CourtListener 10716606

Testo completo

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-77,103

OTIS TYRONE McKANE, Appellant

THE STATE OF TEXAS

ON DIRECT APPEAL FROM CAUSE NO. 2017CR1505
IN THE 379TH DISTRICT COURT
BEXAR COUNTY

MCCLURE, J., delivered the opinion of Court in which SCHENCK, P.J.,
RICHARDSON, NEWELL, KEEL, WALKER, FINLEY and PARKER, J.J., joined. YEARY,
J., concurs as to part III and otherwise joined.

OPINION

In August 2021, a jury convicted Appellant, Otis Tyrone McKane, of capital

murder for intentionally or knowingly causing the death of a peace officer who was

acting in the lawful discharge of an official duty. See TEX. PENAL CODE § 19.03(a)(1).

Based on the jury’s answers to the special issues set forth in Texas Code of Criminal

Procedure Article 37.071, Sections 2(b) and 2(e), the trial court sentenced Appellant to
MCKANE — 2

death. See TEX. CODE CRIM. PROC. art. 37.071 § 2(g).1 Direct appeal to this Court is

automatic. Art. 37.071 § 2(h). Appellant raises nine points of error. We affirm the trial

court’s judgment of conviction and sentence of death.

On November 20, 2016, around 7:40 a.m., Kevin Wilkinson was working the front

desk at San Antonio Police Department (SAPD) headquarters when Appellant came in to

report a “visitation violation” related to a child custody issue. Wilkinson called for an

officer to come take a report, but no one answered the phone. Wilkinson offered to call an

officer in from the streets to take the report, but Appellant said “never mind” and walked

off. Because he thought the encounter was unusual, Wilkinson set the security cameras to

follow Appellant as he left the building and drove away in his vehicle.

Around 11:30 a.m. that morning, Appellant drove back to police headquarters and

circled the block. At that time, SAPD Detective Benjamin Macroni was sitting in a patrol

car in front of the building writing a traffic ticket. Appellant pulled up behind Macroni’s

patrol car, got out of his vehicle, jogged up to Macroni, and shot him in the head.

Appellant ran back to his vehicle and drove off. Macroni died within the hour.

Police obtained a warrant to arrest Appellant for capital murder and SAPD SWAT

team officers arrested Appellant around 5:00 p.m. the next day.

I. MOTION TO SUPPRESS APPELLANT’S STATEMENTS

In his first four points of error, Appellant claims that the trial court erred in

denying his motions to suppress various statements he made following his arrest.

Appellant filed a pretrial motion for a hearing on the voluntariness and admissibility of
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any statements. See Jackson v. Denno, 378 U.S. 368 (1964) (holding criminal defendant

is entitled to fair determination of voluntariness of his confession outside presence of

jury). The trial court held a hearing and issued findings of fact and conclusions of law.

See Art. 38.22 § 6.

Members of the SAPD SWAT team testified at the hearing that due to the view

that Appellant was a “high-risk” suspect, the SWAT team was tasked with his arrest.

Officer Daniel Elborne testified that the SWAT team decided to deploy a “diversionary

device” in apprehending Appellant who had been located driving a vehicle along an

interstate access road. He explained that such devices are used to distract the suspect,

giving officers a tactical advantage when approaching. He added that such a device “stays

in the general vicinity of where it lands, and after [a] second-and-a-half delay, you get a

very loud bang and a very bright flash.”

Elborne testified that after stopping and boxing in Appellant’s vehicle, they

deployed the diversionary device. Officers instructed Appellant to put his hands up to his

face, which he did. Elborne testified that he reached into the vehicle and secured one of

Appellant’s hands, unlatched the seat belt, removed Appellant from the vehicle, and

placed him face down on the ground where officers handcuffed him. Officers conducted a

quick pat-down search for weapons, then moved him against the hood of a patrol vehicle

for a more thorough pat-down before placing him in the back of a patrol car. Elborne

denied slamming Appellant to the ground, saying that Appellant was compliant so there
MCKANE — 4

was no need to use force. He also denied that any officers fired shots and testified that he

did not hear any officers threaten to shoot Appellant.

Officer Chris Enfinger, another SWAT team member, expanded on Elborne’s

description of the arrest. Enfinger said four officers approached each side of the vehicle

and commanded the occupants to put their hands on their faces. 2 Enfinger confirmed that

Appellant was compliant and that there was no use of excessive force. He also testified

that none of the officers fired a shot or threatened to shoot Appellant. Enfinger and

another officer ultimately transported Appellant to the police station. Enfinger said that

there was no conversation between the officers and Appellant en route. Upon arrival at

the station, Enfinger took Appellant to an interview room and waited while a homicide

detective interviewed Appellant. After the interview, Enfinger and another officer

escorted Appellant back to a patrol vehicle to drive him to a detention center where he

would be booked and appear before a magistrate. As they left the building, Appellant

made statements to members of the media who were outside. A clip of this exchange was

admitted into evidence and played. Enfinger testified that the ride to the detention center

was silent, but that as they walked Appellant into the center, Appellant made several

comments: “I’m glad that I shot him,” “you can’t judge me,” “it felt good to do what I

did,” and “I finally got someone to listen.” Enfinger said that Appellant did not make the

statements in response to anything asked or stated by the officers.

2
There was testimony that two other persons were in the vehicle, a woman in the front passenger
seat and a child in the back seat.
MCKANE — 5

Parker Morris testified that he was working as a detention guard at the

magistrate’s office when Appellant was brought in for booking. He asked Appellant four

required mental health questions, none of which Appellant responded to. However, while

Morris was searching Appellant and taking his book-in photo, Appellant stated under his

breath, but loud enough for Morris to hear, “it felt good to shoot him.” Morris said the

statement was not made in response to a question asked by Morris or anyone else at the

time.

Elroy Brown, a licensed clinical social worker, was working for University

Hospital at the Bexar County Jail as a mental health assessor and supervisor when

Appellant was referred to him for an assessment a couple of days after his arrest. Brown

testified that the purpose of such an assessment is to determine whether the inmate poses

a danger to themself or others, or if the inmate has a history of mental health issues.

Brown stated that he was not employed by law enforcement or working as their agent or

at their direction. Brown testified that during the course of the assessment, Appellant told

him about “his mindset at the time” of the offense and “why he did what he did,”

including that Appellant felt his actions were an attack on the system, not the individual:

The uniform. He said he shot an officer. Or I may have asked him why
did he shoot the officer, and didn’t deny [it], but he did mention that,
you know, at the time it was just the uniform really that he was after.
And, you know, basically, you know, I didn’t know him, I didn’t - - I
mean I feel bad for his family, I feel bad for him, but I just felt I wasn’t
being heard. He mentioned about his custody with his child, that every
time he would not pay child support, that, you know, he would have the
threat of going to jail . . . . [H]e said he was just . . . targeting the system
with that, you know, he just seen [sic] the uniform and it was just kind
of a random choice of an officer in uniform.
MCKANE — 6

Finally, SAPD homicide detective Mark Duke testified that he was the lead

detective on the case and interviewed Appellant at headquarters after his arrest. The

interview was video-recorded and lasted around two hours. The recording was admitted

as State’s Exhibit No. 1 for purposes of the hearing. Duke testified that he removed his

weapon and badge before entering the interview room in order to be less intimidating. He

informed Appellant of his rights, and Appellant stated that he understood them. Appellant

began to complain to Duke that he was mistreated during his arrest, so Duke brought in

Deputy Chief MacKay to listen to Appellant’s complaints. Appellant told Duke and

MacKay that the officers who arrested him did not read him his rights, and that he was

upset that he had been forced to the ground and onto the hood of a vehicle. He also

claimed that he thought he had been fired at by officers. MacKay assured Appellant that

his complaints had been heard and would be considered. MacKay also verified with

Appellant that he had been read his rights by Duke and understood them. MacKay left the

room and Duke resumed the interview. Eventually, Appellant asked if he had been

charged with anything. Duke told him that he had not been formally charged, but that

they had a warrant for his arrest for capital murder. Duke testified that after hearing this,

Appellant admitted to shooting Macroni. Appellant said he committed the shooting to

“avenge society for what they have done to him.” Duke said that Appellant told him that

he wanted the police department “to feel the burn that he felt in his heart.” Appellant

further said he lashed out and shot the first officer he saw.
MCKANE — 7

Appellant argued at the hearing that his statements to Duke were involuntary as a

result of being placed in fear and mistreated during his arrest and being misled to believe

that the police would investigate his complaints. Appellant also argued that although

Duke read him his rights, he did not ask Appellant if he was voluntarily waiving them.

The trial court rejected Appellant’s claims and concluded that Appellant’s statements to

Duke were freely and voluntarily made. It found that whatever promises were made by

Duke were not of such an influential nature as to cause Appellant to speak untruthfully or

involuntarily. The court also found that there was no overreaching or coercive conduct by

the arresting officers that caused Appellant’s statements to be involuntary, that Duke

gave Appellant proper warnings, that Appellant understood them, and that the entire

interview was recorded.

Appellant also argued that evidence of the other three instances in which he made

statements was not admissible because he was not read his Miranda warnings before

making those statements. See Miranda v. Arizona, 384 U.S. 436 (1966). The trial court

found that the statements overheard by Enfinger and Morris were freely and voluntarily

made and were not the result of custodial interrogation. Regarding Appellant’s statements

to Brown, the trial court found that Brown was not acting as a law enforcement agent

when he was talking with Appellant; as such, Miranda warnings were not required

because the statements were not the result of custodial interrogation. The court ruled that

all of the statements were admissible.
MCKANE — 8

In his first point of error, Appellant claims the trial court erred to deny his motion

to suppress the statements he made to Detective Duke. He contends that under the totality

of the circumstances, he did not knowingly, intelligently, and voluntarily waive his rights.

See Moran v. Burbine, 475 U.S. 412 (1986) (to determine if accused knowingly,

intelligently, and voluntarily waived Miranda rights, reviewing court looks at totality of

circumstances to determine if waiver was free and deliberate and not caused by

intimidation, coercion, or deception). Appellant contends that he was mistreated during

his arrest. He says he was forced to the ground, slammed onto the hood of a car, and was

shot at by police. He claims that twelve guns were pointed at him, that he was fired at by

a shotgun, and that he thought he was going to die. He complains that he remained in

handcuffs while waiting in the interrogation room for over an hour before Duke entered

and then was interrogated by Duke for over two hours. He says Duke appeared to take his

complaints about the arrest seriously and said he would investigate them, which led

Appellant to believe the police would help him. Duke never asked Appellant if he waived

his rights. Appellant maintains that the totality of these circumstances led to a waiver of

his rights that was not knowing, intelligent, and voluntary.

The State bears the burden of proving a knowing, intelligent, and voluntary waiver

by a preponderance of the evidence. Joseph v. State, 309 S.W.3d 20, 24 (Tex. Crim. App.

2010). A voluntary waiver is “the product of a free and deliberate choice rather than

intimidation, coercion, and deception.” Id. at 25 (quoting Moran, 475 U.S. at 421). A

waiver is knowing and intelligent when “made with full awareness of both the nature of
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the right being abandoned and the consequences of the decision to abandon it.” Id. A trial

court may infer a waiver from an interrogation suspect’s words and actions. Id. at 24. In

determining whether a waiver was given freely and voluntarily, a trial court considers the

totality of the circumstances. Delao v. State, 235 S.W.3d 235, 239 (Tex. Crim. App.

2007) (noting well-established Texas law that confessions are evaluated with totality of

circumstances standard).

We conclude that Appellant’s claim has no merit. Given the nature of Appellant’s

crime— the sudden and unprovoked shooting of a police officer in public— his arrest

was handled in an appropriate manner without the use of unnecessary force. Police had

no way to know Appellant’s motivation in shooting Macroni, his intentions towards other

officers, or whether he still had a weapon. The SWAT team’s use of the diversionary

device allowed the officers some cover in approaching Appellant’s vehicle. Although

Duke testified that the noise caused by the device probably accounted for Appellant’s

belief that he was being fired at, there is no evidence that the device injured Appellant.

Further, Duke testified at the hearing that Appellant did not claim to be injured from

anything that occurred during the arrest. Officers who were at the scene, found credible

by the trial court, testified that Appellant was compliant and that they did not use

excessive force in removing him from his vehicle and patting him down. They

consistently testified that none of the officers fired shots or threatened to shoot Appellant.

The officers’ conduct in carrying out Appellant’s arrest was restrained and appropriate; it

did not create or contribute to an atmosphere of coercion or intimidation in Appellant’s
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interview several hours later. Cf. Berry v. State, 582 S.W.2d 463, 464-65 (Tex. Crim.

App. 1979) (threats by arresting officer to “blow [the appellant’s] head off” and warnings

that the appellant would be beaten in prison did not render confession involuntary where

the appellant was not threatened or abused by officers who transported him or by officer

who took his confession an hour and a half later).

Further, Appellant’s continued detention in handcuffs during the police interview

was reasonable given the nature of the crime that had occurred. 3 Duke’s approach was

respectful and calm. He gave Appellant his glasses and got him some water with a straw.

Duke was not wearing his weapon. Duke’s and MacKay’s statements about looking into

Appellant’s claims regarding his arrest were made in an effort to establish rapport and a

sense of understanding toward Appellant. Any indication by the officers that they would

investigate the circumstances surrounding Appellant’s arrest was not tied to receipt of a

confession, nor did the officers create a false hope that Appellant would receive a lighter

sentence or a reduced charge if his arrest was somehow determined to be problematic.

Any expressions of concern by the officers about Appellant’s complaints were not the

sort of alleged promises or misrepresentations that operated to overbear Appellant’s will

and bring about a confession that was not freely given. See Green v. State, 934 S.W.2d

92, 99-100 (Tex. Crim. App. 1996) (alleged misrepresentation must be viewed in the

3
Although Appellant only complains about being handcuffed in the interview room while
waiting for Duke, the video reflects that Appellant remained handcuffed throughout his interview
with Duke.
MCKANE — 11

context of the totality of the circumstances and “[t]he focus is on whether the behavior of

the State’s law enforcement officials was such as to overbear the will of the accused and

bring about a confession not freely determined”).

Finally, Appellant complains that Duke did not ask him whether he was waiving

his rights. But an express waiver is not required. See Joseph, 309 S.W.3d at 24. Waiver

can be inferred from the actions and words of the person interrogated. Id. Here, Appellant

stated to Duke and again to MacKay that he understood his rights. He engaged in the

interview in a conversational manner. Before Appellant confessed, Duke told him that he

was arrested for capital murder. It can be inferred from these circumstances that

Appellant waived his rights.

The totality of the circumstances surrounding Appellant’s arrest and interrogation,

including the police officers’ conduct at the scene of the arrest and during the

interrogation, did not by any stretch approach a level of coercion or intimidation that

would overcome Appellant’s will so as to undermine the reliability of his confession and

render it involuntary. We overrule point of error one.

In his second point of error, Appellant claims that the trial court erred by failing to

suppress statements he made to Elroy Brown. As set out above, Appellant was referred to

Brown a day or two after his arrest for a mental health assessment. During the

assessment, Appellant told Brown that in shooting the officer, he was attacking a system

that he felt had personally wronged him, not attacking the officer personally. The trial

court ruled the statements admissible upon finding that Brown was not operating as law
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enforcement and therefore the statements were not made in the context of custodial

interrogation.

Appellant argues that Brown was, in fact, acting as a State agent and therefore

should have advised Appellant of his Miranda rights before questioning him. Even

assuming, arguendo, that Brown was acting as a State agent and the statements Appellant

made to him in the absence of Miranda warnings should not have been admitted, any

error in admitting them was harmless beyond a reasonable doubt on this record. See

Chapman v. California, 386 U.S. 18, 24 (1967); Beck v. State, 712 S.W.2d 745, 747 (Tex.

Crim. App. 1986). Appellant made statements of similar substance to Duke during his

interrogation. Appellant told Duke that the shooting was to avenge societal wrongs

Appellant felt he had suffered.

In addition, the evidence of Appellant’s guilt was largely uncontested, and

Appellant’s irrationally vengeful motivation was reflected elsewhere in the evidence. The

evidence included Appellant’s pre-shooting visit to headquarters about his custody

situation. Almost four hours later, Appellant shot Macroni in what appeared to be an

unprovoked and random act of violence against law enforcement. Wilkinson identified

Appellant as the person who entered the lobby with a custody complaint the morning of

the shooting. Multiple eyewitnesses identified Appellant as the shooter. Appellant

confessed to the murder, explaining that he wanted to avenge society for his own

perceived suffering. Any possible error in the admission of Brown’s testimony about
MCKANE — 13

Appellant’s statements to him regarding the motivation behind his actions was harmless

beyond a reasonable doubt. We overrule point of error two.

In point of error three, Appellant claims the trial court erred in failing to suppress

statements he made to detention guard Parker Morris when Appellant was brought in for

booking. Appellant argues that Morris’s questioning during the booking process

amounted to a custodial interrogation. He points out that after Duke interrogated him for

over two hours, he was escorted to the detention center by multiple police and SWAT

officers at 9:00 p.m. Appellant describes Morris as “a uniformed detention officer at the

magistrate court at the detention center” who ordered Appellant to stand on a line to be

searched and who questioned Appellant as multiple officers stood about ten feet away.

Morris did not read Appellant his rights, and Appellant says his statement was made

during Morris’s questioning of him.

Morris testified that everyone who is booked in at the magistrate’s office is asked

the same four mental health questions as part of the administrative booking process. 4

When officers brought Appellant in, Morris asked him whether he had any contraband or

anything that would hurt Morris or another officer, then asked Appellant the four mental

health questions. Morris testified that according to his report, Appellant did not respond

to any of these questions. Morris testified that while he was in the process of searching

4
Morris testified that the four questions asked were: (1) Have you been diagnosed with having a
mental illness? (2) Have you ever or are you currently taking medication for mental illness? (3)
Have you ever tried to kill yourself? (4) Are you currently having thoughts of killing yourself?
MCKANE — 14

and photographing Appellant, Appellant said under his breath, but loud enough for

Morris to hear, “[I]t felt good to shoot him.” While Morris could not remember whether

Appellant made the statement before or after he asked the four administrative mental

health questions, Morris was unequivocal in saying that the statement was not made in

response to any of the questions Morris asked and that neither he nor anyone else was

talking to Appellant at the time.

“[V]olunteered statements are not barred by Miranda, even when the accused is in

custody.” Pugh v. State, 624 S.W.3d 565, 568 (Tex. Crim. App. 2021). According to

Morris’s testimony, no one was speaking to Appellant when he made the statement. The

trial court found Morris to be credible. In sum, Appellant fails to establish that the

admission of the statement he volunteered during the booking process violated his

Miranda rights. We overrule point of error three.

In his fourth point of error, Appellant claims the trial court erred by denying his

motion to suppress several statements he made in Officer Enfinger’s presence when they

arrived at the detention center for booking. In Appellant’s view, “the totality of the

circumstances objectively show that Enfinger did question the Appellant after the

Appellant ha[d] just been improperly questioned by Detective Duke.” To the contrary,

Enfinger testified that Appellant’s statements were not made in response to questions by

Enfinger and that no one was talking to Appellant when he made the statements. The trial

court found Enfinger’s testimony credible. Further, Appellant does not point to anything

in the record in support of his assertion. Appellant’s assertion is contrary to Enfinger’s
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testimony and to the trial court’s findings. Appellant fails to show that the statements he

volunteered to Enfinger were made within the context of custodial interrogation. See id.

We overrule point of error four.

II. BATSON CLAIM

In point of error five, Appellant claims that the trial court erred in failing to grant

his Batson challenge to the State’s striking of Venireperson No. 30. See Batson v.

Kentucky, 476 U.S. 79 (1986) (forbidding race-based peremptory strikes).

A claim that the State used a peremptory challenge based on race calls for a three-

step process. Snyder v. Louisiana, 552 U.S. 472, 476-77 (2008); see also Compton v.

State, 666 S.W.3d 685, 698 (Tex. Crim. App. 2023). First, the defendant must make a

prima facie showing that the State exercised a peremptory challenge on the basis of race.

Once a prima facie case of discrimination is shown, the State must provide race-neutral

reasons for its peremptory strikes. Finally, the trial judge must determine whether the

prosecutor’s stated reasons were the actual reasons or were a pretext for discrimination.

Flowers v. Mississippi, 588 U.S. 284, 303 (2019). The trial court’s determination is based

largely on its evaluation of the prosecutor’s credibility and demeanor. Id. at 302-03.

Accordingly, a reviewing court generally gives those findings great deference. Id. at 303.

A trial judge’s ruling on the issue of discriminatory intent must be upheld on appeal

unless it was “clearly erroneous.” Id.

Venireperson No. 30 testified that she had previously worked for her sister’s law

firm as a legal assistant. She said that her sister had litigated police brutality cases,
MCKANE — 16

including at least one lawsuit against SAPD. In her juror questionnaire, Venireperson No.

30 ranked police officers low on a scale for honesty and integrity, meaning “not very

honest.” She admitted to sharing multiple videos on social media related to alleged

mistreatment or injustices by police officers. She admitted to posting a video that

purportedly made fun of police officers by satirizing police officers’ orientation training.

She admitted to sharing an article advocating “defund the police” and said that she agreed

with much of the content. She reaffirmed that she did not believe police officers are very

honest, and admitted to having a bias against police officers, although she insisted that

these beliefs would not interfere with her ability to follow the law and the court’s

instructions. She testified that in order for her to make an affirmative finding on the first

special issue, the State would have to show that the defendant would commit another

murder. Finally, she affirmed to the prosecution that she had stated on her juror

questionnaire that she did not believe the death penalty should ever be imposed if there is

an alternative option of life without parole, although she agreed that she could follow the

law and listen to the evidence.

The State challenged Venireperson No. 30 for cause on three grounds: bias against

police officers, inability to follow the law on future dangerousness by requiring another

murder, and substantial impairment under the law based on her view that a death sentence

should not be imposed when there is an alternative sentencing option of life without

parole. The court denied the challenge for cause.
MCKANE — 17

The State subsequently used a peremptory strike against the venireperson, and

Appellant made a challenge based on Batson, stating for the record that Appellant and

Venireperson No. 30 are both “of African American descent.” The State responded by

proffering as its race-neutral reasons for the strike the same three reasons that it had cited

as support for its challenge for cause. 5 Appellant pointed out that the State had not

questioned other potential jurors about their social media postings. The State responded

that they had examined the social media accounts of all of the prospective jurors, but only

Venireperson No. 30 had postings reflecting anti-police sentiment. The trial court

overruled Appellant’s Batson challenge.

On appeal, Appellant argues that the State’s explanations for its strike of

Venireperson No. 30 were pretexts. Appellant points to the venireperson’s testimony that

she would not automatically disbelieve a police officer and she would judge an officer

based on the officer’s testimony, that she would follow the law, and would answer the

special issues based on the evidence. While this testimony by Venireperson No. 30 would

be relevant to whether or not she was challengeable for cause, it does not render the

State’s race-neutral explanations suspect. The State’s race-neutral explanations “need not

rise to the level justifying exercise of a challenge for cause.” Batson, 476 U.S. at 97. The

trial court’s ruling, upholding the State’s peremptory strike, was well within the zone of

reasonable disagreement given the venireperson’s expressed distrust of police officers,

5
When the State proffers race-neutral reasons for its peremptory strike, it renders step one of the
Batson analysis moot. Colone v. State, 573 S.W.3d 249, 263 (Tex. Crim. App. 2019).
MCKANE — 18

particularly in this case, which was likely to involve multiple police officers testifying for

the State. Appellant points to no venirepersons of a different race with similar views who

were not struck by the State. The State’s explanations for striking Venireperson No. 30

were race-neutral, and Appellant does not persuasively show that the State’s explanations

were pretextual. The trial court’s ruling that the State provided a legitimate reason for its

use of a peremptory strike was not clearly erroneous. We overrule point of error five.

III. PRESENCE OF ALTERNATE JURORS DURING DELIBERATIONS

In points of error six and seven, Appellant complains about the presence of two

alternate jurors in the jury room during deliberations in the guilt phase.

As the jury retired to deliberate on guilt, a bailiff asked the judge what to do about

the two alternates. At the judge’s direction, the bailiff pulled the alternates into the

hallway where the judge could talk to them. The judge told the alternates that they would

be allowed back into the jury room but would have to follow a few conditions. 6 After

agreeing to the judge’s conditions, the alternates returned to the jury room where they

remained throughout the deliberations on guilt. All of this was unknown to Appellant

until after the verdict at guilt.

After the guilty verdict but before the punishment proceedings began, the trial

judge held a hearing on the matter. He recounted for the record what he remembered of

his instructions to the alternates:

6
The record is not entirely clear, but it appears that the alternates briefly retired to the jury room
with the jurors before being pulled into the hallway to be admonished by the judge.
MCKANE — 19

The first is you’re not allowed to communicate in any way with anybody.
You’re not allowed to sit at the table with the other jurors. You need to sit
behind the table to where they cannot see you. Don’t communicate with
your voice, with any head shakes, any head nods, eye rolls, nothing. You in
no way are able to participate in this jury deliberation process.

The judge said that the alternates confirmed that they could follow his instructions.

The judge then called the alternates for questioning. Alternate M. Mejia testified as

follows:

THE COURT: Okay. So before the jury retired to the jury room to begin
the deliberations, do you recall me speaking to you?

ALTERNATE JUROR MEJIA: Yes.

THE COURT: Okay. Do you want to tell us exactly what you recall that I
told you?

ALTERNATE JUROR MEJIA: You told us not to have an opinion about
what was going on, like, what they were deliberating, just to sit back and
not say anything.

THE COURT: Okay. And so do you specifically recall me telling you that
you’re not allowed to sit at the table with the other jurors; in fact, sit behind
the table --

ALTERNATE JUROR MEJIA: Yes.

THE COURT: -- to where they can’t see you?

ALTERNATE JUROR MEJIA: Yes, and we did. We sat off to the side by
the bathroom.

THE COURT: Do you recall me telling you that you are unable to
communicate in any way, and that includes verbally, it includes with any
facial communications, eye rolls, head shakes, head nods, or anything like
that?

ALTERNATE JUROR MEJIA: Yes.
MCKANE — 20

THE COURT: Did you abide by those instructions?

ALTERNATE JUROR MEJIA: Yes, I did.

THE COURT: Did you in any way participate in the deliberations while
they were ongoing at that time?

ALTERNATE JUROR MEJIA: No, sir.

THE COURT: Did you in any way vote as it relates to whether you
believed the Defendant was guilty or not guilty?

ALTERNATE JUROR MEJIA: No, sir.

THE COURT: Did you speak in any way to the jurors at all while you were
in the jury room and the deliberations were going on?

ALTERNATE JUROR MEJIA: No, sir.

THE COURT: Did you communicate in any way whatsoever with the other
jurors while the deliberations were going on?

ALTERNATE JUROR MEJIA: No, sir.

THE COURT: Did you vote on the verdict of guilt at all?

ALTERNATE JUROR MEJIA: No.

THE COURT: Did any of the other jurors communicate with you in any
way or ask you any kind of questions during the deliberations?

ALTERNATE JUROR MEJIA: No.

Both parties declined to ask any further questions.

The judge similarly questioned the alternate V. Salazar-McNabb:

THE COURT: So do you recall specifically before the jurors assembled in
the jury room to begin the deliberations, I spoke to you and the other
alternate juror?

ALTERNATE JUROR SALAZAR-MCNABB: Yes. . . .
MCKANE — 21

THE COURT: All right, ma’am. And so as it relates to that, do you recall
what I told you before the jury started to deliberate?

ALTERNATE JUROR SALAZAR-MCNABB: Yes, I do.

THE COURT: Do you want to tell us what I told you?

ALTERNATE JUROR SALAZAR-MCNABB: Yes. You informed me that
I was an alternate along with the other alternate and you asked us not to
participate in any part of the deliberation, not to give any kind of facial
expression or any kind of hint to anybody else in the room. We just sat on
the side and, you know, let them do their deliberation.

THE COURT: So is what I told you, then, essentially the same thing? I’m
going to tell you what I recall, and you tell me if it’s the same thing that
you’re saying. So did I tell you that you’re not allowed to sit at the table
with the other 12 jurors?

ALTERNATE JUROR SALAZAR-MCNABB: Yes, that’s correct.

THE COURT: Did I tell you that you’re only allowed to sit behind them in
a way to where they could not see you?

ALTERNATE JUROR SALAZAR-MCNABB: Yes.

THE COURT: And that you’re not allowed to communicate in any way,
either verbally or in any nonverbal way of communication, like head
shakes, head nods, eye rolls, or anything like that?

ALTERNATE JUROR SALAZAR-MCNABB: Yes.

THE COURT: Did you abide by those instructions?

ALTERNATE JUROR SALAZAR-MCNABB: Yes, I did.

THE COURT: Did you in any way participate whatsoever in the
deliberations while they were ongoing?

ALTERNATE JUROR SALAZAR-MCNABB: No, I did not.
MCKANE — 22

THE COURT: Did you in any way vote as to any questions that were put to
the rest of the jurors?

ALTERNATE JUROR SALAZAR-MCNABB: No, I did not.

THE COURT: Did you speak in any way to the jurors at all while you were
in the jury room and while the deliberations were going on?

ALTERNATE JUROR SALAZAR-MCNABB: No, I did not.

THE COURT: Did you in any way vote or give any opinion or
communication regarding a verdict of guilty or not guilty?

ALTERNATE JUROR SALAZAR-MCNABB: No, I did not.

THE COURT: Did any of the other jurors communicate with you in any way?

ALTERNATE JUROR SALAZAR-MCNABB: They did ask, you know,
what the circumstance was, but we did tell them, you know, we’re not
supposed to talk to you about anything that’s going on. We’re not supposed
to give any kind of indication.

THE COURT: Okay. And is that -- that was while the deliberations had begun?

ALTERNATE JUROR SALAZAR-MCNABB: Yes. It was a quick
question before anything started.

THE COURT: Okay. And so that question was posed to you before the
deliberations started?

ALTERNATE JUROR SALAZAR-MCNABB: Yes.

THE COURT: And it was posed to you as in, what’s the situation with
you?

ALTERNATE JUROR SALAZAR-MCNABB: Exactly.

THE COURT: And then your response is what you already told us?

ALTERNATE JUROR SALAZAR-MCNABB: Yes.
MCKANE — 23

THE COURT: Subsequent to that communication, did any other juror
communicate with you in any way?

ALTERNATE JUROR SALAZAR-MCNABB: No.

THE COURT: All right. Does either side - - State, do you have any questions?

MR. MOREY: I don’t have any questions, Your Honor.

THE COURT: Defense?

MR. DE LA GARZA: No, Your Honor.

At the request of defense counsel, the judge also called the jury foreman who

confirmed what the alternates testified to:

THE COURT: Okay. And so when you went in to begin the deliberations
after I gave y’all the instructions yesterday afternoon, do you recall the
alternates that went in after y’all?

JURY FOREPERSON SMITH: Yes, sir.

THE COURT: Okay. And so you know specifically who the alternates were?

JURY FOREPERSON SMITH: Yes, sir.

THE COURT: And how is it that you are aware of that?

JURY FOREPERSON SMITH: We were -- the bailiff came in and notified
us who the alternates were and pulled them out of the room and then --
yeah.

THE COURT: Okay. And then they entered the room?

JURY FOREPERSON SMITH: And then they came back into the room,
yeah, yeah.

THE COURT: So as y’all did your deliberations, where did the alternates
sit?
MCKANE — 24

JURY FOREPERSON SMITH: Oh, they were in the back or in the -- so
you walk through the door straight. When you turn right, there were two
chairs that weren’t at the table, and they were on those side two chairs.

THE COURT: Okay. Then so the alternates then were sort of behind the
table where the rest of the jurors sat?

JURY FOREPERSON SMITH: Correct, sir.

THE COURT: Did the alternate jurors in any way participate in the
deliberations?