## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S

N O . A P
- 7 7 , 0 2 5

O B E L C R U Z
- G A R C I A , A p p e l l a n t

v . T H E S T A T E O F T E X A S
O N D I R E C T A P P E A L F R O M C A U S E N O . 1 3 8 4 7 9 4 I N T H E 3 3 7 t h D I S T R I C T C O U R T H A R R I S C O U N T Y

K E L L E R , P . J . , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t i n w h i c h M E Y E R S , J O H N S O N , K E A S L E R , A L C A L A , R IC H A R D S O N a n d Y E A R Y , J J . , j o i n e d . H E R V E Y and N E W E L L , JJ., concurre d.

I n J u n e 2013, appellant was convicted of capital murder and sentenc ed to death. Direc t 1

T E X
. P E N A L C O D E § 19.03(a) (2); T E X
. C O D E C R I M
. P R O C
. art. 37.071. Unle ss otherwise 1 indicated, a ll future re fer ence s to articles re fer to the Code of Criminal Procedur e.CRUZ- GARCI A–2

appea l to this Court is automatic. Appellant raises twelve points of err or. Findi n g no reve rsible 2

err or, we aff

irm the conviction and se ntence

. I. Background On September 30, 1992, two masked int ruders broke into an apar tment share d by Arturo Rodrigue z, Diana Gar cia, and Diana Gar cia’ s six -y ear -old son, Ang elo Gar cia, J r. Diana was

awakened by a loud sound coming from her living room. Her husband, Arturo, walked toward the sound but w as quickly met by a larg e male wea ring a mask and pointing a g un at him. Both Diana and Arturo testified that this man spoke to them, but neither could understand him beca use he spoke in an unknown acc ent. Additionally , they both descr ibed the man as “blac k” or dark- complexioned. When the i nitial responding office r made his repor t about this case , he descr ibed Diana’ s and Arturo’ s assailants as “ black” but testified at trial that he me ant “blac k Hispanics.” The masked man instructed Diana to turn fac e d o wn o n h er bed and then beg an beating Arturo. After Diana complied with the instruction to lie fac e down, a second man enter ed the room holding a g un, and one o f t h e i n t ru d er s tied up Diana. Arturo was tied up with the cord from his alar m clock, a rag was put in his mouth, and he was beate n on his head with a g un while he knelt by his bed. At this point, Angelo, who ha d been sle eping on a pallet by the bed, be g an cr

y ing out f or Diana. The second intruder then started touching Diana on her buttocks, turned her over so that she

was ly ing on her back, and put a blanket over her fac e. The second intruder remove d Diana’ s panties and sex ually assaulted her. Diana testified that the assailant ejac ulated during the s exual assault. Arturo testified that he saw an unknown male sexually assaulting his wife befor e the other assailant
Art. 37.071, § 2(h)

. 2CRUZ- GARCI A–3

place d a pillowcase over his hea d. All the while, Ang elo was pr esent in the room a nd cry ing. Once the s ex u al as s au lt ended, the two men ransa cked the bedroom and then left. Arturo testified that his passport and a brac elet we re missing afte r the incide nt. A fter the men left, Diana
g ot up and un t i ed Arturo’ s hands. Diana and Arturo then noticed that Ang elo was missing and walked into their living room to look for him. Upon enter ing their living room, they saw the f irst, tall, masked intruder returning to the apar tment. When Diana and Arturo saw this man, they turned and wa lked bac k into their bedroom, and the masked man turne d and lef t the apar tment. After both intruders left, Dia n a a n d A r tur o left their apar

tment and beg an looking for Ang elo. They called out his name at their own apar tment compl ex and acr oss the street but rec eived no response . At some point, Diana’s neig hbor called 911. Houston Police Depa rtment (“H PD”)

re s p o n d ed to a 911 call claiming that a child had been kidnapped from Diana and Arturo’ s apar tment. Upon arr iving, office rs found Arturo injured and Diana distraug ht. An inspection of the
apar tment reve aled the bedroom to be in disa rra y , with draw ers pulled out of dresse rs and items of clothing strewn about. Offi ce rs found a cig ar in the l iving room, althoug h at t rial bot h Diana and Arturo testified tha t neither one of them smoked. Police office rs interviewe d Diana and Arturo on-sce ne and asked t h em wh et her they sold drug s. Both wer e untruthful. Diana was transporte d to a hospital for a sexual assault examination. A Sex ual Assault Nurse Ex aminer (SA NE ), Gl oria Kolog inczok, testified that she perf ormed a

s ex u al assault examination on Diana Gar cia during the ear ly morning hours of October 1 and produce d a sexual assault kit containing evidenc e fr om Diana. On October 1, 1992, police interviewe d Diana at the police station, and she came clea n about her and Ar turo’s drug dealing

. She also told police that appellant was her drug supplier untilCRUZ- GARCI A–4

rec ently , when she and Arturo had told a ppellant that they no longe r wanted to se ll drug s for him. Offic er U.P. Her

nandez interviewe d both Diana and Arturo. Arturo testified that, when he spoke to police, he ne ver lied a

bout his drug de aling , but Office r He rnande z testi fied to the c ontrary

. During their investig ation, office rs also met with or intervie wed L eonar do Ger man (fr iend of Diana and Arturo) , Roge lio Rendon, Carmelo Martinez Santana (also known as “Rudy ;” friend 3 of appe llant), and Ang elita Rodrig uez (appe llant’s wife)

. At trial, Diana and Arturo both testified about their rela tionship with appellant. Arturo and Diana sold coca ine for appellant for sever al y ear s when all thr ee l i v ed in Houston. They also associate d socially with appellant and his wife, Ang elita, on sever al occa sions. Arturo testified that he considere d his rela tionship with appellant to be a friendly one, and Diana testified that Ang elita

was her friend. A few months prior to A ng elo’s kidnapping , Arturo a nd Diana told appe llant they no longe r wa

nted to sell drug s for him, and Ar turo testified that this upset appellant. Ang elita also testified ab o u t her rela tionship with appellant. Her cousin, Rudy , was g ood friends with appellant, and the three of them moved to Houston from Puerto Rico around the same time in 1989. Ang elita and appellant share d an apar tment in Humble, a suburb of Houston. Ang elita testified that appellant smoked both cig are ttes and cig ars and that he owned a g old Oldsmobile and

a blue Thunderbir d. Ang elita met Diana and Arturo throug h appellant beca use of appellant’ s drug dealing

. An gel i t a lear

ned of Ang elo’s disappea ranc e on the news on the afte rnoon of October 1. Upon hear ing of his disappea ranc e, she immediately approa c h e d a p p e ll a n t in th e ir apar

tment and told

Severa l witnesses are ref

err ed to throug hout the rec ord by their nicknames. We will do the 3 same.CRUZ- GARCI A–5

him that Ang elo had g one missing. Ang elita told appellant she wanted to g o see Diana and Arturo, but he ref used to g o with her. Ang elit a t es t i fi ed that appellant seeme d calm and “norma l” upon hear ing the news that Ang elo had disappea red, despite the fac t that Diana and Arturo we re t h eir friends and their child had g one missing. Appellant then told Ang elita that he was leaving Houston for Puer to Rico imm ediately

and beg an to pac k his bag s. Ang elita testified that, due to his sudden depar ture from Houston, appellant missed a schedule d court da te. He ha d never missed one prior to that. After appellant left for Puerto Rico, Ang elita could not aff

ord to continue pay ing rent in their Humble apar tment, so she moved to a hotel in Pasadena

. Some time later, Ang elita went to the Dominican Republic, wher e appellant was then living, to ask him for a divorce

. Appellant ref used. Ang elita then asked him about An gelo, and appellant c onfesse d to her that he had killed him. Rudy , Ang elita’s cousin, testified that he met appellant when they wer e both living in Puerto Rico, prior to their initial move to Houston. Both are orig inally from the Dominican Republic. Rudy and appellant moved to Houston to sell drug s in the late 1980s, and Ang elita followed them shortly there afte r. Rudy

and appe llant worked tog ether selling drug s until Rudy ’s drug a ddiction became
too sever e for him to continue dealing

. At that point, appell an t took over the opera tion. Rudy testified that appellant was a violent, ang ry , and contr olling per son. Once when appellant thought Rudy was stea ling dr

ug customers fr om him, he assaulted Rudy and thre atene d to kill hi m. Rudy testified that appellant owned three car s: a blue Chevrolet, a blue Thunderbir d, and a g old Oldsmobile. Appellant routinely lent the Oldsmobile to Bie nviendo Melo (also known as “Charlie” ). On September 30, appellant drove his blue Chevrolet to Diana and Arturo’ s apar tment
to collect his drug s and money . Rudy and Roge lio Aviles (also known as “Rog er” ) went with him.CRUZ- GARCI A–6

Rudy described Roge r as tall, strong ly built, and dark- complexioned. Appellant parke d his car behind Diana and Arturo’ s apar tment complex and instructed Rudy to sit in the passeng er seat while he and Roge r went inside. Appellant took a .45 caliber pistol with him, Rog er car ried a knife, and both appellant and Rog er w ore bla ck stocking masks. Approxim ately thirty minutes afte r appe ll a n t a nd Roge r left the car , appellant came back with

a child in his arms. Rudy rec og nized the child as Ang elo Gar cia, J r. When Rudy ask ed wh y appellant wa s car

ry ing A ng elo, appe llant responded, “ He sa w me.” Rudy tried to persua de appellant to retrie ve Diana to car e for Ang elo. Appellant left the car for the apar

tment ag ain, leaving Ang elo with Rudy , but returne d with Roge r instead of Diana. When appellant returne d, he told Rudy to sit in the back seat with Ang elo. Appellant maintained a g rip on his g un while he drove Rudy , Ang elo, and Roge r to Ba y town. Appellant stopped the car not far into
Ba y town, and all thre e men exit ed the car . Rudy testified that by this time he was ve ry scar ed and had g rown c onvinced a

ppellant was g oing to kill Ang elo. Appellant told Roge r, “You alre ady know what y ou have to do.” Rudy testified that he walked awa

y from the two other men and then beca me ill, defe cating near

by

. As Rudy was walking

awa y , he heard Ange lo scre am. R u d y re t u rned to the car where he saw Ange lo with blood on his chest. Appellant order ed Rudy and Roge r to put Ang elo’s body in the backse at, and they complied. Appellant drove them to another location in Ba y town near a water

way and order ed Rudy and Roge r to put Ang elo’s body in the water

. The two men once ag ain complied. Rudy and Roge r piled rocks on top of A ng elo’s body to make it sink. Rudy testified that appellant ha d his gun w ith him the entire time. The three men then left Ba y town and drove to Pasadena

. On their way there , sever al of their tire s blew out.CRUZ- GARCI A–7

They manag ed to make it to a hotel wher e appellant made Rudy and Roge r swea r they would

never tell what had happene d to Ang elo. At the hotel, the men attempted to make other transporta t i o n ar range ments by calling Charlie. Appellant, Rudy , and Roge r eventua lly went to Charlie’s apar

tment in a taxi , wher e they retrie ved appellant’ s car . There , Rudy saw Charlie and his
g irlfriend, L inda.
L inda also testified abou t ap p el l ant’s phone call to Charlie. I n the early morning hours of October 1, 1992, L inda and Charlie wer e stay ing toge ther at L inda’s mother’s h o u s e wh en they

rec eived severa l phone calls from appellant. L inda and Charli e were bot h familiar with appellant beca use Charlie sold drug s for a ppellant. L inda desc ribed a ppellant as c ontrolling. When Charlie finally answe red the phone around 2:00 a.m., appellant asked Charlie to pick him up. Charlie declined. Approxim ately thirty minutes later , appellant and Rudy appea red at Charlie’s house to borrow a car. L inda t estified that, while Rudy appea red ne rvous, appellant did not. After O ctober

1, 1992, L inda neve r saw a ppellant ag ain. Prior to that date, a ppellant visited
L inda and Char lie’s re sidence sever al times a we ek.
L ater in the day on October 1 , R u d y an d appellant took appellant’ s blue Chevrolet to Rendon’s Gar ag e to have the tires chang ed. At this time, appe l l an t t o l d Rudy that appellant was leaving Houston. Rudy helped appellant wash Ang elo’s blood and vomit from the interior of the car . Appellant then sold the car and used t he money to buy a p l an e t icket to Puerto Rico. Rudy drove appellant to the airport the following day , October 2, 1992, and he did not see appellant ag ain until they both returne d to Houston for appe llant’s capital murde r trial. Ag ent Wil liam Ebersole testi fi ed t h at he interviewe d Rudy while Rudy was in a fede ral prison in Pennsy lvania. Ag ent Ebersole obtained a statement from Rudy about what happene d theCRUZ- GARCI A–8

night of September 30, 1992, a

nd about appe llant’s involvement in Ang elo’s murde r. On cross-e x amination of both Rudy and Ag ent Ebers o l e, defe nse counsel highlig hted inconsistencies betwee n Rudy ’s trial testimony and the statement he g ave to Ag ent Ebersole while imprisoned. Rudy omitted from his story to Ag ent Ebersole any ref ere nce to him de fec ating while Ang elo was being killed. Rudy told Ag en t E b er s o l e t h at he was familiar with the Ba y town are a beca use he had sold drug s there prior to September 30, 1992, but Rudy denied this at trial. Rudy told Ag ent Eber sole that Roge r t ook Ang elo t o the rear of the driver’s side of the c ar a nd that is where he killed him while appellant stood nea r the fr ont of the ca

r, but this did not exactly comport with Rudy ’s trial testimony

. Whil e Rudy testified at trial that appellant threa tened him and order ed him not to tell any one what the three of them did to Ang elo, Ag ent Eber sole’s notes re flec ted that the thre e mer ely made

a pact to keep their secr et. Additionally , Rudy ’s rec ollection of how long appellant and Roge r wer e in Diana a

nd Arturo’ s apar

tment and how many

tires blew out on the ir ca r once they

left B ay town was inconsistent with the re collection g iven to Ag ent Eber sole. During their investiga tion into Ang elo’s kidnapping , local police officia ls lear ned that Diana and Arturo had rente d an apar tment in Humble for appellant and his wife. When HPD office rs went
to that apar

tment to look for appellant on October 5 , 1992, they found it vacated. Additionally , office rs lear

ned that, prior to it being vacated, the apar tment had been occupie d by two “blackHispanic male s” and one light-skinned H ispanic fe male. One of the men who had occupie d the Humble apar tment had been seen wea

ring a shirt from Rendon’s Ga

rag e with the name L uis on it. Upon lear ning this, off

icer s went to Rendon’s Ga rag e wher e they met with J uanita Rendon, the wife of the owner , Roge lio Rendon. Roge lio was initiallyCRUZ- GARCI A–9

unavailable to speak with office rs. Offic er Her nandez returne d to the g ara g e and observe d Roge lio driving up in a blue Thunderbir d. Roge lio was acc ompanied by a man who iden t i fi ed h i m s elf as Candi d o L eb ro n. Whil e Officer Her nandez was speaking with Roge lio, Ang elita and Rudy came to the g ara g e to claim the blue T hunderbird. The next day , on October 6, HPD rec eived a tip that a Hispanic male was seen at the Humble
apar tment. HPD office rs returne d to the apar tment, kn o ck ed o n the door, and wer e met by an individual who ag ain identified him self as Candido L ebron. The y later le arne d his true name w as Roge lio Aviles (also known as “Rog er,” the third adult male with a ppellant and Rudy on the night of September 30, 1992). HPD office rs continued to look for appellant in Houston and surrounding cities but were unable to loca te him.
FB I Ag ent Eric J ohnson testified that he beca me involved in the curr ent case in 1992 beca use it involved the kidnapping of a child under the ag e of twelve. The FB I worke d in conjunction with local authorities in an attempt to locate Ang elo. Appellant was a suspect ear l y o n i n t h e FB I ’s investiga tion. During his investigation, Ag ent J ohnson lear ned that on October 8, 1992, appellant was set to appe ar in a

Har ris County

district court on an unr elated f elony drug case . Ag ent J ohnson testified from court documents that ref lected that appellant was schedule d to
appea r in court on October 8, 1992, that appellant failed to appea r in court on that date, and that his bond was subseque ntly

forf eited for this failure to appe ar. On t he afternoon of November 4, 1992, a fisherman walking the banks o f Goos e C ree k in
Ba y town discovere d Ang elo’s body

. Be cause of a cold front that had blown throug h the are a, eig ht
to t en fee t of beac h that was normally submerg ed was exposed; this is wher e Ang elo’s body was found. B ay

town Police Corporal Randy Rhodes was dispatche d to the water way .CRUZ- GARCI A–10

Up o n arr iving, he observe d the skeletal rema ins of a small child on the sandy part of the beac h. The skeleton was mostly intact, but the skull had disconnec ted from the torso, and some rib bones and verte brae had been disturbed. Fr om the same are a, office rs also rec overe d a pair of shorts with a Ba tman logo and a t-shirt. Diana testified that Ang elo had been wea ring Ba tman pajamas on the nig ht he was kidna

pped. An autopsy was perf

ormed on Ang elo’s remains in 1992 by Dr. Vladimir Parung ao. Dr. Parung ao was no longe r employ ed by the Harris County I nstitut e of For ensic S ciences at the t ime of trial, so Har

ris County Deputy Chief Medica l Ex aminer, Dr. Dway ne Wolf, testified at trial. After revie wing photogr aphs and Ang elo’s autopsy repor t, Dr. Wolf testified that Ang elo’s manner of death was homicide and that his body appea red in a state that was consistent with it h av i n g b ee n submerg ed for several wee ks. The fac t that Ang elo was abducte d, that his body was found in an advanc ed state o f d ec o m position, and that his body was found many miles from his home all contributed to Dr. Wolf’s opinion that Ang elo was murde red. Dr. Wolf also examined the clothing found near Ang elo’s body and testified that any blood that may have been on the clothi ng would have washed away afte r the c lothing wa s submerg ed in
water

. On cross-e x amination, Dr. Wolf confirme d that he did not find any injuries to any of Ang elo’s bones a

nd that he could not rule out drowning as a c ause of death.
DN A ev i d en ce was also prese nted at trial. Serg eant Eric Mehl worke d in the cold case division of HPD in 2007 when this case was reope ned. As part of his investiga tion, Serg eant Mehl submitt ed several piece s of evidenc e to a private fore nsics lab called Orc hid Cellmark for DNA 4 testing. Serg eant Mehl sent the cig ar that was collecte d from the crime scene , Diana’ s sexual assault

Orc hid Cellmark was c alled “Ce llmark For ensics” at the time of trial. 4CRUZ- GARCI A–11

kit, and a cutting from t he p ai r o f p an t i es Diana was wearing the ni g ht of her sexual assault. The cutting from Diana’ s panties was a cutting from the crotc h are a. Fr om that cutting, Orc hid Cellmark
cut awa y a small piece on which they perf ormed their testing. Orc hid Cell m ar k develope d an unidentified male D NA prof ile from these piece s of evidenc e. Matt Quar

taro, a supervisor of fore nsics at Orc hid Cellmark, testified about the DNA testing his lab perf

ormed afte r it rec eived evidenc e from Serg eant Mehl. After tes t i n g the cig ar, Orc hid Cellmark was able to g ener ate a full DNA profile of an unknown male. This profile was compar ed to the profiles of D iana a

nd Arturo, but it did not match either of them. Orc hid Cellmark also tested va g inal swabs fr om the sexual assault kit. The vag inal swabs contained a mix ture of epithelial cells and sperm cells. The epithelial cells belong ed to Diana, and the sperm cells belong ed to more than one male individual. Ar turo could not be excluded as a contributor to the sperm-c ell fra ction from the vag inal swab. Additionally , the unknown male whose DNA was found on the cig ar could not be excluded as a contributor to the sperm-c ell fra ction from the vag inal swab. When Orc hid Cellmark tested the portion of the panties they had rec eived, they once ag ain found Diana’ s epithelial cells and a sperm-c ell fra ction with more than one contributor. The unknown male from the cig ar DNA sample could not be excluded as a major contributor to the
sperm sample in the panties. Additionally , Arturo could not be excluded as a contributor to t h at sperm sample.
L ater , in De ce m b er 2007, Orc hid Cellmark rec eived DNA samples from Roge r, Charlie,
L eonar do Ger

man, and Ru d y t o co m p ar e to the DNA profiles they had obtained from the cig ar, sexual assault kit, and panties. Roge r, C harlie, and L eonar do wer e all excluded as c ontributors toCRUZ- GARCI A–12

any of the DN A evidenc e found on the cig ar, se x ual assault kit, and panties. The first sample rec eived from Rudy was not suffic i en t to compar e to the DNA profiles Orc hid Ce llmark had obtained. I n J une of 2011, Orc hid Ce llmark rec eived a second DNA sample from Rudy and at t h at time was able to exclude him as a contributor to any of the DNA on the evidenc e that Or chid Cellmark tested.
I n ear ly 2008, Serg eant Mehl lear ned that appellant was in Puerto Rico. Serg eant M eh l , working in conjunction with the FB I in Puerto Rico, obtained a DNA sample from appellant on May 23, 2008. He then sent that DNA sample to Orc hid Cellmark. On May 28, 2008, Orc hid Ce llmark

rec eived a sample of appellant’ s DNA. The sample arr ived in a seale d envelop e with appellant’ s

name wr itten on it. Appellant’s DNA matched the profile that had been obtained from the cig ar found in Diana and Arturo’ s apar

tment in September of 1992. Additionally , appellant’ s DNA could not be excluded

as a contributor to the unknown male profile found on the vag inal swabs from Diana’ s sexual assault kit. L astly , appellant’ s DNA matc hed the unknown male profile that wa s the major contr ibutor to the DNA in the spe rm-ce ll frac tion from Diana’ s panties. Quar taro also discussed the qua li ty

- c o n tr o l p roce dures in place at Orc hid Cellmark to preve nt contamination of the evidenc e they rec eive and the profiles they obtain. Quar taro acknow ledg ed that Orc hid Cellmark cannot implement or mo n i t o r quality -control proce dures at other labs. But on redire ct, Quar

taro testified that none of the evidenc e that he rec eived appea red to be contaminated. All the evidenc e appea

red to be in g ood condition; it was packa g ed separ ately to preve nt crosscontamination, and a ll container s wer e sealed. Quar taro also testified t hat i t would be impossible
to contaminate a sample in such a way that appellant’ s DNA would appea r on that sample unless theCRUZ- GARCI A–13

contaminator ha d some of appe llant’s DNA. Moreove r, Quar

taro testified t hat cross-c ontamination betwee n the cig ar and the sexual assault kit or panties wa s not possible beca use appellant’ s epithelial cells wer e found on the cig ar, while appellant’ s sperm cells wer e found on the swabs from the sexual assault kit and the panties. Additionally , no epithelial ce lls belonging to appellant were found in the s amples fr om the sexual assault kit or panties. The Houston Police Depa rtment Crime L ab was also involved in DNA analy sis in the instant

case . Courtney Hea d, an analy st f rom the crime lab, testified that in Febr uary 2010 she re ceive d a known DNA sample from appellant. This sa mple was collecte d separ ately from the sample collecte d and sent to Orc hid Cellmark in 2008. Fr om this sample, Hea d perf ormed her own DNA extraction
to cre ate a DNA profile. She then compar ed that profile to the profiles obtained by Orc hid Cellmark from the c iga

r, the sexual assault kit, and the panties. Appellant could not be excluded as a contributor to the male DNA profile found on the cig ar and the vag inal swabs from the sexual assault kit. Additionally , appellant could not be excluded as the major contributor to a male DN A p rofile in the sperm-c ell fra ction obtained from Diana’ s panties. Hea d testified that, to a rea sonable deg ree of scientific cer tainty , appellant was the source of the DN A profile on the cig ar a nd the panties. Pursuant to his cold case investiga tion, Serge ant Mehl interviewe d Diana, Arturo, L inda Her nandez, and Ang elita Rodrigue z. A Spanish-speaking office r interviewe d Rudy

. Serg eant Mehl attempted to locate C h ar l i e fo r an interview but was unable to find him. At the conclusion of hi s investiga tion, Serg eant Mehl filed char g es ag ainst appellant. Appellant was later tried and convicted of ca pital murder a

nd sentenc ed to dea th.CRUZ- GARCI A–14 II. Guilt A. Sufficiency of the Evidenc e I n his third point of err or, appellant challeng es the sufficie ncy of the evidenc e to support his conviction for capital murder. Appellant highlig hts the following are as in which he claims the evidenc e is insufficient: Rudy ’s cre dibilit y and motive to testify , Diana’ s and Arturo’ s descr iptions of their intruders, Diana’ s and Arturo’ s dishon es t y about their drug dealing , Ang elita’s potential ulterior motive to testify ag ainst appellant, whether a sexual assault or consensua l sexual encounte r

occur red, the chain of

custody for the f orensic e vidence , and Ang elo’s ca use of death. We r eview these complaints specific ally , in addition to revie wing the totality of the ev i d en ce s upporting appellant’ s conviction. This Court does not e ng ag e in a fac tual-suffic iency revie w. I nstead, we eng ag e only in the leg al-suff iciency revie w enuncia

ted in Jack

son v. Virginia. I n so doing, we revie w the entire rec ord 5 in the l ight most favor able to the verdict to deter mine whether any rational fact-f inder co u ld have found the e lements of the offense bey ond a reasonable doubt. I f a r ational fa ct-finde r could ha ve 6 so found, the ver dict will not be disturbed on appea l. 7
Her e, appellant was convicted of capital murder, having intentionally or knowing ly cause d

Brooks v. State , 323 S.W .3d 893, 912 (Tex. Crim. App. 2 0 1 0 ). S ee also Jack

son v. 5 Virginia , 443 U.S. 307, 318-19 (1979) (holding that the rele vant i n q u iry for appellate courts review i n g t he sufficie ncy of the evidenc e to support a conviction is “whe ther, afte r viewing the evidenc e in the l ight most favor able to the pr osecution, any rational trier of fact could have found the essential e lements of the c rime bey ond a re asonable doubt.” (e mphasis in origina l)). Jack son , 443 U.S. at 319. 6

7 See id

. at 319 (upholding conviction wher e evidenc e was leg ally sufficie nt). See Temple v. State , 390 S.W .3d 341, 363 (Tex. Crim. App. 2013) (a ffirming judgme nt beca use evide nce w as leg ally sufficie nt to support a conviction).CRUZ- GARCI A–15

the death of another during the course of committing a kidnapping

. Circumstantial evidenc e is just 8

as probative a s direct e vidence in establishing g uilt. Every piece of circ umstantial e vidence need 9

not point direc tly to appellant’ s g uilt. I nstead, we examine the cumulative eff ect of all the evidenc e 1 0 when de termining whether such evide nce is suff

icient to sustain a conviction. 1 1
Fur ther, we permit juries to draw rea sonable infere nces from the fac ts they are prese nted, so long as their infere nces are supported by the evidenc e adduce d at trial. After a thoroug h revie w of 1 2 the re cord, w e conc lude that the evide nce is suff icient to support appellant’ s conviction. 1. Appellant’s Spec ific Sufficiency Complaints The jury hear d testimony from twenty witnesses, including Diana Gar cia, Arturo Rodrigue z, and Rudy

. Although appellant attacks the cre dib i l i t y o f these three witnesses in particula r, all

cre dibilit y deter

minations are solely within the province of the jury

. The jury is the sole judge of 1 3

cre dibilit y

and of the weig ht to be attache d to the testimony of witnesses. 1 4 The jury was fre e to believe Rudy ’s acc ount of September 30, 1992, at trial and disreg ard any inconsistencies with previously -made statements. Rudy ’s testimony prese nted compelling evidenc e of appellant’ s direc t involvement in the kidnapping and killing of Ang elo. Rudy ’s testimony about

See T E X
. P E N A L C O D E § 19.03(a) (2). 8 W infrey v. S t a t e , 393 S.W .3d 763, 771 (Tex. Crim. App. 2013); Hooper v. State , 214 9 S.W .3d 9, 13 (Tex. Crim. App. 2007).

Hooper , 214 S.W .3d at 13. 1 0 Id

. 1 1 Temple , 390 S.W .3d at 360; Hooper , 214 S.W .3d at 15. 1 2 Temple , 390 S.W .3d at 363. 1 3 Id . at 360. 1 4CRUZ- GARCI A–16

the events of September 30, 1992, was corr o b o ra t ed b y Diana’ s and Arturo’ s acc ounts that two masked men enter ed their apar tment and l ef

t wi t h t heir child and by the location wher e Ang elo’s body was discovere d. Appellant also highlig hts the fac t that Rudy was in fede ral prison when he was first approa ched by law enfor ceme nt office rs during their c o ld c a s e in v e s ti g a ti o n in to A n g e lo ’ s d e a

th. This fac t goe s to Rudy ’s cr edibility , a dete rmination left to the jury

. Additionally , the jury was fre e to find cre dible Diana ’s an d Ar turo’s testimony , despite evidenc e of previous dishonesty or inconsistent testimony about the disclosure of their drug dealing

. Diana testified that two masked men broke into her apar tment, that one sexually assaulted her, and that when they left, her c hild was g one. Diana ’s testimony was corr oborate d by Rudy ’s testimony that appellant and Roge r, wh i l e wea ring masks, went to Diana and Arturo’ s apar tment to retrie ve their drug s and money

and lef t that apar tment with Ange lo. Fur ther, Di ana’ s claim that she was sexually assaulted on the night in question is

corr oborate d by the DNA results from the evidenc e in her sexual assault kit. Diana testified that she and appellant had never had a consensua l sexual rela tionship, y et appellant’s DNA was found in sperm fr om vag inal swabs obtained the night that Dia na cla ims she was sexually assaulted. Appellant also complains that the evidenc e is insufficient to support his conviction beca use of the descr iptions Diana and Arturo g ave the police of their intruders. Diana, Arturo, and various police office rs testified that Diana and Arturo both de scribed their intruders as “blac k.” Appellant is not Africa

n-Amer ican a

nd there fore contests the applica bility of this description to him. At trial, howe v er , n u m erous witnesses testified that Mexi can Hispanics routinely use the descr iptor “blac k” to des c r ib e d a rk-c omplex ioned Hispanics who are not from Mexi co. The jury was fre e to believe this explanation and could rea sonably infer from the testimony they hear d that DianaCRUZ- GARCI A–17

and Ar turo wer e desc ribing dark- complexioned Hispanic males, not Afr ican- Americ an males. Appellant also contests Ang elita’s motive to tes t i fy an d claims her testimony was untrustworthy

. But Ang elita’s cre dibilit y was for the jury alone to decide

. Ang elita testified that appellant was a drug deale r who sold drug s to Diana and Arturo. On October 1, 1992, the night afte r An gel o wa s abducte d, appellant abruptly told Ang elita he was moving back to Puerto Rico and

e xp r e s s e d n o c o n c e r

n o v e r A n g e lo ’ s a

b d u c tion, despite appellant’ s friendship with Diana and A r tu r o . Ang elita’s testimony as to appellant’ s flig ht prese nted circ umstantial evidenc e of appellant’ s g uilt, and the jury was fre e to believe that testimony and draw rea sonable infere nces reg arding appellant’ s g uilt therefr om. Appellant complains that there was insufficient evidenc e of the chain o f cu s t o d y of the fore nsic evidenc e admitted by the State. Absent a showing of tampering , discrepa ncies in the chain of custody

g o to the weig ht to be g iven a piece of evidence, not it s admissibil ity

. The jury is the 1 5 sole dec ider of the weig ht to be g iven a piec e of e vidence

. Her e, the jury hear d testimony that the fore nsic evidenc e at issue was stored in seale d plastic bag s. Quar

taro t es t ified that, when he rec eived the evidenc e for testing, he observe d no signs of tampering or contamination. The jury was free to lend cr edenc e to Quar taro’s ex amination of t he evidenc e and the state it was in based on his training and experience and disreg ard implications from defe nse counse l that the evidenc e had be en compr omised.
L astly , appellant complains of insufficient evidenc e to support a deter mination that Ang elo

was murdere d. But the jury hear d evidenc e from Dr. Wolf, the Deputy Chief Medica l Ex aminer in
Har ris County , that, based on all the circ umstances surrounding the case , he believed Ang elo’s death
Lagrone v. State , 942 S.W .2d 602, 617 (Tex. Crim. App. 1997). 1 5CRUZ- GARCI A–18

to be a homicide. Dr. Wo l f’ s testimony , combined with the circ umstances surrounding Ang elo’s kidnapping and the discovery of his body , was sufficie nt for a rational juror to deter mine that Ang elo had been murdere d. The jury was fre e to believe Dr. Wolf’s testimony and disreg ard evidenc e to the
contra ry . Appellant also alludes to an ar g ument that there was insuffic ient evidenc e for a fac t-finder
to deter mine Ang elo came t o his death “as allege d i n the i ndictment.” But here, the State alleg ed
two separ ate manner and means for how Ang elo died: first, that Ang elo was stabbe d to death, and

seco n d , t hat Ang elo died by unknown means. Rudy ’s testimony provided sufficie nt evidenc e, if believed, that Ang elo was stabbed to death. Dr . Wolf’s testimony provided suff

icient evidenc e, if believed, that at the very least, Ang elo was murdere d, even if the particula r manner and means wer e unknown.
I t was within the purview of the jury to lend cre dence to the testimony of Rudy and Dr. Wolf about how Ang elo died. Viewing the evidenc e in the light most favor able to the verdic t, there was sufficie nt evidenc e to supp o rt t he jury ’s verdic t that Ang elo died at the behest of appellant, in a

manner alleg ed in the indictment. 2. Other Evide nce Supporting Appellant’s Conviction Be y ond appellant’ s specific sufficie ncy complaints, we hold that there is sufficie nt evidenc e in the rec ord for a rational trier of fac t to find ever y element of capital murder bey ond a rea sonable doubt. Appellant knew Diana and Arturo throug h his drug business

. When Diana and Arturo withdrew from appellant’ s drug business, appellant beca me upset with them. Shortly there afte r, two dark- complexioned males broke into Diana and Arturo’s apa

rtment on the nig ht of September 30, 1 992, and assaulted Arturo and sexually assaulted Diana. A sexual assault exam i n at i o n wa sCRUZ- GARCI A–19

perf ormed on Diana that very night and a sexual assault kit was cre ated with the biologica l materia l collecte d. Subsequent DNA te sting re veale d that that evidenc e conta ined sperm f rom appe llant. Rudy testified that he saw appellant car ry Ang elo from Diana and Arturo’ s apar tment to their

car on the nig ht of September 30, 1992. Appellant then dr ove to a r emote ar ea of Ba y town wher e he order ed Roge r to kill Ang elo. Rudy saw Ang elo’s body lifeless and cover ed in blood immediately afte r this orde r and helped Roge r dispose of the body in a near by water way while appellant looked

on. One day later, on October 1, 1992, appellant told h i s wife, Ang elita, that he was leaving Houston to return to Puerto Rico. Ang elita testified that this trip was sud d en an d u nplanned. Appellant clea

ned out the interior of the car he had been driving on September 30, sold the car , and used the proce eds to pur chase a plane ticket to Puer to Rico. The next time Ang elita saw appellant was in the Dominica

n Republic, when he confe ssed to her tha t he had killed Ang elo. Appellant was schedule d to appea r in a Har ris County district court on October 8, 1992, on a pending drug case . Appellant fa iled to appea r on that date a

nd subsequently

forf eited his bond. Appellant had been prese nt at ever y court setting prior to the October 8 setting. I n November 1992, Ang elo’s body was found in a water way in Ba y town, and Rudy testified that he and Roge r had left Ang elo’s body in a Ba

y town water

way a month prior. We c onclude that the evidenc e is suf ficient to suppor t a ppellant’s conviction for capital murder. Appellant’s third point of err or is ove rruled. B. Motion to Suppress
I n his first point of err or, appellant contends that the trial court denied him due proce ss when it denied his motion to suppress DNA and other fore nsic evidenc e that had been stored by the “old” Houston Police Depa

rtment Crime L ab (“old HPD crime lab”)

. We revie w a trial court’s ruling onCRUZ- GARCI A–20

a motion to suppress under a bifurca ted standar d of review. We aff ord almost total defe renc e to 1 6 the trial court’s deter

mination of historical fac ts and mix ed questions of law and fac t that turn on the evalua tion of cre dibilit y and demea nor. Questions of law and mix ed questions of law and fac t not 1 7

t u rn i n g o n cr ed ibilit y are revie wed de novo. We will not disturb the trial court’s ruling if it i s 1 8 supported by

the re cord a

nd corr ect unde r any

theory of law a pplicable to the c ase. 1 9
At the hear ing on appellant’ s motion to suppress, appellant arg ued ag ainst the admission of fore nsic evidenc e that had been stored by the old HPD crime lab. Specifica lly , the piece s of evidenc e to which appellant objected wer e (1) a cig ar found at the crime scene , (2) a sexual assault kit perf ormed on Diana Gar cia on the morning afte r Ang elo was kidnapped, and (3) a cutting from the pair of

panties Diana

wore the nig ht of the instant offe nse. Appellant also arg

ued ag ainst the admission of results from DNA testing perf ormed on the cig ar, sexual assault kit, and panties, despite the fac t that the proff ere d test results wer e not g ener ated by the old HPD crime lab. I n support of his motion, appellant arg ued that th e m er e fa ct that the fore nsic evidenc e at issue had been stored by HPD, and subsequent to that storag e the old HPD crime lab was shut down beca

use of quality -control problems, provided sufficie nt indicia that the evidenc e had bee n contaminated a

nd was ther efor e untrustworthy to put before a jury

. The State counter ed with testimony from three witnesses. First, Eric Mehl, a retire d police
serg eant, testified that he had worke d on appellant’ s case as a member of the cold case squad in the

Guzman v. State , 955 S.W .2d 85, 89 (Tex. Crim. App. 1997). 1 6 Id

. 1 7 Id

. 1 8 State v. Ross , 32 S.W .3d 853, 855-56. (Te x . Crim. App. 2000). 1 9CRUZ- GARCI A–21

homicide division of the Houston Police Depa rtment. Pursuant to that role, in October 2007, Serg eant Mehl obtained the cig ar and sexual assault kit that had been collecte d as evidenc e in 1992. At the time it was retrie ved, the cig ar was being stored in the HPD proper ty room on Goliad Street. The sexual assault kit was being stored in the proper ty room annex on the 24 floor on Travis Street. t h Both the cig ar and the sexual assault kit wer e seale d in separ ate plastic bag s. Serg eant Mehl testified that both piece s of evidenc e appeared to be in g ood condition and neither appea red to have been damag ed. On October 2, 2007, Serg eant Mehl shipped the cig ar and s ex ual assault kit to Orc hid Cellmark, a private fore nsics lab that contra cted with HPD, for test in g . Subsequently , Serg eant Mehl obtained the cutting of the crotc h from the panties that had belong ed to D iana, a biologica l sa mple from Diana, and a biologica l sample from Arturo, that had all been stored in the crime lab. Eac h piece of evidenc e was stored separ ately in its own seale d plastic bag

. Additionally , Serg eant Mehl obtained stored blood sa mples of var ious known associate s of appe llant. On May 23, 2008, Sergea nt Mehl rec eived a sample of appellant’ s DNA afte r Mehl’s colleag ue, Serg eant Stephens, informed Mehl that appellant was in custody in Puerto Rico. An FB I
age n t in Puerto Rico obtained appellant’ s DNA sample and sent that sample to Serg eant M eh l

. Serg eant Mehl did not open the packa g e containing appellant’ s DNA sample but instead repa ckag ed it and shipped it to Orchid Cellmark for compar ison with the evidence alre ady in its poss ession. 2 0
At t h e t i m e Serg eant Mehl sent appellant’ s DNA sample to Orc hid Cellmark, Orc hid

Whil e the rec ord is clea

r that Serg eant Mehl sent the cig ar and sexual assault kit to Orc hid 2 0 Cellmark on Octobe r 2, 2007, the re cord is uncle ar a s to when Serg eant Me hl sent the panties and the known DNA samples from Diana , Arturo, a nd appellant’ s associate s. Serg eant Mehl testified only that, by the time he obtained appellant’ s DNA sample from Puerto Rico (May 23, 2008), he had alre ady sent “all of the orig inal evidenc e that might contain biologica l materia l” to Orc hid Cellmark.CRUZ- GARCI A–22

Cellmark alre ady had all the orig inal evidenc e that potentially contained biologica l materia l. L ater , Serg eant Mehl rec eived the results of Orc hid Cellmark’s testing and compar ison. After lear ning of Orc hid Cellmark’s re sults, S erg eant Me hl arre sted appe llant for ca pital murder. Second, the State called Matt Quar taro, a supervisor at Orc hid Cellmark. Quar taro testified
to his qualifica

tions and to the proce d u re s h e employ s when he analy zes DNA evidenc e. Orc hid Cellmark rec eived evidenc e connec ted to appellant’ s case on October 3, 2007. The evidenc e arr ived in a sealed box

. Wit hin the box wer e several manilla envelope s and withi n thos e en v el opes were seale d plastic bag s, eac h containing an individual piece of evidenc e. Quar taro testified that nothing
appea red to ha ve bee n tampere d with or contaminate d. Ultimately , Orc hid Cellmark took possession of the cig ar, the sexual assault k i t , Diana’ s panties, DNA extractions that had alre ady been perf ormed on sever al pieces o f ev i d en ce, and the known DNA samples fr o m Ang elo’s family and appellant’ s associate s. I nstead of rely ing on the exis ting DNA extractions i t re ce i ved, that wer e g ener ated by the old HPD crime lab, Orc hid Cellmark perf

ormed its own DNA extractions and analy ses on the panties, the cig ar, and the vag inal swabs fr om the sexual assault kit. An unknown male DNA profile was found on the cig ar. T h at DNA profile could not be excluded as a contributor to an unknown male DNA profile from sperm found on a vag inal swab in the sexual a ssault kit. Additionally , an unknown male DNA profile was discovere d on the panties that was c onsistent with the unknown male DNA pr ofile found on the c iga r and the vag inal swab. The DNA on the cig ar wa s s i n gl e-source; only one individual’s DNA was prese nt. The

v agi n al swab contained Diana’s epithelial cells, Arturo’s DNA in the form of sperm cells, an d an unknown m al e co n t ri butor’s DNA, also in the form of sperm cells. This unknown male profileCRUZ- GARCI A–23

matched the profile obtained from the cig ar. Diana’ s epithelial cells wer e also found on her panties along with sperm from t wo contribut ors. The major contributor to the sperm-c ell fra ction in the panties matched the unknown male DNA profile found on the cig ar. Arturo, Diana’ s husband, could not be excluded as the minor c ontributor to the sperm-c ell fra ction in the panties. On May 28, 2008, Orc hid Cel l m ark rec eived a sample of appellant’ s DNA. Fr om that sample, it obtaine d a full DNA profile for appellant, which matched the DNA profile found on the cig ar and the m ajor contributor profile obtained from the sperm-c ell fra ction of the panties. Appellant could not be excluded as a contributor to the sperm-c ell fra ction from the vag inal swabs in the sexual assault kit. Orc hid Cellmark eliminated as contributors all of appellant’ s associate s for whom they

had known DN A samples. On the topic of contamination, Quar taro testified that without a sample of appellant’ s DNA in the crime lab wher e the evidenc e at i s s u e wa s s tored, it would be difficult to contaminate the evidenc e with appellant’ s DNA. Put another way , it is highly unlikely under exis ting circ umstances that appellant’ s DNA woul d appea r on the evidenc e at issue if he did not put it there himself. Quar taro also quelled fe ar s reg arding cross-c ontamination betwee n the cig ar and the panties or sexual ass au l t k i t beca

use the cells containing appellant’ s DNA on the cig ar wer e saliva and skin cells, while the c ells on the panties and va g inal swabs we re spe rm ce lls. Fi n ally , Quar

taro noted that contamination from excess moisture, heat, or o t h er

en v i ronm ental fac tors would manifest itself as a deg rada tion of the biologica l sample found on a particula r piece of evidenc e. Such contaminat i o n woul d not result in the manifestation of an otherwise- absent DN A profile. Third, the State called Courtney Hea d, a criminalist specia list with the “new ” Houston PoliceCRUZ- GARCI A–24

Depa rtment crime lab (“ne w HPD crime lab”)

. Hea d testified to her qualifica tions as a DNA 2 1 analy st and then testified about the involvement of Gene tic Desig n L ab in the instant case . Gene tic Desig n L ab i s an independent, C alifornia- based lab that rec eived DNA ex trac tions from evidence in appellant’ s case in the 1990s

. Hea d tes t i fi ed t h at h er notes indicated that in 1992 the ol d HPD crime lab extracted DNA from evidentiar y samples and sent those extractions to Gene tic Desig n L ab for testing. There is no indication that any piece s of actua l evidenc e, as opposed to mere extractions,

wer e sent to Ge netic De sign L ab. Hea d also testified to a

naly ses she perf

ormed at the new H PD crime lab. After rec eiving a bucca l swab from appellant, Hea d extracted appellant’ s DNA and obtained his DNA profile. Hea d then compar ed that profile to the profiles that had been g ener ated by Orc hid Cellmark from the cig ar, the panties, and the vag inal swab. Acc ording to Hea d’s tests, appellant could not be excluded as the contributor to the DNA on the cig ar, appellant could not be excluded as the contributor to the major DNA profile on the panties, and appellant could not be excluded as a contributor to the DNA found on the vag inal swab in the sexual assault kit. Appellant cross-e x amined all three of the State’s witnesses, focusing on the time eac h piece of evidenc e spent at the old HPD crime lab. Appellant also em p h as ized the fac t that some of the evidenc e at i s s u e had even been tested by the old HPD crime lab when it first rea ched the lab in 1992, including one of the vag inal swabs from the sexual a ssault kit. Appellant ar g ued to the trial
court that the evidenc e was contaminated as a result of the time it spent at the old H PD c rime lab. Absent evidenc e of tampering , alleg ations or questions r eg arding the car e and custody of a

Some y ear s after

the closure of the old HPD Crime L ab, HPD opene d a new crime la b. 2 1CRUZ- GARCI A–25

piece of evidenc e g o to the weig ht to be g iven that evidenc e, not its admissibili ty

. Her e, the only 2 2 evidenc e appellant put forth reg arding contamination of the evidenc e is the fac t that it was stored by the ol d HPD crime la

b. Although appellant offere d evidenc e challeng ing the reliability of t he old
HPD crime lab as a whole, he offe red no evidenc e that the particula r evidenc e at issue in the instant

case had been tampere d with o r contaminated. I n response to appellant’ s claims, the State introduced te stimony

to support the reliability

of the e vidence at issue. The trial court made oral finding s of fac t on the rec ord. The court found Mehl, Quar taro, 2 3 and Hea d to be cre dible witnesses, qualified to testify in their are as of expertise. The trial court then

rec ited finding s of fac t adopting the testimony of the State’s witnesses as it is summarized a bove. The court expli citly found that there was no indication that any of the evidenc e at issue in appellant’ s

case had been contaminated or mishandled during the time it was stored by the old HPD crime lab. Ultimately , the court ruled the cig ar, sexual assault kit, and panties admissible as reliable and rele vant evidenc e. T h e court deter mined that the results of the DNA tests perf ormed by Orc hid Cellmark on the cig ar, se x ual assault kit, a nd panties wer e also admissible a s reliable a nd rele vant evidenc e. L astly , the court ruled that the DNA compar ison perf ormed by Hea d at the n ew HPD crime la b was a dmissibl e. The rec ord supports the trial court’s co n clus ion that the DNA evidenc e was reliable

. The trial court hear d evidenc e about how and wher e eac h piece of evidenc e at issue was stored. Quar taro and Serg eant Mehl both test i fi ed that the evidenc e appea red to have been stored appropr iately , Lagrone , 942 S.W .2d at 617. 2 2 See State v

. Cullen , 195 S.W .3d 696, 699 (Tex. Crim. App. 2006) (stating that finding s 2 3 of fac t rende red afte r a ruling on a motion to suppress can be in written form or stated orally on the rec ord).CRUZ- GARCI A–26

separ ated and seale d in individual container s. Additionally , the trial court found that the locations wher e the evidenc e in this case was stored wer e not the locations descr ibed as being defic ient in any of the re ports critica l of the old HPD crime la b. The re cord a lso supports the trial court’s c onclusion that the DNA evidenc e was rele vant. Evidence is rele vant if it makes any fac t of conseque nce more or less probable than it would be without the evidenc e. Her e, the DNA evidenc e makes appellant’ s prese nce at Diana and Arturo’ s 2 4
apar tment the night Ang elo was kidna pped more probable

. Be cause we defe r to the trial court’s fac tual deter minations so long as those deter minations

are supported by the rec ord, we will not disturb the trial court’s finding s on appea l. The trial court did not abuse its discretion in admitting the fore nsic evidenc e, and appellant’s due proce ss rig hts have not be en violated. Appe llant’s first point of err or is overr uled.
I n his se cond point of err or, appellant contends that the trial court err ed when it limited his ability to prese nt a defe nse by excluding evidenc e critica l of the old HPD crime lab and limit ing his

cross-e x amination of witnesses with respe ct to testimony critica l of the old HPD crime lab. We will addre ss eac h complaint in turn. Although defe nse exhibi ts 2-9 wer e offe red into evidenc e at the motion-to-suppress hear ing, they wer e not the subject of the defe nse’s motion to suppress. I nstead, they wer e offe red in support of the defe nse’s motion to suppress, and the trial court included a ruling on their admissibili ty at trial in i t s fi ndings of fac t. Be cause the trial court’s ruling on defe nse exhibi ts 2-9 was an evidentiar y ruling , separ ate from its ruling on the defe nse’s motion to suppress the State’s evidenc e, we revie w

T E X
. R. E V I D
. 401 (West 2014). We cite to the version of the Rules of Evidence that was 2 4 in eff ect at the time of appellant’ s trial

. Al though the Rules of Evidence have been amende d, eff ective A pril 1, 2015, we note no substantive c hang es to the rules pe rtinent to this case.CRUZ- GARCI A–27

the denial of

exhibi ts 2-9 for a

n abuse of

discretion only

. 2 5 First, appellant complains of the trial court’s exclusion of defe nse exhibi ts 2-9 as a violation of his rig ht to compel th e attendanc e of witnesses in his favor and a limit ation on his ability to
p re sent a defe nse. Absent an abuse of discretion, a trial court’s evidentiar y ruling wi l l n o t b e disturbed on appea l. A trial court abuses its discretion only if its ruling lies outs i d e t h e z o n e of 2 6

rea sonable disag ree ment. 2 7 Def ense exhibi ts 2-9 wer e offe red at the hear ing on the motion to suppress the State’s DNA evidenc e. At that hear ing, the trial court ruled that defe nse exhibi ts 2-9 wer e inadmissible at trial. Def ense exhibi ts 2- 7 consisted of a repor t te rmed the “B romwich Report.” The Br omwich Report

was initiated in response to the closure of the old HPD crime lab in 2003 and heavily criticized the lab in the ar eas of

quality assura nce, inter nal auditing , training , and standa rd oper ating proce dure. The trial court deter

mined that nothing in the Br omwich Report relat ed t o the specific evidenc e being offe red by the State and, as such, was irrele vant under Rule 401 and inadmissible under Rule 402. Alterna

tively , the court held that, even if some portions wer e rele vant, the probative value substantially outweig hed the dang er of unfair prejudice , confu s i o n o f the issues, and the misleading of the jury

under Rule 403. Def ense exhibi ts 8 and 9 consisted of m i s co n d u ct repor ts and criminal histories for three former HPD crime lab employ ees, J

. Chu, B. Sharma, and D. Wallace, who dealt with the fore nsic

W eatherred v. State , 15 S.W .3d 540, 542 (Tex. Crim. App. 2000) (“A n appel l at e court 2 5 revie wing a trial court’s ruling on the admissibili ty of evidenc e must utiliz e an abuse- of-discr etion standard of

revie w.”) ; Prystash v. State , 3 S.W .3d 522, 527 (Tex. Crim. App. 1999). W eatherred , 15 S.W .3d at 542. 2 6 Id

. 2 7CRUZ- GARCI A–28

evidenc e offere d by the S tate when it was first collecte d an d s en t to HPD in 1992. None of these employ ees wer e called to testify in appellant’ s trial. Additionally , none of the re s u l t s o f t es ts perf ormed b y an y o l d HPD crime lab employ ees were offe red into evidenc e. That being true, the trial court deter

mined that evidenc e conce rning any misconduct on the part of Chu, S h ar m a, or Wallace was irrele vant under Rule 401 and inadmissible under Rules 402, 403, 404, 608, and 609. Evidence is rele vant only if it tends to make a fac t of conseque nce more or less probable than it would be without the evidenc e. Ba sed on the fac t that none of the old HPD crime lab employ ees 2 8

wer e ca lled to te stify for the State, coupled with the fac t tha t r esults f rom the tests ea ch per formed

wer e not offe red into evidenc e, it was not outside the zone of rea sonable disag ree ment to deter mine that evidenc e reg arding these witnesses was irrele vant. Additionally , beca use these exhibi ts did not comprise the e ntire substance of appe llant’s defe nse, we cannot sa y that their exclusion prevente d him f rom prese nting a defe nse. Finding support in the rec ord for the trial court’s ruling , we hold 2 9 that the trial cour

t did not abuse its discretion in refusing to admit defense exhibi ts 2-9. Appellant also complains in his second point of err or that the trial court err ed when it limit ed his cross-e x amination as it rela ted to the State’s DNA evidenc e and the old HPD crime l ab

. Specifica lly , appellant complains that his cross-e x amination of Serg eant Mehl, FB I Ag ent Griselle Guzman, Matt Quar

taro, and Courtney Hea d was impermissibly limit ed. Appellant’s claim in this Court is g rounded in the Confrontation Clause of the Six th Amendment. As a threshold matter, the State asser

ts that appellant has not prese rved a confr ontation objection for revie w. A party must object in the trial court, and obtain a ruling on his objection, befor e he can prese nt his complaint for

T E X
. R. E V I D . 401 (West 2014). 2 8 See infra Part I I I .A. 2 9CRUZ- GARCI A–29

appellate revie w. Be cause appellant did not object in the trial court o n C o n fr o n t ation Clause 3 0
g rounds, he ha s not preser ved that cla im for re view in this Court. At the hear ing on the motion to suppress, the trial court ruled that appell an t wo u l d n o t be permitted to g o into the Br omwich Report, the closure of the old HPD crime lab, the rea sons for that closure, or the misconduct of former HPD crime lab employ ees who wer e not g oing to testify

. The trial court expli citly stated it would allow cross-e x amination on the issues of wher e the evidenc e was stored, whether those locations wer e proper , to whom the evidenc e was taken, an d wh et h er the storag e conditions wer e prope r for reduc ing or

preve nting c ontamination. At trial, on direc t examination, Serg eant Mehl testified that law enfor ceme nt office rs did not consider the prese nce of DNA as ev i dence when they investiga ted crimes in 1992, the y ear of t he instant offe nse. I n order to corr ect the impression that DNA evidenc e and analy sis was not utiliz ed by law enfor ceme nt in 1992, the trial court permitted appellant to cross-e x amine Serg eant Mehl on the fa ct that the existence of D NA testing was known by police ag encie s in 1992 and that some of the evidenc e rele vant to the case at bar had been submitt ed to the old HP D crime lab for DNA analy sis. Prior to beg inning his cross-e x amination, defe nse counsel attempted to re- urg e his objection
to the trial court’s ruling at the hear ing on his motion to suppress limit ing his cross-e x amination on the topics of the Br omwich Report and the old HPD crime lab’s closure. Specifica lly , defe nse counsel stated: [Defense counsel]: Yes, Your Honor. You know I want to g o into all that other stuff? [The court]: I understand tha t.

T E X
. R. A P P
. P. 33.1. 3 0CRUZ- GARCI A–30

[Defense counsel]: J ust so my rec ord is clea r, I ’m not withdrawing my attempt to g o into it. I ’m just– [The court]: I ’m not allowing y ou to g o into the other stuff. Gene tic Desig n, any of the HPD crime lab studies or any thing that’s co n t ai n ed i n that study or any thing about its closure. Oka

y ? [Defense counsel]: Yes ma’am. Appellant’s objection does not in fac t make his rec ord cl ea r. “[ T ] o prese rve an issue for
ap p ea l , a timely objection must be made that states the specific g round for the objection, if t h e specific g round is not appar ent from the context.” An objection must be sufficie ntly specific to tell 3 1 the trial court what a party wants and why he fee ls himself entitled to it. The trial colloquy excerpted above does not specific ally indicate the leg al basis fo r ap p el lant’s objection to the trial court’s limit ation on his cross-e x amination. I ndeed, a ppellant spec ifies no g rounds for his objec tion. Even without a specific objection, err or may be prese rved if the g rounds for the objection are appar ent from its context, such that context can save an otherwise ambig uous objection. But even 3 2 wh en the above exchang e is rea d in the context of the motion to suppress, we cannot discern a Confrontation Clause objection. I n his written motion to suppress, appellant contests the admission of the State’s fore nsic evidenc e and rela ted testimony on Four th Amendment g rounds. Then, at the hear ing on the motion to suppress, wher e the trial court first ruled on the extent of appellant’ s crossexamination, the focus was on the rele vance of th e t estimony soug ht to be elicited, not on the Confrontation Clause. Be cause appellant did not specific ally state he was o b j ec t i n g on

Buchanan v . State , 207 S.W .3d 772, 775 (Tex. Crim. App. 2006). 3 1 Id

. See Layton v. Stat e , 280 S.W .3d 235, 240 (Tex. Crim. App. 2009) (holding that the 3 2 circ umstances surrounding the defendant’s objection and the trial court’s ruling made it clea r t hat the trial cour

t was aw are of the ba sis of the defe ndant’s objec tion).CRUZ- GARCI A–31

Confrontation Clause grounds at the hearing o n the m otion to suppress or at t rial, an objection on that basis with reg ard to Serg eant Me hl’s cross-e x amination is not preserve d for our revie w. 3 3 Second, appellant complains that his cross-e x amination of FB I Ag ent Griselle Guzman was

err oneously limit ed. During the State’s direc t examination of Ag ent Guzman, the State introduced
two bucca l swabs taken from appellant. I n response to the State’s offe r, appellant informed the court that the swabs wer e cover ed by his motion to suppress an d indicated that he had no “fur ther objections.” When g iven the opportunity to cross-e x amine Ag ent Guzman, appellant declined, and Guz m an was rele ased. Appellant lodge d no Confrontation Clause objection to the trial court’s limit ation on his cross-e x amination at trial or dur ing the hear ing on his motion to suppress, so his Confrontation Clause claim as it rela tes to the cross-e x amination of Ag ent Guzman is not prese rved for our revie w. Third, appellant complains that his cross-e x amination of Matt Quar taro was limit ed. During the S tate’s direct ex amination of Quartaro, it offe red the cigar, sexual assault ki t, and panties into evidenc e. Appe llant objected to the admission of this e vidence on chain of custody g rounds. The trial court overr

uled appellant’ s objection and at the same time reiter ated its limit ation on appellant’ s

cross-e x amination to questions about appar ent contamination or deg rada tion. At no po i n t d id appellant object on the basis of the Confrontation Clause. Appellant made no Confrontation Clause objection during the hear ing on his motion to suppress either. Ag ain, beca use appellant did n o t specific ally state an objection based on the Confrontation Clause, this claim is not prese rved for our revie w.

Cf. W

right v

. State , 28 S.W .3d 526, 536 (Tex. Crim. App. 2000) (holding tha t a hear say 3 3 objection does not pre serve a Confronta tion Cl ause obje ction for a ppellate r eview)

.CRUZ- GARCI A–32

L astly , appellant complains of the limit ations place d on his cross-e x amination of Courtney Hea d. During Hea d’s direc t e x amination the State offe red sever al items into evidenc e. Eac h time appellant said, “No additional objections,” and the State’s evidenc e was admitted. During his crossexamination, defe nse counsel approa ched the trial court and asked to expand the scope of his crossexamination to include quality -control issues at the old HPD crime lab. The follo wi n g co l l o quy ensued: [Defense counsel]: I ’m thinking, if y ou’ll allow me to g o into the quality control that exis ted on other things when t h ey we re ra n by the crime lab beca use of what–she didn’t work there , number one. And, number two, the old crime lab–I wa n t t o do that, but I don’t want to do it if y ou’ve told me not to. [The court]: Do not go into that. [Defense counsel]: Okay

. Nothing further was said on the subject, and Hea d was rele ased. Appellant lodge d no Confrontation Clause objection to the tri al co u rt ’s limit ation of his cross-e x amination of Hea d at trial or at the hear ing on his motion to suppress. Acc ording ly , h i s C o nfrontation Clause claim has not been
prese rved f

or our r eview. An appellant forf

eits his c onfrontation complaint if he fails to object at trial. I n this c ase, 3 4 appellant never objected on th e b as i s of the Confrontation Clause at trial or during his pretria l motion-to-sup press hear ing. We have previously emphasized the importance of specify ing

Briggs v. Stat e , 789 S.W .2d 918, 924 (Tex. Crim. App. 1990) (“We hold that in fai l i ng 3 4 to object at trial, appellant waived any claim t hat admis sion of t he videotape violated his rig hts to confr ontation and due proce ss/due course of law.”) ; Fuller v. State , 253 S.W .3d 220, 232 (T ex . Crim. App. 2008 ) (“[A]lm ost all err or–eve n constitutional err or–may be forf eited if the appellant failed to object. We have consistently held that the failure to object in a timely manner during trial forf eits complaints about t h e ad m i ssibili ty of evidenc e. This is true even though the err or may conce rn a c onstitut ional rig ht of the def endant.” ).CRUZ- GARCI A–33

constitutional bases for objections beca use of the stricter harm analy sis perf ormed on appea l. 3 5
Be cause appellant failed to lodge a Confrontation Clause objection in the trial court, this claim has
not been preser

ved and we do not rea ch the merits of appellant’s Confrontation Clause co mplaint

as it rela tes to the limit ations place d on his cross-e x amination. Appellant’s second point of err or is

overr uled. C. Extraneous Offense Ev idence
I n his fourth and fifth poi nts of err or, appe llant complains that the trial cour t erre d when it admitted evidenc e of an extraneous offe nse. Appellant’s objection is two-fold: the actua l extraneous offe nse appellant complains of i s a d ru g charg e, unrelated to the capital murder, but his objection
encompa sses the admission of the fac t of the drug char g e along with the admission of the fac t of his subsequent bond for feiture on that char g e whe n he fa iled to appea r at a schedule d court da te. We note at the outset that the trial court did not admit any evidenc e as to the char acte r of the underly ing offe nse for which appellant was on bond. I nstead, the trial court limit ed the evidenc e to the mere fac t tha

t a ppellant forf

eited a bond by failing to a ppear on an unrela ted criminal offe nse. There fore , our analy sis will addre ss only the admis sion of evidence of appellant’ s bond forf eiture and flig ht as shown by

appellant’ s failure to appea r in an unre lated, unname d criminal ca se. I n his fourth point of err or, appellant contends this evidenc e was in ad missibl e under Rule 404(b). I n his fifth point of err or, appellant contends the evidenc e was inadmissible under Rule 403. Be cause our analy sis is the same for both complaints, we will addre ss the m tog ether

. We r eview 3 6

Clark v. State , 365 S.W .3d 333, 340 (Tex. Crim. App. 2012). 3 5 Montgomery

v. State , 810 S.W .2d 372, 391 (Tex. Crim. App. 1991) (op. on re h’g ). 3 6CRUZ- GARCI A–34

a trial court’s evidentiary ruling for a n abuse of discretion. We will aff irm an evidentiary ruling 3 7 unless it lies outsi de the zone of r easona ble disag ree ment. 3 8 During trial, the State sou g ht to introduce evidenc e that appellant failed to appea r at a schedule d court date on an unrela ted drug char g e approximately one wee k afte r the instant offe nse

occur red. Throug h FB I Ag ent Eric J ohnson, the State attempted to introduce testimony that, at the time of Ang elo’s kidnapping , appellant had a pending felony drug case in Har ris County for which he had posted a bon d , t h at appellant forf eited that bond when he failed to appea r for a schedule d
court date, and that, subsequent to his failure to appea r, a fede ral war

rant for unlawful flig ht to avoid
prosec ution was issued. Appellant objected to the admission of Ag ent J ohnson’s testimony on Rule 404(b), Rule 403, and hear say gro u n d s . Ultimately , the trial court allowed Ag ent J ohnson to testify to the fac t that appellant had a pending criminal case in Har ris County at the time of the commission of the instant offe nse and that, approximately o n e week afte r the instant offe nse took place , appellant failed to show up at a schedule d appea ranc e for his pending case . Ag ent J ohnson als o t es t i fi ed that, at t he time of his flig ht, appellant was a suspect in Ang elo’s kidnappi n g . The trial court specific ally excluded ev idence about the fede ral flig ht war rant and about the ty

pe of case for which appellant failed to a ppear . Additionally , the court admitted a docket sheet that indicated appellant had been prese nt at all of his pr evious court a ppear ance s in his pending dr ug case –approximately

twelve se ttings over

Id; Prible v . State , 175 S.W .3d 724, 731 (Tex. Crim. App. 2005). 3 7 Montgomery , 810 S.W .2d at 391; Cantrell v. State , 731 S.W .2d 84, 90 (Tex. Crim. App. 3 8 1987) (“[T]he trial j u dg e’s discretion in admitting an extraneous offe nse is to be g iven due defe renc e.”)

.CRUZ- GARCI A–35

fiftee n months. The trial court found consciousness of g uilt as indicated by flig ht to be a permissible

use for the extraneous offe nse evidenc e under Rule 404(b) and found that the probative value of the evidenc e wa s not outweig hed by its prejudicial ef

fec t. “Extraneous-of

fense evidenc e is admis s ib le u nder both Rules 403 and 404(b) if that evidenc e satisfi es a t wo -pronge d test: (1) whether the extraneous-off ense evidenc e is rele vant to a fac t of
conseque nce in the case aside from its tendenc y to show action in confor mity with char acte r; and (2) whether the probative value of the evidenc e is not substantially outweig hed by unfair prejudice .” 3 9 The first prong of this test require s us to deter mine (a) whether the evidenc e is rele vant at all and (b) whether the evidenc e is rele vant to something othe r than a showing of cha

rac ter c onformity

. Rule 401 g overns rele vance and provides, “‘Rele vant evidenc e’ means evidenc e having any tendenc y to make the exis tence of any fac t that is of conseque nce to the deter mination of the action

more probable or less probable than it would be without the evidenc e.” Gene ra l l y , evidenc e of 4 0 flig ht is a rele vant circ umstance f rom which a jury can infer g uilt. This is true specific ally in the 4 1 context of bail-jumping. I ndeed, flig ht is admissible “ even though it may show the commission 4 2

Page v. State , 213 S.W .3d 332, 336 (Tex. Crim

. Ap p . 2 0 0 6 ); Johnston v. State , 145 3 9 S.W .3d 215, 220 (Tex. Crim. App. 2004).

T E X
. R. E V I D . 401 (West 2014). 4 0 Bigby v. State , 892 S.W .2 d 8 64, 883 (Tex. Crim. App. 1994) (“Evide nce of flig ht or 4 1 esca pe is a dmissibl e as a circ umstance from which an infere nce of g uilt may be draw n.”); Burks v. State , 876 S.W .2d 877, 903 (Tex. Crim. App. 1994) (same) ; Foster v. State , 779 S.W .2d 845, 859 (Tex. Crim. App. 1989) (same)

.

Cantrell , 731 S.W .2d at 93 (“The forf eiture of an acc used’s bail bond may be prove d as 4 2 tending to show flig ht....And flig ht, in the context of bail-jumping, may be construed as evidenc e of gu i lt.”). See W

ocke nfuss v. State , 521 S.W .2d 630, 632 (Tex. Crim. App. 1975) (holdi n g t h at evidenc e of defe ndant’s bond forf eiture was admissible absent the defe ndant showing the bond (continued...)CRUZ- GARCI A–36

of other crimes.” But befor e evidenc e of flig ht can be admitted, it must appea r the flig ht has some 4 3 leg al re levanc e to the ca se being prosec uted. 4 4
Her e, t h e t i m i n g o f appellant’ s flig ht from prosec ution on his drug case is a rele vant circ umstance of g uilt in the instant case . Appellant fled the jurisdiction only one wee k afte r Ang elo

was kidnapped and killed. The docket sheet for appellant’ s d ru g offe nse indicated appellant had

never missed a court date until the court date immediately following the date of the instant offe nse and that appellant forf

eited h i s b o n d wh en he fled. The trial court did not abuse its discretion in finding that appellant’ s flight one wee k afte r Ang elo was kidna pped and killed wa s releva nt. After rele vance has bee n established, the bur den shifts to appellant to make an af firmative showing that the fli g ht is not connec ted wit h the offe nse on trial and is instead c onnecte d to some other tra nsaction. 4 5 Appellant arg ues that any evidenc e of flig ht from the drug prosec ution was unrela ted to the capital murder prosec ution a nd showed only consciousness of g uilt as to the drug char g e. Fur ther, appellant arg ues that, beca use he was not y et char g ed in the instant case at the time he forf eited his bond on the drug case , such forf eiture cannot be construed as an act desig ned to a void pr osecution

(...continued) forf eiture w as re lated to another offe nse). Cantrell , 731 S.W .2d at 92; McW herter v. State , 607 S.W .2d 531, 534-35 (Tex

. C ri m . 4 3 App. 1980) (“The fac t that circ umstances of flig ht in ci d entally show the commission of another crime doe s not render

the evidenc e inadmissible.”). Hodge v. State , 506 S.W .2d 870, 873 (Tex. Crim. App. 1974) (op. on reh’ g ). See 4 4 W ocke nfuss , 521 S.W .2d at 632. Burks , 876 S.W .2d at 904; Hodge , 506 S.W .2d at 873. See W ocke nfuss , 521 S.W .2d at 4 5 632.CRUZ- GARCI A–37

in the instant case. We disag ree . Whil e appellant’ s failure to appea r for his drug case could have been motivated by his desire
to avoid prosec ution in that case alone, there is evidenc e to support the trial court’s conclusion that appellant’ s failure to appea r rela ted to the instant capital murder prosec ution. The timing of appellant’ s absenc e, combined with his status as a suspect in Ang elo’s kidnapping and the fac t that he had been prese nt at all prior court dates, supports the finding that appellant’ s failure was, at least in part, motivated by

a desire to avoid arr est and prose cution for Ang elo’s murde r. 4 6 Evidence of appellant’ s absenc e fr o m court one wee k afte r the commission of the capital murder meets the low threshold for rele van ce imposed by Rule 401, but this is not the end of our inquiry , beca

use Rule 401 is limi ted by Rule 404(b). Rule 404(b) provides: Evidence of other crimes, wrong s or acts is not admissible to prove the char acte r of a person in order to show action in confor mity there with. I t may , howeve r, be admi ssible for other purposes, such as proof of motive, opportunity , intent, prepa ration, plan, knowle dg e, identity , or abse nce of mistake or acc ident, provided that upon timely reque st by the acc used in a criminal case , rea sonable notice is g iven in ad v an ce o f trial of intent to introduce in the State’s case -in-chie f such evidenc e other than tha t arising in the same tra nsaction. 4 7 Ther ef o re , R u le 404(b) tempers what would otherwise be admissible under Rule 401 by distinguishing betwee n acc eptable and unacc eptable uses of rele vant extraneous-off ense evidenc e. Rule 404(b) prohibits the us e of extraneous-off ense evidence to s h o w ch aracter confor mity

. And while the latter half of Rule 404(b) provides a list of potential permissible uses of extraneous-off ense evidenc e, it does not contain an exhaustive list of the “other purposes” for which extraneous-off ense

I n Burks , we stated, “Since appellant was alre ady identified as a suspect in the ca se, his 4 6 flig ht when confronted by the pol ice was rele vant t o the i ssue of whether or not he committed the instant crime.” Burks , 876 S.W .2d at 903-04. T E X
. R. E V I D . 404(b) ( West 2014). 4 7CRUZ- GARCI A–38

evidenc e ca

n be used. 4 8
I t follows, then, that once extraneous-off ense evidenc e mee t s Ru l e 4 0 1’s test, it will be admitted if it serve s any rele van t purpose–whe ther listed in 404(b) or not–other than showing char acte r conf

ormity

. “[C] riminal acts that are d es i gned to reduc e the likelihood of prosec ution, conviction, or incar cer ation for the offe nse on trial are admissible under Rule 404(b) as showing ‘consc iousness of g uilt.’” Her e, appellant failed to appea r in court on an unrela ted drug char g e. Fa ilure to appea r 4 9

at a schedule d court date is a criminal act. Ba sed on the timing of appellant’ s bond forf eiture, there 5 0 is e vidence to suppor

t the trial court’ s conclusion that such forf eiture was motivated by a desire to

re d u ce the likelihood of arr est and prosec ution for Ang elo’s murder, making evidenc e of t h e forf eiture a dmissibl e under

Rule 404(b). Fur thermore , evidenc e of appellant’ s flig ht was not used to show confor mity with a g ener al criminal dispositi on. I n s t ea d , t h e evidenc e of appellant’ s failure to appea r was used to show a disruption in appellant’ s normal course of attending his schedule d court dates afte r the commission of the offe nse in this ca s e. The trial court did not abuse its discretion in finding that evidenc e of appellant’ s bond forfe iture wa s admissible under Rule 404(b)

. Next, we deter

mine whether the extraneous-off ense evidenc e was barr ed by Rule 403. Rule

Banda v. State , 768 S.W .2d 294, 296 (Tex. Crim. App. 1989) (“Whether or not it neatly 4 8 fits one of [t he 404(b)] cate g ories, an extraneous transac tion will be admissible so long as it logic ally tends to make the exis tence of some fac t o f consequence more or less probable .”); Johnston , 145 S.W .3d at 220 (“ This list is ill ustrative, not exhaustive.”).

Ransom v. State , 920 S.W .2d 288, 299 (Tex. Crim. App. 1996) (op. on re h’g ). 4 9 T E X
. P E N A L C O D E § 38.10(a)

. 5 0CRUZ- GARCI A–39

403 provides, “A lthough r eleva nt, evidence may be excluded if its proba tive value is substantially outweig hed by the dang er of unfair prejudice , confusion of the issues, or misleading the jury , or by considerations of undue delay , or nee dless prese ntation of cumulative e vidence .” 5 1 Rule 403’s prohibition ag ainst the ad m i s s i o n of evidenc e whose probative value is substantially outweig hed by the dang er of unfair prejudice is not int ended to keep out a ll e vidence that tends to prejudice the opponent’s case . I nstead, it aims to preve n t o n ly the admission of 5 2 evidenc e that promotes a

jury decision on an imprope r basis. 5 3
Her e, the court deter

mined that the probative value of the extraneous-off ense evidenc e was that it made a showing of flig ht a nd potentially provided evidenc e of g uilt. Additionally , the court took steps to ameliora te t he prejudicial eff ect of the ex trane ous-offe nse evidence by reda cting the name of the offense. We cannot say that the prejudicial eff ect of the extraneous-of

fense evidenc e substantially outweig hed its probative value. The trial court did not err in finding that this evidenc e

was a dmissibl e under

Rule 403. The trial court’s decision to admit Ag ent J ohnson’s testimony conce rning appellant’ s bond forf eiture does not lie outside the zone of rea sonable disag ree ment as to its admissibili ty , so the trial
court did not abuse its discretion in admitting the evidenc e under Rule 404(b) or Rul e 403. Appellant’s f

ourth and fif

th points of error

are overr uled.

T E X
. R. E V I D . 403 (West 2014). 5 1

5 2 See Davis v. State , 329 S.W .3d 798, 806 (Tex. Crim. App. 2010) (“A ll testimony and phy sical evidence a

re likely to be prejudicial to one party or t he other. I t is only when there ex ists a clea r disparity betwee n the deg ree of prejudice of the offe red evidenc e and its probative value that Rule 403 is applicable.” ) (inter nal citations omitted). Montgomery , 810 S.W .2d at 389. See D avis , 329 S.W .3d at 806. 5 3CRUZ- GARCI A–40

D. Imprope r Jury Argume nt I n points of err or eig ht a

nd nine appellant contends that the State eng ag ed in imprope r jury
arg ument during the g uilt phase of trial. I n his eig hth point of err or, appellant complains of the following statements made by the prosec utor as being outside the rec ord: [The State]: L et me g ive y o u another example, another example of half the story

. The SANE nurse. She c ame he re a nd she said: Well ther e wer e no injuries. Wow, that must mean Obel Cruz-Garc ia is g uilty –is not g uilty of capital murder acc ording to the defe nse attorney s. No. L et’s talk about what else the SANE nurse said. And I want to say she said 95%–it is a ver y high pe rce ntag e–of r ape case s that she does SANE nurse e x aminations on– [Defense counsel]: Objection. Outside the re cord. [The State] : –do not have any injuries. The trial court overr

uled appellant’ s objection and stated, “B ut I will remind the jury that y ou rec all

t h e t es t imony from the witness stand and that is–that will be y our g uide in y our delibera tions. Arg uments of counse l is not evidence.” The S tate concede s that th e p ro s ec u t or m ischara cter ized the S ANE nurse’s t estimony

. At trial Gl oria Kolog inczok, the SANE nurse who examined Diana, testified that she does not see phy sical i njuries resulting from sexual assaults in mos t of the sexual assault exams she perfor ms. Kolog inczok did not further quantify how o ft en she sees phy sical injuries during sexual assault exams, as the prosec utor did during her c losing a rg ument. J u ry arg ument g ener ally serve s at least four permissible purposes: summation of th e evidenc e, rea sonable deductions from the evidenc e, answe rs to arg uments of opposing counsel, and pleas for law e nforc ement. I t is error to inser t fac ts into closing arg

ument that are not supported 5 4

Davis , 329 S.W .3d at 821. 5 4CRUZ- GARCI A–41

b y t h e re cord. Be cause her statement was not supported by the rec ord, the prosec utor’s 5 5 quantifica tion of Kolog inczok’s testimony was improper, and the trial court err ed when it overr uled appellant’ s objection. “Howe ver, ever

y inappropria te rema

rk made during closing arg uments does not require the

reve rsal of a conviction.” A reve rsal will be require d only if the improper arg ument is harmful. 5 6 5 7
To deter mine whether the arg ument was harmful, we must eng ag e in a harm analy sis. The Rules 5 8 of Appellate Pr o ce d u re p rovide two avenue s for harm analy sis, depending upon the ty pe of err or committed: constitut ional or nonconstitutional. 5 9
We have held that jury arg ument that injects fac ts outside the rec ord i s nonconstitutional

err or. As such, it is g o v er n ed b y Texas Rule of Appellate Procedur e 44.2(b). Rule 44.2(b) 6 0 6 1 provides, “Any other err or, defe ct, irreg ularity , or vari a n c e th a t d oes not aff

ect substantial rig hts must

Guidry v. State , 9 S.W .3d 133, 154 (Tex. Crim. App. 1999) (“Er ror exis ts when fac ts not 5 5 supported by

the record are injected i n the arg ument....”); Freem an v. Stat e , 340 S.W .3d 717, 728 (Tex. Crim. App. 2011). Lagrone , 942 S.W .2d at 619 (citing Hernande z v. State , 819 S.W .2d 806, 820 (Tex. Crim. 5 6 App. 1991)). Mosley v . State , 983 S.W .2d 249, 259 (Tex. Crim. App. 1998). 5 7 Id. 5 8 Compare T E X
. R. A P P
. P. 44.2(a) and T E X
. R. A P P
. P. 44.2(b). 5 9 Martinez v. State , 17 S.W .3d 677, 692 (Tex. Crim. App. 2000) (“Comments upon matters 6 0 outside the rec ord, while outside the permissible are as of jury arg ument, do not a ppear to raise any unique conc erns that would r equire us to assign c onstitut ional status. We shall therefor e apply the standard of harm for nonconstitutional err o r. ”). See Brown v. State , 270 S.W .3d 564, 572 (Tex. Crim. App. 2008) (stating improper- arg ument err or that arose when prosec utor “delve d into matters that wer e we ll outsi de the r ecor d” wa s nonconstitutional in nature). Martinez , 17 S.W .3d at 692. 6 1CRUZ- GARCI A–42

be dis reg arde d.” There fore , unless the State’s improper jury arg ument err or af

fec ted appe llant’s 6 2 substantial rig hts, it wil l not call for a reve rsal of a

ppellant’s convic tion. 6 3
To deter mine whether the err or aff ecte d a substantial r ight, and was there fore harmful, this Court looks at three fac tors: (1) the sever ity of the misconduct, (2) any cura tive measure s employ ed
to corre ct the misconduct, a nd (3) the c erta inty

of convic tion without t he misconduct. 6 4 Fi rst , we examine the sever ity of the misconduct. The err or arose during the State’s fi n al closing arg ument in the g uilt phase of trial. After objection, the prosec utor immediately moved on from the topic of the SANE nurse. The err or did not rela te direc tly to the act of kidnapping or killing Ang elo, but instead rela ted only to the sexual assault alleg ed to have taken place prior to the kidnapping

. The S ANE nurse did indeed testify that, in most of the sex ual assault exams that she perf orms, sh e does not see injuries, so the prosecutor erred only in assig ning a num eric al value to the nurse’ s testimony

. Additionally , viewing the misconduct in light of the entire rec ord of jur y arg uments, the
statement was not extreme or manifestly improper. The statement was made i n t h e middle of a closing arg ument that spans twenty -one pa g es of the rec ord, and the prosec utor neve r empha siz ed the statement or returne d to the topic of the sexual a ssault a fter appellant’ s objection. We f ind the

sever ity of the misconduct to be slig ht. W ith respe ct to cura tive measure s, the trial court immediately reminded the jury that
statements made in closing arg uments are not evidenc e, decr easing the likelihood that jurors would

T E X
. R. A P P
. P. 44.2(b). 6 2 Id .; Martinez , 17 S.W .3d at 692. 6 3 Mosley , 983 S.W .2d at 259; Martinez , 17 S.W .3d at 692-93. 6 4CRUZ- GARCI A–43

attach signific ance to the improper statement. Although this does not amount to a cura tive instruction, it weighs in fa vor of the e rror

being harmless. 6 5
L astly , appellant’ s conviction was rela tively cer tain, even without the m isconduct. As discussed extensively

above, the re w as direc t and circ umstantial evidence connec ting a ppellant to Ang elo’s kidnapping and murder. Ba sed upon the evidenc e befor e the jury , it is highly unlikely that the prosec utor’s misstatement impacted appellant’ s conviction. Appellant’s eig hth point of err or is

overr uled.
I n his ninth po i n t o f error, appellant complains that the prosec utor injected her persona l beliefs into her

closing arg ument. Appellant conte nds that the following arg ument was improper : [The State]: We ask y ou to find him g uilty as a p ar ty beca use what we believed happene d is the defe ndant direc ted and e ncoura g ed– [Defense counsel]: Objection to putting beliefs into arg ument, Your Hono r. I t’s improper. [The court]: That will be overrule d.
I t is improper for a prosec utor to inject her opinion into statements made befor e the jury

. Howeve r, 6 6 it is proper for

a prose cutor to ar g ue her opinion where that opinion is based upon evidenc e in the

rec ord. 6 7
As stated above, permissible jury arg ument g ener ally falls into one o f fo u r ca t eg ories: summation of the evidenc e, rea sonable deductions from the evidenc e, answe rs to arg uments of

Freem an , 340 S.W .3d at 728-29. 6 5 Johnson v. State , 698 S.W .2d 154, 167 6 6 (Tex. Crim. App. 1985). W olfe v. State , 917 S.W .2d 270, 281 (Tex. Crim. App. 1996) (quoting McKay v. State , 707 6 7 S.W .2d 23, 37 (Tex. Crim. App. 1985)).CRUZ- GARCI A–44

opposing c ounsel, and plea s for lawenfor ceme nt. 6 8
We conclude that the prosec ut o r’ s d i s cu ssion of what the State believed happene d was a summation of the evidenc e prese nted at trial. Rudy testified that appellant kidnapped Ang elo, drove him to Ba

y town, and then order ed Roge r to kill to him. After Ang elo’s death, appellant order ed Rudy and Roge r to submerg e Ang elo’s body

. Even if the prosec utor’s statement injected her opinion into her ar g ument, her opinion wa s sufficiently supported by

the evidenc e pre sented a t trial. Even assuming arguendo that the prosec utor’s arg u me n t w a s improper, it was harmless. J ury arg ument err or is analy

zed for harm under Texas Rule of Appellate Procedur e 44.2(b). Under the 6 9 44.2(b) standard, err or will not require reve rsal unless it aff ects a substantial rig ht. To deter mine 7 0 whether err or aff

ects a substantial rig ht in the i m p ro p er -j ury -ar g ument rea lm, we weig h the three fac tors discussed above: the sever ity of the misconduct, any cu ra t ive measure s taken, and the likelihood of conviction absent the misconduc t. 7 1
Her e, any possible misconduct was not sever e. After rea ding the prosec utor’s statement in the context of the entire rec ord of jury ar gu m en t s , we conclude the prosec utor was mere ly summarizing the State’s t h eo ry of the case and not sug g esting to the jury that she had outside knowledg e about c ontested fa cts. Fur ther, while the trial court did not take any steps to cure the erro r, the prosec utor immediately reph ra sed her statement and said, “What the evidenc e supports is that the defe ndant

Davis , 329 S.W .3d at 821. 6 8 Martinez , 17 S.W .3d at 692. 6 9 T E X
. R. A P P
. P. 44.2(b). 7 0 Mosley , 983 S.W .2d at 259. 7 1CRUZ- GARCI A–45

direc ted and encour ag ed R og er to kill the l i t tle boy .” This quasi-cur ative measure works in favor of the e rror

being harmless. 7 2 Additionally , appellant’ s co n v i ction was rela tively cer tain, even absent the prosec utor’s statement. Appe llant’s ninth point of error is ove rruled. III. Punishme nt A. Mitigating Evidence in Punishment
I n his six th and s eventh points of er ror, a ppellant complains that the trial c ourt err ed whe n it sustained the State’s hear say objections to two items of evidenc e he offe red during the punishment phase of trial. The first piece of evidenc e, complained of in point of err or six , was a series of Bible study cer tificates that appellant ear ned while incar cer ated in Puerto Rico. The secon d p i ece of evidenc e, complained of in point of err or seven, was testimony that appellant worke d as an informant for sever al Americ an fede ral ag encie s. Appellant now complains that the trial court’s exclusion of these piece s of evidenc e violated his rig ht to put forth a complete defe nse. Assuming without deciding that appellant preser ved thi s complaint, we ove rrule a ppellant’s si x th and seventh points of er ror. We revie w a trial court’s eviden t i ar y ruling for an abuse of discretion. So, if the trial 7 3
court’s deter

mination falls within the zone of rea s o n ab l e d i sag ree ment, we will not disturb it on

Hawkins v. State , 135 S.W .3d 72, 85 (Tex. Crim. App. 2004) (“A lthough a prosec utor’s 7 2 self-c orre ctive action might not car ry the s ame weig ht as a trial court’s i n s t ru cti on to disreg ard, it is never theless a rele v ant consideration in deter mining harm and can, in the appropr iate circ umstances, rende r an improper comment harmless.” ). See Canales v. State , 98 S.W .3d 690, 695- 96 (Tex. Crim. App. 2003) (holding that a prosec utor’s misstatement of the law was harmless when, immediately

following the misstatement, the prosec utor corr ecte d his mist ake)

. W eatherred , 15 S.W .3d at 542. 7 3CRUZ- GARCI A–46

appea l. We beg in with appellant’ s six th point of err or. Appellant attempted to offe r his own Bible

7 4 study cer tificates throug h his brother, J oel Cruz-Garc ia. The State objected that the cer tificates wer e hear say , and the tria l court sustained the objection. Appellant now complains that the trial court’s ruling excluding the c ertifica tes from e vidence violated his rig ht to put forth a complete de fense

. A criminal defe ndant’s rig ht to prese nt rele vant evidenc e is not ab s o l ute. I nstead, it is 7 5

s u b ject to rea sonable restric tions that acc ommodate other leg itimate interests in the criminal t ri al
proce ss. Where mitigating evidenc e comes in an objectionable form, neither t h e Texas nor the

7 6
Un i t ed States Constit utions require its admission. The Constit ution is implicated only if t h e 7 7 evidentiar y rule b ei n g em p l o y ed to exclude evidenc e is applied arbitra rily or unjustly and its application ef

fec tively prec ludes a de fenda

nt from putting f

orth a de fense

. 7 8
Her e, appellant’ s proff

ere d evidenc e was limit ed by the application of the hear say rule. The rule ag ainst hear say prohibits the admission of out-of-c ourt statements offe red to prove their truth. 7 9

Id

. 7 4 United States v. Scheffer , 523 U.S. 3 0 3 , 3 0 8 (1998) (“A defe ndant’s rig ht to prese nt 7 5 rele vant evidenc e is not unlimit ed, but rathe r is subject to rea sonable restric tions.”); Lewis v. State , 815 S.W .2d 5 6 0 , 5 68 (Tex. Crim. App. 1991) (“A lthough the Eig hth Amendment to the United S t at es Constit ution assure s that no person shall be put to death without the opportunity to b ri n g befor e the sentenc ing authority all evidenc e of mitigating circ umstances, the Constit ution does not assure that the evidenc e be r ece ived in a for m which is otherwise obje ctionable.” ). Scheffer , 523 U.S. at 308. 7 6 Id .; See Renteria v. State , 206 S.W .3d 689, 697 (Tex. Crim. App. 2006) (conc luding that 7 7 admission of constitutionally rele vant evidenc e is not require d if it is otherwise objectionable under state law)

.

Potier v. State , 68 S.W .3d 657, 662 (Tex. Crim. App. 2002). 7 8 T E X
. R. E V I D
. 801(d) ( West 2014). 7 9CRUZ- GARCI A–47

A p p e ll a n t’ s c e r ti f ic a te s w e r e in d e e d h ear say beca use they eac h contained out-of-c ourt statements tha t appellant was offe ring for their truth. As hear say , the evidenc e was inadmissible unless it fit within

an exception or exclusion. App el l an t , as the proponent of the evidenc e, bore the burden of 8 0 articula ting an exception or exclusion under which the Bible study cer tificates would b e p ro perly admissible. Appellant off ere d no such exceptions. 8 1 Appellant now asser

ts t h at t he Bible study cer tificates were admissible under Texas Rules of Evidence 803(11), 803(13), 803(19), and 804(3). Wit hout deciding whether appellant has forf eited his err or by failing to alleg e his hear say exceptions in the trial court, we hold that none have merit. Fi rst, appellant’ s cer tificates do not qualify as Records of a Religious Org anization un d er Rule 803(11) beca

use they are not statements of birth, marria g e, divorce , death, leg itimacy , ance stry , rela tions h i p , o r o t h er fac t of persona l history

. Second, appellant’ s cer tificates do not qualify as Family Records under Rule 803(13) beca use they are not statements of fac t conce rning persona l or family history , nor are they contained in any of the documents listed i n R u l e 803(13). Third, appellant’ s cer

tificates do not mee t the require ments in Rule 803(19) bec ause the y do not conce rn

a person’ s birth, adoption, marria g e, divorce , death, leg itimacy , rela tionship, ance stry , or other fac t of persona l or family history

. L astly , appellant’ s cer tificates do not qualify under Rul e 8 0 4 (b )(3) beca use appellant has failed to establish the unavailability of the cer tificates’ decla

rant. Fur ther, the

cer tificates do not contain any statements about the decla rant ’s own birth, adoption, marria g e,

Valle v. State , 109 S.W .3d 500, 505 (Tex. Crim. App. 2003). 8 0 Martinez v. State , 178 S.W .3d 806, 815 (Tex. Cr i m . Ap p . 2 0 05) (“The State, as the 8 1 proponent of the evidenc e, had the burden of demonstrating the applicability of that exemption or exception.”).CRUZ- GARCI A–48

ance stry , or fac t of persona l or family history , nor do they contain stat em en t s about any of the fo re go i n g wi th respe ct to a person rela ted to or intimately associate d with the decla rant. Additionally , appellant’ s Bible study cer tificates d o not bear “per suasive assura nces of trustworthiness,” whic h weig hs in favor of the trial cour

t’s exclusion. 8 2 The rule excluding hea rs ay t h at does not fit within an exception or exclusion is not an arbitra ry rule, nor was it arbitra

rily or unjustly applied to appellant. I nstead, the rule repr esents a 8 3

r e a s o n a b le r e s tr ic ti o n o n th e a d

mi s s io n of evidenc e that acc ommodates other leg itimate criminal-tria l interests, name ly , ensuring the re liability of evide nce. 8 4 Whil e appellant contends that the h ea rs ay rule should g ive way in favor of hi s rig ht to put on a def ense, “ [t ]he fact that a

ppellant was not a

ble to pr esent his c ase in the form he de sired does
not a mount to constitutional err or when he was not preve nted from prese nting the substance of his

See Valle , 109 S.W .3d at 506 (af firming the exclusion of hear say evidenc e beca use it did 8 2 not meet an exception to the hear say rule and did not bear persua sive assura nces of trustworthiness). Potier , 68 S.W .3d at 662 (“The se case s show that the exclusion of rele vant , materia l, 8 3 important evidenc e by the application of particula r rules that are arbitra

ry or disproportionate to their purposes may offe nd the Constit ution. They also show that courts are fre e to apply evidentiar y rules that are not arbitrar

y and unjustified.”)

. Id

. at 666 (holding that the hearsay rule, when proper ly applied, is a valid limit at i o n on 8 4 a defe ndant’s evidenc e). See Renteria , 206 S.W .3d at 697. (“[S] tate and fede ral rulemake rs have b r oad latitude under the Constit ution to establish rules excluding evidenc e from criminal trials. Suc h rules do not abridg e an acc used’s rig ht to present a defe nse so long as they are not ‘ar bitrary ’ or ‘dispropo rtionate to the purposes they are desig ned to serve .’ Moreove r, we have found the exclusion of evidenc e to be unconstitutionally arbitra ry only wher e it has infring ed upon a weig hty interest of the acc used.”)

. See Valle , 109 S.W .3d at 506 (holding that defe ndant’s hear say evidenc e that was not within an exception and that did not bear “per suasive assura nces of trustworthiness ” was proper ly excluded).CRUZ- GARCI A–49

defe nse to the jury .” Be cause appellant was not preve nt ed fr o m p re senting the substance of his 8 5 defe nse, the trial court did not abuse its discretion when it sustained the State’s hear say objection and excluded appellant’ s Bible study cer tificates. Appe llant’s six th point of error is overrule d. Turning now to appellant’ s seventh point of err or, appellant once ag ain contends that the trial
court violated his rig ht to put forth a meaning ful defe ns e when it sustained the State’s hear say

o b j ection to testimony about whether appellant worke d as an informant for various fede ral l aw enfor ceme nt ag encie s in the United States. But ag ain, appellant’ s rig ht to the admission of evidenc e in his defe nse is not absolute. I f defe nse evidenc e is prese nted in a form that violates the rules of 8 6 evidenc e, and those rules ar e not being arbitra rily applied, it is not properly admissible. 8 7 The testimony appellant attempted to elicit throug h Puerto Rican police office r, Ag ent J uan DeJ es u s R o d ri g uez, about appellant’ s work as a fede ral informant was hear say beca use Ag ent Rodrigue z had no persona l knowledg e of appellant’ s work and had lear ned about this alleg ed work only throug h conver sations w ith other ag ents. Be cause the testimony about what other ag ents told Ag ent Rodrigue z was an out-of-c ourt statement being offe red for its t ru t h , the State’s hear say objection was pr oper. 8 8
I n response to the State’s objection, appellant offe red no applicable exceptions or exclusions

Valle , 109 S.W .3d at 507; See Potier , 68 S.W .3d at 665 (“We hold tha t the exclusion of 8 5 a defe ndant’s evidenc e will be constitutional err or only if the evidenc e forms such a vital portion of the ca se that exclusion effe ctively prec ludes the def

endant f rom prese nting a

defe nse.”)

. Scheffer , 523 U.S. at 308; Lewis , 815 S.W .2d at 568. 8 6 See Potier , 68 S.W .3d at 66 6 (h o l d i n g t h at the hear say rule is a valid limit ation on a 8 7 defe ndant’s evide nce w hen it is corre ctly applied). T E X
. R. E V I D . 801 (West 2014). 8 8CRUZ- GARCI A–50

to the hear say rule. Appellant now asser ts that Ag ent Rodrigue z’s testimony was admissible under Texas Rule of Evidence 803(21). Ag ain, without d e c id ing whether appellant has forf eited this claim,

we hold that it lacks merit. Ag ent Rodrigue z’s testimony did not conce rn appellant’ s ch a racter
among appellant’ s associate s or within his community , so it does not meet the require ments of Rule 803(21). The exclusion of Ag ent Rodrigue z’s testimony as hear say d i d n ot eff ectively prec lude appellant from putt i n g o n a d efe nse, and the application of the hear say rule was not arbitra ry or unjust. Consequently , the trial court did not abuse its disc re t i on when it sustained the State’s objection and e x cluded a

ppellant’s evide nce. A

ppellant’s seve nth point of error is overrule d. B. Imprope r Jury Argume nt I n h i s t en t h and eleve nth points of err or, appellant complains of improper jury arg ument during the punishment phase of trial. I n point of err or ten, appellant complains that the t rial cour t

err ed when it overr

uled his objection to part of the State’s arg ument, which he contends went outside the re cord. D uring her punishment summation, the prosec utor stated: Who is orche strating this deal? Who is orche strating all the cr i m i n al conduct that he’s involved in f

rom all the evidenc e that y ou’ve hear d? Him. H e is the boss. A nd that’s why when he told Roge r to stab that littl e boy , he did. And Roge r will pay the price for that when his turn comes, but don’t take the blame off of the man who told him to do it. Don’t excuse h i m . Be ca u s e I will tell y ou rig ht now, if it wer e up to Roge r alone , Ang elo would still be alive. Appellant objected that the last sentenc e was outside the rec ord. The trial court overr uled the objection and instructed t h e jury that the arg uments of counsel are not evidenc e. Appellant now complains of this ruling on appea l. I n response , the State contends appellant forf eited his err or with
respe ct to this arg ument, or alterna tively , that the s t at ement was a proper deduction from theCRUZ- GARCI A–51

evidenc e. Assuming without deciding that err or was prese rved, we agr ee with the S tate’s contention that the statement was a proper deduction from the evidenc e. Throug hout trial, the jury hear d ample evidenc e of appellant’ s role as the ring leade r of the violence that unfolded on the night Ang elo died. Rudy testified that appellant was in char g e and order ed Ang elo’s death beca use Ang elo saw appellant sexually assaulting Diana. The prosec utor’s statement that, if it wer e up to Roge r, Ang elo would still be aliv e, wa s m erely a restate ment of what was alre ady befor e the jury as the State’s theory of its case and was a proper deduction from the evidenc e prese nted at trial. Appellant’s tenth point of err or is overr

uled.
I n his eleve nth point of err or, appellant complains that the trial court err ed when it denied his motion for a mistrial afte r i mproper jury arg ument from the State during closing arg uments in the punishment phase of trial. Appellant complains that the State went o u tside the rec ord when it
arg ued, “What else? They want to minimi ze the escape attempt. J ustin talked t o y o u about t hat. What do y ou think happened a fter he attempted to esca pe? You think he might have wound up in administrative seg reg ation? I bet he did.” Appellant objected, and the trial court sustained his objection. The trial court instructed the jury to “disreg ard the last comment by [t he prosec utor] and not consider it for any rea son.” Appellant then moved f

or a mist rial, which was denied. Appellant now complains of this denial. We re v i ew a t ri al court’s ref usal to g rant a mistrial for an abuse of discretion. Unless the trial 8 9

Hawkins , 135 S.W .3d at 77. 8 9CRUZ- GARCI A–52

court’s ruling was outside the zone of rea sonable disag ree ment, it will not be disturbed on appea l. 9 0
A mistrial will be require d only in extreme circ umstances wher e the improper conduct is so harmful that continuing with the trial would be wastef ul and futile. We apply the same three -fa ctor

9 1

test articula ted i n Mosley and ex tended i n Ma r tinez to evalua te “whether the trial court abused 9 2 9 3 its discretion in deny ing a mistrial for improper a

rg ument.” 9 4 The first fac tor examines the sever ity of the misconduct. When deter mining the sever ity of the misconduct, we look at the mag nitude of the prejudicia l eff ect and whether the misconduct was
extreme or manifestly improper. The misconduct here was sl i gh t , an d its prejudicia l eff ect was 9 5 minimal. The S tate’s refe renc e to admini s t rative seg reg ation was brief and was perhaps the most benig n evidenc e off

ere d ag ainst appellant during the punishment phase. Second, we examine cura

tive measure s taken by the trial court. Her e, the trial court sustained appellant’ s objection and instructed the jury to disreg ard the prosec utor’s statement. Ordinar ily , an instruction to disreg ard will sufficie ntly relieve harm, except with respe ct to the most inflammatory

Archie v . State , 221 S.W .3d 695, 699 (Tex. Crim. App. 2007). 9 0 Hawkins , 135 S.W .3d at 77. 9 1 Mosley , 9 8 3 S

. W

. 2 d at 259 (establishing the three -fa ctor test for deter mining when 9 2 improper jury

arg ument during the g uilt phase is harmful). Martinez , 17 S.W .3d at 693 (extending the Mosley three -fa ctor test to apply to improper 9 3 jury arg ument during the punishment phase of trial). Hawkins , 135 S.W .3d at 77. 9 4 Mosley , 983 S.W .2d at 259; Brown , 270 S.W .3d at 573. 9 5CRUZ- GARCI A–53

statements

. T h e statement at issue was not so inflammatory , and the trial court’s actions

9 6 9 7 “suff iciently ameliora ted any potential harm.” 9 8
L astly , we examine the cer tainty of the punishment assessed, absent the improper arg ument. During the punishment phase of trial, the jury hear d evidenc e that appellant murdere d another individual for flirting with appellant’ s g irlfriend, and that appellant kidnapped, tortured, and held for

ransom two teena g ers in Puerto Rico. Given the sever ity of the punishment evidenc e, we cannot say that, absent the St at e’ s ref ere nce to administrative seg reg ation, appellant would have rec eived a differ ent sentenc e. The trial court did not abuse its discretion when it denied appellant’ s motion for a mistrial. Appellant’s e leventh point of er ror is over

ruled. C. Motion for N

ew Trial
I n his twelfth and final point of err or, appellant asser ts that the trial court err ed when it denied his motion for a new trial based on alleg ed jury misconduct during the punishment phase. Appellant also contends that the trial court err ed when it r efuse d his reque st for an evidentiar y hear ing on his motion. Although the trial c ourt hea rd ar g ument on appellant’ s motion for new trial, testimony at the hear ing was restric ted to aff idavits. We revie w a trial court’s decision to hold a live hear ing on

a motion for new trial, as well as the ruling on such motion, for an abuse of discretion. A trial court 9 9

Long v. State , 823 S.W .2d 259, 269 (Tex. Crim. App. 1991). 9 6 See Martin ez , 1 7 S.W .3d at 691 (holding that the prosec utor’s statement about fac ts 9 7 outside the rec ord wa s not so ex treme tha t it could not be cure d by an instruction to disreg ard)

. A r chie , 221 S.W .3d at 700 (holding that sustaining an objection to the prosec utor’s 9 8 comment on the defe ndant’s failure to testify combined with an instruction to disreg ard was sufficie ntly

ameliora tive of any

potential harm such tha t the err or did not require reve rsal). Ho l d en v. State , 201 S.W .3d 761, 763 (Tex. Crim. App. 2006); State v. Zalman , 40 0 9 9 (continued...)CRUZ- GARCI A–54

abuses its discretion in deny ing a motion for new trial only if no rea sonable view of the rec ord could support the trial cour

t’s ruling

. 1 0 0 The jury beg an it s punishme n t d el ibera tions on the afternoon of Thursday , J uly 18, 2013. The following morning , Fr iday , J uly 19, the jurors resumed their punishment delibera tions. At some point during their discussion, juror Casey Guillotte asked her fellow jurors how they wer e g oing to emotionally cope with their verdic t. Ms. Guillotte testified by way of aff idavit that her inquiry came afte r the jury had alre ady ag ree d on eac h of the specia l issues. The other aff idavits rec eived by the trial court a

re a mbiguous a s to when her

question was posed.
I n respon s e to this inquiry , sever al jurors offe red words of encour ag ement. Then, jury fore man Mat t h ew C l inge r pulled his Bible from his overnig ht bag and direc ted Ms. Guillotte to

sever al passag es. Mr. Clinge r told Ms. Guillot te that he f elt comforte d by

passag es in the book of Romans. Both Mr. Clinger and Ms. Guillotte testified throug h their aff idavits that Mr. Clinger never

rea d aloud from his Bi b l e. J uror Ang ela Bow man’s aff idavit indicates that Mr. Clinger “re ad scripture s from the B ible,” but s he does not indicate those scripture s wer e read aloud to the entire jury

. At approximately 3:20 p.m., Ms. Bow man sent a note to the judge asking to speak with her privately

. After discussing the reque st with the attorney s for the State and defe nse, the judge spoke with Ms. Bow man on the rec ord in her chambe rs. During this conver sation, Ms. Bow man expressed her desire to be replace d with an alternate juror beca use she could not come to an ag ree ment with

(...continued) S.W .3d 590, 593 (Tex. Crim. App. 2013).

Holden , 201 S.W .3d at 763. 1 0 0CRUZ- GARCI A–55

the rema ining eleve n jurors. Ms. Bow man also expressed hesitancy at the idea of having to be sequester ed over the wee kend. The trial judge told Ms. Bow man that she was unable to repla ce her with an alterna te simply beca use she was disag ree ing with the other jurors and urg ed Ms. Bow man to continue deliber ating

. Approxim ately one hour later, the jury returne d its punishment verdic t in such a way that the trial court would sentenc e appella n t to death. The trial court polled the jury , and eac h juror confirme d that the ver dict rende red w as his or her true a nd corr ect ve rdict.
L ater that evening , Mario Madrid, one of appellant’ s trial attorney s, re ce i ved a phone call from Ms. Bow man i n which she told him that she had be en pre ssured by the other juror s to return

a verdic t t h at would result in a death sentenc e and that the verdic t actua lly rende red was not her
persona l verdic t. Mr. M adrid brought this to the attention of t he trial court by way of an aff idavit attache d to appellant’s motion for ne w trial. Appellant complains that alleg ed jury misconduct tainted the verdic t on punishment beca use of the fore man’s Bible rea ding during delibera tions. Appellant assert s t h at t h i s rea ding was an outside influence that i n ap p ropriately impacted the verdic ts of jurors Ang ela Bow man and Casey Guillotte , so aff

idavits to that eff

ect wer e admissible under Rule 606(b). At the hear ing on the motion for new trial, the State objected to the admission of any aff i davits reg arding jury delibera tions, but prepa

red aff idavits from Mr. Clinge r and Ms. Guillotte should the trial court choose to a dmit affidavits.
I nquiring into the delibera tive proce sses of a ju r y to f e rre t out misconduct has been prohibitedCRUZ- GARCI A–56

in this country , save for a few , narr ow exceptions. This state curr ent l y rec og nizes only two 1 0 1 exceptions to this g ener al rule. First, jurors m ay testify about their delibera tions to rebut an 1 0 2

acc usation that a juror was unqualified to serve, and second, jurors may testify about whether an outside influence was improper ly broug ht to bear upon the ir deliberations. 1 0 3 This Court has never deter mined whether ref

ere nce to the Bible during jury delibera tions is an outside influenc e. Toda y we hold that it is not. This C o u rt fi rst explained in McQ uarrie v. State that an outside influence is one that orig inates “from a source out s i d e o f t h e jury room and other than from the j urors themselves.” 1 0 4 But, as we later ex plained in Colyer v. State , this does not nece ssari l y en co mpass ever y influence orig inating from outside the phy sical jury delibera tion room. “The ‘outside influence ’ exception 1 0 5 to Rule 606(b) does not include inf luence s or information that ar e unre lated to trial issues.” 1 0 6
Her e, the alleg ed “outside influence ” that appellant complains of is a scripture from the Bible

F E D
. R. E V I D
. 606(b)( 2) (“A juror may testify about whether : (A) extraneous prejudicia l 1 0 1 information was improperly broug ht to the jury ’s attention; (B ) an outside influence was improperly b ro u gh t to bear on any juror; or (C) a mistake was made in enter ing the verdic t form.”) ; T E X
. R. E V I D
. 606(b)( 2) (“A juror may testify : (A) about wh et h er an outside influence was improperly broug ht to bear on a

ny juror; or (B ) to rebut a

claim that a juror

was not qualified to se rve.” ). T E X
. R. E V I D . 606(b)( 2). 1 0 2 Id

. 1 0 3 McQ uarrie v. State , 380 S.W .3d 145, 154 (Tex. Crim. App. 2012). 1 0 4 Colyer v. State , 428 S.W .3d 117, 127 (Tex. Crim. App. 2014) (holding that a telephone 1 0 5 call from a juror’s phy sician that the juror’s daug hter was sick did not qualify as an “outside influence ” for the purposes of Rule 606(b) despite the fac t that it did indeed orig inate from a source outside the jury

room). Id

. 1 0 6CRUZ- GARCI A–57

that the jury fore man rec ommended to another juror in an eff ort to comfort her. Whil e this scripture did literally come from outside the jury room, as neither the Bible nor any of its contents wer e ever offe re d i n t o evidenc e, we cannot say that it meets the definition of “outside influence ” this Court established in McQ uarrie

. When a jury has befor e it evidenc e that was not o ff er ed at t ri al, or subject to crossexamination, a defe ndant’s rig ht to a fair and impartial jury may be compromised. This compromise

occur s, howeve r, only

when the outside evidenc e or influence rela tes direc tly to a question of fa ct left to the jury ’s deter

mination and improperly

influence s their ver dict. Refer ring to the Bible did not direc tly rela te to a fa ct at issue bef ore the jury

in appellant’s

case , and the jury was not called upon to decide a fac t issue base d o n any thing other than the evidenc e proper ly admitted befor e it. Had the fore man mere ly rec ited a Bible verse from memory ,

we could not consider it an outside influence

. I ndeed, evidenc e of such a rec itation would not have even be en admissible per the constra ints of Rule 606(b). 1 0 7 The fac t that the fore man in this instance ref err ed a juror to the Bible verse instead of quoting it from memory is a d i stinction without a differ ence . Either way , there is no evidenc e that the biblical ref

ere nce rela ted to the fac ts at issue in thi s ca s e, and it was there fore not an outside influence under Rule 606( b) and a s interpre ted by this Court i n McQ uarrie and Colyer

. 1 0 8

Our analy sis is g uided by the 4th Circuit’s analy sis in Robinson v. Polk , wher e the court 1 0 7 was pre sented with a f

actua lly analog ous situation and determined tha t, beca use t he Bible rea ding did not g o to a fac t at issue in the case , and beca use a juror mere ly quoting the Bible from memory “assur edly would not be considere d an improper influence ,” there was no improper outside influence in violation of Rule 606(b). Robinson v. Polk , 438 F.3d 350 ( 4th Cir. 2006).

We are mindful of the fac t that the 5th Circuit has held that the Bible can be an external 1 0 8 influence on the jury , but the fac ts of that case distinguish it from this one.CRUZ- GARCI A–58

Be cause the Bible was not a n outside influence , the trial court err ed when it admitted State and defe nse aff

idavits descr ibing jury delibera tions. Additionally , beca use the aff

idavits descr ibing the inner g oings- on of the jury ’s delibera tions wer e improperly admitted, any live testimony to that eff ect would h av e been inadmissible under Rule 606(b) as well. Even had the aff idavits been admissibl e, it was withi n the t rial court’s discretion to rule on a mot ion for new t rial on aff idavits without oral testimo n y . Either way , the trial court did not abuse its discretion when it denied 1 0 9 appellant’ s reque st for an e videntiary hear ing on his motion for ne w trial. When citizens are selec ted for jury service , the l aw d o es n o t ask them to set aside ever y persona l o r m o ra l d i rective to which they adher e, nor will this Court do the same by holding that ref ere nce to such a direc tive during jury delibera tions is improper. I f trial attorney s are troubled by jurors who c all upon such beliefs during their delibera tions, this trouble is be tter addre ssed in voir dire than it is in by

way of a motion for ne w trial. The jury fore man’s ref

ere nce to his Bible in an attempt to c omfort his f ellow juror was not

an outside influence improp er l y b ro u gh t to bear on the jury ’s delibera tions, and aff idavits to that eff ect we re not proper ly admissible under Rule 606(b). Reg ardle ss, although the trial court e rre d in a dmitti ng the aff

idavits, the trial court did not abuse its discre tion when it ove rruled appellant’ s motion for new tria l. Appellant’s twelf th point of error

is overrule d. We affir m the judgme nt of the trial cour t. Deliver ed: Octobe r 28, 2015 Do Not Publish

Holden , 201 S.W .3d at 763. 1 0 9