Garcia v. State

BAIRD, J., disposition concurs joins of error No. and otherwise

opinion.

CLINTON, J., dissents. GARCIA, Appellant,

Hector Torres Texas, Appellee. The STATE of No. 71148. Texas, Court of Appeals Criminal En Banc. April 1994. Rehearing Sept. Denied

864 Guerra, Atty. and Theodore C. Dist.

Rene Hake, Atty., Edinburg, Robert Dist. Asst. Austin, Huttash, Atty., State’s OPINION MEYERS, Judge. July 1990 of convicted

Appellant was Code under Texas Penal capital murder 19.03(a)(2) in Au- § for a murder committed robbery. during the course of a gust 1987 findings affirmative After the returned pursuant special issues submitted to the two 37.071(b) of Crimi- to Art. of the Texas Code Procedure, appellant sentenced to nal 37.071(e).1 appeal to Direct death under Art. 37.071(h). by Art. mandated this Court is will affirm. We Sufficiency the Evidence I.

point twenty- Appellant challenges, in

seven, con sufficiency of the evidence to Appellant dis capital him murder. vict putes sufficiency the evidence to estab 1) he beyond lish a reasonable doubt that 2) victim, kill specifically intended to 3) victim, and person was the who shot the murder in the course of he committed the challenges the suffi robbeiy. Appellant also ciency to corroborate the of the evidence accomplice Eduardo Morales. multifarious, latter contention is While this arguments in the inter address these will justice. E.g., Thomas v. est of (Tex.Crim.App.1986); n. 2 74(d). Tex.R.App.P. but see that, requires sufficiency A review viewing light most the evidence while verdict, we ask whether favorable to the beyond fact could have found rational trier of being doubt all of the elements reasonable Virginia, chаllenged. 443 U.S. Jackson 2781, 2789, 61 L.Ed.2d 560 99 S.Ct. (1979); Nelson v. — denied, Connors, III, (Tex.Crim.App.1992), cert. U.S. Melnnis Joseph A. Norman Ramos, McAllen, -, 126 L.Ed.2d appellant. S.Ct. and Dorina unless otherwise cited. Procedure are to the Texas Code of Criminal 1. All article references record, again light ing, bleeding. Appellant in a favor- demand- viewed most verdict, money. paper money took jury’s ed the She able to the establishes the him, again fixed Rios, and walked toward her focus following: Adelmina the victim’s seven- face, As on his and he moved toward her. sister, year August that on teen old testified money, appellant the some fell to she handed 25,1987, working p.m. she the 4-10 shift was bent, floor, appellant pick up over to at an L & M Mart located about ten miles money. up, appellant As he stood back Edinburg, fourteen- north of Texas. Her Thinking shot Ms. Rios. that she had brother, victim, year-old joined her at fell, grazed, feigning been Ms. Rios death p.m. keep company store around 9:15 her being again by appellant. avoid shot She buy dogs some hot and a drink. At deputies waited.2 When the Sheriffs ar- p.m. about 9:30 two store. men entered the rived, she realized that had been shot in she counter, and Ms. Rios was behind the her the stomach. Later she learned sitting brother was at the end of the counter her, gone through exiting through bullet had eating dogs. his hot The first man walked seriously injured her back. had been She looking around the store into the coolers and immediately hospitalized. and was brought a soft drink to the counter. The man, subsequently appel- second as identified a clear view Ms. Rios testified she had lant, looking in also walked around the store appellant most of the time that he was apparently stalling, the coolers. He realizing that the store. She noted that after waiting for the other customers to leave. robbed, being she was her focus was on his beer, Appellant, retrieving a asked the first accurately face. She described According man whether he wanted beer. police him and later identified from Rios, lit, eye to Ms. the store was well her explained upon seeing photo lineup; she sight good, could she see appellant’s picture experienced she a memo- obstruction; clearly and without she remem- ry gunman’s flashback of the face and was particularly bered his face. identified She gunman was the who certain that man who as the second man —the Rogelio had shot her and killed her brother. killed her brother. E.M.S., Garcia, employee testified that night Ms. Rios on the he attended to beer, retrieving appellant walked After murder. He testified that she had been con- Ms. Rios removed down the middle aisle. calm, scious, alert, very and concerned about appellant momentarily her focus from but brother —that she had known where she her him turned back to look at when she heard Deputy happened. was and what had Sheriff say something. him she turned When dispatched that he was Jeff Rivers testified standing around he was at the end of the that Ms. Rios to the scene of the crime and gun counter with a to her brother’s face. spoke to him in a normal had been calm and mumbled, Though appellant had she under- voice; hap- him tone of she told what had robbery, appellant’s stood that it was a since pened given descriptions him of the and had extended, waiting free hand was to receive two men. money. that her focus the Ms. Rios testified appellant’s face. at this was on She Santos, per- testifying that he Dr. Ruben them; begged him not to hurt her brother deceased, autopsy the stated formed trembling, gun the in his face. Neither sat “close-range,” a boy that the had suffered any nor her brother offered resis- Ms. Rios right of his head. gunshot side denoting gesture resis- explained, tance made that the “Close-range,” he means empty the cash weapon tance. As she turned to than four barrel of the was no more register, appellant gun fire the and Dr. stat- she heard feet from the victim’s head. Santos that appellant had shot her brother ed that his internal examination showed saw that head; air, severely damaged victim’s gasping the boy fell for vomit- the bullet the the panic. appellant Ms. Rios testified that her shot shock 2. The evidence indicated that after and/or victim, appеllant. accomplice remained on ran from the store in focus the his eye- Rios as an brain; victim. Ms. testified no condition which the he found other gunman who boy's appellant The victim that contributed to death. witness of evidence by the close- brother. This is direct from the wound caused shot her died consistently identity. Ms. Rios range gunshot head. her as man who shot appellant identified sister-in-law, Morales, appellant’s Ofelia as hold- He was one identified brother. date of the that sometime after the testified head when ing gun to her brother’s a appellant telling some- offense she overheard as the He identified was fired. shot telephone a he had killed one over the that testified her. Ms. Morales gunman who shot boy dog

boy, had like a that “bounced boy her a appellant told he had shot that eyes sheep” like a that his and screamed killing A reasonable to her. described open lay dying. wide as he She had been appel- from jury could find this evidence say that it was at a store. heard victim. person who shot the lant was the eyes that “the were He also said other ones’s open.” Ms. Morales testified also wide finding that supports also The evidence had been when she asked what he in the while the murder was committed about, merely talking laughed. he asked She robbery. gun to Appellant held the course of again, told had killed and he then her that he to re head with extended the victim’s hand boy boy repeated a had money he Ms. Rios to had ordered ceive dog sheep.” “bounced like a cried like a get him. As she turned surrender why thing; him he She asked had done such Rios, and money, appellant shot Eduardo know, verbally responded that he did Rios to repeated his command to Ms. then her, and told her it none of abused that was money. no clearer turn over the There is produced her business. then course example of a murder committed in the gun, held it at Ms. head and warned Morales’ robbery. See Green telling against anybody her she had what - denied, (Tex.Crim.App.1992), cert. explained would kill heard or he her. She U.S. -, S.Ct. 123 L.Ed.2d anyone that she did not reveal the incident to (Murder (1993) robbery). the course appellant. fear sufficien Appellant’s challenge to the A rational trier of fact could find be the testimo cy of the evidence corroborate yond doubt inten a reasonable Morales is ny accomplice witness Eduardo tionally specific Eduardo killed Rios. The First, respects. as the puzzling several may kill intent to be inferred from the use notes, it is Morales unclear whether State deadly weapon. Godsey accomplice; we assume was indeed an (Tex.Crim.App.1986). 580-81 Second, argument that he Art. 38.14 was. present case not did enter accomplice requires the corroboration of carrying deadly weapоn, the store he held “testimony,” Mr. con but Morales’ head, provoca it to victim’s and without in of a denial involvement sisted boy “close-range” in the tion shot the complete prior refutation of offense Appellant completed then the rob head. ap incriminating Apparently, statements. bery, his second and fled from shot victim pellant arguing that under Art. 38.14 is State, 691 Thompson the scene. See accomplice’s prior but also an 627, cert. (Tex.Crim.App.1984), incriminatory must be corrobo statements 865, denied, 184, 88 474 U.S. 106 S.Ct. into evidence. rated whenever introduced (1985) (acts entering L.Ed.2d 153 question this even do not reach because We shooting carrying deadly weapon, a scene prior inconsis accomplice’s that an if we held sup range, fleeing victim at close and then corroborated, must we statements be tent port finding killing). of intentional above believe that evidence recounted the state jury’s find- than sufficient corroborate supports also more The evidence only evidence requires Art. 38.14 ing appellant person who shot ments.

tending to connect with the offense. evidence showed that entered the State, (Tex. 558, Munoz v. deadly 858 S.W.2d weapon, store with a that he demand Crim.App.1993). money register ed the from the cash as he face, gun held the to the victim’s that he shot evidence, The even without Eduardo Mor- range the victim at close in the head without stаtements, ap- ales’ was sufficient to convict provocation, taMng money that after pellant; certainly it tends to connect him to Rios, from Adelmina he shot her and then evidence, the offense. Since the absent ac- jury fled the scene. The from could these complice testimony, is sufficient to convict facts find that deliberately acted offense, of the it is sufficient to expectation and with reasonable accomplice testimony corroborate which is a death of the victim would result. See Callins Appellant’s twenty-seventh lower standard. State, 176, (Tex.Crim.App.1986), 780 S.W.2d point of error is overruled. denied, 1011, rt. U.S. S.Ct. ce (Where 3256, 111 L.Ed.2d 766 defendant en twenty-eight challenges Point of error firearm, tered with bar loaded robbed occu sufficiency of the evidence to affirmative shoot, pants and announced intention to ly special punishment answer the two issues. there was sufficient evidence of deliberate 37.071(b). Appellant Art. asserts that ness). prove beyond evidence was insufficient to “deliberately reasonable doubt that he acted challenges also the suffi expectation with reasonable that death” ciency of affirmatively the evidence to an 37.071(b)(1). would Recently, result. Art. probability swer that there is a that would (Tex.Crim.App.1992), 527, Johnson v. commit criminal acts of violence that would — denied, U.S. -, t. cer continuing society. constitute a threat (1993), 114 S.Ct. 126 L.Ed.2d 115 37.071(b)(2) (second issue). Art. special explained: State counters that the facts of the case guilt stage The facts at the of the trial finding appel alone are sufficient support alone can often be sufficient to continuing society, lant is a threat but also finding jury spe affirmative points proof to other evidence offered as penalty stage cial issues at the of the trial. appellant poses continuing threat to soci Williams v. 538 ety. denied, (Tex.Crim.App.1988), cert. 493 U.S. appel- The State the evidence 110 S.Ct. 107 L.Ed.2d 207 dangerous lant’s continued behavior after the “A must find ‘a moment of delibera i.e., offense, holding gun Ms to Ofelia Mor- tion [by] and the determination actor threatening ales’ head while to Mil if her she justified to Mil’ answering before it is anyone boy, disclosed to that he had Mlled a ‘yes’ special issue number one.” Kinna Morales, and Ms similar threats to Eduardo (Tex. mon v. 95-96 being both of ‍​‌​​‌​‌‌​‌‌​‌​​​‌​‌‌​​​​‌​​​‌​‌​​‌​​​​​​‌‌​‌‌​​​‍these threats to own Crim.App.1990). The determination of de family. The State also introduced evidence liberateness must be found from the totali remorse, appellant’s complete lack of as ty of the circumstances. description evidenced Ms of Ms fourteen pur- punishment The State re-offered for year-old victim’s death as that of an animal poses all guilt the evidence introduced at the laughing why when asked he done such a phase of the trial. thing. points appellant’s Thе State also out misconduct, i.e., long Mstory of criminal Ms Reviewing light the evidence in the most verdict, disregard Appellant total for the law. favorable to the we hold that the possession convicted of to evidence was sufficient for the rational trier with intent distrib- marihuana, appellant fifty-eight pounds of ute facts to find that acted of abscond- deliber- ately expectation probation, and with the ed on the condi- that death while and violated probation by possessing would result when he shot the victim. The tions of firearms.

871 Suppress Appellant as- Furthermore, at an Evidence. appear failed to Motion deportation. argument ev an agreed presented The State that he cannot formulate serts searching that found deputies point idence while he cannot find the under this because .12-gauge dou appellant’s a stolen presentation residence of evi- arguments, parties’ shotgun; a different ble-barrelled number of ruling on his motion. or the court’s dence rounds, and a hand caliber of live .22-caliber appellant’s Motion offers that State light in the gun. Reviewing the evidence in found the record Suppress Evidence is verdict, we hold most favorable unsigned. proposed order with jury’s ap supports finding evidence 1990, 6, July on The record reflects that pellant probably continuing danger judge for an outline of the the trial asked State, soсiety. v. S.W.2d See Narvaiz 840 hearing suppression — issues. After evidence denied, 415, (Crim.App.1992), 424 cert. appellant’s suppress, motion to regarding -, 1422, 122 L.Ed.2d 791 U.S. 113 S.Ct. advisement, under judge took the matter also, State, (1993); see Brock v. making ruling part matter in be- no on the denied, 309, (Tex.Crim.App.1976), 316 cert. him that it did not cause the State assured 647, 1002, L.Ed.2d 498 434 U.S. 98 S.Ct. 54 in using question. anticipate the evidence point of Appellant’s twenty-eighth agreed to file a memorandum of The State is overruled. error it decided to introduce law in the event that in Apparently, ruling no final the evidence. II. Pretrial Suppress appellant’s Motion to Evidence was made; nor does assert points ever twenty-three In twenty-four questioned was ever introduced. appellant asserts that the trial evidence denying paragraphs court erred in “HI” and presents an As he neither issue nor “II”, respectively, quash. of his motion to review, twenty- argument appellant’s for our legal argument no or au offers Darty E.g., of overruled. fifth error is thority points; merely supporting his 652, (Tex.Crim.App. v. 655 conclusory quotes para assertions under 1986) (Specific ruling ap on must III graphs quash.3 and II of his motion to error). preserve pear in the record to Tex. briefed, inadequately As these are 52(a). 103(a); Tex.R.App.P. R.Crim.Evid. See, e.g., will review their substance. (Tex. Gonzalez, 692, 855 697 State S.W.2d

Crim.App.1993), Goodwin v. Jury III. Selection 719, 1 (Tex.Crim.App.1990), 723 n. five, In asserts 2913, error denied, cert. 501 U.S. 111 S.Ct. improperly trial in ex- (1991); that the court erred 115 L.Ed.2d 1076 Coble v. merely cusing venirepersons various because (Tex.Crim.App.1993); 201-02 74(f). Tex.R.App.P. twenty- they opposition penalty. Points of to the death voiced Illinois, twenty-four three and are Witherspoon overruled. Appellant cites 510, 88 U.S. S.Ct. L.Ed.2d Texas, (1968), Adams v. twenty-five U.S. Point of error asserts (1980), Her- overruling appellant’s trial 65 L.Ed.2d 581 court erred S.Ct. indictment, appellant’s mo- the murder was "committed further 3. Our review of the hearing III, quash, tion to and the record felony." paragraph commission entirely appellant’s are reveals that without merit. The indictment reads in contentions complains "am- that the indictment is perti- biguous ... and unclear whether deceased committing part nent attempting in the course "while victim, part in the indictment as the named robbery commit the offense act as the of the same and continuous assaultive Rios, Adelmina the said defendant did then alleged underlying felony that is the indict- intentionally cause the of Eduardo there death During hearing January pretrial ment.” Rios_” para- Quash Appellant’s Motion to 9, 1990, Judge Murray denied mo- graph complains II capital that the fails to indictment tion. allege allege murder because it fails to (Tex.Crim. nandez v. 757 S.W.2d 744 meant that the defendant would be sentenced App.1988).4 Upon to death. questioning, further the ven- ireperson again position returned to her reviewing a trial court’s deci she could affirmatively not answer special venirepеrson upon sion to dismiss a a chal issues, despite evidence, if it meant a cause, lenge for considerable deference is death explained sentence. She that she given to the trial court because it is in the strongly right believed that she had no to sit position venirepersons; best to evaluate the judgment sup- another. This record the trial court benefits from observation of ports judge’s the trial decision to remove the venireperson’s responses demeanor and venireperson. appellate only while an court has the cold record. Cantu v. complains next of venire- (Tex.Crim.App.1992), citing, Wainwright v. person Arguelles. Initially, Arguelles Ms. Witt, 412, 105 469 U.S. S.Ct. 88 L.Ed.2d carry indicated that she could out her duties potential juror’s aWhen answers! juror. as a very She indicated that she was vacillating, unclear, are or even contradicto nervous and needed a little time to consider ry, judge’s particular the trial observation is her questions. answers to the State’s When ly Cantu, important. 842 S.W.2d at 682. In if sign asked she could knowing the verdict reviewing judge’s the trial decision to sustain it would lead to if jury death chosen challenge cause, we ask whether the foreman, Arguelles Ms. indicated that she totality of the voir dire supports verdict; sign but, could not when asked judge’s finding the trial if a clear by counsel, she stated that she abuse of discretion is demonstrated will we sign could Upon being verdict. asked reverse. Id. feeling her penalty, the death Arg- Ms. uelles answered that she did not believe the Regarding venireperson Bernal, the penalty death to be correct but that she record reflects that ju she indicated on her really could why answer she felt that questionnaire ror that she could never return way. again When asked if she could answer assessing penalty. verdict the death Dur special affirmatively, issues the venire- ing dire, her voir she reasserted that even if person stated that she would correct her the evidence showed guilty, a defendant to be former statements —that she could not an guilty she could not find him knowing that it special swer the affirmatively knowing issues ultimately would lead to his execution. She penalty that the death would result. When also if negative asserted that answer to one appellant’s counsel asked her if she could set special prevent issues would the death personal feeling aside her perform her penalty, she would negative answer in the legal duty, replied she that she could not. regardless judge’s of the evidence. The deci supports The record trial court’s excusal supported by sion is the record. Arguelles. of Ms. Venireperson Cuellar’s voir dire re beginning

veals that from the she Appellant complains was doubt next of venire- ability cany ful of her out person Ortega’s her duties dismissal. The record es because of her belief that no one Ortega has the tablishes that unequivocal Ms.

right to take another’s life. Ms. opposition Cuellar said her penalty the death and about “yes” that she could not answer special inability carry her out the law. She stated beyond issues even if convinced a reasonable beginning from the that she could not affir doubt that yes, matively the answer should special be but despite answer the issues then she stated that she could answer the the evidence if it meant that a defendant special However, truthfully. issues Ms. Cu- would receive the death sentence. When ellar then stated if by appellant’s chosen foreman of asked counsel whether she sign she would not if the verdict it could envision case where she could an- (Tex.Crim.App.1992). overruled Fuller v. Hernandez

873 harm, affirmatively, show sixth and sev- special pellant Ms. cannot his issues swer of error are points that The rec- overruled. Ortega stated she could not. enth supports the trial court’s determination. ord

appel eight error voices

Point of commit that the trial court

Finally, appellant challenges the ex- lant’s contention dismissing in cause for reversible error venireperson Ms. Guzman ted eusal Guzman. they not jurors stated that could did in the death two who that she not

stated believe testimony of one on the say that she whether convict defendant penalty, but could that points The out affirmatively special eye-witness alone. State could answer she object court’s failed to to the trial appellant she that crimi issues because also believed of which punished. venirepersons if her of the two nals should be asked dismissal When supports complains. interfere duties as a record views would with her assertion; appellant pre juror, replied they has failed she twice that would. She State’s 289, State, Kemp unequivocally ques v. 846 S.W.2d responded serve error. — denied, automatically (Tex.Crim.App.1992) cert. tioning, that she vote 302 would 2361, U.S. -, 268 special 113 S.Ct. 124 L.Ed.2d negatively on the issues to avoid 52(a). (1993); regardless Tex.R.App.P. Appellant’s penalty the evidence. death in eighth point was within discretion excus error overruled. The Court its ing venireperson. nine, as point In of error venirepersons The record reflects that the denying in that the district court erred serts by complained properly appellant were challenges to limit [the] his “motion State’s grounds dismissed on their views jurors against for cause with conscientious substantially per

prevented impaired His scruples against penalty.” the death jurors of their in accor formance duties as argument consists one sentence: “Since given dance with the and the instructions adequately current con the motion followed oaths taken. See 848 S.W.2d Nelson law, reversibly the trial court stitutional 126, (Tex.Crim.App.1992), 134 cert. de (citation denying ...” erred motion —nied, -, 100, U.S. 114 126 S.Ct. omitted). authority for Appellant no offers (1993). Appellant’s point L.Ed.2d 66 fifth that the deniаl of proposition ‍​‌​​‌​‌‌​‌‌​‌​​​‌​‌‌​​​​‌​​​‌​‌​​‌​​​​​​‌‌​‌‌​​​‍trial court’s is overruled. Appel a motion is alone error. reversible point adequately is not State lant’s briefed. seven, In of error six and Goodwin, Gonzalez, 697; 855 S.W.2d at appellant complains that the trial court erred 723; Coble, at 201- 799 at 871 S.W.2d overruling challenges various for cause 74(f). 02, (Tex.Crim.App.1993); Tex.R.App.P. which he made trial. The State counters Appellant’s ninth of error is overruled. appellant employed only of his twelve peremptory challenges, failing pre thus Guilt Phase IV.

serve error. Indeed, record reflects Impeachment A. peremptory challenges. his did not exhaust ten, In of a appealing the trial court’s denial revers that the trial court committed asserts cause, challenge cannot show overruling ible error his perempto harm unless he exhausts all of his impeachment of Eduardo improper State’s ry challenges. Hathorn v. reading prior out-of-court 101, Morales de (Tex.Crim.App.1992), 110 cert. -

nied, -, him. concedes that statement U.S. 113 S.Ct. impeach (1993), may own witnesses the State its citing, Demouchette v. L.Ed.2d Texas Rules of Criminal (Tex.Crim.App.1986) under Ride Evidence, denied, except primary when the State’s 482 U.S. cert. S.Ct. impeach calling the is to Accordingly, ap- witness since reason

L.Ed.2d allegedly him to his wife in which he stated that or introduce otherwise inadmissible evi- However, appellant personally dence. asserts that the he did not know who had commit- 607, improperly calling State used Rule the ted the murder but that he had heard from “solely” “primarily” impeach Appellant witness to someone who it was.6 offered no theory him and hearsay might thus introduce otherwise inadmissi- under be which appel- ble evidence. The counters that State admissible. The letter was never introduced properly preserve lant failed to error with a proof into evidence nor was offer of objection. specific through might made which we now review the excluded evidence. has failed Appellant urges us to reverse his convic- preserve question to Tex. review. ground party may tion on the that a not 103(a)(2). 52(b); RApp.P. Tex.R.Crim.Evid. impeach party its own witness where the point His thirteenth of error is overruled. solely primarily calls the witness to intro- duce otherwise inadmissible evidence via a B. Translation Error impeachment. appellant’s objec- “sham” But theory tion at trial was not founded on this thirty-two, appellant In of error com- Appellant’s objection law. trial was to the plains that the trial court violated Art. 38.30 questions.5 allege form of the It did not allowing in not the court translator to finish impeachment merely of Morales was interpretation testimony. of a witness’ by charade which to introduce inadmissible Appellant misrepresents the facts and the Thus, appellant’s objection evidence. did not legаl giving question. rise to this issues Cor- argument raise the on which he now relies. recting appellant’s misrepresentations re- cannot hold that the trial court We erred present facts veals us with novel its determination of an issue that issue; required preserve to what 103(a)(1); even before it. Tex.R.Crim.Evid. when an inaccurate translation is offered into 52(a). State, Tex.R.App.P. E.g., Hollins v. evidence? 475, (Tex.Crim.App.1991); (Tex.Crim.App.1990) 272, Johnson v. The called Javier Barrera-Pena who State denied, t. 501 U.S. help of a translator. The testified with cer 111 S.Ct. 115 L.Ed.2d 1078 interpreted questions translator from Point of Error ten is overruled. English Spanish to and vice versa with the During portion

witness’ final answers. thirteen, witness, direct examination of the State’s counsel, posits sustaining Rodriguez, up, that the trial court erred defense Mr. stood me, objection Honor, impeachment stating, your the State’s to his evi “Excuse that trans- against complete.” dence Eduardo Morales’ out-of-court lation wasn’t The trial court re- ap sponded clarify any statements. The record establishes that that counsel could inac- pellant attempted impeach curacy in on to Morales’ the translation cross examina- counsel, criminatory by Appellant’s out-of-court statements tion of the witness. this Banks, objection means of letter which Morales had written time Mr. renewed the objection hearsay grounds. objected 5. Defense counsel's wаs: to the letter on The correctly improper impeachment judge I think this is on the trial sustained part lady prosecutor. basically, She is explained counsel that it must first reading, supposedly, signed a statement that is hearsay exception establish an before the individual, by object leading and we this to her objection. court could overrule the State’s by signed to the statement that is this individu- suggest briefs that the letter contained both ad him, impeach prior al. If she wants to as to However, hearsay. missible and inadmissible this, inconsistent statements on then she needs separate the admissible since failed questions go right to ask him the than rather inadmissible, from the even if introduced into through it and read it. evidence, we could not have held that the trial excluding the See court erred in statement. objected 6. We note that State first (Tex. reading yet Jones v. 492-493 of a document not introduced into Crim.App.1992). evidence and was sustained. Then the State ultimately be determined peached “inaccu- and is grounds that the translation was Ind. jury), citing Skaggs v. Again, suggested trial court rate.” (1886); also United opportunity would See counsel have the 8 N.E. defense (7th Manos, 1427, 1432-3 during its cross- 848 F.2d impeach the translation States Cir.1988) Appellant’s could be of the witness. of translation (questioning examination examination). “objec- apparently abandoned their thoroughly upon counsel cross probed fine, stating, your “that’s Honor.” Annotation, tion” Inter- Macy, Use See also J.E. of 923 Proceedings, 172 AL.R.

preter in Court (1948) (The interpreter in the is a witness Appellant appeal that the asserts on accuracy is a judge’s overruling “objection” his constituted the of his translation sense We, provides Art. an jury). a of 38.30 which as question violation of fact the Appellant’s court, appointment the translators. can no more determine appellate ill-placed; provides for is Art. 38.30 reliance is which of a translation accurate or whether guards appointment of translators and accurate, the than we is more two translations competence, but not address the their does which of witnesses is tell- can determine two individual, isolated, inaccu problem of truth, is more ing the or which of the two Questions regarding the rate translations. truthful; questions are for the factfin- these performance of translators appointment jurisdiction to “This Court has no dis- der.7 questions rights guaran legal regarding are [jury’s finding fact] the the absence turb by the consti teed United States and Texas being question presented.” of law of some rights ensuring that an individual (Tex. tutions — Morris v. 813 fair defendant has a trial. Baltierra v. Crim.App.1942). Similarly, just as (Tex.Crim.App.1979). As is may preserve by objecting error at trial not law, questions these sues of are reviewable lying, may preserve that a witness is he not However, by appellate appellant’s court. a inaccu- objecting that translation is error general objection competence not to the is rate; simply question no there is reviewable translator; accuracy it is to of an impeach the preserve. Just as must he individual translation which raises a different lie, lying at trial to a defen- witness cure type question surprisingly of issue and a impeach the inaccurate or incom- dant must jurisdiction. to our novel question to cure plete translation it. As fact, question of a appellant must settle the objected to the specifically accuracy by impeaching at trial translation’s translation, inaccuracy interpreting of a translation; cross-examination of the wit- study English. Upon into witness’ vehicle, the most presents ness convenient reflection, cannot we conclude that we by may accomplished impeachment be but question, is no even review the because there many other means.8 question legal presented; issue it a factual is gener- answer, challenge only As does ultimately jury which can admis- interpreter, but by al skill of is not this court. and which reviewable translation, particular Burris, of a into evidence 643 P.2d sion See State Ariz. (The His questions. accuracy presents sworn no reviewable (App.1982) interpretation may thirty-second point im- is overruled.9

interpreter’s be Annotation, Macy, Inter- emphasize presented we with a J.E. Use 7. We are not had said. Proceedings, preter A.L.R. 951. in Court consistently in .which a translator mistrans- case thus, witness, raising by lated statements case, present specific no 9. Weadd that in question qualifications under of the translator’s stating problem with objection offered Art. 38.30. evidence, interpretation nor admitted into interpretation into the "correct" entered Independent may evidence be introduced proof during cross examina offer of record incorrect, interpreter’s Therefore, that the version was show we could witness. even if tion of the may interpreter placed question, the witness or the be have to find review the would Indeed, preserve it error. what the failed stand and cross-examined as to witness Jury C. closing argument. Instructions as substantive evidence in Appellant argues that the misconduct State’s Appellant complains of er process him denied due and due course of ror fourteen and fifteen of the trial court’s law under both the United States and Texas requested denial of his instructions Appellant’s argument Constitutions. whol- presumption of innocence and reasonable of, ly eonelusory, offering explanation no doubt, respectively. counters that The State argument supporting, allega- much less request withdrew his for these in prosecutorial simply tion of misconduct. He structions and no made asserts that there was misconduct. and, thus, charge preserved nothing for re view. appellant’s arguments We decline to make Thus, guess meanings. for him or to at his The record reveals that trial argument inadequately because his is initially objection counsel made no to the briefed, appellant’s eleventh and twelfth jury requested opportuni- instructions but points of error are overruled. State v. Gon ty to file an additional instruction on reason- zalez, 697; Goodwin, 855 S.W.2d at 799 presumption able doubt and of innocence 723; Coble, 201-02, S.W.2d at 871 at S.W.2d yet prepared. which he had not When asked 74(f). (Tex.Crim.App.1993); Tex.R.App.P. be, request what the nature of his would appellant’s responded counsel it that would Point of error sixteen asserts that emphasize prove every that the State must the trial court in overruling erred six of beyond element of the offense a reasonable appellant’s objections to final the State’s ar presumption doubt because of the of inno- gument guilt stage. point at the This is judge responded cence. The trial he briefed, inadequately raising six different ob request would entertain the written but jections in pages fewer than three full thought boilerplate charge covering he argument. Appellant alleged lists each error topics adequate. Subsequently, these general proposi that it asserts violates a request counsel withdrew his for law, present argument.10 tion of but fails to charge. Appellant рroper- thus failed to inadequate briefing guessing This leaves us ly preserve appellate review. See appellant’s argument. at ap We insist that 52(a). Tex.R.App.P. Appellant does not pellant providing meet his burden of clear charging claim that egre error was so Gonzalez, specific arguments. 855 gious deny as to him a fair trial. See Alman 697; Goodwin, 723; at at S.W.2d (Tex.Crim. za v. 686 S.W.2d Coble, 201-02, (Tex.Crim.App. at App.1984) (opinion rehearing). Points of 74(f). 3,1993); Ap Tex.R.App.P. November error fourteen and fifteen are overruled. pellant’s point of sixteenth error is overruled. Argument

D. Final Appellant argues of error sustaining seventeen that the Court erred in argues Appellant points of error objection part closing the State’s to of his together. argues eleven and twelve He argument. During guilt phase engaged flagrant by the State misconduct trial, appellant argued reading Eduardo the weakness of the Morales’ statement offering parts “They you and then of the statement evidence and stated want to kill objections appel- ported by correctly points seems that after their initial the record. The State ignores appellant simply out that certain evi completely lant’s trial counsel abandoned the appears ignores dence which in the record or brief, appellant issue. Even in his fails to assert context in which the statement is made. Each of problem specific interpretation with the arguments, the State's plains, of which com question, any explanation and does not offer catego falls within the four well defined harm. permissible argument. E.g., ries of State, See Cantu v. (Tex.Crim.App.1992), justice appel- denied, -, 10. In the interest of we reviewed cert. - U.S. 113 S.Ct. arguments, unsup- lant's and have found them L.Ed.2d 731 appel twenty-nine, you you kill him—I’ll They him. to tell want reversibly you convict, they prosecutor avers that That if are lant right now. guilt closing argument at the you kill Torres in her going Hector erred to want by presenting, as substan pun- phase that this of the trial Garcia.” The State’s evidence, in the state beyond scope revealed issue was tive facts ishment guilt trial was sustained. which were intro phase of ments of Eduardo Morales only. purposes impeachment duced proposes that because the State argue acquittal, as is the effects the stand allowed Eduardo Morales took argue permitted must be the effects grant immunity witness under a State’s flawed; argument Appellant’s conviction. by denying the surprised ve- the State guilt acquittal is the issue at the conviction incriminatory racity prior of his statements.

phase The effect of conviction is the of trial. prior Morales’ state- State introduced may not punishment. issue at Punishment However, him. ostensibly impeach ments un appropriately be discussed either side limiting requested nor was no instruction was convicted, i.e., til unless the defendant is that it given; one testified made the defense punishment phase. at See McClure request the in- the tactical decision not (Tex.Crim.App. appellant complains appeal, struction. On 1977) (Prosecutor’s closing argument guilt argued closing that at facts from the State stage jurors in he advised of which of effect evidence; the statements as substantive he by referring their to in verdict difference objectionable twenty-seven to refer- punishment voluntary between murder and In by prosecution. ences made the review- error; manslaughter prosecutor in was effect record, ing that not the we discover one jury was urging pun to decide on conviction objection preserve was at trial to the made than on the ishment rather evidence and the argues. which now appellant issues Without law). objection properly The State’s was jury timely, specific objection argu- a to the Appellant’s point sustained. seventeenth of ment, appellate preserved no error error is overruled. State, E.g., 672 Borgen review. v. S.W.2d 456, (Tex.Crim.App.1984). Appellant’s 460 eighteen, point appellant of error In twenty-ninth point of error is overruled. complains the improperly State com complains point thirty appellant In of error during closing argument mented on his fail again “prosecution” arguing that the erred testify. Appellant argues ure to under Grif arguments 609, improperly during closing 1229, its California, 380 85 U.S. S.Ct. fin Again, danger to her. no (1965), the was a 14 and L.Ed.2d 106 Article 38.08. objection was made at trial to this statement. objection that no State counters was Thus, point preserved the for review. trial and asserts that was made at the statement Borgen Appellant’s complained reasonably E.g., at 460. of cannot be inter 672 S.W.2d preted appellant’s is overruled. as a comment on failure to thirtieth supports testify. The record ar State’s guments; objection no was made. Thus er Punishment V.

ror, preserved. objection any, if was not An one, two, three, and error of timely specific. and Tex. must be See 52(a). State, ‍​‌​​‌​‌‌​‌‌​‌​​​‌​‌‌​​​​‌​​​‌​‌​​‌​​​​​​‌‌​‌‌​​​‍argues court that the trial revers also R.App.P. See Hollins v. 475, ibly failing to instruct the dur erred (Tex.Crim.App.1991).11

805 476 punishment trial eighteenth point ing phase appellant’s We overrule witness, impeach used a Eduardo error. evidence to Moreover, agree Crim.App.1983), quoting See more re with the State that its Griffin. State, 887, (Tex.Crim.App.1989), cently, indirect comment in its context could not "natu- rally Bower 769 S.W.2d denied, 906 necessarily interpreted by jury and be a 492 U.S. t. cer [appellant’s] testify.” on failure to comment S.Ct. 106 L.Ed.2d (Tex. E.g., Owen v. Morales, be considered im- charge guilty tion to phase at the of his peachment and not as evidence in beginning substantive trial. At punishment deciding punishment issues. The State State made a blanket re-offer of all the evi- сounters that has waived Appellant. dence without from Ap- a) by failing object request and limiting a pellant objected charge requested and instruction at the introduction of the evi- limiting a instruction at the close of the b) trial, guilty phase dence at the of his punishment Thus, stage of trial. failing object request and limiting in- only objection charge was to pun- at the struction in charge guilt phase at the stage; requested ishment an instruction c) trial, by failing object request limiting prior Morales statements to be limit- limiting instruction at the re-introduction of impeachment ed to purposes.14 punishment stage evidence at the of tri- al.12 Appellant argues appeal Rule 105 of the Texas Rules Criminal record, According to the the State called required give Evidence trial court to Eduardo Morales to the stand. He was limiting requested instruction pun when granted immunity exchange for the testi- ishment complained because the evidence mony give. he was to surprised Morales imp purpose admitted for the limited State with his that he had not left However, appellant ignores eachment.15 night home on the of the offense. The State the fact party opposing that a evidence has impeached by introducing previ- Morales the burden of objecting requesting ous statement which related that Morales limiting instruction at the introduction of the provided, had unwittingly, appellant albeit E.g., evidence. Abdnor v. murder, ride to and from the (Tex.Crim.App.1991); Plante v. had told him boy that he killed a and then (Tex.Crim.App. threatened Morales with if death he revealed 1985); 105; Tex.RApp.P. Tex.R.Crim.Evid. anyone. appeal, what he knew to appel- On 52(a). Appellant ignores further that once objects specifically lant prior to Morales’ proper limiting evidence is received without a appellant statement that threatened kill to instruction, part it general becomes of the anyone him if happened. he ever told what may evidence the case and be used as proof When persua the statements were to the full extent introduced dur- of its rational ing guilt trial, phase power. al., the appellant Cleary sive See Edward made an W. et. objection question to the form of the § but did McCormick on Evidence 4th Ed. (1992).16 object request admitted, not to or limiting a instruction Once the fact that evi regarding Appellant Morales’ statements.13 might dence have been inadmissible for cer object request did not limiting purposes objection instruc- tain if proper the had Alternatively, (a) argues the State that the evi- When evidence which is admissible ... for punishment dence was admissible at as substan- purpose one but not admissible ... for another dangerousness tive evidence of future and not admitted, court, purpose upon request, is the merely impeachment. for proper sсope shall restrict the evidence to its jury accordingly; and instruct the but in the five, supra. 13. See note request absence of such the court’s action in admitting such evidence without a limitation argument urges 14. The State in its that the evi- ground complaint appeal. shall not be a for on dence, purpose while admitted for limited at Tex.R.Crim.Evid. but, culpability, punishment was not limited at as evidence of an extraneous misconduct the threat Alvarez, See also United State v. properly to kill 584 F.2d Morales could be considered in 16. Cf. (5th Cir.1978) (absent error, special plain deliberation of the two issues. For the evi holding, reasons stated in our subjected proper objection this issue is not dence not is ordi reached. narily any pur admissible at trial for relevant pose). 15. Rule 105 states: Coble, Goodwin, 728; at not limit its use. Id.17 been made does 801-02, (Tex.Crim.App.1993); at Tex. indicates that the State made record 74(f). point fourth R.App.P. Appellant’s guilt from of all evidence blanket re-offer is error overruled. punishment phase of trial at the outset any objection or phase request for a without thirty-one of error voices Point limiting appellant. from instruction Without eighteen remarks appellant’s complaint at least to the re-introduction of closing argu prosecutor her made evidence, appellant any forfeited punishment.20 review of ment at Our pun- was admitted into the the evidence trial the defense record shows that at probative phase ishment of trial as objected remarks of which to two of the Thus, question it to which was relevant.18 Thus, complains. no error appellant now failing charge not err in trial court did arguments preserved as to the sixteen limiting regarding instruction with object. E.g., Borgen appellant did not which Indeed, since Edward Morales’ statements. object did at 460. Trial counsel substantive, admitted as evidence was assertion that is a State’s evidence, merely impeachment not the re- person is “selfish” who “will do what neces quested appropriate.19 was not instruction way,” grounds sary get for him his on Appellant’s points of first three error are argument was outside of evidence overruled. do presented. overruled. We It was ruling. The find error in court’s evi four, asserts supports argument dence the State’s court erred in its the trial failure to man, dangerous regard is a without objections sustain his to several the State’s life, killing closing punishment. capable for human another arguments Appellant necessary complains being is the State made im human if that is what several Appellant’s proper him to in his crimes. references to out-of-court state succeed Morales, thirty-first point ments of Eduardo whose of error is overruled. impeachment purposes admitted

only. grounds overrule We Assistance of Counsel VI. Ineffective three, through one discussed under twenty-two through supra, Points nineteen voice inadequately and because the capital mur- appellant’s contentions that absolutely briefed. offers no au law, thority, statutory or der conviction be reversed because he support case of must Gonzalez, 697; argument. his of as 855 S.W.2d at was denied effective assistance counsel not, 907, were 17. 19. We note Morales’ statements Lankston 908 that Cf. 1992) (explaining (Tex.Crim.App. merely impeach- culpability phase, that evidence is even at the specific generally evidence; a admissible until is limiting without a ment once admitted made); Montgomery v. instruction, S.W.2d 372 probative general evidence it was (opinion rehearing) (Tex.Crim.App.1990) on any We issue to which it bore relevance. further (rules of evidence favor admission of all relevant argument point out the State’s alternative is that upon opposing par is incumbent evidence and it specifically also correct. Even if the evidence ty objection). to raise complained appellant's threat to kill the wit- of— purposes ness—had been admitted for limited at 18. to add that we do We hasten not reach punishment culpability, was admissible at as it question request of whether the failure to a limit- dangerousness. of future substantive evidence phase ing culpability at the of trial instruction any limiting punishment. instruction at waived Appеllant point thirty, again, asserts that 20. as system Our makes it that bifurcated conceivable prosecution reversible error in- committed may legitimately object a choose to defendant erred; asserting that the trial court stead limiting request to at and instruction evidence attempt up again to this is an cover assume holding phase today of trial. Our mere- one objections and that were made thus the fact no ly object must at at states that a defendant least opportunity given not to punishment the trial court was at the introduction of the evidence purpose punishment. err. limit at its McFarland, required by at 843. It the Sixth Amendment to the enough that the show errors United States Constitution.

had some conceivable effect on the outcome Strickland, proceedings. 466 U.S. at testing standard for claims of 693, 104 S.Ct. at 2067-68. He must show an ineffective assistance of counsel was that, probability that there is a reasonable Washington, nounced in Strickland v. errors, but for counsel’s the factfinder would 2052, U.S. 104 S.Ct. 80 L.Ed.2d 674 respecting guilt have had a reasonable doubt (1984).21 Strickland, Supreme In Court 695,104 at the sentence of death. Id. and/or prove admonished that a claimant must reviewing at S.Ct. 2068-69. this determi- representation counsel’s so undermined the nation, totality of the evidence before the “proper functioning pro of the adversarial jury is considered. Id. Failure to make the having cess that the trial cannot be relied on required showing perfor- of either deficient 686, 104 produced just result.” Id. at S.Ct. prejudice in- mance or sufficient defeats the 1) Appellant prove: at 2064. must his effectiveness claim. Id. at at S.Ct. deficient; representation counsel’s and 2) performance the deficient was so prejudiced serious that it his defense. Id. at record, reviewing After we overrule 687, 104 means, appellant S.Ct. at 2064. This arguments grounds that he prove by preponderance must of the evi required prove fails to meet the burden representation dence that counsel’s fell below ineffective assistance counsel under Strick- prevailing professional standard land. norms, proba and that there is a reasonable bility deficiency that but for counsel’s Appellant’s ineffectiveness claims trial result would have been different. rest on the introduction of Eduardo Morales’ McFarland v. impeach surprising prior statements to — denied, (Tex.Crim.App.1992), cert. U.S. part denial of on his in the involvement -, 113 S.Ct. 124 L.Ed.2d 686 one, two, points of murders. See three, begin by overruling points supra. We represen The review of counsel’s twenty twenty-two which chal highly indulges tation is deferential object lenge trial counsel’s failure to strong presumption that counsel’s conduct closing arguments in its State’s references range repre falls within a wide of reasonable guilt punishment phases of trial both Strickland, sentation. 466 U.S. at already to Morales’ statement. For reasons S.Ct. at 2065. The burden is on explained through under error one presumption. overcome the Id. agree three we cannot that these omissions identify “must the acts or omissions of coun error, as amounted to much less ineffective alleged” sel that are constitute ineffective sistance of counsel. affirmatively prove they

assistance and professional fall below the norm for reason Point of error nineteen asserts that 690, ableness. Id. at 104 S.Ct. at 2065-66. he failed to counsel was ineffective because error, proving appellant After must object of Morales’ state to the introduction affirma 693, tively prove prejudice. Id. at 104 S.Ct. being factually culpability. at Besides ment prove (counsel at 2067-68. must that coun object, unfounded did albeit errors, judged by totality sel’s the question), point the is inade form of the representation, expla not isolated instances of quately Appellant offers no briefed. trial, by only portion him might kept error or denied nation counsel have the of how 2068-69; out; objection that should a fair trial. Id. at 104 S.Ct. at statement adopted (Tex.Crim.App.1986), and 21. We have for chal- 726 S.W.2d 57 Strickland test law, capital lenges applying State, (Tex.Crim. based on Texas it in Craig v. 825 S.W.2d guilt/innocence murder cases to both the App.1992). punishment stages of trial. Hernandez for “although duly requested because us. Gonza versed made is not obvious to have been record, reporters the court Goodwin, in the 697; inclusion lez, 799 S.W.2d at (Tex. of facts the statement 201-02, prepared 723; Coble, have not at at 74(f). hearings.” concerning various re Tex.R.App.P. We Crim.App.1993); to over that it is his burden mind an ex argument consists Appellant’s repre that counsel’s presumption come the Rules of 50 of the Texas cerpt from Rule nine Appellant’s sentation was reasonable. Emery and citations Appellate Procedure point is overruled. teenth (Tex.Crim.App. 1990), Payne v. appellant’s ineffec nucleus of (Tex.Crim.App.1990). These cases stand twenty- challenge in is raised tiveness convictions penalty that death proposition one, of trial counsel’s failure complaining important portion of if an must be reversed regarding request limiting instruction lost of facts is designated statement retrospect, In Eduardo Morales’ statement. failing In appellant. through no fault of trial counsel’s decision it would seem portions allege and establish However, to test the effec

was a mistake. destroyed, lost or have indeed been record counsel, question asked is tiveness of for our review. appellant presents no issue decision was within the whether counsel’s Indeed, reveals that our record responsible range wide of reasonable and facts; some of the state misrepresents the representation at the time the decision was record, missing in the allegedly are ments Strickland, made. 466 U.S. at 104 S.Ct. for hear requested records are some of the Appellant’s was faced with at 2065. counsel exist, is no ings do not and there which case, extremely namely, eye difficult to a hear transcript of young lady would witness of a who objec visiting judge, because his ing before a testify being and left for that before shot hearing reassigned granted tion was dead, shoot, in cold- she witnessed pres judge.22 to another Because blood, teenage in head. The her brother issue, harm argument, or evidence of ents no of the trial and trial counsel record reveals factually and contentions are and because his hearing testified at the on a motion for new meritless, twenty-sixth point of legally his limiting in against trial that the decision error is overruled. strategy struction was a matter of trial —that the defense did not want to draw more atten Supplemental Briefs VIII. Points incriminating tion to the evidence in the not statements. Trial counsel’s decision appel- thirty-three raises Point of error request limiting regarding instruction Mor trial court erred lant’s contention that the ales’ statement was in view of the facts provide denying punishment motion range It unreasonable. was within wide limiting the use of jury a instruction on necessary for the of reasonable discretion impeach- Morales’ statements Eduardo practice of law. only. is identical purposes This issue ment one, two, twenty-sec- Appellant’s through of error nineteenth to that raised addressed, three, already points of error are overruled. has ond and thus been thirty-third point er- Appellant’s supra. ror is overruled. Appeal On VII. thirty-four, thirty-five, and twenty-six appel Points of error egregious examples of thirty-six the most be re- are

lant insists that his conviction must hearing; largely of the June Appellant’s complaint on his ment of facts is based however, facts; de- that the the docket sheet reflects own misstatement of the misstatement visiting assignment objected to of hope fense not willful. The record does which we is granted, judge. with a nota- hearings January That was transcripts on contain judge assign presiding another July does not tion to the 6 and 1990. The docket sheet Moreover, desig- 4, 1990, in his judge. did not any hearing April ‍​‌​​‌​‌‌​‌‌​‌​​​‌​‌‌​​​​‌​​​‌​‌​​‌​​​​​​‌‌​‌‌​​​‍does on but reflect transcript 9, 1990; request of this specifically April appellant’s nation counsel reflect one on hearing. perhaps no state- misread the date. There is has inadequately points overruling “appellant’s original in mo- multifarious and briefed erred XII, presented before this court in recent memo- paragraphs tion for new trial’s which ry. points In each of these asserts read”: alleged original

that the errors in each of the Thus, to main- [sic] for the state Texas thirty-two points in of error was violation of judgment tain the of conviction and sen- process, Fourteenth Amendment due and tence herein is a violation of the defen- §1 due course of law under Art. 19 of the dant’s State and Federal Constitution Constitution, Eighth Texas Amendment law, rights process, to due to due course of §1 of the U.S. Constitution and Art. 13 of impartial by jury, to a fair and trial Constitution, the Texas and and the Sixth equal protection, and to be free from cruel Fourteenth Amendments of the U.S. Consti- punishment. and unusual § tution and Art. 1 10 of the Texas Constitu- tion, respectively. argument authority No or argument point forty- specific There is no presented. thirty-four, thirty-five is Points Appellate three. The Rules of Procedure thirty-six summarily and are overruled. appel and our case law both demand that an case, present lant before this court his own points thirty-seven, In of error thir stating specific legal argument, specifying his ty-eight, thirty-nine, appellant and reasserts citing and from the record the factual bases failing that the trial court erred in to instruct argument, preservation for of error and jury purpose on the limited of Eduardo record, law, argue explaining in the and case prior Appellant pres Morales’ statements.23 pertinence argument. its to his will not We argument support no in ents his conten appellant’s Tex.R.App. brief case him. tions; thus, they adequately are not briefed inadequately Proc. 74. This briefed 74(f) in violation of Rule of the Texas Gonzalez, and in viоlation of Rule 74. Gonzalez, Appellate Rules of Procedure. Goodwin, 723; 697; at at S.W.2d 697; Goodwin, 723; at at Coble, 201-02, (Tex.Crim.App. 871 S.W.2d at Coble, 201-02, (Tex.Crim.App. 1993). 1993). Moreover, appellant’s points are presumption based on the mistaken that the forty of error avers that the Point only; impeachment evidence was admitted for denying appellant’s trial court erred mo limiting without instruction the evidence grounds juror on tion for new trial miscon impeachment. not limited to See jurors duct. asserts that the con one, two, three, supra. of error Points testify appellant’s sidered failure to as evi thirty-seven, thirty-eight, thirty- of error guilt spite of the court’s instruc dence nine are overruled. contrary. tion to the The record hearing appellant’s trial motion new forty, forty-one, forty-two, Points of error juror’s support does not his contention. The forty-three, forty-four, present various brought up reveals that someone claims of error based on the trial court’s appellant’s testify, quickly and was failure appellant’s motion for trial. denial new jurors that admonished several other but, They “argued” together; are testify not considered failure to be presents absolutely argument authority no jurors guilt. According to the evidence of support of his contentions. brought up again.

the issue was not This jurors present evidence that forty-three Point is illustra does of error tive; reversibly testify failure to as it аsserts that the trial court considered death, judge’s thirty-seven appellant because of the trial asserts sentence of give requested requested, that the failure to was in violation of the U.S. Constitution’s Four- instruction as is a cruel failure to instruct the punishment and unusual in violation of process. guarantee teenth Amendment of due Eighth and Fourteenth Amendment to the U.S. thirty-eight Point asserts that the failure to in- Appellant also adds that all these Constitution. impeachment struct on violated the Sixth and arguments correspond- under the are also made guarantee Fourteenth Amendments' to a fair tri- ing provisions of the Texas Constitution. thirty-nine al. Point of error asserts that appellate nothing presented is they argument, that guilt; of his it is evidence evidence Gonzalez, at 697. review. Reyna Compare not do so. did (Tex.App —Corpus 501-503 . forty-four appellant reas- In 1993) (cited supple by appellant in Christi denying in his erred that the trial court serts (evidence ju that supplement) ment to that counsel grounds for new trial motion to testi appellant’s failure rors had discussed already disposed of haveWe was ineffective. uncontroverted). fy guilt as evidence points of error points in of error issue this twenty-two, supra. through

nineteen forty-one that of error asserts Point forty-two, forty, forty-one, Points of error denying in a new trial on the trial court erred forty-four, are overruled. forty-three, and judge a grounds that the trial had dismissed error, forty-five, point of his final Under jury already on the panelist chosen serve judgment be “re pleads that his had taken em he discovered that she when of the basis the cumulative effect versed for attor ployment in the office of co-defendant’s every argument supporting each of and argument authorities ney. Appellant’s foregoing points of errors de one of following paragraph: consist of the But nothing less.” mands lines, in seven is that argument, offered is settled that the trial court com- It well (Tex.Cr. Weathersby sponte it mits reversible error when sua being reversal. Besides App.1982), demands juror chal- prospective a without strikes briefed, appellant again pres inadequately lenge for cause from either side. already over which we have ents an issue egregious, since the error here is more failure Weathersby held that counsel’s ruled. [T.L.], sponte a serv- trial court sua struck improp object evidence or to inadmissible ing juror. trial should result. New jury argument, including questions about er (Authorities omitted). party are not When of the defendant’s friends criminal character citation of opinions raises a of error without that the defendant and detectives’ presented assis authority argument, nothing guilty, or amounted to ineffective Gonzalez, already have ad appellate tance counsel. We review. appellant’s оbjurgations of ineffec dressed at 697.24 in of counsel tive assistance point forty-two appellant complains that Appel through twenty-two, supra. nineteen denying the trial court erred his motion forty-fifth point of error is overruled. lant’s grounds the court de- for new trial on capital murder Appellant’s conviction of type nied his trial motion to determine what affirmed. and sentence of death are Penny going give it was before instruction the commencement of voir dire. OVERSTREET, J., in the result. concurs “terribly asserts that he was harmed” since BAIRD, J., separate opinion concur- filed adequately voir his counsel was unable part. ring part dissenting in jurors. potential We are unaware dire CLINTON, J., dissents. law, any statutory, or constitutional common judges ready requirement trial have BAIRD, part and Judge, concurring in jury the commence- their instructions before dissenting part. appellant present dire nor does ment voir I authority. party following raises a reasons both concur For the such When disposition of this case. authority to the citation of and dissent point of error without just employment in his office and that justice, taken we reviewed the In the interest of just The trial Interestingly, again misrep- had been indicted. found co-defendant record. what, record, anything, judge if According then asked both sides resentation of the facts. counsel, through Appellant, completed to be done. but before thе needed after selection was juror replaced be with one swearing jury, judge moved that the in of indicated they had no problem. The State stated just He alternates. had become aware of problem of action since there with that course explained the co-defendant’s attor- that one of eighth juror had were two alternates. neys him that the had informed 884 represents opportunity by ordering appellant to redraw

This case an instant case clarify majority appellant’s the ramifications of a failure to com- his brief. The finds ply appellate briefing. with the rules for inadequate twenty-five points in of brief is See, seq. Unfortunately, Tex.R.App.P. 74 et remaining points error and that fifteen of the presentation inadequate appellate of an preserved appellate for of error were See, State, brief is not uncommon. Woods v. Consequently, forty-five review. of 901, (Tex.Cr.App.1978) 569 S.W.2d 905 points appeal of error raised in this we ad- (“These ‘Points of Consideration’ are without authority of five. dress the merits Our argument, not in citation of authorities or are a is found within to order brief redrawn 40.09, § compliance Article 9 with 74(h) Tex.R.App.P. provides 74. Rule “[i]f V.A.C.C.P., present nothing and therefore for unnecessarily lengthy or not brief is review.”); State, 513, Sterling v. 800 S.W.2d rules, prepared conformity in with these (“... [B]y combining (Tex.Cr.App.1990) 521 may require same to be redrawn.”1 court single point in more than one contention of 74(o) provides “... shall [I]f Rule Court error, rejection risks on the any part of a strike refuse to consider ground nothing presented that will be for brief, the court shall on reasonable terms review.”); and, State, Vuong v. 830 S.W.2d supple- to be amended or allow same (“... 929, (Tex.Cr.App.1992) 940 Finally, 74(p) provides mented.” Rule that specific cites this Court to no constitutional although ap- compliance substantial with the provision, statutory authority, or case law to error, “... pellate rules is sufficient to raise claim.”). support Generally, this we treat flagrant violation of this rule the [FJor 1) inadequate ways: by refusing briefs two may require a to be rebriefed.” court case 2) error; and, alleged point of address majority significant portion has found a by addressing alleged point of error appellant’s egregious brief to be “the most justice judicial economy. the interests of and examples inadequately of multifarious State, See, McWherter v. 607 S.W.2d presented briefed before this court (“The (Tex.Cr.App.1980) not com brief does memory.” Majority op., 887 S.W.2d recent 40.09, 9, V.A.C.C.P., § ply Article with attorney, Appellant, through at 881-882. review.”); presents nothing for Pierce v. flagrant “a of Rule has committed violation” State, (Tex.Cr.App.1989) 777 S.W.2d 74. (“Such portions failure cite relevant (5th Estelle, In Passmore v. 607 F.2d 662 legal theory the record and set out the Cir.1979), the Fifth Circuit considered this his contention means which rests appel- appeal, issue. On direct Passmore’s review.”); nothing presented that is Ster consisting one late counsel filed a brief (“While ling, such presented noth- sentence. We held the brief presenting nothing error runs the risk of Fifth ing for our review and affirmed. The will, review, judicial in the interests of we Due Process Clause of Circuit held economy justice, address is offended the United States’ Constitution and, claims.”); v. Coble (“While proceedings funda- when criminal become agree (Tex.Cr.App.1993) Passmore, mentally 607 F.2d at 663. unfair. inadequately this is briefed, The Court stated: appellant’s claim also fails on the

merits.”). However, have the au we also abundantly the Texas It is clear thority redrawn and we have to order brief Appeals had actual Court of Criminal See, Pumphrey issued orders to that effect. receiving knowledge petitioner was (Tex.Cr.App. incompetent representation and took no and, 1985); Hughes Tex.Cr.App. opinion per action. The curiam remedial 70, 504, Order delivered October No. “[ojbviously, sentence [one noted that this nothing ... presents for review.” brief] case, judicial economy In the instant the Texas Court

I the “interests of believe peti- Appeals could have ordered justice,” in the Criminal would be better served emphasis supplied 1. All unless otherwise indi- cated. case to rebrief the before

tioner’s counsel STALEY, Appellant, appeal, especially since Kenneth disposition of the Steven untimely attempted to submit counsel had v. Brief,” which the Court a “First Amended [Cantrell consider. As refused to Texas, Appellee. The STATE Cir.1977) (5th ], Alabama, 546 F.2d 652 No. 71274. requires than was af- more Constitution petitioner. forded Texas, Appeals of Court Criminal En Banc. Id., at 664. The Court remanded 607 F.2d instructing court the case to federal district April 1994. granting judge an order the trial “to enter corpus unless petition for writ of habeas Rehearing Sept. Denied grant of Texas shall and afford the the courts appeal_”

petitioner a new and out-of-time Id., at 664. This did. Passmore 607 F.2d (Tex.Cr.App.1981).

Although by no means a the instant brief is brief,” similarity between “one-sentence disposition in the issues and Passmore By summarily dis- the instant case remains. forty ‍​‌​​‌​‌‌​‌‌​‌​​​‌​‌‌​​​​‌​​​‌​‌​​‌​​​​​​‌‌​‌‌​​​‍forty-five points posing only postpone of error we the inevitable. Experience teaches us that we will be forced appellant’s rights to effective as- address appellate process,

sistance of counsel and due by by either order of federal court or post-conviction application for of habeas writ

corpus. 11.07. Tex.Code Crim.Proe.Ann. art.

Consequently, judicial the interests justice,

economy order the we should brief in this case redrawn. If this cannot be counsel,

accomplished present appellate we should remand the case to the trial court appointment appellate

for the of new counsel. comments, I With these dissent majority’s to not order this brief decision join judgment I withdrawn and seventeen, five, Court twenty-seven twenty-eight.

Case Details

Case Name: Garcia v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Apr 13, 1994

Citation: 887 S.W.2d 862

Docket Number: 71148

Court Abbreviation: Tex. Crim. App.