Opinion
NUMBER 13-14-00452-CR
02-18-2016
JOSE ISAAC REYES, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 389th District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides and Longoria
Memorandum Opinion by Justice Garza
In 2003, a Hidalgo County jury convicted appellant Jose Isaac Reyes of capital murder, and he was sentenced to life imprisonment. See TEX. PENAL CODE ANN. § 19.03(a)(2) (West, Westlaw through 2015 R.S.). Reyes's attorney filed an untimely notice of appeal, and we dismissed his appeal for want of jurisdiction. See Reyes v. State, No. 13-03-00370-CR, 2003 WL 21824503, at *1 (Tex. App.—Corpus Christi Aug. 7, 2003, no pet.) (mem. op. per curiam, not designated for publication). In 2013, Reyes filed an application for writ of habeas corpus seeking an out-of-time appeal. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (West, Westlaw through 2015 R.S.). The Texas Court of Criminal Appeals granted relief and authorized an out-of-time appeal on June 11, 2014. See Ex parte Reyes, No. WR-65,848-06, 2014 WL 2609539, at *1 (Tex. Crim. App. June 11, 2014) (not designated for publication). This appeal followed, in which Reyes contends: (1) the evidence was insufficient to support the conviction; (2) the trial court erred by failing to submit certain jury instructions; (3) the trial court erred in admitting certain evidence; and (4) the prosecutor made improper jury arguments. We affirm.
I. BACKGROUND
A Hidalgo County grand jury indicted Reyes on two alternate counts of capital murder. The first count alleged that he intentionally caused the death of Rosa Angelica Arellano Lopez by stabbing her with a knife while he was in the course of committing or attempting to commit robbery; the second count alleged that he intentionally caused her death by stabbing her "with an object unknown to the Grand Jurors" while he was in the course of committing or attempting to commit robbery.
At trial, David Gonzalez testified that he visited the West Point Country Store, a convenience store in Mission, Texas, at around noon on January 31, 2002, to buy a soda. He pulled into the parking lot and noticed only one other car there, a beige or tan Ford sedan. As he exited his car, Gonzalez saw two men walk out of the store and drive away in the Ford. The men were wearing dark clothing and one wore a cap. Gonzalez did not see any blood on the men. He observed the men from about thirty feet away. When he entered the store, Gonzalez called out "Hello," but no one responded. When he looked over the counter, he saw a deceased woman lying face down in a pool of blood on the floor. The victim was later identified as 27-year-old Rosa Angelica Arellano Lopez.
Gonzalez exited the store and called 911, and police arrived shortly thereafter. Police searched the store and observed that the victim had several stab wounds to her back, chest, and head. Sheriff's Deputy Randy Reyna observed "a blood trail, on the floor, leading into one of the back rooms behind the register." The blood trail led to the body of the victim. Reyna specified that the blood trail consisted of "bloody footprints" in a "'V' pattern." Reyna testified that Reyes's shoes had the same "V" pattern.
An autopsy later showed that the victim suffered about 35 stab wounds caused by a single-edged blade or a similar object. Most of the wounds were on her back, but some were on front and on her hands, indicating that the victim had faced the assailant at some point.
At around 12:30 p.m., Sheriff's Deputy George Luis Lopez observed a gold-beige Ford Taurus driving southbound from the area of the store. The Ford stopped at a "Lucky Seven" gas station, and one of the suspects, who was wearing dark clothing and a cap, exited the Ford and walked into the gas station. The driver, Reyes, remained inside the vehicle. Lopez ordered Reyes to get out of the vehicle three times, in both English and Spanish, and Lopez made eye contact with Reyes through the side mirror. According to Lopez, Reyes did not initially respond. When Reyes "started moving around" inside the car, Lopez pulled out his sidearm and again ordered Reyes to exit the vehicle; eventually, Reyes did so. Lopez stated that Reyes was wearing a "light blue shirt and blue jeans" and boots. Reyes's clothes and shoes had what appeared to be blood stains on them. Lopez ordered Reyes to sit in Lopez's patrol unit while he checked on the other suspect inside the gas station. According to Lopez, Reyes identified himself as "Antonio Hernandez."
After another sheriff's deputy arrived to provide backup, Lopez looked in and around the Lucky Seven store for the other suspect, but could not locate him. Police later took Gonzalez from the crime scene to the gas station, and Gonzalez told police that the vehicle at the Lucky Seven store looked like the vehicle he saw earlier at the West Point store. Gonzalez also told police that it was possible the suspect he had been asked to identify was one of the men he saw leaving the convenience store because the suspect "had dark clothing" and was about the same height as the men he saw earlier.
The other suspect, appellant's brother Jose Obed Reyes, later turned himself in to police.
Reyes was arrested and transported to the Hidalgo County Sheriff's Office, where police removed his clothes and shoes. Police found a plastic bag containing $427.50 hidden in Reyes's underwear.
Investigator Alfredo Lara Jr. read Reyes his Miranda rights in Spanish. See Miranda v. Arizona, 384 U.S. 436 (1966). Reyes signed and initialed the Spanish Miranda rights warning form as "Antonio Hernandez," and he gave a statement. Later, Lara was advised by his supervisor that Reyes was using a false name. Lara confronted Reyes about the matter, and thereafter, Reyes signed and initialed documents using his actual name.
According to Lara, Reyes did not ask for an attorney, to stop the interview, or for water or any other "basic necessities" at any point during the interview. Lara stated that no threats or promises were made to secure Reyes's statement, and that Reyes did not appear to be under the influence of drugs or alcohol. Lara stated he is fluent in Spanish and that the conversation he had with Reyes was conducted entirely in Spanish. Lara stated that he read Reyes's statement back to him in Spanish, and that Reyes declined the opportunity to revise or correct anything in the statement. Reyes signed the statement in front of two witnesses. The statement, which was written in Spanish but translated into English by a court interpreter, stated as follows:
I want to say that my name is Antonio Hernandez Gonzalez. I am . . . 26 years old. I live with my wife, Enereyda Velez. I have a daughter who is one year old. I live with my in-laws, Alberto and Enereyda Velez. The house is brown, and it's located in the neighborhood of—a colonia, Mile 7 North and Western Road, Mission, Texas.
I'd like to say I do not have a passport and I am illegally in the United States. I've been in the Valley around four years. I work painting and carpentry. Presently, I've been working like two days per week, and I work when I am afforded the opportunity.
Today, around 4:00 a.m., I asked for my sister-in-law, Beatrice, to loan me the car. She had loaned it to me in the past. My sister's—my sister-in-law's car is a Ford Taurus; color, beige.
I left the house with my brother Caesar Hernandez. He had come to the house because he needed a ride to his house which is situated in the city of Mission.
I'd like to say that my true name is Isaac Reyes, but I use the name of Antonio Gonzalez for work. I'd like to say my brother's name is Obed Reyes, and that was a person that would come to the house where I live. I was going to give a ride to Obed to his house. He lives in a colonia or a neighborhood by Monte Cristo Road . . . in Edinburg, Texas.
We went through the back roads in Edinburg. We had like a 12-pack of beer and . . . some quarts.
My brother Obed Reyes told us—told—told me to—for us to go to the store—to a store. We were driving around when we got to the store on West Point, which is located on the street of Monte Cristo.
We got out of the car and went into the store. I went to get beer. I got two quarts of Miller Lite beer. I turned around—I went—I turned around and I saw that my brother was at the counter with a knife. I saw that my brother was stabbing the female worker that was behind the counter. My brother . . . stabbed the worker a couple of times.
My brother said to me, Come and help me. I went to help him. I helped him in the manner that I would hold down the person that—so that she would not move while my brother stabbed her—while my brother was stabbing her.
The woman fell to the floor, and we left from there. I saw that my brother had a lot of money in a plastic bag. We went to the car, and we left—and we left on Monte Cristo Road. We turned south on Conway, from Monte Cristo Road, and we went south towards the city of Mission.On cross-examination, Lara testified that, when Gonzalez was shown a photo lineup, Gonzalez picked out Obed Reyes as one of the men he saw leaving the West Point store. He conceded that police never found the murder weapon.
We turned on 107 Road—Road 107, then south on La Homa Road towards the Lucky Seven Store. My brother . . . wanted to buy some eyedrops.
My brother exited the car, and I stayed in the car. Obed—Obed went inside the store, but he never came out.
The deputies of the Hidalgo County arrived there, and they asked me to get out of the car. I did. They asked me to get into the patrol car.
I'd like to say that when this took place, I was intoxicated and I did not know what I was doing. I'm very sorry for what I did, including my brother.
I'd like to say that my true and correct name is Isaac Reyes and I use the name of Antonio Hernandez Gonzalez for work. I'm 21 years old and my date of birth is 8-24-80.
I—I gave the statement to Investigator Alfredo Lara of the Hidalgo County Sheriff's Department, and he translated it from Spanish to English.
Juan Carlos Martinez testified that he ran the West Point Country Store at the time of the murder. He employed the victim as a clerk for a 7:00 a.m. to 3:00 p.m. shift. Martinez stated that, normally, the store's cash register would contain $85 at the start of each morning, but that there is sometimes "money underneath, because we sell calling cards." Martinez stated that the calling-card proceeds can sometimes be $400 to $450 dollars and were stored in a bag which was kept inside a plastic pencil box.
Alejandro Madrigal, a forensic analyst with the Texas Department of Public Safety ("DPS"), testified that he tested various items for DNA evidence. According to Madrigal, the blood found on Reyes's jeans and shoes, as well as blood found in the beige Ford Taurus, contained a DNA profile consistent with the victim. The blood stains on Reyes's shirt did not contain any DNA profile. Jose Zuniga, a DPS criminalist, testified that the bloody right footprint found at the crime scene was caused by Reyes's right shoe, "to the exclusion of any other shoe."
Reyes testified in his own defense. When defense counsel asked whether "the statement [that] was read to the jury" was "your statement," Reyes replied, "Yes." He denied stabbing the victim, but he conceded that he held her down while his brother robbed the store. He denied, however, that he intended to commit a robbery or a murder. He stated he gave a false name because he is "illegally here" and "did not want to be deported."
Reyes testified that police told him he had to sign the statement "so 'that things would go better for me.' That, if I didn't sign, they were going to give me the needle, death." He stated that the stabbing did not occur behind the checkout counter, but rather "in a little room that was right there to the side of the store." When defense counsel asked how the woman got to the room, Reyes explained as follows:
Testifying in rebuttal, Lara denied that he ever told Reyes "it would go better for him" if he gave a statement or that, if he didn't give a statement, he would get "the needle."
Well, when we were heading into the store—and because we were going into it to buy beer, and I didn't know that we were going to rob, or that my brother had the idea, to rob the place, then I get to—I head to the coolers. I open the door. I grab a beer. I don't recall the brand.
But, when I grabbed—when I was grabbing ahold of the beer, my brother tells me: Hey, let's get some money. Then I tell him: No. What are you doing? He says: It's just that I need the money because I want—the money that I had, I don't have anymore, and he needed them for the children—he needed it for the children.
Then I told him: Well, what do you want me to do? And he said: Look, it's going to be easy. You grab hold of the person, you take her to the back, and I grab the money, and we leave.
. . . .
Then I tell her: Walk that way, ma'am. Nothing is going to happen to you. And the lady walks, right.
Then we go into the room. And I tell her—and I tell her: Lie down, lean back, and nothing is going to happen to you. And then the lady lies down. She lies down.
Then I'm still holding her, like this, by the arms. (Indicating). Then I— then I tell her—well, I remember that she was scared. And I recall that she didn't want anything to happen to her. And I recall telling her that nothing was going to happen to her; that we are not murderers, we don't kill people.
And then the lady was there. (Indicating). And I was holding her, for a moment, and that was while my brother was getting the money. And then I hear sounds, like my brother—like he's searching outside. And I'm still holding onto her.
Then my brother comes in. My brother comes in. I look back. He tells me, Let's go. Let's go. And I try to get up.
And when my brother—and when I tried to get up, my brother tells me: She's still alive? Then my brother throws me back, and pushes me. And the person is like this. (Indicating). She's still lying on the floor because she's still scared.
Well, and when I trip like this—(Indicating)—I fall like this, to the side. (Indicating). Then my brother all of a sudden begins to stab the person with a—and I see that he has a knife, but I don't know where he got it from. And he begins to stab the person, the woman, so brutally that at that moment I was so scared.
. . . .
And the person's right here, right, and I'm holding her. And my brother comes in. And he's, like: Let's go. And I turn around. And I say: Well, let's go. And when I turn around—when I turn around, he knocks me over, and I fall and trip this way. (Indicating).
Then my—my brother gets on top of the person, and begins to stab her brutally, very quickly. Then I get up. I get up. And my brother tells me: Let's go. Then I tell him: What do you mean, "Let's go"? The person—look at what you did.
And I said: Let's help her. He says: You cannot do anything. The person's already dead.
And I recall that I remained there. I was, like, traumatized of what I had seen. And my brother tells me: You want to go to prison? He tells me: You have a daughter. Then all of a sudden he yanks me by the shirt, and we leave.
On cross-examination, the prosecutor asked Reyes: "So you had an agreement, with your brother, that you were going to help him rob this lady?" Reyes replied, "Yes." Reyes also responded affirmatively to the question: "So it is true you helped your brother during the commission of this robbery?" Reyes acknowledged that he told Lara that he held down the victim while his brother stabbed her; but Reyes denied the truth of that statement at trial. He agreed that he understood the rights that Lara read to him.
II. EVIDENTIARY SUFFICIENCY
By his first issue, Reyes contends that the evidence was insufficient to support his conviction.
A. Standard of Review and Applicable Law
In reviewing the sufficiency of evidence supporting a conviction, we consider the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013); see Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We give deference to "the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19). When the record of historical facts supports conflicting inferences, we must presume that the trier of fact resolved any such conflicts in favor of the prosecution, and we must defer to that resolution. Padilla v. State, 326 S.W.3d 195, 200 (Tex. Crim. App. 2010).
Sufficiency is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. A hypothetically correct jury charge in this case would state that Reyes is guilty of capital murder if he (1) intentionally caused the death of Rosa Angelica Arellano Lopez by stabbing her, and (2) was then and there in the course of committing or attempting to commit robbery. See TEX. PENAL CODE ANN. § 19.03(a)(2). A person commits robbery if, in the course of unlawfully appropriating property with intent to obtain or maintain control of the property, the person (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Id. § 29.02(a) (West, Westlaw through 2015 R.S.).
A person acts intentionally with respect to the result of his conduct when it is his conscious objective or desire to cause the result. Id. § 6.03(a) (West, Westlaw through 2015 R.S.). A person acts knowingly with respect to the result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Id. § 6.03(b). A person acts recklessly with respect to the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the result will occur. Id. § 6.03(c).
A hypothetically correct jury charge in this case would permit the jury to convict Reyes either as a principal or as a party to the offense. Under the law of parties, "[a] person is criminally responsible for an offense committed by the conduct of another if, . . . acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." Id. § 7.02(a)(2) (West, Westlaw through 2015 R.S.). Moreover:
If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.Id. § 7.02(b).
Evidence is sufficient to convict under the law of parties where the defendant is physically present at the commission of the offense and encourages its commission by words or other agreement. Salinas v. State, 163 S.W.3d 734, 739-40 (Tex. Crim. App. 2005). Party participation may be shown by events occurring before, during, and after the commission of the offense, and may be demonstrated by actions showing an understanding and common design to do the prohibited act. Id. at 740.
B. Analysis
Reyes contends that there was no evidence to show that he had the specific intent to commit robbery and murder. But intent may generally be inferred from circumstantial evidence such as acts, words, and the conduct of the appellant. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). Here, circumstantial evidence established clearly that Reyes was present in the West Point store at the time of the murder. Reyes was found by police in a vehicle that matched the description given by Gonzalez of a vehicle that had departed the store shortly after the murder took place. Reyes's clothes were covered in the victim's blood, and his bloody shoeprints were found near the victim's dead body. Reyes was found to be concealing $427.50 in a plastic bag, which is around the amount that the store often kept on hand as proceeds from calling-card sales.
Reyes's culpable intent was also established by direct evidence. In particular, Reyes testified at trial that he had an agreement with his brother to commit the robbery and that he helped him commit the robbery. See Salinas, 163 S.W.3d at 739-40. Reyes also testified at trial that his brother asked him "She's still alive?" after stealing the money; this testimony supports a reasonable inference that Reyes had an agreement with his brother to kill the victim. See id. Reyes admitted that he gave false identifying information to police. See State v. Cruz, 461 S.W.3d 531, 539 (Tex. Crim. App. 2015) (noting that providing a false name to police is evidence of a consciousness of guilt). Finally, Reyes averred in his custodial statement that, at his brother's request, he held down the victim "so that she would not move while my brother stabbed her." At trial, Reyes denied that he held down the victim while she was being stabbed; instead, he claimed that he held her down while his brother robbed the store. But the jury, as the trier of fact, was entitled to disbelieve Reyes's trial testimony and instead believe Reyes's custodial statement. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008) ("Because the jury is the sole judge of a witness's credibility, and the weight to be given the testimony, it may choose to believe some testimony and disbelieve other testimony.").
Even though Reyes challenges the admissibility of his custodial statement on appeal, we consider all evidence actually admitted at trial, even evidence that may have been erroneously admitted, in our sufficiency review. See Moff v. State, 131 S.W.3d 485 (Tex. Crim. App. 2004).
From all of the evidence outlined above, a rational juror could have reasonably concluded that Reyes, acting with the intent to promote or assist his brother in committing the murder, aided his brother in intentionally causing the death of Rosa Angelica Arellano Lopez by stabbing her while they were in the course of committing or attempting to commit robbery. We conclude that the evidence was sufficient to convict Reyes as a principal or as a party to the charged offense. See TEX. PENAL CODE ANN. § 7.02(a)(2). Additionally, the evidence was sufficient to allow a rational juror to reasonably conclude that Reyes and his brother conspired to commit the felony of robbery, that the murder was committed in furtherance of the unlawful purpose, and that the murder should have been anticipated as a result of carrying out the conspiracy. See id. § 7.02(b). Reyes's first issue is overruled.
III. JURY CHARGE ERROR
We next address Reyes's complaints regarding the jury charge. As part of his first issue, Reyes argues that it was error for the jury to have been instructed that it may convict Reyes for stabbing the victim "with an object unknown to the Grand Jurors" because the evidence did not support such a submission. By his second issue, Reyes argues that the trial court erred in failing to submit: (1) an instruction on the statutory exclusionary rule contained in article 38.23 of the Texas Code of Criminal Procedure, with regard to the blood evidence; (2) another instruction on the statutory exclusionary rule with regard to his custodial statement; and (3) an "independent impulse" charge.
A. Standard of Review and Applicable Law
Following a felony trial, the trial court must deliver to the jury a "written charge distinctly setting forth the law applicable to the case; not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury." TEX. CODE CRIM. PROC. ANN. art. 36.14 (West, Westlaw through 2015 R.S.).
Defense counsel did not object to the jury charge at trial. When reviewing unobjected-to jury charge error, we first determine whether the charge was erroneous. See Tolbert v. State, 306 S.W.3d 776, 779 (Tex. Crim. App. 2010). If we determine that error occurred, we then consider whether the error caused egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g).
B. "Object Unknown to the Grand Jurors"
Consistent with the indictment, the jury charge allowed the jury to convict if it found that Reyes was guilty, either as a principal or as a party, of killing the victim by (1) stabbing her "with a knife" or (2) stabbing her "with an object unknown to the Grand Jurors."
Assuming, but not deciding, that the evidence did not support the challenged instruction, we nevertheless find that any error would not be reversible because Reyes has not demonstrated that he suffered egregious harm. In Sanchez v. State, the court of criminal appeals noted that, "[w]hen a jury returns a general guilty verdict on an indictment charging alternate methods of committing the same offense, the verdict stands if the evidence is sufficient to support a finding under any of the theories submitted." 376 S.W.3d 767, 775 (Tex. Crim. App. 2012) (citing Gray v. State, 152 S.W.3d 125, 127-28 (Tex. Crim. App. 2004)); see Herrera v. State, 367 S.W.3d 762, 776 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (holding, where defendant was accused of causing bodily injury to a child, that "the evidence supports a conviction based upon a finding that appellant committed the offense by shaking, throwing, or dropping" the victim and that "[t]he jury could have convicted on any one of these theories without ever reaching the 'unknown' language"). The Sanchez Court found that the error in the jury charge was harmless, in part because "[a]ll four of the alternatives for convicting appellant required the jury to be convinced beyond a reasonable doubt that appellant caused the death of the complainant, and the evidence at trial established this." 376 S.W.3d at 775; see id. at 773 ("Neither the manner (the actus reus) nor the means (the 'instrument of death') need to be agreed upon unanimously by a jury . . . [t]he jury need only unanimously agree that appellant caused the death of the complainant."). Notably, the Sanchez Court applied the less stringent harm analysis appropriate for error that has been preserved at trial. See id. at 775. Applying, as we must in this case, the stricter standard prescribed for unpreserved error, we find that Reyes has not shown egregious harm because, as we have already held, the evidence was sufficient for the jury to convict on the theory that the murder was committed with a knife. See id.; Herrera, 367 S.W.3d at 776.
C. Article 38.23 Instruction
The statutory exclusionary rule provides as follows:
No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West, Westlaw through 2015 R.S.).
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.
To be entitled to an Article 38.23 jury instruction, three predicates must be met: (1) the evidence heard by the jury must raise an issue of fact, (2) the evidence on that fact must be affirmatively contested, and (3) the contested factual issue must be material to the lawfulness of the challenged conduct.Hamal v. State, 390 S.W.3d 302, 306 (Tex. Crim. App. 2012) (citing Oursbourn v. State, 259 S.W.3d 159, 181 (Tex. Crim. App. 2008)).
Reyes argues that he was entitled to an article 38.23 instruction as to both the blood evidence and his custodial statement. First, as to the blood evidence, Reyes does not specify what issue of fact he believes existed. Instead, the record shows that his blood sample was lawfully obtained pursuant to a valid search warrant, and that his clothes were lawfully obtained pursuant to Reyes's arrest. This evidence was not affirmatively contested, and no issue of fact was raised as to whether the evidence was properly admissible. See id. Accordingly, Reyes was not entitled to an article 38.23 instruction with regard to the blood evidence.
Second, as to his custodial statement, Reyes asserts that an article 38.23 instruction should have been given because: (1) his "illegal alien status"; (2) "the fact he only knew Spanish"; (3) "the police threatening him with the needle if he didn't sign"; and (4) the "failure of police to allow [him] to consult the Mexican Consulate." With regard to the first and second reasons, Reyes cites no authority, and we find none, establishing that a defendant is entitled to an article 38.23 instruction merely because of his immigration status or his lack of knowledge of English. In any event, it was undisputed that Reyes was advised of his Miranda rights in Spanish and effectively communicated with Lara in Spanish. This evidence was not affirmatively contested; therefore, Reyes was not entitled to an article 38.23 instruction on this basis. See id.
As to the fourth reason, Reyes cites Cardona v. State, in which the Austin Court of Appeals found that the admission of the defendant's statement to police was harmless error where the State failed to inform the defendant "without delay of his right to access the Mexican consulate" as required by the Vienna Convention on Consular Relations (the "Vienna Convention").Cardona v. State, 973 S.W.2d 412, 417 (Tex. App.—Austin 1998, no pet.). The Texas Court of Criminal Appeals has since held that treaties such as the Vienna Convention "do not constitute 'laws' for Article 38.23 purposes." Rocha v. State, 16 S.W.3d 1, 13-19 (Tex. Crim. App. 2000). Accordingly, Reyes was not entitled to an article 38.23 instruction on this basis.
The treaty provides in relevant part:
With a view to facilitating the exercise of consular functions relating to nationals of the sending State: . . . if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. . . . The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph . . .Vienna Convention on Consular Relations art. 36(1)(b), April 24, 1963, 21 U.S.T. 77, 100-101, 595 U.N.T.S. 261, 292.
We finally consider whether an article 38.23 instruction was warranted because of Reyes's contention that "the police threaten[ed] him with the needle if he didn't sign." At trial, Reyes testified that police told him he had to sign the statement "so 'that things would go better for me'" and "[t]hat, if I didn't sign, they were going to give me the needle, death." Lara denied the accusation. This was an affirmatively contested issue of fact that is material to the lawfulness of the custodial statement; accordingly, it was error to not include an article 38.23 instruction with respect to the allegation. See Hamal, 390 S.W.3d at 306. Because Reyes's counsel never requested an article 38.23 instruction, the error will be reversible only if Reyes suffered "egregious harm" as a result thereof. See Almanza, 686 S.W.2d at 171. Egregious harm will be found only if the error deprived the defendant of a fair and impartial trial. Ex parte Smith, 309 S.W.3d 53, 63 (Tex. Crim. App. 2010) (citing Almanza, 686 S.W.2d at 171). In reviewing for egregious harm, we consider "the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Almanza, 686 S.W.2d at 171.
Reyes does not argue in his discussion of his second issue that he was egregiously harmed by the lack of an article 38.23 instruction. We conclude that he did not suffer egregious harm. Even if the charge contained an article 38.23 instruction, the jury was overwhelmingly likely to find that the statement was voluntarily made, given the state of the evidence. In particular, Reyes testified at trial that "the statement [that] was read to the jury" was his statement. Later, when defense counsel asked "So . . . you decided to give a statement and tell [Lara] the truth?", Reyes replied, "Yes. I did do it." Reyes partially recanted this testimony later, testifying that his statement to Lara that he held down the victim while his brother stabbed her was, in fact, untrue. But he also testified that he was read his Miranda rights and that he understood them at the time he gave the statement. Moreover, even if the jury found that the custodial statement was not voluntarily made, Reyes unequivocally testified at trial that he held down the victim while his brother robbed the store and that he helped his brother commit the robbery. These facts, taken alone, supported a conviction for capital murder as a party or co-conspirator. See TEX. PENAL CODE ANN. § 7.02(a)(2), (b). Finally, defense counsel briefly mentioned, but did not emphasize, the alleged coercion in his closing argument.
Considering the entire jury charge, the state of the evidence, the arguments of counsel, and the remainder of the record, we conclude that the trial court's error in failing to instruct the jury on article 38.23 did not deprive Reyes of a fair and impartial trial.
D. "Independent Impulse" Instruction
Reyes further argues by his second issue that his brother's actions constituted an "independent impulse," and that, therefore, he was entitled to a jury charge instruction directing the jury to find him not guilty of capital murder if they had a reasonable doubt as to whether the murder "should have been anticipated" by Reyes.
In Solomon v. State, the Texas Court of Criminal Appeals noted that "there is no enumerated defense of 'independent impulse' in the Penal Code" and held that the appellant's proposed instruction thereon "would simply negate the conspiracy liability element of the State's case." Solomon v. State, 49 S.W.3d 356, 368 (Tex. Crim. App. 2001). Instead, "[a]ll that is required . . . is for the appropriate portions of the jury charge to track the language of [section] 7.02(b). Id. The jury charge in this case included an instruction tracking section 7.02(b). Accordingly, this argument is without merit.
Reyes also suggests by his second issue that he was entitled to a "converse parties" instruction in the jury charge. However, he does not support this position with argument or references to authority; therefore, we do not address it. See TEX. R. APP. P. 38.1(i).
We overrule Reyes's second issue.
IV. ADMISSION OF EVIDENCE
By his third issue, Reyes challenges the admission into evidence of his custodial statement. By his fourth issue, he challenges the admission of the blood and physical evidence. We review a trial court's evidentiary rulings for abuse of discretion. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006). We will not disturb the trial court's decision as long as the ruling was within the "zone of reasonable disagreement." Id.
A. Custodial Statement
On appeal, Reyes contends that admission of his custodial statement violated the First, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution; article I, sections 10, 13 and 19 of the Texas Constitution; article 38.22 of the Texas Code of Criminal Procedure; and the Vienna Convention. He claims that the statement was inadmissible because: (1) he was not advised of his right to consult the Mexican consulate; (2) he was not given his Miranda warnings until after he was handcuffed, taken into custody, and brought to the Sheriff's office; (3) "[t]he detention and arrest occurred before the probable cause"; (4) police "informed [Reyes], who was a Spanish only speaker and was an illegal alien, that his statement could be used for him"; (5) the statement was obtained by a threat that Reyes would "get the needle"; and (6) his waiver of rights was not made freely and knowingly.
1. Applicable Law
Article 38.21 of the Texas Code of Criminal Procedure provides that an accused's statement may be used in evidence against him only "if it appears that the same was freely and voluntarily made without coercion or persuasion, under the rules hereafter prescribed." TEX. CODE CRIM. PROC. ANN. art. 38.21 (West, Westlaw through 2015 R.S.). Article 38.22, section 2 provides that "[n]o written statement made by an accused as a result of custodial interrogation is admissible as evidence against him in any criminal proceeding unless it is shown on the face of the statement" that:
(a) the accused, prior to making the statement, . . . received from the person to whom the statement is made a warning that:
(1) he has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial;
(2) any statement he makes may be used as evidence against him in court;
(3) he has the right to have a lawyer present to advise him prior to and during any questioning;
(4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and
(5) he has the right to terminate the interview at any time; and
Id. art. 38.22, § 2 (West, Westlaw through 2015 R.S.). In determining under these statutes whether a statement was made voluntarily, we may consider whether there was coercive police conduct, as well as factors such as the suspect's youth, intoxication, mental retardation, or other disability. Oursbourn, 259 S.W.3d at 172-73. Voluntariness is measured according to the totality of the circumstances. Smith v. State, 779 S.W.2d 417, 427 (Tex. Crim. App. 1989).
(b) the accused, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived the rights set out in the warning prescribed by Subsection (a) of this section.
2. Analysis
At a pre-trial suppression hearing, Lara testified that he was present when another officer administered Miranda warnings in Spanish to Reyes. Lara stated that "all these rights were acknowledged in writing" and that Reyes agreed in writing to waive his rights. Lara denied that he forced or coerced Reyes into giving the statement, and he denied promising anything to Reyes in exchange for the statement.
Following Lara's testimony, when the trial court asked for argument, defense counsel objected to the admission of Reyes's custodial statement only on grounds that it failed to comply with section 38.22 because "it specifically fails to mention that—anything that we use against him in court. It only mentioned the trial." Counsel was referring to the warning set forth in the Spanish Miranda rights form as follows: "Cualquier cosa que diga puede emplearse y se empleara encontra de usted en el juzgado." The court interpreter initially translated "juzgado" as "trial" and then later clarified that "juzgado" could be translated as either "trial" or "court." See State v. Subke, 918 S.W.2d 11, 14 (Tex. App.—Dallas 1995, pet. ref'd) (noting that "[w]arnings given during [an audio-recorded statement] must convey the exact meaning of the warnings stated in the statute" and finding that appellant's waiver was invalid because it did not warn him that anything he says may be used against him "in court"). When asked if he had any other objections, counsel replied: "Nothing further." The trial court overruled the objection. When the State offered the statement and accompanying Miranda rights form as evidence at trial, counsel stated: "Same objection, Your Honor, as pretrial." The trial court again overruled the objection.
Because this was the only objection brought to the attention of the trial court at any point during the underlying proceedings, it is the only grounds preserved for appellate review. See TEX. R. APP. P. 33.1. We conclude that the trial court did not err in overruling this objection. As the State notes, the trial court interpreter affirmed on the record that the pertinent language in the Spanish Miranda rights form could be translated as either "trial" or "court." Therefore, the record shows that Reyes was properly advised, in full compliance with article 38.22, that "any statement he makes may be used against him at his trial" and "any statement he makes may be used as evidence against him in court." See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2(a)(1), (2). Reyes's third issue is overruled.
Although Reyes's written motion to suppress alleged generally that "[t]he statements, admissions or confessions, if any were made, were not made voluntarily, or without compulsion or persuasion," counsel never explicitly argued to the trial court that the statement was obtained via coercion. Moreover, although Reyes eventually testified at trial that police told him he would get "the needle" if he didn't make a statement, there was no evidence of coercion presented at the suppression hearing or before the time the statement was offered into evidence at trial. Accordingly, an objection based on coercion was not "apparent from the context" such that it did not need to be made explicitly. See TEX. R. APP. P. 33.1(a)(1)(A).
B. Blood and Physical Evidence
By his fourth issue on appeal, Reyes contends that: (1) the clothing and blood evidence that was "seized from the car was from a state warrant" and was inadmissible because "[t]he search was late"; (2) Reyes's blood sample "was admitted without being properly identified"; (3) the blood evidence from Reyes's clothing "was illegally seized"; and (4) the money seized from Reyes was obtained in violation of article I, section 10 of the Texas Constitution.
Following Lara's testimony at the suppression hearing, defense counsel objected to the admission of Reyes's clothes into evidence on grounds that "it was taken without [Reyes's] consent" and "was taken without a search warrant." The trial court overruled the objections. Defense counsel did not object to the admission of Reyes's blood sample, the blood evidence obtained from the car, or the money obtained from Reyes's underwear. Accordingly, Reyes's complaints regarding the blood and money evidence have not been preserved for our review. See TEX. R. APP. P. 33.1.
As to the admissibility of his blood-soaked clothing, Reyes does not support his argument with any references to authority other than general citations to the Fourth Amendment to the United States Constitution, and article I, sections 9 and 10 of the Texas Constitution. The issue has therefore been inadequately briefed. See TEX. R. APP. P. 38.1(i). We overrule Reyes's fourth issue.
The State argues that the clothing was admissible because it was in plain view of police and there was probable cause to arrest Reyes. See Zayas v. State, 972 S.W.2d 779, 785 (Tex. App.—Corpus Christi 1998, pet. ref'd) ("The plain view doctrine provides that, if an officer perceives a suspicious object while lawfully engaged in an activity in a particular place, that officer may immediately seize the object. . . . Such seizure is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity."); see also Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000) (setting forth three requirements for the "plain view" doctrine to apply: (1) "the police officer must lawfully make the initial intrusion or otherwise properly be in a position from which he can view the contraband," (2) "the officer must discover the incriminating evidence 'inadvertently,' meaning he may not know in advance the location of the evidence and intend to seize it, relying on the plain view doctrine only as a pretext," and (3) "it must be 'immediately apparent' to the police that the items they observe may be evidence of a crime, contraband, or otherwise subject to seizure"). Because the issue was inadequately briefed, we overrule it without reaching its merits. --------
V. IMPROPER JURY ARGUMENT
By his fifth issue, Reyes contends that the trial court reversibly erred by "allowing the State to argue" that (1) the jury could convict without a unanimous verdict, and (2) that the defense could call his brother Obed to testify as a witness at trial. He contends that the prosecutor's arguments deprived him of a fair trial and violated his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution as well as under article I, sections 10, 13, and 19 of the Texas Constitution.
Reyes's trial counsel did not lodge an objection to either of the two challenged arguments, nor did he ask for a curative instruction, nor did he move for mistrial. The court of criminal appeals has held that "a defendant's failure to object to a jury argument or a defendant's failure to pursue to an adverse ruling his objection to a jury argument forfeits his right to complain about the argument on appeal." Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (en banc). Thus, "[b]efore a defendant will be permitted to complain on appeal about an erroneous jury argument or that an instruction to disregard could not have cured an erroneous jury argument, he will have to show he objected and pursued his objection to an adverse ruling." Id.; see Threadgill v. State, 146 S.W.3d 654, 670-71 (Tex. Crim. App. 2004) (reaffirming the holding in Cockrell and expressly holding that because appellant failed to object to the allegedly improper jury argument, he forfeited his right to raise it on appeal, even if such argument could not have been cured by an instruction); see also TEX. R. APP. P. 33.1(a). We overrule Reyes's fifth issue.
VI. CONCLUSION
The trial court's judgment is affirmed.
DORI CONTRERAS GARZA,
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 18th day of February, 2016.