Opinion issued June 3, 2014.

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-13-00372-CR

———————————

MANUEL RICHARD PENA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Case No. 1320965

O P I N I O N

A jury found Manuel Pena guilty of the offense of murder and sentenced 

him to life confinement in the institutional division of the Texas Department of 

Criminal Justice. Pena appeals, arguing that the evidence was legally insufficient 

to support his conviction, that he was deprived of his right to a public trial under 
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the Sixth Amendment to the United States Constitution, and that the trial court 

erroneously admitted testimony by a witness who lacked personal knowledge of 

the subject matter to which he testified. Finding no error, we affirm.

Background

A. The death of Sherri Strong

On June 16, 1982, paramedics responded to a report of a suicide in Pena’s 

Harris County residence. On their arrival, a male answered the door and escorted 

the paramedics to the garage, where they found a young, unclothed woman lying 

face down on the floor with a rope around her neck, which the paramedics cut off. 

The woman, Sherri Strong, was dead. When the paramedics turned her over, they 

discovered that blood was pooling in the front of her body, a post-death condition 

known as lividity.

Harris County Sherriff’s Office Detective D. Parsons was dispatched to the 

scene to investigate. Detective Parsons testified that he noticed a series of injuries 

on Strong’s body, including two sets of bruises on her neck: one in an upward line 

toward her ears, and the other a horizontal line around her neck. Parsons 

interviewed Pena at the scene. Pena disclosed that he and Strong had been the only 

people in the house that night. He and Strong were not married, but had been 

involved in a romantic relationship, and Pena stated that he believed that Strong 

was two months pregnant with his child at the time of her death. Pena, however, 
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was engaged in a contentious divorce proceeding with his wife and, on his 

attorney’s advice, had previously evicted Strong from the home that they were 

sharing. Strong had become upset after intercepting a telephone message from 

Pena’s wife, in which the latter expressed a desire to reconcile with Pena. 

Nonetheless, according to both Pena and Strong’s brother, Strong had been a 

happy person; neither believed her to be suicidal.

During his interview with Parsons, Pena described the events of the night of 

Strong’s death. According to Pena, the couple went to dinner, returned home, and 

had sex in his bed before going to sleep. Pena later woke up, discovered that 

Strong was not there, and saw a light in the kitchen. On reaching the kitchen, he 

followed the light to the garage, where he found Strong hanging by her neck on a 

rope tied to a hook in the ceiling that also supported a large punching bag. Pena 

retrieved a knife and cut down Strong’s body.

Parsons did not find this story credible and testified as to several 

inconsistencies between his own observations and Pena’s version of the facts. 

First, Pena’s bed was neatly made except for the side where Pena had slept. 

Second, Parsons noticed the lividity in Strong’s body; the lividity was not in her 

feet or legs, as Parsons expected, but only in the front of her body. Parsons also 

noticed bruises on Strong’s leg and face and the two sets of markings on Strong’s 

neck. In addition, he noticed significantly less bodily waste immediately under the 
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hook in the garage than he expected in the context of a hanging. From these 

observations, Parsons developed the belief that “someone actually strangled 

[Strong] facedown somewhere, possibly with the same rope, and then used it to 

hang her.” Parsons considered Pena a suspect in Strong’s death, but Pena was not 

arrested that night.

B. The autopsy of Strong’s body

Dr. Aurelio Espinola, then a deputy chief medical examiner for the Harris 

County Medical Examiner, performed an autopsy of Strong’s body. Dr. Espinola 

testified that he had performed “hundreds to probably thousands” of autopsies of 

persons who had committed suicide by hanging. Dr. Espinola observed petechial 

hemorrhages—small breaks in the blood vessels—in Strong’s upper eyelids, which 

he testified happens routinely in the context of manual strangulation but not in the 

context of death by hanging. In the latter, the weight of the body cuts off blood 

flow both to and from the head, preventing the pressure buildup that causes such 

hemorrhages. By contrast, there were no petechial hemorrhages in Strong’s legs, 

which Dr. Espinola would have expected if the body had been hanging for several 

hours.

Dr. Espinola also observed the two sets of markings on Strong’s neck. He 

testified that the fatal wound was the horizontal one on the front and sides of the 

neck, which was consistent with a rope being wrapped around the neck, but was 
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not consistent with or indicative of a hanging, which would have left a mark on the 

back of her neck.

Dr. Espinola testified that Strong had many pre-death injuries that were 

consistent with a physical struggle but not with a hanging, including: an abrasion 

on Strong’s chin consistent with a blow; a hemorrhage in the inside of her lips 

consistent with a blow; an abrasion on her shoulder consistent with “some kind of 

force being directed at or on the top surface of her shoulder;” injuries to her ankles, 

knees, right elbow, and knuckles consistent with striking, fighting, or kicking; 

bruises to her wrists consistent with someone grabbing them and pulling; a bruise 

on her right hand; and a bite mark on her breast.

Dr. Espinola observed hemorrhaging around muscles and connective tissue 

around the cornu of the hyoid bone in the front of Strong’s neck. According to Dr. 

Espinola, such hemorrhaging is a “hallmark of the ligature strangulation,” as 

opposed to death by hanging. Further, Dr. Espinola testified that it is impossible 

for a person to strangle herself, due to the fact that the individual would lose 

consciousness and blood flow would resume before the strangulation became fatal.

Finally, Dr. Espinola observed lividity in Strong’s back, but not in the back 

of her legs. Based on this fact, Dr. Espinola concluded that Strong was not 

hanging when she died; even if she had died from hanging and been moved, he 

would still have found lividity in her feet and legs. Dr. Espinola also testified that 
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lividity does not set in for two hours after death and that the presence of lividity 

when paramedics arrived at Pena’s home indicated that Strong had been lying on 

the ground for some time before their arrival.

Based on the totality of his observations during the autopsy, rather than any 

one fact, Dr. Espinola ruled that Strong “came to her death as a result of asphyxia 

due to ligature strangulation, Homicide.”

C. “Cold case” reexamination

Although Pena was not charged in the months after Strong’s death, the case 

remained an open and unsolved homicide. In 2011, Harris County Sheriff’s Office 

Sergeant E. Clegg reviewed the case, attempted to obtain evidence from the 

original investigation, visited the scene of Strong’s death, and conducted follow-up 

interviews of Pena and several other witnesses. Clegg found several 

inconsistencies in Pena’s retelling of events. Pena changed his story regarding 

how he found a knife to cut Strong down. He also told Clegg that he had used the 

rope on which Strong hung herself to lift the punching bag out of the way of cars in 

the garage, but Clegg testified and photographs introduced in evidence showed no 

pulley or other means by which the bag could have been moved or hoisted. Pena 

also told Clegg that he attempted CPR on Strong, but Clegg testified that this was 

inconsistent with physical evidence at the scene.
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The case was reopened and a grand jury indicted Pena for murder. After a 

trial, the jury found him guilty as charged, sentencing him to life confinement. 

Pena timely appealed.

Legal Insufficiency of the Evidence

Pena first argues that the evidence was legally insufficient to support his 

conviction.

A. Standard of Review

When a defendant challenges the sufficiency of the evidence, this Court 

“must consider all of the evidence in the light most favorable to the verdict and 

determine whether, based on that evidence and any reasonable inferences 

therefrom, a rational fact finder could have found the essential elements of the 

crime beyond a reasonable doubt.” Gear v. State, 340 S.W.3d 743, 746 (Tex. 

Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 

2781, 2788–89 (1979)). The Court may not substitute its judgment for that of the 

jury by reevaluating the weight or credibility of the evidence, but must defer to the 

jury’s resolution of conflicts in the evidence, weighing of the testimony, and 

drawing of reasonable inferences from basic facts to ultimate facts. Isassi v. State, 

330 S.W.3d 633, 638 (Tex. Crim. App. 2010). We apply the same standard to 

circumstantial and direct evidence. Id. Circumstantial evidence may be as 

probative as direct evidence, and circumstantial evidence alone can be sufficient to 
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establish a defendant’s guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 

2007). The facts need not all point directly and independently to the defendant’s 

guilt, but the cumulative effect of all incriminating facts must be sufficient to 

support the conviction. Id.

B. Analysis

Pena argues that no eyewitnesses or direct evidence established that he 

murdered Strong. Specifically, he complains that no DNA evidence or fingerprints 

were introduced, that there was insufficient evidence that Strong was murdered and 

did not commit suicide, and that there no evidence that, assuming Strong was 

murdered, Pena was the murderer.

As legal authority for his legal insufficiency arguments, Pena relies entirely 

on Reedy v. State, 214 S.W.3d 567 (Tex. App.—Austin, 2006, pet. ref’d), 

abrogated by Hooper, 214 S.W.3d at 15–17. In Reedy, the Austin Court of 

Appeals applied an incorrect legal sufficiency “inference stacking” analysis under 

which “[t]he stacking of an inference upon an inference is not considered 

evidence.” Id. at 585 (citations omitted). The Court of Criminal Appeals has 

expressly rejected this mode of analysis, abrogating Reedy and explaining that 

“inference stacking has not been used in this Court’s sufficiency of the evidence 

jurisprudence in over 50 years.” Hooper, 214 S.W.3d at 15. “Inference stacking is 

not an improper reasoning process; it just adds unnecessary confusion to the legal 
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sufficiency review without adding any substance.” Id. The correct test is that 

found in “Jackson v. Virginia, [under which] courts of appeals assessing legal 

sufficiency are to consider all the evidence in the light most favorable to the 

verdict and determine whether, based on that evidence and reasonable inferences 

therefrom, a rational juror could have found the essential elements of the crime 

beyond a reasonable doubt.” Id. at 15 (citing Jackson, 443 U.S. at 318–19, 99 S. 

Ct. at 2788–89).

Applying the Jackson standard, there was ample evidence upon which the 

jury could have based its verdict. The forensic evidence, including Dr. Espinola’s 

testimony as to the significance of each injury in classifying a death as a homicide, 

was sufficient to allow a rational juror to conclude that Strong’s death was caused 

by ligature strangulation rather than hanging. Further, both Pena’s statements to 

law enforcement and Strong’s brother’s testimony reflected that Strong was a 

“very happy,” non-suicidal person at the time of her death.

The evidence regarding Pena’s relationship with Strong—including evidence 

of Strong’s pregnancy and Pena’s wife’s desire to reconcile with Pena—would 

have permitted a rational juror to draw the inference that Pena’s relationship with 

Strong was troubled. Further, the physical evidence contradicted Pena’s account of 

a consensual sexual encounter with Strong the night of her death. This evidence 
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was sufficient to permit a rational juror to find that Pena had a motive to kill 

Strong.

Pena himself admitted that no one else was present in his home the night that 

Strong died. In light of these facts, having concluded that Strong had not 

committed suicide, the jury could have rationally inferred that Pena was the only 

person present when she died.

Further, Pena’s statements to law enforcement were, in many details,

contradicted by Pena’s other statements or by the officers’ observations of the 

scene of Strong’s death. For example, he gave statements that officers testified 

were inconsistent with the physical evidence, such as where Strong slept and why 

there was a rope on the hook in Pena’s garage. Such contradictions allow a 

reasonable juror to doubt Pena’s version of events and conclude that Pena

murdered Strong and then posed the scene to attempt to indicate a suicide. See, 

e.g., Cantu v. State, 395 S.W.3d 202, 209 (Tex. App.—Houston [1st Dist.] 2012, 

pet. ref’d) (citing “inconsistencies in Cantu’s statements” and statements 

inconsistent with physical evidence as bases for rational juror to doubt Cantu’s 

defensive assertion).

The absence of DNA or fingerprint evidence at trial does not render the

other evidence insufficient to support the conviction. First, Texas law does not 

require such evidence to support a criminal conviction. See, e.g., Garcia v. State, 
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563 S.W.2d 925, 928 (Tex. Crim. App. [Panel Op.] 1978) (victim’s testimony 

alone was sufficient to sustain rape conviction, despite lack of physical evidence); 

Sims v. State, 84 S.W.3d 768, 774 (Tex. App.—Dallas 2002, pet. ref’d) (conviction 

upheld when victim’s testimony identified defendant as attacker, despite absence 

of “scientific evidence”). This is especially true when the scene of the crime was 

the defendant’s home—where one would expect to find the defendant’s 

fingerprints and DNA—and the defendant’s narrative of innocence includes 

physical contact with the deceased. Dr. Espinola testified that DNA testing first 

became available as a forensic tool in 1986, four years after Strong’s death; it was 

not standard to preserve potential DNA evidence prior to that time. The mere 

absence of DNA and fingerprint evidence does not affect the legal sufficiency of 

the evidence actually introduced at trial. See, e.g., Garcia, 563 S.W.2d at 928; 

Sims, 84 S.W.3d at 774; Padilla v. State, 278 S.W.3d 98, 105 (Tex. App.—

Texarkana 2009, pet. ref’d). 

Because the evidence was legally sufficient to support Pena’s conviction of 

murder, we overrule Pena’s first argument.

Sixth Amendment Violation

Pena next argues that the trial court failed to hold a public trial because it 

closed the drape over the courtroom’s windows to block the public’s view of the 

trial, in violation of Pena’s rights under the Sixth Amendment to the United States 
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Constitution. Specifically, during Dr. Espinola’s testimony, the State introduced 

into evidence graphic photographs from the autopsy, and the following exchange 

occurred between one of the prosecutors and the trial court:

MS. ALLEN: Your Honor, may we approach just for a real quick—

THE COURT: Yes.

(At the Bench, on the record.)

MS. ALLEN: Earlier there had been some media stuff about this. I 

don’t know why they’re interested [in] it, but could we have the 

drape closed if we’re about to do the autopsy photos? I just 

don’t want—I don’t mind doing it, if that’s okay with you.

THE COURT: I’ll have Frank do it.

Pena’s counsel did not object at any point during this discussion or otherwise raise 

a Sixth Amendment argument in the trial court. The record does not reflect the 

nature of the drape in question, whether Frank in fact closed the drape, what the 

drape would have concealed, if anything, whose view would have been obstructed, 

if anyone’s, or how long the drape was closed. Pena argues that the drape covered 

windows to the courtroom and its closure violated the rights of the public and the 

press to attend Pena’s trial. See, e.g., Lerma v. State, 172 S.W.3d 219, 228 (Tex. 

App.—Corpus Christi 2005, pet. ref’d) (in general, Sixth Amendment right to 

public trial includes requirement that media have access as “an extension of the 

public body”).
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A. Standard of Review

The Sixth Amendment of the United States Constitution provides, in 

relevant part, that “[i]n all criminal prosecutions, the accused shall enjoy the right 

to a speedy and public trial.” U.S. CONST. amend. VI. This right is a structural 

requirement of the Constitution and is therefore a structural right, such that Sixth 

Amendment errors are “categorically exempt from harm analysis.” McEntire v. 

State, 265 S.W.3d 721, 722 (Tex. App.—Texarkana 2008, no pet.) (citing Arizona 

v. Fulminante, 499 U.S. 279, 309, 11 S. Ct. 1246, 1264–65 (1991); Salinas v. State, 

980 S.W.2d 219, 219 (Tex. Crim. App. 1998)). Nonetheless, “[w]here a defendant, 

with knowledge of the closure of the courtroom, fails to object, that defendant 

waives his right to a public trial.” United States v. Hitt, 473 F.3d 146, 155 (5th Cir.

2006); see also Turner v. State, 413 S.W.3d 442, 447 (Tex. App.—Fort Worth 

2012, no pet.) (because “a complaint that the right to a public trial was violated 

is . . . subject to procedural error preservation rules,” defendant must object to 

closure of courtroom with sufficient clarity “to provide the trial court and opposing 

counsel an opportunity to address and, if necessary, correct the purported error”);

Lilly v. State, 365 S.W.3d 321, 326 (Tex. Crim. App. 2012) (refusing to address 

appellant’s right to public trial claims under the Texas Constitution and Code of 

Criminal Procedure because appellant failed to brief those arguments and 

authorities separately from his arguments under the United States Constitution); 
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McEntire, 265 S.W.3d at 722–23 (holding that defendant failed to preserve Sixth 

Amendment public-trial argument where his counsel stated that he had no 

objection to closing part of trial to public).

Assuming a defendant has preserved a Sixth Amendment argument, “the 

first step for a reviewing court when analyzing whether a defendant’s right to a 

public trial was violated is to determine if the trial was, in fact, closed to the 

public.” Lilly, 365 S.W.3d at 329. “Once it is determined that the defendant’s trial 

was closed to the public, the reviewing court decides whether that closure was 

proper.” Id. The Court of Criminal Appeals is currently reviewing this 

requirement. See Cameron v. State, 415 S.W.3d 404, 409–10 (Tex. App.—San 

Antonio 2013, pet. granted). In Cameron, two justices interpreted Lilly not as 

requiring a showing that someone was excluded from a trial, but characterized Lilly 

as a requirement that a court of appeals review “the totality of the evidence and 

determine whether the trial court fulfilled its obligation ‘to take every reasonable 

measure to accommodate public attendance’ . . . .” Id. at 409.

The Sixth Amendment does not confer a right upon the media or anyone else 

to record courtroom proceedings. Rather, the public’s right of access is 

constitutionally satisfied when members of the public and the media are able to 

attend the trial and report on their observations. Nixon v. Warner Commc’ns, Inc., 

435 U.S. 589, 610, 98 S. Ct. 1306, 1318 (1978); see also Estes v. Texas, 381 U.S. 
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532, 584, 85 S. Ct. 1628, 1654 (1965) (Warren, C.J., concurring) (“[A] trial is 

public, in the constitutional sense, when a courtroom has facilities for a reasonable 

number of the public to observe the proceedings, . . . when the public is free to use 

those facilities, and when all those who attend the trial are free to report what they 

observed at the proceedings.”).

B. Analysis

By failing to object to the alleged closing of the trial to the public or 

otherwise raise the issue with the trial court, Pena has waived his Sixth 

Amendment argument. Lilly, 365 S.W.3d at 326; McEntire, 265 S.W.3d at 722–

23. Even if Pena had preserved this argument, he has failed to demonstrate that his 

trial was closed to the public, as required by Lilly, or that the trial court did not 

accommodate public viewing of the trial, as required by Cameron. The record 

does not even reveal that the drape was closed or what the impact of its closure 

would have been on anyone’s ability to attend or view the proceedings inside the 

courtroom. On the contrary, it appears that the drape in question, if it was closed, 

would merely have prevented photography or videotaping by persons outside the 

courtroom, which would not have violated Pena’s Sixth Amendment rights. Nixon,

435 U.S. at 610, 98 S. Ct. at 1318.

We hold that Pena has waived his second argument.
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Improper Admission of Evidence

Finally, Pena next argues that the trial court erred in admitting testimony by

Sergeant Clegg regarding inconsistencies in Pena’s narrative of events. During the 

trial, the following exchange took place:

Q. During your interviews with the original officers, being [D.] 

Parsons and [L.] Kincaid, were there inconsistencies between 

what they said Mr. Pena said and what Mr. Pena was telling 

you?

MR. McDONALD [Pena’s counsel]: Judge, I’m going to 

object. He’s testifying to – no personal knowledge of 

what my client told two officers back in 1982.

THE COURT: Overruled.

A. There were inconsistencies, yes, ma’am.

Pena argues that this testimony should have been excluded under Texas Rule of 

Evidence 602, which provides, “A witness may not testify to a matter unless 

evidence is introduced sufficient to support a finding that the witness has personal 

knowledge of the matter.” TEX. R. EVID. 602. Specifically, Pena argues, “There 

was no testimony introduced at trial to show that Clegg personally heard what Pena 

told Parsons and Kincaid.” For this reason, Pena argues that Clegg “lacked 

personal knowledge of his testimony.”

A. Standard of Review

We review a trial court’s evidentiary rulings under an abuse of discretion 

standard. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). We will 
17

not disturb the ruling if it “was within the zone of reasonable disagreement and 

was correct under any theory of law applicable to the case.” Winegarner v. State, 

235 S.W.3d 787, 790 (Tex. Crim. App. 2007); see also Willover v. State, 70 

S.W.3d 841, 845 (Tex. Crim. App. 2002) (“[T]he appellate court must uphold the 

trial court’s ruling if it is reasonably supported by the record and is correct under 

any theory of law applicable to the case.”).

B. Analysis

At issue is whether Clegg had sufficient personal knowledge to testify 

regarding differences between what Pena told him and earlier officers. Pena 

argues that Clegg’s testimony should have been excluded because Clegg did not 

personally hear what Pena told Parsons and Kincaid, and thus lacked personal 

knowledge to support his testimony. But Clegg was not asked what Pena told 

Parsons and Kincaid. Rather, he was asked about “what they said Mr. Pena said.” 

Clegg testified that he, along with one other officer, interviewed Pena in 

2011 and recorded the entire conversation by both video and audio. This 

testimony was sufficient to establish that Clegg had personal knowledge of what 

Pena told him in 2011. Clegg also testified that he interviewed Parsons and 

Kinkaid in 2011 regarding what Pena told them in 1982. In addition, Clegg 

reviewed the written record of Parsons’s 1982 interview of Pena. This evidence 

was sufficient to show that Clegg had personal knowledge of what Parsons and 
18

Kincaid had reported to Clegg that Pena had said. There being no other objection 

to the question, we hold that the trial court’s admission of Clegg’s testimony is 

reasonably supported by the record. See Winegarner, 235 S.W.3d at 790; Willover, 

70 S.W.3d at 845. Accordingly, we overrule Pena’s final argument.

Conclusion

We affirm the judgment of the trial court.

Jane Bland

Justice

Panel consists of Justices Keyes, Bland, and Brown.

Publish. TEX. R. APP. P. 47.2(b).