Omar Montemayor v. State, 13-14-00173-CR

Background

Defendant Omar Montemayor was convicted of capital murder; appeal raises 17 issues challenging various trial rulings and the sentence.
During trial a seated juror was dismissed and replaced with an alternate after the juror disclosed a personal connection to the defendant’s sister.
Evidence at trial included testimony about the victim–defendant relationship, a 911 audio recording, photographs, DNA/buccal and blood swabs analyzed at DPS, text-message records, and expert testimony (speech pathologist, pathologist, GSR/forensic witnesses).
The defense sought voir dire of sponsoring witnesses on authenticity and requested limiting instructions for extraneous-offense testimony and Rule 705(b) voir dire of experts; some requests were denied or not preserved.
Following an initial sentencing pronouncement, the court reentered the courtroom and clarified the sentence as life without parole (correcting an earlier pronouncement).

Issues

Issue	Appellant's Argument	State's Argument	Held
Juror removal and seating alternate	Trial court erred in dismissing a juror and seating an alternate after voir dire concluded	Trial court acted within discretion under Art. 33.011(b); juror was disqualified/"unable" or, if error, it was harmless nonconstitutional error	Court upheld removal as within trial court discretion; any error would be nonconstitutional and harmless under Tex. R. App. P. 44.2(b) (no reversible harm shown)
Admission/limiting of extraneous-offense evidence	Trial court failed to exclude or limit bad-act evidence and should have given limiting instruction sua sponte	Appellant failed to identify record cites; court not required to give sua sponte limiting instruction absent timely request (Delgado)	Admission upheld; no duty to give sua sponte limiting instruction; insufficient briefing if record cites lacking
Motion for mistrial over character evidence	Introduction of abuse-related testimony required mistrial	Testimony fell within Art. 38.36 (relationship and prior acts) and was not so inflammatory that an instruction could not cure it	Denial of mistrial upheld; testimony admissible to show relationship; curable by instruction if requested
Admissibility/authentication of 911 audio	911 call improperly admitted (hearsay/insufficient authentication)	Audio was authenticated by witness and business-records affidavit; governed by Rule 901; even if hearsay, error nonconstitutional and cumulative evidence existed	Admission upheld (sufficient authentication/business-record predicate); any error was harmless because witness testified to same statements
Photographs and voir dire of sponsoring witness	Denial of opportunity to voir dire witness on photo authenticity prejudiced appellant	No basis shown to doubt witness’s personal knowledge; appellant failed to cite authority or record; objection not preserved	Denial affirmed; inadequate briefing and no showing of lack of personal knowledge
DNA/buccal/blood swabs chain of custody	State failed to establish proper chain of custody for swabs	Testimony established chain from collection to lab and retrieval; gaps go to weight, not admissibility; Rule 901 satisfied	Admission upheld under abuse-of-discretion standard; chain sufficient for authentication
Voir dire under Rule 705(b) of experts	Trial court refused Rule 705(b) voir dire of experts about underlying facts/data	Appellant did not request a Rule 705(b) hearing on the record; objections were not the same as a 705(b) request; issue not preserved	Issue not preserved; even if error, appellant failed to show harmful effect on verdict
Judge comments and cumulative judicial participation	Judge’s bench comments conveyed opinion and impaired neutrality; cumulative effect deprived fair trial	Comments were either not preserved by timely objection or were permissible clarifying questions; non-errors cannot cumulatively create error	Claims overruled: preserved objections lacking; comments were permissible clarification and did not convey opinion
Lesser-included offense instruction (aggravated assault)	Evidence (blackout/diminished impulse control) warranted lesser-included instruction	Lack of intent evidence insufficient because diminished capacity is not recognized to negate mens rea; no record citation showing rational basis for lesser offense	Denied: appellant not entitled to lesser-included instruction; diminished-capacity argument not a recognized route to reduce culpability at guilt/innocence phase
Closing-argument misconduct (comment on failure to testify)	Prosecutor’s remarks improperly commented on appellant’s failure to testify	Record citations missing and appellant in fact testified; argument unclear and not preserved	Overruled for inadequate briefing and lack of record support
Re-sentencing after initial sentence	Court erred by re-sentencing after sentence was already pronounced	Trial court corrected an unauthorized/incorrect pronouncement to impose the lawful sentence; courts may correct illegal/unauthorized sentences	Affirmed: trial court properly clarified sentence to life without parole to conform with statutory requirement

Key Cases Cited

Scales v. State, 380 S.W.3d 780 (Tex. Crim. App. 2012) (trial court discretion to replace juror who becomes unable/disabled)
Delgado v. State, 235 S.W.3d 244 (Tex. Crim. App. 2007) (no obligation to give limiting instruction sua sponte; must request at admission)
Jenkins v. State, 912 S.W.2d 793 (Tex. Crim. App. 1993) (distinguishes challenge to expert qualification from failure to request Rule 705(b) hearing)
Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007) (two-step lesser-included-offense test)
Brooks v. State, 990 S.W.2d 278 (Tex. Crim. App. 1999) (erroneous admission of evidence not reversible when same facts proved by properly admitted evidence)
Feldman v. State, 71 S.W.3d 738 (Tex. Crim. App. 2002) (challenge-for-cause analog; reversal requires showing deprivation of lawfully constituted jury)
Montoya v. State, 43 S.W.3d 568 (Tex. App. Waco 2001) (911 tape admissible where custodian testifies tape made in ordinary course of business)