NO. 74,096






COCHRAN, J., delivered the opinion of the Court. Keller, P.J. and Keasler, J. concurred in the judgment; Hervey, J. did not participate.


On March 27, 2001, appellant was convicted of capital murder for raping and strangling a seven-year old girl, Alyssa Vasquez. Tex. Penal Code Ann. § 19.03(a)(2). Pursuant to 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 judge sentenced appellant to death. Art. 37.071, § 2(g). (1) Direct appeal to this Court is automatic. Art. 37.071, § 2(h). Appellant raises twenty-four points of error. We will affirm.

In points of error one through five, appellant argues that the trial court erroneously admitted the oral statement that he made to Sergeant Edward Gonzalez while he was incarcerated at the Bexar County Jail awaiting trial on this capital murder indictment. He contends that Gonzalez failed to read him the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), and Article 38.22, section 2, thereby violating the Fifth Amendment to the United States Constitution, Article I, section 10 of the Texas Constitution, and Article 1.05. Appellant also contends that his oral statement was inadmissible because it was not electronically recorded as required by Article 38.22, section 3(a).

Miranda and Article 38.22 apply only to custodial interrogation. Dowthitt v. State, 931 S.W.2d 244, 263 (Tex. Crim. App. 1996). Custodial interrogation occurs when a defendant is in custody and is subjected to "words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response." Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980). Miranda does not stand for the proposition that all statements made to a police officer while a defendant is in custody should be considered the product of custodial interrogation. Innis, 446 U.S. at 299. Section 5 of Article 38.22 similarly exempts voluntary statements that are not the product of custodial interrogation. Tex. Code Crim. Proc. art. 38.22, § 5. If a defendant's freely and voluntarily given statements do not stem from custodial interrogation, then the protections afforded by Miranda and Article 38.22 do not apply. Innis, 446 U.S. at 300; Dowthitt, 931 S.W.2d at 263.

Sergeant Gonzalez of the Bexar County Sheriff's Department testified at a hearing outside the presence of the jury that he was in charge of the second floor of the detention center when he received an inmate request form from appellant in December 1999. Appellant indicated on the form that he wanted to be placed in isolation for his own safety. Gonzalez testified that it was standard procedure for him to interview an inmate who makes such a request in order to verify the reasons for the request. When Gonzalez asked appellant why he feared for his safety, appellant replied that it was because he had "killed a Mexican Mafia family member." Although the trial judge limited inquiry into any alleged ties that the victim's family, various witnesses, and appellant himself had to the Mexican Mafia, the purported implication of appellant's statement was that he admitted to Sergeant Gonzales that he had killed the victim. The trial court denied appellant's motion to suppress Gonzalez's testimony at the conclusion of the hearing and Gonzalez testified before the jury regarding appellant's oral statement.

As a practical matter, appellant was clearly "in custody" while he was incarcerated in the detention center because he was not free to leave. It is open to debate, however, whether appellant was in custody for Miranda purposes. (2) But even assuming, for the sake of argument, that appellant was in custody for Miranda purposes, we cannot say that appellant's statements arose from any "interrogation," as that term has been defined. See Innis, 446 U.S. at 300-01 ("the special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody but rather where a suspect in custody is subjected to interrogation. 'Interrogation,' as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself"). Gonzalez testified that he did not intend to conduct an investigation into appellant's guilt or innocence and he did not ask appellant any questions about his charged offense. His only purpose was to find out why appellant desired to be placed in isolation, and he did not expect appellant's response to be incriminating. Because appellant's spontaneous self-incriminating statement went beyond the scope of Sergeant Gonzales' innocuous inquiry, Sergeant Gonzalez was not required to comply with the procedural safeguards of Miranda and Article 38.22 because the appellant's statement was not the product of custodial interrogation. Innis, 446 U.S. at 301(police cannot be held accountable for the unforeseeable results of their words or actions; therefore, definition of interrogation extends only to "words or actions on the part of police officers that they should [know are] reasonably likely to elicit an incriminating response"); Pennsylvania v. Muniz, 496 U.S. 582, 601-02 (1990) (questions attendant to booking or "to the police's administrative concerns" fall outside Miranda's protections); McCambridge v. State, 712 S.W.2d 499, 505 (Tex. Crim. App. 1986) ("[q]uestioning 'normally attendant to arrest and custody' is not interrogation"). Thus, the trial court did not abuse its discretion in denying appellant's motion to suppress and admitting evidence of his oral statement. Points of error one through five are overruled.

In his sixth point of error, appellant argues that the trial court violated Rule of Evidence 404(b) when it allowed the State to introduce evidence of an unadjudicated extraneous offense at the guilt or innocence phase of the trial. (3) TEX. R. EVID. 404(b). Rule 404(b) provides that evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. Id. Such evidence may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. It may also be admissible to rebut a defensive theory. Wheeler v. State, 67 S.W.3d 879, 887 (Tex. Crim. App. 2002).

In its case-in-chief, the State introduced evidence that on June 6, 1999, appellant abducted Alyssa Vasquez from her home while her mother was out and the babysitter was next door. He raped and strangled her, and abandoned her body in a nearby field. Appellant testified on his own behalf at trial. On direct examination by defense counsel, appellant admitted that he was a registered sex offender due to a prior conviction for aggravated sexual assault, but stated: "It was not with a child." When defense counsel asked appellant at the end of the direct examination, "Is there anything else you want to tell this jury now?" appellant responded:

Like I told my attorney, and the District Attorney has it in their file, too, I was not convicted for molesting a child or hurting a child. Never. I have nieces and nephews of my own and a 34-year daughter. I would never do that to a child, you know. The only thing that would look like that I'm guilty of is messing around behind my girlfriend's back, if you want to call it messing around. You know, that's it.

Following appellant's response, the State - outside the jury's presence - asked to introduce evidence of "other incidents of attempts to molest other little girls," arguing that appellant had opened the door to this evidence when he testified that he would never molest or hurt a child. The trial court overruled appellant's objection and permitted the State to present the testimony of Manuel Longoria and Longoria's daughter, Teresa, during rebuttal.

Manuel Longoria testified that he and his daughter Teresa were staying overnight at the home of Manuel's brother and sister-in-law in late May, 1999, about a week or two prior to the instant offense. Appellant came to the house in the middle of the night, looking for a place to stay because his girlfriend had kicked him out. Manuel's brother and sister-in-law agreed to let him spend the night. Manuel and Teresa slept on couches in the living room and appellant slept in a chair in the same room. Teresa, who was about seven years old at the time, testified that she woke up in the middle of the night because appellant was touching her on her stomach underneath her shirt. She ran to her cousins' room and appellant followed her into the room, offered her a dollar bill, and told her to go into the bathroom with him. At that point, Teresa ran to the living room and woke Manuel to tell him what happened. Manuel testified that he went to the bedroom and found appellant lying on the floor. When Manuel asked appellant, "What are you trying to do with my daughter?," appellant replied, "I didn't do nothing. I don't know what you are talking about." Manuel and appellant then got into an altercation and Manuel's brother made appellant leave the house. Appellant denied the incident on rebuttal and testified that Manuel and Teresa made false allegations because of "bad blood" between Manuel and appellant.

Evidence of extraneous offenses committed by the accused may be admissible to refute a defensive theory raised by the accused. Wheeler, 67 S.W.3d at 886-7; Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001); Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1991)(on rehearing). We review claims of error in admitting evidence under an abuse of discretion standard. Montgomery, 810 S.W.2d at 379. Here, appellant testified, essentially, that although he had been convicted of aggravated sexual assault, he never had and never would molest or otherwise harm a child. In short, he asserted that he was not the sort of person who would sexually molest any child, including, by implication, the capital murder victim. Both Manuel's and Teresa's testimony was relevant to rebut this assertion. They testified to appellant's apparent attempt to molest Teresa, who was then only about seven years old, that occurred only two weeks before the abduction and murder of Alyssa Vasquez, another seven-year-old girl. Although Manuel and Teresa Longorias' testimony was not admissible as propensity evidence (i.e., evidence of appellant's propensity to molest little girls), it was admissible for precisely the reason that the State gave: to rebut appellant's assertion that he "would never do that to a child." Therefore, we hold that the trial judge did not abuse her discretion in admitting their testimony.

Even assuming arguendo that the trial court erred by allowing Manuel's and Teresa's testimony, appellant would not prevail on this point of error because he is unable to demonstrate harm. Tex. R. App. P. 44.2. Because errors in admitting evidence are generally not constitutional in nature, we review any purported error under Texas Rule of Appellate Procedure 44.2(b). Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001). If the error does not affect a substantial right, it will be held harmless. Tex. R. App. P. 44.2(b). The appellate court should review the entire record, including testimony and physical evidence, the nature of the evidence supporting the verdict, the character of the error and its relationship to other evidence, the trial court's instructions to the jury, the State's and defendant's theories of the case, jury argument, and relevant voir dire. Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). A substantial right has been violated when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). If the error had no influence or only slight influence on the verdict, it is harmless. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Reversal is required if the reviewing court harbors a "grave doubt" that the error did not affect the outcome. United States v. Lane, 474 U.S. 438, 449 (1986). The evidence showed that on the night of the offense, before Alyssa Vasquez was discovered missing, appellant telephoned her residence several times and came by looking for her mother and asking when she was going to return home. The babysitter discovered that Vasquez was missing at around 2:30 a.m. and later observed appellant running down the street away from the residence. Police found appellant at his residence, which was one and one-half to two miles from Vasquez's apartment, at approximately 4:00 a.m., and found appellant's blood-spotted shirt and boxer shorts (4) in a trash can outside the residence. The evidence also showed that appellant admitted his involvement in the offense to a detention guard and to a fellow inmate at the Bexar County Jail, and implied his involvement to another inmate; the only contrary evidence was appellant's own testimony, in which he denied making these statements. Scientific testing revealed that appellant's DNA was consistent with the DNA extracted from spermatozoa on Vasquez's oral swab. We find that the evidence of appellant's guilt was overwhelming. However, the strength of the evidence supporting appellant's guilty verdict is but one factor in determining whether appellant was harmed by the trial judge's purported error in admitting the Longorias' testimony. Morales v. State, 32 S.W.3d at 867; Johnson v. State, 967 S.W.2d at 417.

As part and parcel of appellant's initial testimony, he discussed his prior conviction for aggravated sexual assault. His testimony regarding that assault and his resulting conviction, alone, almost certainly damaged his credibility in the jury's eyes. Moreover, appellant's testimony demonstrated his distorted perception of his prior crime, his refusal to take responsibility for it, and his capacity for violence. Appellant was evasive, stating on direct examination that he had been "young [nineteen]and had made a mistake." On cross-examination, appellant refused to acknowledge his guilt, asserting that, although he had been convicted of the crime, he was actually not guilty and that the "mistake" he referred to on direct examination was the mistake that he made by not testifying in his own defense in that case. When pressed by the prosecutor, appellant conceded that he had consensual sexual relations with the complainant twice, but that the third time was without consent. He asserted, however, that the complainant's claims that he had put a gun to her head and that he had forced her to suck the barrel of a gun were complete fabrications.

After Manuel Longoria and his daughter testified, appellant again testified and vigorously, if not persuasively, reasserted his innocence, claiming that bad blood existed between himself and Longoria, which gave Longoria a motive to lie and to coach his daughter into doing the same. Appellant's explanation for the evidence against him was essentially that he was a convenient target of the investigation into Alyssa's death because he was a registered sex offender, living nearby, who had just happened to have known the victim's mother and to have been in the victim's apartment on the night of her death. According to appellant, the witnesses who testified against him were participants in an elaborate conspiracy organized by the District Attorney's office. As for the physical evidence against him, he argued that the 99%-plus accuracy rate of DNA tests testified to by the State's forensic serologist was still not enough to show that his DNA matched the DNA samples taken from Alyssa Vasquez's body.

In the State's closing argument, the prosecutors focused on appellant's lack of credibility, the improbability of his explanations - especially given the physical evidence in the case - and his anger, as demonstrated through his testimony. They mentioned the Longorias' testimony as one example of how appellant's credibility had been impeached but did not unduly emphasize it. Defense counsel likewise emphasized credibility, highlighting possible motives that witnesses against appellant had to lie. Counsel similarly attempted to cast doubt on the reliability of DNA evidence and asserted that appellant was a victim of circumstance - his prior sexual assault conviction and mere presence in the child's home on the night of the murder made appellant an easy, but mistaken, target of law enforcement.

Reviewing the trial court's charge to the jury, we note that the application paragraph properly limited the jury's consideration of the Longorias' testimony to impeachment purposes. The charge explicitly instructed the jury that it could consider evidence of appellant's extraneous bad acts, if any, only in evaluating appellant's credibility as a witness in his own behalf. The charge also explicitly instructed the jury that it could not consider such evidence for any other purpose (i.e., as evidence of his guilt in this case). We presume that jurors follow the trial court's instructions. Smith v. State, 898 S.W.2d 838, 880 (Tex. Crim. App. 1995); Rose v. State, 752 S.W.2d 529, 554 (Tex. Crim. App. 1988). While this presumption is rebuttable, we find no evidence in the record before us to suggest that the jurors in this case did not follow the trial court's instruction. See id.

Given the overwhelming evidence of appellant's guilt, his damaged credibility even before he opened the door to evidence of extraneous offenses, the propriety of the State's closing argument, and the jury charge, we are convinced that, in light of the record as a whole, there is no reasonable likelihood that Manuel's and Teresa's testimony had a substantial and injurious influence in determining the jury's verdict. See Johnson, 967 S.W.2d at 417. Point of error six is overruled.

In points of error seven and eight, appellant contends that the trial court's exclusion of Defense Exhibits 10 and 11 violated his rights under the Fifth and Fourteenth Amendments to the United States Constitution and sections 13 and 19 of the Texas Constitution. The exclusion of appellant's evidence is constitutional error only if the evidence formed such a vital portion of the case that exclusion effectively precluded him from presenting a defense. Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002).

The State called Gustavo De Leon, a forensic serologist with the Bexar County Forensic Science Center, to testify regarding the results of the DNA testing that he performed in the instant case. On direct examination by the State, De Leon testified that appellant's DNA matched (5) the DNA extracted from spermatozoa on the victim's oral swabs. During cross-examination, De Leon testified that he conducted this DNA analysis with the assistance of "GenoTyper" computer software. The trial court admitted Defense Exhibits 5, 6, 7, 8, and 9, which were copies of De Leon's five GenoTyper reports. Defense counsel questioned De Leon about why he wrote the words, "Inconclusive" and "See GeneScan (6)," on Defense Exhibit 8. De Leon explained that the notation referred only to his testing of "Item 2A," which consisted of cuttings from the boxer shorts that police retrieved from a trash can outside appellant's residence. He further testified that he did not print GeneScan data when testing the victim's oral swabs. Defense counsel attempted to introduce Defense Exhibits 10 and 11, copies of the two GeneScan reports that referred to Item 2A, but the State objected that they were "not relevant to anything that was produced on direct." The trial court sustained the State's relevancy objection and excluded Defense Exhibits 10 and 11.

Appellant asserts:

The GeneScan reports showed inconclusive results which could be interpreted as a non-match of Appellant's DNA. There were no other validation reports showing such inconclusiveness admitted for the jury. The denial of the relevant Exhibits 10 and 11 denied Appellant his due process rights by denying the admission of evidence showing reasonable doubt.


De Leon, however, testified regarding his "inconclusive" notation on Defense Exhibit 8, which was admitted into evidence before the jury. Thus, contrary to appellant's assertion, Defense Exhibits 10 and 11 were not the only reports indicating inconclusive results. Furthermore, Defense Exhibits 8, 10, and 11 each pertained to the testing De Leon performed on appellant's boxer short cuttings. It was never alleged that the blood on the boxer shorts belonged to the victim. De Leon's testimony concerned only the results of his comparison of three items: 1) genetic material (semen) obtained from an oral swab of the victim's mouth; 2) a known blood sample from the victim; and 3) a known blood sample drawn from appellant. De Leon testified that, based on the his comparison of the three samples, appellant was the source of the semen left in the victim's mouth. The result of a DNA test conducted on a sample from the boxer shorts was thus not relevant to any material issue in the case because no one ever suggested that the blood on the boxer shorts came from the victim. Moreover, the "inconclusive" notations on Defense Exhibits 10 and 11 are not, as appellant argues, evidence of a "non-match." De Leon's testimony on cross-examination and re-direct examination explains that his office uses the term "inconclusive" to denote situations in which there is simply not enough genetic material in a particular sample to conduct a meaningful analysis. Thus, the "inconclusive" notation established nothing, either for or against appellant. Therefore, we find that the trial court did not abuse its discretion in excluding Defense Exhibits 10 and 11. Appellant has failed to show that these exhibits were relevant to a fact in issue or that they formed such a vital portion of the case that their exclusion effectively precluded him from presenting a defense. Potier, 68 S.W.3d at 665. Points of error seven and eight are overruled.

In his ninth and tenth points of error, appellant contends that he was denied his right to confront the witnesses against him, in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, section 10 of the Texas Constitution. Appellant specifically argues that he was prevented from effectively cross-examining Ernest Rodriguez when the trial court refused to allow him to question Rodriguez about his juvenile record.

The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him. Davis v. Alaska, 415 U.S. 308, 315 (1974). Confrontation means more than being allowed to confront the witness physically; it also encompasses the right of cross-examination. Id. Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Id. at 316. The exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. Id.

State's witness Ernest Rodriguez testified on direct examination that he was housed at the Bexar County Jail at the same time as appellant. Rodriguez was in jail on a pending charge for possession of cocaine and a parole violation. Rodriguez testified that appellant confessed to him that he committed the instant crime while they were both in jail. After appellant admitted his involvement, Rodriguez told his wife to contact the District Attorney's Office with this information. Rodriguez gave two statements detailing what appellant had told him. He gave one statement to a police detective on July 23, 1999, and a second statement to an investigator from the District Attorney's Office on November 1, 1999.

Rodriguez further testified that he had a deal with the State whereby his possession charge would be dropped in exchange for his testimony. He testified that he did not have a deal with regard to his parole situation, but stated: "After the possession charge was dropped, parole reinstated my parole, and I was released." He stated that he would have testified even if his pending charges had not been dropped.

Prior to cross-examination, defense counsel, outside the jury's presence, requested that the trial court allow him to question Rodriguez about his juvenile record. Defense counsel "agree[d] with the State that normally juvenile records are not admissible for purposes of impeachment," but argued:

The purpose is to show the experience, the involvement of this individual, to show his motive; not his credibility, but his motive and his intent in talking with the District Attorney's office and talking with law enforcement; and that he has been so involved in the criminal justice system since he was a small child, that he is fully aware of the benefit.

The trial court denied defense counsel's request. See TEX. R. EVID. 609(d). Defense counsel made a bill of exception and questioned Rodriguez about his juvenile record. Rodriguez stated that he never provided information to law enforcement regarding other people's criminal offenses as a juvenile. The first time he provided such information to law enforcement was in 1990 when he was twenty-one or twenty-two years old. In that instance, he was in jail for auto theft and his case was dismissed as a result of providing information. Defense counsel questioned Rodriguez before the jury regarding his extensive criminal record as an adult and his history of making deals in exchange for providing information to law enforcement. Rodriguez testified that he had two burglary charges, one of which resulted in a conviction, three theft charges, one auto theft charge, three drug arrests, and one arrest for obstructing the police. He was convicted of shoplifting in 1988 and was placed on probation and required to pay a fine. He was convicted of delivery of a controlled substance in 1989 and received a ten-year sentence. He violated his parole and was jailed on the auto theft charge in 1990, but the charge was dropped after he provided information to police regarding another crime. His parole was revoked at that time, but he served only ninety days instead of seven years.

Rodriguez further testified that, while out on parole in 1991, he was convicted of burglary of a habitation and received a sixteen-year sentence. He was released on parole in 1993, was returned to TDCJ on a parole violation, was released on parole again in 1998, and was charged with possession of cocaine and placed in Bexar County Jail in 1999, at which point he was incarcerated on the same floor as appellant. Rodriguez testified that he knew he could get a life sentence if he was convicted on his pending possession of cocaine charge because he had two previous felony convictions. He knew that he had a prior case dismissed in exchange for providing information to the police in the past. He was also aware that appellant was charged with capital murder and was incarcerated on the same floor in the county jail.

Appellant essentially argues that he could have been even more successful in exposing Rodriguez's motivation in testifying if he had been able to question him about his juvenile record; however, "the Confrontation Clause only guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Thomas v. State, 837 S.W.2d 106, 112 (Tex. Crim. App. 1992)(citing Delaware v. Fensterer, 474 U.S. 15, 20 (1985)(emphasis in original)). It is evident from the record that appellant was able to impeach Rodriguez despite being unable to question him about his juvenile record. Appellant has not shown that he was denied his right to confront witnesses against him under the federal or state constitutions. Points of error nine and ten are overruled.

In points of error twelve and thirteen, appellant complains that the trial court improperly reminded him in front of the jury that he was not required to testify. Appellant argues in point of error twelve that the trial court's statement destroyed his constitutional presumption of innocence. Appellant contends in point of error thirteen that the trial court's statement amounted to a comment on the weight of the evidence in violation of Article 38.05.

After the close of the guilt or innocence phase of the trial, defense counsel, outside the jury's presence, requested permission to reopen because appellant desired to testify. Defense counsel informed the trial court that appellant wished to testify against the advice of counsel. The trial court explained to appellant that he was not required to testify and told him that he should carefully consider his choice to do so. The jury was returned to the courtroom and the following exchange occurred:

THE COURT: Thank you. Please be seated. Ladies and gentlemen, the Defense has requested to reopen their case. That request has been granted. Mr. McDonald?

[DEFENSE COUNSEL]: At this time, the Defendant calls Guadalupe Esparza to the stand.

THE COURT: Mr. Esparza? Mr Esparza, I need to remind you, again, that you are not required to testify.

[ESPARZA]: Yes, ma'am.

Appellant failed to object to the trial court's statement. Thus, he has failed to preserve this complaint for appeal. TEX. R. APP. P. 33.1; cf. Blue v. State, 41 S.W.3d 129, 131-32 (Tex. Crim. App. 2000)(plurality op.). (7) Points of error twelve and thirteen are overruled.

In his fourteenth point of error, appellant contends that the trial court violated Texas Rule of Evidence 403 when it admitted certain photographs into evidence at the guilt or innocence phase of the trial. The photographs at issue, State's Exhibits 24, 25, and 26, were introduced into evidence during the testimony of Officer Carlos Ortiz of the San Antonio Police Department, who participated in the search for Vasquez in the early morning hours of June 6, 1999. Ortiz testified that he found Vasquez's body in a grassy area behind a meat market which was located about seventy-five to eighty feet from the apartment complex where she had lived. The three photographs depict Vasquez's partially clothed body as it was found at the crime scene. Appellant objected to the photographs at trial under Rule 403 and his objection was overruled. Appellant argues on appeal that the danger of unfair prejudice substantially outweighed the probative value of these photographs. TEX. R. EVID. 403.

Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996). The admission into evidence of photographs is within the discretion of the trial court and will not be disturbed absent an abuse of that discretion. Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App.1993).

Appellant argues that the photographs were prejudicial because they depict Vasquez nude from the waist down. However, whether the body depicted is clothed or naked is only one of the factors that a court may consider in determining whether the probative value of photographs is substantially outweighed by the danger of unfair prejudice. Other factors include: the number of exhibits offered, their gruesomeness, their detail, their size, whether they are in color or black and white, and whether they are close-up. Long v. State, 823 S.W.2d 259, 272 (Tex. Crim. App. 1991).

The three photographs at issue depict Vasquez's body as it was found at the scene from varying angles. We cannot determine from the record whether the photos shown to the jury were in color or black-and-white. The 8" x 10" photographs are neither close-up nor especially detailed. The photographs portray no more than the gruesomeness of the injuries inflicted. See Narvaiz v. State, 840 S.W.2d 415, 429 (Tex. Crim. App. 1992). The trial court did not abuse its discretion in admitting State's Exhibits 24, 25, and 26. Point of error fourteen is overruled.

Appellant argues in his fifteenth point of error that the trial court improperly overruled his challenge for cause against veniremember Michael Trujillo. Appellant claims that his challenge for cause should have been granted because Trujillo "was biased against the law allowing for a range of punishment to include life in prison and would therefore answer the special issues untruthfully." See Art. 35.16(c)(2).

To preserve error for a trial court's erroneous denial of a challenge for cause, appellant must show that: (1) he asserted a clear and specific challenge for cause; (2) he used a peremptory challenge on the complained-of veniremember; (3) all of his peremptory challenges were exhausted; (4) his request for additional strikes was denied; and, (5) an objectionable juror sat on the jury. Green v. State, 934 S.W.2d 92, 105 (Tex. Crim. App. 1996). Appellant has properly preserved error.

Appellant, however, is unable to demonstrate harm. When the trial judge errs in overruling a challenge for cause against a veniremember, the defendant is harmed if he uses a peremptory strike to remove the veniremember and thereafter suffers a detriment from the loss of the strike. Demouchette v. State, 731 S.W.2d 75, 83 (Tex. Crim. App. 1986). Because appellant received one additional peremptory challenge, appellant demonstrates harm by showing that the trial court erroneously denied two challenges for cause. Penry v. State, 903 S.W.2d 715, 732 (Tex. Crim. App. 1995); Martinez v. State, 763 S.W.2d 413, 425 (Tex. Crim. App. 1988). Appellant's brief on appeal alleges only that the trial court improperly denied a challenge for cause against one veniremember, Michael Trujillo. Point of error fifteen is overruled.

In point of error sixteen, appellant argues that Article 37.071, section 2(b)(1) is unconstitutional because it fails to define the terms "probability," "criminal acts of violence," and "continuing threat to society." Appellant contends that these aggravating factors are vague and do not properly channel the sentencing jury's discretion. We have previously rejected this argument and have consistently held that these terms need not be defined in the charge. Ladd v. State, 3 S.W.3d 547, 572-73 (Tex. Crim. App. 1999); Camacho v. State, 864 S.W.2d 524, 536 (Tex. Crim. App. 1993). Point of error sixteen is overruled.

Appellant again challenges the constitutionality of the Texas death penalty scheme in point of error seventeen, arguing that "it does not provide for meaningful appellate review" because: (1) it does not provide for any appellate review of the mitigation special issue; (2) there is no meaningful review of the future dangerousness special issue; (3) it does not provide for a comparative proportionality review; and, (4) the mitigation special issue is open-ended and unstructured.

We do not review the sufficiency of the evidence to support a jury's negative answer to the mitigating evidence special issue, and we have rejected the claim that this deprives a defendant of meaningful appellate review. Salazar v. State, 38 S.W.3d 141, 146 (Tex. Crim. App.), cert. denied, 534 U.S. 855 (2001). We review the sufficiency of the evidence to support the future dangerousness special issue using the standard announced in Jackson v. Virginia, 443 U.S. 307, 319 (1979). See McGinn v. State, 961 S.W.2d 161, 166-169 (Tex. Crim. App. 1998). We have held that the Due Process Clause does not require a comparative proportionality review. King v. State, 953 S.W.2d 266, 273 (Tex. Crim. App. 1997). We have also rejected the contention that the mitigation special issue is unconstitutional due to open-ended discretion. Lawton v. State, 913 S.W.2d 542, 560 (Tex. Crim. App. 1995). Point of error seventeen is overruled.

Appellant argues in his eighteenth point of error that Article 37.071, section 2(e) is unconstitutional because it fails to assign a burden of proof. The absence of an explicit assignment of the burden of proof does not render Article 37.071, section 2(e) unconstitutional. Raby v. State, 970 S.W.2d 1, 9 (Tex. Crim. App. 1998). All that is required is a vehicle by which the jury can consider and give effect to the mitigating evidence. Id. at 8. Point of error eighteen is overruled.

In point of error nineteen, appellant complains the "12-10 rule" in Article 37.071, which requires at least ten "no" votes for a jury to reach a negative answer to the first and second special issues and at least ten "yes" votes for the jury to return an affirmative answer to the mitigation special issue, violates the Eighth and Fourteenth Amendments to the United States Constitution. We have previously decided this issue adversely to appellant. Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1996); Draughon v. State, 831 S.W.2d 331, 337-38 (Tex. Crim. App. 1992). Point of error nineteen is overruled.

In his twentieth point of error, appellant contends that Article 37.071 is unconstitutional because it fails to require that jurors be informed that a single holdout juror on any special issue would result in an automatic life sentence. We have previously rejected this contention. Shannon v. State, 942 S.W.2d 591, 600-601 (Tex. Crim. App. 1996); Brooks v. State, 990 S.W.2d 278, 288 (Tex. Crim. App. 1999). Point of error twenty is overruled.

Appellant argues in point of error twenty-one that the present Texas capital sentencing scheme is unconstitutional because it allows the open-ended discretion that is prohibited by the Supreme Court's decision in Furman v. Georgia, 408 U.S. 238 (1972). We have repeatedly rejected this claim and appellant raises nothing new to persuade us to revisit this issue. Lawton, 913 S.W.2d at 560; Pondexter v. State, 942 S.W.2d 577, 586-87 (Tex. Crim. App. 1996). Point of error twenty-one is overruled.

In point of error eleven, appellant contends that the trial court erroneously denied his request to have the jury instructed on mitigating evidence as follows:

A mitigating circumstance may include, but is not limited to, any aspect of the Defendant's character, background record, emotional stability, intelligence or circumstances of the crime which you believe could make a death sentence inappropriate in this case.

The trial court instead defined mitigating evidence "to be evidence that a juror might regard as reducing the defendant's moral blameworthiness," as required by Article 37.071, section 2(f)(4). In his twenty-second point of error, appellant contends that this definition of "mitigating evidence" is unconstitutional because it limits the concept of mitigation to factors that render a capital defendant less morally "blameworthy" for the commission of the capital murder. See Art. 37.071, § 2(f)(4). We rejected this contention in Raby, 970 S.W.2d at 8. Points of error eleven and twenty-two are overruled.

Appellant asserts in points of error twenty-three and twenty-four that the Texas death penalty scheme amounts to cruel and unusual punishment under both the federal and state constitutions. We have previously rejected this contention as well. Anderson v. State, 932 S.W.2d 502, 509-510 (Tex. Crim. App. 1996); Cantu v. State, 939 S.W.2d 627, 639 (Tex. Crim. App. 1997). Points of error twenty-three and twenty-four are overruled. We affirm the judgment of the trial court.


Cochran, J.

Delivered: June 4, 2003

En banc

Do Not Publish

1. Unless otherwise indicated, this and all future references to Articles refer to the Texas Code of Criminal Procedure.

2. As one commentator observes:

[I]ncarceration is not necessarily equivalent to Miranda custody. ... A prisoner is in Miranda custody only when some additional restraint, not normally encountered in prison life, is imposed upon him by investigators.

Laurie Magid, Questioning the Question-Proof Inmate: Defining Miranda Custody for Incarcerated Suspects, 58 Ohio St. L.J. 883, 883 (1997).


On a superficial review, all incarceration might seem to constitute custody since inmates cannot, of course, leave the facility in which they are incarcerated. But custody in layperson's terms is not necessarily custody for Miranda purposes. Miranda's definition of custody reflects a concern more with the coercive forces that may affect interactions between a suspect and an interrogating official, and less with the fact that a person's ability to select his activities and routine is greatly limited as an inmate.


Id. at 933.

In his dissent from the denial of certiorari review in Bradley v. Ohio, 497 U.S. 1011 (1990), Justice Marshall recognized a split in the courts of appeals regarding what constitutes custody in the prison setting. See United States v. Menzer, 29 F.3d 1223, 1232 n.7 (7th Cir. 1994)("[t]he U.S. Supreme Court has declined an opportunity to address the question of whether incarceration constitutes custody for purposes of Miranda"); see also United States v. Cooper, 800 F.2d 412, 414 (4th Cir. 1986)(holding that prison inmate was not in custody for Miranda purposes because his freedom of movement was not restricted more than it would be normally in a prison environment); Flittie v. Solem, 751 F.2d 967, 974 (8th Cir. 1985)("[i]ncarceration does not ipso facto make a statement involuntary"); Cervantes v. Walker, 589 F.2d 424, 427-29 (9th Cir. 1978)(refusing to apply Miranda to "on-the-scene" questioning of prison inmate and holding that inmate's freedom of movement was not diminished more than usual in the prison context); United States v. Scalf, 725 F.2d 1272, 1276 (10th Cir. 1984)(general on-the-scene questioning permissible under Miranda). The Fifth Circuit Court of Appeals' approach to the issue is not clear.

3. Appellant also argues in his brief that the evidence was erroneously admitted because "[i]ts probative value does not outweigh its prejudicial effect." To the extent that appellant is arguing a violation of Texas Rule of Evidence 403, his argument is forfeited because he did not object on this basis at trial. TEX. R. APP. P. 33.1

4. The blood on appellant's shirt and boxer shorts was tested and determined not to belong to the victim. Ernest Rodriguez, with whom appellant was housed in the Bexar County Jail, testified that appellant told him that he had cut himself in a bar fight, and even though the blood was his own, he discarded the stained clothing because he did not want investigators to think that the blood on his clothing was the same as the blood that had come from Alyssa Vasquez' mouth and private parts. The discarded clothing was thus some evidence of appellant's consciousness of guilt. Moreover, his statements demonstrated his detailed knowledge of the crime at the time that he discarded the clothing shortly after Alyssa disappeared.

5. De Leon explained during his testimony that it is the policy of the Bexar County Forensic Science Center, upon finding a genetic match, to report that the test subject "cannot be excluded" as the source of genetic material collected during a criminal investigation. De Leon stated that Bexar County's terminology differs from that of the Federal Bureau of Investigation, which would simply call this type of test result a "match."

6. "Genescan" refers to another software program employed by the Bexar County Forensic Science Center.

7. Appellant also argues that the prosecutor "highlighted" the trial court's improper comment during closing argument when he stated:

You will put his credibility up against everybody else's, and the result will be the same. He does not get to get up there and get points because he testified. It's his right. He didn't have to. And as you saw, nobody could stop him from it. Twice.

Appellant has also failed to preserve this complaint for appeal by failing to object to the prosecutor's argument at trial. TEX. R. APP. P. 33.1.