Affirmed and Memorandum Opinion filed September 20, 2012.

In The

Fourteenth Court of Appeals

NO. 14-11-00433-CR

ANTHONY WHITNEY NORMAN, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 1248767

M E M O R A N D U M O P I N I O N

Appellant, Anthony Whitney Norman, Jr., appeals his conviction for murder. In 

six issues, appellant contends (1) the evidence is legally insufficient to support the

conviction, (2) the indictment was based on improper grand-jury proceedings, (3) he was 

denied choice of counsel, (4) the trial court erred by denying appellant’s motion to 

suppress, (5) the prosecutor committed misconduct, and (6) the trial court committed 

various “judicial errors.” We affirm.1

 

1 Appellant, who appears pro se on appeal and has filed a handwritten brief, presents some issues 

that are not entirely clear or are multifarious. We have tried to discern his numerous complaints; but, as 
2

I. BACKGROUND

Appellant was convicted of murdering his twenty-five-year-old wife, Leydis Viche 

Hernandez, on December 1, 2008 at their house in Houston. Appellant met Leydis in her 

native country, Cuba, when she was about twenty-years old. Shortly thereafter, Leydis 

moved to Houston, and the couple married. At the time of Leydis’s death, they had three 

young children, including a two-week-old infant. As we will discuss, the State presented

evidence that appellant was physically and verbally abusive and domineering toward 

Leydis.

It is undisputed that appellant and the couple’s four-year old son were in the 

Dallas area for part of the weekend immediately before Leydis was found dead early on a 

Monday morning. Leydis remained home with their infant son and three-year-old 

daughter. According to appellant, he stayed with his brother, Marcus Norman, in 

McKinney while performing construction work on a project they jointly owned.2

Appellant asserted that he left Marcus’s home after 11:00 p.m. on Sunday night, arrived

home shortly after 5:00 a.m., found Leydis dead on the kitchen floor, and called 9-1-1 

within fifteen minutes. In contrast, the State contended appellant arrived home earlier 

and killed Leydis.

In any event, appellant did call 9-1-1 at 5:12 a.m. According to the State’s 

evidence, EMTs and officers with the Harris County Sheriff’s Department arrived at 

 

we will discuss, some issues are inadequately briefed to the extent appellant has waived appellate review. 

See Kindley v. State, 879 S.W.2d 261, 264 (Tex. App.—Houston [14th Dist.] 1994, no pet.) (stating pro se 

litigant is held to same standards as attorney and must comply with briefing rules). Further, in appellant’s 

sixth issue, contending the trial court committed various “judicial errors,” appellant reiterates some 

arguments included in other issues, as well as advancing additional contentions. Thus, we have combined 

our analysis of some contentions in his sixth issue with our analysis of other issues.

2 Appellant did not testify at trial, but the State presented recordings and transcripts of his 

statements to investigating officers and grand-jury testimony. Our references to appellant’s accounts of 

various facts and his claims regarding Leydis’s death (other than contentions in his appellate brief) are 

gleaned from his statements to officers and grand-jury testimony. To the extent there were internal 

inconsistencies in appellant’s accounts, we recite the version most favorable to the verdict because the 

jury was free to believe that version. See Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) 

(citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)); Isassi v. State, 330 S.W.3d 633, 638 (Tex. 

Crim. App. 2010).
3

various times. They found Leydis dead on the kitchen floor, lying in a pool of blood with 

what the medical examiner later described as a “perforating” gunshot wound to the head, 

inflicted from a gun pressed against the skin. Leydis was naked except for wearing 

mismatched men’s socks, with one placed on “sideways.” Near the body was a diaper 

bag containing typical baby items as well as nine one-ounce gold bars. A semi-automatic 

Glock pistol, which undisputedly was owned by appellant, lay near Leydis’s feet. A

casing, which forensic experts determined was fired from the Glock pistol, was on the 

kitchen counter. A bullet projectile was recovered from sheetrock in the breakfast-room 

ceiling, but testing was inconclusive on whether it was fired from the Glock pistol. In the 

couple’s upstairs master bedroom was a box for a gun with the make, model, and serial 

number of the Glock pistol. The upstairs master bedroom and bathroom were soaked 

with water, which caused the garage ceiling below to partially collapse and damaged a 

common wall between the living room and the garage. The shower floor and garden bath 

in the master bathroom were wet, and a robe and female undergarments were on the 

floor. Two lamps on the interior wall of the living room were unplugged, as though 

someone sought to avoid electrical shock or damage to the lamps. It was not immediately 

clear to officers whether the death was suicide, accidental, or homicide. However, the 

medical examiner ultimately classified the death as a homicide.

The first responding officer, Deputy Ben Katrib, encountered appellant standing in 

the garage holding the infant, and the older children were in their upstairs bedrooms. At 

the scene, appellant consented to testing of his hands for gunshot residue. Deputy Katrib 

placed bags on appellant’s hands to preserve any residue, secured the bags with 

handcuffs, and placed appellant in a patrol car, but he was not under arrest. The 

handcuffs were eventually removed. Sergeant Henry Palacios, a homicide investigator, 

then asked appellant to accompany him to the homicide-division office in Sergeant 

Palacios’s vehicle, to give a statement. Appellant obliged and was also not under arrest 

at that time. During the ride, Sergeant Palacios and appellant engaged in conversation, 

which was partially audio recorded. Appellant was at the homicide office for 
4

approximately six hours while Sergeant Palacios and Sergeant Eric Clegg conducted an 

interview, which was partially audio and video recorded, and administered a polygraph 

test, but again appellant was not under arrest. Appellant eventually terminated the 

interview and left the office. 

As we will further discuss, the State presented evidence that appellant engaged in 

threatening, abusive, and aggressive behavior towards officers that day. In these 

statements, appellant claimed Leydis accidently shot herself. Subsequently, appellant’s

aggressive behavior continued, and he was uncooperative in Sergeant Palacios’s 

investigation or suggested various theories that a third party killed Leydis.

Approximately four months after Leydis’s death, Sergeant Palacios asked another

homicide investigator, Sergeant Craig Clopton, to obtain an additional statement because 

of a “breakdown in communication” between Sergeant Palacios and appellant. Sergeant 

Clopton requested that appellant come to the homicide office, but he insisted they meet at 

his home. On April 1, 2009, Sergeant Clopton and two other officers video and audio 

recorded a “walk-through” of the home, while appellant explained his actions when he 

purportedly found Leydis’s body. The officers then took an additional statement from 

him. In late May 2009, appellant informed Sergeant Clopton he found another spent shell 

casing at his home. Sergeant Clopton collected the casing from the floor of the upstairs 

laundry room, and forensics experts determined it was fired from the Glock pistol.

In January 2010, appellant testified before a grand jury relative to investigation of 

Leydis’s death. Shortly thereafter, the grand jury indicted appellant for murder. A jury 

found appellant guilty and assessed punishment of twenty-two years’ confinement.

II. SUFFICIENCY OF THE EVIDENCE

In his first and sixth issues, appellant contends the evidence is legally insufficient 

to support his conviction and the trial court erred by denying his motion for an instructed 

verdict. We address a challenge to the denial of a defendant’s motion for instructed 

verdict as a challenge to legal sufficiency of the evidence. See Cook v. State, 858 S.W.2d 
5

467, 470 (Tex. Crim. App. 1993). When reviewing sufficiency of the evidence, we view 

all of the evidence in the light most favorable to the verdict and determine, based on that 

evidence and any reasonable inferences therefrom, whether any rational fact finder could 

have found the elements of the offense beyond a reasonable doubt. Gear v. State, 340 

S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–

19 (1979)). We do not sit as the thirteenth juror and may not substitute our judgment for 

that of the fact finder by re-evaluating weight and credibility of the evidence. Isassi v. 

State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Rather, we defer to the 

responsibility of the fact finder to fairly resolve conflicts in testimony, weigh the 

evidence, and draw reasonable inferences from basic facts to ultimate facts. Id.

This standard applies equally to both circumstantial and direct evidence. Id. 

Circumstantial evidence is as probative as direct evidence and alone can be sufficient to 

establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Each fact 

need not point directly and independently to the defendant’s guilt, as long as the 

cumulative effect of all incriminating facts is sufficient to support the conviction. Id.

Our duty as reviewing court is to ensure the evidence presented actually supports a 

conclusion that the defendant committed the crime. Williams v. State, 235 S.W.3d 742, 

750 (Tex. Crim. App. 2007).

A person commits murder if he “intentionally or knowingly causes the death of an 

individual” or “intends to cause serious bodily injury and commits an act clearly 

dangerous to human life that causes the death of an individual.” Tex. Penal Code Ann. § 

19.02(b)(1)–(2) (West 2011). The gist of appellant’s contentions is that the State failed to 

prove Leydis’s death was a murder, the State failed to prove appellant committed the 

murder or possessed the requisite culpable mental state, and he had an alibi.

A. Proof that death was a murder

On appeal, appellant suggests Leydis committed suicide because she was suffering 

from post-partum depression. However, in his statements to officers, appellant 

emphasized Leydis would not have committed suicide and claimed the death was 
6

accidental: she heard a noise downstairs while running water upstairs, went downstairs 

with her infant and the gun to investigate, and accidently shot herself.

Regardless, the jury could have reasonably concluded Leydis did not shoot herself, 

purposely or accidently. Forensic testing or officers’ testimony established the following: 

there was no gunshot residue on Leydis’s right hand (she was right-handed, according to 

appellant); a lone particle of residue on her left hand was characterized as “negative” or 

“inconclusive” because many more particles will be present when a wound is self 

inflicted and the lone particle could have resulted from secondary transfer; blood-drop 

patterns on Leydis’s body were inconsistent with a self-inflicted gunshot wound; and 

blood splatter on her right arm was consistent with her raising the arm in an attempt to 

push the gun away.

Further, witnesses characterized Leydis as a devoted mother, who seemed excited 

to show off her new baby on the weekend of her death—attitudes inconsistent with 

suicidal behavior. Moreover, the jury could have rationally rejected the proposition that 

Leydis left water running with her three-year-old daughter upstairs and ventured 

downstairs naked with her infant and a gun to confront a possible intruder, instead of 

calling the police, much less that she would have pointed the gun toward her own head.

Rather, the jury could have determined, as argued by the State, that appellant 

staged the scene to support his accidental-death claim. The fact the gun was found near 

Leydis’s feet indicated it was deliberately placed there to present an appearance the 

wound was self-inflicted. The fact that lamps on the water-damaged living-room wall 

were unplugged in an apparent attempt to avoid electrocution or damage to the lamps 

supported an inference that water was intentionally left running in order to stage an 

accident scene—whether Leydis truly was running water and appellant left it running 

after the murder; or whether he turned on the water to stage the scene.

B. Evidence that appellant committed the murder 

The jury could have reasonably concluded that appellant murdered Leydis, based 
7

on the couple’s tumultuous relationship and appellant’s treatment of Leydis, physical 

evidence, lack of evidence to support appellant’s alibi, evidence negating involvement of 

any other person, and appellant’s actions and statements after the murder.

1. The couple’s relationship

Leydis was not fluent in English and financially depended on appellant, who was 

fifteen years her senior. After appellant withheld financial support in 2007, Leydis began 

working as a dancer at gentlemen’s clubs, which admittedly upset appellant when he 

discovered this fact. In 2007, he was also disturbed to discover she was using cocaine. 

That year, each spouse filed for divorce. During divorce proceedings, Leydis moved into 

an apartment and had brief relationships with two men she met at the gentlemen’s clubs. 

Appellant and Leydis reconciled later that year, and she returned home.

Several of the State’s witnesses testified about the couple’s tumultuous 

relationship. Kathleen Bunge and Vanessa Castillo, who befriended Leydis during 2007, 

and Michael Munivar and Edward Jacobson, with whom Leydis had the romantic 

relationships, used various terms to describe Leydis’s feelings about her marriage: “not 

happy”; “cage[d]”; “trapped”; “sheltered”; and “manhandled.” These persons also 

witnessed appellant’s abusive behavior or evidence of such abuse. Bunge saw bruises 

and “finger” or “claw” marks on Leydis. At times, Leydis approached Bunge and was 

crying because she feared appellant. Leydis told Castillo that appellant “abuse[d],” “hit,”

and “tied . . . up and beat” her. Castillo saw scars on Leydis’s arms and legs. Leydis 

once left Castillo a voicemail, which consisted of “screaming like [Leydis] needed help.” 

When Castillo further inquired, Leydis said she and appellant had argued but she was 

fine. On one occasion, when Castillo drove Leydis to retrieve her children from 

appellant, he threw the daughter’s shoe out of Castillo’s car in anger. According to 

Munivar, appellant once appeared at the gentleman’s club where Leydis was working, 

was “loud,” “obnoxious,” and disruptive, and yelled at Leydis, who seemed submissive. 

Munivar also described an incident in which appellant “pound[ed]” on the door of 
8

Leydis’s apartment for at least forty-five minutes, yelling, “open this fucking door,” but 

she did not comply.

Additionally, the couple’s neighbor, Mary Ortiz, met Leydis while Leydis was 

walking in the subdivision. Leydis said her husband “kicked” her out and she had “no 

place to go.”3 Ortiz called the police who advised that Leydis, as an owner, could legally 

enter the home, so Leydis broke a window to gain access. After the officer left, appellant 

arrived home, retrieved a gun, and entered the home. Mrs. Ortiz then heard screaming 

from the home and called the police. Mrs. Ortiz and her husband saw frequent 

altercations between appellant and Leydis, involving volatile behavior by both spouses, 

and the police were called multiple times. On one occasion when Helen Grace, an 

employee of Leydis’s divorce attorney, accompanied Leydis to the courthouse, she 

became “very nervous and kind of in a frenzy” when she saw appellant, seemed 

frightened of him, and wanted to prevent him from following her home.

Further, some of these witnesses described how appellant was threatened by their 

relationships with Leydis. At one point, appellant appeared at Bunge’s home, which 

surprised her, because she had just moved in and did not know how he could have 

discovered her address. Appellant had surveillance equipment, knew information about 

Bunge’s family and her social security number, accused Bunge of having a sexual 

relationship with Leydis, and mentioned numerous persons with whom Leydis was 

purportedly having a sexual relationship. Appellant offered Bunge $1,000-1,200 to 

refrain from seeing Leydis again, which Bunge accepted. During phone conversations, 

appellant threatened Munivar to stay away from Leydis and commented, “you don’t 

know who the fuck you’re dealing with. You’re messing with the wrong fucking person. 

I can find you.” Appellant sent Jacobson phone calls and text messages, instructing him

 

3 As appellant notes, the trial court sustained appellant’s hearsay objection regarding Leydis’s 

statements to Ortiz. However, Ortiz had already relayed the contents of the statements and appellant did 

not request an instruction to disregard; therefore, the evidence was before the jury for consideration. See

Estrada v. State, 313 S.W.3d 274, 313 (Tex. Crim. App. 2010).
9

to refrain from seeing Leydis. Mrs. Ortiz eventually terminated her friendship with 

Leydis because appellant threatened Mrs. Ortiz and her children.

Appellant acknowledged the couple’s past marital problems but denied he was 

abusive. Rather, he characterized Leydis as volatile, spoiled, and a heavy spender until

he curtailed her allowance and emphasized he worked hard to provide her with “nice” 

material possessions. Appellant also claimed the relationship was “great” after they 

reconciled and Leydis had started “acting right.” To the contrary, the State’s evidence 

indicated the relationship remained troubled and the abuse continued. Leydis told 

Jacobson she reconciled with appellant only for the sake of her children and requested

Jacobson to resume their relationship, but he declined. After Leydis and appellant 

reconciled, Castillo sometimes visited Leydis at the couple’s home. During one visit, 

Leydis, who was five or six-months pregnant (i.e., about three months before her death) 

had a cut on her eyebrow “like she had been hit.”

Moreover, appellant admitted he tried unsuccessfully to call Leydis from the 

Dallas area several times over the weekend just before her death and during his trip 

home, which the jury could have inferred reminded appellant of the previous year when 

he did not know Leydis was working in gentlemen’s clubs and she had broken away from 

him. Appellant also admitted he was irritated when he arrived home that Leydis had left 

in the driveway a nice bicycle he bought for her. Further, the gold bars in the diaper bag 

supported an inference Leydis planned to leave appellant or otherwise was hiding 

valuables from him; appellant acknowledged picking up the diaper bag, albeit 

purportedly to feed the infant after finding Leydis’s body. These factors individually 

might not establish a motive to kill Leydis; and, as the State argued, the jury would never 

know exactly what transpired in the home that morning because the evidence was 

circumstantial. However, these factors, together with all the evidence, supported an 

inference appellant was angry when he arrived home and his controlling nature and 

mindset that Leydis was unappreciative surfaced, resulting in the altercation leading to 

her death.
10

2. Physical evidence

Moreover, physical evidence supported a finding that appellant murdered Leydis. 

The jury could have determined that appellant’s Glock pistol was used in the killing, 

considering the spent shell casing found on the counter was fired from this gun. Testing 

revealed Leydis was the major contributor to DNA found on the grip of the pistol and 

appellant and/or one or more of the couple’s sons were the other (minor) contributor[s]. 

The jury could have concluded that the four-year-old and infant sons did not handle the 

gun; thus, this DNA evidence indicated no person other than appellant was involved in 

the death. Additionally, this DNA evidence, coupled with the absence of gunshot-residue 

on Leydis’s hands, indicated she touched the gun while attempting to protect herself 

and/or, after the murder, appellant tried to stage a self-inflicted wound by attempting to 

place the gun in Leydis’s hand or at least transferring her DNA to the gun.4 We 

recognize appellant’s hands tested negative for gunshot residue, but a forensics witness 

testified residue is easy to remove.

3. Appellant’s Alibi

Appellant has continually claimed Leydis died while he was in the Dallas area or 

traveling to Houston. Appellant claimed that he left Marcus’s home after 11:00 p.m. on 

Sunday night, stopped at a Sonic in McKinney, stopped at a gas station, stopped at the 

first rest station south of Dallas where he slept from 1:00 a.m. to 3:00 a.m., and then 

continued to Houston, arriving home shortly after 5:00 a.m., in order to attend a 6:00 a.m. 

business appointment. 

 

4 The State cites evidence demonstrating Leydis was a contributor to DNA obtained from 

scrapings under her fingernails and asserts appellant was the other contributor, thereby indicating the 

couple struggled. However, the DNA expert could not exclude one or more of the couple’s sons as the 

other contributor. The medical examiner agreed the scrapings could test positive for the children’s DNA 

by virtue of Leydis caring for them. Nonetheless, as we have explained, the blood spatter evidence raised 

an inference there was a struggle, to the extent Leydis attempted to protect herself by pushing the gun 

away; and the DNA on the gun grip was probative to the extent it either further confirmed a struggle or 

indicated that appellant staged a self-inflicted wound.
11

Appellant asserted the following transpired when he arrived home: after driving 

into the garage, he noticed water damage on the ceiling; he left his son in the car while he 

entered the house from the garage; he saw Leydis’s body on the kitchen floor with their 

infant lying next to her; he pushed on Leydis’s chest to determine if she were alive; he 

made a bottle for the infant; he called for his three-year-old-daughter who appeared at the 

top of the stairs and told her to return to bed; he took his four-year-old son upstairs; he 

turned off running water in the master bathroom sink and shower; he checked Leydis’s 

cell phone for battery life; and, at some point, he called 9-1-1—within fifteen minutes 

after arriving home. 

Appellant further emphasized that, when he arrived home, Leydis’s body was in 

full rigor mortis, which, according to appellant, takes twelve hours to set in and he heard 

one EMT remark Leydis had been dead at least twelve hours. In his appellate brief, 

appellant asserts that the EMT testified he detected full rigor mortis and the medical 

examiner opined Leydis died four to six hours before her body was found. Therefore, 

appellant contends the State’s own evidence proved appellant’s alibi—she died before

1:00 a.m., and he could not have been in Houston at that time.

However, at trial, the EMT denied making any statement regarding time of death 

and testified he lacked expertise to make such a determination. Further, the EMT 

testified he detected some rigor mortis in one arm when he checked for a pulse but did 

not determine full body rigor mortis. Additionally, the medical examiner did not testify 

Leydis died four to six hours before she was found. Rather, when explaining that onset 

of rigor mortis is a variable process relative to determining time of death, the medical 

examiner testified she has seen instances of rigor mortis four to six hours after a death. 

The medical examiner further explained that, absent an eyewitness, it is difficult to 

determine time of death with complete accuracy. However, examining glucose levels 

may be useful because it is typically metabolized out of the body within twenty-four 

hours after death, subject to certain variables. The level of glucose can be determined 

only by examining vitreous fluid in the eyes. During the autopsy (28 hours after the body 
12

was found), the medical examiner found a very low level of glucose. Based on this 

traceable level, the medical examiner opined Leydis died “fairly close” to—no more than 

“a few hours” before—the time her body was found. Significantly, Mrs. Ortiz testified

she heard a “bang” at approximately 4:00 a.m. on Monday morning.

Evidence verified that appellant indeed traveled south from McKinney to Houston 

on Sunday night and into Monday morning: in appellant’s car, officers found a receipt for 

a Sonic in McKinney dated 11:19 p.m. on Sunday night and appellant’s cell phone 

records reflected he made calls at 12:40 a.m. and 12:41 a.m. near Ennis—south of Dallas. 

However, there was no evidence substantiating appellant’s claim that he stopped at the 

first rest station south of Dallas from 1:00 a.m. to 3:00 a.m. Sergeant Palacios visited the 

station, which was located in Corsicana—south of Ennis, but it lacked recording 

equipment to verify appellant’s presence. Further, appellant made no other calls that 

morning, which might document his whereabouts, until he later phoned 9-1-1. Sergeant 

Palacios calculated the distance from the rest station to appellant’s home as 180 miles and 

at least 160 miles was via interstate. Because no evidence substantiated appellant 

stopped at the rest station at 1:00 a.m., the jury could have concluded that, driving at least 

160 miles at a typical interstate speed and another twenty miles at typical city speeds, 

appellant arrived home within the window of time Leydis died (according to the medical 

examiner) and certainly by 4:00 a.m. (when Mrs. Ortiz heard the “bang”).

4. Theories that a third person killed Leydis

Despite his initial statements claiming the death was accidental, appellant 

subsequently provided the following claims to investigating officers and/or the grand 

jury: Leydis was killed by Michael Munivar, Ed Jacobson, or “J.D. Tran,” the son of 

appellant’s neighbor, because Leydis rejected his romantic overtures; Leydis feared both 

Munivar and Jacobon; appellant’s daughter told him “Ed” killed Leydis; and later the 

daughter indicated that she saw Leydis die while fighting over a gun with a woman, 

whom appellant claimed was Vanessa Castillo, and the woman then undressed the body.
13

The jury could have reasonably rejected these theories. At trial, Munivar, 

Jacobson, and the neighbor’s son, who was actually named “Ed Harris,” all denied killing 

Leydis, Harris denied making any romantic overtures to Leydis, and the jury was free to 

believe their testimony. EMTs who assumed care of the children at the scene testified the 

toddlers did not speak about Leydis’s death or appear traumatized, thereby negating 

appellant’s claim that his daughter saw “Ed” or Castillo kill Leydis. The blood pool 

under Leydis’s body was undisturbed, negating appellant’s claim that his daughter saw 

Castillo undress the body after allegedly killing Leydis. There was no indication of any 

conflict between Leydis and any of these alleged suspects at the time of her death. 

Castillo testified Leydis had a good relationship with Munivar and Jacobson and did not 

fear either man. There was no evidence of forced entry—when officers arrived, the front 

and back doors of the home were locked and deadbolted, and the doors from the garage 

to the home and the garage to the outside, through which appellant and officers had 

passed, were undamaged. Even appellant asserted the door from the garage to the home 

was locked when he arrived home. Mrs. Ortiz looked out her window after hearing the 

“bang” but noticed nothing unusual on the cul-de-sac or any unfamiliar vehicles. Finally, 

it is a rational inference that an intruder would not have left the gun at the scene.

5. Appellant’s actions and statements after Leydis’s death

Moreover, numerous actions and statements of appellant were inconsistent with a 

husband who was shocked and bereaved over his wife’s death or otherwise demonstrated 

consciousness of guilt: appellant showed, for the most part, lack of emotion over the

death, behaved in an aggressive, threatening, or abusive manner towards persons 

investigating the death, attempted to deflect attention from himself, and made incredible 

claims regarding the death and surrounding circumstances.

Specifically, when the first responding officer, Deputy Katrib, encountered 

appellant standing in the garage holding the infant, appellant seemed “very calm,” just 

motioned toward the house, and stated, “she[’s] inside.” After Deputy Katrib visually

inspected inside the house and returned outside, appellant insisted that Deputy Katrib 
14

cover Leydis’s body with a blanket. When Deputy Katrib calmly explained such action 

would contaminate the scene, appellant became belligerent and called Deputy Katrib a 

“fucking asshole,” “idiot cop,” and “ignorant.” When Deputy Katrib expressed concern 

about the infant, who was underdressed for the cold weather, appellant responded with 

additional cursing. When Deputy Katrib approached appellant to bag his hands and 

preserve any gunshot residue, appellant was speaking via phone to his brother Marcus (an 

attorney). Appellant again cursed at Deputy Katrib and told Marcus, “I’ve got an asshole 

cop standing in front of me.” When Deputy Katrib placed appellant in the patrol car, 

appellant said, “You better watch out because I will find you. If you touch me, I will sue 

the shit out of you.”

When Sergeant Palacios approached appellant at the scene, he was “very 

aggressive.” Similarly, during the interview later at the homicide office, appellant 

eventually became “very agitated and very aggressive.” Only a day after the death, 

appellant called Sergeant Palacios, was “very hostile,” and demanded the homicide office 

immediately close the case. Over the next week, appellant called the sheriff’s office 

twenty-eight times, insisting the case be closed or providing names of various suspects, 

but none of this information proved helpful. Appellant remained uncooperative with 

Sergeant Palacios during the investigation. Appellant continually threatened to, and did 

indeed eventually, sue the sheriff’s department. 

When appellant accompanied Sergeant Palacios to the homicide office after 

Leydis’s body was found, he immediately said, “I don’t want [the coroner] taking out her 

eyes.” This statement confused Sergeant Palacios at the time but supports an inference 

appellant had researched that glucose levels obtainable only from eye fluid can be 

utilized to determine time of death. Appellant admittedly researched information 

regarding rigor mortis—the phenomenon on which he heavily relied to support his alibi 

claim. 
15

Appellant not only advanced various implausible theories, such as accidental death 

or murder by one of the persons mentioned above, but he also changed his theories over 

time and even involved his three-year-old daughter as a witness in some of the claims. 

Appellant failed to claim Leydis’s body until thirty days after the autopsy, which 

the medical examiner considered unusual, considering the couple was married and had 

children together. After claiming the body, appellant did not hold a funeral. 

At one point, appellant requested a meeting with medical-examiner personnel 

because he was dissatisfied with the progress of the investigation. The personnel 

requested that Sergeant Palacios or other officers attend the meeting because the 

personnel were intimidated by, and feared, appellant.

During grand-jury proceedings, appellant insisted the sheriff’s department was

retaliating against him for lodging complaints against Sergeant Palacios and suing the 

department. Appellant also made aggressive and insulting remarks to the prosecutor and 

accused her of misleading the grand jury.

Appellant’s claimed actions after allegedly returning home and discovering 

Leydis’s body were inconsistent with having found one’s spouse dead of a gunshot 

wound; i.e., that appellant would have performed any actions before immediately calling 

9-1-1, taken his four-year-old son into the home, where danger might exist, or left both 

toddlers in the home while waiting outside for the police.

Finally, with respect to the culpable mental state, the fact that appellant shot 

Leydis in the head at close range supported the finding he “intentionally or knowingly” 

caused her death. See Womble v. State, 618 S.W.2d 59, 64–65 (Tex. Crim. App. 1981);

Draper v. State, 335 S.W.3d 412, 415 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).

In summary, the evidence is legally sufficient to support appellant’s conviction for 

murder. We overrule his first issue and the pertinent portion of his sixth issue.

III. GRAND-JURY PROCEEDINGS

In his second and sixth issues, appellant contends the trial court erred by denying 
16

appellant’s motion to dismiss the indictment because it was based on improper grand-jury 

proceedings. He suggests the grand jury “failed to act independently of the prosecutor” 

because it did not conduct an adequate investigation and request exculpatory evidence

and the prosecutor misled the grand jury by failing to present exculpatory evidence.

In his original brief, appellant cites no record references to support this issue. See

Tex. R. App. P. 38(i) (providing appellant’s brief must contain clear and concise 

argument for contentions made, with appropriate citations to authorities and the record). 

Indeed, we have no record of the entire grand-jury proceedings, from which to evaluate 

appellant’s complaints. The only portion of the proceedings in the record is appellant’s 

testimony because it was admitted at trial. We have no duty to pore through the 247-page 

transcript of appellant’s testimony to verify his complaints. See Alvarado v. State, 912 

S.W.2d 199, 210 (Tex. Crim. App. 1995), overruled on other grounds by Warner v. State, 

245 S.W.3d 458 (Tex. Crim. App. 2008). In his reply brief, appellant cites two pages of 

this testimony. However, in the referenced portion, grand jurors actually implored 

appellant to provide proof of his stop at the rest station, emphasizing such evidence

would be significant toward establishing his alibi. The grand jurors also indicated they

planned to discuss obtaining additional evidence. Accordingly, this isolated reference 

does not support appellant’s contention the grand jury failed to obtain pertinent evidence 

or the prosecutor misled the grand jury.

Further, appellant essentially challenges sufficiency of the evidence to support the

indictment by suggesting the grand jury lacked adequate information. A defendant may 

not challenge sufficiency of the evidence to support an indictment by grand jury. Brooks 

v. State, 642 S.W.2d 791, 795 (Tex. Crim. App. 1982); State v. Hart, 342 S.W.3d 659, 

666–67 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). An indictment returned by a 

legally constituted and unbiased grand jury, if valid on its face, mandates trial of the 

charge on the merits. Brooks, 642 S.W.2d at 795; Hart, 342 S.W.3d at 667. 

Accordingly, we overrule appellant’s second issue and the pertinent portion of his sixth 

issue.
17

IV. CHOICE OF COUNSEL

In his third issue, appellant contends the trial court violated appellant’s 

constitutional right to assistance of counsel by denying appellant’s choice of counsel—

his brother Marcus. The State filed a pre-trial motion to disqualify Marcus on the 

grounds he was a material witness and his representation would prejudice the State. 

After hearing arguments, the trial court orally remarked that it granted the State’s motion

because, among several other reasons which the court did not specifically articulate,

Marcus was a material alibi witness and would be placed in a “very untenable position.” 

Marcus had emphasized he was representing appellant pro bono because he could not 

afford other counsel. The trial court ensured that, if appellant filed a proper pauper’s 

oath, it would immediately appoint an attorney experienced in defending cases of this 

level. The court did appoint other counsel.

A. Applicable Law and Standard of Review

The Sixth Amendment right to assistance of counsel contemplates the right to 

counsel of a defendant’s own choice, but this latter right is not absolute. Gonzalez v. 

State, 117 S.W.3d 831, 836–37 (Tex. Crim. App. 2003); see Brink v. State, 78 S.W.3d 

478, 483 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d); see also U.S. Const. amend. 

VI. The strong presumption in favor of the right to counsel of choice may be overridden 

by other important considerations relating to integrity of the judicial process and fair and 

orderly administration of justice. Gonzalez, 117 S.W.3d at 837; see Brink, 78 S.W.3d at 

483. However, when a trial court unreasonably or arbitrarily interferes with a

defendant’s right to counsel of choice, its actions rise to the level of a constitutional 

violation. Gonzalez, 117 S.W.3d at 837. Therefore, courts must exercise caution in 

disqualifying a defense attorney, especially if less serious means would adequately 

protect the State’s interests. Id. In moving to disqualify a defendant’s counsel of choice, 

the State bears a heavy burden of establishing that disqualification is justified. Id.

In determining whether counsel should be disqualified because he is a potential 

witness, Texas courts utilize rule 3.08 of the Texas Disciplinary Rules of Professional 
18

Conduct as a guideline. Id.; see Tex. Disciplinary Rules Prof’l Conduct R. 3.08, 

reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (West 2005) (stating that, 

subject to certain exceptions, “[a] lawyer shall not accept or continue employment as an 

advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the 

lawyer knows or believes that the lawyer is or may be a witness necessary to establish an 

essential fact on behalf of the lawyer’s client . . .”). This rule does not prescribe the 

disqualification standard but provides considerations relevant to the determination. 

Gonzalez, 117 S.W.3d at 837–38. Counsel may be disqualified under the disciplinary 

rules when a party can demonstrate actual prejudice resulting from opposing counsel’s 

service in the dual role of advocate-witness. Id. at 837.

We review a trial court’s decision on a request to disqualify defense counsel under 

an abuse-of-discretion standard. See id. at 839. We defer to implied findings that are 

supported by the record. Id. We uphold the ruling if it is correct on any theory of law, as 

long as the ruling lies within the zone of reasonable disagreement. Id.

B. Analysis

To support its motion for disqualification, the State presented two documents 

obtained by appellant with respect to other proceedings or pre-trial matters relative to the 

murder charge. First, the State presented a letter from a pathologist, whom appellant had 

requested to provide an opinion regarding the time of Leydis’s death. According to this 

pathologist, the death occurred between Sunday morning and approximately 2:30 a.m. 

Monday morning. The State also presented Marcus’s affidavit, in which he averred 

appellant was in the Dallas area from Friday evening before the murder until 

approximately 11:00-11:30 p.m. on Sunday night, effectively asserting appellant was in 

the Dallas area or traveling to Houston when Leydis was killed. Consequently, the trial 

court did not abuse its discretion by determining Marcus was a material alibi witness. 

Indeed, Marcus did testify at trial regarding appellant’s presence in the Dallas area that 

weekend and the travel time and route from Dallas to Houston.
19

Consequently, if Marcus had served a dual role as counsel and witness, the State 

would have been prejudiced by the undue weight jurors might have assigned to Marcus’s

testimony and likely confusion during argument regarding whether Marcus was 

summarizing evidence or further testifying from personal knowledge. See id. at 840.

Marcus argued at the disqualification hearing, and appellant reiterates on appeal, that it 

was speculation Marcus would even testify and his testimony was not necessarily 

required because of other evidence placing appellant in the Dallas area at pertinent times. 

However, when a trial court considers a pre-trial disqualification motion based on a 

conflict of interest, some speculation is necessarily involved regarding whether counsel 

will actually serve a dual role and whether the dual role will result in actual prejudice to 

the State. Id. at 844. Therefore, the presumption in favor of counsel of choice may be 

overcome by a showing of “serious potential for conflict,” although the trial court’s 

speculation cannot be “unsupported or dubious.” See id. In the present case, the State 

raised more than “unsupported or dubious” speculation and demonstrated “serious 

potential for conflict” because it was appellant who placed Marcus in the potential dual 

role as counsel and appellant’s alibi witness.

Appellant suggests the trial court should have used less serious means than 

disqualification to protect the State’s interests. See id. at 837. It is unclear what 

alternative appellant proposes should have been utilized although he suggests the trial 

court could have ensured that Marcus not testify. However, the State demonstrated it 

would suffer actual prejudice even if Marcus did not testify. It was clear from the 

evidence at trial that appellant claimed he was in the Dallas area with Marcus or traveling 

home at the time of Leydis’s death. Thus, even if Marcus did not testify, his personal 

knowledge might imply to the jury that his questions to witnesses regarding the alibi 

represented the truth, but the State could not clarify Marcus’s “testimony” through crossexamination or impeach his credibility. See id. at 840. Accordingly, the record supports 

an implied finding that the State would suffer actual prejudice from Marcus’s 

representation of appellant.
20

Even if the State had not met its burden, “the trial court has an independent duty to 

ensure criminal defendants receive a fair trial that does not contravene the Sixth 

Amendment’s central aim of providing effective assistance of counsel once issues are 

raised which indicate a concern.” See id. at 840. The trial court could have determined 

that Marcus’s dual role might prejudice appellant, especially if the State effectively 

impeached Marcus on the stand. See id. Moreover, Marcus’s detailed affidavit and the 

fact he was the relative with whom appellant stayed in the Dallas area indicated Marcus

was most knowledgeable about appellant’s whereabouts over the weekend. Thus, the 

trial court could have determined that if Marcus remained as counsel with the proviso he 

not testify, appellant would be deprived of an essential alibi witness. Accordingly, the 

trial court did not abuse its discretion by ensuring appellant would have full benefit of all

favorable witnesses while enjoying effective assistance of counsel. We overrule 

appellant’s third issue.

V. MOTION TO SUPPRESS

In his fourth and sixth issues, appellant suggests the trial court erred by denying 

appellant’s motion to suppress (1) his statements to Sergeant Palacios while traveling to 

the homicide office, (2) appellant’s interview at the office, and (3) his statements at his 

home approximately four months after the murder.

We must uphold the denial of a motion to suppress if it is reasonably supported by 

the record and is correct under any applicable theory of law. Hereford v. State, 339 

S.W.3d 111, 117–18 (Tex. Crim. App. 2011). We will reverse only if the ruling is 

outside the zone of reasonable disagreement. Id. at 118. When, as in the present case, a 

trial court enters findings of fact after denying a motion to suppress, we first determine 

whether the evidence, viewed in the light most favorable to the trial court’s ruling, 

supports these fact findings. Keehn v. State, 279 S.W.3d 330, 334 (Tex. Crim. App.

2009). We give almost total deference to the trial court’s finding of historical facts and 

determinations on “mixed questions of law and fact” that depend on credibility of 

witnesses. Hereford, 339 S.W.3d at 118. We review de novo pure questions of law and 
21

“mixed questions of law and fact” that do not depend on credibility determinations. Id. 

During a hearing on a motion to suppress, the trial court is the sole judge of witness 

credibility and the weight to give their testimony. Id.

A. Applicable Law and Standard of Review

Appellant generally cites Texas Code of Criminal Procedure article 38.21, which 

provides, “[a] statement of an accused may be used in evidence against him if it appears 

that the same was freely and voluntarily made without compulsion or persuasion under 

the rules hereafter prescribed.” Tex. Code Crim. Proc. Ann. art. 38.21 (West 2005). 

Appellant then seems to rely on both federal constitutional law and Texas Code of 

Criminal Procedure article 38.22 by suggesting (1) the statements were inadmissible 

because appellant was in custody but officers failed to give the Miranda/statutory 

warnings, deprived him of the right to counsel, and did not properly record the 

statements, and (2) the statements were generally involuntary.

In Miranda v. Arizona, the United States Supreme Court held that “the prosecution 

may not use statements, whether exculpatory or inculpatory, stemming from custodial 

interrogation of the defendant unless it demonstrates the use of procedural safeguards 

effective to secure the privilege against self-incrimination.” 384 U.S. 436, 444 (1966). 

These safeguards are codified in article 38.22 of the Texas Code of Criminal Procedure. 

See Tex. Code Crim. Proc. Ann. art. 38.22 (West 2005). Article 38.22, section 3(a) 

provides that no oral statement of an accused “made as a result of custodial interrogation”

shall be admissible against him in a criminal proceeding unless an electronic recording 

satisfying certain requisites is made of the statement, the accused is given the Miranda

warnings and one additional warning prescribed in article 38.22, and the accused 

knowingly, intelligently, and voluntarily waives the rights set out in the warnings. Id. art. 

38.22, §3(a); see Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007).

The Miranda and article 38.22, section 3(a) safeguards apply only to custodial 

interrogation. See Miranda, 384 U.S. at 444; Tex. Code Crim. Proc. Ann. art. 38.22, 

§3(a); Herrera, 241 S.W.3d at 526. Contrary to appellant’s suggestion, he had not been 
22

formally arrested before any statements at issue. Thus, the “custody” inquiry involved

determining whether “under the circumstances, a reasonable person would believe that 

his freedom of movement was restrained to the degree associated with a formal arrest.” 

Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996) (citing Stansbury v. 

California, 511 U.S. 318, 322, 325 (1994)); see Nguyen v. State, 292 S.W.3d 671, 677–78 

(Tex. Crim. App. 2009). The “custody” determination must be made on a case-by-case 

basis considering all objective circumstances. Stansbury, 511 U.S. at 323; Dowthitt, 931 

S.W.2d at 255. Subjective intent of law enforcement officials to arrest is irrelevant 

unless that intent is somehow communicated or otherwise manifested to the suspect.

Dowthitt, 931 S.W.2d at 254 (citing Stansbury, 511 U.S. at 324–25). Additionally, 

station-house questioning does not automatically constitute custody. Id. at 255. The 

defendant bears the initial burden of proving that a statement was the product of 

“custodial interrogation.” Herrera, 241 S.W.3d at 526. In the present case, the trial court 

made written findings supporting its conclusion that appellant was not in custody when 

he made all the statements at issue. 

Although appellant does not cite the specific provision, he apparently also invokes 

the general voluntariness statute—Texas Code of Criminal Procedure article 38.22, 

section 6. See Tex. Code Crim. Proc. Ann. art. 38.22, §6; Oursbourn v. State, 259 

S.W.3d 159, 169 (Tex. Crim. App. 2008). Section 6 applies to both an accused’s 

custodial and non-custodial statements because it provides that only “voluntary” 

statements may be admitted. Oursbourn, 259 S.W.3d at 171. If the defendant produces 

evidence of involuntariness, the State must prove by a preponderance of the evidence that 

the defendant’s statement was voluntary. State v. Terrazas, 4 S.W.3d 720, 725 (Tex. 

Crim. App. 1999). Additionally, if an accused raises a question as to voluntariness of his 

statement, the court “must make an independent finding in the absence of the jury as to 

whether the statement was made under voluntary conditions” and “enter an order stating 

its conclusion as to whether or not the statement was voluntarily made, along with the 

specific finding of facts upon which the conclusion was based . . . .” Tex. Code Crim. 
23

Proc. Ann. art. 38.22, §6. In the present case, the trial court made written findings 

supporting its conclusion that all the statements at issue were voluntary.

B. Analysis

To support his complaint that his statements were the product of custodial 

interrogation and involuntary, appellant generally asserts he was “deprived of his only 

means of communicating with his attorney, handcuffed, placed in the back of a patrol car, 

detained by officers, and finally forced to accompany Sgt. Palacios to his ‘office’ without 

shoes, currency, identification, or access to communication with any party not under 

control of the [sheriff’s department] for a combined approximately 10.5 hours” and 

Sergeant Palacios exercised “brute force.” However, the State’s evidence proffered at the 

suppression hearing contradicted some of the facts cited above by appellant. Even the 

facts cited by appellant which are supported by the record did not support a finding he 

was in custody or his statements were involuntary.

1. Statements while traveling to the homicide office

Although appellant did not seek to suppress his statements to the first responding 

officer, Deputy Katrib, appellant nevertheless suggests Deputy Katrib’s actions at the 

scene demonstrated appellant was denied his right to counsel and was in custody 

throughout the day. Appellant apparently refers to Deputy Katrib’s actions while 

appellant was speaking by telephone to Marcus. At the suppression hearing, Deputy 

Katrib testified that he requested appellant to “kindly” cooperate and terminate the 

telephone conversation as soon as possible so that officers could bag his hands, to 

preserve any gunshot residue. We conclude Deputy Katrib’s request did not constitute a 

deprivation of any right to counsel, simply because Marcus happened to be an attorney. 

Instead, Deputy Katrib testified that appellant never invoked any right to counsel during 

their interaction. 

Appellant also suggests the fact he was handcuffed and placed in the back of a 

patrol car at the scene demonstrated he was under arrest at the scene and during his 

subsequent statements that day. However, Deputy Katrib testified appellant was 
24

handcuffed solely to hold the bags in place—not because he was under arrest; another 

officer then placed appellant in the back of a patrol car—again not because he was under 

arrest, but consistent with standard procedure of separating witnesses and keeping them 

in a contained environment.

Significantly, the first statements that appellant sought to suppress were made 

while traveling to the homicide office in Sergeant Palacios’s vehicle—after the handcuffs 

were removed. Sergeant Palacios testified appellant was not under arrest during the ride. 

At the suppression hearing, appellant acknowledged he rode in the front seat and was not 

handcuffed. Nonetheless, appellant testified he refused to go to the homicide office but 

Sergeant Palacios was “adamant” it was “not an option” and his conduct indicated 

appellant was under arrest. However, the trial court was free to believe Sergeant 

Palacios’s testimony that appellant willingly accompanied him to the office. Indeed, the 

trial court rendered findings that both Deputy Katrib and Sergeant Palacios gave credible 

testimony regarding all their interactions with appellant that day and appellant did not 

give credible testimony.

Sergeant Palacios further testified, and the recording confirms, the interaction 

during the ride was conversational; appellant even assisted Sergeant Palacios with 

directions. The entire conversation was not recorded because the tape became full at 

some point. Regardless, in light of Sergeant Palacios’s testimony, the trial court was free 

to believe that the nature of the interaction during the unrecorded portion was consistent 

with the nature of the interaction during the recorded portion.

Sergeant Palacios acknowledged that appellant did not have his shoes, cell phone, 

or wallet during the ride. Appellant requested his shoes, which were in his car, but 

Sergeant Palacios did not comply in order to avoid disturbing the crime scene. However, 

Sergeant Palacios retrieved appellant’s jacket because of the cold weather. We conclude 

the fact that appellant lacked the other items did not transform his decision to accompany 

Sergeant Palacios to the homicide office into a custody situation or indicate his 

statements were involuntary. 
25

Instead, the evidence supports the trial court’s findings that appellant was not 

under arrest either before or during the ride to the homicide office, he was “free to go at 

any time,” he did not fear he was under arrest, he was not “coerced” or “hassled,” his 

encounter with Sergeant Palacios was “consensual,” and he freely and voluntarily spoke 

with Sergeant Palacios. Accordingly, based on all the circumstances, the trial court did 

not err by concluding a reasonable person would not believe “his freedom of movement 

was restrained to the degree associated with a formal arrest” during the ride and 

appellant’s statements were voluntary. See Dowthitt, 931 S.W.2d at 254; see also

Nguyen, 292 S.W.3d at 677–78.

2. Interview at the homicide office

The next statement appellant sought to suppress was his interview by Sergeants

Palacios and Clegg at the homicide office. Sergeant Palacios testified as follows 

regarding events at the office: when they arrived, appellant was given an opportunity to 

use the restroom and have a drink, which he accepted; Sergeant Palacios then placed 

appellant in as interview room, where he waited thirty to forty-five minutes while 

Sergeant Palacios briefed Sergeant Clegg on this matter and an unrelated case; during his 

time at the office, appellant was not under arrest and could have left if he had asked; at 

some point, Sergeant Palacios offered appellant the opportunity to take a polygraph test, 

which appellant accepted, and Sergeant Palacios then returned appellant to the interview 

room; before the polygraph test, appellant asked for an opportunity to speak with Marcus, 

which the officers allowed, but appellant never invoked his right to have an attorney

present during the interview; subsequently, there was a time period when appellant was 

alone in the interview room, was free to come and go, and did leave the room several 

times; the officers did not threaten, coerce, promise anything to, or “lay a hand on”

appellant, and he spoke with them voluntarily, even after he became agitated; and later, 

appellant expressed his wish to terminate the interview and was allowed to leave. 

In contrast, at the suppression hearing, appellant described the interaction as 

follows: he was essentially locked in the interview room from 9:30 a.m. to 4:00 p.m. and 
26

felt he was not free to leave; he said “a couple of times” that he did not wish to speak 

with the officers; they prevented him from using a phone although he requested an 

opportunity to speak with Marcus, including before the polygraph test; the officers 

seemed “offended” that appellant asked to speak with an attorney; at 4:00 p.m., appellant 

insisted Sergeant Palacios take him home, but the officer refused; appellant yelled out to 

a lobby where other persons were gathered that he had been there all day and was 

prohibited from using a phone or contacting an attorney; Sergeant Palacios was irritated 

by this action and threatened to arrest appellant for trespassing; another officer escorted 

appellant out of the building; and appellant was able to “escape” only by embarrassing 

Sergeant Palacios in this manner.

However, the trial court was free to believe Sergeant Palacios’s testimony. 

Moreover, the recording of the interview confirms Sergeant Palacios’s account and 

further demonstrates that, at the outset of the interview, the officers informed appellant he 

was not under arrest and they merely wished to obtain a statement. We recognize the 

entire interview was not recorded because, apparently unbeknownst to the officers, the 

equipment was deactivated at some point. Appellant testified that during the unrecorded 

portion, the officers were “menacing” as though they planned to “fight” appellant and 

said he could not leave “without going through” them. However, in light of Sergeant 

Palacios’s testimony, the trial court was again free to believe that the officers’ demeanor 

and behavior toward appellant during the unrecorded portion were consistent with their 

demeanor and behavior during the recorded portion.

Therefore, the evidence again supports the trial court’s findings that appellant was 

not under arrest during the interview at the homicide office, he was “free to go at any 

time,” he did not fear he was under arrest, he was not “coerced” or “hassled,” the 

encounter was “consensual,” and he freely and voluntarily spoke with the officers. 

Accordingly, based on all the circumstances, the trial court did not err by concluding a 

reasonable person would not believe “his freedom of movement was restrained to the 

degree associated with a formal arrest” during the interview and appellant’s statements 
27

were voluntary. See Dowthitt, 931 S.W.2d at 254; see also Nguyen, 292 S.W.3d at 677–

78.

Appellant also suggests Sergeant Palacios acted in “bad faith” by deliberately 

destroying portions of recordings made in his car and at the homicide office. However, 

appellant cites no instance where he raised this “bad faith” claim in the trial court. 

Nevertheless, there is no evidence Sergeant Palacios destroyed recordings; rather, as 

mentioned above, these encounters were not entirely recorded in the first place.

Finally, in his sixth issue, appellant presents two additional grounds for exclusion 

of his statements in the car and at the homicide office: they constituted testimony from 

appellant although he did not testify at trial; and the trial court failed to redact portions 

constituting evidence of extraneous offenses. However, appellant does not cite any 

authority prohibiting admission of an appellant’s out-of-court statement for the sole 

reason that he does not testify at trial. Further, appellant has waived his complaint 

regarding admission of extraneous offenses by failing to identify any portions of his 

statements which were allegedly inadmissible on this ground, much less cite an instance 

in which he objected on this ground; again, we have no duty to pore through both 

statements to attempt to discern his complaint. See Tex. R. App. P. 38(i); Alvarado, 912 

S.W.2d at 210.

3. Statements at appellant’s home

Appellant also sought to suppress the statements made at his home on April 1, 

2009—approximately four months after Leydis’s death. However, on appeal, appellant 

merely asserts that admission of the recording violated the Texas Code of Criminal 

Procedure because appellant’s counsel was not “consult[ed]” and appellant was not given 

Miranda warnings. Appellant fails to cite any facts or present argument showing the 

encounter was a custodial interrogation and thus Miranda warnings were required. 

Nevertheless, at the suppression hearing, Sergeant Clopton testified, and the recording 

confirms, that appellant invited the officers to his home, appellant was not under arrest or 

physically restrained, officers did not threaten, coerce, or promise anything to appellant,
28

the interaction was cordial, and appellant’s children were even present. The trial court 

rendered a finding that Sergeant Clopton was credible. Therefore, the evidence again 

supports the trial court’s findings that appellant was not under arrest during the encounter 

at his home and it was consensual.5 Accordingly, based on all the circumstances, the trial 

court did not err by concluding a reasonable person would not believe “his freedom of 

movement was restrained to the degree associated with a formal arrest” during the 

encounter at appellant’s home and his statements were voluntary. See Dowthitt, 931 

S.W.2d at 254; see also Nguyen, 292 S.W.3d at 677–78. Finally, appellant also fails to 

cite any authority demonstrating officers were required to consult appellant’s attorney, 

and Sergeant Clopton testified appellant never invoked any right to counsel during the 

encounter.

We overrule appellant’s fourth issue and the pertinent portion of his sixth issue.

VI. ALLEGED PROSECUTORIAL MISCONDUCT

In his fifth issue, appellant contends the prosecutor committed various acts of 

misconduct.

First, appellant contends that, during closing argument, the prosecutor misstated 

testimony from the State’s DNA witness. Although appellant fails to cite any record 

references, we noted only one instance during closing argument in which appellant 

objected to the prosecutor’s citation of DNA evidence. The prosecutor remarked that 

DNA under Leydis’s fingernails “wasn’t a combination of Leydis and [appellant] and 

their kids and some unknown person. Uh-uh. It was combination of Leydis and 

[appellant].” Appellant objected that the prosecutor misstated evidence because the 

State’s DNA expert could not exclude the couple’s sons as contributors. However, 

appellant failed to preserve error because he did not obtain a ruling on the objection or 

 

5

In its findings, the trial court referred to the first interview at appellant’s home as occurring on 

May 1, 2009 when it actually occurred on April 1, 2009. Nonetheless, we construe the court’s finding as 

applicable to the encounter on April 1, 2009 because it is undisputed the first interview at appellant’s 

home occurred that day, and the “re-interview[]” on May 28, 2009 referenced in the court findings was 

Sergeant Clopton’s return visit to collect the casing appellant had found. 
29

object to the lack of a ruling. See Tex. R. App. P. 33.1(a); McBride v. State, 359 S.W.3d 

683, 689 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). The trial court simply 

responded, “The jury will recall the evidence.” See Grayson v. State, 192 S.W.3d 790, 

793 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (stating that trial court’s response to 

the appellant’s jury-argument objection—“Let’s proceed.”—was not a ruling). Appellant 

asserts the trial court sustained the objection but failed to give an instruction to disregard. 

To the extent the court’s response may be construed as sustaining the objection, appellant 

did not preserve his further complaint because he failed to request an instruction to 

disregard and thus obtained all relief requested. See Cruz v. State, 225 S.W.3d 546, 548 

(Tex. Crim. App. 2007); Cockrell v. State, 933 S.W.2d 73, 88–89 (Tex. Crim. App.

1996).

Appellant also argues the prosecutor misstated DNA evidence when responding to 

appellant’s motion for instructed verdict. Appellant again failed to preserve error via an 

objection. See Tex. R. App. P. 33.1(a). Nonetheless, any misstatement was harmless 

because it was made outside the jury’s presence and could not have influenced its verdict. 

See id. 44.2(b).

Next, appellant posits that the prosecutor prejudiced appellant during voir dire by 

incorrectly referring to the charge as a “domestic violence case.” Appellant advances a 

similar complaint in his sixth issue by contending the trial court permitted such 

purportedly false statements. Appellant fails to cite record references, much less any 

instances in which he preserved error by objecting to the statements. See id. 33.1(a);

Beltran v. State, 99 S.W.3d 807, 811–12 (Tex. App.—Houston [14th Dist.] 2003, pet. 

ref’d). Regardless, the State presented evidence appellant committed domestic violence 

and Leydis’s murder resulted from such conduct. Therefore, the prosecutor did not 

commit misconduct by inquiring, for purposes of obtaining a fair and impartial jury, 

whether panel members might be influenced by the domestic-violence aspect.

Finally, appellant complains the prosecutor mentioned a federal suit filed by 

appellant against Harris County and improperly indicated it was dismissed for lack of 
30

merit. Although, once again, appellant cites no record references, we noted while 

reviewing the State’s cross-examination of Marcus, that the State elicited testimony 

appellant filed a federal suit against several officers relative to the murder investigation 

but Marcus was unaware the court had dismissed the suit. During closing argument, the 

prosecutor asserted appellant filed a federal suit in order to curtail the murder 

investigation and the court dismissed the suit. However, appellant failed to preserve error 

on his contention because he did not object to the State’s questions or closing argument. 

See Tex. R. App. P. 33.1(a).

We overrule appellant’s fifth issue and pertinent portions of his sixth issue.

VII. ALLEGED “JUDICIAL ERRORS”

Finally, we address the remaining contentions in appellant’s sixth issue that do not 

overlap with previous issues. 

Appellant argues the trial court erred by admitting the recording and transcript of 

appellant’s grand-jury testimony and allowing the recording to be played for the jury. 

However, appellant failed to preserve error because he expressly represented, “We have 

no objection” when the State proffered the tape and transcript during trial. See Estrada v. 

State, 313 S.W.3d 274, 302 (Tex. Crim. App. 2010).

Next, appellant contends the trial court allowed “incompetent” evidence to be read 

to the jurors absent a disagreement concerning the testimony. However, the sole instance 

during deliberations in which the trial court instructed the court reporter to read certain 

testimony occurred in response to the jury’s note that there was a disagreement 

concerning the testimony.

Finally, appellant’s remaining complaints are bare contentions that the trial court 

failed to (1) limit voir dire to “general” rather than “case specific” questions, (2) “control 

and excuse” panel members who were “disruptive and prejudicial,” (3) rule on all 

motions, and (4) compel the State “to produce all evidence.” These contentions are far 

too general to present any complaint for our review, considering voir dire consisted of 
31

ninety pages of reporter’s record, appellant filed a myriad of pre-trial motions, and the 

State possessed voluminous evidence. Appellant has waived these arguments by failing

to identify the specific instances of which he complains or provide supporting authority. 

See Tex. R. App. P. 38(i); Alvarado, 912 S.W.2d at 210. 

We overrule all remaining contentions in appellant’s sixth issue.

VIII. CONCLUSION

Having overruled all of appellant’s issues, we affirm the trial court’s judgment.

/s/ Charles W. Seymore

Justice

Panel consists of Chief Justice Hedges and Justices Seymore and Brown.

Do Not Publish — Tex. R. App. P. 47.2(b).