On the night
of April 7, 2001, Juan Vargas was driving his van accompanied by
appellant, Carlos Almanza, Albert Orosco, Steven Gongora, and
James Luedtke when they saw Delfino Sierra walking down the street
and decided to rob him. When Vargas pulled over, appellant and
Orosco jumped out of the van, ran toward Sierra, and demanded his
money. When Sierra began to run, appellant shot him in the head
with a .38 caliber handgun. Appellant and Orosco then returned to
the van. Appellant told his companions that he "took [Sierra's]
dreams" and did "what [he] had to do" and warned them to remain
silent. Appellant appeared to be bragging about what he had done.
The group then returned to appellant's house for a cookout.
and Vargas were leaders in the criminal street gang Puro Li'l
Mafia ("PLM"). Approximately two hours after appellant killed
Sierra, Vargas drove appellant and Almanza to the house of a rival
gang member. Almanza, in order to become a PLM member, shot into
the house in retaliation for drive-by shootings that had occurred
at appellant's house. During the shooting, appellant stood outside
the van armed with a nine-millimeter handgun. The victim of this
later, an anonymous phone call helped establish that Vargas and
Maria Morales owned the suspect van. Vargas was arrested on April
27, and gave a written statement to police naming Almanza as
Sierra's killer. On May 9, Vargas met with Detective Carlos Ortega
to correct the falsehoods in his first statement and identified
appellant as the shooter. Vargas explained that he had initially
lied because he feared retaliation from appellant.
On June 19,
after he was arrested pursuant to a warrant, appellant waived his
rights and gave a voluntary signed statement. In his statement,
appellant admitted getting out of the van with others to rob
Sierra. Then he heard shots and saw the man lying on the ground,
but claimed not to know who fired the shots.
In his first
three points of error, appellant claims that the trial court erred
in overruling his motion to quash the indictment because it failed
to put him on notice that the State would be seeking to establish
his criminal responsibility as a party or co-conspirator. See
Texas Penal Code §§ 7.02(a) and (b). Appellant asserts that the
law of parties must be pled in the indictment because guilt as a
party is an "additional element of the offense" which the State
must prove beyond a reasonable doubt. Appellant relies on
Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v.
Arizona, 536 U.S. 584 (2002), to support his argument.
and Ring apply to facts that increase the penalty for a
crime beyond the statutory maximum. Guilt as a party does not
increase a defendant's responsibility for a crime, nor does it
increase the maximum sentence to which a defendant might be
subjected. It is well settled that the law of parties need not be
pled in the indictment. Vodochodsky v. State, 158 S.W.3d
502, 509 (Tex. Crim. App. 2005); Marable v. State, 85 S.W.3d
287 (Tex. Crim. App. 2002). Apprendi and Ring do
not change this caselaw. Points of error one through three are
ADMISSION OF EVIDENCE
complains in his fourteenth point of error that the trial court
abused its discretion when it prohibited him from cross-examining
Vargas about an aggravated robbery offense he had allegedly
committed with Morales using the same van as the one used in the
instant capital murder. Appellant asserts that the trial court's
ruling denied him his confrontation, cross-examination, and due
Amendment to the United States Constitution guarantees the right
of an accused in a criminal prosecution to be confronted with the
witnesses against him. U.S. Const. amend. VI; Davis v. Alaska,
415 U.S. 308, 315 (1974). A primary interest secured by the
Confrontation Clause is the right of cross-examination. Davis,
415 U.S. at 315. A defendant is entitled to pursue all avenues of
cross-examination reasonably calculated to expose a motive, bias,
or interest for the witness to testify. Hoyos v. State,
982 S.W.2d 419, 421 (Tex. Crim. App. 1998). Each Confrontation
Clause issue must be weighed on a case-by-case basis, carefully
taking into account the defendant's right to cross-examine and the
risk factors associated with admission of the evidence. Lopez
v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000). In
weighing whether evidence must be admitted under the Confrontation
Clause, the trial court should balance the probative value of the
evidence sought to be introduced against the risk of harm its
admission may entail. Id. The trial court maintains broad
discretion to impose reasonable limits on cross-examination to
avoid harassment, prejudice, confusion of the issues, endangering
the witness, and the injection of cumulative or collateral
evidence. Id.; Lagrone v. State, 942 S.W.2d 602,
613 (Tex. Crim. App.), cert. denied, 522 U.S. 917 (1997).
In a hearing
outside the presence of the jury, appellant told the court that
Vargas had participated in two shootings that were the subject of
a plea agreement. Further, he claimed that Vargas was involved in
an aggravated robbery with his wife, Maria Morales, and appellant
needed to ask him about that crime for purposes of establishing
bias for the State. Appellant understood that Vargas intended to
invoke his Fifth Amendment right to remain silent about the
aggravated robbery, but asserted that he needed to call Vargas to
the stand to determine if that was, in fact, what was going to
testified outside of the jury's presence that he had been arrested
as a co-defendant for the same capital murder for which appellant
was on trial. Pursuant to a plea agreement in which he agreed to
testify against appellant, Vargas was allowed to plead guilty to a
reduced charge of murder and would have a sentence of 23 years
imposed at a later time. The State also agreed that it would not
charge Vargas in the second shooting that happened around the same
time. In response to questioning, Vargas told the court that
Morales was his common-law wife and that she had been charged with
aggravated robbery in a case unrelated to the instant offense in
which she had pled guilty to the lesser charge of robbery and was
currently serving the time imposed on that plea. Vargas stated
that he had never been arrested for that crime, and he understood
that the plea bargain he had struck with the State had nothing to
do with that offense. In fact, the State made it clear, and Vargas
stated that he understood, that if evidence later came to light
connecting him to that robbery, he could be charged.
then attempted to establish through cross-examination that Vargas
owned the van that was used in both this capital murder and the
robbery for which Morales was serving time. However, Vargas'
attorney informed the court that Vargas intended to invoke his
Fifth Amendment right to remain silent with respect to any
question pertaining to Vargas's alleged participation in that
robbery. Appellant then asked each question for the record, and
Vargas invoked his right to remain silent. Vargas did testify that
he did not have a deal with the State concerning the aggravated
robbery, and his counsel reiterated that the robbery was not
discussed during the plea negotiations. The prosecutor commented
that it was intentionally not included in the discussions because
there was no current evidence of Vargas's involvement, not because
of some oversight.
At the end
of the examination, appellant argued that allowing Vargas to
invoke the Fifth Amendment violated Rule of Evidence 613(b),
denied appellant "the right of effective cross-examination and
confrontation in front of the jury," and prevented him from
getting impeachment evidence before the jury. The State and
Vargas's counsel stated that the defense could ask Vargas whether
the aggravated robbery offense had any bearing on his plea bargain
with the State regarding the instant offense. However, both
objected to the defense asking Vargas questions about the
underlying facts of the robbery and whether he was involved with
it in any way, including questions involving his ownership of the
presence of the jury, Vargas testified that he had reached a plea
agreement with the State in the instant case. He stated that he
had pled guilty to a reduced charge of murder and would receive a
twenty-three-year sentence in exchange for his truthful testimony
against appellant. Vargas testified that, after he was arrested
for this offense, he initially told the police detective that
Almanza had shot the victim. However, Vargas admitted to the jury
that he had lied in that first statement because he was afraid
appellant would harm his family if he told the truth. After
obtaining counsel, he again met with the detective and informed
him that he had lied in his earlier statement.
circumstances, the trial court did not abuse its discretion in
refusing to allow appellant to question Vargas about the
aggravated robbery charge. The testimony established that the
robbery was unrelated to the instant offense, and the issue of
Vargas's alleged involvement in the robbery was deliberately not
included within the terms of plea agreement securing Vargas's
testimony in this case. The trial court's ruling did not prevent
appellant from pursuing all relevant avenues of cross-examination
with Vargas. Hoyos, 982 S.W.2d at 421. An unrelated
offense for which there was no evidence demonstrating Vargas's
involvement was not relevant.
also complains in this point of error that the trial court erred
when it prohibited him from questioning Vargas about statements
Vargas made to Morales following the capital murder which
exonerated appellant or at least "impeached [Vargas's] versions of
the facts related to the jury at trial and to the police on [two]
different occasions." However, appellant does not set out in his
brief what statements Vargas allegedly made to his wife, and the
only record citations he provides refer to a statement and
testimony from Morales. Without more, this portion of appellant's
point of error is inadequately briefed, and we refuse to address
it. Tex. R. App. P. 38.1. Point of error fourteen is overruled.
related fifteenth point of error, appellant complains that the
trial court abused its discretion when it prohibited him from
questioning Morales about the aggravated robbery that she had
allegedly committed using the same van as the one used in this
capital murder offense. Appellant asserts that the trial court's
ruling violated his confrontation, cross-examination, and due
aggravated robbery was not related to the instant crime, and
because the commission of that offense had no bearing on the plea
agreement reached with Vargas, testimony about the robbery was not
relevant to appellant's trial, and the court's ruling did not
violate appellant's confrontation rights. Therefore, the trial
court did not abuse its discretion when it prohibited this
also complains in this point of error that the trial court erred
when it prohibited him from examining Morales about statements
Vargas made to her following the instant offense which exonerated
appellant or at least "impeached [Vargas's] versions of the facts
related by him to the jury at trial and to the police on [two]
Even if the
trial court abused its discretion when it refused to allow
appellant to cross-examine Morales regarding these statements,
appellant was not harmed by this error. See Tex. R. App.
P. 44.2. Appellant claims that Morales's information would have
impeached Vargas's version of the facts as described to the jury
at trial. However, Vargas admitted at trial that he had initially
told the police that Almanza had killed Sierra but that he later
recanted that statement explaining that he had lied. Thus, the
information that Vargas initially claimed that Almanza killed
Sierra was elicited from Vargas himself. That he may have also
told his wife this version of the story does not further impeach
his testimony at trial. Allowing appellant to cross-examine
Morales on this point would not have exposed any further motive,
bias, or interest on Vargas's part. Appellant's fifteenth point of
error is overruled.
sixteenth point of error, appellant complains that the trial court
abused its discretion in overruling appellant's motion for
mistrial "because of the State's calculated actions" to deny
appellant mitigating testimony from his sisters, Ana and Erika
Gongora. Appellant claims that the State and the trial court
colluded against him to deny him this evidence, and thereby,
denied him due process.
his point, appellant explains that, prior to their testimony, his
sisters were arrested on warrants alleging that they had
threatened a co-defendant's family members who had been watching
the proceedings. Appellant claims that the arrest was conducted at
the direction of the prosecutors and with the assistance of the
court's bailiffs and the trial court judge after ex parte
communications with the court. Furthermore, because the State
refused to dismiss the charges or offer grants of immunity "so as
to allow these witnesses to testify at the punishment phase" of
appellant's trial, he was deprived of this evidence because both
sisters invoked their right to remain silent when called to the
stand. As a result, appellant was denied mitigation evidence and
affidavits filed by appellant's investigator, the sisters would
have testified to "family socio-economics, family work stability,
the practical effects of residential mobility, substance abuse
within the household, general family/home environment, and [appellant's]
peers." The investigator stated in the affidavit that this
testimony from the sisters was critical because the other
relatives who could testify to these issues had criminal
histories, suffered from learning or language disabilities that
might render their testimony unclear, or were not fluent in
English, thereby reducing the persuasiveness of the testimony.
does not support appellant's assertion that the State's actions
deprived him of this evidence. The arrests resulted from the
sisters' voluntarily undertaken criminal acts. Further, the
arrests were made outside of the presence of the jury, and the
State agreed that, should the sisters testify, no questions would
be asked concerning the arrests or the facts underlying the
arrests. The trial court supported this concession, stating that
no such evidence would be allowed. Finally, although appellant
apparently preferred the sisters' testimony to that of other
family members for various reasons, other family members could
have testified, and to some extent did testify, to the same
information that appellant asserts could only be provided by Ana
and Erika. This record does not establish that appellant was
denied this evidence, only that he was denied the evidence in the
precise manner in which he wished to present it. Thus, the trial
court did not abuse its discretion in denying appellant's motion
also claims in this point that the trial judge's role in these
arrests compromised the fairness and impartiality of the tribunal
and showed that the judge was not in fact a "neutral and detached"
magistrate. Appellant contends that, following this incident, the
judge should have recused himself from the remainder of the
proceedings. However, appellant failed to raise this issue at
trial by filing a motion to recuse or otherwise challenging the
judge. Therefore, this portion of appellant's claim is not
preserved. Tex. R. App. P. 33.1. Appellant's sixteenth point of
error is overruled.
LESSER INCLUDED OFFENSE CHARGE
seventeenth point of error, appellant asserts that the trial court
abused its discretion in failing to include an instruction on the
lesser-included offense of robbery in the jury charge at the guilt
phase. In his eighteenth point of error, appellant asserts that
the trial court abused its discretion in overruling his objection
to the absence of such an instruction. Appellant asserts that the
admission of his confession at trial, in which he admitted
participation in the robbery but denied any part in the murder,
supports the inclusion of such an instruction.
A charge on
a lesser-included offense should be given when (1) the lesser-included
offense is included within the proof necessary to establish the
offense charged; and (2) there is some evidence that would permit
a rational jury to find that the defendant is guilty of the lesser
offense but not guilty of the greater. Salinas v. State,
163 S.W.3d 734, 741 (Tex. Crim. App. 2005); Rousseau v. State,
855 S.W.2d 666, 672-73 (Tex. Crim. App.), cert. denied,
510 U.S. 919 (1993). The evidence must be evaluated in the context
of the entire record, and the reviewing court may not consider
whether the evidence is credible, controverted, or in conflict
with other evidence. Moore v. State, 969 S.W.2d 4, 8 (Tex.
Crim. App. 1998); Rousseau, 855 S.W.2d at 672. Any
evidence that the defendant is guilty only of the lesser-included
offense is sufficient to entitle the defendant to a jury charge on
the lesser-included offense. Id. However, the evidence
must establish the lesser-included offense as a valid rational
alternative to the charged offense. Wesbrook v. State, 29
S.W.3d 103, 113-14 (Tex. Crim. App. 2000), cert. denied,
532 U.S. 944 (2001); Arevalo v. State, 943 S.W.2d 887,
889 (Tex. Crim. App. 1997).
concedes that robbery is a lesser-included offense of the instant
capital murder. Therefore, the first prong is met. We must next
determine whether there is some evidence from which a rational
jury could acquit the defendant of the greater offense while
convicting him of the lesser-included offense. Salinas,
163 S.W.3d at 741.
appellant, his own written statement is sufficient to support the
lesser-included instruction on robbery. In his statement,
appellant claimed that, "All we wanted to do is get a little money
and go about our business." However, this statement must be
evaluated in the context of the entire record. Moore, 969
S.W.2d at 8; Rousseau, 855 S.W.2d at 672. Even if the
jury had believed appellant's statement in its entirety, it still
would not have entitled him to a lesser-included charge of robbery.
Appellant was indicted as a party or co-conspirator to the capital
murder. Tex. Penal Code §§ 7.02(a) and (b). Under these
circumstances, appellant was criminally responsible for his co-defendant's
actions, and because a murder occurred, appellant could also be
held to answer for that crime. Thus, the jury could not rationally
have acquitted appellant of capital murder and convicted him only
of robbery. The trial court did not abuse its discretion in
refusing to give the lesser-included offense instruction. Points
of error seventeen and eighteen are overruled.
In points of
error nineteen through twenty-one, appellant asserts that the
trial court abused its discretion in overruling his motion for
mistrial based upon the prosecutor's improper comment on his
failure to testify. Specifically, appellant complains about the
PROSECUTOR:] I want to talk about the people you heard from. We're
talking about Juan [Vargas] and James [Luedtke] through this
entire deal. I used his first name, because, in this case, we have
little brothers involved, you know, Steven Gongora, you know,
Pablo Vargas. I'm using first names to keep everybody clear.
Who did you
expect us to bring to you? There's six people inside that van.
When you look at it, here it is. Who would you expect for us to
give to you to establish who the shooter is? Are you going to be
satisfied in a case with gang members just looking at one person,
even though he's telling you the exact truth, no matter what? Even
if the time that he first told this story, he told the truth - he
told the truth about someone he's scared to death of - this is
James Luedtke. He had nothing against him. He had no crime pending.
He had no reason to hide the truth. He had no reason to talk to us,
but he told us the truth.
to people inside there. Who else would you want to hear from,
though? The shooter? We're not going to talk to that person. We're
not going to make a deal with that person. This person deserves
what they get. This person right here -
COUNSEL:] Your Honor, could the record reflect he's pointing at
the Defendant's name on the chart - I can't see the Defense
exhibit number - as he was making the statement?
PROSECUTOR:] Nelson Gongora, the shooter. That's the person on
trial. That's the person who deserves to be found guilty of
we go ahead and talk to? Who should we go ahead and present to you?
Should we talk to the shooter? Should we talk to -
COUNSEL:] Your Honor, I'm going to object. That's a comment on the
failure to testify.
PROSECUTOR:] Let me make that clear. I don't mean talk to the
shooter. What I mean is this. Who -
counsel then asked for a ruling on his objection and the trial
court sustained it. The trial court then granted counsel's request
for an instruction to the jury to disregard the comment but
overruled counsel's motion for a mistrial. The prosecutor
PROSECUTOR:] Let me say this. And I don't want to give the wrong
impression in any sort of way. We're asking, who do you expect to
take the stand? Who do you expect to hear from, right?
COUNSEL:] Your Honor, I object. That's a continuation of the
previous comments, and I, again, object to commenting on the
failure to testify.
again sustained appellant's objection to the prosecutor's comment,
granted his request to instruct the jury to disregard the comment,
and overruled his motion for a mistrial. The prosecutor continued:
PROSECUTOR:] I don't want - to make it clear, y'all, Defendant has
a Fifth Amendment right not to testify. And, of course - and I
don't want to give any wrong impression on that whatsoever. Okay?
What I want
to talk about is this. When you talk about the credibility of a
person, I wish you - and I made a - I made a big mistake there.
I'll make it very clear. I'm not talking about, do you want to
hear from him, because you can't do that.
COUNSEL:] Your Honor, again, I'm going to object. It's on the same
continuing subject matter. We object to comment on the failure . .
. to testify.
As to that particular statement, overruled.
PROSECUTOR:] Let me back up and tell you this. Let me define it by
the roles in the car. That's what I'm trying to get at. Okay?
The roles in
the car are this. You have a person inside the car who is the
shooter. You have a person inside the car who got out with the
shooter. You have a person inside the car who was guilty - or,
actually, may have participated in another shooting later that
night. You have a person inside the car who is just sitting there
who is present. And then you have a person inside the car who is
the Defendant's brother, right? Where is that person? We know the
person was there. They could have brought that person, but you
never heard from that person. And that's -
COUNSEL:] Your Honor, I'm going to object as to what that person
is and ask to approach the bench to make a record.
bench, on the record:)
COUNSEL:] I'll be brief.
objection is that we issued bench warrants and subpoenas. We asked
to have people brought in. They took the Fifth. And when he says "that
person," that diagram is still up there showing Albert [Orosco]
and everybody else, and that is an improper comment, and it's not
PROSECUTOR:] Judge, I'm trying to correct that right now to make
it better in terms of I'm just talking about the roles of the
All right. Sustain the objection, Counselor.
PROSECUTOR:] Excuse me. Let me make one comment for the record
- what [the prosecutor] was talking about there, so it's clear for
the record, was that he mentioned the name "Steven Gongora." He
mentioned the name, and he said, "The Defendant's brother." And he
said, "Where is that person?"
Gongora is the Defendant's brother, and his name is also on the
chart, and that's what he was talking about.
All right. You need to clear it up, Counselor.
PROSECUTOR:] I will.
counsel then asked if his objection was sustained. The trial court
sustained the objection and, on request of defense counsel,
instructed the jury to disregard the comment. The trial court then
overruled appellant's motion for mistrial. The prosecutor
PROSECUTOR:] Ladies and gentlemen, I want to wrap this up, because
that's what I'm talking about, the confusion in the case.
When I -
when you're talking about the people inside the car, this is it.
You have the person inside the van and, from all the testimony,
established one person is the shooter. You have a person in the
car who got out and could possibly have stopped the killing from
ever taking place. You have a person inside the car, by the
testimony, you all know was involved in another shooting later
that night. You have a person in the car who was related to the
Defendant. That is his brother. Right? Then you have a person
inside there who is just present. Okay?
* * *
the different roles of the persons inside the car. You ask who -
you know, you hear from this case, and who should - you know, how
to determine the credibility. Who do you want to hear from? Who do
you expect to hear from? The person who wasn't involved at all,
that had nothing at all, just present during that deal? Of course,
you hear from that person.
considering and evaluating the credibility of the next person -
and that's who I'm talking about in talking about who you're going
to hear from. I'm talking about, when listening to Juan Vargas,
there's different people who played different roles. When you
consider the fact that we actually spoke to him, that's what I'm
talking about. I'm not talking about who would you want to hear
from, who would you expect us to call, but I meant to define it in
the terms of the roles of those involved in the case. Okay?
that are defined in this case are abundantly clear. When you look
at all the roles of those persons involved, the person in this
case who is, you know, least culpable, besides the person who
didn't do anything, is the driver, right?
I wanted you to consider. That's what I was trying to discuss
about the different roles and who you would expect to hear from or
expect us, you know, to be looking at. That was it. Just examine
look at all of this, the facts in the case are clear when you
establish who is the shooter. Determine the credibility regarding
what you heard. Determine the credibility by asking whether their
statements were consistent. The consistencies - consistencies
throughout this trial are abundantly clear.
look at this case, the fact is this. When Nelson Gongora got back
inside his car - excuse me - got back inside the van, was he
remorseful when he got back inside there? No. You heard from Juan
and James. When he got back inside there, the fact is, he wasn't
crying. The fact is, he was not remorseful. The fact is, he was
not yelling at someone, saying, "Why did you kill this person?"
You heard from them. The fact is, when he got back inside there,
he was bragging about what he did.
from James Luedtke what [appellant] said when he got out - got
inside that van. He said this. "I took his dreams. I took his
Well, he not
only took his dreams, he took the family's dreams. He took a
family's dreams. He took his brother's dreams. He took his
children's dreams. Took his wife's dreams. He took all of Delfino
Sierra's family's dreams.
prosecutor's comment amounts to a comment on a defendant's failure
to testify only if the prosecutor manifestly intends the comment
to be, or the comment is of such character that a typical jury
would naturally and necessarily take it to be, a comment on the
defendant's failure to testify. Wead v. State, 129 S.W.3d
126, 130 (Tex. Crim. App. 2004). It is not sufficient that the
comment might be construed as an implied or indirect allusion to
the defendant's failure to testify. Id.
in context, the complained-of comments appear to be the
prosecutor's attempt to comment on appellant's failure to produce
witnesses other than appellant, which is a permissible area of
comment. See Jackson v. State, 17 S.W.3d 664, 674 (Tex.
Crim. App. 2000). Nonetheless, the prosecutor's actual comments
tended to be inartful and often confusing, leading the trial judge
to sustain appellant's objections to the remarks and to instruct
the jury to disregard them. However, the court did not abuse its
discretion in thereafter overruling appellant's various motions
for mistrial on this issue. On this record, the prosecutor's
comments were not so blatant that they rendered the instructions
to disregard ineffective. Thus, the judge reasonably concluded
that the instructions to disregard effectively removed any
prejudice caused by the prosecutor's comments. See Moore v.
State, 999 S.W.2d 385, 405-06 (Tex. Crim. App. 1999),
cert. denied, 530 U.S. 1216 (2000). Points of error nineteen
through twenty-one are overruled.
twenty-second point of error, appellant complains that the trial
court abused its discretion in overruling his motion for mistrial
because of the prosecutor's improper argument at the punishment
phase of trial. During argument, the prosecutor reviewed with the
jury evidence of other crimes appellant had committed. In
reviewing the evidence of an assault appellant committed within
three months of becoming an adult, the prosecutor reminded the
jury that the surviving victim had not been shown a photo spread
in the case and the wrong person, Pablo Vargas, had been charged
with the crime. When the victim came to court, she saw the person
charged and stated that he was not the person who committed the
crime. The prosecutor then made the following statements of which
appellant now complains:
PROSECUTOR:] In this case, the criminal justice system somewhat
failed [the victim] Amy Arreola, and y'all can resolve this.
Something kind of unique in that case happened. They didn't show
the victim a photo spread. No one was shown a photo spread in that
case. Sure enough, when she went to court, when the person who was
supposedly charged with this offense went to court, Amy looked at
this person and said, "That's not the person who did it."
That's why [co-counsel]
offered these plea papers here. Y'all heard, once the victim went
to court out at juvenile, Amy, she looked at the person who was
willing to accept the guilt for this - remember, that was Pablo
Vargas. And you heard from Maria Almendarez [a witness who
identified appellant as the actual perpetrator]. Why would
[Vargas] do that? Frankly, because having to rat out [appellant]
has more repercussions than simply accepting the guilt.
added). Appellant then objected that this argument was outside of
the record, and the trial court sustained the objection. The court
thereafter granted appellant's request that the jury be instructed
to disregard the comment, but denied appellant's motion for
assuming that the prosecutor's comment was improper, it was not so
blatant that it rendered the instruction to disregard ineffective.
Thus, the judge reasonably concluded that the instruction to
disregard effectively removed any possible prejudice caused by the
prosecutor's comment. See Moore, 999 S.W.2d at 405-06.
Point of error twenty-two is overruled.
CONSTITUTIONALITY AND RELATED ISSUES
fourth through ninth points of error, appellant claims that the
mitigation question submitted to the jury pursuant to Article
37.071, section 2(e), is unconstitutional, and that he was denied
his right to due process and to a jury trial because the court
refused to instruct the jury that the State had the burden to
prove beyond a reasonable doubt that there was insufficient
mitigating evidence to support a life sentence. Appellant relies
upon the United States Supreme Court's opinions in Ring,
536 U.S. 584, Apprendi, 530 U.S. 466, and their progeny
to support his argument. We have previously rejected such claims
and appellant has given us no reason to revisit the issue here.
See Perry v. State, 158 S.W.3d 438, 446-47 (Tex. Crim.
App. 2004), cert. denied, 126 S.Ct. 416 (2005).
Appellant's fourth through ninth points of error are overruled.
In his tenth
through twelfth points of error, appellant claims that the Texas
capital- sentencing scheme is unconstitutional, and that he was
denied due process and his right to a jury trial because the court
refused to define "probability" for the jury as that term is used
in the future-dangerousness punishment question. See
Article 37.071, § 2(b)(1). This Court has repeatedly held that
failing to define the term "probability" does not render the death-penalty
statute unconstitutional. Escamilla v. State, 143 S.W.3d
814, 828 (Tex. Crim. App. 2004), cert. denied, 125 S.Ct.
1697 (2005). Points ten through twelve are overruled.
asserts in his thirteenth point of error that he was denied his
Texas death penalty scheme diminishes the burden placed upon the
State of Texas to establish an actor's guilt of an intentional
capital murder on evidence amounting to only mere anticipation of
the act of [sic] although the actor's [sic] neither intended the
result nor the same flowed from his own intentional conduct so
that the Texas death penalty scheme is unconstitutional.
his point of error, appellant refers to both the conviction of a
defendant and the process of sentencing-two different phases of
trial to which slightly different laws can apply. Thus,
appellant's point as phrased is confusing. Nonetheless, we
interpret appellant's point to be a challenge to the
constitutionality of what has come to be known as the "anti-parties"
charge of Article 37.071, section 2(b)(2), because of his citation
to the United States Supreme Court cases of Enmund v. Florida,
458 U.S. 782 (1982) and Tison v. Arizona, 481 U.S. 137
(1987), to support his claim.
Enmund and Tison were concerned with the
implementation of the death penalty on defendants who were not
proven to have an intent to kill. In Enmund, the Supreme
Court held that the Eighth Amendment of the United States
Constitution proscribes the execution of an individual who, albeit
acting in the commission of a crime with others, does not himself
intend that murder be committed and participates in only an
attenuated capacity. Enmund, 458 U.S. at 790-91; see
also Lawton v. State, 913 S.W.2d 542, 555 (Tex. Crim. App.
1995), cert. denied, 519 U.S. 826 (1996). In Tison,
the Supreme Court clarified Enmund and held that the
federal constitution does not proscribe the execution of a major
participant in an offense who possesses "reckless indifference"
towards a murder committed by parties acting with him in a crime.
481 U.S. at 158; Lawton, 913 S.W.2d at 555.
testimony in the instant case showed that appellant himself exited
the van and shot the victim. Thus, he was a major participant in
an offense who possessed "reckless indifference" towards the
murder. Considering the evidence, the fact that the jury was
authorized by the charge to convict appellant as a party does not
make Article 37.071, section 2(b)(2) unconstitutional as applied
to appellant in this case. See Cantu v. State, 939 S.W.2d
627, 644 (Tex. Crim. App. 1996) (holding that in reviewing the
constitutionality of a statute, we view the statute as applied to
appellant only). Appellant's thirteenth point of error is
twenty-third point of error, appellant asserts that the "10/12"
rule of Article 37.071 violates the Constitution. In his twenty-fifth
point, appellant asserts that the death-penalty scheme is
unconstitutional "because of the impossibility of simultaneously
restricting the jury's discretion to impose the death penalty
while also allowing the jury unlimited discretion to consider all
evidence militating against imposition of the death penalty." This
Court has previously considered and rejected these claims, and
appellant has given us no reason to reconsider them here.
Escamilla, 143 S.W.3d at 828. Appellant's twenty-third and
twenty-fifth points of error are overruled.
twenty-fourth point, appellant asserts that he was denied due
process by this Court's refusal to review the sufficiency of the
mitigation evidence. In his related point of error twenty-six,
appellant asserts that there is sufficient evidence of mitigating
circumstances to require that appellant's death sentence be set
aside and reformed to reflect a sentence of life in prison.
Appellant correctly states that we do not review the sufficiency
of the mitigation evidence. See Green v. State, 934 S.W.2d
92, 106-07 (Tex. Crim. App. 1996), cert. denied, 520 U.S.
1200 (1997). We have also held that the failure to conduct such a
review does not violate an appellant's constitutional rights.
Id. Appellant gives us no reason to reconsider that holding.
Points of error twenty-four and twenty-six are overruled.
asserts in his twenty-seventh point of error that the cumulative
effect of the above-enumerated constitutional violations denied
him due process of law. Because appellant has not shown any
constitutional violations, there can be no cumulative effect.
Escamilla, 143 S.W.3d at 829. Point of error twenty-seven is
the judgment of the trial court.
February 1, 2006