No. 01-15-00279-CR

In the 

Court of Appeals

For the 

First District of Texas

At Houston

♦

No. 1344346

In the 338th District Court

Of Harris County, Texas

♦

Joseph Facundo

Appellant

v.

The State of Texas

Appellee

♦

State’s Appellate Brief

♦

Clinton A. Morgan

Assistant District Attorney

Harris County, Texas

State Bar No. 24071454

morgan_clinton@dao.hctx.net

1201 Franklin St., Suite 600

Houston, Texas 77002

Telephone: 713.274.5826

Devon Anderson

District Attorney

Harris County, Texas

Justin Wood

Julie Fletcher

Assistant District Attorneys 

Harris County, Texas

Oral Argument Not Requested

ACCEPTED

01-15-00279-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

11/25/2015 4:09:07 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 11/25/2015 4:09:07 PM CHRISTOPHER A. PRINE Clerk
Statement Regarding Oral Argument

The appellant requested oral argument, though he gave no 

particular reason why. The State believes the briefs in this case 

adequately apprise this Court of the issues and the law, and any 

marginal benefit from oral argument does not justify the considerable 

amount of time that preparation for oral argument requires of the 

parties and the Court. Therefore, the State does not request oral 

argument. 

i
Identification of the Parties

Counsel for the State:

Devon Anderson 

 District Attorney of Harris County

Justin Wood & Julie Fletcher

— Assistant District Attorneys at trial

Clinton A. Morgan

 Assistant District Attorney on appeal

Appellant:

Joseph Juan Facundo

Counsel for the Appellant:

Alvin E. Nunnery & Brennen Paul Dunn

— Counsel at trial

Patrick McCann & Dawn Zell Wright

— Counsel on appeal

Trial Court:

Frank Price

 Presiding judge

ii
Table of Contents

Statement Regarding Oral Argument .................................................i

Identification of the Parties .............................................................. ii

Table of Contents ................................................................................ iii

Index of Authorities .............................................................................v

Statement of the Case ..........................................................................1

Statement of Facts ................................................................................1

Reply to Points One, Two, Three, and Four

The only preserved objection to the admission of the appellant’s jail 

calls is his Fifth Amendment complaint. However, because the 

appellant was not being interrogated by anyone associated with law 

enforcement, the Fifth Amendment has no application here....................3

I. Background.......................................................................................................3

A. The State’s Evidence and the Jail Calls ..............................................3

B. The Appellant’s Trial Objections .........................................................8

II. The Appellant’s Points............................................................................... 10

A. Reply to Point Four: The appellant’s objection, made the day 

after the evidence was admitted, was untimely and preserved 

nothing for review............................................................................................ 10

B. Reply to Point One: Statements made on a phone call to 

family members are not custodial statements for Fifth 

Amendment purposes.................................................................................... 14

C. Reply to Points Two and Three: The appellant’s SixthAmendment and “due process” complaints were not timely 

presented to the trial court and thus present nothing for this 

Court’s review.................................................................................................... 15

iii
Reply to Points Five and Six

The appellant’s points make sense only if one presumes all Hispanic 

people live in ethnically segregated communities. Asking a venire 

member for his opinion on law enforcement “in your community 

where you live” is not a race-based question................................................ 16

I. Factual Background: The Appellant’s Batson Challenges.......... 17

II. Legal Background: The Familiar Batson Framework ................... 18

III. Argument: The trial court was within its discretion to believe 

the State’s facially race-neutral question was, in fact, a race-neutral 

question. ................................................................................................................... 19

Reply to Point Seven

The alleged hearsay the appellant complains about is so insignificant 

that it could not possibly have affected the trial.......................................... 21

Conclusion .......................................................................................... 25

Certificate of Compliance and Service........................................... 26

iv
Index of Authorities

Cases

Banargent v. State

228 S.W.3d 393 (Tex. App.—

Houston [14th Dist.] 2007, pet. ref'd).............................................................. 14

Beall v. Ditmore

867 S.W.2d 791 (Tex. App.—

El Paso 1993, writ denied).............................................................................12, 13

Castrejon v. State

428 S.W.3d 179 (Tex. App.—

Houston [1st Dist.] 2014, no pet.)...................................................................... 11

Garcia v. State

126 S.W.3d 921 (Tex. Crim. App. 2004)........................................................... 24

Gibson v. State

144 S.W.3d 530 (Tex. Crim. App. 2004)....................................................18, 21

Jasper v. State

61 S.W.3d 413 (Tex. Crim. App. 2001).............................................................. 21

Johnson v. State

878 S.W.2d 164 (Tex. Crim. App. 1994)........................................................... 11

King v. State

953 S.W.2d 266 (Tex. Crim. App. 1997)........................................................... 22

Lagrone v. State

942 S.W.2d 602 (Tex. Crim. App. 1997)........................................................... 13

Moyer v. State

948 S.W.2d 525 (Tex. App.—

Fort Worth 1997, pet. ref’d)................................................................................. 24

Purkett v. Elem

514 U.S. 765 (1995)................................................................................................. 18

Smith v. State

420 S.W.3d 207 (Tex. App.—

Houston [1st Dist.] 2013, pet. ref’d)................................................................. 22

v
State v. Scheineman

77 S.W.3d 810 (Tex. Crim. App. 2002).............................................................. 15

Union City Body Co., v. Ramirez

911 S.W.2d 196 (Tex. App.—

San Antonio 1995) (orig. proceeding)............................................................. 12

Rules

TEX. R. EVID. 103............................................................................................................... 15

TEX. R. EVID. 803 .............................................................................................................. 23

vi
Statement of the Case

The appellant was indicted for capital murder committed during 

the course of a robbery. (CR 7). The appellant pleaded not guilty, but a 

jury found him guilty as charged. (CR 99, 101). As the State had not 

sought the death penalty, the trial court assessed punishment at 

confinement for life without the possibility of parole. (CR 101). The trial 

court certified the appellant’s right of appeal and the appellant filed a 

notice of appeal. (CR 100, 104).

Statement of Facts

The appellant used to go to a vacant house and get high with his 

friends Amber Thornton and Tony Escobar. (4 RR 55, 62). One day, they 

decided to rob and kill their drug dealer, Russell Lopez, so that they 

could get more drugs. (4 RR 72). The appellant called Lopez and 

arranged to go over to Lopez’s house and trade a laptop for $60 worth of 

cocaine. (4 RR 74, 77). When they arrived, Lopez was sitting in the 

dining room; his 7-month old daughter was in a high chair, and the 

cocaine was on the table. (4 RR 77). The appellant took out a hammer 

that he was carrying in his pocket and struck Lopez on the head. (4 RR 

78). Lopez wobbled a bit, then the appellant struck him again. (4 RR 78-

1
79). Lopez fell down, and the appellant continued to strike him 

repeatedly with both the face and claw of the hammer. 1 (4 RR 79). 

Escobar went into the back of the house and tied up Lopez’s other two 

children in their bedroom. (4 RR 79-80). The robbers then ransacked 

the house, looking for valuables to steal. (4 RR 82).

At some point while looking for valuables, the appellant and 

Escobar dragged Lopez — who seems to have still be alive — from the 

kitchen into the bedroom. (4 RR 84). The appellant found a decorative 

sword and stabbed Lopez several times, including in the throat. (4 RR 

84-86; 5 RR 50-51). The robbers loaded up a safe and a couple of 

thousand dollars’ worth of items into Lopez’s SUV. (4 RR 87). They 

dropped off the stolen goods at the vacant house, and then they dumped 

the SUV in a secluded location. (4 RR 87-88). Lopez’s wife returned 

home shortly thereafter and discovered the gruesome scene. (3 RR 34-

36, 205-06). 

1 The medical examiner testified that Lopez suffered “at least 16” blunt force 

impacts, and “approximately eight” instances of “sharp force trauma” that were 

consistent with being struck with the claw of a hammer. (5 RR 41-42, 48). 

2

 
Reply to Points One, Two, Three, and Four

The only preserved objection to the admission of the appellant’s 

jail calls is his Fifth Amendment complaint. However, because the 

appellant was not being interrogated by anyone associated with 

law enforcement, the Fifth Amendment has no application here.

The appellant’s first four points all relate to the admission of 

recorded phone calls he made while he was in jail. 

I. Background

A. The State’s Evidence and the Jail Calls

The State presented a fair amount of straight-forward evidence of 

the appellant’s guilt. Thornton testified to the all of the events 

surrounding the robbery and identified the appellant as the killer. (4 RR 

74-88). Lopez’s young son, C.L., identified the appellant as one of the 

robbers. (5 RR 142). And a jailhouse informant testified that the 

appellant had confessed to the murder, and that the appellant’s 

nickname in jail was “Hammer.” (5 RR 81-85). 

The State also admitted evidence regarding the appellant’s actions 

in the days after the murder. David Tillman testified that around that 

time the appellant came to his house and asked if he knew of a chop 

shop where he could get rid of a truck. (4 RR 177-78). Witnesses 

testified that after the appellant became a suspect in the police 

3
investigation, he attempted to flee to Mexico but was arrested in Laredo. 

(4 RR 99-100; 5 RR 80).

While the appellant was in the Webb County jail, he made several 

phone calls that were recorded. State’s Exhibit 111 is a CD containing 

audio file recordings of four of these phone calls. Because the file names 

on the exhibit are cumbersome and not helpfully descriptive, the State 

will assign numbers to the calls. Nothing in the record indicates what 

order these calls occurred in, but based on the content the State’s 

appellate counsel would guess it is this order:

1. “JOSEPH FACUNDO DOB 11-17-1993.mp3” (6 minutes, 14

seconds)

2. “JOSEPH FACUNDO DOB 11-17-1993 2.mp3” (5 minutes, 43

seconds)

3. “13253675488328592674.wav” (11 minutes, 28 seconds)

4. “13254591348327662174.wav” (3 minutes, 4 seconds)

Phone call 1 is between the appellant and his mother. He starts off 

by proclaiming his innocence and saying that she needs to believe he is 

innocent. She asks if he did not do it, who did: “Because I know you 

know.” He reiterates his innocence and then asks her to get him a lawyer. 

She is surprised to learn that he is presently in jail, so she asks for 

4
details about that. He says that he is in Laredo. He then asks her whether 

she has gotten him a lawyer yet, and she details her efforts. The 

appellant then begins proclaiming his innocence, stating that he has 

people who will testify that he was “at the bayou” at the time of the 

murder, which will prove that he is innocent. She replies that he needs to 

wait until he has a lawyer and then tell “the detectives” about his alibi. 

The appellant begins crying, telling her that he is innocent and he wants 

to see her. His mother gets angry and tells him that he is going to have to 

start with a court-appointed lawyer before she can hire one for him. The 

appellant then detailed his arrest, and relayed the little bit of 

information he had been provided by the authorities in Webb County. 

His mother tells him that he needs to request a court-appointed lawyer 

so that he can then provide the police with his alibi. The appellant states 

that his alibi is that he and Escobar were at the bayou “with another 

friend of ours.” The appellant says that he is working on finding out that 

other person’s name. His mother replies that she knows that the 

appellant “knows something” about the murder. She also tells him not to 

talk to the police without his lawyer present. 

Phone call 2 is between the appellant and Roy. The appellant tells 

Roy that he needs Roy to get someone’s phone number, but he does not 

5
know the name of the person. The appellant tells Roy that this unnamed 

person was his alibi. The appellant says that, while he does not know the 

person’s name, he knows him as “Blinky.” Roy says that he knows of 

Blinky. Roy asks the appellant how he knows that Blinky will provide 

him with an alibi, and the appellant says he knows because he talked 

with Blinky about the matter before getting arrested. The appellant then 

changed the topic and told Roy to pressure the appellant’s mother to get 

him a lawyer. Roy— who the appellant calls “dad” at times on this call —

asks the appellant about his failed effort to escape to Mexico, and the 

appellant explains that he was unable to cross the border because he 

was “set up.” Roy then returns to talking about getting a lawyer for the 

appellant. The appellant reiterates that he is innocent and has an alibi. 

Roy says that he would need to explain that to the lawyer, and the 

appellant entreats Roy to help his mother find a lawyer for him. Roy says 

that he will “see what [he] can do.” 

Phone call 3 is the appellant calling his mother. The conversation 

begins at the 1:39 mark. The call begins with the appellant’s mother 

telling him that these phone calls are expensive. The appellant asks if 

she has hired a lawyer for him yet, and she says she has not. She advises 

him to watch what he says because the calls are recorded. They discuss 

6
the logistics of a relative visiting him, and then they turn the topic back 

to the family hiring a lawyer for him. His mother gets upset at him and 

demands that he “have patience with us” in his demands for a lawyer. 

She advises him that if he’s innocent, he “better start praying,” after 

which he insists that he is innocent and claims that the only evidence 

against him was “that white girl” who said he was with her at the 

murder, but he was not there. The appellant’s mother cautioned him 

against talking about the case on the phone; the appellant responded by 

claiming that police had not found his fingerprints at the scene. The 

discussion turned back toward acquiring a lawyer for him. The appellant 

said that Escobar had a lawyer, so he gave his mother information on 

how to find out how to contact Escobar’s lawyer. The appellant’s mother 

told the appellant that when he got a lawyer he needed to tell the lawyer 

everything, and not try to protect others or cover up information. After 

that, the conversation turned to mundane details of life from the 

appellant’s mother. The call concludes with the appellant telling her he 

loves her, and then pleading for help. 

Phone call 4 is the appellant calling a male whose name is 

inaudible. The conversation on call 4 begins at the 1:33 mark and lasts 

7
less than half a minute. In this call, the appellant asks the other person 

to “give Blinky’s number” to Roy. 

At trial, the State also presented evidence that in the days after the 

murder the appellant pressured Jimmy Whalen, aka Blinky, to lie and 

state that he was the appellant’s alibi. (5 RR 17). 

B. The Appellant’s Trial Objections

When the State offered the jail calls into evidence, the appellant 

made numerous objections. First, defense counsel objected to “the 

predicate,” claiming that no one had identified who the voices on the 

recording were and “whether the person operating this equipment was 

capable of doing it.” (4 RR 32). Then, defense counsel claimed that 

recording inmates’ jail calls was “tantamount to a wire tap,” and, as there 

was no authority for a wire tap, the recordings were illegally obtained 

evidence that should be excluded. (4 RR 33). The trial court overruled 

these objections. (4 RR 33).

Defense counsel then objected based on “the violation of the Fifth 

Amendment.” (4 RR 34). The only explanation defense counsel offered of 

this argument was that “[h]e’s in custody at that point.” (4 RR 34). A 

prosecutor responded that the appellant “is not subject to counsel on 

8
the phone. He has no right to privacy to that conversation in jail, and the 

State would assert there’s no Fifth Amendment violation.” (4 RR 34-35). 

The trial court overruled the objection and stated that State’s 111 was 

admitted into evidence. (4 RR 35). The State, however, asked to play the 

recordings “at a later time,” and the trial court said that would be fine. (4 

RR 35).

The next day, defense counsel stated that he had additional 

objections prior to the recordings being published to the jury. (5 RR 3). 

I would object to those portion of those conversations 

between my client and family members that deal with 

specifically his parents’ efforts at retaining counsel on his 

behalf, his admonitions or warnings from his mother about 

not talking to law enforcement and everything pertaining to 

that subject matter of representation and counsel and his 

need not to talk to anyone, his need to immediately invoke 

his rights to counsel, and that whole line of conversation as 

being irrelevant. And since these are post arrest statements, 

a jury could hear that to potentially infer comments on his 

post-arrest right to silence. It is tantamount to an implicit 

suggestion perhaps of his guilt, and I just think it’s 

irrelevant, inflammatory, and prejudicial.

(5 RR 3). 

The trial court overruled the objection. (5 RR 3). A prosecutor 

then asked to “put something on the record,” and noted that the exhibit 

was already in evidence and the objection was untimely. (5 RR 3-4). The 

prosecutor addressed the merits of the appellant’s objection by noting 

9
that none of the phone calls did involved law enforcement officers, thus 

the Fifth and Sixth Amendments were not implicated. (5 RR 4-5). The 

trial court replied by noting that the objection was overruled as “not 

timely.” (5 RR 5). 

II. The Appellant’s Points

Because of the disjointed manner in which the appellant’s 

arguments were presented to the trial court, the threshold question 

regarding the appellant’s first three points is what arguments, exactly, 

were preserved. This is the matter addressed in his fourth point, which 

asserts that the trial court erred in overruling his second objection, 

made the day after the evidence was admitted, as untimely. The State 

will address the appellant’s fourth point first.

A. Reply to Point Four: The appellant’s objection, made 

the day after the evidence was admitted, was 

untimely and preserved nothing for review.

In his fourth point of error, the appellant asserts that the trial 

court erred by overruling his second objection as untimely. (See 

Appellant’s Brief at 27-29). The normal rule is that an objection must be 

raised as soon as the basis for objection becomes apparent, or else the 

matter is forfeited. Johnson v. State, 878 S.W.2d 164, 167 (Tex. Crim. App. 

10
1994). The appellant argues that this rule should not apply here because 

his objection, though made well after the basis for the objection was 

apparent, still occurred before the evidence was published to the jury.

This Court faced an almost identical situation in Castrejon v. State, 

428 S.W.3d 179 (Tex. App.—Houston [1st Dist.] 2014, no pet.). There, 

the State offered into evidence an audio recording and, over one 

objection, the trial court admitted it into evidence. Castrejon, 428 S.W.3d 

at 182-83. However, the State did not play the audio recording until 

closing argument, at which time the defendant raise a second, separate 

objection. Id. at 183. This Court held that, even though the second 

objection was made prior to the audio recording being published to the 

jury, the objection was untimely and presented nothing for review on 

appeal. Id. at 186. 

The State believes that Castrejon controls here. The appellant’s 

second objection, though made prior to publication of the audio 

recordings, was made well after the recordings were admitted into 

evidence. Therefore that objection was untimely and preserved nothing 

for review. 

The only authority cited by the appellant to show that his second 

objection was still timely is dicta from a 20-year-old civil case from the 

11
Fourth Court of Appeals. (See Appellant’s Brief at 28). Upon closer 

analysis, though, this case does not actually help the appellant.

The appellant quotes Union City Body Co., v. Ramirez, 911 S.W.2d 

196 (Tex. App.—San Antonio 1995) (orig. proceeding). This case 

involved multiple defendants. One of them moved for severance. The 

trial court granted the severance, but the next day another defendant, 

the Union City Body Company, objected to the severance. The trial court 

held the objection to severance was untimely, and a mandamus action 

ensued. In discussing the timeliness of the trial objection, the Union City 

Body Co. court used the sentence that the appellant quotes in his brief: 

‘Timeliness’ defies definition and generally the question of what is 

timely or otherwise must be left to the sound discretion of the trial 

judge, but such objection need not be immediate.” 911 S.W.2d at 201 

(quoting Beall v. Ditmore, 867 S.W.2d 791, 795 (Tex. App.—El Paso 1993, 

writ denied)). The Fourth Court then went on to hold that the trial court 

was within its discretion to reject the objection as untimely. Id. at 202-

203. Thus, if the rule of Union City Body Co. is that a trial court has 

discretion in determining whether a non-contemporaneous objection is 

timely, that would weigh in favor of upholding the trial court’s 

12
determination, in this case, that the appellant’s non-contemporaneous 

objection was untimely.

The dicta in Union City Body Co. was a quote from another civil 

case, this one from the Eight Court of Appeals. In Beall, the defendant’s 

attorney seems to have accidentally elicited inadmissible evidence on 

cross-examination, but then asked another, unrelated question and only 

objected after this subsequent question was answered. Beall, 867 S.W.2d 

at 793. The trial court seems to have treated the objection as timely 

enough and ruled on it. On appeal, the Eighth Court rejected the 

appellee’s preservation argument and held that, even though the 

objection was not contemporaneous it was “timely” enough. Id. at 795. 

The Eighth Court then rejected the appellant’s claim on the merits. Id. at 

796. 

Whatever the merits of the holding in Beall at the time and in the 

context of when it was decided, modern Texas criminal law applies a 

much stricter preservation requirement. See, e.g., Lagrone v. State, 942 

S.W.2d 602, 618 (Tex. Crim. App. 1997) (where defense counsel did not 

object until after objectionable question was answered, objection was 

untimely and preserved nothing for review). 

13
The appellant’s second objection was untimely, and none of the 

arguments made in that objection are preserved for appeal. This Court 

should reject the appellant’s fourth point (challenging the overruling of 

his second objection), and in dealing with the appellant’s first three 

points this Court should restrict itself to considering the matters 

preserved in the appellant’s first, timely objection.

B. Reply to Point One: Statements made on a phone call 

to family members are not custodial statements for 

Fifth Amendment purposes.

In his first point, the appellant claims that the statements he made 

on the phone calls were custodial statements, and thus they were 

inadmissible because he was not mirandized. (Appellant’s Brief at 25; 

see 4 RR 34-35). However, the Fifth Amendment right to counsel applies 

only during interrogations with law enforcement agents; the appellant 

was placing phone calls to family members who seem to have had no 

connection with law enforcement, thus the Fifth Amendment has no 

application. See Banargent v. State, 228 S.W.3d 393, 402 (Tex. App.—

Houston [14th Dist.] 2007, pet. ref’d) (recordings of phone calls made 

by defendant from prison were not the product of custodial 

interrogation); State v. Scheineman, 77 S.W.3d 810, 813 (Tex. Crim. App.

14
2002) (no custodial interrogation occurred when incarcerated 

defendant spoke in bugged jail room with incarcerated co-defendant).

Because the objected-to statements were not the product of custodial 

interrogation, this Court should overrule the appellant’s first point.

C. Reply to Points Two and Three: The appellant’s SixthAmendment and “due process” complaints were not 

timely presented to the trial court and thus present 

nothing for this Court’s review.

In his second point of error, the appellant claims that recording 

the phone calls violated his Sixth Amendment right to counsel. 

(Appellant’s Brief at 23-24, 26). However, the only time the appellant 

mentioned the Sixth Amendment at trial was during his second, 

untimely objection to the evidence. (See 4 RR 32-35; 5 RR 3-5). Because 

this argument was not presented to the trial court in a timely manner, it 

cannot be the basis of reversal on appeal. TEX. R. EVID. 103(a).

In his third point, the appellant claims that recording his phone 

calls violated “due process.” (Appellant’s Brief at 24-25, 27). This 

argument was never presented to the trial court and thus presents 

nothing for this court’s review. 

15
Reply to Points Five and Six

The appellant’s points make sense only if one presumes all 

Hispanic people live in ethnically segregated communities. Asking 

a venire member for his opinion on law enforcement “in your 

community where you live” is not a race-based question.

In his fifth and sixth points of error, the appellant complains about 

the trial court’s denial of a Batson challenge he raised during voir dire. 

The appellant separates this argument into two different points. In his 

sixth point, the appellant claims that the State violated the ban on 

striking jurors based on race announced in Batson v. Kentucky, 476 U.S. 

79 (1986). (Appellant’s Brief at 35-37). In his fifth point, the appellant 

argues that the State violated the Texas statutory ban on striking jurors 

based on race contained in Code of Criminal Procedure Article 35.261. 

(Appellant’s Brief at 34-37). But Article 35.261 is simply a state 

codification of Batson. The State is not aware of any way in which 

appellate review of these claims differs, and the appellant does not point 

out any such distinctions in his brief. The State will brief this matter as a 

Batson challenge, as that is the more regularly cited authority.

16
I. Factual Background: The Appellant’s Batson

Challenges

After the parties had made their strikes but before the jury was 

sworn, defense counsel objected because the State had used two of its 

peremptory strikes on venire members 26 and 34, who were Hispanic. 

(2 RR 196-97). According to defense counsel, there were three Hispanic 

members of the venire after the court had excused those who were 

challengeable for cause, meaning the State had struck “66% or twothirds of the Hispanics on this panel.” (2 RR 197). 

The trial court asked the State to explain why it had struck venire 

members 26 and 34. (2 RR 197). The State explained that it had struck 

venire member 26 because when a prosecutor asked him to rate, on a 1-

to-4 scale, his view of law enforcement, venire member 26 had selected 

2. (2 RR 198, see 2 RR 81, 83). The State pointed out that it had struck 

everyone who answered 2 to that question. (2 RR 198). The State also 

said that venire member 26 had said he suffered from arthritis and 

believed he would have a hard time focusing on the case because of the 

pain. (2 RR 198).

Regarding venire member 34, the State explained that he, too, had 

answered “2” on the law-enforcement question. (2 RR 198-99, see 2 RR 

17
81, 84). In addition, the State pointed out that venire member 34 had 

said he did not believe the State should prosecute capital murder cases. 

(2 RR 199, see 2 RR 74, 77). The State also pointed out that venire 

member 34 had said he did not find jailhouse informants credible. (2 RR 

198, see 2 RR 65, 68). The trial court overruled the appellant’s Batson 

challenge. (2 RR 199).

II. Legal Background: The Familiar Batson Framework

The three steps of a Batson hearing are well-known. First, the 

opponent of a peremptory strike must make out a prima facie case of 

racial discrimination. Second, the burden of production shifts to the 

proponent of the strike to come forward with a race-neutral 

explanation. Third, the trial court determines whether the opponent of 

the strike has proved purposeful racial discrimination. The burden of 

persuasion rests with, and never shifts from, the opponent of the strike. 

Purkett v. Elem, 514 U.S. 765, 767 (1995).

The determination of whether the proponent's explanation is a 

pretext “is solely a question of fact; there is no issue of law.” Gibson v. 

State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004). Because the trial 

court's fact finding will be based on factors not evident in the record, 

18
such as the lawyers' courtroom demeanor and credibility, a reviewing 

court will give great deference to the fact finding and reverse only if the 

finding was clearly erroneous. Ibid.

III. Argument: The trial court was within its discretion to 

believe the State’s facially race-neutral question was, in 

fact, a race-neutral question.

The appellant does not dispute that the State, as it claimed, 

actually struck all the remaining venire members who answered “2” to 

the question regarding law enforcement. (Appellant’s Brief at 32). 

Instead, the appellant claims that the question itself was a method of 

racial discrimination because it inquired into the venire members’ 

opinion of law enforcement “in your community where you live”: 

Since it is not uncommon for people of similar race, 

nationalities, cultures and/or backgrounds to live in the 

same area and share similar opinions, including opinions 

about law enforcement, the answer solicited resulted in the 

same outcome as if the State would have asked, “In you 

Hispanic neighborhood, what is your opinion of law 

enforcement.”

(Appellant’s Brief at 36) (footnote omitted). 

There are several possible ways to address this assertion. The first 

is to point out that it makes sense only if one assumes that all Hispanic 

19
people live in ethnically segregated communities. That assumption is 

incorrect2 and without basis in the record.

Another possible response to the appellant’s assertion is that, 

even if true, it would not show racial discrimination. Defense counsel 

identified venire member 38 as the other Hispanic venire member. (2 RR 

197). He answered “3” on the question about law enforcement and the 

State did not strike him.3 (See 2 RR 81, 84). Accepting the appellant’s 

assumption that all Hispanic people live in ethnically segregated 

communities, the State’s failure to strike venire member 38 shows that 

the State was willing to accept people who lived in Hispanic 

communities where people had a more positive view of law 

enforcement. This would prove that the State struck venire members 26 

and 34 based on their view of law enforcement and not on the fact that 

they lived in Hispanic communities.

The simplest and most basic response to the appellant’s assertion 

is that the State provided a race-neutral explanation for its strikes, that 

2 See https://upload.wikimedia.org/wikipedia/commons/8/8a/Race_and_ethnicity_ 

2010-_Houston.png (map, based on 2010 Census data, showing racial makeup of 

Houston). 

3 The State did not use all its strike, thus the prosecutors could have struck venire 

member 38 if they had intended to strike all Hispanic people from the jury. (See 2 RR 

197). 

20

 
explanation is supported by the record, and the trial court observed the 

demeanor of the prosecutors and believed the race-neutral explanation. 

In such a situation, this Court must defer to the trial court’s finding and 

overrule the appellant’s points. See, e.g., Jasper v. State, 61 S.W.3d 413, 

422 (Tex. Crim. App. 2001); Gibson, 114 S.W.3d at 534. 

Reply to Point Seven

The alleged hearsay the appellant complains about is so 

insignificant that it could not possibly have affected the trial.

State’s Exhibit 3 is the report created by the paramedic who 

responded to the scene and found Lopez dead. (3 RR 54-57). The author 

of the report testified at trial. (3 RR 54). The State proffered it as a 

business record, exempt from the hearsay rule. (3 RR 55). When it was 

offered into evidence, the appellant objected that the narrative portion 

of the report contained hearsay within hearsay. (3 RR 55-56). The trial 

court overruled that objection. (3 RR 56). In his seventh point the 

appellant asserts that the trial court erred. (Appellant’s Brief at 37-40). 

The narrative portion of the report reads:

Upon arrival PT presented supine in bedroom of home. PT 

was covered in blood, Pulse less and Apneic. PT was cold 

and cyanotic with lividity. PT had sword laying across his 

left chest and left arm. PT had brain matter and skull 

21
fragments beside his body. PT had laceration to right chest 

and throat. PT had penetrating trauma to right cheek 

esposing bone and tissue. 6 second strip performed 

showing Astyote. PT pronounced DOS due to unknown 

downtime and injuries incompatible with life. House had 

blood splatter on ceiling of bedroom just above the body as 

well as in living room and kitchen. Kitchen pantry had 

copious amounts of coagulated blood on floor. House 

appeared to be ran sacked as TV in bedroom was upside 

down on floor. Drawers in living room and bedroom were 

overturned. TV in living room was missing. PT family was 

taken to back bedroom awaiting SO arrival. Upon arrival of 

SO report given to officer. Assistant chief and Medic 41

remained on scene to give report to homicide detective. 

(State’s Ex. 3). 

Error in the admission of evidence is non-constitutional error 

subject to harm analysis under Rule of Appellate Procedure 44.2(b). 

Smith v. State, 420 S.W.3d 207, 219 (Tex. App.—Houston [1st Dist.] 2013, 

pet. ref’d). Under this standard, appellate courts must disregard any 

error that did not affect the defendant’s substantial rights. Ibid. A 

substantial right is affected when the error had a substantial and 

injurious effector influence in determining the jury’s verdict. Ibid. 

(quoting King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)). This 

Court should affirm the conviction if, after reviewing the record, it has 

fair assurance that the error did not influence the jury, or had but a 

slight effect. Ibid.

22
Assuming, without conceding, that this was inadmissible hearsay, 

the State notes that the appellant offers no explanation of how the 

admission of the narrative paragraph harmed him. (See Appellant’s Brief 

at 37-40). There was no dispute at trial over the fact that Lopez was 

killed, or over the manner in which he was killed. The narrative

paragraph contains nothing that makes it more or less likely that the 

appellant was involved with the murder. The only information in this 

paragraph that was not admitted, without objection, through other 

witnesses are a couple of minor medical details (e.g. “6 second strip 

performed showing Astyote”) that had no bearing on any issue at trial. 

This Court should reject the appellant’s seventh point because the 

evidence of which he complained could not possibly have influenced the 

jury.

On the merits, though, this paragraph is not even inadmissible 

hearsay. All it contains is the observations of the paramedic who made 

the record, and this is plainly what is allowed under the businessrecords exception to the hearsay rule. See TEX. R. EVID. 803(6); Moyer v. 

State, 948 S.W.2d 525, 528 (Tex. App.—Fort Worth 1997, pet. ref’d) 

(paramedic’s report of observations admissible as business record). Had 

the report contained information that someone else told the paramedic, 

23
that would have been inadmissible hearsay within hearsay. See, e.g., 

Garcia v. State, 126 S.W.3d 921, 926 (Tex. Crim. App. 2004). There is no 

indication that is the case here, however. The only example of supposed 

hearsay-within-hearsay that the appellants specified in his objection 

was the paramedic’s observation that a television was missing. 

According to the appellant, “[s]omeone had to have told her” that there 

had been a television at the house in order for the paramedic to infer 

that a television was missing. But nothing in State’s Exhibit 3 or the 

paramedic’s testimony implies that someone told her a television was 

missing. According to another witness, there was a place in the living 

room where “it appeared to have had at some time a television in that 

location. There were cables coming out that ... would have been going 

into a television.” (3 RR 149 (describing crime scene photo, State’s 

Exhibit 14, that is very difficult to make out in the appellate record)). 

Anyone familiar with a typical home could observe a blank spot on the 

wall or cabinet with wires going to it and conclude that a television was 

missing.

This Court should reject the appellant’s seventh point. The 

evidence he complains of was not hearsay, and even if it was it was so 

insignificant that its admission does not warrant reversal. 

24
Conclusion

The State respectfully submits that all things are regular and the 

judgment of the trial court should be affirmed.

DEVON ANDERSON

District Attorney

Harris County, Texas

/s/ C.A. Morgan

CLINTON A. MORGAN

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

713.274.5826

Texas Bar No. 24071454

25
Certificate of Compliance and Service

I certify that, according to Microsoft Word’s word counting 

function, the portion of this brief for which Rule of Appellate Procedure 

9.4(i)(1) requires a word count contains 5,132 words.

I also certify that I have requested that efile.txcourts.gov

electronically serve a copy of this brief to:

Patrick McCann

writlawyer@justice.com

Dawn Zell Wright

zellwright@zwlaw.us

/s/ C.A. Morgan

CLINTON A. MORGAN

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002-1923

713.274.5826

Texas Bar No. 24071454

Date: November 25, 2015

26