COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

RAFAEL GUI L L EN, Appellant,

v. THE STATE OF TEXAS, Appellee

. § § § § § § No. 08-08-00241- CR

Appea l from 205th District Court of El Paso County , Texas (TC # 20070D05440)

O P I N I O N Rafae l Guillen was charg ed by indictment with capital murder and pled not g uilty

. A j ury found Appellant g uilty and the trial court assessed punishment a t life

. For the rea sons that follow,

we a ffirm. F ACTUAL BACK GR OUND Appellant wa s orig inally

arr ested for

a murde r that took place in El Paso Count y , Texas in 2000. I t took over four y ear s for him to be extradited. He had been in custody in Mexi co since his

arr est in November

2002 under a

provisional arr est war

rant. On J anuar

y 25, 2007, J ose Chavarr ia, chi ef i nspector with the U.S. Marsha ll Service , met with Appellant at the attorney g ener al’s office hang ar at the airport in Mexi co City

. Mexi co I nterpol
contac ted Chavarr ia to let him know that Appellant was rea dy to be transporte d. Appellant underw ent a medical exam/phy sical at the prison and with I nterpol. Chavarr ia testified that he and I nspecto r J es u s Olzan picked up Appellant on the m orning of J anuar y 25, 2007 and arrived at the airport around 8 a.m. for their schedule d 10:55 a.m. flig ht. Appellant was in street clothes and was restra ined. His demea

nor was descr ibed as very quiet and cooper ative. He appea red normal and didnot look tired.

The trave l route via Continental Airlines beg an in Mexi co City , then to Houston, and finally

on to El Paso. Chavarr ia could not rec all whether Appellant slept or had any thing to eat or drink on the flig ht from Mexi co City to Houston, but r emember ed that Appellant was offe red brea kfast and drinks during the flig ht. Chavarr ia testified he ha d some “small talk” with Appe llant. When they

arr ived in Houston, they me t with deputies from the Houston office and went throug h customs during an hour- and-a -half la

y over. Chava

rria c ould not reca ll if Appellant had a ny thing to ea

t during the lay over, nor could he reme mber whether Appellant slept or had any thing to e at or drink during the flig ht from Houston to El Paso. Appellant’s demea nor was ag ain descr ibed as very quiet. Chavarr ia, Olzan, and Appellant arr ived in El Paso around 4 p.m. Once in El Paso, Appellant was turned over to El Paso Pol ice Of

fice r Andre s Sanchez and De puty U.S. Marshall Da vid Ochoa. Sanchez descr ibed Appellant’s demea nor as calm and coher ent. He did not appea r tired and did not have any visible injuries. Appellant was transporte d to police headqua rters. He was able to walk on his own, and he did not appea r sleepy or intox icated. Appellant was turned ov er t o Detec tive Tony

Ruiz

. Detec tive Ruiz and Detec tive Rodrigue z conducte d the interview with Appellant. Detec tive Ruiz explained the charg es an d the procedure s for the interview process. Appellant bega n to talk about the 2000 incident for about an hour-a nd-a- half to two hours befor e ag ree ing to g ive a formal interview. At that point, Appellant was rea d his Miranda rig hts. His first statement lasted an hour. Ruiz testified t h at h e did not coer ce Appellant or promise him any thing. Appellant appea

red coher ent and did not appea r to be tired, sleepy , or intox icated. After the first statement, Appellant

was a llowed to use the re stroom and was g iven a soft dr ink. The detec tives then stepped out of the interview room and discussed their belief thatAppellant was more involved than what he had initially confe ssed. They d ec i d ed to re- approa ch

Appellant and talked with him for another hour-a nd-a- half befor e Appellant ag ree d to g ive a second statement. During the sec ond statement, Appe llant’s demea nor wa s coher ent and c oopera tive. Appellant filed a motion to suppress. At the hear ing, he testified that prior to be ing picked up at th e at torney g ener al’s office by the marshals he was being held at the Reclusorio prison in Mexi co C ity , wher e he ha d been inc arc era ted for f our y ear s. During the 24-hour period before he

was picked up he had been drinking and party ing. He had not slept and was not awa re he was g oing
to be picked up the next day

. He had been without sleep for about three day s. Appellant said he was not offer ed any

food or dr ink. The first time he ha d something to dr ink w as at the police sta tion. Appellant then testified that his sta t em en t s wer e not true and that the office rs made him confor m his testimony to what they wanted to hear

. Be tween the first and second statements he was told to cha

ng e his story

to put him at the scene of the cr ime beca

use the “DA would probably take it smoot her on me and probably g ive me less time, stuff like that.” Appe llant just wanted to sleep and g et it over with. On c ross examination, he admitted that he did not have trouble w alking and that he was sobere d up by the marshal’ s visit. The trial court denied the motion and found that the statements were not obt ained in viol ation of Appellant’s rig hts under the Four th, Fifth, S ix th, and Four teenth Amendments of the United States Consti t u t ion, the Texas Constit ution, and Articles 38.21, 38.22 of the Te x as Code of Criminal Proce dure. At trial, the evidence showe d that Merc edes Caba llero wa s found murder ed in her El Paso home. She was stabbed about twenty times with what appea red to be a knife. At t h e t i m e o f the initial investiga tion, there wer e no leads. Ba sed on information provided by Merc edes’ brother, the investiga tors wer e led to A na Montti-Almaraz. I nitially , they wer e unable to locate her. Ba sed on

a Crime Stoppers tip, the investiga tors located a vehicle belong ing to Primavera Ba ltazar and a cellphone number possibly belong ing to Ana. The office rs wer e eventua lly told by Primavera ’s mother

that Ana was u s i n g a cell phone reg istered in Primavera ’s name. After sear ching the cell phone

rec ords of the vic tim, the authorities were able to conf irm that phone number be longe d to Ana. On August 8, 2000, homicide detective Art Perez rec eived information from a DEA ag ent out of Houston, Texas reg arding a homicide wher e a fema le victim had been stabbed to death. Perez subsequently interviewe d Maria del Pilar Gonzalez who identified Ana, Primavera , and a male individual. Perez also interviewe d Gabr iella Ba rrio who corr oborate d the information g iven by Maria. Gabr iella was also able to identify Appellant as the unknown male individual. Ba sed on the information provided, Perez secur ed three arr est war rant s fo r capital murder for Ana MonttiAlmare z, Primavera Ba ltazar, and Appellant. Ana Mon tti-Almarez was located in Mexi co. The purported motive for the murder was that the victim was having an aff air with Ana’ s husband. Perez also obtained information that Ana g ave specific instructions on how the murder should be car ried out so that the victim knew why she wa s to be killed. At trial, I nspector Chavarr ia, Offic er Sanchez, and Detec tive Ruiz testified about the transfe r of Appellant from Mexi co to El Paso. During the testimony of Detec tive Ruiz , Appellant’s first and second statements wer e admitted as States Ex hibits 65, 66, 67, and 68. At the beg inning of the first statement, Ap p el lant was g iven his Miranda rig hts. He knew Ana throug h his childhood friend Primavera

. Appellant met with Ana at a shopping cente r in J uare z, Mexi co. Ana wanted Appellant
to kill someone for her. Specific al l y , t h e gi rl was a police informant and was also seeing her husband. When Primavera war ned Appellant not to do the job alone, Appellant contac ted his friend, El Moreno. Appellant and El Moreno t ra v el ed to Mexi cali on a bus and then flew to J uare z. Appellant showed El Moreno the house wher e the victim lived and then returne d to J uare z. Four or five da y s later, El More no told Appellant he had done the job a nd Appellant paid him. Appellantexplained to Ana how the murder occur red as El Moreno had explained it to him. El Moreno enter ed the hous e and sat the vi ctim on the chair in the ki tchen and taped her. Whe n E l M o re n o l ai d her down , a l i t t l e g irl appea

red. El Moreno put the littl e g irl in a bedroom and then returne d to the kitchen wher e he stabbed the victim. I n hi s fi rs t s t atement, Appellant denied ever g oing into the house or se eing the victim. At the beg inning of his second statement, Appellant was ag ain g iven his Miranda rig hts. He explained that he went to the house with El Moreno and enter ed throug h the g ara g e. Appellant had a g un in his hand and dema nded the victim to drop to the floor. When El More no beg an taping up the victim, a littl e g irl came out and Appellant took her into the bedroom. Appellant then went into the g ara g e to stand look out. He saw El Moreno stab the victim two or three times in the chest and then push her to the f

loor. Appellant testified at trial that prior to being broug ht from Houston , h e h ad never been to El Paso. I n 2000, Appellant came to J uare z with Prim av er a t o attend a party that Ana hosted at a

ranc h. I t was at there that Ana first mentioned that he should kill the victim. Appellant returne d to J uare z so m et i m e in late J anuar y and at that time Ana told him that she was g oing to hire a profe ssional. Appellant left for Tijuana a nd two y ear s later he was a rre sted. Appellant also testified that he had not e aten and had been up a littl e over fifty hours when he was transfe rre d from Mexi co. The first statement he g ave to the police was not true. He g ave the
statement beca

use the detec tives told him that they would talk to the DA and could g et him off and he could g o home. He just made things up; in fa ct , E l M o re n o did not rea lly exis t. Appellant claimed that prior to g iving his second statement, the detec tives told him that they did not believe him and that he would have to say that he wa s at the murder scene . On rebuttal, Detec tive Ruiz testified that the he had not g iven Appellant details of the crimeprior to his statement. Detec tive C h av ar ri a also denied g iving Appellant details of the crime or

showing him photos before his stateme nt. VOLUNTARINESS O F CONF ESS ION I n P o i n t of Error One, Appellant challeng es the voluntariness of his confe ssion on dueproce ss g rounds. He contends that his confe ssion was not voluntary beca use he was in need of sleep, had a ba d heada che, a

nd only wanted to e nd the interrog ation. Standard of Review I n revie wing a trial court’s ruling on a motion to suppr ess, we apply the standard of revie w enuncia ted in Gu z ma n v. State , 955 S.W .2d 85, 89 (Tex.Crim.App. 1997). Under the Guzman standard, we g ive almost total defe renc e to a trial court’s deter mination of historical fac ts supported by the rec ord, espec ially when the trial court’s fac t-finding s are based on an evalua tion of cre dibilit y and demea

nor. Guzman , 955 S.W .2d at 89. We aff ord the same amount of defe renc e t o the trial court’s rulings on application of law to fac t questio n s , al s o k n o wn as mix ed questions of l aw and fac t, if the resolution of those ultimate questions turns on an evalua tion of cre dibilit y and demea nor. Id

. Howeve r, we revie w de novo mix ed questions of law and fac t not falling within this cate g ory . Id

. Analysis “A statement of an acc used may be used in evidenc e ag ainst him if it appea rs that the same

was fre ely and voluntarily made without compulsion or persua sion[ .]” T E X .C O D E C R I M .P R O C .A N N . art. 38.21 (Ve rnon 2005). A statement may be deeme d “involuntary ” under three differ ent theories: (1) failure to comply with Article 38.22 of t he C ode of Criminal Procedur e (the Texas confe ssion statute); (2) failure to comply with the dictates of Miranda v. Arizona , 384 U.S. 436, 86 S.Ct

. 1602, 16 L .Ed.2d 694 (1966); or (3) failure to comply with due proce ss or due course of law beca use thestatement was not fre ely g iven (e.g

. coer cion, improper influence s, incompetenc y ). W olfe v. State , 917 S.W .2d 270, 282 (Tex.Crim.App. 1996); Moore v. S tate , 233 S.W .3d 32, 44 (Tex.App.-- Houston [1st Dist.] 2007, no pet.). A confe ssion is involuntary “only if there was officia l, coer cive conduct of such a nature that any statement obtained there by was unlikely to have been the product of an essentially fre e and unconstraine d choice by its make r.” Alvarado v. State , 912 S.W .2d 199, 211 (Tex.Crim.App. 1995) ; see also Cravin v

. State , 95 S.W .3d 506, 510 n.3 (Tex.App.--Houston [1st Dist.] 2002, pet. ref

’d) (“The Texas Due Course of L aw provision has not been held to provide any g rea ter protec tion than that aff orded by the United States Constit ution’s Due Process Clause.”)

. A court bases its deter

mination of whether a confe ssion is voluntary on an examination of the totality of the circ umstances. Ramirez v. State , 116 S.W .3d 55, 58 (Tex.App.--Houston [14t h Dist.] 1998, pet. ref ’d). Relevant circ umstances for deter mining whether a defe ndant’s will has been overbor ne include “leng th of detention, incommunicado or prolong ed int err og ation, deny ing a family access to a defe ndant, ref

using a defe ndant’s reque st to telephone a lawy er or family , and phy sical brutality

. A defe ndant’s char acte ristics and status, as well as the conduct of the police, are i m p o rt ant

conce rns.” Armstrong v. State , 718 S.W .2d 686, 693 (Tex.Crim.App. 1985)(citations omitted). Appellant maintains that his s t atements wer e obtained in violation of due proce ss beca use h e d i d n ot have enoug h sleep, had been drinking and using drug s, and had eate n one meal i n t wo day s. Howeve r, the trial court found that Appellant was not under the influence of alcohol or

narc otics while making his statements. He was coher ent, understood what was happening , and was not influence d by

any fac tor other than his de cision to give the statement. The testimony of Chief Chavarr ia, Offic er Sanchez, Detec tive Rodrigue z, and Detec tive Ruiz detailing the transfe r of Appellant from Mexi co to the United States and the circ umstances of his confe ssion support the trial court’s finding s. Be cause we find no abuse of discretion in the trial court’s ruling , we overr ule Pointof Err or One

. SUF F ICIENCY OF THE E VIDENCE

I n Points of Error Two throug h Seven, Appellant challeng es the leg al and fac tual sufficie ncy of the evidenc e establishing cer tain elements of the offe nse of ca p i t al m u rd er. We first addre ss Appellant’s chall e n g e that the evidenc e is insufficient to corr oborate Appellant’s confe ssion beca use there is no other evidenc e establishing the element of remune ration, a nece ssary element of capital murder. Standard of Review I n assessing the leg al sufficie ncy of the evidenc e to support a conviction, an appellate court must consider all of the rec ord evidenc e in the light most favor able to t he verdic t, and must deter mine whether , based on that evidenc e and rea sonable inferenc es there from, any rational trier of fac t could have found the defe ndant g uilty of all the elements of the offe nse bey ond a rea sonable doubt. Jack

son v. Virginia , 443 U. S

. 3 0 7 , 3 19, 99 S.Ct

. 2781, 2789, 61 L .Ed.2d 560 (1979); Villarreal v. State , 286 S.W .3d 321, 327 (Tex.Crim.App. 2009). This familiar standard g ives full play to the responsibility of the trier of fac t fairly to resolve conflicts in the testimony , to weig h the evidenc e, and to dr aw r easona ble i nfer ence s from basic fac ts to ultimate fac ts. Jack son , 443 U.S.
at 319, 99 S.Ct

. at 2789; Klein v. State , 273 S.W .3d 297, 302 (Tex.Crim.App. 2008). We consider all of the evidenc e, whether admissible or inadmissible. Clayton v. State , 235 S. W.3d 772, 778 (Tex.Crim.App. 2007); W ilson v. State , 7 S.W .3d 136, 141 (Tex.Crim.App. 1999). When the rec ord supports conflicting infere nces, we presume that the fac t finder resolved the conflicts in favor of the prosec ution and there fore defe r to that deter mination. Clayton , 2 3 5 S

. W.3d at 778. The same standard of revie w is used for both direc t ev i d ence and circ umstantial evidenc e case s. Hooper v. State , 214 S.W .3d 9, 13 (Tex.Crim.App. 2007).I n revie wing fac tual sufficie ncy of the evidenc e to support a c onviction, we ar e to view a ll
t h e ev i dence in a neutra l light, favor ing neither party

. Johnson v. State , 23 S.W .3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State , 922 S.W .2d 126, 129 (Tex.Crim.App. 1996). I n perf orming

our revie w, we are to g ive due defe renc e to the fac t finder’ s deter minations. See Johnson , 23 S.W .3d
at 8-9; Clewis , 922 S.W .2d at 136. There are two way s in which the evidenc e may be fac tually insufficient. The first is that the evidenc e supporting the verdic t, though leg ally sufficie nt, is nonetheless too w eak to suppor t it. Lancon v. State , 253 S.W .3d 699, 705 (Tex.Crim.App. 2008) ; Goodman v. State , 66 S.W .3d 283, 285 (Tex.Crim.App. 2001). The second is that, when considering conflicting evidenc e, the jury ’s verdic t is ag ainst the g rea t w e ig h t a n d p r e p o n d e r a

nce of the evidenc e. Thus, the question we must consider in conducting a fac tual sufficie ncy revie w is whether a neutra l revie w of all the evidence, both for and ag ainst the findi ng , demonstrates that the proof of guilt is

so obviously wea

k as to undermine confide nce in the fa ct finder’ s deter mination, or the proof of g uilt, alth o u gh ad eq u at e if taken alone, i s g rea tly outweig hed by contra ry proof. See Johnson , 23 S.W .3d at 11. Under the first part of this standard, we cannot conclude that a conviction is “cle arly wrong ”

or “manife stly unjust” simply beca use, on the quantum of evidenc e admitted, we would have voted
to acquit had w e bee n on the jury

. W atson v. State , 204 S.W .3d 404, 417 (Tex.Crim.App. 2006). Under the second part, we cannot decla re that a conflict in the evidenc e justifies a new trial simply beca use we disag ree with the jury ’s resolution of that conflict. Id

. Be fore finding that the evidenc e is f actua lly insufficient to suppor t a verdic t unde r the second part of the standard, w e must be able
to say , with some objective bas i s i n t h e record, that the g rea t weig ht and preponde ranc e of the evidenc e contr adicts the jury ’s ver dict. Id

. Corpus Delicti RuleEvidence tending to show that a crime was committed must corr obora t e a defe ndant’s

extrajudicial confe ssion

. W illiams v. State , 958 S.W .2d 186, 190 (Tex.Crim.App. 1997); Chambers

v. State , 866 S.W .2d 9, 15 (Tex.Crim.App. 1993), cert. denied , 511 U.S. 1100, 114 S.Ct

. 1871, 128 L .Ed. 491 (1994); Fisher v. State , 851 S.W .2d 298, 302-03 (Tex.Crim.App. 1993). There must be evidenc e independe nt of the confe ssion of the fac t that someone has committed t h e crime in question. W

illiam s , 9 58 S.W .2d at 190; McD uff v. State , 939 S.W .2d 607, 614 (Tex.Crim.App. 1997). To establish the corpus delicti of murder, the evidenc e must show the death of a human being

cause d by another ’s criminal act. See Fisher , 851 S.W .2d at 303. The corr oborating evidenc e need
not be sufficie nt to fully prove the underly ing offe nse; rathe r, the corr oborating evidenc e need only rende r the commission of an offe nse more probable than it would be without the evidenc e. W illiams , 958 S.W .2d at 190; Chambers , 866 S.W .2d at 15-16. Once corpus de licti requireme nts are me t, a confe ssion to the crime is by itself sufficie nt evidenc e to support a convic tion. Lane v. Stat e , 933 S.W .2d 504, 507 (Tex.Crim.App. 1996). I n Roy v. State , the appellate court held that the State was require d to corr oborate the corpus delicti, including remune ration, with independe nt evidenc e. 891 S.W .2d 315, 322 (Tex.App.--F ort Worth, 1994, no pet.). Roy arg ued that t h e S tate was require d to produce independe nt evidenc e

corr oborating the part of his confe ssion conce rning the promise of renume ration. Id

. at 321; citing Gribble v. State , 808 S.W .2d 65, 70 (Tex.Crim.App. 1990), cert. denied , 501 U.S. 1232, 111 S.Ct

. 2856, 115 L .Ed.2d 1023 (1991)( court held that evidenc e independe nt of appellant’ s confe ssion was require d to show th at h is victim had been kidnapped)

. The court rec og nized that sever al capital murder case s following Gribble had applied its holding, but all t h e cases involved underly ing felonies, not t h e circumstance s of remunera tion. Id

. at 322; see e.g., Emery v. Stat e , 881 S.W .2d 702, 705 (Tex.Crim.App. 1994)(bur g lary ), petition for cert. filed , (U.S. Sept. 20, 1994)(No.94-6175); Chambers v. State , 866 S.W .2d 9, 15-16 (Tex.Crim.App. 1993)(a g g ravat ed sexual

assault), cert. denied , 511 U.S. 1100, 114 S.Ct

. 1871, 128 L .Ed.2d 491 (1994); Lookingbill v. State , 8 5 5 S.W .2d 66, 73-74 (Tex.App.--Corpus Christi 1993, pet. ref ’d)( robber

y ). No Texas case had applied Gribble to require independe nt evidenc e of the promise of remune ration in capital murder. Id

. at 322. I n Roy , the State attempted to arg ue that Gribble was limit ed to ag g rava ting felonies that eleva ted murder to capital murder. Id

. The court disag ree d, noting that if the State’s position wer e adopted, it would essentially be holding that the corpus delicti for capital murder is the same as that for murder. Id

. Although it require d the State to corr oborate the corpus delicti--including

remune ration-- with independe nt e vidence , the court found that the evidenc e was sufficie nt. Id

. I n his confe ssion, Roy stated that his mother offe red to g ive him his fathe r’s truck and “a lot of money ” if he would kill his fathe r. He was to rec eive the money when the insurance chec k arr ived. Id

. at 322. There was also independe nt evidence showing (1) a source (life insurance policy ) for the

remune ration; and (2) complicity in the murder betwee n the defe ndant and his m o t h er . Id

. Specifica lly , there was evidenc e that the mother had taken out a $250,000 life insurance policy on her husband a y ear befor e the murder. She was the sole benef iciary

. Id

. Roy took his fathe r’s truck the night of the murder. His sister testified that their mother called him in the months leading up to the murder, and she overhe ard a conver sation betwee n her mother and b ro t her about two wee ks befor e the murder. Id

. at 323. The mother instructed another individual about what to say when Roy called and the mother wrote down those instructions on a note and r epeated them to Roy

. Id

. The mother also beca

me very upset and wanted the police to leave when they wer e questioning her daug hter. Id

. Whil e this evidenc e taken alone might be ambig uous, overa ll it rende red the circ umstances of remune ration more probable then it would be without the evidenc e. Id

. There fore ,
an y rational trier of fac t could have found that there was some evidenc e that the circ u m s t an ce o fremune ration wa s sufficiently corr oborate d. Id

. Ot h er courts have also applied the corpus delicti rule to the element of remune ration

. I n Garza v. State , the appellant arg ued that absent the acc omplice testimony , there was no evidenc e

corr oborating his confe ssion and establishing the corpus delicti of the offe nse. 915 S.W .2d 204, 210 (Tex.App.--Corpus Christi 1996, pet. ref ’d); see also Tidrow v. State , 91 6 S

. W

. 2 d 6 23, 630 (Tex.App.--F ort Wo rt h , 1996, no pet.)(c ourt found testimony of acc omplice and victim’s life insurance policy

to be suffic ient independe nt evidence of a promise of remunera tion). The Garza court found that there is no require ment that acc omplice t estimony b e d i s re gar ded in deter mining whether an extrajudicial confe ssion is adequa tel y co rr o b o ra t ed. Id

. at 210. I t also found the evidenc e sufficie nt to establish the corpus delicti of capital murder for remune ration. Id

. at 210. The
court re l i ed o n the testimony from the acc omplice showing that the appellant expected to rec eive pay ment throug h the acc omplice for the killing and that pay ment was rec eived immediately afte r the killing. Id . at 210. I n Scott v. State , the court require d t h e S tate to corr oborate the corpus delicti, including

r e munera tion, with independe nt evidenc e. 1999 WL 314805, at *2 (Tex.App.--Houston (14t h D is t. ) , 1999, no pet.). There , an office r testif i ed re g arding the information he g ather ed throug h his investiga tion, including an acc ompli ce ’s s t at ement that the appellant paid him money befor e and afte r the murder. Id

. at *2. The victim intended to testify ag ainst the appellant in an upcoming trial. Id

. The appellant also drove the acc omplice to and from the murder scene . Id

. This evidenc e was sufficie nt to corrobor ate the e lement of re munera tion. Id

. And in Smith v. State , an acc omplice testified that on the day of the murder, the appellant told him that he would rec eive money once an i n s u ra n ce chec k was issued. 1999 WL 672519, at *4 (Tex.App.--Houston (14th Dist.) 1999, pet. ref ’d). Wit hout rea ching t h e i s s u e o f whether theappellant’ s statements to the acc omplice constituted an extra-judicial con fession or otherwise

require d corr oboration, the c ourt conc luded that the rec ord contained probative corr oboration. Id

. The State urg es us to consider the testimony of Detec tive Perez as sufficie nt corr oboration. At trial, Perez testified that the victim was ha ving a n aff air with Ana ’s husband and that the ki ller

was g iven specific instructions so that the victim knew why she was being killed. The information he rec eived and the extent of the victim’s injuries led him to believe that the murder was a crime of passion. The detec tive also testified t h at An a was responsible for the murder and paid for it. I n rebuttal, Appe llant arg

ues that there is no evidenc e of remune ration ot her than this statement and that the testim o n y i s s pecula tive hear say . We disag ree . Hea rsay admitted without objection has probative va lue. Chambers v. Stat e , 711 S.W .2d 240, 247 (Tex.Crim.App. 1986). The testimony

o f Detec tive Perez has probative value and rende rs the commission of capital murder for

remune ration m ore probable than it wou l d be without the evidence. See W illiams , 958 S.W .2d at 190; Chambers , 866 S.W .2d at 15-16. We over rule Points of Error

Two and Thr ee. Identity and Re muneration I n Points of Error Four throug h Seven, Appellant contends that without his illega lly obtained confe ssion, the evidenc e is leg ally and fac tually insufficient to prove the elements of identity and

remune ration. A person commits capital murder if “the person c ommits [a] murder ( intentionally

or knowing ly causing the death of an individual) f or re munera tion or the promise of r emuner ation

or employ s another to commit the murder for remune rati on or the promise of remune ration.” T E X .P E N .C O D E AN N . §§ 19.03(a) (3); 19.03(b)( Ver non 2003). I n his confe ssion, Appellant stated: (1) he ag ree d to kill the victim for $20,000; (2) he employ ed El Moreno to do the actua l killing; (3) he went with El Moreno to the victim’s home; (4) he stood watch while El Moreno stabbed her twenty times; and (5) he g ave $10,000 to El More no and kept $10,000 f or himself.Sufficienc y and admissibility

of evide nce a

re distinct issues: ‘Sufficie ncy ’ rela tes to whethe r t h e elements of an offe nse have been logic ally established by all the evidenc e prese nted, both admissible and inadmissible. ‘Admissibili t y ’ rela

tes to the fairne ss of introducing evidenc e and its logic al rele vance . Acc ording ly , l ega l an d fac tual sufficie ncy issues must rela te to the elements of offe nse. The issue of whether or not evidenc e was illega lly obtained is not an eleme nt of the off

ense. We rec og nize the decision to exclude evidenc e m ay h i n ge t o some deg ree upon a fac tual finding

. But to the extent that the trial court’s dec ision rests upon a finding of fa ct, the ultimate issue is still the admissibilit y of evide nce. Hanks v. State , 137 S.W .3d 668, 671 (Tex.Crim.App. 2004), citing Caddell v. State , 123 S.W .3d 722 (Tex.App.--Houston [14t h Dist.] 2003). Fa ctual sufficie ncy revie w is appropr iate only with reg ard
to the sufficie ncy of the State’s proof as to the elements of the offe nse. Hanks , 137 S.W .3d at 672. I t is not appropr iate as to the admissibili ty of evidenc e when such a question is submitt ed to the jury p u rs uant t o Article 38.23(a). Id .; see also Jordan v. State , 2005 WL 221405 at *1, 5 (T ex . Ap p . -- Eastland 2005, pet. ref

’d)( not desig nated for publication)(a n issue under Article 38.22, section 6 of the Texas Cod e o f Criminal Procedur e is also an “admissibility of evidenc e” issue, there fore appellant was prec luded from challeng ing the fac tual s u f f ic ie ncy of the evidenc e rela ting to the jury ’s deter mination of the voluntariness question). When an appellant challeng es the leg al sufficie ncy of the evidenc e by asking a court to view less than all of the evidenc e, an appellant prese nts nothing for revie w. Morales v. State , 95 S.W .3d 561, 563 (Tex.App.--Houston [1st Dist.] , 2002, pet. ref ’d), citing Fuller v. State , 827 S.W .2d 919, 930-31 (Tex.Crim.App. 1992). The same holds true with reg ard to a fac tual sufficie ncy revie w. Id

. We overrule Points of Err or F our throug h Seven. JURY INSTRUCTION I n Point of Error Eig ht, Appellant arg ues that the trial court failed to proper ly instruct the juryreg arding the conduct el em en t s ap p licable to the indicted offe nse. I n its char g e, the trial court

define d “intentionally ” and “ knowing ly ” as f ollows: A person acts intentionall y , or with intent , with respe ct to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to eng ag e in the conduc t or ca

use the re sult. A person ac ts know ingly , or with know ledge , with respe ct to the nature of his conduct or to circ umstances surrounding his conduct when he is awa re of the nature of his conduct or that the ci rcumstanc es exis t. A person acts know ingly , or with know ledge , with respe ct to a result of his conduct when he is awa re that his conduct is reasona bly cer tain to cause the re sult. The definit i o n s m i rror those found in Sections 6.03(a) and 6.03(b) of the Texas Penal Code. T E X .P E N .C O D E AN N . §§ 6.03(a) ; 6.03(b)( Ver non 2003). Appellant did not object to the char g e. On appea l, he complains that these definitions authorize conviction on the “natur e of conduct” instead of the “ result of c onduct.” I n Cook v. State , the Court of Criminal Appea ls held that it was err or for a trial court not to limit the abstrac t definitions of “intentionally ” and “ k n o w in g ly ” in a n in te n tiona l-murder case , which is a result-of- conduct offe nse. 884 S.W .2d 485 , 4 9 1 (Tex.Crim.App. 1994). Hughes v. State , handed down the same day , held that it would be err or in a capital murder case involving only two of t he conduct elements if the definiti on s included all three of t he conduct elements. 897 S.W .2d 285, 295-96 (Tex.Crim.App. 1994). I n Hughes , the definitional portion of the char g e included the full statutory definitions of intentionally and knowing ly , including result, nature , and circ umstances of conduct lang uag e. Id

. But beca use the offe nse did not contain a nature of conduct element, it was

err or not to limit the definiti ons of culpable mental states to result and circumstance s of conduct. Id

. W e conclude that the trial court err ed by including the “natur e of conduct” , “re su l t o f conduct” , and “cir cumstance s” lang uag e in the definitions of “intentionally ” and “knowing ly .” Butsince no objection was lodge d at trial, we must deter mine whether the err or was so harmful that the defe ndant was denied “a fair and im p ar t i al t rial.” Arline v. State , 721 S.W .2d 348, 351 (Tex.Crim.App. 1986); Almanza v. State , 686 S.W .2d 157, 171 (Tex.Crim.App. 1984). I n other words, a defe ndant must h av e suffe red actua l “eg reg ious” harm. Arline , 721 S.W .2d at 351; Almanza , 686 S.W .2d at 171. For both prese rved and unprese rved char g ing err or, “the actua l deg ree of harm must be assay ed in light of the entire jury char g e, the state of th e ev i d en ce , i n cluding contested issues and weig ht of probative evidenc e, the arg ument of counsel and any other rele vant information reve aled by the rec ord of the trial as a whole.” Arline , 721 S.W .2d at 351-52; Almanza , 686 S.W .2d at 171. I n assessing harm resulting fr om the i nclusion of i mproper conduct elements i n t h e definitions of culpable mental states, we “may consider the deg ree , if any , to which th e culpable mental states wer e limit ed by the application portions of t h e jury char g e.” Hughes , 897 S.W .2d at 296; Cook , 884 S.W .2d at 492 n.6. We are g uided by Patrick v. State , 906 S.W .2d 481 (Tex.Crim.App. 1995). There , the court found that even though the definitions of “intentionally ” and “knowing ly ” set forth the three alterna tive conduct elements, when viewing those terms in their fac tual context, it beca me appar ent which conduct element applied to which ele m en t o f the offe nse. Id. at 493, citing Hughes , 897 S.W .2d at 297. The application para g raph stated that the appellant “did intentionally cause the death of [the victim] .” Id . Finding that the term “ intentionally ” directly modified the phrase “cause the death,” the court held it was obvious that the “re sult o f conduct” and “ca use the result” lang uag e

wer e the applicable portions of t he f u l l C o d e d efinit ions when refe rring back to the definiti ons of culpable mental states. Id

. Be cause t h e fac ts as applied to the law in the application para g raph pointed the jury to the appropr iate portion o f t h e d efinitions, no harm resulted from the court’s failure to limit the definitions of culpable mental sta t es to proving the conduct element of theunderly ing of fense

. Id

. T h e harm analy sis in Patrick is applicable here

. The application para g raphs proper ly ins t ru ct ed the jury to only apply the “re sult of conduct” lang uag e found in the definitions to the “ca use of death” lang uag e in the application p ara g raphs. Specifica lly , the application para g raphs instructed the jury to only find Appellant g uilty if he intentionally or knowing ly cause d the death of Merc edes Caba llero for remune ration, or if Appellant intentionally or knowing ly

cause d the dea th of Merc edes Caballero by employ ing “El Moreno” for remune ration or promise of remune ration to commit the murder. F inding the err or to be harmless, we ove rrule Point of Err or Eig ht and af firm the dec ision of the trial court.

J uly 28, 2010 ANN CRAWFORD McCL URE, J ustice Be fore Chew, C.J ., McClure, a nd Rivera, JJ

. (Do Not Publish)