DELACRUZ, ISIDRO MIGUEL v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-77,079

ISIDRO MIGUEL DELACRUZ, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL FROM CAUSE NO. B-14-1134-SA
IN THE 119TH DISTRICT COURT
TOM GREEN COUNTY

MCCLURE, J., delivered the opinion for a unanimous Court.

OPINION

In April 2018, a jury convicted Appellant of capital murder for intentionally

or knowingly causing the death of an individual under ten years of age. TEX. PENAL

CODE § 19.03(a)(8). 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 death. See TEX. CODE CRIM. PROC. art. 37.071, § 2(g).
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Direct appeal to this Court is automatic. Id. § 2(h). Appellant raises twelve points of

error. We affirm the trial court’s judgment of conviction and sentence of death.

I. BACKGROUND

Appellant and Tanya Bermea had an “on again, off again” relationship that

was described at trial as turbulent and dysfunctional. On the night of September 1,

2014, Tanya put her five-year-old daughter, N.V., to bed. Tanya later received

several phone calls from a number she did not recognize, but she suspected the calls

were from Appellant. The two had argued a few hours earlier when Appellant did

not give Tanya money that he had promised her. In the early morning hours of

September 2, Tanya heard a noise in the back of the house, just outside of the

bathroom window, which was partially broken and patched with duct tape. Tanya

saw Appellant entering through the bathroom window. She ran out the front door,

leaving N.V. asleep in her bed.

Surveillance cameras mounted outside of a business across the street from

Tanya’s house captured Tanya after she left the house and headed down the street.

The security video was admitted into evidence and played for the jury during

Tanya’s testimony. The video shows Tanya passing by on the street and, about a

minute and a half later, Appellant following. Then, about four and a half minutes

after that, the video shows Appellant running back towards Tanya’s house.
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Tanya testified that after she fled the house, she called her mother, Jesusita

Bermea, and asked her to pick her up. Jesusita picked Tanya up within minutes and

they returned to the house. Tanya testified that when they got back to the house, the

front door was locked, but Appellant came out, knocked Jesusita to the ground, and

punched Tanya. Jesusita ran down the street and called the police. Dispatch received

Jesusita’s call at 2:30 a.m.

In the meantime, Tanya drove to Appellant’s parents’ house down the street

to try to persuade them to get Appellant out of Tanya’s house. Tanya returned to her

house six to eight minutes later, unsuccessful in recruiting their assistance. Tanya

testified that the front door was open when she got back, and she saw N.V. on the

living room floor with bloody paper towels on her neck. Appellant shoved Tanya

out the door and slammed her to the ground.

A neighbor testified to being awakened around 2:35 a.m. by a woman she later

recognized as Tanya banging on the front door of Tanya’s house and yelling to be

let in. She then saw Tanya wrestling with a man in the front yard. The neighbor

called 911.

Officer Marcus Rodriguez was the first officer to arrive at 2:37 a.m. The

security video captures his arrival about fifteen minutes after Tanya initially fled the

house and almost ten minutes after Appellant ran back to the house. Rodriguez found

N.V. lying on the floor with blood around her neck. Rodriguez asked Appellant what
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happened, and Appellant responded that “she slit her throat” and he “didn’t do

anything.” Other officers arrived and began attending to N.V., who was alive but

“barely breathing.” When Appellant became angry and violent with the officers

attending to N.V., he was handcuffed and placed in a patrol car. An ambulance and

paramedics arrived at 2:45 a.m. N.V. was transported to the hospital where doctors

pronounced her dead shortly after her arrival.

Officers found Appellant’s blood throughout Tanya’s house, including around

the bathroom window and sill, in the bathtub and sink, on walls, blinds, light

switches, doorknobs and doors, closet doors, counters, furniture, and floors. 1 The

bloody trail went into N.V.’s bedroom where her bedding was saturated with her

own blood. The wall by N.V.’s bed showed two “path[s]” of blood, one originating

from N.V. and the other from Appellant. Appellant was wet and bloody, as was the

kitchen sink. The blood in and around the kitchen sink was a mixture of Appellant’s

and N.V.’s blood. Officers followed a trail of blood from Tanya’s driveway across

1
There was a three to five inch laceration on the back of Appellant’s left arm. In his statement to
police, Appellant suggested that Tanya cut his arm with a knife. The paramedic who treated the
injury at the scene testified that the cut was smooth, not jagged, and was consistent with having
been caused by glass or by a knife. Detective Carlton Kolbe testified that when he was working on
the case, he made an inquiry to “the medical examiner” as to the likely cause of the cut to
Appellant’s arm, and received an email reply that the wound was more consistent with being
caused by a knife than by glass. It is not clear whether this was the same medical examiner who
conducted N.V.’s autopsy. However, the medical examiner who conducted N.V.’s autopsy
testified that the injury to Appellant’s arm could have been caused by a knife, a piece of glass, or
“anything sharp.” Appellant’s blood was found on the side of the house outside of the bathroom
window where he entered and on the floor below the window.
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the street to a field where they found a bloody knife. N.V.’s and Appellant’s DNA

were recovered from blood on the knife.

The medical evidence showed that N.V. died from two knife wounds to her

neck. One of the cuts penetrated (and almost severed) her jugular vein. The other cut

nearly reached the floor of her mouth. Bruising and a cut to N.V.’s chin suggested

that her head was positioned and held still as her throat was sliced. The medical

examiner testified that without medical intervention, N.V. would have died from her

injuries within three to seven minutes. With the application of immediate and

consistent pressure to the injuries, N.V. might have survived as long as fifteen to

twenty minutes.

After his arrest, Appellant gave a video-recorded statement to Detective

Carlton Kolbe, an excerpt of which was published to the jury. In the video statement,

Appellant said that he went to Tanya’s house and she let him in the front door. He

said that they had both been drinking and they argued in the living room. He was

about to leave but went into N.V.’s room to kiss her goodnight. He said, “I was just

going to give a hug and kiss to [N.V.] and the next thing I know I just felt something

sharp on my arm and back and the next thing I know there’s blood everywhere.” He

said Tanya then ran from the house and he tried to run after her, but returned to the

house “to check myself and see what happened.” He said he saw that he had a cut,

saw a knife and picked it up, and saw N.V. covered in blood. He carried N.V. to the
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living room where he tried to stop the bleeding with paper towels. When Tanya and

her mother came back and yelled at him, he told them “I didn’t do nothing.” He said

he pushed Tanya’s mother and slapped Tanya and threw the knife at her and asked

her “what the fuck is wrong with her.” He ran back inside to continue trying to stop

N.V.’s bleeding. Appellant said that people were blaming him, but he insisted that

he “didn’t do nothing.”

When Detective Kolbe reviewed the details of the story with Appellant, he

asked, “Are you saying Tanya grabbed that knife and cut you with it?” Appellant

responded, “I don’t know what she did, all I know is that there’s . . . it’s a knife on

[N.V.]’s bed, I’m bleeding. That’s when I turned on the light and I saw all of that.”

Appellant said he turned around and saw Tanya running from the house so he chased

her, but then went back to the house. He went into N.V.’s room, turned on the light,

and saw that “there was so much blood.”

Later, in an interview with a reporter while he was a jail, Appellant said that

he had told the police what had happened, that they did not believe him, that they

had the evidence, and that “it was all an accident.”

II. MENS REA DETERMINATION

The jury charge instructed the jury that in order to find Appellant guilty, it

must determine that he caused N.V.’s death intentionally or knowingly. Appellant

objected to the charge and requested separate verdict forms to specify whether the
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jury found that Appellant acted intentionally or acted knowingly in causing N.V.’s

death. The trial court overruled the objection and denied the request.

In his second point of error, Appellant claims that the trial court erred in

failing to require a jury determination, by separate verdict forms, on whether he acted

intentionally or knowingly in killing the child. He argues that this determination was

necessary because only a finding of intentional conduct will satisfy the “extreme

culpability” required for death eligibility. He contends that a “knowing” mens rea is

a constitutionally insufficient basis for imposing the death penalty. He reasons that

because “knowingly” is not the most serious mens rea under Texas law, it cannot be

characterized as “extreme.” Thus, he contends, by permitting a capital conviction

based on “knowing” conduct, Texas law fails to ensure that his punishment was

based upon a jury determination that he possessed the highest degree of culpability

under state law.

Appellant cites Kennedy v. Louisiana, 554 U.S. 407, 420 (2008), Roper v.

Simmons, 543 U.S. 551 (2005), and Atkins v. Virginia, 536 U.S. 304 (2002). In this

trio of cases, the Supreme Court of the United States recognized the principle that

“[c]apital punishment must be limited to those offenders who commit ‘a narrow

category of the most serious crimes’ and whose extreme culpability makes them ‘the

most deserving of execution.’” Roper, 543 U.S. at 568 (quoting Atkins, 536 U.S. at

319); see Kennedy, 554 U.S. at 420 (quoting same principle from Atkins). In Roper,
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the Court held that the death penalty cannot be imposed upon juvenile offenders. In

Atkins, the Court held that it cannot be imposed on intellectually-disabled

individuals. The Court reasoned that juvenile and intellectually-disabled offenders

had diminished personal culpability, rendering the death penalty disproportionate to

their crimes. Kennedy, 554 U.S. at 420. In Kennedy, the Court vacated a death

sentence for an offender who raped but did not kill a child, reasoning that the death

penalty was disproportionate to the crime which did not result, or was not intended

to result, in the child’s death. Kennedy, 554 U.S. at 421. None of these cases suggest

that a murder committed knowingly cannot support a death sentence.

Appellant acknowledges that a finding of intentionality is not an absolute

requirement for death eligibility under party liability cases such as Tison v. Arizona,

481 U.S. 137 (1987). In Tison, the defendants participated with others in a scheme

to break their father out of prison, but they were not the triggermen in four murders

that occurred in the course of carrying out the plan. The defendants challenged their

death sentences in part on the ground that they did not actually kill the victims and

did not specifically intend their deaths. Recognizing that “reckless indifference to

the value of human life may be every bit as shocking to the moral sense as an ‘intent

to kill,’” the Court upheld the death sentences. It reasoned that:

[T]he reckless disregard for human life implicit in knowingly engaging
in criminal activities known to carry a grave risk of death represents a
highly culpable mental state, a mental state that may be taken into
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account in making a capital sentencing judgment when that conduct
causes its natural, though also not inevitable, lethal result.

Tison, 481 U.S. at 157–58.

Appellant argues that since Tison was decided, there has been a growing

consensus against the execution of parties who neither killed nor intended to kill. He

uses a law review article as support for his statement that “more than thirty

jurisdictions have made legislative or judicial decisions disallowing the death

penalty for non-triggermen who lacked the intent to kill.” But Appellant is not in the

category of a non-triggerman party. He was the sole actor in the instant case; he

personally wielded the knife, stabbing five-year-old N.V. in the neck as she lay in

her bed.

Moreover, the mental state at issue in Tison—reckless disregard by engaging

in criminal activities known to carry a grave risk of death—is comparable to our

mental state of “reckless,” awareness of but conscious disregard of a substantial and

unjustifiable risk that the result (here, death) will occur. See TEX. PENAL CODE §

6.03(c). In Texas, such a killing is manslaughter. See id. at § 19.04. Texas law does

not allow for a capital conviction upon a mental state of recklessness but requires

the higher culpable mental state of at least “knowledge,” awareness that one’s

actions are reasonably certain to cause death. See id. at § 6.03(b). If, under Tison,

the “reckless” mental state of a non-triggerman party actor suffices as a “highly
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culpable mental state” supporting a death sentence, then surely the higher culpable

mental state of “knowledge” of a primary actor suffices as well.

None of the Supreme Court of the United States cases cited by Appellant hold

or suggest that the culpable mental state of “knowledge” is constitutionally

insufficient to support a death sentence. Appellant fails to show that there is a

growing consensus among jurisdictions disfavoring death sentences in cases similar

to his where the evidence supports a finding that the defendant was the sole actor in

causing the victim’s death. Appellant argues that a “knowing” mental state is not

sufficiently extreme to support death eligibility because it is not the most serious

mens rea under Texas law. But the United States Supreme Court has never stated

that only the highest mental state available under a state scheme would qualify as

the “extreme culpability” required for death in that state. Further, the Texas

Legislature has determined that, in some circumstances, a culpable mental state of

either “intentional” or “knowing” is sufficiently extreme to support a capital murder

conviction. TEX. PENAL CODE § 19.03(a).

Appellant also contends that he was entitled to separate jury verdict forms in

order to demonstrate that he received a unanimous verdict on intentional conduct.

A Texas jury must reach a unanimous verdict. Landrian v. State, 268 S.W.3d

532, 535 (Tex. Crim. App. 2008). This means that they must all agree that the

defendant committed one specific statutory crime, but it does not mean that they
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must be unanimous in finding that the defendant committed the crime in a specific

way. Id. at 536.

In Landrian, the defendant claimed that he was denied a unanimous jury

verdict because the charge allowed the jury to convict him of aggravated assault

without unanimously determining whether he (1) intentionally or knowingly caused

bodily injury or (2) recklessly caused serious bodily injury. Examining the relevant

statutory language, we explained that “[t]he precise act or nature of conduct in this

result-oriented offense is inconsequential.” Id. at 537. Rather, what mattered was

“that the conduct (whatever it may be) [was] done with the required culpability to

effect the result the Legislature has specified.” Id. (emphasis in original) (quoting

Alvarado v. State, 704 S.W.2d 36, 39 (Tex. Crim. App. 1985)). Addressing

unanimity in light of the statute’s three culpable mental states, we noted that there

was “no indication that the legislature intended for an ‘intentional’ bodily injury

assault to be a separate crime from a ‘knowing’ bodily injury assault or that both of

those differ from a ‘reckless’ bodily injury assault.” Id. at 537. We further observed

that all three culpable mental states were “strung together in a single phrase within

a single subsection” and all resulted in the same punishment; they were all

conceptually equivalent. Id.

Similarly, a finding of either intentional or knowing conduct will support a

conviction for capital murder. See TEX. PENAL CODE § 19.03(a)(8). The gravamen
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of the offense of capital murder is causing the death of a person. See Gardner v.

State, 306 S.W.3d 274, 302 (Tex. Crim. App. 2009) (recognizing that “the gravamen

of capital murder is intentionally (or knowingly) causing a death, plus any one of

various types of aggravating elements . . . so long as the same victim is alleged for

the predicate murder.”); see also Schroeder v. State, 123 S.W.3d 398, 400 (Tex.

Crim. App. 2003) (stating that “[m]urder is a ‘result of conduct’ offense, which

means that the culpable mental state relates to the result of the conduct, e.g., the

causing of the death.”). Knowingly causing the death of a child under ten and

intentionally causing the death of a child under ten both qualify as capital murder.

There is no unanimity problem if some jurors found that Appellant committed the

offense knowingly while others found that he did so intentionally, as they all found

that he committed the offense of capital murder. See Landrian, 268 S.W.3d at 537

(explaining that because proof of greater culpable mental state is also proof of any

lesser culpable mental state, “it would not matter, for example, if six members found

that the defendant intentionally killed his victim and six members found that he had

knowingly killed his victim.”).

We overrule Appellant’s second point of error.

III. LESSER-INCLUDED OFFENSES
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In his third point of error, Appellant contends that the trial court erred by

refusing his request to instruct the jury on the lesser-included offenses of

manslaughter and criminally negligent homicide.

As applicable here, Texas Code of Criminal Procedure article 37.09(3) defines

a lesser-included offense as one which “differs from the offense charged only in the

respect that a less culpable mental state suffices to establish its commission.” TEX.

CODE CRIM. PROC. art. 37.09(3). We use a two-step test to determine whether an

instruction on a lesser-included offense should be given. Hall v. State, 225 S.W.3d

524, 535 (Tex. Crim. App. 2007). First, we compare the statutory elements of the

alleged lesser offense with the statutory elements and descriptive allegations in the

indictment. Ortiz v. State, 623 S.W.3d 804, 806 (Tex. Crim. App. 2021) (citing

Ritherson v. State, 568 S.W.3d 667, 670–71 (Tex. Crim. App. 2018)). Second, we

ask whether “there is some evidence in the record that would permit a jury to

rationally find that, if the defendant is guilty, he is guilty only of the lesser-included

offense.” Id. (quoting Bullock v. State, 509 S.W.3d 921, 925 (Tex. Crim. App.

2016)). The State concedes that manslaughter and criminally negligent homicide are

lesser-included offenses of capital murder, resolving the first step. The only

question, then, is whether there is some evidence in the record that would permit a

jury to rationally find Appellant guilty only of manslaughter or criminally negligent

homicide.
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Manslaughter occurs when a person recklessly causes the death of another.

TEX. PENAL CODE § 19.04. A person acts recklessly with respect to the result of his

conduct “when he is aware of but consciously disregards a substantial and

unjustifiable risk that. . .the result will occur.” Id. at § 6.03(c). Criminally negligent

homicide occurs when a person causes the death of another by criminal negligence.

Id. at § 19.05. A person acts with criminal negligence with respect to the result of

his conduct “when he ought to be aware of a substantial and unjustifiable risk. . .that

the result with occur.” Id. at § 6.03(d). Thus, Appellant was entitled to an instruction

if there was some evidence in the record to permit a jury to rationally find that

Appellant engaged in conduct that caused N.V.’s death while being aware of but

consciously disregarding a substantial and unjustifiable risk that her death would

occur (manslaughter) or while he ought to have been aware of such a risk (criminally

negligent homicide).

In his brief, Appellant argues that evidence of recklessness or negligence was

raised in his statements to police:

His interview demonstrates that he had consumed many beers, was
aware that Tanya was volatile and angry, aware that there were sharp
knives in the house and aware that a sharp cut had just been inflicted on
his arm and that he had tussled with Tanya, pushing her and trying to
hold her back. [] While [Appellant’s] interview demonstrates that he
did not have [a] clear recollection of what precisely occurred when “all
that happened,” a rational jury could have concluded that he either was
aware of, but consciously disregarded, the risk that [N.V.] might get
hurt, or that he ought to have been so aware.
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He also points to his characterization of N.V.’s death as an “accident” and to

his statements that he and Tanya fought in the darkened house while intoxicated as

evidence raising the lesser included offenses.

Appellant does not identify what conduct he engaged in that resulted in N.V.’s

death or explain how the evidence he relies on had any bearing on conduct he

engaged in that resulted in N.V.’s death. And it is not obvious from the evidence

exactly what substantial and unjustifiable risk was present that he was aware of or

ought to have been aware of but disregarded when engaging in that conduct. These

facts—two people drinking too much and arguing in a darkened house—do not

present a substantial and unjustifiable risk that a third person will be stabbed in the

neck while sleeping in another room. Neither does the presence of a knife in a

kitchen drawer within the house present a substantial and unjustifiable risk that it

would be used to stab a child asleep in the house. Even Appellant’s claimed

awareness that Tanya had a knife and had cut him with it does not present some

evidence of a risk that Appellant’s conduct would result in N.V.’s death from that

knife. Nor does Appellant’s claim that Tanya was volatile and angry raise evidence

of a substantial and unjustifiable risk that Appellant’s conduct would result in N.V.’s

death. At the scene and in his statement to the police, Appellant suggested that Tanya

was solely responsible and that N.V.’s injuries were a surprise and a mystery to him.

His single unsupported comment to a reporter that “it was all an accident,” which
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does not identify what “it” was, does not amount to evidence showing that his

conduct resulted in N.V.’s death due to a substantial and unjustifiable risk of which

he was aware but disregarded or of which he should have been aware. The trial court

properly denied Appellant’s requested instructions on the lesser-included offenses.

We overrule point of error three.

IV. IMPEACHMENT EVIDENCE

During the punishment phase, Tanya testified about a November 2013

incident in which Appellant forced his way into her house, then beat and choked her

until she urinated on herself and lost consciousness. She said that when she regained

consciousness, she tried to leave with N.V. in her car, but Appellant had slashed her

tires. She testified that Appellant again grabbed her by the throat and threw her on

the ground, and she lost consciousness a second time, just as the police arrived.

Photographs of her injuries from this incident were admitted into evidence.

Tanya also testified about N.V.’s life. She said that N.V. had loved music,

singing, watching movies, and playing the guitar. She showed a photo of N.V.

hunting for Easter eggs with cousins and a photo of N.V.’s graduation from pre-

kindergarten. Tanya testified that, as a result of N.V.’s death, she was diagnosed

with PTSD and that she could barely work.

On cross-examination, Tanya testified that she had a son who moved out when

he was sixteen to live with her parents. She was uncertain whether he was now
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twenty-one or twenty-two. She stated that she had not spoken with her son in a year

and a half, and agreed that they did not have a good relationship. She admitted to an

October 2013 domestic violence incident with Appellant in which police listed

Appellant as the victim and Tanya as the aggressor. Tanya insisted that she only

struck Appellant in self-defense, but conceded that police did not believe her. She

further conceded that she had hit Appellant on other occasions, and that there was

“a history” of her hitting him, but she said it was always in self-defense. She also

agreed that there was “a history of the police not believing” her and that she and

Appellant had “been violent with each other in the past.”

Appellant also sought to question Tanya about two domestic violence

incidents between Tanya and other partners, one in 2008 and another in 2017, in

which police did not believe Tanya’s version of events, instead believing that she

was the aggressor. Appellant further sought to present evidence that Tanya had used

a knife and a belt against her partner in the presence of her son in the 2008 incident,

and had used the knife on herself in an effort to place the blame on her partner.

Finally, Appellant sought to present evidence of Tanya’s substance abuse at the time

of N.V.’s birth by questioning her about whether illegal substances were detected in

N.V.’s blood at birth, and about past interactions with Child Protective Services.

Appellant argued that the jury had been left with a false impression of Tanya. He

also argued that the evidence was relevant to rebut Tanya’s testimony that she was
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suffering from PTSD and anxiety as a result of N.V.’s murder, and to rebut the

picture Tanya had presented of N.V.’s childhood. Appellant made offers of proof

and argued that the evidence was admissible under the Fourteenth, Sixth, and Eighth

Amendments. The trial court ruled the evidence irrelevant and inadmissible. In his

fourth point of error, Appellant claims that the trial court erred in preventing him

from impeaching Tanya at the punishment phase with evidence of instances of her

past conduct, in violation of Texas law and the Sixth, Eighth, and Fourteenth

Amendments.

Texas Rule of Evidence 608(b) generally prohibits impeachment with

evidence of specific instances of conduct other than final convictions, but Appellant

argues that when a witness has created a false impression of character, then such

evidence is admissible to rebut that false impression. See King v. State, 773 S.W.2d

302, 303 (Tex. Crim. App. 1989). Otherwise inadmissible evidence may become

admissible when a party opens the door by creating a false impression with the jury,

inviting a response. Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim. App. 2009).

But the jury was not left with a false impression of Tanya’s character in light

of her direct examination as a whole and the cross-examination that was allowed.

Tanya admitted during guilt/innocence that she had been drinking and had marijuana

in her system on the night of the offense. Appellant’s punishment phase cross-

examination of Tanya showed that she contributed to the violence in her relationship
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with Appellant. She admitted that a violent incident with Appellant occurred a month

before the November 2013 incident in which police believed she was the aggressor.

She agreed that she had a history of hitting Appellant, that they had both been violent

with each other, and that police did not always believe her version of events. A

defense expert testified that in his opinion, Appellant and Tanya “had a toxic,

dysfunctional relationship that was tumultuous for quite some time, and they were

coming and going from both — both sides[,]” and that “[t]hey both had engaged [in]

and . . . perpetrated verbal and physical fights with each other.” Tanya’s punishment

phase cross-examination also revealed her estrangement from her son. Thus, the

evidence showed that there was violence on both sides of the relationship, that Tanya

did not have a good relationship with her son who left home of his own accord at

sixteen, and that on the night of the offense Tanya was drinking alcohol and using

marijuana while responsible for the five-year-old child. The absence of the requested

additional extrinsic evidence did not leave the jury with a false impression of

Tanya’s character.

Appellant argues that the trial court’s rulings violated the Fourteenth and Sixth

Amendments by preventing him from presenting a meaningful and complete defense

at sentencing and demonstrating that Tanya also bore some responsibility for what

happened. He relies on Green v. Georgia, 442 U.S. 95 (1979), to support his
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argument that he was not able to fully present a defense because the trial court

limited his cross-examination of Tanya.

Green and his codefendant were both indicted for the murder of the same

victim and were tried separately. At sentencing, Green tried to introduce the

testimony of a witness from his codefendant’s trial. This witness had testified that

the codefendant had confided to him that he had killed the victim, shooting her twice,

while Green was not present. The trial court excluded the testimony as inadmissible

hearsay. The State, arguing for a capital sentence, urged the jury to infer that Green

participated directly in the killing because the victim was shot twice. The Supreme

Court held that despite any violation of hearsay rules, excluding the testimony given

in the codefendant’s trial violated Green’s due process rights. Id. at 97. The Court

observed that the excluded testimony was “highly relevant to a critical issue” in

Green’s punishment trial and emphasized the reliability of the testimony,

considering that it was a statement against interest made to a close friend. In these

unique circumstances, the Court held that excluding the testimony deprived Green

of a fair punishment trial.

The instant case is not analogous. Here, the sought-after testimony concerned

the character of the victim’s mother, not a codefendant’s statement against penal

interest. And although Appellant says that Tanya “bore some responsibility for what

happened,” he provides no argument or evidence in support of that assertion.
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Appellant also contends that the trial court’s exclusion of the evidence about

Tanya’s past conduct deprived him of the constitutionally-required “individualized

sentencing” described in Lockhart v. Ohio, 438 U.S. 586, 604 (1978). He asserts that

Lockhart allows “the introduction of ‘any aspect of . . . the circumstances of the

offense that the defendant proffers as a basis for a sentence less than death.’”

Appellant’s Br. at 56 (quoting Lockhart, 438 U.S. at 604) (citing as support Woodson

v. North Carolina, 428 U.S. 280, 304 (1976); TEX. CODE CRIM. PROC. art. 37.071 §

2(e)(1)). But Appellant does not explain how evidence about Tanya’s character or

evidence related to Tanya’s past conduct with her son and other partners—or even

with Appellant on other occasions—illuminated “the circumstances of the offense”

(here, N.V.’s murder). Excluding evidence related to the victim’s mother’s character

and prior activities did not unconstitutionally infringe on Appellant’s right to

individualized sentencing.

The trial court acted well within its discretion by excluding the proffered

impeachment evidence related to Tanya’s past conduct. We overrule point of error

four.

V. CHALLENGES FOR CAUSE

In points of error one and five, Appellant complains that the trial court

erroneously granted one of the State’s challenges for cause and erroneously denied

a number of Appellant’s challenges for cause.
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A venire person is challengeable for cause if he has a bias or prejudice against

the law upon which either party is entitled to rely. Buntion v. State, 482 S.W.3d 58,

84 (Tex. Crim. App. 2016). The test is whether the bias or prejudice would

substantially impair the venire person’s ability to perform his duties in accordance

with the court’s instructions and the juror’s oath. Id. (citing Wainwright v. Witt, 469

U.S. 412 (1985)). The law must be explained to the venire person, and he must be

asked whether he can follow the law regardless of his personal views. Tracy v. State,

597 S.W.3d 502, 512 (Tex. Crim. App. 2020). The challenger bears the burden of

demonstrating the venire person’s impartiality and does not meet this burden until

he has shown that the venire person understood the law’s requirements and could

not overcome his prejudice well enough to follow the law. Id. Likewise, under

Witherspoon v. Illinois, 391 U.S. 510 (1968), and its progeny, the proper standard

for determining when a venire person may be excluded for cause because of his

views on capital punishment is whether those views would prevent or substantially

impair the performance of his duties as a juror in accordance with the instructions

and oath. Witt, 469 U.S. at 424; see Davis v. State, 313 S.W.3d 317, 343 (Tex. Crim.

App. 2010). A venire person’s bias need not be proven with “unmistakable clarity”

because sometimes a venire person simply cannot be asked enough questions to

reach a point where his bias has been made “unmistakably clear.” Buntion, 482

S.W.3d at 84.
DELACRUZ — 23

When assessing a trial court’s ruling on a challenge for cause, we review the

entire record to determine whether sufficient evidence exists to support the court’s

ruling. Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim. App. 2010). We reverse

only for a clear abuse of discretion. Id. Because the trial judge is best-positioned to

evaluate a venire person’s demeanor and responses, we review a trial court’s ruling

on a challenge for cause with considerable deference. Gardner, 306 S.W.3d at 295.

When a venire person’s answers are vacillating, equivocating, ambiguous, unclear,

or contradictory, we accord particular deference to the trial court’s decision. Tracy,

597 S.W.3d at 512.

A. State’s Challenge for Cause

In point of error one, Appellant claims that the trial court erroneously granted

the State’s challenge for cause against venire person K. Schneider, in violation of

Witt.

On her juror questionnaire Schneider agreed with the statement, “I believe

that the death penalty is appropriate in some capital murder cases, but I could almost

never return a verdict which assessed the death penalty.” When questioned about

that response by the prosecutor, Schneider said that she had talked to her minister

and confirmed that her church did not have a doctrine against the death penalty, but

nonetheless, she was “not sure [she] could deliver a capital murder punishment as

far as that sentence.” When asked if she could ever answer the punishment special
DELACRUZ — 24

issues in a way that would result in the death penalty, Schneider responded, “I don’t

know if I could.” However, after the prosecutor gave a detailed description of the

punishment phase and the special issues, including the requirement that jurors follow

the law based on the evidence, Schneider said “yes” and “I think so, yes,” she would

be able to affirmatively answer the future dangerousness special issue.

Turning to the mitigation special issue, the prosecutor asked Schneider

whether she would “always lean towards answering, yes” and Schneider responded,

“I don’t think so.” When the prosecutor again asked if Schneider could answer “yes”

to the future dangerousness special issue if the State proved it, she stated, “Yes. I

think so.” She stated, “I think I could, yes,” in response to the prosecutor’s question

as to whether she could answer the mitigation special issue “no” if she believed there

were not sufficiently mitigating circumstances to spare the defendant’s life. Later,

as she was trying to wrap up, the prosecutor asked, “[C]an you give us an affirmative

or a negative yet on whether you would ever be able to answer Special Issue 2, no,

no matter the evidence?” Schneider responded, “I—I think I could. . . I probably,

yes, I would, of course. And so I—I think I could answer, yes.” There was some

confusion about whether the prosecutor was asking her if she could answer “yes” or

“no” to the mitigation special issue. The prosecutor clarified the mitigation special

issue and then again asked if Schneider “would . . . always say, yes, no matter what,

or would there ever be a time when [she] could say . . . no” to the mitigation special
DELACRUZ — 25

issue. Schneider said, “Yes. I think so, yes. Yes, I could say, no, . . . let me just read

that again just a minute.” Then, perhaps confused, she said, “Yes, I could say—I

could say, yes, to that.” The prosecutor responded, “I know. Could you ever say,

no?” Schneider responded, “Could I ever say, no? Okay. You know, I—probably

not. I think with my wishy-washiness on whether I can or not, I think maybe I could

not.” The prosecutor followed up, asking, “So if—you believe there would probably

never be evidence that would satisfy you in your mind that you would answer this,

no?” Schneider responded, “Probably not.”

When initially asked by defense counsel whether she could see herself

“saying, death” on the mitigation special issue, Schneider responded, “[W]hen it

came right down to it, no. After the questions [the prosecutor] asked, I don’t know

now.” Defense counsel asked again, “[C]an you, in your mind, picture a

circumstance where you could say, death?” Schneider responded, “I should probably

just say, no, if I can’t outright say, yes.” When further questioned by defense counsel

as to whether there could be any “conceivable circumstance” in which she could

answer the mitigation special issue in such a way that would result in death,

Schneider responded, “I think so.” Defense counsel queried again whether there was

“a circumstance in your mind where you could consider death?” Schneider

responded, “I think so, yes.” Finally, defense counsel asked, “[I]f you ultimately

decide that the appropriate punishment was the death penalty, would you vote your
DELACRUZ — 26

conscience and impose the sentence that you—if you decided that that was the

appropriate one?” She responded, “Here we go again. I think I would, yes.”

The State challenged Schneider for cause on the ground that her beliefs would

prevent her from considering the full punishment range. The court granted the

State’s challenge. The next day, the trial court sua sponte made the following

comments on the record:

I kept trying to reconcile in my mind the difference between [K.]
Clanton, the next to last person yesterday, and the last person
yesterday[, K. Schneider]. . . . [a]nd I had it figured out yesterday and
the result was I put—I qualified [K.] Clanton, but granted the—
somebody’s motion to challenge [K.] Schneider.

I probably should have kept both of them, bottom line. I didn’t. I can’t
get one of them back. So I am going to reverse myself and grant the
Defense’s challenge to [K.] Clanton. So [K.] Clanton and [K.]
Schneider are both off.

Appellant argues that Schneider did not categorically state that she would

automatically answer the issues in a way that life imprisonment would result, or that

she could not envision circumstances in which she would answer the special issues

so as to result in a death sentence. Appellant contends that Schneider could follow

the law even though she was not an enthusiastic supporter of the death penalty.

Appellant emphasizes the trial court’s reflections the day after Schneider’s voir dire

and says the trial court correctly recognized its own error in granting the State’s

challenge.
DELACRUZ — 27

During her voir dire, Schneider shifted from saying that she could not return

a verdict that would result in death to saying that she “thought” she could or

“probably” could. Even then, she hedged, saying that she “didn’t know” and that

probably she should just say no. Although defense counsel solicited a few responses

indicating that she could answer the issues in a way as to result in a death sentence,

Schneider always qualified her answer by saying “I think” or “probably.” This

contrasts with the tenor of her responses when asked whether she could answer in a

way as to result in a sentence of life without parole; those queries generally elicited

an unqualified “yes.” While the trial court second-guessed its ruling the following

day in light of another venire person’s voir dire, the court did not indicate that it had

reviewed the record of Schneider’s voir dire. The court’s uncertainty in hindsight

highlighted the difficulty of getting a firm handle on Schneider’s position. At best,

Schneider was “persistently uncertain about [her] ability to follow the law.” Russeau

v. State, 171 S.W.3d 871, 778 (Tex. Crim. App. 2005). Given Schneider’s

consistently qualified and vacillating responses, Appellant has not shown that the

trial court abused its discretion in granting the State’s challenge. See Buntion, 482

S.W.3d at 91. We overrule Appellant’s first point of error.

B. Appellant’s Challenges for Cause

In point of error five, Appellant contends that the trial court erred in denying

his challenges for cause to venire persons R. Dehnel, S. Ellwanger, M. Kennedy, J.
DELACRUZ — 28

Rainey, R. Reece, C. Hodges, R. Rodriguez, J. Webb, D. Hinojosa, G. Reed, and

G. Hodapp. He argues that the trial court’s failure to grant these eleven challenges

for cause “resulted in a jury being chosen that could not afford [Appellant] a fair

trial.”

Appellant made eleven challenges for cause that were denied. 2 In exercising

his fifteen peremptory challenges, 3 Appellant struck nine of the eleven venire

persons who are the subject of this point of error, in addition to six other venire

persons whom he does not now complain about. He then requested nine additional

peremptory challenges based on the nine previously challenged venire persons

whom he struck. The trial court asked Appellant to identify “somebody on the jury

that you would otherwise object to” and “that you’re forced to take now on the jury.”

Appellant identified two objectionable jurors “that would be seated without granting

these additional peremptories,” Ellwanger and Webb. The trial court asked

Appellant if he would strike Ellwanger and Webb if the court granted additional

peremptory challenges. Appellant replied, “no,” because the strike line would shift

with the granting of additional peremptory challenges, and he “would exercise those

against other persons.” Appellant did not identify the “other persons.” The trial court

In total, Appellant made fourteen challenges for cause that were denied, but only eleven
2

were in the strike zone.
3 Parties in capital cases are allotted fifteen peremptory challenges each. Art. 35.15(a).
DELACRUZ — 29

granted Appellant two additional peremptory challenges. He did not use them to

strike Ellwanger and Webb, and they sat on the jury.

Before we grant relief on a claim that the trial court erred in denying a defense

challenge for cause, the defendant must establish certain prerequisites for showing

harm. 4 Harm in this context depends on “whether a peremptory challenge was

wrongfully taken from the defendant.” Newbury v. State, 135 S.W.3d 22, 30–31

(Tex. Crim. App. 2004) (internal quotation marks and alterations omitted).

Therefore, a defendant must show on the record that (1) he asserted a clear and

specific challenge for cause; (2) he used a peremptory challenge on the complained-

of venire person; (3) his peremptory challenges were exhausted; (4) his request for

additional strikes was denied; and (5) an objectionable juror sat on the jury. Comeaux

v. State, 445 S.W.3d 745, 750 (Tex. Crim. App. 2014).

1. Venire persons S. Ellwanger and J. Webb

4
At times this Court has characterized the requisite steps as necessary for preserving error.
See Buntion, 482 S.W.3d at 83; Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim. App. 2010);
Lewis v. State, 911 S.W.2d 1, 4 (Tex. Crim. App. 1995). At other times we have characterized
them as necessary for establishing harm. See Comeaux v. State, 445 S.W.3d 745, 749 (Tex. Crim.
App. 2014); Gonzales v. State, 353 S.W.3d 826, 831 (Tex. Crim. App. 2011); Newbury, 135
S.W.3d at 305 n.36. We have noted the conflation of these concepts. See Johnson v. State, 43
S.W.3d 1, 6 n.6 (Tex. Crim. App. 2001) (stating, “In the past we have confused preservation of
error and harm issues within the context of an erroneous denial of a challenge for cause.”). As a
result, we indicated that the characterization of these requirements “as involving preservation of
error . . . has fallen out of favor.” See Nava v. State, 415 S.W.3d 289, 305 n.36 (Tex. Crim. App.
2013).
DELACRUZ — 30

Appellant claims that the trial court abused its discretion in denying his

challenges for cause to venire persons Ellwanger and Webb. However, as set out

above, he did not use peremptory challenges against Ellwanger and Webb. Because

he did not, he fails to comply with the prerequisite steps for showing harm from any

error in the trial court’s denial of his challenges for cause against Ellwanger and

Webb. See Johnson v. State, 43 S.W.3d 1, 5–6 (Tex. Crim. App. 2001) (stating that

defendant must show, among other things, that he used a peremptory challenge to

remove a venire person whom he claims should have been removed for cause); see

also Newbury, 135 S.W.3d at 32.

2. Remaining venire persons5

5
There appears to be a discrepancy in the language used in our prior cases regarding the proof
required to meet the fourth and fifth prerequisites for showing harm from an allegedly erroneous
denial of a challenge for cause. Some of our opinions present the prerequisite steps in list form
without explicitly requiring a connection between the requested (and denied) additional strike and
an identified objectionable juror. See, e.g., Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim. App.
2010); Mathis v. State, 67 S.W.3d 918, 922 (Tex. Crim. App. 2002); Green v. State, 934 S.W.2d
92, 105 (Tex. Crim. App. 1996). However, some language in our opinions indicates that a
defendant’s request for an additional strike must be tied to an identified objectionable juror. Rather
than making a general request for additional strikes, the defendant must identify a specific juror as
objectionable and request an additional strike to use on that specifically identified objectionable
juror, see, e.g., Nava, 415 S.W.3d at 305, Davis v. State, 313 S.W.3d 317, 343 (Tex. Crim. App.
2010), or he must identify an objectionable juror whom he would remove with an additional strike,
see, e.g., Comeaux, 445 S.W.3d at 750; Martinez v. State, 17 S.W.3d 677, 682 (Tex. Crim. App.
2000); Demouchette v. State, 731 S.W.2d 75, 83 (Tex. Crim. App. 1986).
Under the language that lists the prerequisite steps generally, Appellant has arguably
satisfied the requisite steps for showing harm, thus prompting a review of the trial court’s denial
of his challenges for cause. It is less clear whether, under the language requiring a nexus between
the defendant’s request for an additional strike and an identified objectionable juror, Appellant has
satisfied the prerequisites necessary to warrant review of the denied challenges for cause. In an
abundance of caution, we will assume without deciding that Appellant complied with the
DELACRUZ — 31

We now turn to the remaining nine venire persons at issue in this point of

error, against whom Appellant did use peremptory strikes. Because the trial court

granted Appellant two additional peremptory challenges, he cannot show harm

unless he demonstrates that the trial court should have granted at least three of his

challenges to these nine venire persons. See Comeaux, 445 S.W.3d at 749–50.

a. Venire person R. Dehnel

Appellant claims that the trial court abused its discretion in denying his

challenge for cause against Dehnel because she would not have been an impartial

juror due to her prior acquaintance with the victim’s mother, Tanya Bermea. Seating

Dehnel, Appellant argues, would have impaired the heightened reliability required

in a death penalty trial.

Dehnel, a middle school teacher, indicated on her juror questionnaire that she

knew Tanya. When asked during voir dire if she remembered Tanya, Dehnel

responded:

Well, Tanya was memorable. I also—the reason I know Tanya, she was
one of my athletes. When I taught at Lee Junior High School, I also
coached, and those are a little different relationships than sitting in a
classroom. And when this all happened and came out in the news and I
saw her name and I thought, I wonder if I know that person. And so I
went and pulled out my yearbook and went, that name matches . . .

prerequisite steps necessary to warrant review of the denied challenges for cause against the
remaining venire persons.
DELACRUZ — 32

Dehnel agreed with the prosecutor that she could fairly judge Tanya if she

were to testify. Defense counsel asked if Dehnel knew Tanya “to be an honest

person,” and Dehnel responded, “I haven’t known her since she was about in seventh

or eighth grade, and that would have been in early 2000, late 1990s, so . . . it’s been

a long time.” She then agreed with defense counsel that if Tanya were to testify she

would “start her off at an even level” with other witnesses. Defense counsel did not

further question Dehnel about Tanya or her ability to be impartial were Tanya to

testify.

Appellant cites Jones v. State, 982 S.W.2d 386 (Tex. Crim. App. 1998), to

argue that Dehnel was challengeable for cause because she could not impartially

judge the credibility of a witness. Jones does not support Appellant’s position.

There, the venire person stated that she would be “more skeptical” of accomplice

witnesses but could accept an accomplice witness’s testimony if she believed that

individual. Jones, 982 S.W.2d at 390. We explained that litigants are entitled to

jurors who are “open-minded and persuadable, with no extreme or absolute positions

regarding the credibility of any witness.” Id. The venire person at issue in Jones was

not challengeable for cause simply because she said she would be more skeptical of

accomplice witnesses than other witnesses; she expressed no extreme or absolute

position regarding the credibility of accomplice witnesses. Id. Likewise, Dehnel

expressed no extreme or absolute position regarding Tanya’s credibility. To the
DELACRUZ — 33

contrary, she said that she could judge Tanya fairly as a witness, that she had no

preconceived notions regarding her honesty, and that she would “start her off at an

even level” with other witnesses.

Appellant also argues that seating Dehnel “on a jury that decided the fate of a

man convicted of killing her former student’s child” would deprive him of the

sentencing reliability required for capital cases under the Eighth Amendment, citing

Beck v. Alabama, 447 U.S. 625, 637–38 (1980). There was no Eighth Amendment

problem presented by seating Denhel who testified that she would judge Tanya fairly

and on par with all other witnesses.

For the above reasons, the trial court did not abuse its discretion by denying

Appellant’s challenge for cause against Dehnel.

b. Venire person M. Kennedy

Appellant claims that the trial court abused its discretion in denying his

challenge for cause to venire person Kennedy on the ground that she would

improperly shift the burden of proof to Appellant by expecting Appellant to testify.

When the defense asked Kennedy “whether life without the possibility of

parole would ever be enough punishment for a guilty child killer,” Kennedy

responded that she “would want to hear the other side of the story” before deciding.

She further explained that if she were the accused, she “would want someone to

listen to me,” and that “until I hear that other side of the story or until evidence is
DELACRUZ — 34

proved or, you know, circumstances are laid out, I guess—You know, until the story

is told . . . I don’t know what the right punishment is.” When defense counsel

reminded Kennedy that Appellant had the right not to testify and that the defense

had no burden of proof at all, she replied that she would just “like to know as much

information and gather as much as you can if you are talking about taking

somebody’s life.” She also said, “I would like to hear as much as I could from both

sides. Maybe something that was said or maybe something, you know that you said

would be, you know, maybe mitigating . . .” Defense counsel clarified, “at this point

we are just deciding whether or not someone is guilty” and further, “what I am

hearing you say is if you don’t hear anything from us you’re already going to be

leaning toward the death penalty as the appropriate punishment. Fair enough?”

Kennedy disagreed, saying, “Not toward the death penalty, per se.” Kennedy

reiterated that she would just like “to hear as much information as [she] could.”

When defense counsel suggested to Kennedy that it would be really hard for her to

decide if a defendant would be a future danger if the defense never presented any

evidence, Kennedy disagreed and said, “I guess they’d have to prove why he is. . .So

if you’re not going to prove that he is not, they better prove that he is.”

Kennedy did not say that she would place a burden of proof on Appellant or

that she would hold it against him if he did not testify or otherwise present any

evidence. Appellant did not ask Kennedy whether she would be unable to follow the
DELACRUZ — 35

law which does not require Appellant to testify. See Tracy, 597 S.W.3d at 512

(stating that before venire person can be struck for cause, law must be explained to

him and he must be asked whether he can follow the law regardless of his personal

views). Appellant fails to show that Kennedy had a bias or prejudice against the law

that she would be unwilling or unable to put aside.

Appellant also claims that the trial court should have granted his challenge to

Kennedy on the ground that she would be substantially impaired as a juror who had

children close in age to the victim. Kennedy, a mother to twin nine-year-olds and a

five-year-old, stated on her questionnaire that it would be difficult for her to serve

in this case, as a mother of three young children. She agreed during voir dire that it

would be difficult to look at crime scene and autopsy photos of the child victim.

Kennedy testified that when she heard in the media that the case involved the murder

of a child, she decided that she did not want to follow the story: “You don’t want to

follow a case like that. . . As a parent . . . you’re like, ‘Oh gosh, no.’ Things like that

don’t happen.” But when defense counsel suggested to Kennedy that it would be

difficult for her to be fair and impartial as a juror because of her children, Kennedy

disagreed:

Q. It’s going to be very, very difficult to be the fair and impartial kind
of juror that you want to be in this case, isn’t it, because of your
children?
DELACRUZ — 36

A. No. I don’t —I mean I don’t think because of my children or because
of my views. You know, I—I don’t think it’s going to be hard to be fair
and impartial. I think it’s going to be hard to take this in. . . . That
wouldn’t determine my moral compass, whether or not I could be fair
or not be fair. That’s just—I mean that’s gut wrenching. That’s a hard
thing to see. That’s a hard thing to absorb as a parent and as a mother.
. . I would say “no.” No, it’s not going to—No, at all, it doesn’t
determine me being fair or not. It’s just going to be—that would be very
hard.

As explained above, to prevail on a challenge for cause, Appellant must show

that the challenged venire person demonstrated a bias or prejudice against the law

that she could not put aside (i.e., that Kennedy understood the law but could not

overcome her bias). While Kennedy acknowledged that as a mother, it would be

emotionally wrenching to sit on a case involving a child victim, she consistently

maintained that she could be fair and impartial in carrying out her oath and following

the law, however hard it might be. Appellant fails to show that the trial court abused

its discretion in denying his challenge to Kennedy.

c. Venire person C. Hodges

Appellant claims that the trial court abused its discretion in denying his

challenge for cause to venire person Hodges on the grounds that Hodges would not

assess witness credibility impartially, would automatically vote for a death sentence,

would shift the burden of proof to the defense on the future dangerousness special

issue, and would not consider mitigation evidence.
DELACRUZ — 37

Hodges testified that he had worked in federal and state law enforcement for

more than twenty-four years and that he knew two of the State’s potential witnesses,

Gary Cole and Tommy Williams, both employed by the sheriff’s department.

Hodges and defense counsel had the following exchange regarding these witnesses:

Q. Does Mr. Cole have a reputation for honesty?

A. Yes.

Q. And you believe what Mr. Cole has to say?

A. Yes.

Q. And if Gary Cole was to take the stand and also a homeless person
were to take the stand, Gary Cole would have more credibility in your
eyes?

A. Yes.

Q. Okay. And I’ll ask for Deputy—for Tommy Williams, also. If
Tommy Williams—I guess first off, does he have a reputation for
honesty?

A. Yes, sir.

Q. Okay. And with that being said, if he were to take the stand and a
homeless man were to take the stand, just based on what your personal
knowledge is of that person before either one of them said a word, Mr.
Williams would have more credibility in your eyes?

A. Yes.
DELACRUZ — 38

Based on this exchange, Appellant says Hodges was challengeable for cause

because he would unequivocally believe the testimony of the two law enforcement

officers whom he knew.

A venire person who cannot impartially judge the credibility of the witnesses

is challengeable for cause for having a bias or prejudice. Feldman v. State, 71 S.W.3d

738, 745 (Tex. Crim. App. 2002). As stated previously, a defendant is entitled to

jurors who will be genuinely open-minded and subject to persuasion, with no

extreme or absolute positions. Jones, 982 S.W.2d at 390; Feldman, 71 S.W.3d at

745. But the fact that a venire person is more or less skeptical of a particular category

of witnesses does not make him subject to a challenge for cause. Feldman, 71

S.W.3d at 744. In Feldman, the venire person testified that he would “lean toward”

believing a police officer over a lay person but would have to see both witnesses on

the stand. The fact that he was less skeptical of police officers than lay witnesses did

not make him challengeable for cause. Compare id. (holding that equivocal

statements by potential jurors did not support a conclusion that venire members were

biased as a matter of law), with Hernandez v. State, 563 S.W.2d 947, 950 (Tex. Crim.

App. 1978) (holding that venire person who said she would always believe police

officer witnesses was challengeable for cause). We have recognized that jurors

cannot possibly be “completely impartial and free of any trace of skepticism toward

any category of witness.” Jones, 982 S.W.2d at 390. “No person sitting as a juror
DELACRUZ — 39

can completely remove his own experiences, beliefs, and values, however hard he

may try.” Id.

Hodges did not possess particular views about a category of witnesses, but

about two individual witnesses whom he personally knew. However, defense

counsel did not ask Hodges whether, despite personally knowing the witnesses and

believing them to be honest and credible, he could put that bias aside and judge their

credibility fairly and with an open mind. Appellant fails to show that Hodges

harbored witness bias that he would be unable to put aside despite the law’s

requirements. See Tracy, 597 S.W.3d at 512 (stating that challenger does not meet

burden of showing venire person’s bias until he shows that venire person understood

requirements of law and could not overcome personal prejudice well enough to

follow them).

Appellant also says Hodges was challengeable for cause because he “would

have voted for the death penalty automatically.” See Banda v. State, 890 S.W.2d 42,

57 (Tex. Crim. App. 1994) (stating venire person is challengeable for cause where

he would automatically answer in such a way as to vote for death). Examination of

Hodges’s voir dire as a whole does not support this claim.

When questioned by the State, Hodges agreed that if the jury found Appellant

guilty of intentionally killing a child under ten, he would be able to evaluate all of

the evidence and answer the future dangerousness special issue either way,
DELACRUZ — 40

depending on the evidence. When defense counsel questioned Hodges generally

about whether life without parole could be an appropriate punishment for a “child

killer” who had no legal defenses, Hodges responded that it would “depend upon the

circumstances,” that “life without parole could be a fitting punishment for that crime

as well as the death penalty,” and that life without parole could be a suitable

punishment because it “would prevent you from committing more heinous crimes

like more child murders.” Defense counsel then asked Hodges what penalty would

be appropriate for a “child killer” who had no legal defenses and after a finding of

yes on the future dangerousness special issue, and Hodges stated that the death

penalty was the only appropriate punishment in those circumstances “unless you

have some really good evidence to make me believe your way.”

Appellant has not shown that Hodges “would automatically vote for death”

upon a finding of future dangerousness. Hodges’s agreement that death was the only

appropriate punishment for a defendant who killed a child and was also found to

present a future danger unless there was “some really good evidence” is not the same

thing as saying he would “automatically vote for death” without considering

mitigation evidence.

When questioned by the prosecutor about the mitigation special issue, Hodges

agreed that, even if he found the defendant guilty of intentionally killing a child and

also found him to be a future danger, he would be able to “think back through all the
DELACRUZ — 41

evidence, conduct a fresh analysis,” and decide the mitigation special issue either

way depending on the evidence. When defense counsel attempted to question

Hodges about whether there was any mitigation evidence that would overcome a

guilty verdict and an affirmative finding on the future dangerousness issue, Hodges

expressed confusion about the question, asking multiple times for clarification and

rephrasing of the question. The trial court also asked for clarification. Finally,

Hodges and defense counsel had the following exchange:

Q. Is there any circumstance that you could consider that would lead to
a life verdict in the event that you found somebody again with—

A. With all of the other elements [, guilty of intentionally killing a child and
a finding of future danger]—

Q. Yes, sir.

A. —met?

Q. Yes, sir.

A. Then I would say that I would vote for the death penalty in that
scenario.

Q. And there is no mitigating circumstance that would call for a life
sentence in that, right?

A. Well, in that scenario we have stated that all those other elements
were met, correct?

Q. Yes, sir, that’s correct.

A. So, yes, I would have to go to the—I would have to vote for the
death penalty.
DELACRUZ — 42

Appellant suggests that Hodges would “automatically vote for death” based

upon his agreement that he would not find any evidence sufficiently mitigating to

overcome a guilty verdict and future dangerousness finding. However, defense

counsel did not remind Hodges of the law regarding mitigation evidence—that jurors

must be willing to at least consider a defendant’s background and character in

answering the mitigation evidence, (although they need not give mitigating weight

to any particular type of evidence)—and ask whether or not he would be able to

follow that law even if there were affirmative findings on guilt and future

dangerousness. See Tracy, 597 S.W.3d at 512. Further, during his voir dire by the

State, Hodges agreed that even after a finding of guilt for intentionally killing a child

and also a finding of future danger, he would be able to “think back through all the

evidence, conduct a fresh analysis” and decide the mitigation special issue either

way depending on the evidence. Hodges’s responses vacillated depending upon who

was asking the questions. Id. (stating that when venire person’s answers are

vacillating, we afford particular deference to trial court).

Finally, Appellant contends the trial court erred in denying his challenge to

Hodges on the ground that he would shift the burden of proof to Appellant on the

future dangerousness special issue. Appellant relies on the following exchange

during defense counsel’s voir dire of Hodges:
DELACRUZ — 43

Q. Okay. And let’s say [the State] get[s] into the future danger question.

A. Okay.

Q. And they say, “We’re not going to put on any evidence” and we say,
“We are not going to do anything.” At that point does the State get that
bar lowered from beyond a reasonable doubt?

A. If they don’t meet the requirement for the danger, then, yes, I would
say it would be lowered.

This exchange does not establish that Hodges understood the requirements of

the law and could not or would not follow them. Counsel did not remind Hodges

that the burden of proof on the first special issue is on the State and ask him whether

or not he would be able to follow that law. It is not at all clear that Hodges understood

what defense counsel meant by “get[ting] that bar lowered,” and Hodges did not

state that he would therefore place any burden on Appellant. Appellant fails to show

that Hodges would have shifted the burden of proof to Appellant on the future

dangerousness special issue based on the above exchange. The trial court did not

abuse its discretion in overruling Appellant’s challenge for cause to Hodges.

d. Venire person R. Reece

Appellant challenged venire person Reece in part on the ground that she

leaned heavily toward the death penalty. He argued that upon making an affirmative

finding on the first special issue, Reece would lean so heavily toward the death

penalty that “with no burden of proof on Special Issue No. 2, . . . it is almost as good
DELACRUZ — 44

as an automatic death penalty.” On appeal, he argues that Reece was challengeable

for cause because she would automatically “vote for the death penalty.” The record

does not support Appellant’s view of Reece.

While Reece expressed the view that the death penalty is sometimes

appropriate, she also expressed her belief that life without parole is a severe penalty.

She stressed that making a decision on punishment was not one that she would take

lightly, and that it was “a heavy burden” for jurors. The prosecutor asked Reece

whether, addressing the mitigation special issue after a finding of future danger, she

would “automatically make a decision” or would consider all of the evidence. She

responded that she “would certainly try to consider all of the evidence.” The

prosecutor pressed her on what she meant by “try” and she said, “Well, I just think

the whole—this whole process is a very intense and important thing and so, you

know, I would just do my best to find the right answer that I felt was right.” The

prosecutor further asked, “So when you say ‘try,’ you’re not saying that you couldn’t

consider all the evidence? You’re not saying you would make an automatic decision;

you’re just saying that you would take excruciating efforts to consider all the

evidence?” Reece agreed, saying, “Yes. Yes.”

When asked by defense counsel what her “feelings” were about the

appropriate punishment for the murderer of a child under the age of ten, Reece said

“I can see going either way. It’s just—I believe in the death penalty, but life in prison
DELACRUZ — 45

without parole is a severe punishment.” Defense counsel then asked Reece her

“feelings” about the appropriate punishment for a person who is found guilty of

murdering a child under the age of ten and who has also been found to present a

future danger. He stressed, “[w]e are not talking about any of the mitigation stuff

right now . . . [w]e are just talking about after those two things.” Reece agreed that

the death penalty is “a fair penalty” in those circumstances. When defense counsel

then questioned whether, after a finding of guilt on facts similar to those alleged in

this case and a finding of future danger, there would ever “be enough mitigation to

warrant a sentence of life without the possibility of parole instead of the death

penalty,” Reece said yes. She explained that circumstances, such as “how a person

is raised and how he is treated and the things that have happened to him in his life

do make a difference” and should be considered in assessing punishment. Defense

counsel asked whether, before answering the mitigation question, Reece would be

leaning toward death. Reece responded, “[p]robably, yes.” And further, “[u]nless

some horrific something was presented to me as to why he was that way, then, yes,

I probably would lean to the death penalty.” Reece’s responses reflect that she

believed the death penalty is appropriate in some cases, but not in every case, and

that she would not automatically answer the special issues in such a way that resulted

in a death sentence but would consider all of the evidence before answering both of

the special issues.
DELACRUZ — 46

Appellant also says Reece was challengeable on the ground that she would

not consider evidence of substance abuse in assessing mitigating evidence. When

asked whether she viewed evidence of substance abuse to be mitigating, Reece stated

that “[s]ubstance abuse is a choice by the people who do that, so whatever they do

under the influence of that substance they have chosen.” She agreed that she would

not find substance abuse to be mitigating evidence.

Appellant concedes that this Court has held that a venire person’s statements

that they would not consider a certain type of evidence to be mitigating does not

render them subject to removal for cause. See Soria v. State, 933 S.W.2d 46, 65 (Tex.

Crim. App. 1996); Heiselbetz v. State, 906 S.W.2d 500 (Tex. Crim. App. 1995). But

Appellant says that these holdings cannot be squared with Supreme Court precedent,

citing Penry v. Lynaugh, 492 U.S. 302 (1989). He also argues that Reece would not

consider evidence of substance abuse at all which clashed with her duty to consider

all of the evidence in deciding the special issues. TEX. CODE CRIM. PROC. art. 37.071,

§ 2(e)(1). Finally, Appellant likens Reece to the hypothetical juror in Morgan v.

Illinois, 504 U.S. 719, 739 (1992), who had effectively decided the merits of the case

before hearing any evidence of mitigating or aggravating circumstances.

A capital jury may “not be precluded from considering, as a mitigating factor,

any aspect of a defendant’s character or record and any of the circumstances of the

offense that the defendant proffers as a basis for a sentence less than death.”
DELACRUZ — 47

Eddings v. Oklahoma, 455 U.S. 104, 110 (1982) (emphasis in original) (quoting and

adopting rule of plurality in Lockett v. Ohio, 438 U.S. 586 (1978)). But a juror “may

give any weight or no weight to particular evidence” in assessing the special issues.

Soria, 933 S.W.2d at 65 (explaining that United States Supreme Court has not yet

mandated that jurors must give weight to any particular type of evidence offered in

mitigation). The constitution only requires that a juror not be precluded from

considering mitigation evidence and that a juror be given a vehicle to give effect to

such evidence. Id.

Further, we have previously rejected the argument that Penry and its progeny

mandate that jurors must give mitigating weight to any particular evidence offered

at punishment. Heiselbetz, 906 S.W.2d at 508. There is no precedent from this Court

or from the United States Supreme Court requiring that jurors find certain kinds of

evidence to be mitigating. Reece agreed that she would consider all of the evidence

when deciding the mitigation issue. While she did not view substance abuse to be

mitigating, she was not required to do so. Because Reece agreed that she would

consider all of the evidence when deciding the mitigation issue, she was not like the

venire person discussed in Morgan. See 504 U.S. at 738–39 (stating that any juror

who says they will automatically vote for death without regard to mitigating

evidence is announcing intention to not follow the instructions, and that any juror to
DELACRUZ — 48

whom mitigating factors are irrelevant should be disqualified for cause because they

have formed an opinion without basis in the evidence).

The trial court did not abuse its discretion in overruling Appellant’s challenge

for cause against Reece.

e. Venire person R. Rodriguez

Appellant challenges the trial court’s denial of his challenge for cause to

venire person Rodriguez on the basis that he would not view evidence of substance

abuse or an abusive upbringing as mitigating. As stated above, a juror “may give any

weight or no weight to particular evidence” in assessing the special issues. Soria,

933 S.W.2d at 65. The constitution only requires that a juror not be precluded from

considering mitigation evidence and be given a vehicle to give effect to such

evidence. Id. The trial court did not abuse its discretion by denying Appellant’s

challenge to Rodriguez on these grounds.

f. Venire person D. Hinojosa

Appellant claims that venire person Hinojosa was challengeable for cause

because she leaned strongly toward a guilty verdict and toward an affirmative answer

on the future dangerousness special issue, and because she would never find

sufficient mitigation evidence to overcome her inclination toward the death penalty.
DELACRUZ — 49

Appellant points to an initial exchange between Hinojosa and the prosecutor

in which Hinojosa appeared to equivocate on whether she could find Appellant not

guilty if the State failed to prove all of the elements:

Q. If the State were to fail to prove any one of these elements beyond a
reasonable doubt, would you be able to return a verdict of “not guilty”?

A. If anything—If you couldn’t prove anything, I think I could, but I
can’t tell you that 100 percent because I am not in that situation, so it’s
hard to say. I mean, I think I would be able to, but—Now, if the
evidence and the proof was not there, I mean, I think I could, you know,
“not guilty.”

Further discussion reflects that Hinojosa was confused during that exchange.

After the prosecutor clarified that the State must prove every element, Hinojosa

stated that she was “clearer now” about the law and that she would hold the State to

its burden of proving each element, and would be able to enter a verdict of “not

guilty” if the State failed to prove even one of the elements. This exchange does not

support a conclusion that Hinojosa was biased in favor of a guilty verdict.

Arguing that Hinojosa leaned in favor of the death penalty, Appellant relies

on Hinojosa’s statements initially indicating that she believed a death sentence

would be an appropriate punishment for, as defense counsel framed it, a “child-

killer” who had no legal justifications or defenses. However, those statements were

not made in response to questions that were framed within the context of the special

issues; rather, defense counsel had asked Hinojosa what she thought would be an
DELACRUZ — 50

appropriate punishment based on the facts of the case alone without regard to the

special issues. 6 When in later questions, defense counsel asked Hinojosa how she

would answer the special issues, Hinojosa consistently said that she would not

automatically lean toward death, but would consider and base her answers on all of

the evidence. In the following exchange, Hinojosa summed up her willingness and

ability to keep an open mind and listen to all of the evidence when deciding the

special issues:

Q. Okay. Again, at that point, once you have made that decision about
guilt or innocence, once you have made that decision that [he is]guilty,
boy, you are already strongly leaning toward the death penalty. Without
ever hearing any evidence about future danger, without hearing any of
the mitigation evidence, for you, once you made that decision, you are
leaning one way?

6
For example, defense counsel asked:

Q. So, again, there [are] no legal excuses for that capital murder, there [are] no
justifications for it, no legal justifications, and the person wasn’t insane. So, now
that you and those jurors have made that decision just about guilt or innocence with
that kind of guilty child-killer, tell me about your beliefs and your values when it
comes to the death penalty as the appropriate punishment for that kind of guilty
child-killer.

Another example:

Q. We haven’t heard anything about the punishment phase, the future danger [and]
mitigation [special issues], but when it comes to making that decision, once you
have made that decision for guilt, what I am hearing you say is, “I have decided
that they are guilty of killing a child under ten, decided there is no accident, there
is no mistake, there is no legal justification, no legal excuse.” For you, at that point,
the death penalty is really the only appropriate punishment?
DELACRUZ — 51

A. See, I don’t think so. I mean, it’s going to depend on the evidence
and what is presented before me – . . . – if I was chosen. I don’t think it
would —I mean, it wouldn’t come in just automatically in the first proof
of evidence I see. “Okay, that is it.” I mean, I really don’t think—I have
never been in this situation, I really can’t tell you 100 percent once
things are presented, you know, but knowing me, I would think, you
know, I would be open to everything and listening to everything.

Finally, Appellant argues that Hinojosa was challengeable because she would

never find sufficient mitigation evidence to overcome a sentence of death. The

record does not support this claim. Hinojosa stated at one point that she would

“probably not” find enough mitigation evidence to overcome a death sentence after

a finding of guilt for the murder of a child and yes on the future dangerousness issue.

At other times, in response to the same scenario, she said that she didn’t know, that

“I can’t tell you how I would vote until everything is over” but that “if it goes exactly

like you said, . . . then it would strongly go towards the death penalty.” Still later,

Hinojosa stated that she would need to hear all of the evidence, saying, “I want to

hear everything. I want to see the proof and all the evidence and everything before a

decision was made.” Her last word on the mitigation issue was that “it depends on

the evidence and what is proven before I could 100 percent say how I would answer

that question.” Because Appellant has not shown that Hinojosa was unwilling to

consider mitigation evidence, the trial court did not abuse its discretion in denying

his challenge for cause.

g. Venire person J. Rainey
DELACRUZ — 52

Relying on Caldwell v. Mississippi, 472 U.S. 320, 324–25 (1985), Appellant

claims that the trial court should have granted his challenge for cause against venire

person Rainey because she erroneously believed that she only had to answer the

special issues and then “the law,” not the jurors, would dictate the sentence to be

imposed. Appellant takes Rainey’s responses out of context.

At the beginning of defense counsel’s voir dire of Rainey, the following

exchange occurred:

Q. Just for kind of my own education, when you came to the big panel
on January the 11th was it your understanding that you just had to
answer two questions and then the law would dictate the sentence?

A. Yes. Because I never knew really honestly how it worked until—as
we are being educated through this process and being told how that
works.

Defense counsel’s question to Rainey concerned Rainey’s understanding

about the sentencing process when she first arrived to the panel, before the law was

properly explained. During individual voir dire, the trial court explained to Rainey

that “the jury would assess either death or life without parole” based upon its answers

to two questions, and that “[i]f you answer these questions in a particular way, it will

be death” and “[i]f you answer them another way, it will be life without parole.” The

court then further explained the special issues. When asked if she understood the

process, Rainey indicated that she did. The prosecutor further explained the

sentencing structure to Rainey, noting that the jury does not “circle one or the other”
DELACRUZ — 53

punishment, but rather “make[s] decisions that end up, result in, either the death

penalty or life without parole.” Rainey responded “Right,” and stated that she

understood when the prosecutor explained the special issues and the jury’s role in

greater detail.

Appellant does not point to any other responses from Rainey suggesting that

she did not have a proper understanding of the jury’s role at punishment. As noted

above, defense counsel’s question concerned Rainey’s understanding of the

sentencing process when she first arrived for jury duty. Counsel did not attempt to

clarify Rainey’s answer or probe her understanding and ability to follow the law

once it was explained to her. Before a venire person may be excused for cause, the

law must be explained to the venire person and she must be asked whether she can

follow that law regardless of her personal views. Davis, 329 S.W.3d at 807.

Appellant fails to show that Rainey understood the law and could not follow it. The

trial court did not abuse its discretion in denying Appellant’s challenge to Rainey on

these grounds.

h. No harm shown

As discussed above, because Appellant received two additional peremptory

strikes, he cannot demonstrate harm unless he shows that the trial court erroneously

denied at least three of his challenges for cause. See Chambers v. State, 866 S.W.2d

9, 23 (Tex. Crim. App. 1993). Appellant contends that the trial court erred by
DELACRUZ — 54

denying eleven of his challenges for cause. We have reviewed nine of the challenged

rulings and found no harm as to Ellwanger and Webb and no trial court error as to

seven of the challenged venire persons. Accordingly, even if we assume that the trial

court erred in denying Appellant’s challenges for cause to the two remaining venire

persons at issue, G. Reed and G. Hodapp, Appellant cannot show harm. See id.

We overrule point of error five.

VI. INSTRUCTIONS REGARDING PRESIDING JUROR

The jury charge at the guilt phase included the following instruction:

Your first task will be to pick your Presiding Juror. The Presiding Juror
should conduct the deliberations in an orderly way. Each juror has one
vote, including the Presiding Juror. The Presiding Juror must supervise
the voting, vote with other members on the verdict, and sign the verdict
sheet.

Appellant objected to the instruction on the ground that it improperly directed

the presiding juror to “conduct some sort of supervision over the other jurors.” He

argued that he had “a right to a fair and impartial trial by jury, not trial by Presiding

Juror.” The trial court overruled the objection.

In his sixth point of error, Appellant argues that the instruction improperly

expanded the foreman’s statutory duties and encroached upon Appellant’s Sixth

Amendment right to an impartial jury. He argues that the instruction potentially

placed the foreman in a position to influence or pressure the other jurors, and that
DELACRUZ — 55

the instructions to “conduct the deliberations” and “supervise the vote” could be

interpreted as a license to control and disrupt the impartiality of the proceedings.

Appellant overstates the scope and nature of the instruction. The instruction’s

only language of supervision relates to voting. The instruction is otherwise

administrative in nature, tasking the presiding juror with conducting deliberations in

an orderly manner. It is difficult to conceive how a capital jury (or any jury) would

efficiently proceed without someone providing some sort of order or structure to the

complex process, by calling for and collecting votes. The law recognizes this by

specifically requiring that the jury select a foreman. TEX. CODE CRIM. PROC. art.

36.26. Nothing in the trial court’s instruction suggested that the foreman’s views

carried greater weight than those of other jurors or that the foreman occupied a

position of influence beyond providing order to the deliberations and supervising

voting. Appellant’s claim is not supported by the language of the charge or anything

in the record. The trial court did not err by overruling Appellant’s objection to the

instruction. We overrule point of error six.

VII. RECORDED JAIL CALL

The State sought admission at the guilt phase of several phone calls between

Appellant and other persons recorded while Appellant was in jail awaiting trial. In

one of the calls, Appellant can be heard saying:
DELACRUZ — 56

I’m just trying to tell my lawyers to do everything they can for me, like,
please, y’all got to try something. I know y’all can pull a rabbit out of
the hat, I know y’all can. It’s just, it’s going to be hard, I know, but I
know y’all can do it, I know y’all can. They’re trying their hardest right
now, they’re trying. So, I mean, all I can do is just wait and hope for
the best.

The State offered that recording as clip two of Exhibit 30. In a hearing outside

the jury’s presence, Appellant made the following objections and statements

concerning the clip:

The first minute and one second is—is 401 relevance objection. [sic] It
doesn’t make any fact of consequence more or less—more or less
probable in this particular case. And to allow that evidence in would be
to deny [Appellant] due process and a fair trial under both the U.S. and
Texas Constitutions.

The last minute and fifteen seconds, again, is the same. The last minute
and fifteen seconds is a discussion of—our—our objection would be
identical, I guess. It’s a discussion of what—what [Appellant] would—
what he—what he expects from his lawyers. It doesn’t contain any
discussions regarding conversations he’s had with us, it’s just his
expectations.

The trial court overruled Appellant’s objections.7 Later, immediately before

the recordings were admitted and published to the jury, the court held a hearing

outside the jury’s presence to revisit the recordings, some of which had been edited

and redacted, and to allow Appellant to renew his objections. As to clip two,

Appellant stated that his objection to the clip “is to relevance . . . and some

7The State agreed that the first part of the clip was irrelevant and omitted that portion. The
above quoted clip reflects the edited version.
DELACRUZ — 57

constitutional objections to that as well.” The court again overruled the objections.

The clip was published to the jury and admitted into evidence in the above form.

In point of error seven, Appellant claims that the trial court abused its

discretion by admitting evidence concerning conversations between Appellant and

counsel in violation of due process. In support of this claim, Appellant argues that

admission of the recorded call “concerning the defendant’s communications with

counsel” undermined his “fundamental” right to counsel. He also says that, “as a lay

person,” his opinions concerning his own case “could hardly be relied on as having

any of the evidentiary reliability that due process requires.” Finally, Appellant

argues that the recorded phone call conveyed the message that Appellant had

retained counsel and had communicated with counsel about his expectations for the

case, in violation of Article 38.38 of the Code of Criminal Procedure. TEX. CODE

CRIM. PROC. art. 38.38 (providing that “[e]vidence that a person has contacted or

retained an attorney is not admissible on the issue of whether the person committed

a criminal offense.”).

An objecting party must convey to the trial judge the particular complaint,

including the precise and proper application of the law and the underlying rationale.

Pena v. State, 285 S.W.3d 459, 463–64 (Tex. Crim. App. 2009). To avoid forfeiting

a complaint, the objecting party must “‘let the trial judge know what he wants, why

he thinks he is entitled to it, and to do so clearly enough for the judge to understand
DELACRUZ — 58

him at a time when the judge is in the proper position to do something about it.’” Id.

(quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). And, the

complaint on appeal must comport with the complaint made at trial. Id. A general or

imprecise objection can be sufficient to preserve error, “but only if the legal basis

for the objection is obvious to the court and to opposing counsel.” Buchanan v. State,

207 S.W.3d 772, 775 (Tex. Crim. App. 2006).

Appellant’s objections to the clip were not sufficiently specific or otherwise

apparent from the context to support the various claims and arguments he makes on

appeal. Moreover, his trial objections do not comport with his arguments on appeal.

Apart from his relevance objection (which he does not bring forward on

appeal), Appellant’s objections did not provide the trial court with sufficient

information to understand the crux of his argument. Appellant stated that admission

of the clip would deny him “due process and a fair trial” under both constitutions.

He did not elaborate or provide any argument. His comments following that

objection were explanatory in nature, stating his view that the clip reflected

Appellant’s expectations and did not “contain any discussions regarding

conversations he’s had with [his lawyers], it’s just his expectations.” Moreover,

counsel’s comments at trial that the call did not contain any discussions regarding

conversations between Appellant and his attorneys is contrary to what he now

argues, that the call concerned “the defendant’s communications with counsel.”
DELACRUZ — 59

Appellant argues that admission of the clip violated (1) his “fundamental”

right to counsel which was undermined when the State “was permitted to use

information concerning the defendant’s communications with counsel regarding his

assessment of the case against him in order to imply that counsel faced an impossible

task[,]” (2) due process because Appellant’s lay opinion about his own case lacked

“evidentiary reliability[,]” and (3) Article 38.38. Appellant’s trial objections do not

align with these arguments and claims. Appellant did not mention his “right to

counsel” at trial. He invoked “due process and a fair trial” but he did not articulate a

theory in support of those claims. Appellant did not mention Article 38.38 at all.

Appellant concedes that he did not invoke Article 38.38 by name, but he

argues that such claim was apparent from the context and also that the protections

afforded by Article 38.38 should be deemed a “waivable-only” right. See Marin v.

State, 851 S.W.2d 275, 280 (Tex. Crim. App. 1993). Article 38.38 provides in part

that evidence that a person contacted or retained counsel is not admissible on the

issue of that person’s guilt. TEX. CODE CRIM. PROC. art. 38.38. Nothing in the

language of the provision suggests that it is a waivable-only right. Appellant has

failed to preserve his complaint about the admission of clip two. We overrule point

of error seven.

VIII. JUROR RESPONSIBILITY UNDER ARTICLE 37.071
DELACRUZ — 60

In his eighth point of error, Appellant challenges the constitutionality of

Article 37.071. Specifically, he argues that the special issues impermissibly distance

the jurors from the effect of their answers by reducing their task to simply answering

“two indirect questions” rather than asking them to directly assess the punishment

of a life sentence or the death penalty, citing Caldwell v. Mississippi. 472 U.S. 320

(1985).

The special issues statutory scheme in Article 37.071 is explicit about the

effect of the jury’s answers. Article 37.071 requires in part that the court instruct the

jury that in deliberating on the future dangerousness special issue, it “shall consider

all evidence admitted at the guilt or innocence stage and the punishment stage . . .

that militates for or mitigates against the imposition of the death penalty.”

TEX. CODE CRIM. PROC. art. 37.071, § 2(d)(1) (emphasis added). The mitigation

special issue, as fashioned by Article 37.071, instructs the jury to decide, “[w]hether,

taking into consideration all of the evidence . . . there is a sufficient mitigating

circumstance or circumstances to warrant that a sentence of life imprisonment

without parole rather than a death sentence be imposed.” Id. at § 2(e)(1) (emphasis

added). Finally, Article 37.071 requires that the jury be informed of the effect of

their answers to the special issues. The court shall instruct the jury that if it “answers

that a circumstance or circumstances warrant that a sentence of life imprisonment

without parole rather than a death sentence be imposed, the court will sentence the
DELACRUZ — 61

defendant to imprisonment in the Texas Department of Criminal Justice for life

without parole.” Id. at § 2(e)(2)(A).

Appellant concedes that this Court has rejected this argument in other cases,

citing Rodriguez v. State, No. AP-75,901, slip op. at 61(Tex. Crim. App. March 16,

2011) (not designated for publication), but asks the Court to revisit the issue. We

decline to do so. We overrule point of error eight.

IX. CLOSING ARGUMENT

In point of error nine, Appellant claims that the trial court erred in permitting

the State’s closing argument at punishment which urged the jury to send a message

to the community. Appellant contends the argument violated the Eighth

Amendment’s individualized-sentencing requirement.

The prosecutor argued at punishment:

When you answer the questions and you make your decisions, it must
be evidence-based, of course. And with your decisions, you set the
community standard. With your decisions, you send a message. You
send a message to our community.

The trial court overruled Appellant’s objection that the argument violated his

right to individualized sentencing under the Eighth Amendment. The prosecutor

continued:

The community doesn’t tell you what to do. Do not feel pressure from
anyone else. Your decision must be based on the evidence. Don’t feel
—you tell them what the answer is, not the other way around. You
don’t—you’re not pressured to do anything. Your decision is based on
DELACRUZ — 62

the evidence and what you find and will be respected by all. You make
the decision. You set that standard. It is based on your decision, your
evaluation of the evidence. Absolutely it is.

With your decision, you say what the appropriate sentence is. You tell
the community what the appropriate—you’re telling them what the
appropriate sentence is. You’re telling other—others who are
vulnerable to this sort of abuse what will happen.

Appellant again objected that the argument violated his right to individualized

sentencing. The State is generally not permitted to argue that the community

demands or expects a certain punishment. Freeman v. State, 340 S.W.3d 717, 729

(Tex. Crim. App. 2011); Borjan v. State, 787 S.W.2d 53, 55-56 (Tex. Crim. App.

1990). The State may address community concerns, however, and make a general

argument that juries should deter crime by their verdicts. Freeman, 787 S.W.3d at

729. Such arguments are an acceptable plea for law enforcement. The State is also

permitted to argue the impact of the verdict on a particular portion or subset of the

community. Borjan, 787 S.W.2d at 56.

Appellant acknowledges that the Court has previously held that the State’s

argument that the jury should send a message to the community is a permissible

appeal for law enforcement. See Ex parte Scott, 541 S.W.3d 104, 122 (Tex. Crim.

App. 2017) (holding that it was proper plea for law enforcement for State to ask the

jury to send a message to community that child predatory behavior will not be

tolerated). Nonetheless, he maintains that the State’s argument asked the jury to
DELACRUZ — 63

decide the case based on the message that would be conveyed to the community,

rather than on the facts and the evidence, in violation of the Eighth Amendment’s

requirement for individualized sentencing in capital cases.

Here, the prosecutor did not ask the jury to send a particular message to the

community with its verdict. Rather, the prosecutor repeatedly reminded the jury to

base its decision on the evidence. The prosecutor emphasized that the jury should

“not feel pressure” from the community to render a certain verdict, but also noted

that whatever it decided would send a message about the appropriate sentence to the

community and “to others who are vulnerable to this sort of abuse.” Because the

prosecutor’s argument was within the bounds of permissible argument, the trial court

did not abuse its discretion in overruling Appellant’s objections. We overrule point

of error nine.

X. THE 10-12 RULE

In his tenth point of error, Appellant argues that Article 37.071, Section 2 is

unconstitutional because it prohibits informing jurors of the effect of a single juror’s

“no” vote on the future dangerousness special issue. We have considered and

rejected this argument many times. See, e.g., Coble v. State, 330 S.W.3d 253, 297

(Tex. Crim. App. 2010); Sorto v. State, 173 S.W.3d 469, 492 (Tex. Crim. App.

2005). We overrule point of error ten.

XI. DEFINITION OF MITIGATING EVIDENCE
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In point of error eleven, Appellant claims that the trial court erred by failing

to declare Article 37.071, Section 2(f)(4) unconstitutional for limiting the definition

of mitigating evidence to that which reduces the defendant’s moral blameworthiness.

Appellant concedes that this Court has previously rejected similar arguments. See

Coble, 330 S.W.3d at 296. He urges the Court to revisit the issue. We decline to do

so.

Appellant also argues that the statutory definition of mitigating evidence

suggests that the jury must find a nexus between reduced moral blameworthiness

and the capital offense committed, citing Tennard v. Dretke, 542 U.S. 274 (2004).

We have rejected this argument, stating that there is no “nexus” requirement in the

current statutory definition. See Coble, 330 S.W.3d at 296. We decline to revisit this

issue and overrule point of error eleven.

XII. CRITICAL TERMS

In his twelfth point of error, Appellant faults the trial court for its failure to

define the following terms and phrases within Article 37.071, Section 2: “personal

moral culpability,” “moral blameworthiness of the defendant,” “probability,”

“criminal acts of violence,” “continuing threat to society,” and “society.” He argues

that this Court should provide definitions for the terms. We have repeatedly

addressed and rejected such claims. See Camacho v. State, 864 S.W.2d 524, 536

(Tex. Crim. App. 1993) (explaining that this Court’s reluctance to define terms
DELACRUZ — 65

within 37.071 is founded on respect for division of authority between legislature and

judiciary and noting that legislature has directed that words not specifically defined

shall be understood in their ordinary sense); see also Jenkins v. State, 493 S.W.3d

583, 613–18 (Tex. Crim. App. 2016) (rejecting claims that trial court erred in failing

to define “probability,” “criminal acts of violence,” “militates,” and “continuing

threat to society”); Davis, 313 S.W.3d at 354–55 (rejecting claims that trial court

erred in failing to define “personal moral culpability,” and “moral blameworthiness,”

among other terms); Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999)

(rejecting claims that trial court erred by failing to define “probability,” “criminal

acts of violence,” “continuing threat to society” and “society”). We overrule point

of error twelve.

XIII. CONCLUSION

We affirm the trial court’s judgment of conviction and sentence of death.

Delivered: March 1, 2023

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