are waivable only and because the Routier court 

ultimately did address the merits of appellant’s claims despite her failure to object, we, 

too, will address the substance of appellant’s article 33.03 claims.
20

the right outlined in article 33.03 is one that must be implemented unless appellant 

waives that right. See Kessel v. State, 161 S.W.3d 40, 45 n.1 (Tex.App.—Houston 

[14th Dist.] 2004, pet. ref’d) (citing Garcia v. State, 149 S.W.3d 135, 142–45 

(Tex.Crim.App. 2004)). One way a defendant may waive the right afforded by article 

33.03 is by voluntarily absenting himself from trial after a jury has been selected. See

Miller, 692 S.W.2d at 91. Our concern here is that there is nothing in the record 

regarding any finding by the trial court with regard to the voluntariness of appellant’s 

absence from the in camera hearing.7 We note further that trial counsel made no 

affirmative waiver of appellant’s presence on the record, which, in proper 

circumstances, could be sufficient to waive appellant’s article 33.03 rights. See Routier, 

112 S.W.3d at 576. The trial court announced the presence of the State’s attorney, 

defense counsel, and Juror H. in chambers; no mention was made of appellant. In 

cases involving the waiver of waivable only rights, the fact that appellant was 

inexplicably absent, without a waiver by counsel or a finding from the trial court, seems 

insufficient to conclude that appellant waived his article 33.03 right:

Waivable rights, on the other hand, do not vanish so easily. Although a 

litigant might give them up and, indeed, has a right to do so, he is never 

deemed to have done so in fact unless he says so plainly, freely, and 

intelligently, sometimes in writing and always on the record. He need 

make no request at trial for the implementation of such rights, as the judge 

has an independent duty to implement them absent an effective waiver by 

 7 We recognize that the trial court need not conduct a full-blown evidentiary hearing on 

the voluntariness issue. Aguirre v. State, 695 S.W.2d 793, 795 (Tex.App.—San Antonio 

1985, no writ). Evidence supporting a conclusion that the defendant’s absence was 

voluntary may include that he was present at the trial before his absence, he was 

instructed when and where trial would resume, he was out on bond when he 

disappeared, and he subsequently offered no explanation for his absence in a motion 

for new trial or otherwise. See Moore v. State, 670 S.W.2d 259, 261 (Tex.Crim.App. 

1984) (en banc). Again, however, we have no finding or conclusion on the 

voluntariness of appellant’s absence.
21

him. As a consequence, failure of the judge to implement them at trial is 

an error which might be urged on appeal whether or not it was first urged 

in the trial court. 

Marin v. State, 851 S.W.2d 275, 280 (Tex. Crim. App. 1993) (en banc) (citation omitted). 

No Reasonably Substantial Relationship

Appellant maintains that his presence at the hearing bore a reasonably 

substantial relationship to his opportunity to defend himself because, had he been 

present, he could have listened to Juror H.’s answers and observed her demeanor. 

Those observations could have enabled him to consult with defense counsel regarding 

additional questions to ask Juror H. In his brief, he explains that his absence from the 

hearing meant “he was unable to assist his attorney in moving for the mistrial.”

The Texas Court of Criminal Appeals concluded that appellant’s presence at an 

in camera hearing on a jury issue did not bear a reasonably substantial relationship to 

his ability to defend himself when appellant was represented by counsel at the hearing, 

appellant’s insight was not required, and there was no evidence that appellant had 

information not available to the attorneys and the trial court.8

 See Adanandus, 866 

 8 We note that there is also authority that could be said to support the conclusion that 

neither article 33.03 nor the relevant constitutional provisions would be implicated with 

respect to the in camera hearing at which appellant directs his complaint. For instance, 

in camera proceedings to discuss (1) the “peculiar situation” in which a potential juror 

was contacted via telephone at home by someone from the jail where defendant was 

incarcerated and (2) whether the venireperson should be dismissed did not constitute 

voir dire proceedings, and defendant’s exclusion did not implicate defendant’s 

constitutional right to be present during trial. See Lawton v. State, 913 S.W.2d 542, 549 

(Tex.Crim.App. 1995) (en banc), overruled on other grounds by Mosley v. State, 983 

S.W.2d 249, 263–64 & n.18 (Tex.Crim.App. 1998) (op. on reh’g); see also Ingram v. 

State, No. 05-99-00442-CR, 2000 Tex. App. LEXIS 4715, at *7–8 (Tex.App.—Dallas 

July 18, 2000, pet. ref’d) (concluding that the in camera meeting to discuss alleged juror 

misconduct was not a “trial” for the purposes of article 33.03). We will presume, for the 
22

S.W.2d at 220. The Dallas court came to similar conclusions when asked to review 

issues relating to an appellant’s absence from an in camera hearing on alleged juror 

misconduct. See Ingram, 2000 Tex. App. LEXIS 4715, at *8. The court observed that 

appellant would have lacked any knowledge on the issue of juror misconduct. Id. In 

fact, the court could “perceive no manner in which appellant’s presence [at the in 

camera hearing] would have aided in his defense.” Id. Similarly, in addressing both the 

reasonably substantial relationship issue and the question of harm,9 the Dallas court 

pointed out that the record revealed nothing to suggest an appellant’s presence at a 

pretrial motion for continuance would have changed the legal arguments presented 

there. Williams v. State, No. 05-09-01060-CR, 2011 Tex. App. LEXIS 3799, at *14 

(Tex.App.—Dallas May 19, 2011, pet. ref’d) (not designated for publication). Nor was 

there “any indication his presence would have furthered his defense at trial.” Id.

 

purposes of analysis and out of an abundance of caution, that the in camera hearing at 

issue here is sufficiently distinguishable from the in camera hearing at issue in Lawton.

9

Though the Texas Court of Criminal Appeals has expressly recognized that the 

reasonably substantial relationship test and harm analysis are technically separate 

inquiries, they do have similar considerations:

The reasonably substantial relationship test is essentially a harm analysis, 

although it differs from [former] Rule 81(b)(2). . . . The reasonably 

substantial relationship test seeks to determine the effect of the 

defendant’s absence on the advancement of his defense, as opposed to 

[former] Rule 81(b)(2) which seeks to determine the effect of the 

defendant’s absence on the outcome of the trial or punishment 

proceeding. In light of the distinct focus of the two tests, we hold that 

[former] Rule 81(b)(2) does not supplant the reasonably substantial 

relationship test, but rather should be applied in addition thereto.

Adanandus, 866 S.W.2d at 219–20.
23

Likewise, here, the trial court held the in camera hearing to determine issues 

related to possible juror misconduct. While there were some factual issues raised, we 

cannot see how appellant could have contributed any unique insight into these matters. 

As for the legal issues relating to juror misconduct, we cannot conclude that, had he 

been present, appellant would have been able to contribute anything in terms of 

strategic decisions relating to the motion for mistrial. On matters such as these, we 

reiterate the Texas Court of Criminal Appeals’s observation: “It is difficult to imagine a 

trial fraught with complex legal problems when there will not be occasions where 

counsel and the court will confer on questions of law at the bench or in chambers out of 

the presence of the defendant.” Mares v. State, 571 S.W.2d 303, 307 (Tex.Crim.App. 

[Panel Op.] 1978). Appellant has failed to demonstrate that his presence at the in 

camera hearing bore a “reasonably substantial relationship to the opportunity to 

defend.” See id. We overrule appellant’s third issue.10

Admission of Photographic Evidence

In his fourth and final point of error, appellant contends the trial court abused its 

discretion by admitting what he characterizes as “a highly prejudicial, gruesome 

photograph” showing the partially decomposed, bloated, disfigured head of Esther, after 

 10 Even if we were to presume for the purposes of analysis that defendant’s absence 

from the in camera hearing violated his rights under article 33.03, we conclude that such 

error did not affect a substantial right. See TEX. R. APP. P. 44.2(b). For reasons not 

dissimilar to those supporting our conclusion that appellant’s presence at the hearing 

did not bear a reasonably substantial relationship to his ability to defend himself, we 

conclude that any error would be harmless. That is, appellant was represented by 

counsel, his insight was not necessary to the disposition of the issues raised in the 

hearing, and there was no evidence that appellant had relevant information not 

available to the attorneys or the trial court on the matters addressed. See Adanandus, 

866 S.W.2d at 220; see also Muennink v. State, 933 S.W.2d 677, 683–84 (Tex.App.—

San Antonio 1996, pet. ref’d).
24

her body was discovered in the closet. Appellant maintains that the prejudicial impact of 

this photograph substantially outweighs its probative value. See TEX. R. EVID. 403.

Standard of Review and Applicable Law

The admissibility of photographic evidence lies within the sound discretion of the 

trial court. Shuffield v. State, 189 S.W.3d 782, 786 (Tex.Crim.App. 2006). Its decision 

to admit or exclude evidence will not be overturned on appeal absent a showing that the 

trial court abused its discretion. Id. at 787. The Texas Rules of Evidence favor 

admission of all relevant evidence at trial, though these evidentiary rules do provide 

exceptions that would exclude otherwise relevant and admissible evidence. See TEX.

R. EVID. 401. One exception to this general rule is found in Rule 403: “Although 

relevant, evidence may be excluded if its probative value is substantially outweighed by 

the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by 

considerations of undue delay, or needless presentation of cumulative evidence.” TEX.

R. EVID. 403. When called on to analyze evidence in light of a Rule 403 objection, the 

trial court must balance the following considerations: (1) the inherent probative force of 

the proffered evidence along with (2) the proponent’s need for that evidence against (3) 

any tendency of the evidence to suggest decision on an improper basis, (4) any 

tendency of the evidence to confuse or distract the jury from the main issues, (5) any 

tendency of the evidence to be given undue weight by a jury that has not been equipped 

to evaluate the probative force of the evidence, and (6) the likelihood that presentation 

of the evidence will consume an inordinate amount of time or merely repeat evidence 

already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex.Crim.App. 

2006). When dealing specifically with photographic evidence, we also consider the 
25

number and size of the photographs, whether they are in color or black and white, the 

detail shown in the photographs, whether the photographs are gruesome, whether the 

body is naked or clothed, and whether the body has been altered in some way that 

might enhance the gruesomeness of the photographs to the appellant’s detriment. 

Shuffield, 189 S.W.3d at 787.

Analysis

State’s Exhibit 47 consists of one photograph depicting Esther’s body as it 

appeared following its removal from the hall closet. In the record before us, this 

photograph appears to be approximately six inches by eight and one-half inches; its 

degree of detail is unremarkable, no more or less than expected from a copy of the 

original. Though the photograph appears in our record as a black and white copy, the 

discussion at trial surrounding its contents as depicting a green cord suggest that the 

original exhibit was a color photograph. See id. (presuming at-issue photographs were 

submitted in color though they appeared in black and white in appellate record). 

Nothing in the record suggests that the body was positioned or altered before this 

photograph was taken so as to enhance its gruesomeness.

The State cites the photograph’s depiction of the rope around the deceased’s 

hands and looped around her neck as being consistent with rope found in a drawer in 

appellant’s bedroom. Appellant maintains that there was other compelling and 

undisputed evidence in support of that fact; therefore, he contends, the probative value 

of the evidence and the State’s need for it was low. In response to appellant’s 

contention that the photograph’s probative value is diminished by the admitted 
26

testimonial evidence that he claims would serve to prove the same fact depicted in the 

photograph, we note that the Texas Court of Criminal Appeals has rejected this position:

We reject the premise that visual evidence accompanying oral testimony 

is cumulative of the testimony or that it is of insignificant probative value. 

Visual evidence accompanying testimony is most persuasive and often 

gives the fact finder a point of comparison against which to test the 

credibility of a witness and the validity of his conclusions. Nor do we 

agree with appellant’s assertion that the photographs are inflammatory. 

The photographs are gruesome in that they depict disagreeable realities, 

but they depict nothing more than the reality of the brutal crime committed. 

And it is precisely because they depict the reality of this offense that they 

are powerful visual evidence, probative of various aspects of the State’s 

case. 

Chamberlain v. State, 998 S.W.2d 230, 237 (Tex.Crim.App. 1999) (en banc). On such 

authority, we conclude the photograph’s probative value weighs in favor of admission.

To support his position that the exhibit possesses the potential to impress the 

jury in some irrational but indelible way, appellant cites the fact that the photograph 

depicts Esther’s corpse in an advanced state of decomposition and presents a graphic, 

close-up view of her bloated face. The photograph, while grotesque in nature, is no 

more gruesome than the crime scene itself as it was found by the police. See Shuffield, 

189 S.W.3d at 787. Again, simply because the photograph depicted the “disagreeable 

realities” of the crime, does not render it inadmissible: “[W]hen the power of the visible 

evidence emanates from nothing more than what the defendant has himself done[,] we 

cannot hold that the trial court has abused its discretion merely because it admitted the 

evidence.” Sonnier v. State, 913 S.W.2d 511, 519 (Tex.Crim.App. 1995) (en banc).

According to the record before us, less than one page of the reporter’s record 

was devoted to developing the predicate and discussing the contents of Exhibit 47 
27

before publishing it to the jury. In light of the entirety of the record, as appellant has 

conceded, rather little time was needed to develop the evidence.

State’s Exhibit 47 is probative of the injuries sustained by the victim. The single 

photograph did not require a great deal of time to present to the jury and, though 

gruesome, depicts no more than the unpleasant, natural consequences of appellant’s 

crime. It is no more gruesome than would be expected. See Shuffield, 189 S.W.3d at 

788. Based on our analysis of the applicable law and facts, we cannot say the trial 

court abused its discretion when it overruled appellant’s Rule 403 objection to the 

admission of the photograph. Accordingly, we overrule appellant’s fourth and final point 

of error.

Conclusion

Having overruled appellant’s points of error, we affirm the trial court’s judgment of 

conviction.

Mackey K. Hancock

 Justice

Do not publish.