Opinion
08-23-00239-CR
10-25-2024
CLARISSA GUERRA, Appellant, v. THE STATE OF TEXAS, Appellee.
Do Not Publish
Appeal from the 83rd Judicial District Court of Val Verde County, Texas (TC# 2021-0159-CR)
Before Alley, C.J., Palafox, and Soto, JJ.
MEMORANDUM OPINION
JEFF ALLEY, Chief Justice
Following a jury trial, Appellant was found guilty of Felony Murder and Tampering with Evidence. Appellant argues on appeal that the trial court erred in (1) admitting a recorded jailhouse phone conversation over a valid hearsay objection; (2) permitting a late-identified expert witness to testify; (3) failing to suppress one of Appellant's statements which she claims was coerced and therefor involuntary under Miranda; and (4) failing to disqualify a juror who disclosed that she was familiar with two of the victim's children after being seated on the panel. As discussed below, we affirm the trial court's rulings.
These factual recitations are taken largely from the trial court record. Appellant has not challenged the sufficiency of the evidence to support the conviction, and we recite the facts in light most favorable to the verdict.
A. Murder at the cemetery-March 7, 2021.
In the pre-dawn hours of a Sunday morning, Appellant and Ernesto Olguin drove their fellow gang member, Sandra De La Cruz, in De La Cruz' car, to the San Felipe Cemetery in Del Rio, Texas. The purpose of the trip was ostensibly Appellant's desire to "see her brother," implying her brother was buried there (although he was in fact alive and incarcerated). Within moments of the group's arrival at the cemetery, Appellant and De La Cruz exited the vehicle after which De La Cruz was fatally shot five times with Olguin's gun. At the time of her death, De La Cruz was a mother to six children, two of them twins.
This case was transferred pursuant to the Texas Supreme Court's docket equalization efforts. Tex. Gov't. Code Ann. § 73.001. We follow the precedent of the Fourth Court of Appeals to the extent it might conflict with our own. See Tex. R. App. P. 41.3.
After the shooting, Appellant and Olguin destroyed De La Cruz's cellphone, abandoned De La Cruz' car, and hid the murder weapon, Appellant planned for the twosome to go to Mexico. But they were arrested while attempting to leave the country.
B. Anatomy of the State's case.
After providing several statements to law enforcement, Olguin accepted a plea deal, the terms of which included his testifying against Appellant. At trial, Olguin testified that Appellant was the lone shooter who murdered De La Cruz. Because Olguin was an accomplice, the State put on additional evidence, some of which we describe below, to corroborate his testimony.
(1) Jailhouse phone calls
During the trial, the State admitted recordings of several jail house phone calls between Appellant (who was not in jail at the time) and her brother, and some of Appellant's alleged fellow gang members (who were in jail). The calls took place in a ten-day period before and including the day of the murder. Appellant's brother and other fellow gang members were incarcerated on charges related to a February 2021 raid on Antonio Elias' trailer. Collectively, the calls evidence Appellant's romantic relationship with Elias, Elias' anger with De La Cruz for her mismanagement of his trailer and "business" after the raid; Appellant's cousin Jesus Garcia's incarceration due to domestic violence allegations made by De La Cruz; and Appellant's growing hostility towards De La Cruz, who was suspected of being an informant to federal authorities. We highlight details for just a few of the calls:
Appellant often stayed at the trailer, where she used drugs and where she and Olguin later hid or destroyed evidence after the murder.
• February 26, 2021: Appellant tells Elias that De La Cruz is "a whore." Appellant says she "fuckin' popped" De La Cruz and "fuckin' busted her eyebrow open" and expressed anger because De La Cruz is "talking" [to law enforcement]. Appellant says De La Cruz "thinks we're snitching on her when she's snitching on us." Appellant notifies Elias that De La Cruz gave federal authorities access to her phone.
• February 27, 2021: While discussing De La Cruz with Elias, Appellant says, "Just give me the word and I'll fuckin' [drop] her."
• February 28, 2021: Elias tells Appellant that De La Cruz is trying to obtain information from his phone and warns Appellant to "be careful." Elias says, "Trash that bitch." When Elias tells Appellant to "stay strapped" (carry a gun), she responds, "all the time."
• March 4, 2021 (three days before the murder): Appellant accepts a call from Garcia, who is incarcerated on domestic violence charges brought by De La Cruz. Garcia says, "I feel
like fucking her up really bad." Appellant replies, "I can do it for you" and "If I find this bitch, I'll throw her down . . . because she'll be snitching to the police again."
• March 7, 2021 (just before 7:45 p. m., several hours after the murder): Elias calls Appellant while Olguin is with her. Olguin participates in the conversation. Almost the entirety of the conversation is in Spanish and seemingly in code. Elias asks Appellant if she is "good;" Appellant replies, "I'm perfect." Elias warns Appellant to be careful because "they are looking for you." Appellant states she and Olguin are getting help from others, adding, "Worse case, [I'll] go to Mexico."
• March 7, 2021 (sometime after 6:00 p. m, but before Appellant's arrest) Appellant takes a call from Kelvin Brown, then incarcerated in the same pod with fellow alleged gang members, Elias, Garcia, and Appellant's brother. Brown indicates he has heard some things about the "disappearance" of De La Cruz. Appellant says several times, "You're talking to the one." When the two discuss Garcia's reaction to the news of De La Cruz' "disappearance," Brown says Garcia is "shit happy."
The certified interpreter testified that Appellant says, "Yo la tumbo" which would be "I'll knock her down" or "I'll drop her."
(2) Appellant's facetime call confession hours before arrest
Just after 5 p.m. on the day of the murder, Elias and Appellant participated in a FaceTime call. While listening to Elias complain about De La Cruz, Appellant appears happy. When Elias says, "What's up?" Appellant makes a "cut" motion across her neck twice, telling Elias "I've got you." Elias says no, that De La Cruz "is the one that . . .," when Appellant interrupts, closing her eyes and cupping her head in her hands (as if sleeping). She again makes a "cut" motion across her neck twice. Elias says, "Out?" after which Appellant nods affirmatively, points to herself, makes a shaving motion on her cheek, and nods again. When Elias asks, "Was it you?" Appellant nods affirmatively, covers her face with one hand, and makes a "slash" motion across her neck. When Elias asks, "How?" Appellant makes a gun gesture with her hand.
(3) Appellant's statements to police
During the investigation, Appellant gave three recorded statements to detectives, all of which were admitted at trial. In each statement, she was read and waived her Miranda rights. In none of the statements does she admit to shooting De La Cruz. In the first statement, made just after Appellant's arrest, she claimed to have only heard about the murder that same day and swore she knew nothing about it. In the second statement, which is one of the subjects of this appeal (and described more fully below), Appellant claimed, "They took us to the cemetery," and "He [Olguin] killed her, he shot her." By the time of Appellant's third statement, the detectives had recordings of all the jailhouse calls and the Facetime video. They confronted Appellant with the calls and let her watch the Facetime video. Appellant then claimed the murder plan was hatched when Olguin and another gang member named Kobe discovered De La Cruz had been recording them while they used (or distributed) narcotics. According to Appellant, Olguin and Kobe intended to kill De La Cruz and Appellant because they could not leave a witness to the murder. When the group arrived at the cemetery, Appellant realized something was up and claimed she told De La Cruz, "If I have to take a bullet for you, take care of my kids." After watching Olguin murder De La Cruz, Appellant said she was unable to exit the vehicle. Out of fear, she cooperated with Olguin and Kobe in the hiding and destroying of evidence.
C. Conviction and sentencing.
Appellant called no witnesses in her defense. After deliberating less than an hour, the jury convicted Appellant on both counts charged. The jury assessed a 70-year sentence for the murder and 10 years for the tampering with evidence charge, both of which the judge imposed in the judgment of conviction.
II. Issues On Appeal
Appellant raises four issues on appeal. First, she argues the trial court erred in admitting a jailhouse phone recording (one in which Appellant did not participate) despite a valid hearsay objection. Second, Appellant claims her case was prejudiced when the trial court permitted the testimony of a late-identified expert witness for the State. Appellant next contends the second of her three recorded statements should have been suppressed because it was given involuntarily; specifically, she claims that, after being shown a photo of her injured brother, Appellant was so upset that she was unable to rationally waive her Miranda rights. Finally, Appellant asserts the trial court erred in failing to deem a juror "disabled," under Texas Code of Criminal Procedure Article 36.29, when the juror told the court that the juror was familiar with the victim's twins.
III. Discussion
A. Hearsay objection to State's proposed exhibit 12.
Appellant contends the trial court erred in admitting State's Exhibit 12 - one of the recorded jailhouse phone conversations in which Appellant did not participate. As shown by the record, however, Appellant is mistaken: the trial court sustained Appellant's hearsay objection and the proposed exhibit of which she complains was never admitted. The issue thus raises nothing for our review and is overruled.
B. Admissibility of testimony of late-disclosed expert witness.
In her second issue, Appellant argues that the trial court erred when it permitted State's expert Tim Counts to testify despite the State's failure to timely identify him under a prior order.
(1) The dispute below
Appellant's trial began on January 18, 2023. On the first day, the State alerted the court it intended to call firearms expert Tim Counts as a witness. Appellant's counsel objected and moved to exclude Counts' testimony because the State had failed to timely identify Counts as a witness. Under a prior court order, the State was required to disclose all witnesses 20 days before trial. While acknowledging it had missed that deadline, the State confirmed that Counts had been identified in a supplemental witness list on January 3, 2023. Additionally, Counts' lab report was made available by the State to Appellant's counsel through an on-line portal on November 30, 2022. Although unable to recall the precise date on which he had access to it, Appellant's counsel confirmed his receipt of Counts' report sometime in November 2022. The court overruled Appellant's objection and Counts testified that a bullet fragment from taken from De La Cruz's autopsy was fired by a gun that he was given to test.
The following exchange confirms Appellant's receipt of the report:
[Court]: Mr. Bagley, were you disclosed this report?
[Defense] Yes, Your Honor.
[Court] Are you prejudicedby the information?
[Defense] I-I believe I am.
[Court] Of the witness name-how are you prejudiced?
[Defense] If the report comes in, we'll be prejudiced.
[Court] Okay. But the information you did have access to prior to January 3rd; is that correct?
[Defense] Yes, Your Honor.
(2) Standard of review and controlling law
We review a trial court's decision to allow an undisclosed or improperly disclosed witness to testify for an abuse of discretion. Fox v. State, No. 04-15-00618-CR, 2017 WL 96160, at * 2 (Tex. App.-San Antonio January 11, 2017, no pet.) (mem. op.) (citing Martinez v. State, 867 S.W.2d 30, 39 (Tex. Crim. App. 1993)). A trial judge abuses its discretion when the decision falls outside the zone of reasonable disagreement. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). Stated otherwise, the trial court abuses its discretion when it acts "without reference to any guiding rules and principles or acts in a manner that is arbitrary or capricious." Morris v. State, 123 S.W.3d 425, 426 (Tex. App.-San Antonio 2003, pet. ref'd) (quoting Lam v. State, 25 S.W.3d 233, 236-37 (Tex. App.-San Antonio 2000, no pet.)).
Witnesses should be disclosed if they will be used by the State at any stage in the trial. Hightower v. State, 629 S.W.2d 920, 925 (Tex. Crim. App. [Panel Op.] 1982) (citing Young v. State, 547 S.W.2d 23, 27 (Tex. Crim. App. 1977)). When the trial court grants a discovery motion, the State has a continuing obligation to disclose. Hardin v. State, 20 S.W.3d 84, 88 (Tex. App.- Texarkana 2000, pet ref'd) (citing Crane v. State, 786 S.W.2d 338, 348 (Tex. Crim. App. 1990)); see also Fox, 2017 WL 96160, at * 2 ("in general, upon request, the State must provide the defendant notice of those it intends to call as witnesses during trial"). When a trial court permits a non-disclosed or improperly disclosed witness to testify, we determine whether the prosecutor's improper disclosure was made in bad faith and whether the defense could have reasonably anticipated the witness would testify. Id. (citing Wood v. State, 18 S.W.3d 642, 649 (Tex. Crim. App. 2000)).
When determining whether the State acted in bad faith, the reviewing court considers: (1) whether the defense has shown the State intended to deceive; (2) whether the State's late notice left the defense inadequate time to prepare; and (3) whether the State freely provided the defense with information (by maintaining an "open files" policy, by providing updated witness lists, or by promptly notifying the defense of new witnesses). Hardin, 20 S.W.3d at 88.
Similarly, when considering whether the defense could have anticipated the State's witness, we analyze: (1) the degree of surprise to defendant; (2) the degree of disadvantage of that surprise (that is, whether the defense was aware of what the witness would say or whether the witness only testified to cumulative/uncontested issues); and (3) how much the trial court was able to remedy that surprise (by granting a recess, postponement or continuance). Id. at 88-89. Any error in allowing the witness to testify over a claim of surprise is made harmless by the defendant's failure to object or move for a continuance. Barnes v. State, 876 S.W.2d 316, 328 (Tex. Crim. App. 1994) (en banc).
(3) Application
Here, nothing in the record suggests that the State intended to deceive or acted in bad faith when it identified Counts as an expert witness after the expiration of the trial court's order. First, the State provided Counts' report to Appellant's counsel more than 45 days before trial. Further, although the actual identification occurred after the court's "20 days prior to trial" deadline, the State disclosed Counts on a supplemental witness list two weeks before the trial date. Appellant's counsel was put on notice, first, 45 days before trial, and then again, about two weeks before trial. The trial court did not abuse its discretion in concluding that Appellant's counsel could have reasonably anticipated Counts' testimony at trial. See Veloz v. State, 653 S.W.2d 918, 922 (Tex. App.-Corpus Christi 1983, no pet) (defense counsel "could and should have" reasonably anticipated non-disclosed ballistics expert's testimony when counsel was notified of murder weapon's return from lab.)
Appellant admits the State did not act in bad faith but alternatively argues the State did not act in good faith.
Appellant's briefing contends her counsel was "genuinely surprised" when the State first announced that Counts would be called to testify, and that that "surprise" signaled Appellant's counsel "clearly had no advance opportunity" to prepare an effective cross-examination. But Appellant's counsel's notice as of both November 30, 2022 and January 3, 2023 undermines the surprise claim. At a minimum, the November 2022 and January 2023 dates presented opportunities for Appellant's counsel to ask the court to move for a continuance. Appellant's counsel's failure to act in those critical timelines means he "cannot now be heard to complain," and renders any error harmless. See Barnes, 876 S.W.2d at 328.
Viewing the evidence in its entirety, we find the trial court did not abuse its discretion in permitting Counts to testify at trial. Appellant's second point of error is overruled.
C. Admissibility of Appellant's second statement.
(1) The dispute below
Appellant contends the trial court erred in denying her Motion to Suppress and later in admitting her March 12, 2021 statement (the second statement) because it was coerced and given involuntarily. Specifically, Appellant claims that, after detectives presented her with a photo portraying her injured brother lying on a gurney, the emotional distress of seeing the photo rendered her unable to make a "free and unconstrained choice" to waive her Miranda rights. According to Appellant, the officers' theory that her brother had been attacked by members of Appellant's gang, perhaps in retaliation for Appellant's murder of De La Cruz, was just a ruse. Appellant also argues the officers' "retaliation" theory, coupled with the graphic photo, compelled her belief that cooperating with prosecutors and confessing to the murder would protect her brother.
(2) The second statement and the trial motion to suppress
Appellant's second statement was given to Val Verde County Sheriff's Department Lt. Garcia and another officer on March 12, 2021. Within seconds of sitting down with Appellant, and just before issuing Miranda warnings, Lt. Garcia showed Appellant a photograph of her then- incarcerated brother lying on a gurney with visible injuries. At the time, the officers believed that the brother's injuries may have been inflicted by Appellant's fellow gang members (also incarcerated) in retaliation for the De La Cruz murder.
After Appellant viewed the photo for a few seconds, it was immediately taken back by the officers while Appellant exhibited an emotional outburst. Less than a minute later, Lt. Garcia asked Appellant if she wanted to talk about the incident. Although emotional, Appellant nodded in the affirmative. She was still sniffling when Lt. Garcia read Appellant her Miranda rights. The officers offered Appellant tissues and a glass of water, while Lt. Garcia is saying "I need you to calm down so I can hear you," "you can sit there and cry, but if you want to talk to me, I need to advise you of your rights." Teary and sniffling, Appellant acknowledged and can be heard confirming each of the Miranda rights; she then signed a written waiver of those rights.
About four minutes after viewing the photo, Lt. Garcia pointedly asked, "What happened?" Appellant, still crying, stated "He [Olguin] killed her, he shot her." She denied that she ever thought De La Cruz was a "snitch." Over the course of the interview, Appellant gradually became more composed, responding to the officers' questions and often offering unrelated information. Seven minutes after she first viewed the photo, Appellant renewed her crying and began her story that about being taken the cemetery and fearing for her own life. She was composed at times and cried audibly at times. Twelve minutes after viewing the photo, Appellant was completely calm and responsive to questions. But she later exhibited intermittent emotional outbursts in response to various topics. During breaks in the interrogation, Appellant was calm and quiet; she put her head on the table and occasionally appeared to doze off. Later that day, Appellant cried again when an officer told her she would be charged for De La Cruz' murder: she angrily pounded her fist on the table, saying, "You're pissing me off. I didn't do anything!"
During a pretrial proceeding, the trial court heard Appellant's motion to suppress the statement. After viewing the videotaped statement and hearing argument, the trial court concluded that Appellant gave the statement voluntarily. Although noting it was "odd" that the officers presented the photo at all, the court concluded that Appellant "surprisingly . . . went ahead and got over" the emotional impact of the photo and "spoke voluntarily" with the officers. The court also found that (1) the interview was not so overbearing that Appellant abandoned her free will; (2) the officers' presentation of the photo did not rise to the level of the type of coercion or intimidation that would render the statement involuntary; (3) Appellant's waiver of her Miranda rights was made "knowingly, intelligently and voluntarily;" and (4) no promises were made by the officers to Appellant. On that basis, the court denied Appellant's Motion to Suppress. (3) Standard of review and controlling law
The court also noted the jury would be instructed and would ultimately decide whether the second statement was made voluntarily. The charge contained corresponding language that the jury could not consider the statement unless it concluded the statement was given voluntarily.
Appellate courts review a trial court's ruling on a motion to suppress under a bifurcated standard. State v. Arellano, 600 S.W.3d 53, 57 (Tex. Crim. App. 2020). Under that standard, we give almost total deference to a trial court's determinations of historical fact, and determinations of mixed questions of law and fact that turn on credibility and demeanor if they are supported by the record. See id. (citing Sims v. State, 569 S.W.3d 634, 640 (Tex. Crim. App. 2019)). When the trial court makes findings of fact, a reviewing court determines whether the evidence, viewed in the light most favorable to the court's ruling, supports those findings. See Abney v. State, 394 S.W.3d 542, 548 (Tex. Crim. App. 2013). The same deferential standard of review is applied to a trial court's determination of facts based on a video recording admitted at the suppression hearing. See State v. Duran, 396 S.W.3d 563, 570 (Tex. Crim. App. 2013). That said, appellate courts may review de novo "indisputable visual evidence" contained in a videotape. Id.
When the challenge is specifically to a trial court's determination that a confession was voluntary, the appellate court reviews the entire record, not just the record made at the suppression hearing. Gallegos v. State, 715 S.W.2d 139, 141 (Tex. App.-San Antonio 1986, pet. ref'd); Martinez v. State, 656 S.W.2d 157, 159 (Tex. App.-San Antonio 1983, pet. ref'd). The trial court's judgment will be reversed only if it is arbitrary, unreasonable, or outside the zone of reasonable disagreement. State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014).
As a matter of federal constitutional law, an unwarned statement obtained in a custodial interrogation generally may not be used as evidence by the State in a criminal trial. Miranda v. Arizona, 384 U.S. 436, 444-45, 478-79 (1966). Similarly, the Texas Code of Criminal Procedure requires that the accused be given statutory warnings, "and [that] the accused knowingly, intelligently, and voluntarily waive[ ] any rights set out in the warning[s]" before oral statements made while in custody are admissible at trial. See Tex. Code Crim. Proc. arts. 38.21, 38.22 § 2(b), 3(a)(2).
"Under the Due Process Clause and articles 38.21 and 38.22 of the Texas Code of Criminal Procedure, a confession must be 'voluntary' to be admissible." Lopez v. State, 610 S.W.3d 487, 494 (Tex. Crim. App. 2020). For Due Process purposes, a statement is involuntary "only if there was official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker." Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995) (en banc), overruled on other grounds by Warner v. State, 245 S.W.3d 458 (Tex. Crim. App. 2008). See also Contreras v. State, 312 S.W.3d 566, 574 (Tex. Crim. App. 2010) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973)) ("Coercive government misconduct renders a confession involuntary if the defendant's 'will has been overborne and his capacity for self-determination critically impaired.'"). A defendant in a criminal case is deprived of due process if her conviction is founded, in whole or in part, upon an involuntary confession, without regard to the truth or falsity of confession, and even where there is ample evidence aside from the confession to support the conviction. Jackson v Denno, 378 U.S. 368, 376 (1964). The determination of whether a statement or confession is voluntary ultimately requires an examination of the totality of the circumstances. Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000); Martinez, 656 S.W.2d at 159.
"A statement of an accused may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion, under the rules hereinafter prescribed." See Tex. Code Crim. Proc. Ann. Article 38.21.
"The law universally condemns the use of confessions obtained by means of promises or inducements." Gallegos, 715 S.W.2d at 141 (citing Washington v. State, 582 S.W.2d 122, 124 (Tex. Crim. App. 1979)). Where, as here, the Appellant claims the confession was rendered invalid by some promise or inducement, we consider several factors: the promise must be positive; it must be made or sanctioned by a person in authority; and it must be of such character that it would likely influence the defendant to speak untruthfully. See Medrano v. State, 579 S.W.3d 499, 503 (Tex. App.-San Antonio 2019, pet. ref'd.) (citing Martinez, 127 S.W.3d at 794). As to the last factor specifically, the question is whether the circumstances of the promise "inclined [defendant] to admit to a crime he had not committed." See Matter of B.S.P, No. 04-14-00067-CV, 2014 WL 5464072 at *2 (Tex. App.-San Antonio October 29, 2014, no pet.) (mem. op., not designated for publication) (citing Wayne v. State, 756 S.W.2d 724, 730 (Tex. Crim. App. 1988)).
(4) Application
We consider both whether Appellant's viewing of the photo of her injured brother resulted in her inability to make "free and unconstrained" waivers of her Miranda rights, and whether Appellant's will was so overborne by the emotional impact of the photo that it ultimately compelled her "confession." See Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997) (en banc); Alvarado, 912 S.W.2d at 211; Licon v. State, 99 S.W.3d 918, 924 (Tex. App.-El Paso 2003, no pet.) (noting the determination of whether appellant's confession was involuntary involves a finding that, "at the time the confession was made, appellant was unable to make an independent, informed free choice of the will").
While the video footage of Appellant's second statement confirms her emotional outburst right after viewing the photo, mere emotionalism alone will not render a confession inadmissible. See Coleman v. State, No. 11-11-00039-CR, 2013 WL 779898, at *7 (Tex. App.-Eastland February 28, 2013, no pet) (mem. op., not designated for publication) (appellant's confession was not rendered involuntary purely because he suffered from learning disabilities and experienced fear and high anxiety under pressure); Licon, 99 S.W.3d at 925 (statement of the defendant, who suffered with learning disabilities, was not rendered involuntary because he was frightened and cried intermittently after his arrest); Gonzalez v. State, 807 S.W.2d 830, 832 (Tex. App.-Houston [1st Dist.] 1991, pet. ref'd) (confession made after appellant confronted with bloody shirt - the legal evidence of his guilt - did not amount to evidence of sufficient "coercion" to render confession involuntary).
More importantly, Appellant appears calm and readily responds to the officers' questions several minutes after seeing the photograph. She is admittedly still sniffling during the reading and her acknowledgment of her Miranda rights, a natural consequence of seeing a family member in distress. But as her interview continues, Appellant's emotional episodes are not necessarily from her reaction to the photo, but rather in direct response to the pointed questions about the murder and Appellant's realization that she may be charged and jailed.
Considering the totality of the circumstances as it did, the trial court's finding would be well grounded on several bases evident in the video: Appellant gradually calmed herself, appeared alert, and intentionally responded to questions. She demonstrated no obvious signs of acute mental or physical disability. She does not mention the photo. Her responses were often evasive, attesting to a clear understanding of the questions and the consequences of her statements. And Appellant spoke freely, often volunteering information that was neither requested nor specifically responsive to questions posed.
Nor is there any evidence that the investigators were unduly harsh, refused Appellant basic necessities, mistreated, or intimidated her. See Zuliani v. State, 903 S.W.2d 812, 823 (Tex. App.- Austin 1995, pet. ref'd) (statement involuntary as a matter of law where officers threatened physical harm, yelled threatening statements, shoved [Appellant] against the wall and lifted him off the ground); Cf., Arizona v. Fulminante, 499 U.S. 279, 287 (1991) (clarifying the degree of coercion required to render a statement involuntary does not depend on actual violence; a credible threat or fear is sufficient). On the contrary, the video footage reflects the officers often offered Appellant tissues (after she viewed the photograph), water refreshment and breaks; at the conclusion of the interrogation, one officer retrieved Appellant's wheelchair.
Appellant also claims that the photo evinced an implied "promise" that, if she cooperated by giving a statement, her brother would receive some benefit, such as proper medical care, a lesser jail term, or protection. First, as verified by Lt. Garcia's testimony, the record lacks any promises made or sanctioned by the officers. Moreover, at no time after first seeing it, did Appellant ask about or mention the photo again during the remainder of the second statement. Confirming Appellant herself did not construe the photo as a "promise," Appellant never asked the officers about her brother or whether her brother would be given some type of benefit, such as additional medical care. See Gallegos, 715 S.W.2d at 141 (officer's assurance that appellant was "safe" while in the officer's custody was insufficient to render appellant's confession involuntary).
We conclude that the trial court did not abuse its discretion in finding that Appellant's second statement was made voluntarily, and that any "promise" did not rise to the level of coercion required to render Appellant's statement inadmissible. Appellant's third point of error is overruled.
D. Trial court discretion in determining whether juror is disabled.
Appellant's last issue contends the trial court erred when it failed to determine that a juror, who realized she had heard about the murder when she taught at the same elementary school that the victim's twins attended, was disabled and could no longer serve on the panel.
(1) The dispute below
Just after the State's opening statement, the court was informed that a juror had a question. After excusing the remaining jurors, the court engaged in the following discussion with the juror and counsel:
[Court]: Okay. What is your question?
[Juror]: Okay. So, I work for North Heights [E]lementary now, but last year I used to work for Lamar [E]lementary. Now,I did not-and I swear I did not know nothing about this case, nor do I know or have even heard of Sandra De La Cruz or do I know Clarissa Guerra, but I dorememberthat when-
[Juror] --Ms. West said that the victim was murdered in a cemetery and had two (sic) twins, I worked for Lamar [E]lementary who had two twins who's (sic) mother was killed in a cemetery. But that's all I know. So, I don't know if that has anything to do--I now that a question was asked if--prior-- yesterday ifweknow Sandra Cruz. Of course,
I didn't know and I couldn't put those two together, but before anything started, I just wanted to get that clear.
[Court] Okay. You're not affected--your judgment in any way?
[Juror] No, sir, it won't.
Appellant's counsel objected that the juror could not be fair and impartial based on her "closeness with the victim and the fact that the twins were at the school" where she worked. Accordingly, Appellant contends that the juror was "disabled" to serve on the jury.
At trial, Appellant's counsel framed his objection to the subject juror remaining on the panel as a "challenge for cause." During the discussion that followed, however, the court re-framed the issue: "Ido not see the disability that rises tothe level that she shouldbe removed." (Emphasis added). Rule 33.1(a)(1)(A) of the Texas Rules of Appellate Procedure requires that the issue raised on appeal comport with the objection made at the trial court level. The Rule allows an exception where "the specific grounds [of Appellant's objection below] were apparent from the context[.]" See Tex. R. App. Proc. 33.1(a)(1)(A). Because (1) the court recognized Appellant's counsel's error and re-defined the objection as one relating to whether the juror should be disabled pursuant to Article 36.29 of the Texas Code of Criminal Procedure; and (2) a challenge for cause applies exclusively to venire persons, we find that the grounds of Appellant's fourth issue (whether the trial court erred in determining the subject juror was not statutorily disabled) "were apparent from the context." Tex. R. App. Proc. 33.1(a)(1)(A). On that basis, we will not consider the issue waived. See Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) (citing Zillender v State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977)) (where correct grounds for objection are obvious to judge and opposing counsel, no waiver results from general or imprecise objection.)
(2) Standard of review and controlling law
We review a trial court's determination of whether a juror is "disabled," under Article 36.29 of the Texas Code of Criminal Procedure, for an abuse of discretion. Romero v. State, 396 S.W.3d 136, 142 (Tex. App.-Houston [14th Dist.] 2013, pet. ref'd) (citing Scales v. State, 380 S.W.3d 780, 783-84 (Tex. Crim. App. 2012)). In making a disability determination, the trial court is the sole fact-finder and judge of the credibility of the evidence. Scales, 380 S.W.3d at 784; Cf. Murff v. Pass, 249 S.W.3d 407, 411 (Tex. 2008) (noting great deference is given to trial court's determination . . . because "trial judges are present in the courtroom and are in the best position to evaluate the sincerity and attitude" of jurors). We do not substitute our own judgment for that of the trial court; instead, we assess whether, when viewing the evidence in the light most favorable to the trial court's ruling, the ruling was arbitrary or unreasonable. Scales, 380 S.W.3d at 784 (citing Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995)). The trial court's determination will be upheld if it falls within the zone of reasonable disagreement. Id.
Article 36.29(a) applies when a juror, "as determined by the judge, becomes disabled from sitting at any time before the charge of the court is read to the jury." See Romero, 396 S.W.3d at 141, n. 2 (citing Tex. Code Crim. Proc. Ann. art. 36.29(a)). The Court of Criminal Appeals has interpreted Article 36.29 to mean a juror is disabled if the juror suffers from a "physical illness, mental condition, or emotional state that would hinder or inhibit the juror from performing his or her duties as a juror. . ." Scales, 380 S.W.3d at 783; Romero, 396 S.W.3d at 143. In its discretion, a trial court may deem a juror disabled from "any condition that inhibits a juror from fully and fairly performing" the juror functions. See Griffin v. State, 486 S.W.2d 948, 951 (Tex. Crim. App. 1972) (emphasis added).
Mere knowledge of, or familiarity with, a defendant is not sufficient in and of itself to disable a juror. See Reyes v. State, 30 S.W.3d 409, 411 (Tex. Crim. App. 2000) (en banc). That said, the effect of such knowledge on a juror's mental condition or mental state may result in a statutory disability. Id. at 412. For example, a juror's authentic fear of retaliation after attending high school with, and working on the same side of town as, defendant could render a juror "disabled" within the meaning of statute. Id. at 410, 412.
3. Application
While Appellant contends the juror's disclosure of her awareness of the victim's twins necessitated greater scrutiny and deeper inquiries by the trial court, we disagree. After hearing the juror's realization, and her confirmation that she knew nothing personally about the incident, the victim, or the defendant, the court appropriately focused on the critical question: whether the juror's familiarity with the victim's twins would affect her ability to fully and fairly perform her functions as a juror. The juror gave a straightforward negative response to that question. See Reyes, 30 S.W.3d at 412 (mere knowledge of defendant will not "disable" juror where nothing in the record shows juror inhibited from "fully and fairly" performing juror functions).
During argument on the defense objection, the State noted that this juror had been "fairly assertive" during jury selection, implying a confidence and ability to express herself if she did, indeed, have any concerns about her ability to serve.
Viewing the evidence in a light most favorable to the trial court's determination, it was not unreasonable for the trial court to trust the juror's response that she could fairly and impartially continue her service. The juror acknowledged only a remote familiarity with the victim's children. It was within the trial court's discretion to determine that familiarity was not sufficient to render her disabled under the statute. See Reyes, 30 S.W.3d at 411-12. Similarly, Appellant's counsel's concerns that the juror, possibly embarrassed or resentful about any implication she was unfit to serve, would be more likely render a "retaliatory" verdict are unfounded. There was nothing in the way the juror presented her information to the court that evidenced an impact on her mental condition or emotional state such that she qualified as "disabled." See Brooks v. State, 990 S.W.2d 278, 286 (Tex. Crim. App. 1999) (en banc) (affirming trial court's choice not to disable juror arrested for carrying a handgun to the courthouse on the morning of trial; juror confirmed the experience had no impact on his ability to be fair to both sides.)
Appellant's fourth point of error is overruled.
IV. Conclusion
We overrule Appellant's four issues and affirm the judgment of conviction.