After appellant read the card, Tabullo asked him if he
understood his rights, and appellant indicated that he
did. In fact, appellant indicated that he knew "all
about the Miranda warnings" because he was a security
guard. Appellant then signed the card, and wrote the
date and time on it. Tabullo advised appellant that he
was not under arrest and that he was free to leave at
However, he reiterated that he did want to talk to
appellant about the incident. Tabullo specifically
advised appellant that he had the right to an attorney,
and appellant said that he did not want one and that he
did want to talk to the detective. As Tabullo and
appellant talked, Tabullo typed. Tabullo testified that
appellant was very calm and did not appear to be under
the influence of alcohol or any drugs or narcotics.
Tabullo also told the court that appellant did not
appear to be under duress.
When they finished, Tabullo asked appellant to read each
paragraph of the statement that he had typed. Tabullo
also instructed appellant to initial each paragraph
noting that he had read and understood it. The first two
paragraphs of the typed statement contained the same
legal warnings that appellant had previously read from
this statement, appellant stated that he had been
watching television when Dylan called him and told him
that Nicholas was not breathing. Appellant stated that
Dylan later told him that he and Nicholas had been
wrestling when he put his hand over Nicholas' mouth, and
Nicholas fainted. Appellant signed on the last page of
the statement. This statement ended at 2:10 the morning
of March 1, 2000.
After taking appellant's first statement, Tabullo told
appellant that his mother was outside. Appellant asked
Tabullo to tell his mother that he would call her when
he was finished. He also asked Tabullo if he was still
free to leave at any time; Tabullo told him that he was.
2:25 a.m., Tabullo again had appellant read his rights
and sign, date, and place the time on the card noting
that he understood those rights. Tabullo again asked
appellant if he wanted an attorney, and appellant told
him that he did not. Appellant noted that he was willing
to continue talking to Tabullo.
Shortly thereafter, Tabullo received from other
detectives polaroid photographs which appeared to show
an adult-sized footprint on Nicholas' stomach. Tabullo
confronted appellant with the photographs, after which
appellant orally admitted to stomping Nicholas. Tabullo
asked appellant for his shoes, which appellant gave him.
Tabullo then took appellant to be fingerprinted and
Appellant signed a document indicating that he knew that
he could refuse to be fingerprinted and photographed.
After these procedures were completed, Tabullo and
appellant returned to the interview room and continued
talking. Appellant never asked to terminate the
interview, and he willingly talked to Tabullo.
Tabullo began typing the second statement at 5:46 a.m.
Appellant's legal rights again appeared at the top of
this statement. After he finished typing the document,
Tabullo handed the statement to appellant and advised
him to read it. Appellant signed the document, but did
not write the ending time on the document or initial the
response to questions from appellant's counsel, Tabullo
admitted that appellant could have slept between the
statements. However, Tabullo never saw him sleep, and
appellant was "fully awake" when he signed the second
statement. Tabullo's partner, Detective Terry Kozak, and
Officer Lopez witnessed the signing of the second
statement. Lopez testified that appellant did not appear
to be under duress when he signed the second statement.
Lopez further opined that appellant was not forced or
coerced into signing the statement.
After the State rested, appellant took the stand in his
own defense. Appellant claimed that he did not read this
statement before he signed it. He noted that after he
had finished the first statement, Tabullo told him that
he needed "to clear up a few things on the statement."
Appellant said that he thereafter fell asleep until he
was awakened by Tabullo telling him to sign the
corrected statement. Appellant said that he did not know
what he was signing; he just took Tabullo's word that it
was a corrected version of the first statement.
The trial court denied appellant's motion to suppress
his written statements and entered the following
findings and conclusions:
The Court hereby finds that the Voluntary Statements of
the Accused were freely and voluntarily made without
compulsion or persuasion. The Detective read the Miranda
warnings to the Defendant from the Miranda card provided
by the El Paso Police Department [citation to exhibit
omitted]. The Defendant initialed the card and stated he
understood his rights.
The Defendant freely and voluntarily waived his rights
including his right to an attorney and his right to
remain silent. Prior to giving both Voluntary Statements
of Accused, the Defendant was read his Miranda warnings
again from the top of each statement, stated he
understood his rights and freely and voluntarily waived
Although the judge's finding that appellant "was read"
his rights prior to giving each statement is not
precisely accurate, the record does support the fact
that appellant was given his rights in writing (and to
some extent verbally) at least twice before the taking
of each statement and another time in between them.
Furthermore, appellant unequivocally admitted that he
was familiar with his rights.
Additionally, the record supports the judge's findings
that appellant waived his rights and that he made both
statements without compulsion or persuasion. Finally,
although the judge's findings and conclusions were
sparse, we hold that they are sufficiently detailed to
enable this Court to determine the basis for the trial
court's ruling and to assist us "in determining the
sufficiency of the evidence to support whatever unstated
findings of fact were made by the fact finder."
Guidry, 9 S.W.3d at 140-42. Appellant's first point
of error is overruled.
his second point of error, appellant claims that the
trial court should have suppressed his second written
statement because it was obtained in violation of the
Texas Constitution, Article I, §§ 9 and 10, and Texas
Code of Criminal Procedure Articles 14.06 and 15.17.
Specifically, appellant contends that his second written
statement should have been suppressed because the State
failed to take him before a magistrate without undue
delay. Had he been promptly taken before a magistrate,
appellant "would likely have not signed the second
Articles 14.06 and 15.17 require that the person making
the arrest shall "without unnecessary delay" take the
person arrested or have him taken before a magistrate of
the county where the accused was arrested. However, this
Court has consistently held that violations of these
articles do not automatically invalidate a confession.
See Rocha v. State, 16 S.W.3d 1, 29-30 (Tex.
Crim. App. 2000) (Holland, J., concurring); Cantu v.
State, 842 S.W.2d 667, 680 (Tex. Crim. App. 1992).
Rather, an accused must show a causal connection between
the accused's confession and the failure to take the
accused promptly before a magistrate before the validity
of the confession is affected. Williams v. State,
692 S.W.2d 671, 675 (Tex. Crim. App. 1984). See also
Ex parte Stansbery, 702 S.W.2d 643, 647 (Tex. Crim.
App. 1986). This Court has also held that a confession
that was obtained prior to the accused being taken in
front of a magistrate is admissible as long as his
Miranda warnings had been read to him before the
statement was taken. Curry v. State, 910 S.W.2d
490, 496 (Tex. Crim. App. 1995).
The evidence is uncontroverted that appellant willingly
accompanied Tabullo to the CAP offices around 11:05
p.m., February 29, 2000, to speak with him about how
Nicholas became injured. It is also not disputed that
appellant could have terminated the interview and left
the CAP offices at any time before about 2:25 a.m.,
March 1, 2000, when he first admitted to "stomping"
After appellant orally confessed to hurting Nicholas,
Tabullo took polaroid pictures of him. He then took
appellant to be fingerprinted and officially
photographed. However, before either of these events
took place, appellant was told that he had a right to
refuse to be fingerprinted and photographed. Appellant
signed a waiver of those rights.
Appellant then accompanied Tabullo back to his cubicle
where Tabullo typed appellant's second statement.
Appellant and two witnesses signed that statement around
6:50 a.m. Immediately after that, Tabullo told appellant
that he was under arrest. Tabullo went to procure a
warrant, and appellant was taken before a magistrate
close to 8:00 a.m.
Appellant correctly notes that he was arrested without a
warrant. However, his oral confession to Tabullo,
coupled with the photograph Tabullo received showing the
apparent image of an adult footprint across Nicholas'
stomach, gave Tabullo probable cause to arrest him.
See Anderson v. State, 932 S.W.2d 502, 506 (Tex.
Crim. App. 1996) (citing New York v. Harris,
495 U.S. 14 (1990)), cert. denied, 521 U.S.
Even if the time between appellant's oral admission that
he hurt Nicholas and the time that he was finally taken
before a magistrate could be considered unreasonable,
appellant has still failed to show a causal connection
between his confession and any delay in taking him
before a magistrate. Appellant readily admitted that he
was aware of his statutory rights.
addition, he was informed of those rights at least three
times prior to giving his statement. Under these
circumstances, the trial court did not err in refusing
to suppress appellant's second written statement.
Appellant's second point of error is overruled.
ADMISSION OF PHOTOGRAPHS
his third and fourth points of error, appellant claims
that the trial court violated Texas Rule of Evidence 403
by admitting into evidence State's Exhibits 16, 17, and
18. Appellant contends that the photographs were
unfairly prejudicial because they show Nicholas' body in
a mutilated condition due to the actions of the medical
his second statement to the police, appellant claimed
that when he saw Nicholas lying on the floor of the
bedroom, he did not "know what came over [him]" but he
went over to the boy and "stamped on him hard" with his
right foot. Appellant claimed this was the only injury
he inflicted on the boy.
The State argued, on the other hand, that two additional
bruises on Nicholas' torso which the medical examiner
categorized as "fresh" indicated that appellant
inflicted more injury to the boy than just a single "stamp."
The State also presented, without objection, testimony
from the medical examiner regarding several bruises on
However, the doctor testified without equivocation or
contradiction that these bruises were a few days old and
not inflicted at the same time as the injury which
caused Nicholas' death or the other two bruises to his
torso. The State claims that the three exhibits about
which appellant now complains were offered for the
purpose of illustrating and explaining the extent of
The exhibits at issue are three 5-inch by 7-inch color
autopsy photographs. State's Exhibit 16 shows a view of
Nicholas' major organs after the medical examiner has
cut open the length of his torso and spread the sides
apart. State's Exhibit 17 shows the upper one-third of
Nicholas' body. His chest is still open with the ribs
spread and the organs removed, and the front half of his
scalp has been cut and peeled down over his face.
Finally, State's Exhibit 18 shows Nicholas' head and
shoulders from the back. In this photograph, the back
half of Nicholas' scalp has been peeled down and is
hanging across Nicholas' shoulders much like a hood on a
jacket would hang down. Each photograph is close-up,
highly graphic, and extremely gruesome. These are the
only photographs showing Nicholas' injuries from an
reviewing whether these exhibits were properly admitted,
we determine whether the probative value of the slides
is substantially outweighed by the danger of unfair
prejudice. Tex. R. Evid. 403. We review a trial judge's
decision regarding the admissibility of evidence for an
abuse of discretion. We will reverse the judge's
decision only if it was outside the zone of reasonable
disagreement. Salazar v. State, 38 S.W.3d 141,
150-53 (Tex. Crim. App.), cert. denied, 534 U.S.
855 (2001); Narvaiz v. State, 840 S.W.2d 415 (Tex.
Crim. App. 1992), cert. denied, 507 U.S. 975
(1993). A judge need engage in a Rule 403 balancing test
only when the evidence at issue is relevant. Tex. R.
Evid. 401-403; Long v. State, 823 S.W.2d 259,
271 (Tex. Crim. App. 1991), cert. denied, 505
U.S. 1224 (1992).
Rojas v. State, 986 S.W.2d 241, 249 (Tex. Crim.
App. 1998), and Santellan v. State, 939 S.W.2d
155, 172 (Tex. Crim. App. 1997), this Court held that
autopsy photographs are generally admissible unless they
depict mutilation of the victim caused by the autopsy
The main concern in these cases was that the jury might
attribute certain injuries caused by the autopsy to the
appellant, which would unfairly prejudice the
appellant's case. See Rojas, 986 S.W.2d at 249
(holding autopsy photographs admissible because the gun
shot wounds and trauma to the pelvic area that are
depicted in the photographs were a result of appellant's
actions, not the performance of the autopsy);
Santellan, 939 S.W.2d at 173 (holding that a change
rendered as part of the autopsy process which is of
minor significance does not prevent the admission of the
picture when the disturbing nature of the photograph is
due primarily to the injuries caused by appellant).
Photographs depicting "mutilation" by the medical
examiner may still be admissible, and therefore excepted
from the general prohibition, when the resulting picture
(such as an organ that has been removed from the body)
shows bruising or other damage that is attributable to
the defendant's actions, but was not visible externally,
thereby making the photograph highly relevant to the
manner of death. Ripkowski v. State, 61 S.W.3d
378, 392-93 (Tex. Crim. App. 2001); see also Salazar,
38 S.W.3d at 150-53.
State's Exhibit 16 presents just such an exception to
the general prohibition against photographs depicting
mutilation. Although doctors could see bruising on the
external surface of Nicholas' body, it was not until
they opened his body that they saw the full extent of
injuries appellant caused him, i.e., a crushing
impact so severe that it ripped his internal organs into
Although extremely graphic and explicit, State's Exhibit
16 was highly probative of the manner of Nicholas' death
and the extent of his injuries. The trial judge did not
abuse his discretion in allowing the admission of
State's Exhibit 16. Point of error three is overruled.
State's Exhibits 17 and 18, on the other hand, show
mutilation attributable to the medical examiner, but do
not fit the exception to the mutilation cases. State's
Exhibit 17, showing Nicholas with the front half of his
scalp peeled down over his face and a chest and
abdominal cavity devoid of any organs, and State's
Exhibit 18, showing Nicholas with the back half of his
scalp peeled down and draped across his shoulders, were
offered to show the jury additional injuries Nicholas
had suffered, namely, five bruises on his head,
resulting, according to testimony, from five different
However, these bruises, the medical examiner testified,
were "a few days" old, and occurred separate from the
crime for which appellant is charged. In fact, the State
presented no evidence that connected appellant to these
bruises, or connected these bruises to the present crime.
Thus, these two photographs were not relevant in the
guilt phase of appellant's trial, and should not have
been subjected to a Rule 403 balancing test or admitted
into evidence over appellant's objection. Lack of
relevancy notwithstanding, under the facts of this case,
this is not the end of our inquiry.
Appellant failed to object at the guilt phase to
testimony regarding the bruising found on Nicholas' head
during the autopsy. Therefore, appellant may have waived
any relevancy complaint under Rule of Evidence 401 that
he had regarding photographs on the same topic, making
it necessary for us to review the trial court's Rule 403
decision on the issue. See Tex. R. App. P.
When performing a Rule 403 analysis, the trial court
must consider "the host of factors affecting
probativeness . . . and balance those factors against
the tendency, if any, that the photographs have to
encourage resolution of material issues on an
inappropriate emotional basis." Salazar, 38 S.W.3d
at 152; Ladd v. State, 3 S.W.3d 547, 568 (Tex.
Crim. App. 1999), cert. denied, 529 U.S. 1070
When determining the proclivity of pictures to spur
emotional decision-making, the court should examine the
"number of exhibits offered, their gruesomeness, their
detail, their size, whether they are black and white or
color, [and] whether they are close-up." Salazar,
38 S.W.3d at 152; Long, 823 S.W.2d at 272.
Additionally, relevant criteria in determining whether
the prejudicial effect of a piece of evidence
substantially outweighs the probative value include the
fact "that the ultimate issue was not seriously
contested by the opponent; that the State had other
convincing evidence to establish the ultimate issue to
which the [evidence] was relevant; that the probative
value of the . . . evidence was not, either alone or in
combination with other evidence particularly compelling;
that the [evidence] was of such a nature that a jury
instruction to disregard it for any but its proffered
purpose would not likely be efficacious." Reese v.
State, 33 S.W.3d 238, 241 (Tex. Crim. App. 2000) (citing
Montgomery v. State, 810 S.W.2d 372, 392-93 (Tex.Crim.App.1990)).
The trial court should also, if applicable, consider the
fact that the body has been altered since the crime in
some way (e.g., by autopsy) that might enhance
its gruesomeness to the defendant's detriment.
Narvaiz, 840 S.W.2d at 429.
State's Exhibits 17 and 18 have little probative value,
if any. The State failed to connect the injuries
depicted in the photographs to appellant. Indeed, one
expert witness testified that the bruises were
consistent with infant rambunctiousness or accident and
did not signal intentional abuse. The photographs were
in no way necessary to show the manner of the victim's
death or the extent of the injuries that appellant
the other hand, these photographs have a high tendency
to "encourage resolution of material issues on an
inappropriate emotional basis." Ladd, 3 S.W.3d
at 568. Both photographs are in color and close-up. By
no action attributable to appellant, both are extremely
graphic and gruesome in that the boy's scalp has been
turned inside out, and one picture further depicts an
empty shell of a body.
Testimony further revealed that some damage was done to
the skin under the scalp as the medical examiner peeled
it back. However, while the damage that the medical
examiner inflicted is the central focus of the pictures,
it does not make up the entire picture.
Rather, enough of the boy's intact body features are
shown around the edges of the pictures to remind the
viewer that he is indeed looking at the remains of a
small boy. Plus, the inclusion of the pictures allowed
the implication that appellant somehow had something to
do with the infliction of the bruises found on the
Given the circumstances of this particular case, we hold
that the trial court abused its discretion in
determining that the probative value of these
photographs was not substantially outweighed by the
danger of unfair prejudice. See Salazar, 38 S.W.3d
at 153 n.10 (emphasizing that, while the trial court did
not abuse its discretion under the facts of Salazar,
the case should not be taken as an indication that it is,
in general, acceptable to admit photographs of organs
removed from a victim during the autopsy). Having found
that the trial court abused its discretion, we must
perform a harm analysis. Reese, 33 S.W.3d at
The appropriate standard of harm is found in Texas Rule
of Appellate Procedure 44.2(b), which states that "[a]ny
other error, defect, irregularity, or variance that does
not affect substantial rights must be disregarded." In
Johnson v. State, 967 S.W.2d 410,417 (Tex. Crim.
App. 1998), this Court explained that "[a] criminal
conviction should not be overturned for non-constitutional
error if the appellate court, after examining the record
as a whole, has fair assurance that the error did not
influence the jury, or had but a slight effect."
The evidence in the instant case focused on the fact
that appellant was the last adult with Nicholas before
he received a crushing blow injury to the abdomen - an
injury which revealed the image of an adult's footprint.
Further, this injury was so severe that his internal
organs were severed.
the other hand, the medical examiner clearly testified
that the bruises on Nicholas' head were not inflicted on
the day of his death, nor did they contribute to his
death. Finally, the testimony concerning these bruises
was brief and was not emphasized. From this record, this
Court has fair assurance that the error did not
influence the jury at either stage of trial, or had but
a slight effect. Point of error four is overruled.
COMPETENCY OF WITNESS
his fifth point of error, appellant asserts that the
trial court reversibly erred in ruling that Dylan
Salinas was a competent witness and in allowing him to
testify. Texas Rule of Evidence 601(a)(2) places the
power to determine a witness' competency into the hands
of the trial judge. Broussard v. State, 910 S.W.2d
952, 960 (Tex. Crim. App. 1995), cert. denied,
519 U.S. 826 (1996).
ruling by the trial court will not be disturbed upon
review unless an abuse of discretion is shown. Id.
Under Rule 601, a child is considered competent to
testify unless it appears to the court that he does not
possess sufficient intellect to relate the transaction
about which he will testify. Id.
The ability to relate encompasses both "an ability to
understand the questions asked and to frame intelligent
answers" as well as "a moral responsibility to tell the
truth." Watson v. State, 596 S.W.2d 867, 870 (Tex.
Crim. App. 1980); see also 1 Steven Goode et
al., Texas Practice: Guide to the Texas Rules of
Evidence: Civil and Criminal § 601.2 (2d ed. 1993 & Supp.
There is no particular age below which a child is
automatically deemed incompetent to testify. Fields
v. State, 500 S.W.2d 500, 502 (Tex. Crim. App.
1973); Goode et al., supra. Inconsistencies in
a child's testimony, while probative on the issue of
competency, do not alone render the child incompetent.
Fields, 500 S.W.2d at 503.
a hearing outside the presence of the jury, the judge
questioned Dylan to determine if he was competent to
testify. During that hearing, the judge determined that
Dylan knew his full name, and he could correctly spell "Dylan."
Dylan knew that he was five years old and that he went
to a school named Putnam. He said that he sometimes read,
but he did not like it. Dylan could also accurately
recite his alphabet.
When asked in the abstract whether he knew the
difference between telling the truth and telling a lie,
Dylan said that he did not. However, when given a
concrete example (e.g., it was sunny outside or
it was snowing outside), Dylan could accurately tell the
judge which was true and which was not true. Dylan also
did not comprehend the abstract definition of "truth,"
but when given a concrete example (e.g., did
you eat all of the cookies when your mother told you not
to), he knew to tell the truth, thereby demonstrating an
understanding of the concept.
Dylan also demonstrated an understanding of the
difference between right and wrong, such as, it was
wrong to take someone else's apple at school. Finally,
Dylan promised to listen to the questions that the
lawyers might ask him and to answer those questions
truthfully if he knew the answer.
Given this record, we hold that the judge did not abuse
his discretion in finding Dylan competent to testify.
Appellant's fifth point of error is overruled.
EFFECTIVE ASSISTANCE OF COUNSEL
five separate points of error, appellant contends that
his trial counsel rendered ineffective assistance.
Specifically, appellant complains that his counsel
rendered ineffective assistance when he:
of error seven) made several statements during his
punishment phase argument which illustrated a shift in
trial strategy from denying guilt to accepting blame,
which shift in strategy appellant did not consent to;
of error eight) cross-examined Nicholas' mother at
punishment in such a manner that she ultimately
characterized appellant as very jealous and a ticking
of error nine) failed to object to the State's alleged
mischaracterization of the manner of Nicholas' death in
the State's argument at both phases of trial, i.e.,
that appellant inflicted more than just one stomping
of error ten) failed to timely tender to the trial court
a videotape interview of Dylan Salinas which would have
shown the court that the child was not a competent
of error eleven) moved to have Nicholas' body exhumed
for a general examination.
The proper standard for reviewing an ineffective
assistance of counsel claim was established in
Strickland v. Washington, 466 U.S. 668 (1984)(adopted
by this Court in Hernandez v. State, 726 S.W.2d
53 (Tex. Crim. App. 1986)). Under Strickland,
an appellant must first demonstrate that his trial
counsel's performance was deficient. Secondly, he must
show that his counsel's deficient performance was so
serious that it prejudiced his defense, rendering the
trial unfair and the verdict suspect. Strickland,
466 U.S. at 687; Lockhart v. Fretwell, 506 U.S.
other words, appellant must prove by a preponderance of
the evidence that trial counsel's representation fell
below an objective standard of reasonableness under
prevailing professional norms and that this deficient
performance rendered the result of the proceeding
unreliable. Strickland, 466 U.S. at 687.
Appellate review of defense counsel's representation is
highly deferential and presumes that counsel's actions
fell within the wide range of reasonable and
professional assistance. Bone v. State, 77 S.W.3d
828, 833 (Tex. Crim. App. 2002); Chambers v. State,
903 S.W.2d 21, 33 (Tex. Crim. App. 1995).
The analysis of effective assistance is undertaken in
light of the "totality of the representation" rather
than by examining isolated acts or omissions of trial
counsel. Wilkerson v. State, 726 S.W.2d 542,
548 (Tex. Crim. App. 1986), cert. denied, 480
U.S. 940 (1987). The fact that another attorney may have
pursued a different tactic at trial is insufficient to
prove a claim of ineffective assistance. Miniel v.
State, 831 S.W.2d 310, 325 (Tex. Crim. App. 1992).
Under most circumstances, the record on direct appeal
will not be sufficient to show that counsel's
representation was so deficient and so lacking in
tactical or strategic decision-making as to overcome the
strong presumption that counsel's conduct was reasonable
and professional. Bone, 77 S.W.3d at 833.
this Court recently explained, rarely will the trial
record contain sufficient information to permit a
reviewing court to fairly evaluate the merits of such a
serious allegation: "[i]n the majority of cases, the
record on direct appeal is simply undeveloped and cannot
adequately reflect the failings of trial counsel."
Id. A reviewing court can frequently speculate on
both sides of an issue, but ineffective assistance
claims are not built on retrospective speculation;
rather, they must "be firmly founded in the record."
The record in the instant case is not sufficiently
developed on appellant's claims of ineffective
assistance of counsel set forth in points of error seven,
eight, and eleven. Therefore, we can only speculate as
to why counsel took the actions (or failed to take the
actions) that he did, and such speculation is beyond the
purview of this Court. Id.; see also
Jackson v. State, 877 S.W.2d 768, 771-72 (Tex. Crim.
App. 1994)(Baird, J., concurring); Ex parte Torres,
943 S.W.2d 469, 475 (Tex. Crim. App. 1997). Points of
error seven, eight, and eleven are overruled.
his ninth point of error, appellant contends that his
counsel was ineffective for failing to object to the
State's "mischaracterization" of the manner of Nicholas'
death. Specifically, appellant complains that his
counsel should have objected to the State's argument at
punishment that the existence of two additional bruises
on Nicholas' torso indicated that appellant had
inflicted more than just one stomping injury.
Proper jury argument includes four areas: (1) summation
of the evidence presented at trial, (2) reasonable
deduction drawn from that evidence, (3) answer to the
opposing counsel's argument, or (4) a plea for law
enforcement. Jackson v. State, 17 S.W.3d 664,
673 (Tex. Crim. App. 2000).
constitute reversible error, the argument must be
manifestly improper or inject new, harmful facts into
the case. Id. The prosecutor's argument was
permissible as a reasonable deduction drawn from the
evidence, and defense counsel's failure to object did
not constitute ineffective assistance of counsel. Point
of error nine is overruled.
his tenth point of error, appellant contends that his
counsel was ineffective for failing to timely tender to
the trial court a videotape interview of Dylan Salinas
which, he asserts, would have shown the court that the
child was not a competent witness. The videotape
interview to which appellant refers shows a conversation
between Detective Brian Fuller and Dylan Salinas. The
conversation occurred just past midnight on March 1,
2000, more than a year before Dylan was called to
testify at appellant's trial.
previously held in point of error five, the trial judge
did not abuse his discretion in determining that Dylan
was competent to testify at appellant's trial, given the
testimony presented at the competency hearing.
Whether Dylan was competent to testify mere hours after
the offense and more than a year before the trial was
not material to this decision. Given these circumstances,
we will not hold that appellant's counsel was deficient
for failing to timely present the videotape for the
court's consideration. Strickland, 466 U.S. at
687. Point of error ten is overruled.
SUFFICIENCY OF EVIDENCE OF FUTURE DANGEROUSNESS
his sixth point of error, appellant complains that the
evidence presented at trial was insufficient to support
the jury's finding that he would probably be a
continuing threat to society. See Art. 37.071 §
reviewing the sufficiency of the evidence at punishment,
this Court looks at the evidence in the light most
favorable to the verdict to determine whether any
rational trier of fact could have believed beyond a
reasonable doubt that appellant would probably commit
criminal acts of violence that would constitute a
continuing threat to society. See Jackson v.
Virginia, 443 U.S. 307, 319 (1979); Allridge v.
State, 850 S.W.2d 471, 487 (Tex. Crim. App. 1991),
cert. denied, 510 U.S. 831 (1993). The facts of
the crime alone can be sufficient to support the
affirmative finding to the future dangerousness special
issue. Allridge, 850 S.W.2d at 488.
During the guilt phase of trial, the jurors heard that
appellant was the only adult with 19-month-old Nicholas
when he was hurt. They heard that the child was so badly
injured that several of his organs were literally ripped
in two. The doctors told them that the force required to
cause these types of injuries was extreme.
Testimony that Nicholas had two additional "fresh"
bruises on his torso in addition to the one in the shape
of a shoe print enabled the prosecutor to argue his
version of the scenario for the jury. In this version of
events, appellant kicked Nicholas twice before finally,
fatally stomping him to death.
punishment, the State presented no evidence of a prior
criminal history, other bad acts, or psychological
evidence. However, the facts of the instant case with
its young, helpless victim gave the jurors enough
information to permit them to conclude that appellant
would continue to be a threat to society.
Appellant not only stomped on a defenseless 19-month-old
with enough force to sever his internal organs, but if
the jury believed the prosecutor's version of the events,
appellant kicked him twice before delivering the final
Further, a rational juror could have believed that, when
appellant did call for help, he intentionally misled
paramedics about the nature of the child's injuries.
Also, appellant attempted to blame Nicholas's injuries
on an equally defenseless four-year-old boy. When
appellant finally admitted his actions, he could give no
explanation for what he did. Appellant's actions show a
wanton and callous disregard for human life. See
Martinez v. State, 924 S.W.2d 693, 696-97 (Tex.
Crim. App. 1996)(holding that close-range stabbing
showed wanton and callous disregard for human life and
was sufficient evidence to support jury's affirmative
answer to the future dangerousness issue).
Under these facts, we hold the evidence legally
sufficient to support the jury's affirmative answer to
the future dangerousness issue. Jackson, 443
U.S. at 319; Martinez, 924 S.W.2d at 696-97.
Point of error six is overruled.
affirm the judgment of the trial court.
Delivered: July 2, 2003
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otherwise indicated this and all future references to
Articles refer to the Code of Criminal Procedure.
Tabullo kept referring to the warnings as "Miranda"
warnings, the warnings actually comply with Article