*1 may statements be deemed reliable be-
сause
were made
Andres
participant
NAVA and Xiomara
Mendez,
as “one of the actors in the
Appellants
crime in the
nature of
against
admission
interest.”
States,
410,
Spinelli v. United
393 U.S.
The STATE of Texas.
89 S.Ct.
(White, J., concurring). PD-1283-12, Nos. PD-1582- 12, PD-1583-12.
IV. Court of Appeals Criminal of Texas. Accordingly, agree magis- we trate had a substantial basis for determin- Dec. ing that there probability fair crack Appel- cocaine would be found at residence,
lant’s and we affirm the judg-
ment of the appeals. court of
COCHRAN, J., concurring filed a
opinion.
COCHRAN, J., filed a concurring
opinion. join
I majority I opinion. write
separately simply to call a duck a duck. “unknowing
This participant” guy appel-
lant’s boy” “corner retail crack-co- —his
caine appellant’s seller. He is agent. C.I.,
Buyers, like the come up appel- agent
lant’s ask buy cocaine. The like,
agent says second, something “Wait a back,” right
I’ll be goes and he trotting off appellant’s house. The officers watch
him all way there. Then agent out,
comes trots back to the C.I. and “Voi-
la”—he has crack cocaine in his hot little
hand. The officers watch him all the way
back. Money from the C.I. and crack
from the agent exchanged. are Where do
you suppose that cocaine came from? The
magistrate made the reasonable inference it came appellant’s from I house. too,
make that you? inference don’t *3 Law, at the lot in a Sidney Crowley, Attorney parking at Mendez arrived J. Richmond, Wicoff, Carrillo, TX, County Nava, Bob Harris van with Robert Office, TX, Houston, Public Defender’s female. All Of- minor discussions between Appellant. conspirators ficer and the took Canales Spanish. Officer dis- place Canales Akins, Assistant District Attor- Jessica price the merchandise with cussed McMinn, Houston, TX, Lisa C. State’s ney, eventually conspirators, Austin, Attorney, for The State. $6,500. But agreed pay conspira- about the tele- tors worried *4 KELLER, P.J., opinion delivered the visions would function. Officer Canales PRICE, MEYERS, in the Court which explained that he had no with equipment HERVEY, JJ., joined. KEASLER and they to test televisions which the but and were indicted for Nava Mendez each new, from the that were were stolen trucks organized ac- fеlony murder and criminal transporting Eventually, them. it was sixty years Nava tivity. was sentenced to agreed conspirators pay the years, respectively, on those and seven front, up Officer Canales and then Officer was charges, and Mendez sentenced accompany to a loca- Canales would them sixty years twenty years. granted and We tion where the merchandise could be un- appel- review to determine whether the loaded and tested. harm a result egregious lants suffered the of an error in the instructions on paid After the tele- conspirators for the appeals law of and whether their visions, said, English, Officer in Canales a prejudiced missing portion were due to phrase That meant “It’s done deal.” Finding against of the voir dire record. convey money exchanged had issues, we both affirm. hands, but a phrase second or act was bust
expected signal, be the which I. JURY CHARGE —LAW would alert the other to descend officers
OF PARTIES upon conspirators and arrest them. began asking Carrillo Officer Canales for Background A. truck, key to Budget while Officer 1. The Incident ignored request and stalled Canales Again for time. Officer said in Canales 2009; In June De- Houston Police deal,” “It’s English, again a done and Car- partment sting op- conducted undercover key. rillo asked about Officer Ca- identify erations to and arrest individuals answered, cellphone rang, nalеs’s he buying reselling who were stolen English, may “Go This have been ahead.” operations, In Ser- goods. one of these signal, intended as Sergeant the bust but Calderon, geant Robert someone posing as did hear it Calderon because he ended televisions, wanting to stolen made sell seeing phone upon ap- call Carrillo Henry with contact Mendez. Officer Ca- from proach Officer Canales behind. Car- posed person delivering nales as the approached pistol rillo drawn and televisions. hidden Officer Canales wore a ran to key. demanded Officer Canales microphone that recorded and transmitted truck, passenger muttering, side of the audio to other officers. He a Bud- drove “¡Tí- said, $30,000 buey!” may “¡Ay Nava get containing rental truck over (“Shoot him!”). said, then worth of televisions and to a Fiesta rale!” Carrillo laptops “¿Traes ¡Dame lot, place. parking meeting las llaves? la feria o te (“Do mato, If, you keys? cabrón!” have the in the attempt carry out a conspir- I’ll kill money you, Give me the as- acy to felony, commit one another shole!”). Carrillo then shot Officer Ca- is committed one of the conspirators, back, nales in the and Officer Canales shot all conspirators guilty are Carrillo the chest. Officer Canales then committed, actually though having no said, in English, “It’s a done deal. I’m it, intent to commit if the offense wаs shot.” Both Officer Canales and Carrillo committed in furtherance of the unlaw- injuries. died from their ful purpose and was one that should have been anticipated as a result of the remaining conspirators fled carrying out of the conspiracy.2 drove, van. While Nava Mendez called 9- 1-1 thought because she below, As shown portion abstract being pursued by gang intent thieves appellants’ jury charges included the exact on murder. While the 9-1-1 operator was language above correctly instructed attempting to elicit phone Mendez’s cell on both party liability, theories of number, police caught up with and as follows: *5 stopped police the van. As the were or- A person acts intentionally, or with in- dering conspirators get to on the tent, respect with to a result of his con- muttered, ground, Mendez “I think they duct when it objective is his conscious or were undercover.” desire to cause the result. Jury Charges may easily
So that the reader more un- All persons are parties to an offense who how the jury charges orga- derstand guilty acting are of together in the com- nized and appellants’ complaint about mission of the person offense. A is them, we first set out the statutory two criminally responsible party as a to an party liability theories of at in issue this offense if the offense by is committed his theory case. The first of party liability, conduct, own by the conduct of another the more common “intent to promote or for which criminally responsible, he is or theory, provides: assist” by both. person
A criminally responsible is for an person criminally A is responsible for an by offense committed the conduct of an- by offense committed the conduct of an- if ... acting other with intent pro- if, other acting promote with intent to or mote or assist the commission of the offense, assist the commission of the he offense, solicits, directs, he encourages, solicits, directs, aids, encourages, or at- aids, attempts to aid the person other tempts to person aid other to com- to commit the offense.1 mit the presence offense. Mere alone theory The second party liability, of will not constitute one a party to an “conspiracy” theory, provides: offense. 7.02(a)(2). (Tex. 1979) § Crim.App. (distinguishing prior This case Tex. Penal Code presents the unusual in scenario which the involving involuntary case attempted man promote party "intent to or assist” because, slaughter single while a individual liability alleged conjunction felony act, specifically cannot intend a reckless one murder, culpable an offense which lacks a individual can intend to assist another in respect mental causing state with death. act). committing a reckless However, nothing in prohibits the Penal Code using parties State from the law of in this 7.02(b). § 2. Tex. Penal Code fashion. See Mendez H. Ca- thereby did cause death
If, carry conspir- out attempt nales, felony ... with felony, another that the defendant to commit one and acy com- conspirators, one of or assist the is committed the intent to felony solicited, guilty are conspirators offense, any, all if mission of the committed, no though having directed, actually attempt- aided or encouraged, it, if the offense was intent to commit Robert ed aid [co-defendant] and/or of the unlaw- furtherance committed offense; to commit Carrillo one that should purpose ful and was beyond a you from the evidence If find as a result of the anticipated have been defendant, doubt reasonable conspiracy. carrying out of the [defendant], and [co-defendant] and/or agreement be- means an “Conspiracy” agree- entered into an Roberto Carrillo persons or more with intent tween two theft, pursu- ment commit them, en- they, or one or more they did agreement, any, if ant to that that would constitute gage conduct that in carry conspiracy their out constituting agreement the offense. An Texas, County, on or about June Harris inferred acts conspiracy may be from 23, 2009, in the course of commit- while parties.3 theft, com- ting Roberto such Carrillo in- application paragraphs contained clearly to hu- dangerous an act mitted law of for the structions H. man caused the death of life that felony murder charged offense of shooting H. with a Canales Canales theft the lesser-included offenses *6 firearm, namely and weapon, a deadly felony felony- theft. The attempted and of H. was com- that the murder Canales to instructions referred both murder conspiracy furtherance of the mitted in “conspir- assist” and promote “intent to or an offense that the defendant liability: party theories of acy” anticipated as a result should Now, you if from the be- find evidence conspiracy, a doubt that on or yond reasonable guilty then find the defendant you will 23, 2009, County, in Harris about June murder, in charged as the indictment.4 Texas, Roberto [co-defendant] and/or later, in As will more detail be discussed Carrillo, unlawfully, did and there then complaint gener- focuses on the appellants’ intentionally knowingly commit or at- or “the ic in these instructions to theft, references felony while tempt to commit (italicized above). Their com- offense” course and furtherance of the in the short, is, por- plaint application attempted commission or commission charge misled the theft, tion Roberto Carrillo did com- offense, in- exactly, the what defendant’s clearly dangerous mit an act to human tent directed toward. The refer- lifе, H. had to be shooting to wit: Canales with and we ambiguous, ence to offense” is deadly weapon, namely, a firearm and “the flight attempt, inor immediate The order in which these instructions were mission or attempt, or he commits slightly from the commission presented between Mendez and varies danger- clearly attempts or to commit an act are cases. The instructions outlined Nava’s an life that causes the death of ous human presented in the order in Mendez’s case. The individual.” provided for also instructions both defendants person that a the offense of "mur- commits attempts Emphasis and "co-de- if "he to commit a added. "Defendant” der” commits Mendez, vice manslaughter, to Nava and and in the fendant” refer other than versa, upon depending case it is. of and furtherance of the com- whose course ambiguity Argument will address the effect of this 3. Evidence and analysis portion of our opinion.5 In the opening portion of the State’s The lesser-included offense instructions closing argument, the prosecutor argued application included paragraphs liability correctly the “intent to promote or assist” primary as the actor and under the “intent theory party liability as it related to the or assist” of the law of offense of theft: parties. felony-theft ap- instruction A person is criminally responsible plying the law of provided: by оffense committed the conduct of an- you If beyond find from the evidence other if acting with the pro- intent to reasonable doubt that on or about June mote or assist the commission of the 23, 2009, Texas, County, Harris [co- solicits, directs, offense he encourages, Carrillo, defendant] Roberto did and/or attempts aids or to aid the person other unlawfully, then and there with intent to to commit the just offense. And deprive the ‘cause property owner of hereinaf- you’re present described, presence mere ter alone will believing proper- said another, not constitute one ty party was stolen to an appropriate, offense. But acquiring you or otherwise what do think is exercising happening property, control over said when Ms. thirty Kleypas to-wit: Mendez tells or what four computers televisions and two thought she Officer Canales was or she $20,000 the value of at least but less any person thief, tells out there that’s a $100,000, than which property was in the go out there buy every- and steal and I’ll custody agency, of a law enforcement you thing have. I’ll be the market for namely, the Houston Police Department, your theft. acting Is she intent property and which had been explicitly the crime of theft be committed. Canales, represented by H. a law en- Well, of course she is. She doesn’t ben- agent, forcement [co-defendant] they’re efit unless stealing something. stolen, being Roberto Carrillo as and/or solicit, something Does she do encour- *7 and that the defendant ... with the age or aid the person go other to out intent to or assist the commis- Well, and do the theft? of course she is. offense, solicited, any, sion of the if en- telling you She’s I’ll be the market. I’ll directed, couraged, attempted aided or be the fence. You steal it I’ll and fence to aid Roberto [co-defendant] and/or you. it Every for time she does that offense,6 Carrillo to commit you then they go they out and do something will guilty find the defendant of theft of like burglary or theft or whatever and $20,000 property of the value of at least they do it in going reliance that she’s to $100,000. but less than they’re be the fence guilty they for what The law-of-parties application paragraph do. So is she. So anybody else that attempted-felony-theft in the instructions is working together with the intent that contained similar language. objections No that crime be they committed and do any jury made to of the something encourage instructions. to it happen. rected, part jury charge 5. This attempted would have aided or to aid [co-defen- unambiguously been correct if it had read as dant] Robert Carrillo to commit the and/or (changes charge follows cized): from actual itali- offense .... murder jury charge pro- point ... defendant ... 6. Nava's adds аt this with the intent to mote or assist the phrase commission of offense "if he did.” murder, solicited, any, encouraged, if di- than three “con- “it never came out until less then discussed prosecutor The it party liability But, as attorney version spiracy” ago.” Mendez’s ob- weeks felony murder. to the offense of related served, if- jury even believed there, say one of “Ms. didn’t Nava said “tírale” was word was Mendez Whether will at trial. As hotly jurors contested issues attorney Mendez’s told that.” shown, to a support this fact be lends that, they either guilty, to find her had have under- jury conclusion encouraged or as- find “that she aided or The correctly. jury stood the instructions causing the death Offi- sisted Carrillo Nava, in and is attributed to appears, word guilty had to find her cer Canales” by incident-recording transcript made of the law of “conspiracy” under proffered The Glenn Dodson. defense parties.7 transcript by Ana Paredes alternate made In attorneys argued not contain the word. listen- Nava’s also that does One of including a ing recording, the incident recording “tírale” was on the version, we cannot definitive- slowed-down testimony believe the should ly whether the word “tírale” ascertain expert to that ef- qualified defense argument, closing In the State said. that, attorney acknowledged Nava’s fect. pointed out that Dodson had transcribed “tírale,” if Nava said believed other re- Sрanish-language and translated why was over for him: “That’s these case in the case the defense cordings you want think that he said lawyers enough work “good viewed Dodson’s If you him ‘cause then it’s over. shoot everything else.” evidence shows you’re think he said shoot him and con- and transcribed other records translated beyond a doubt that vinced reasonable Ms. call included the the 9-1-1 Dodson Paredes has lost her mind or whatever police Mendez and interviews made guilty find him of murder. But if then Nava and Mendez. It was the de- with you’re beyond not convinced reasonable call and that introduced the 9-1-1 fense got you Judge then to do what doubt at trial. upon Dodson’s translation relied you got You you tells have to do. re- respect alleged to the “tírale” With reasonably that he should have an- believe mark, prosecutor argued: “When ticipated.” him says [on] Nava shoot there is no doubt part charge. the first of the Court’s When prosecutor spoke A different re- you’re the crime be acting intent that *8 prosecutor argument. buttal The rebuttal you something do to direct committed and lying argued appellants that when person to commit the offense other they knowing denied that Carrillo had you’re parts He’s both guilty. guity under brought gun prosecutor a with him. The charge. That is as clear as parties conspirators “experi- characterized the attorneys sрent a bell.” One of Mendez’s it crooks” and asked whether made enced significant amount of arguing time with sense for them to take them to $6500 He recording. “tírale” was not on the they know and people meet did not “not this the “State has found claimed protection?” pointed He also take some transcript” in this and that magic word habitually kept two evidence Mendez expert and educated said qualified more linen that a witness guns in a closet and there, Spanish- it was not that no was, holding gun Mendez before. officer had it and that had seen speaking said Italics added. prosecutor The rebuttal continued the the jury had to find an promote intent to prosecution argument earlier that “tírale” or felony assist the murder or whether it recording was on the and that merely Dodson’s had to find an promote intent to translation work was reliable: assist the underlying theft. The court of appeals rejected claim, the first holding
I make up tape. didn’t that word on the that the promote “intent to or assist” theo- sitting It’s been there all along. It’s ry of party liability could apply felony just that no one had ever been asked to murder long so as the proved State closely listen to it as as Glenn [Dodson] intent promote or assist underlying was. No one had ever used the tools felony proved and also pro- intent to spent the time on it until Glenn did. mote or assist an аct that was unreason- why And that’s I hired Glenn because ably dangerous However, to human life.8 stellar, reputation his was impeccable. agreed the court appellants’ with second lawyers These four [defense] over here contention that the instructions were am- nothing say have bad to about Glenn. biguous they “may because solely refer Some of them have hired Glenn them- theft, felony theft and the act They selves. quality know the clearly dangerous to human life.”9 work he does and cannot criticize They Glenn. offered evidence that he appellant Because object, huge had a hand in transcribing all the court appeals addressed whether appel- recordings other in this only case. The lant egregiously was harmed the error problem they have is with one line. One in the instructions.10 The court first ob- significant telling line. served that the evidence was overwhelm- Twice during closing argument, prose- ing or clear that appellants and Carrillo played part cutor tape where were criminally responsible for the under- Dodson’s transcript says “tírale” was ut- theft, lying that Carillo committed an act tered, and both prosecutor times the ar- clearly dangerous to human life that gued that the word was there. He also individual, caused the death of an and that jurors invited the to listen to a slowed- shooting occurred the course and down version of that part during their furtherance the theft.11 The court sub- deliberations. sequently explained that the fierce- ly contested whether should Appeal anticipated the shooting and whether
On appeal, appellants argued that
actually
the Nava
him.”12
said “shoot
instructions on the
“intent to
court
explained
language
also
theory
party liability
assist”
with re-
instructions
ambiguous:
it
spect
murder
“seemingly
were erroneous
accomplice respon-
associate^]
because
the “intent to promote
sibility
only
or as-
felony theft” because of
actors,
sist”
is not available for the offense how it
referred to
various
but
*9
murder,
felony
of
generic
and
the instructions
the
reference to “offense” meant
given were ambiguous regarding whether
jury
that
the
could have
the
construed
Nava,
tion,
8.
379 S.W.3d at
only
414-16.
reversal warranted
if defendant suf-
harm").
"egregious
fered
(emphasis
original).
9. Id. at 417
in
Nava,
11.
298 responsi- very the must have the ba- criminal error affected instructions associate issue, case, crime at bility with “the whole sis the the defendant of a deprived of felony namely murder.”13 vitally right, or affected a defen- valuable theory.19 determining sive In arguments, and the Given evidence shown, look egregious harm is we at the however, appeals the court of held that it jury of the evi- charge, entire state unreasonable to construe been issues (including dence the contested responsibility imposing instruction as evidence), ar- weight probative solely on re- for the murder the basis of counsel, guments any other relevant sponsibility felony for the theft.14 The information revealed the record of the the jury court could not conclude that trial as whole.20 resolving fiercely avoid contest- “could regarding appellants’ ‘anticipa- ed issues Nava ‘Shoot him’ tion’ and whether said Jury Charge 2. loophole
because of a in the that, court held while “the charge.”15 begin with fact that We theoretically erroneous instruction affected on “intent to pro abstract instruction appellants’ theory, main defensive in actu- theory liability or assist” of party mote unlikely it is ality, highly convict- required was correct. It the State to show felony ed based appellants of murder sole- appellants intended to or as promote ly their involvement in the theft.”16 sist the commission of murder be convicting
fore murder under this Analysis B. theory party liability.21 disagree We that, appeals’s
with the court of conclusion Principles 1. General felony-murder in a prosecution, the “intent promote party assist” liabil object Because ity requires only a that the defen showing issue, they to the instructions at are not promote dants intended to or assist the entitled reversal unless the record underlying unreasonably theft and the “egregious shows suffered act. dangerous “acting The words with harm.”17 This is a difficult standard intent to or assist the commission requires showing meet and that the de mean, clearly of the offense” at a mini were deprived fendants of a fair and im mum, defendant must act intention partial trial.18 The must record disclose harm,” ally respect “actual rather than theoretical with result elements of Vega, Id. 20. 394 at 521. 13. S.W.3d Id. 14. State, 703, 21. Gelinas 398 See v. S.W.3d 708 (Tex.Crim.App.2013) (plurality op.) (proper Id. 15. portion of the law in abstract recitation original). (emphasis 16. Id. charge appli- minimized error State, Vasquez paragraph); cation v. 389 State, (Tex. Vega (Tex.Crim.App.2012) S.W.3d 371-72 Crim.App.2013). (correctness portion abstract (Tex. Taylor S.W.3d showed, charge combination other Crim.App.2011). factors, any application para- error *10 harmless). graph was 766, State, (Tex. 19. Cosio v. 353 777 S.W.3d Crim.App.2011).
299
a result-oriented offense.22 With some of-
felony murder statute. The State assumes-
fenses,
may mean
this
that State will have
higher
this
burden by pursuing an intent-
greater culpable
to show a
mental state for
party
based
of
liability for a non-
than
accomplice
primary
for the
actor.
intent crime.23 Combining the language of
7.02(a)(2)
Although
may
§
some instances this
seem
with the
murder
stat-
strange,
ute,
interpretation
then,
this
is faithful
requires
to
an intent
promote
or
7.02(a)(2)
§
the language
assist,
of both
and the
only
the commission of the un-
State,
720,
Kelly
19.02(a)(2)
v.
§
669 S.W.2d
725 n. 7
intent to cause serious
—the
(Tex.Crim.App.1984) (quoting portion
of
statute, however,
bodily injury. The
is not
charge giving abstract instruction on the “in-
Indeed,
so
§
worded.
15.01 defines the
promote
tent to
or assist” version of the law
elements
attempt
of criminal
in traditional
concluding,
of
“In order to con-
terms. The
specific
element "with
intent
then,
appellant
vict
had to find that
to commit an
traditionally
offense” has
solicited, encouraged,
he
or directed another
interpreted
been
to mean that
the actor
Pryor,
attempted
to kill
or that he aided or
must have the
bring
intent to
about the
killing
aid
Pryor
another in the
AND that
result,
desired
which in the case of at-
specific
promote
he did so with the
intent to
tempted murder is the death of the indi-
killing
Pryor") (capitaliza-
or assist in the
Thus,
specific
vidual.
intent to kill is a
original).
tion and
italics
See also
Tucker
necessary element
attempted
murder.
State,
523,
(Tex.Crim.App.
771 S.W.2d
support
authorities in
interpre-
this
("before
1988)
may
the accused
be found
tation are
convincing.
numerous and
criminally responsible for the conduct of an-
(emphasis Flanagan).
Id. at 741
murder,’
‘intentionally
other who
commits the
Code,
provisions
under the
of V.T.C.A.Penal
implicitly recognized
23. We have at least
7.02(a)(2),
§
it must be shown the accused
accomplice
possess
greater
can
culpable
specific
promote
harbored a
‘intent to
or as-
principal.
mental state than
parte
See Ex
sist the commission of the intentional murder
(Tex.
derlying theft), the act, implication arising of- the from also of the and but the result gerous name is not of an of the co-defendant’s felony murder —the death addition fense of of the of portion language The abstract clear one. The particularly individual. a clearly instructions promote to assist” application paragraph “intent the that, jury way this. It told the in a that jury in this case did the to deliberate direct to appellants guilty, find it had in to with law.24 order is inconsistent the they intended the victim’s death. find that Moreover, sense goes it common against or assist promote think that an intent to the corre to next consider that
We was a suffi- felony am the commission theft was application paragraph sponding felony mental state for murder under application paragraph That de cient biguous. promote in the course of a the “intent or assist” killing occurring a picted theft, conspiracy- the it the theft nor the law when but described neither more than para liability provisions required an until the killing the as “offense” “conspiracy” portions the promote reached “intent to that. graph equiva- gener charge required roughly At the the language. point, jury that assist” the likely intending to or assist promote to “offense” would most lent of ic reference acting of theft and in accordance referring as to the offense offense be construed carrying an out a con- by the entire with such depicted paragraph felony intent — — than theft to commit theft —but underlying spiracy the murder —rather only required finding appellants a part application that was the also offense hand, murder. anticipated” the the “intent “should have the On other parаgraph. charge the in the erroneous man- Reading or assist” referred language Be it could suggest and the co-defendant. ner both Carrillo conspiracy jury was on Carrillo been read render cause the instructed shooter, If the charge superfluous. to the co- portions reference interpreted in the might jurors really charge the offense at imply defendant it would directly by suggested by appellants, the one committed manner issue was por- why conspiracy and left to wonder both Carrillo the co-defendant —the be in law implica charge why this an only theft. But would be tions tion; paragraph conspiracy liability in the would contain nothing application extra, unnecessary element. jury guilt “anticipation” told the expressly (i.e. assessing in way may could be this We use common sense murder established solely jury likely charge, being a defendant’s intent how the understood mitigate against at 709 460- its harmfulness. Id. 24. See Mireles 901 S.W.2d (Cochran, J., (Tex.Crim.App.1995) (quoting concurring). op.), and discuss (plurality 61 712 California, ing Boyde 494 U.S. clearly jury directs a Whether instruction (1990), for the S.Ct. L.Ed.2d that the in error whether it is obvious that, jury proposition when a instruction things. instruction is error are two different ambiguous, reviewing arguably court may clearly give jury the An instruction analysis “common should use sense” its law, wrong may but it be clear to a determining if there likeli is a "reasonable Or, wrong. layperson that the instruction is jury misled the ambi hood” Gelinas, may clearly give as in instruction Gelinas, at 708 guity). See also wrong wrong obviously law also be (that application "clear error” existed case, layperson. present In the the instruc weighed in favor paragraph was factor that clearly give even tion does not harm). majority A in Gelinas of the Court wrong law. an error's to a can held that obviousness *12 ju- argued cutors suggests vigorously common sense that that Nava said charge in this would have read the rors “tírale” that Dodson’s transcription way.25 trustworthy. The State en- made an tape hanced of the in an version effort addition, jury contained charge
In show Nava’s attorney argued that. that offenses with associated lesser-included paragraphs that instructed on the application prosecution prove had to that Nava theory “intent to promote or assist” said “tírale” order to convict him under liability. jurors If understood party promote the “intent to or theory assist” suggest, appellants the instructions as party liability. The closing prosecutor only then difference between the Instead, never that disputed assertion. he charged felony murder and the lesser-in- argued vigorously even more than the first someone cluded offenses would be that prosecutor say that Nava did “tírale.” and Carrillo was the killer. Since died discussion, jury Given this almost cer- ju- two facts were undisрuted, those tainly have “in- understood that the might why given were they rors wonder or promote tent to assist” of liabili- option appellants guilty to find of the ty was concerned with whether offenses. This another lesser-included intended to or assist promote the murder would not suggesting factor just and not harbored an charge understood the manner have respect intent with to the theft. Other- by appellants. proposed wise, the about whether dispute Nava said pointless. “tírale” would been Argument 3. Evidence and prosecutors ap- never that argued The prosecutors’ arguments The on conspira- could be convicted of mur- pellants cy liability appellants, and whether or promote der under “intent to assist” particular, Mendez in should have antici- theory of on an party liability solely based killing were pated the substantial. These to commit pros- intent the theft. The first if arguments unnecessary would have been argued the “intent promote ecutor simply prove, the State had to under the theory in the theft assist” connection with promote theory, “intent to assist” offense, but argument was under- the theft appellants intended and Carrillo given liability for proving standable killed someone. liability part proving the theft was prosecutors obviously The con- felony murder and because theft and at- appellants’ liability cerned with for theft theft were lesser-in- tеmpted submitted because it was an element of mur- cluded offenses. of the organized der and also crime centerpiece argument of the State’s charge. large portions prose- But Nava was liable under the “intent to arguments completely cutors’ would be or assist” the law of promote theory of if unnecessary jury charge were un- was the Nava contention that said suggested by ap- in the manner derstood “tírale.” The first made this prosecutor fact pellants. supports This the conclu- said, says when he Nava clear “When sion that understood the “intent him shoot there is no doubt first [on] prose- Both or assist” part charge.” Court’s instructions (common error). (plurality op.) ing at 25. Jd. 709-10 about the obviousness of sense), (Cochran, X, (remark- concurring) ity, prospective jurors law could consider manner consistent with the instead *13 (two by range punishment the minimum of suggested appellants. the manner years) probation. of the pro- and None 4. The Factors Combined the spective jurors were bothered mini- several, range of but punishment, mum whole, as a jury charge Given the juror thirty, including prospective said evidence, the the arguments and they probation. Specif- not could consider the attorneys, we cannot conclude said, ically, prospective juror thirty “I egregious harm. Al record demonstrates probation at all. I wouldn’t consider felоny-murder pro “intent though probation not at all.” De- would consider application paragraph or assist” mote replied, fense counsel can’t think of a and, isolation, poten could ambiguous in “I you set facts within which would be able of in manner tially appel be understood Prospective juror that?” thir- consider suggest, it could also be understood lants ty they’re If in responded, breaking “No. in manner the law. consistent with stealing put and I why would them on the Construing that in manner paragraph to do it more?” street some render suggest large portions charge prose and the jury reporter’s The court record of se- arguments superfluous. Viewing cutors’ “(Conclu- lection ends with the notations whole, charge as a and from com Dire). Seated).” (Jury sion of Voir in the context perspective, mon-sense appellants filed a motion abate case trial, the rest we conclude that portion because a of the voir-dire record likely appli most understood was missing. appeals The court abated paragraph question cation a manner (1) a hearing the case for to determine with the law. consistent fault, sig- whether without defendants’ portions had nificant of the record been
II. JURY SELECTION- (2) destroyed; lost portions whether the MISSING RECORD necessary of the record to the were defen- Background A. appeals; dants’ whether the miss- ing portiоns of the record could be re- Hearing 1. Trial and Abatement placed by agreement parties. Judge Mary This case was tried before that, It was discovered because of a dire, Judge Lou Keel. voir Keel During malfunction, mechanical the bench confer- venire, ... anyone asked the “Is there peremptory ence at which for-cause and police always here who thinks that officers made not challenges were either was re- police tell the truth or that all will officers not be corded could retrieved. It is Prospective juror tell the truth?” five an- undisputed that the failure to transcribe swered, “Under oath do.”26 this bench conference was de- Later, attorneys one of the defense fense’s fault. whether, jury acquitted asked if the Duarte, Rudy attorneys, defendants murder but convicted one of Nava’s them of the of theft lesser-included offense testified the two defense teams organized together and the offense of criminal the challenges activ- worked for years 26. When defense counsel asked later worked for Colorado at the sheriff's any my my of members of venire had friends I also have office. father-in-law and enforcement, police Casper, or relatives work in who law brother-in-law are officers in juror prospective Wyoming Chicago.” five answered: "I’ve cause, of the challenges challenges cause. Most were made for but he testified that it Loper, attorneys, Bob one of Mendez’s Judge practice Keel’s to further ques- challenges adopted by but the Nava’s prospective tion jurors who were chal- notes, attorneys. Consulting his Duarte lenged for cause. Prosecutor Jim Leitner recalled that the defendants had chal- testified that he remembered feeling satis- lenged prospective juror thirty for cause fied at trial that there were not any appel- being probation unable to consider and late issues on voir dire in the case. *14 challenge was denied. He could During discussions after the testimony challenges not remember whether other at the abatement hearing, Judge Keel and made, for cause were and he no had nota- agreed the defense that the significance of tions for other challenges. He also could missing record was that it contained not remember any prospective ju- any rulings on defense challenges for up rors were called for bench addi- cause, any steps error, taken to preserve questioning. tional Duarte further testi- and any further conversations with the fied that no challenge Batson was made. prospective jurors. Judge Keel suggested Loper challenged testified that he for prospective jurors might have been five, prospective jurors thirty, cause rehabilitated while defense sug- counsel forty-nine. His notes indicated that he gested that a prospective juror “might that prospective juror believed five was dug their hole deeper so to speak.” disqualified on the issue of police officer Upon hearing defense sugges- counsel’s testimony, prospective juror thirty was tion, Judge agreed Keel that “we don’t disqualified being for not able to consider know” what took place respect -with range the entire of punishment,- pro- prospective juror questioning. spective juror forty-nine disqualified was on the issue presumption of inno- Over objection,28 defense Judge Keel re- cence.27 All three prospective of these lated her recollection of the hearing. She jurors were peremptorily by struck only recalled that she denied one defense defense—a fact confirmed strike sheets challenge for cause and that pro- was for Loper clerk’s record. further testi- spective juror thirty. Her denial was fied that the defendants exhausted their based on the question prospective to the peremptory challenges, spe- but he did not juror being an improper commitment cifically any lawyer remember defense question because had “in- asking for additional peremptory chal- ject[ed] body a dead into a theft situаtion lenges, and he did not specifically remem- and asked the if you’ve acquitted well any ber lawyer objecting ju- defense to a someone of murder and then convicted ror actually jury. who sat on the you them of theft could appropriate
Prosecutor Julian Ramirez
probation.”
did not have
case consider
Keel
Judge
fur-
any
that,
notes or recollections about defense
ther
despite
denying only
stated
her
Loper
juror
prospective
judge
"making
was asked about
objected
trial
from
a Bill" but
FBI, but,
forty, who had a friend with the
putting
"to the Court
its recollection as testi-
notes, Loper "probably
based on his
mony.”
objection appears
This
to relate to an
prospective juror forty
think" that
was chal-
that,
caselaw,
objection
earlier
based on
de-
lengeable for cause.
judge
believed
fense counsel
the trial
could use her recollection to correct an exist-
requested
judge
28. The State
that the trial
ing
supplement missing
record but not to
"render her
"by
recollections” about the case
record.
saying
by way
either
so or
of Bill.” The de-
acknowledged
stop
fense
that it could not
However,
cause,
during
de-
one of
abatement
challenge for
one defense
hearings,
additional
trial court testified
peremptory-
for two
fense asked
challenges.
judge
objection-
further recounted
identified an
appellants
never
that,
why
wanted two
jury.
when asked
sat on
able venireman who
attorney
challenges,
defense
obviously
additional
on this
The trial court
relied
something
funny
“made kind of
answer
making
findings
its
testimony when
why
what the
and that
like
not or
heck
missing
fact because the court found the
the defense
Judge
it.”
Keel stated that
memorialized “the
portion
the record
go any
preserve
not
further to
“did
preserve
failure of
error
remem-
specifically
error” and that she
on
respect
rulings
motions
surprised
bered that because she was
appellant complains
cause.” Neither
identify
“They
the failure to do so.
did
by rely-
court
appeal
the trial
erred
*15
to live
somebody
they
the
had
testimony. Accordingly,
ing on its own
strike,
denying
the
I was
the
‘cause
missing
the
not
portion
the
record is
”
strike,’
judge
the
peremptory
additional
necessary to
issue
the resolution of this
judge
specifically
recounted. The
preserved
it
been
for
because
has not
any
remember
she rehabilitated
appeal.29
jurors
were chal-
prospective
who
responded
then
to the defen-
court
The
cause,
typi-
her
lenged
though
for
that was
missing portion of the
claim that the
dants’
practice.
cal
the
of a
necessary
record was
resolution
findings
Judge Keel also made written
for fail-
claim that counsel was ineffective
favor the
findings
of fact. Most of the
chal-
ing preserve
regarding
error
defendants,
ad-
finding
the fourth
but
lenges
discussing
for
After
our
cause.30
necessary
verse: “The record is not
Rowtier,32
opinions
Kirtley31
preserved
no
appeal since it memorialized
find-
appeals
court of
concluded that the
error.”
ings required to substantiate an ineffec-
claim in this case would
tive-assistance
Appeal
2.
impermissible
require
speculation:
that the miss-
appeals
court of
held
ing portion
Appellants
missing portion
of the voir-dire record was
argue
counsel,
necessary
appeal
to the resolution of the
may
the record
reveal
trial
judge
because the trial
had testified
strategy,
a
trial
without
reasonable
objec-
the defendants never identified an
identify
failed to
trial court
juror
tionable
that would sit on
prospective
who
objectionable venireman
said some-
jury:
thing
challengeable
which
him
rendered
individually questioned
for cause when
Appellants
argue
portion
first
lost
ultimately
necessary
resolution
at the bench and
sat on
record is
to the
conjecture may have
jury. Although
unable
appeals
of their
because
are
Kirtley, it
trial court er-
been sufficient in
is not suffi-
determine whether the
under
challenge
a
for cause.
cient
Rowtier.33
roneously denied
State,
(Tex.
State,
(Tex.
v.
29.
412
32. Routier
554
Navа
S.W.3d
2012).
App.-Houston
Crim.App.2003).
Dist.]
[14th
30.
Id.'&t 412-13.
Nava,
(emphasis
379 S.W.3d at
original).
(Tex.Crim.
Kirtley
B. 2. Voir Dire Error? appeals The court of held that it 1. The Record Rule Lost not, was based on the determination by the 34.6(f) Rule for a new trial provides judge trial that the defendants never iden under following conditions:34 objectionable person tified an who sat on the jury. Before can be harm shown from (1) timely if the has appellant requested cause, the denial challenge of a record; reporter’s (1) defendant use must a peremptory (2) if, fault, appellant’s without against juror strike prospective upon significant significant exhibit or a por- whom the for cause challenge had been reporter’s *16 exhibit,
lost or destroyed
necessary
is
to
ror who
jury,
would sit on the
then no
resolution;
the appeal’s
error
in denying
challenge
for cause
could be a
reversing
basis for
the convic
lost, destroyed
if the
or inaudible
tion, so the
record
missing
would not be
portion
reporter’s
of the
record cannot
necessary to
of
appeal.
the resolution
the
replaced
be
by agreement
parties,
of the
destroyed
or the lost or
exhibit cannot What makes this case one of first im-
replaced
by agreement
be
either
pression
finding
is that the
used to show
parties or with a copy
determined
the
is not
missing
necessary
record
to
accurately
trial court to
duplicate with the appeal’s
is
upon
resolution
based
the
reasonable
the
certainty
original exhib-
trial judge’s recollection of the proceeding
it.35
for which
is missing. May
the record
trial
Only
judge rely upon
personal
the
her
recollec-
requirement
third
is at issue in
tion
present
something
happened
the
the
of
that
or did
missing
case. Was
voir-
not
dire
necessary
happen
bench conference
to
proceeding
the
the unrecorded
appeals?
resolution of
establish
of
appellants’
proceeding
that a record
that
preservation
P.
fused
error and harm
Tex.R.App.
of
issues
34.6(f).
within the context
erroneous denial
of an
of a
Id.
cause,”
challenge
require
for
and the listed
harm).
predicate
showing
ments are a
for
State,
317,
(Tex.
36. Davis v.
313 S.W.3d
343
State,
See also
390 S.W.3d
Hernandez
Crim.App.2010). We have sometimes charac
("[bjefore
(Tex.Crim.App.2012)
316
harm can
requirements
involving
terized these
the
Davis,
shown....”);
be
many identify situations in which one would not an person who would a trial to recall expect judge to be able jury, sit on the no defendants had certainty pre- happened what with the appellate viable claim with respect to the appellate required satisfy cision an challenges denial of for cause.48 blow-by-blow as a rendition of court —such ju- testimony prospective
a witness’s or a 3. Ineffective Assistance of Counsel? case, we responses. ror’s But in this are Appellant contends he fact single confronted with a discrete might still have had a viable claim of inef judge certainty and a trial recalled with fective assistance of counsel. For reasons whether precision: the defense identified than somewhat different those articulated objectionable actually person an who sat by the court of we appeals, disagree. In jury. attorneys on the None of the contra- effective-assistance-of-counsel claims are recollection, judge’s nothing dicted the governed familiar Strickland frame in the record that is before us actually prevail, wоrk: To the defendant must leads us to doubt that recollection. At performance show that counsel’s was defi circumstances,47 least under these we hold performance cient and that this deficient the court of correct appeals prejudiced the defense.49 An attorney’s the trial judge’s credit recollection as it performance is deficient if it is not within question related to the range competence demanded of at missing to the necessary record was reso- torneys in criminal cases as appeal. Accordingly, lution of the reflected that, norms, appeals prevailing professional court of correctly determined and courts because the attorneys indulge strong presumption defense in a that coun Although We do not paragraph). address whether we true to enhancement judge's appears credited the trial if a de- recollection the offense murder to have been attorney recalling eligible jury-ordered probation fense had testified to at the time committed, identify objectionable did juror. he offenses this case were prohibit jury-ordered law was amended Judge Keel’s the defense recollection that probation appellants' began, before the trial ' challenged only prospective juror 30 for cause savings appears clаuse no the amend- might missing independently show that ing Leg., act. See Acts 81st ch. *18 necessary record was not resolution of to the 1, passim, Sept. § 6.004 and eff. Re- appeal. Judge the It would do so if Keel were gardless, question required the defense the question prospective juror that the correct jury to that the were assume defendants ac- concerning probation murder, 30 for lesser offenses quitted contingency not that did give challenge did not rise to a for cause Also, arguably, the'jury had occur. no occa- question because the the extrane- contained probation sion to deliberate about in Men- during fact ous that someone had died the great- it assessed dez's case because sentences State, of the course offense. See v. years, er than ten the maximum for which Standefer 177, (Tex.Crim.App.2001). 181-83 probation available. was See Tex.Code Crim. question gave even if But rise to a chal- 4(d)(1). However, § 42.12 Proc. art. one cause, lenge for we have held that failure attorneys the defense testified that he also question punishment allow a to about a issue cause, challenged jurors 5 and 49 for and the if is harmless events at trial the issue to cause juror issue which 5 would on have been chal- inapplicable be to the case so that defendant’s lenged guilt phase to the relates of trial. Due jury had no abоve, occasion to deliberate disposition to our we need not decide 443, Taylor See S.W.3d issue. 109 proper have whether it would been to credit (citing (Tex.Crim.App.2003) 452-53 cases and Judge controverted Keel's recollection about holding questioning that failure de- to allow challenged who was for cause. signed jurors to discover who could not con- punishment Washington, sider minimum unenhanced for 49. Strickland U.S. (1984). pleaded offense was harmless when defendant 80 L.Ed.2d 104 S.Ct. attorneys was not completely that the deficient.50 A defen defense sel’s conduct jurors if there is reason were select- prejudice satisfied with the who dant suffers that, absent deficient probability able prospective ed. Or it could be would have been the outcome performance, immediately jurors jurors after the probability is a A reasonable different.51 were worse from the defense were selected to undermine confi sufficient probability Or it could that counsel perspective.56 be It is a case in in the outcome.52 rare dence is, deficiently. record performed trial will itself be record which course, Appellants on this matter. silent an ineffective- to demonstrate sufficient else position anyone are in same counsel not claim.53 If trial has assistance is attor- appeal whose claim on that their opportunity explain аfforded the been identify for ney failing ineffective was conduct, we not reasons his will cases, objectionable juror. In an such him to be unless the chal find deficient usually trial will not be sufficient record outrageous conduct “so that no lenged was ineffective claim. support an assistance have attorney engaged competent case here. fail to Appellants Such it.”54 performance. show deficient of an ineffective-assistance claim part As attorney’s identify an failure to upon based III. DISPOSITION juror, a defendant would objectionable an affirm judgment We of the court objectionable juror have to show who appeals. is raised on
was. Because this issue
direct
any
showing
such
would have to
appeal,
COCHRAN, J.,
II.
joined
part
toas
court,55
trial
have been made in the
We
already
Judge Keel’s state-
accepted
J.,
COCHRAN,
a concurring
filed
attorneys
identify
an
ment
J.,
ALCALA,
joined.
opinion in which
juror during the
objectionable
hearing, so
JOHNSON, JJ.,
WOMACK and
A
we look
the rest
record.
concurred.
the trial
we
review of
rest of
record
objec-
not
an
have does
reveal
identified
COCHRAN, J., filed a concurring
juror,
why appellant’s
tionable
nor
attor-
J.,
ALCALA,
opinion
joined.
in which
neys
identify
failed to
one. No motion for
Missing
join
(“Jury
I
Part II
filed,
there was
post-
new trial
so
no
Selection—
Record”)
majority
and I
opinion,
hearing
attorneys
at whiсh the trial
trial
any
judgment.
agree
concur in the
I
have been
about
mat-
questioned
could
assist”
erroneous “intent
why
are many
ter. There
reasons
defense
given
did
in this case
might have refrained from identi-
instruction
counsel
I
harm.
objectionable juror.
appellants egregious
It
be
cause
fying
could
*19
State,
733,
689,
227
737
at
104
2052.
55. See Davis v.
S.W.3d
50.
Id.
S.Ct.
(Tex.Crim.App.2007)(Trial
correct
court was
694,
at
51. Id.
This is the case in which the unusual The Committee to this Section could have that one of Comment found Nava, “a accomplices, special theory noted that this was Andres intended for Carrillo, shooter, complicity” by may felon be held Roberto kill the which one “¡Tí- shouted, responsible undercover officer he for his cohort’s unintended fel- when (“Shoot him!”) murder, ony general “[t]he rale!” even because com- though the 7.02, plicity test, required prove impose State was not Section would not Car- responsibility nonperpetrating rillo himself to cause the on the felon intended under- promote unless he acted with intent to Although cover officer’s death. there is no support killing.”3 evidence that assist The Committee finding 19.02, Majority op. (stating See at 298 Committee Comment to Section Id.. ("Criminal "required instruction State to show that Proposed at 148. Section 7.02 intended to or assist the Another”) Responsibility for Conduct of con- before commission of murder convict- (a) *20 substantially same tained subsection as ing felony theory of under this murder of party liability.”). 2. State Bar Committee Revision of the Penal 19.02(4), § at 146 Proposed Code, Penal Code (1970). (aid- if the object felony, furtherance of different actions that the four
thought act, that reckless one being felony actually committed was ing in the homicidal occurring, of a death possibility anticipated about the as a result have been should reck- weapon, being armеd with a being object felony.5 committing of weap- a having deadly about killer less con- conspiracy painted The Code on) liability the cofelon’svicarious justified type a brush took the cept with broad and danger great accompany- “because of the ap- that once responsibility of vicarious felony and commissions ing most violent only felony-murder cofelons and plied utility type of of social in this the absence it to the unintended commission of applied conduct.”4 Commentary to felony.6 The Practice any However, the revised Penal Code when subsection 7.02 took a dim view of Section special in actually enacted was (b) responsibili- a which “codifies vicarious responsibility provisions criminal cofelon common that ty doctrine of the law 19.02(4) simpli- in felony for murder objective to a of this code: foreign major general conspiratori- and turned into a fied requirement culpability of individual 7.02(b). The liability theory in Section al criminal prerequisite imposition a Commentary to the 1974 Code Practice that that responsibility.”7 But is the law drafters restored explained that its had Legislature adopted it has not and been amended since. punish constructive malice doctrine to Thus, by both charging jury with homicide out of severely growing more a responsibility Car- theories criminal for any Sec- conspiracy felony. to commit a shooting killing act of Officer rillo’s 7.02(b) entirely provi- different tion [an Canales, the State took on the burden of proposed sion than that in the either proving vicariously re- makes cofelons Code] Mendez, in- appellants, Nava and by felonies sponsible for all committed them, tended “to or assist long felony any one so as the of mur- actually committed was commission of offense committed 19.02, read, (b) today, "A 4. Id. Committee Comment to Section it does but subsection coconspirator party an offense is not the then- at 149. The Committee stated that by unless committed the conduct another upheld current Texas law murder convictions criminally responsible offense he is for the "on of com- in these circumstances (a).” The stated under Subsection Committee parties plicity to the that all to a effect (b) distinguish it included Subsection "to ought responsible are for conduct that was or clearly complicity as of crimi- between a basis to have been foreseen as a responsibility and the nal inchoate offense probable consequence of felo- the intended conspiracy.” criminal Committee Comment But, ny.” (emphasis original). Id. 7.02, ac- to Section at 51. Committee law, a sim- Committee noted that this former knowledged then-present law was Texas liability, negligence ple for vicarious standard any co-conspirator was rea- liable for rejected complicity in the statute of both sonably offense committed his foreseeable felony-murder 7.02 in the context Section incidentally coconspirators which "follows Id. as well. design[J” the execution the common Id. disapproved far- The Committee of such 19.02, § Practice Commen- Tex. Penal Code reaching liability it and intended to eliminate (Vernon’s 1974). tary at 10 Proposed in the Penal Code. But it did note responsibility criminal "[a] cofelon’s Id. specially murder is dealt with section, 19.02, explained in the murder 7.02, Commentary § at Id. 7. Id. Practice 135-36. comment that section.” at 52. *21 solicited, they ... appellants egregious der” encour- cause harm under Al- aided, manza.9 directed, aged, attempted
to aid “Roberto Carrillo to commit murder”;
the offense of Mendez, appellants, along Nava and Carrillo, Roberto
with “entered into agreement
an to commit
theft,” ... and “while the course theft, committing such Roberto Brian SHANKLIN and Todd clearly committed an act Carrillo Rimmer, Appellants dangerous to human life that caused Canales, the death of’ Officer causing (USA) Officer Ca- [act]8 INC., BASSOE OFFSHORE nales’s death was committed in fur- Smith, Mike and Jonathan therance of the conspiracy and was Fairbanks, Appellees. [appellants] should [act] have No. 01-12-00563-CV. anticipated conspir- as a result of the acy.” Texas, Appeals Court of (1st Dist.). Houston prong, the first the State re- Under quired prove that appellants had the May 2013.
intent to have Carrillo commit the offense Rehearing July Overruled they of murder and that him assisted murder, commit the though offense of even murder, charged were not
only felony-murder.
Appellants are correct
charge ambiguous because the “intent to
promote” party liability application in- simply
struction says must
find that each appellant intended to assist offense,
the commission of any” “the if solicited, directed, encouraged,
aided or attempted to aid Roberto Carrillo
to commit “the offense” without specifying
what offense the referring instruction was But, precisely given by
to. for the reasons instruction, majority, agree I that this face,
though ambiguous on its jury charge actually 8. The reads "and that the Canales was committed in furtherance of the conspiracy murder of H. and was an act that the Canales was committed fur- defendant anticipated conspiracy therance of should as a result of the and was an offense conspiracy.” anticipated that the defendant should have conspiracy[,]” result when it should (Tex. clearly have read “and that the act [or Almanza dangerous Crim.App.1985) (op. reh’g). act] that caused the death of H. tion of the notes court (2) made, strikes, peremptory exhaust his destroyed records has been lost or— (3) request peremptory an additional if the proceedings electronically re- strike to upon specifically use identified significant portion corded—a of the re- objectionable who, juror, prospective be cording destroyed has been lost or is denied, cause the extra actually strike inaudible; So, sits on if jury.36 we accept as true lost, destroyed, if the or inaudible proposition that the defendants failed record, portion reporter’s or the identify an objectionable prospective ju