Joseph Juan Facundo v. State
01-15-00279-CR
| Tex. App. | Nov 25, 2015Background
- Defendant Joseph Facundo was convicted of capital murder during a robbery; sentenced to life without parole; appeal followed.
- State presented eyewitness testimony, a jailhouse informant who said defendant confessed, and evidence of postoffense conduct (flight toward Mexico, attempts to dispose of stolen property).
- Four recorded jail phone calls made by Facundo from Webb County jail to family and acquaintances were admitted (calls include claims of innocence, requests for a lawyer, references to an alibi "Blinky," and attempts to locate that alibi).
- Defense objected to admission of the calls on multiple grounds at trial: foundation/authentication, Fourth Amendment/wiretapping analogies, Fifth Amendment (failure to Miranda), Sixth Amendment, relevance/prejudice; a later, separate objection limited certain family-lawyer discussions as prejudicial.
- Trial court overruled initial objections and later deemed the subsequently raised objection untimely; recordings were played to the jury. Defense also raised a Batson challenge to two peremptory strikes of Hispanic venire members; the court denied the challenge after the State offered race-neutral reasons.
- Defense objected to a paramedic's incident report as containing hearsay-within-hearsay; the court admitted the report as a business record and the paramedic testified.
Issues
| Issue | Appellant's Argument | State's Argument | Held |
|---|---|---|---|
| Admissibility of jail calls under Fifth Amendment (Miranda) | Calls are custodial statements; admission violated Fifth Amendment because defendant was in custody and not Mirandized | Statements were not responses to law-enforcement interrogation; calls were to family/third parties so Fifth Amendment protection does not apply | Court deferred to State: calls not custodial interrogation; Fifth Amendment inapplicable |
| Timeliness/preservation of late objection to portions of calls | Late objection (day after admission) still timely because calls had not yet been played to the jury | Objection was untimely because it occurred after the exhibit was admitted; under preservation rules it presented nothing for review | Court sustained State position: late objection untimely and preserved nothing for appeal |
| Sixth Amendment / Due Process claim re: recorded calls | Recording calls violated right to counsel and due process | Sixth Amendment and due process claims were not timely raised at trial (or not raised at all), so forfeited | Court accepted State's procedural bar: claims not preserved for appellate review |
| Batson challenge to peremptory strikes of Hispanic jurors | The State’s question about views of law enforcement "in your community" was pretextual and functioned as a race-based inquiry targeting Hispanics | The strikes were explained with race-neutral reasons (answers indicating unfavorable views of law enforcement, credibility issues, reluctance to prosecute capital murder); trial court observed demeanor and credited the explanations | Court deferred to trial court fact finding and rejected Batson challenge |
| Hearsay objection to paramedic narrative in report | Narrative contains hearsay-within-hearsay and should have been excluded | Report was admissible as a business record and contained the paramedic’s own observations; any erroneous admission would be harmless given overwhelming evidence | Court found the narrative admissible as business record or, if error, harmless; no reversal warranted |
Key Cases Cited
- Purkett v. Elem, 514 U.S. 765 (1995) (peremptory-strike burden-shifting framework; reasons need not be persuasive to satisfy step two)
- Castrejon v. State, 428 S.W.3d 179 (Tex. App.—Houston [1st Dist.] 2014) (late objection to admitted audio that was not contemporaneous preserved nothing on appeal)
- Johnson v. State, 878 S.W.2d 164 (Tex. Crim. App. 1994) (objection must be raised as soon as basis becomes apparent or is forfeited)
- Jasper v. State, 144 S.W.3d 530 (Tex. Crim. App. 2004) (trial-court credibility determinations on Batson are factual and entitled to deference)
- Smith v. State, 420 S.W.3d 207 (Tex. App.—Houston [1st Dist.] 2013) (nonconstitutional evidentiary error assessed for harm under Rule 44.2(b))