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Court of Appeals of Texas, Dallas.


No. 05–11–00052–CR

Decided: June 28, 2012

Before Justices Bridges, FitzGerald, and Lang


Opinion By Justice FitzGerald

A jury convicted appellant Jose Modesto Gonzalez of murder and assessed his punishment at ninety-nine years' confinement and a $10,000 fine.   In five issues, appellant challenges the jury's rejection of his self-defense claim, the admissibility of certain evidence and testimony, and the propriety of the State's closing argument.   We affirm.


Appellant was taken to the hospital following a one-car accident.   His car contained materials belonging to complainant Zulma Salmeron, with whom appellant had an on-and-off romantic relationship for some time.   The police interviewed appellant in the hospital to determine Salmeron's whereabouts.   Appellant stated he and Salmeron had argued and Salmeron attacked him with a knife.   He killed her as he tried to defend himself.   He identified the hotel where he had left Salmeron's body.   She had been stabbed seven times—in the front, side, and back of her neck—and she had been cut with the knife numerous times.   Appellant was charged and convicted of her murder.


In his first issue, appellant argues the evidence is legally insufficient for the jury to have found that he was not acting in self-defense when he killed Salmeron.   When an appellant challenges the legal sufficiency of the rejection of a defense, we view all the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found (a) the essential elements of the charged offense beyond a reasonable doubt and (b) against appellant on the defense beyond a reasonable doubt.  Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App.1991).   Thus, in this case we must view all the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found (a) the essential elements of murder beyond a reasonable doubt and (b) against appellant on self-defense beyond a reasonable doubt.   See id.

Because appellant admitted that he killed Salmeron, this issue turns on the question of appellant's intent.   Appellant testified that he did not want to kill Salmeron and that she was injured while the two of them struggled over the knife.   But when we view the evidence in the light most favorable to the prosecution, we conclude there is ample evidence that appellant did in fact intend to kill Salmeron.   The very nature of the injuries inflicted—established by autopsy—suggests they were intentionally inflicted:  appellant stabbed Salmeron seven times and cut her an additional thirteen times;  the location of the stab wounds indicated he stabbed her in the neck from the front and from the back;  and the wounds were inflicted with significant force, causing, inter alia, the complete severance of Salmeron's spinal cord.   Salmeron had wounds on her hands consistent with defensive conduct;  appellant had no such wounds.   A number of notes, which appellant admitted writing, were introduced into evidence.   The notes proclaim that he and Salmeron will “go away together until death separates us,” and that if she cannot be happy with him then she will not be happy with anyone else.1  We conclude a rational jury could have found the essential element of intent beyond a reasonable doubt, leading them to find appellant guilty of murder and to reject, beyond a reasonable doubt, his claim to have acted in self-defense.   See Saxton, 804 S.W.2d at 914.   We overrule appellant's first issue.

Admissibility of Oral Statement

In his second issue, appellant contends the trial court erred in admitting evidence of the statement appellant to police made while he was in the Intensive Care Unit. Appellant was interviewed, in Spanish, by Dallas police officer Michael Mendez.   The interview was recorded, and a written English translation of the interview was admitted as State's Exhibit 1. Appellant sought to suppress the exhibit, and the trial court heard the issue before trial.

Article 38.22 of the code of criminal procedure governs the use of statements in a criminal proceeding.   The admissibility of oral statements is addressed in section three of that statute:

No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless:

(1) an electronic recording, which may include motion picture, video tape, or other visual recording, is made of the statement;

(2) prior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning;

(3) the recording device was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered;

(4) all voices on the recording are identified;  and

(5) not later than the 20th day before the date of the proceeding, the attorney representing the defendant is provided with a true, complete, and accurate copy of all recordings of the defendant made under this article.

Tex.Code Crim. Proc. Ann. art. 38.22, § 3(a) (West 2005) (emphasis added).   Appellant's specific complaint relates to the emphasized requirement above, i.e., that all voices on the recording must be identified.   See id. § 3(a)(4).   The statutory conditions for admissibility of an oral statement are to be strictly constructed with a single exception:

The courts of this state shall strictly construe Subsection (a) of this section and may not interpret Subsection (a) as making admissible a statement unless all requirements of the subsection have been satisfied by the state, except that:

(1) only voices that are material are identified;  and

(2) the accused was given the warning in Subsection (a) of Section 2 above or its fully effective equivalent.

Id. § 3(e).   Thus, an exception to the requirement of strict construction applies when all material voices in the recording are identified, so long as the Miranda warnings are appropriately given.   In this context, “material” means “having real importance or great consequences.”   See Webster's New Collegiate Dictionary 733 (9th ed.1985).

We review a trial court's ruling on a motion to suppress under a bifurcated standard:  we give almost total deference to the trial court's determination of historical facts, and we review de novo the court's application of the law to the facts.  Valtierra v. State, 310 S.W.3d 442, 447 (Tex.Crim.App.2010).   When the trial court does not make explicit findings of historical fact, as in this case, we give due deference to the trial court's determination of facts by reviewing the evidence in the light most favorable to the trial court's ruling.  Id.

State's Exhibit 1 includes identifications of the voices of Officer Mendez and appellant.   It also identifies the voice of Joann Alish, RN, who described appellant's condition for Mendez and gave him permission to speak to appellant.   At several places in the transcript, there is a notation of “background voices.”   Neither the identity nor words of those persons are included in the transcript.   But the Miranda warnings were clearly given to appellant in this case.   And the only voices having real importance to appellant's statement concerning his criminal conduct are those of appellant and Officer Mendez.   Accordingly, because all material voices are identified, the statement was admissible pursuant to article 38.22.   The trial court did not err in refusing to suppress the statement.

We overrule appellant's second issue.

Admissibility of Photographs

In his third issue, appellant contends that the trial court erroneously admitted three crime-scene photographs of Salmeron's body in the hotel room.   According to appellant, the trial court expressly found the unfair prejudice caused by the photographs outweighed their probative value, but the court admitted the photographs regardless.   We review a trial court's decision to admit evidence under an abuse of discretion standard.  McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App.2005).   If the trial court's decision was within the “bounds of reasonable disagreement,” we do not disturb the ruling.   Apolinar v. State, 155 S.W.3d 184, 186 (Tex.Crim.App.2005).

The relevant portion of the record follows the State's offer of a number of crime-scene photographs:

DEFENSE COUNSEL:  I only have objections to 33, 34 and 35.   All of them -

THE COURT:  33, 34 and 35?

DEFENSE COUNSEL:  Yes, Your Honor.   All on the same grounds Rule 403 rules of evidence.   These photos, what they depict are also in other photos.   So they're cumulative and I think in addition, because they're cumulative, they're prejudicial.

THE COURT:  Let me see 33, 34 and 35․  Let me look.   I'm going to overrule under 403.   Prejudicial effect outweighs.   So 33, 34 and 35 are admitted for all purposes.  (Emphasis added.)

Appellant contends the above-emphasized portion of the court's remarks, “Prejudicial effect outweighs,” represents a ruling or conclusion by the court as to the unfairly prejudicial nature of the photographs.   But the remark falls between the court's ruling that it was overruling the objection under rule 403—where the standard is found—and the court's final conclusion that the photographs are admitted for all purposes.   When the court's words are read in context, they cannot reasonably be understood as appellant urges.   It is apparent the court was reviewing the photographs with the standard invoked in mind, and the court repeated part of that standard in the midst of its ruling.   We discern no abuse of discretion in the ruling.

We overrule appellant's third issue.

Admissibility of Appellant's Wife's Testimony

In his fourth issue, appellant complains that Dolores Alfaro, his putative wife, was permitted to testify against him when “the context of her testimony shows that it was not voluntary.”   The State challenges the trial court's ruling that Alfaro and appellant had an informal marriage and, alternatively, argues the record supports the trial court's conclusion that Alfaro testified voluntarily.   We review the trial court's decision to admit Alfaro's testimony for an abuse of discretion.   See McDonald, 179 S.W.3d at 576.

The trial court held a hearing outside the presence of the jury after Alfaro was called to testify.   The only evidence elicited concerning the couple's informal or common-law marriage was the following:

DEFENSE COUNSEL:  Now, Ms. Alfaro, you said that [appellant's] your husband?


DEFENSE COUNSEL:  Have y'all ever been legally married?

THE WITNESS:  Just together living.   We never got married.

DEFENSE COUNSEL:  But you've, at some point in time you've lived together?

THE WITNESS:  12 years.

On the basis of this testimony, the trial court ruled that appellant and Alfaro “were common-law married.”   In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that (1) the man and woman agreed to be married, and (2) after the agreement they lived together in this state as husband and wife, and (3) there represented to others that they were married.  Tex. Fam.Code Ann. § 2.401(a)(2) (West 2006).   Texas law is settled that evidence must establish all three elements.   Proof of cohabitation, standing alone, will not suffice to establish an informal marriage.   See Tompkins v. State, 774 S.W.2d 195, 209 (Tex.Crim.App.1987) (citing Johnson v. State, 54 S.W.2d 140, 141 (Tex.Crim.App.1932)).   Accordingly—in the absence of any evidence of an agreement to be married and of holding out—appellant failed to establish a sufficient foundation to invoke the spousal privilege, and the trial court did not err in permitting Alfaro to testify.

However, even if we were to assume appellant had established the basis for a spousal privilege, that privilege would not prohibit Alfaro from testifying voluntarily for the State, even over appellant's objection.   See Tex.R. Evid. 504(b)(1).   In this case, the trial court elicited testimony from Alfaro that she was testifying against appellant voluntarily, that no one was forcing her to testify, and that she would have come to the courthouse and testified freely even if the State had not subpoenaed her.   We conclude the court did not abuse its discretion in finding Alfaro's testimony voluntary.

We overrule appellant's fourth issue.

Improper Closing Argument

In his final issue, appellant argues his due process rights were violated by the prosecutor's arguing outside the record during closing argument in the punishment phase of the trial.   Appellant's objection was to this remark, made at the beginning of the State's time to respond to defense counsel's arguments:

[Defense counsel is] talking about the Defendant's goodness.   And he says that shows there's evidence of good on that day.   He's choosing that day to say there's goodness.   Now what you didn't hear is that there are other things that happened.   Just because the State can't bring you evidence of them doesn't mean -

At this point defense counsel objected.   The trial court sustained the objection, instructed the jury to disregard the comment, but denied counsel's request for a mistrial.   In this Court, the State agrees the prosecutor's comment was improper, but argues it was insufficient to merit a mistrial.

We review a trial court's denial of a motion for mistrial under an abuse of discretion standard.  Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App.2003).   Ordinarily, a prompt instruction to disregard will cure error in counsel's argument.   See id.   A mistrial is only appropriate when the trial court is faced with error so prejudicial that any expenditure of further time and expense would be wasteful and futile.  Id. “Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required.”  Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App.2004).

To determine whether the facts of this case merited a mistrial, we balance three factors:  (1) the severity of the misconduct and its prejudicial effect, (2) curative measures taken by the court, and (3) the certainty of the punishment assessed absent the misconduct.  Id. Our review of the argument persuades us the prosecutor's misconduct was not severe.   Although it was improper to suggest there was more evidence against appellant than had been presented at trial, the prosecutor did not identify any such evidence.   The jury had already found appellant guilty of a brutal murder at this point in the proceedings;  we see little possibility of the danger of prejudice by this remark.   The court not only sustained the objection, it instructed the jury to disregard the comment.   And finally, although we can never be certain of a jury's decision before it is made, there is nothing in the record that indicates the jury would have been likely to give this defendant a lighter sentence absent this one remark.   We cannot conclude counsel's suggestion of further evidence of guilt was so extreme as to result in incurable prejudice to appellant.   We conclude the trial court did not abuse its discretion in denying the mistrial.

We overrule appellant's fifth issue.


We have decided each of appellant's issues against him.   Accordingly, we affirm the trial court's judgment.


Court of AppealsFifth District of Texas at DallasJUDGMENT


No. 05–11–00052–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 291st Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F09–61827–U).

Opinion delivered by Justice FitzGerald, Justices Bridges and Lang participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered June 28, 2012.

/Kerry P. FitzGerald/




FN1. Appellant contends he wrote the notes in the hotel room after killing Salmeron in self-defense.   But the evidence establishes that appellant, his clothes, his car, and the hotel room were all covered in blood;  the notes, in contrast, contained no trace of blood.. The jury could certainly have believed the notes were written beforehand and actually evidenced a plan to kill Salmeron..  FN1. Appellant contends he wrote the notes in the hotel room after killing Salmeron in self-defense.   But the evidence establishes that appellant, his clothes, his car, and the hotel room were all covered in blood;  the notes, in contrast, contained no trace of blood.. The jury could certainly have believed the notes were written beforehand and actually evidenced a plan to kill Salmeron.


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