Documente Academic
Documente Profesional
Documente Cultură
ARMANDO LEZA,
Appellant
VS.
ANGELA J. MOORE
Chief Appellate Public Defender
Amoore@bexar.org
Bar No. 14320110
LORI RODRIGUEZ
Senior Assistant
Appellate Public Defender
410 S. Main Ave., Suite 214
San Antonio, Texas 78204
ORAL ARGUMENT REQUESTED (210) 335-0701
FAX (210) 335-0707
lorirodriguez@bexar.org
Bar No. 90001869
ATTORNEYS OR APPELLANT
IDENTITY OF PARTIES AND COUNSEL
Pursuant to TEX. R. APP. P. 38.1(a) (West 2005), the parties to this suit are as
follows:
South, Livingston, Texas 77351, is Mr. Leza and was the defendant in trial court.
(2) The STATE OF TEXAS, by and through the Bexar County District
Attorney’s Office, 300 Dolorosa St., 5th Floor, San Antonio, Texas 78205, is the Appellee
BARBARA HUGHES, Attorneys at Law, 101 Stumberg, San Antonio, Texas 78205.
Attorney, and LORINA RUMMEL and JAN ISCHY, Assistant District Attorneys, 300
Public Defender, and LORI RODRIGUEZ, Senior Assistant Appellate Public Defender,
ii
(2) The State of Texas is represented by the BEXAR COUNTY DISTRICT
ATTORNEY’S OFFICE, Appellate Section, 300 Dolorosa St., 4th Floor, San Antonio,
Texas 78205.
The trial judge was HON. RAYMOND ANGELINI, Judge, 187th Judicial
District Court, 300 Dolorosa St., 3rd Floor, San Antonio, Texas 78205.
iii
iv
TABLE OF CONTENTS
vi
44.2(a), if there is constitutional error, the appellate court must reverse unless it determines beyond a reasonable
doubt that the error did not contribute to the conviction. The sentences in this case must therefore be reversed and
remanded.....................................................................................................................................................................108
POINT OF ERROR TEN........................................................................................................................................109
POINT OF ERROR ELEVEN................................................................................................................................116
POINT OF ERROR TWELVE...............................................................................................................................125
POINT OF ERROR THIRTEEN............................................................................................................................131
The trial court should have given a definition of the word “probability” as used in the first special issue of the
jury’s sentencing phase instruction concerning future dangerousness. Tex. Code Crim. Proc. Art.37.071 § 2(b)(1):
“Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a
continuing threat to society”. ...................................................................................................................................131
Failing to adequately channel the jury’s understanding of this term effectively deprived Mr. Leza of his rights
under the Eighth and Fourteenth Amendments to the United States Constitution. Pursuant to Tex. R. App. P.
44.2(a),if there is constitutional error, the appellate court must reverse unless it determines beyond a reasonable
doubt that the error did not contribute to the conviction. Since the jury here could have applied any definition to the
term “probability” – even interpreting it as requiring far less than a 50% chance of recurring violence- the sentences
must be reversed and remanded..................................................................................................................................133
POINT OF ERROR FOURTEEN...........................................................................................................................134
CERTIFICATE OF SERVICE..................................................................................................................................140
vii
TABLE OF AUTHORITIES
Statutes
TEX. CODE CRIM. PROC. ART. 35.22.................................................................................101
TEX. CODE CRIM. PROC. ANN. Art. 36.29.............................................................................72
TEX. CODE CRIM. PROC. Ann. Art. 37.07...........................................................................111
TEX. CODE CRIM. PROC ANN. Art. 37.071....................................................................passim
TEX. CODE CRIM. PROC. ANN. Art. 37.02.......................................................................72, 76
TEX. CODE CRIM. PROC. ANN. Art. 37.03.......................................................................72, 78
TEX. CODE. CRIM. PROC. ANN Art. 38.22......................................................................29
TEX. PENAL CODE ANN. § 7.01..........................................................................54, 55, 73, 74
TEX. PENAL CODE ANN. § 7.02.....................................................................................passim
TEX. PENAL CODE ANN. §15.02...............................................................................55, 73, 75
TEX. PENAL CODE § 19.02.................................................................................57, 58, 69, 73
TEX. PENAL CODE ANN. § 19.03........................................................................53, 57, 69, 73
.............................................................................................................................................
viii
TO THE COURT OF APPEALS FOR THE FOURTH COURT OF APPEALS
DISTRICT OF TEXAS:
Chief Appellate Public Defender, and Lori Rodriguez, Senior Assistant Appellate Public
Defender.
On May 23, 2007, Appellant Armando Leza was charged by indictment on one
count of capital murder, alleged to have occurred on or about the 4th day of April, 2007.
(CR, 16). The indictment alleged that Mr. Leza intentionally caused the death of Caryl
Jean Allen by cutting and stabbing her with a deadly weapon, namely, a knife, that in the
manner of its use and intended use was capable of causing death and serious bodily
injury, while Mr. Leza was in the course of committing or attempting to commit the
offense of robbery of Caryl Jean Allen. (CR, 16). The indictment further alleged in an
enhancement paragraph that, before the commission of the offense, Mr. Leza was
Trial was held before the Honorable Raymond Angelini. On May 21, 2009,
following evidence and arguments, the jury found Mr. Leza guilty of capital murder. (3
CR 836-837). The jury answered the special issues in the manner that resulted in a death
sentence, and Mr. Leza was sentenced to death by the Honorable Raymond Angelini. (3
CR 836-837). The trial court certified Mr. Leza’s automatic right to appeal (3 CR 838).
ix
A motion for extension of time was filed and granted making this brief due on June 12,
Pursuant to TEX. R. APP. P. 39.7, Appellant hereby requests oral argument. This is
a capital case. Among the issues presented are:
The trial court committed fundamental error in instructing the jury during the guilt phase
that it would be able to convict Mr. Leza as a party,
The trial court erred giving the statutorily mandated instruction of TEX. CODE CRIM. PROC.
Art. § 2 (f)(3) which requires the jurors to be told that they need not agree on what
particular evidence is mitigating because it violates the constitution;
ISSUES PRESENTED
x
POINT OF ERROR THREE
The trial court erred when it refused to preclude the death
penalty as a sentencing option or, in the alternative, to
quash the indictment because a grand jury had not
considered and alleged in an indictment the facts legally
essential to Mr. Leza’s conviction and death sentence.
xi
POINT OF ERROR NINE
The trial court violated the Eighth and Fourteenth Amendments when it
failed to define the phrase “criminal acts of violence” for the jury during the
sentencing phase.
xiii
xiv
STATEMENT OF FACTS
As part of his job as a cashier at Sam’s Grocery, Mohamad Chahrour would loan
money by pawning items for regular customers. So, when a man and woman he
recognized as regular customers approached him about pawning some items, he agreed
to do so. (13 RR 57-58, 68). In the past, Chahrour had allowed the pair to run a tab for
drinks and snacks, and did not have a problem with loaning them money in exchange for
property as collateral. After Chahrour agreed to accept items from them for pawning,
they brought in a black plastic garbage bag containing computer equipment. Chahrour
was unconcerned with the fact that the items were carried in a black trash bag, because
the customers told him they were in the process of moving. Chahrour gave the pair $50
for the contents of the bag. Chahrour only became concerned that the items he had
received might have been stolen when the police showed up at Sam’s Groceries with
pictures of Leza and Treveno, asking whether the two had attempted to pawn anything in
Although Chahrour did not know either Leza or Treveno by name, he told the
police that he recognized them, and confirmed that they had visited the store the previous
evening to pawn some items.. (13 RR 62-66). Chahrour turned over the items he had
received from Leza and Treveno to the police. As it turned out, the property Chahrour
received from Leza and Treveno belonged to Caryl Jean Allen, who had been found dead
1
Caryl Jean Allen lived alone, but was close with her sister, Gaynell Prao, who
often accompanied Allen to her various doctor’s appointments. (12 RR 27-31). Prao
became concerned when Allen missed a doctor’s appointment, and stopped by Allen’s
apartment to check on her the morning of April 4, 2007. When Allen did not open the
door for her, Prao contacted a maintenance man, who helped her gain access to the
apartment. (12 RR 28-30). When Prao found her sister inside lying on the floor, her first
thought was that Allen had suffered a seizure, since Allen had many health problems,
including a tendency to have seizures. (12 RR 31). Prao and the maintenance man called
911, and EMS and the police were dispatched to the apartment.
San Antonio Police Officer Robert Moreno arrived shortly after EMS, and
observed Allen lying on the floor, with her ankles bound, a gaping wound around her
neck and a lot of blood around the body. (12 RR 46-48). Officer Moreno called for
backup and preserved the scene for a homicide investigation. (12 RR 48-49). After
talking to Prao and establishing that Allen’s car along with several items from her
apartment were missing, Officer Moreno dispatched a notice for all officers to be on the
Sergeant Curtis Walker entered Allen’s car’s license plate number in the police
database to alert officers that the car was flagged as stolen and was linked to a murder
2
San Antonio Police Department Detective Wallace McCampbell was the lead
officer in the homicide investigation, and was responsible for collecting evidence, and
directed evidence technicians and other police officers in following leads in the case. (12
RR 83-91).
San Antonio Police Department crime scene investigator Robert Allen Ross was
dispatched to Allen’s apartment in connection with the investigation of her homicide. The
first thing Ross noted upon entering the room in which Allen was found was that there
was an extensive amount of blood on the floor, and that the room was in disarray. Ross
also observed a pillow case lying on top of Allen; the case was filled with various
household items. There were two sets of bloody footprints on the carpeting. Ross testified
that he followed standard procedure in his investigation, including identifying all possible
diagrams. Ross also searched for fingerprints, shoe prints, and blood evidence. (12 RR
62-80).
Assisting Ross in his investigation was Detective Liz Greiner, who also went to
the crime scene to assist in the investigation. Griener also testified that the apartment was
in disarray, and that it was apparent there were items missing from the apartment. (13 RR
28-29). Greiner returned to the apartment a second time to ensure that nothing had been
overlooked. Greiner was especially interested in finding the handle of the knife used to
3
kill Allen, because the blade had been broken off in Allen’s chest. Despite the best efforts
of the police, the knife handle was never found. (13 RR 31-32).
Allen was killed with a knife. She had deep wounds across her throat, as well as a
stab wound in the center of her chest. (12 RR 140, 144; 148-149). The knife blade was
left inside her chest cavity, with the handle broken off. (12 RR 150). Dr. Randall Frost,
the Bexar County Chief Medical Examiner, testified that either one of Allen’s wounds
would have proven fatal. (12 RR 151). Dr. Frost testified that the knife found in Allen’s
chest cavity could have been the same knife used to cut her throat. (12 RR 152).
Detective Tim Angel received a tip indicating that Leza and Treveno might have
been responsible for the robbery and murder of Caryl Jean Allen. (13 RR 71). Angel
generated two photographs of the suspects, and showed them to Charhour, who identified
the two as the individuals who had pawned items in his store the previous evening. (13
RR 71-72). Subsequently, the investigation confirmed that the property Charhour had
San Antonio Police Officer Tina Baron contacted Leza’s sister, Amanda. After
arresting Amanda for outstanding traffic warrants, Baron received information from
Amanda that Leza and Treveno may be staying at the Prado Motel. On April 5, 2007, San
Antonio Police Officer Guy Durden was ordered to conduct surveillance on the Prado
Motel, to be on the lookout for Leza and Treveno. (13 RR 4-5). Durden eventually
spotted both suspects leaving the motel, but because Durden and his surveillance team
4
needed to remain undercover in the event they were required to later continue
surveillance of Leza and Treveno, Durden called in other San Antonio patrol officers to
apprehend Leza and Treveno. (13 RR 6). Durden observed Officers Muniz and Mascorro
apprehend Leza. (13 RR 5-6). Officer Muniz took custody of Leza and transported him to
Volkman brought Leza to the interview room, where Volkman handed Leza off to
Detective Greiner. (13 RR 17-18); (3 RR 14, 19). Volkman was present for the beginning
of the interview, which was conducted by Detective Greiner, and Volkman removed
Detective Greiner read Leza his Miranda rights at the beginning of her
interrogation of him, telling him he was under arrest for traffic warrants. Leza was also
presented a written copy of his rights, which he signed upon Greiner’s prompting;
Greiner told Leza to just sign the card, that he was under arrest for traffic warrants. (13
RR 37-39).
At some point Volkman took Leza outside for a cigarette break during a break in
the interview. Acording to Volkman, who had questioned Mr. Leza’s sister Amanda, Mr.
Leza spontaneously told Volkman, “I can’t believe that my sister told on me. It was her. I
know it because she doesn’t like me because of my wife. She told me—told on me
because I told her what I had done. No one knew that it was me that did it. I would have
5
never gotten caught.” (13 RR 22). On cross examination, Volkman admitted that at that
point in time, Leza had not been informed he was under investigation for capital murder.
(13 RR 25).
Detective Greiner conducted the interrogation of Mr. Leza, which lasted several
hours. Greiner allowed Mr. Leza to visit with Treveno in the interview room, and brought
in his two sisters and mother to talk to him as well. Greiner informed Mr. Leza that the
police already knew everything that happened, that she had more than enough evidence to
convict him for Allen’s murder, and that Treveno had indicated she wanted to take the
entirety of the blame. After Greiner told him that a true man would not let his woman
take the blame for something he did, Mr. Leza finally stated that he was, in fact,
involved in killing Allen. He confirmed Greiner’s statements that he had cut Allen,
stating that he cut her throat. When Greiner asked him if there was anything specific
about the knife that he could remember, Mr. Leza disclaimed that there was anything to
note about the knife, and did not indicate that he knew the knife handle had been broken.
Robert Sailors, a forensic scientist working with the Bexar County Criminal
Investigation Laboratory, conducted a DNA analysis test on blood found on the bottom of
Leza’s shoes. (12 RR 97, 111-114). Sailors determined that the blood found on the right
shoe did not belong to Allen, but the blood found on the left shoe was not excluded as
that the match was not merely random, Sailors conducted a “random match probability”
6
to determine how common the DNA sample profile was. Sailors ultimately concluded
that the DNA profile of the blood found on Mr. Leza’s shoe was “expect[ed] to occur in
the population at a rate of every 1 and 6.54 quadrillion individuals,” and it matched the
Mr. Leza’s conviction and sentence cannot stand for a number of reasons. At the
outset, the trial court erred in failing to suppress the videotaped statement Mr. Leza made
to police because the State failed to establish that Mr. Leza was able to understand his
rights. Since the police knew Mr. Leza had shot up heroin immediately prior to his
interrogation, the State did not establish that he had the capacity to understand his
warnings, and waiver cannot be presumed. (Point of Error One). Likewise, the failure of
the State to establish that Mr. Leza actually understood his rights is a violation of Tex.
Code Crim. Proc. art. 38.22, and the trial court should have suppressed his statement on
7
Additionally, the trial court erred in failing to preclude the death
indictment against Mr.Leza. The grand jury did not consider facts
issue in the jury charge at the guilt innocence stage of trial runs afoul
of Apprendi and Tison’s requirement that the jury pass upon elements
Further error resulted from the jury instruction at guilt innocence, which allowed
the jury to convict Mr. Leza of capital murder under a general verdict; this violated the
Texas Constitutional requirement of a unanimous verdict. The charge in Mr. Leza’s case
allowed the jury to deliver a guilty verdict on three separate instances presented in the
8
disjunctive, without the jury being required to achieve unanimity on the verdit. (Point of
Error Five).
officials taints their ability to preside over death penalty cases. (Point
of Error Six).
With regard to the Texas Death Penalty Scheme, the 10-12 that allows for the
arbitrariness in the imposition of the death penalty. (Point of Error Seven). Additionally,
the jury charge at punishment contains errors regarding the definition of key terms, which
resulted in the jury not receiving the constitutionally required guidance and specificity in
answering the special issues that resulted in the imposition of a death sentence.
Specifically, the court failed to properly define the word “militates” (Point of Error
Eight); failed to properly define the phrase “criminal acts of violence” during the
sentencing phase or trial (Point of Error Nine); and failed to properly define “probability”
At punishment, the trial court erred in failing to grant the defenses’s motion for
mistrial, when the State elicited testimony from a jail guard relating to the guard’s claim
that the Appellant made a specific threat to the guard relating to killing him; the
notification provided by the State pursuant to the defense’s proper request failed to
9
apprise the defense of the guard’s testimony and the testimony was so inflammatory and
inciendary that instructing the jury to disregard had no effect. (Point of Error Ten).
The trial court further violated Mr. Leza’s rights to Due Process when it prevented
Mr. Leza from introducng testiomony from his sister, that would have infomred the jury
at punishment that the co-defendant, Treveno, admitted to her that she slit the
complainant’s thoat; such evidence was relevant to the jury’s determination of Special
Issue No. 2, and Mr. Leza was entitled to present it. (Point of Error Eleven).
Further, the trial court erred in failing to properly instruct the jury regarding its
consdieration of victim impact evidence, in that such evidnece should not be considered
in connection with its determatio of the future dangerousness issue; that “future
dangerousness” was required to be proven beyond a reasonable doubt, that the future
within the knowledge or reasonable expectation of Mr. Leza, and that the trial court
erred in failing to instruct the jury that it was forbidden from engaging
10
obtaining warrants, and who may have been involved in the
Factual Background
Mr. Leza was arrested late at night on April 5, 2007, on an outstanding traffic
warrant. He was interrogated during the very early morning hours of April 6, 2007, and
was initially informed he was under arrest for “just” traffic warrants. (13 RR 18-19). A
video recording of the interrogation was admitted at the hearing on Mr. Leza’s Motion to
Suppress as SX 1, and was reviewed by the trial court. The trial court denied the Motion
to Suppress, and an edited version of the video was admitted into evidence at trial as SX
73.
Prior to trial, the trial court held a hearing on the defense’s motion to suppress
11
Volkman. The videotape in its entirety was admitted into evidence for purposes of the
suppression hearing.
Officer Muniz arrested Mr. Leza on a warrant for outstanding traffic tickets, and
brought to the homicide office. (13 RR 17-18). Mr. Leza told the police that immediately
before being arrested, he had just shot up heroin. Mr. Leza was brought to the police
station in handcuffs, and was placed in an interview room. Mr. Leza can be seen for
several minutes of the video alone in the interview room, apparently dozing or coming in
and out of consciousness. (SX 1). After several minutes, Officer Muniz removed the
handcuffs at the direction of Detective Liz Greiner, who conducted the majority of
Appellant’s interrogation.
After introducing herself to Mr. Leza, Detective Greiner told Mr. Leza that he was
under arrest for tickets. She asked if he understood, and whether the officers explained
that to him. Mr. Leza answered, “Yes, ma’am.” (SX1 12:55:19-12:55:24). She then
repeated, “You’ve got some outstanding traffic tickets, so I’ve got to read you your
rights.” Greiner read Mr. Leza his rights, then asked, “Armando, do you understand your
rights?” Mr. Leza answered, “Yes,” and Griener echoed, “Yes, Okay, yeah.” (SX 1
12:56:05).
Detective Greiner then apparently signed and dated the “Warning of Arrest” form,
which she indicated that she had just read from. She then gave the form to Mr. Leza, and
told him to sign it as an indication that he understood: “Sign your name right here that
12
you understand.” (SX1 12:56:40). Mr. Leza did not immediately sign, and can be seen
on the video studying the sheet of paper. Detective Greiner then asked Mr. Leza, “Can
you read and write? Did you finish school?” Mr. Leza answered, “No.” (SX1
12:56:38-:42).
Greiner, munching on potato chips the entire time, then related to Mr. Leza the
contents of the sheet of paper she had given him: “It’s just Warning of Arrest. It’s exactly
what I read you. Before you’re asked any questions. And all you’re doing is put that you
understand the rights. You’re signing your name, yeah you understand your rights.
You’re under arrest right now for just traffic tickets. You know, it’s no big deal.” (SX1
12:57:03).
Mr. Leza signed and dated the warnings form, per Detective Greiner’s
instructions. (SX 2). After securing Mr. Leza’s signature on the Warning of Arrest form,
Detective Greiner gave Mr. Leza a Witness Information form to fill out. (SX 3). Greiner
told Mr. Leza she needed the information requested on the form from him. Mr. Leza can
be seen on the videotape apparently having some difficulty in filling out the Witness
Information form; Greiner prompted him to fill in the blanks with the appropriate
information, telling him, “Write your name, where you are staying at, your home
address.” (SX1 12:57-) A bit later, as Mr. Leza was apparently still attempting to fill out
the form, Greiner asked him his age, and then asked who was his nearest relative; Greiner
also asked Mr. Leza for driver’s license number, and the address of the apartments where
13
he stayed with his sister. Despite Greiner’s prompts, Mr. Leza wrote only his name,
social security number and date of birth on the form. (SX 3).
As Greiner assisted Mr. Leza in filling out the witness form, her questioning
shifted from directing Mr. Leza about what to put on the form’s blanks to questions about
him self and information pertaining to the investigation. Greiner asked Mr. Leza where
the apartments were. When Mr. Leza did not answer, Greiner told him that he was not
really there for traffic tickets, informing him that she knew everything that happened, she
had already talked to his family members, and that she wanted to give him a chance to
Appellant did not respond to Greiner’s comment, so she continued, telling him that
she knew the lady was someone who had been giving him rides, and asking him whether
he had heard anything about a lady being murdered. Mr. Leza continued to disclaim any
From the time he was brought into custody until he finally agreed that he had
participated in the murder, Mr. Leza was questioned for over three hours. Greiner
afforded him the opportunity for restroom breaks and a break to smoke a cigarette.
Officer Volkman testified that during one such break, when he took Mr. Leza for a
smoke, Mr. Leza spontaneously told him that Mr. Leza knew it was his sister who told on
him.
14
Throughout Mr. Leza’s questioning, Greiner emphasized the theme that Mr. Leza
needed to “take responsibility” for what he had done; that Greiner believed that Mr. Leza
had not planned it and that things just got out of control, and that his family’s
cooperation, along with other unspecified evidence, was more than enough to secure a
conviction against him for murder. The participation of Mr. Leza’s family in the
investigation was stressed. Detective Greiner allowed Mr. Leza to visit with each of his
two sisters early in Mr. Leza’s interrogation, but only allowed Mr. Leza to see his mother
interviewing Treveno in a nearby room. At one point during Mr. Leza’s questioning,
Treveno could be heard through the walls (and on the video recording), screaming
incoherently and crying. Greiner and Campbell switched places, with Campbell coming
in to question Mr. Leza. Campbell informed Mr. Leza that Campbell had been
questioning Treveno, that Treveno had told him “everything,” but that Treveno had
initially wanted to “take the rap” for Mr. Leza. Campbell told Mr. Leza that he wanted to
hear from Mr. Leza his version of what happened. Campbell asked Appellant whether it
was true that Treveno did everything by herself, and Mr. Leza indicated that Treveno had
acted alone. Campbell then asked Mr. Leza “Okay, what did she do?” Appellant
responded, “I don’t know, I was outside.” Before leaving, Campbell told Mr. Leza that he
did not believe Treveno acted alone, and that he was going to talk to Treveno some more,
15
because Mr. Leza claimed that he was not even at the murder scene, and that was
different than what Treveno had told the detective. (SX 1).
When Greiner returned to the interrogation room, Greiner told Mr. Leza that
Treveno had told her everything as well, and Greiner repeated the assertion that Treveno
wanted to take the entirety of the blame at first but that Treveno had “finally told the
truth.” Treveno could be heard wailing in the background. Appellant began asserting that
he wanted to see “his wife.” (SX1). Greiner allowed Mr. Leza to visit with Treveno in the
interrogation room for several minutes, which Greiner repeatedly told Mr. Leza was
unusual when questioning a suspect. Treveno and Mr. Leza held each other and wept in
the interrogation room, and Treveno made several tearful statements in Spanish, which
were redacted from the video when it was published to the jury. (SX 73).
After Treveno was taken away from the interrogation room, Greiner began
question whether Mr. Leza was the “kind of man” who would allow his woman to take
the blame. “You’re not the kind of man who’s gonna let her take it all by herself. She
already told me everything. That’s—not right” (SX1 2:57). Greiner urged Mr. Leza to
tell her what happened the morning of the killing, insisting that Mr. Leza had been at the
apartment with Treveno. Mr. Leza responded that he did not go into the apartment while
the complainant was still alive, but that he just helped carry stuff out. Greiner again
stressed that a “man” would not allow his woman to take the blame for him: “Okay, you
know what, she told me everything. She already told me-you can’t take that back.” (SX
16
1). Greiner told Mr. Leza that Treveno wanted to take the blame for him because she
loved him, “but it’s not gonna work like that.” When Mr. Leza continued to deny having
participated in the murder, Greiner told him that she could prove that it was not true that
Treveno acted alone, and Greiner questioned, “What kind of man are you that’s going to
Greiner asked Mr. Leza, “Do you want to continue to lie?” and stated “lying only
makes it worse. It makes you look really bad. I know it’s commendable for her to do this,
but it’s not for a man. You need to sit here and be able to tell the truth. Its—better. To sit
and lie about it—to a jury and a judge, it doesn’t look good.” (SX1). Greiner’s statements
regarding the “truth,” as well as what a “man” should do, were contained on the
Greiner told Mr. Leza that she would allow him to see his mother, but only after
Mr. Leza and Greiner had completed their interview. When Mr. Leza continued to deny
having participated in killing Allen, Greiner told him, “Please, I don’t want your mommy
sitting out there much longer. I just want to get through this portion. It’s just gotta be out
Finally, Mr. Leza relented and haltingly admitted to having participated in the
murder. Mr. Leza’s first few sentences were mere recitations of what Greiner had already
suggested to him-that he and Treveno walked up to the apartment and knocked on the
door; that the woman opened the door and they went inside; that they talked to the
17
woman for a while and then asked her for some money. Throughout her interrogation,
Greiner had asked Mr. Leza whether her theory was correct—that things got out of hand
and Mr. Leza did not intend to kill Allen. Earlier in her questioning, Greiner suggested
that perhaps things got out of hand because Allen had hurt either Mr. Leza or his wife;
upon finally giving his statement, Mr. Leza confirmed Greiner’s theory, stating that he
and Treveno asked Allen for some money, and that Allen hit Treveno with her cane and
Appellant then told Greiner that he did not believe Treveno, who he referred to as
his wife, had told Greiner anything. Greiner responded by telling Mr. Leza something
inaudible, which included what sounded like the word “hands.” Greiner continued to
prompt Mr. Leza to tell the truth and admit his involvement in the killing; Mr. Leza
finally stated, “I cut her. I didn’t know what I was doing.” (SX1).
Greiner’s questioning signaled to Mr. Leza that there were two cuts; she asked
him, “where was the first cut?”, then encouraged him, “yes, you can say it. I know it’s
hard. You cut here where—I just need to know what was first and what was second.”
Continuing the theme she had begun earlier, playing upon Mr. Leza’s notion of
manhood, Greiner then told Mr. Leza, “There’s a difference between a man who sits here
and tells the truth and a man who was going to let his wife take the blame.” Greiner then
asked Mr. Leza, “after you did her throat—what was the next thing?” Mr. Leza indicated
18
that “was it.” That, however, was not it; Greiner continued to ask Mr. Leza questions
about what happened after Allen’s throat had been cut. Appellant could not tell her where
he and Treveno took Allen’s belongings, and Appellant stated that he could not
remember where they went after leaving Allen’s apartment. When Greiner attempted to
elicit from Appellant a crucial detail about the knife, Mr. Leza indicated that he did not
know what she was talking about. Trial testimony indicated that the knife blade was
broken off in the complainant’s chest, a detail that was not discovered until the medical
examiner conducted the autopsy on Allen’s body. (12 RR 150). The police never found
the knife handle; Greiner did not share this detail with Mr. Leza, and asked him whether
he remembered anything happening to the knife, which he stated he did not. Greiner then
asked Mr. Leza an additional detail about the status of the body, and Mr. Leza stated that
he and Treveno both tied up the complainant, while she was still alive. (SX1).
The State failed to meet its burden of showing Mr. Leza waived his Fifth Amendment
right.
The Fifth Amendment privilege against self-incrimination protects an individual
from being compelled by the State to be a witness against himself. Miranda v. Arizona,
384 U.S. 436, 442 (1966); Holloway v. State, 780 S.W.2d 787 (Tex. Crim. App. 1989).
The United States Supreme Court has established procedural safeguards to protect the
exercise of the Fifth Amendment privilege from the inherently coercive effects of
at trial only if the prosecution demonstrates that the defendant waived his rights
19
voluntarily, knowingly and intelligently. Id. The burden of proving such a waiver is on
the prosecution, which must prove waiver by a preponderance of the evidence. Colorado
v. Connelly, 479 U.S. 157, 168 (1986); see also Tague v. Louisiana, 444 U.S. 469, 470-
471 (1980). A valid waiver will not be presumed simply from the fact that a confession
The Supreme Court of the United States recently summed up the Court’s
interpretation of what actions on a suspect’s part are required in order to invoke his right
the Court settled any remaining question as to whether waiver may be implicit, holding,
“In sum, a suspect who has received and understood the Miranda warnings, and has not
invoked his Miranda rights, waives the right to remain silent by making an un-coerced
The Berghuis holding is premised on the notion that the suspect received and
understood warnings, waiver cannot be inferred by his failure to invoke his Miranda
rights. “Even his rights: where the suspect was not mentally able to understand the absent
the accused’s invocation of the right to remain silent, the accused’s statement during a
custodial interrogation is inadmissible at trial unless the prosecution can establish that the
accused “in fact knowingly and voluntarily waived [Miranda] rights’ when making the
statement.” Bergheuis, citing Butler v. U.S., 441 U.S. 369, 373 (1979).
20
Thus, although Bergheis clarifies that waiver may be implied where a suspect does
not affirmatively invoke his right to remain silent after he has been apprized of his
Miranda rights a failure to invoke the right to remain silent results in waiver of that right
only where State establishes that the suspect received and understood the warnings. The
State failed to carry this burden in the present case, because Mr. Leza did not have the
mental capacity at the time the Miranda warnings were given, and throughout his
It is clear that Mr. Leza did not explicitly waive his right to remain silent, as he
was never provided an opportunity to do so. Instead, he was given his Miranda warnings
and instructed to sign a card containing those warnings to indicate he “understood” them.
Thus, it was the State’s burden to show, per Bergheuis, that Mr. Leza did not invoke his
right to remain silent and that waiver may be implied by establishing that he understood
his Miranda rights. The waiver inquiry “has two distinct dimensions”: waiver must be
“voluntary in the sense that it was the product of a free and deliberate choice rather than
intimidation, coercion, or deception,” and “made with a full awareness of both the nature
of the right being abandoned and the consequences of the decision to abandon it.”
Bergheuis, U.S. .
Mr. Leza’s waiver was not the product of a free and deliberate choice
The circumstances under which Mr. Leza’s statement was taken did not afford him
the opportunity to make a free and deliberate choice to waive his right to remain silent. A
21
“free and deliberate choice” requires that the suspect have the ability to understand his
rights, within the context of his confinement, and make a conscious decision to
nonetheless not invoke those rights. Where a suspect did not have adequate mental
faculties at the time the Miranda warnings were given and the statement obtained, any
choice. Mr. Leza knew enough to know that he was high on heroin: he informed the
arresting officer that he had shot up heroin immediately prior to his arrest. Likewise,
Detective Greiner can be heard on the videotape making reference to the fact that Mr.
Leza was on heroin; Greiner and Mr. Leza discuss Treveno’s physical status as well,
when Mr. Leza asks to see Treveno and Greiner tells him she does not know if it will be
possible to speak with Treveno at that moment because Treveno was still knocked out
from her own heroin injection, apparently taken at the same time as Mr. Leza-right before
The defendant must have the ability to appreciate the circumstances in which he
finds himself and that he must have the present capacity to comprehend those rights and
the consequences of waiving them. Intoxication does not render a confession involuntary
per se, but it is relevant in determining whether a confession was given knowingly,
intelligently, and voluntarily. Nichols v. State, 754 S.W.2d 185, 190 (Tex. Crim. App.
1988), cert. denied 488 U.S. 1019 (1989), overruled on other grounds, Green v. State,
764 S.W.2d 242, 247 (Tex. Crim. App. 1989). The central question is the extent which
22
Mr. Leza was deprived of his faculties due to intoxication. Vasquez v. State, 288 S.W.2d
100, 109 (Tex. Crim. App. 1956). If Mr. Leza’s intoxication rendered him incapable of
making an independent, informed choice of free will, then his confession was given
involuntarily. Jurek v. Estelle, 623 F.2d 929, 937 (5th Cir. 1980).
Factors cited by the United States Supreme Court as bearing upon whether a
confession is voluntary include that the confession must be “the product of an essentially
free and unrestrained choice;” Culombe v. Conneticut, 367 U.S. 5689, 602 (1961); the
decision to confess must be “freely self-determined,” Rogers v. Richmond, 365 U.S. 534,
544 (1961); the confession must be “the product of a rational intellect and a free will,”
Blackburn v. Alabama, 361 U.S. 199, 208 (1960); and, the defendant’s “will to resist,”
Rogers v. Richmond, 365 U.S. at 544, must not be overcome, nor can his “capacity for
Despite the fact the police were aware that Mr. Leza had just shot up heroin,
Detective Greiner persisted with questioning Mr. Leza, not offering him the opportunity
to affirmatively waive his right to remain silent, and, instead, informing Mr. Leza that he
was just under arrest for traffic tickets, so it was really no big deal, and he could just sign
Indeed, at the time he was read his Miranda rights, and signed the rights card as he
was instructed to, Mr. Leza was under arrest pursuant to a warrant issued on outstanding
traffic tickets, and was only held on the authority of that arrest for the duration of the
23
interrogation which resulted in the charges against him in the present case, and his being
subjected to the death penalty. Detective Greiner informed Mr. Leza he was under arrest
for traffic tickets, read him his Miranda rights, and asked him to sign the rights card
indicating that he understood his rights, all in the context of traffic tickets.
The rights card from which Detective Greiner read Mr. Leza his rights, and which
Mr. Leza was asked to sign, indicates: “3. Any statement that you make will be used in
evidence against you in a court of law at your trial.” (SX 2)(emphasis added). Nobody
explained to Mr. Leza that if he answered Detective Greiner’s questions, while he was
under her custody on a warrant for traffic tickets, that his answers could be used against
him connected to a charge of capital murder. The warnings he received, and that the State
contended he “understood,” informed him his statements would be used at his “trial,” not
for any and all intents and purposes the State may garner from them. As such, to the
extent that Mr. Leza understood his rights, the State failed to show he understood that the
consequences of waiving those rights included the potentiality that his statements would
be used in the State’s prosecution of him for capital murder, in a case in which the State
sought the death penalty. He was, after all, just there on traffic tickets.
The trial court’s failure to suppress Mr. Leza’s statement was not harmless error.
24
376. Similarly, Miranda v. Arizona has been acknowledged by the United States
Supreme Court to have constitutional dimension. United States v. Dickerson, 530 U.S.
428, 432 (2000). Pursuant to TEX. R. APP. P. 44.2(a), if there is constitutional error, the
appellate court must reverse unless it determines beyond a reasonable doubt that the error
The overruling of Mr. Leza’s suppression motion, which resulted in the admission
of his recorded interview at trial, clearly contributed to his conviction and also affected
his substantial rights, and the State cannot show beyond a reasonable doubt that the
Other than Mr. Leza’s statement that he slit the complainant’s throat, and that he
and Treveno together tied up the complainant, the State did not have evidence showing
Mr. Leza participated in the killing of the complainant, either as a principle or party. Mr.
Leza’s contention early in his interrogation was that he merely assisted Treveno carry out
the complainant’s belongings after the complainant was already dead. The State’s
forensic evidence, consisting of a bloody footprint and the complainant’s blood on Mr.
Leza’s shoe, comports with Mr. Leza’s initial accounting of what happened equally as it
does the State’s. Establishing that Mr. Leza was in the apartment, and even that he took
the complainant’s belongings, does not establish the required element that he was an
25
Without Mr. Leza’s statement, the State’s evidence would have been factually
insufficient to sustain a conviction for capital murder; indeed, without Mr. Leza’s
statement, the evidence was insufficient to sustain a conviction under either capital
murder or any of the lesser included offenses with which the jury was charged. Mr.
Leza’s video recorded statement was crucial to the State’s case against Mr. Leza, and this
Court cannot find, beyond a reasonable doubt, that its erroneous admission into evidence
contributed to the jury’s guilty verdict as well as to the jury’s affirmative answer to
special issue No. 2 at punishment that Mr. Leza intended or should have anticipated that a
life be taken. The erroneous admission of Mr. Leza’s statement clearly contributed to his
conviction and sentence, and his conviction must be reversed, and the case remanded to
Mr. Leza’s rights under Texas statutory law were violated by the police
interrogation of him and admission of that videotaped interrogation into evidence. The
facts giving rise to Mr. Leza’s claim under state law are the same as discussed Point of
Error One, supra, apply and are fully incorporated here. In addition to the federal
26
constitutional violation discussed in Point of Error One, the interrogation and its
Previous case law from this Court has indicated that Texas defendants are not
afforded greater rights under Tex. Code Crim. Proc. 38.22 than under the requirements of
Miranda and its progeny with regard to the right to remain silent. The United States
circumscribed suspect’s rights with regard to remaining silent, and Burgheis appears to
stand for the position that a suspect must invoke his right to remain silent in order to avail
himself of that right. However, Burgheis is nonetheless clear that failure to invoke the
right to remain silent does not result in automatic waiver of the right, because the State
must nonetheless show that the Appellant had the ability to understand his rights in the
absence of invoking them. )See Burgheis, discussed supra in Point of Error One).
Eight days later, this Court signaled that it understands the distinction drawn in
Burgheis between the requirement that a suspect invoke his rights and a suspect waiving
his rights, and that failure to invoke does not equate to automatic waiver. In Contreras v.
that a statement would not be admissible per art. 38.22 if the statement was involuntary,
regardless of whether the suspect was apprised of his rights. The court in Contreras
ultimately concluded that a separate instruction is not mandated under Tex. Code Crim.
27
statement. Nonetheless, Contreras recognizes that waiver is not automatic where a
suspect does not explicitly invoke his right to remain silent, and that Tec. Code Crim.
Proc. requires the State establish that the suspect voluntary relinquished that right. For the
reasons outlined in Point of Error One above, Mr. Leza urges that his statement to police
should have been suppressed under Tex. Code Crim. Proc. art. 38.22. Because the State
failed to establish Mr. Leza knowingly and voluntarily waived his rights under art. 38.22,
the trial court erred in failing to suppress his videotaped statement to police.
While it is quite clear that a waiver of constitutional rights need not be made expressly, it
must still be demonstrated by the State to have occurred—and in order for it to be valid,
the waiver must be knowing, intelligent, and voluntary. Here, however, the document
signed by Mr. Leza was a mere iteration of his rights, which he appears to not have been
able to comprehend, not a waiver of them. In Garcia v. State, 919 S.W.2d 370, 385-387
(Tex. Crim. App. 1996), where the suspect had initialed each statement of his rights,
amounting to a total of fifteen times, and had signed additional language confirming his
identity and that he had been “duly warned and advised” of his rights, the Court of
Criminal Appeals held that there was a sufficient waiver of rights, although it was “a
close call.” The Court pointed out that the preferable practice would be to have an
waived the rights described before and during the making of this statement.” See Penry
v. State, 691 S.W.2d 636, 643 (Tex. Crim. App. 1985); see also Cannon v. State, 691
28
S.W.2d 664, 674 (Tex. Crim. App. 1985)(document indicating “I do hereby voluntarily
waive these rights” reflected sufficient compliance “although it is not a model form for a
confession”). By contrast, in Thibedeaux v. State, 729 S.W.2d 137, 138 (Tex. Crim.
App. 1987) the words “I do here make the following voluntary statement … I am making
this statement of my own free will without any threats or promises,” were held not to
“reflect even substantial compliance” with TEX. CODE CRIM. PROC. art. 38.22 § 2(b). In
this case, the mere presence of a signature and initials on the side of a rights card put
there at the explicit request of an interrogating officer, do not demonstrate any kind of
compliance with the requirement of TEX. CODE CRIM. PROC. art. 38.22 that a knowing,
recording of the interview demonstrates how swiftly and perfunctorily the signing of the
It is beyond dispute that Mr. Leza was under arrest at the time that Detective
Greiner read him the warnings required by Miranda v. Arizona and by TEX. CODE CRIM.
PROC. art. 38.22, and consequently the State had the “heavy burden” of demonstrating that
such a waiver had taken place. Miranda, 384 U.S. at 475. The State entirely failed to
The protections afforded by Art. 38.22 of the Code of Criminal Procedure are of
“procedural evidentiary” status. See, Nonn v. State, 117 S.W.3d 874 (Tex. Crim. App.
2003). A breach of Art. 38.22 affecting a defendant’s substantial rights requires reversal
29
of a defendant’s conviction, pursuant to TEX. R. APP. P. 44.2(b)(addressing non-
constitutional errors). Here the failure to provide Mr. Leza with the safeguard set out in
TEX. CODE. CRIM. PROC. Art. 38.22, that there be a knowing, intelligent and voluntary
waiver of rights, led to the making of statements which incriminated Mr. Leza and
The overruling of Mr. Leza’s suppression motion, which resulted in the admission
of his recorded interview at trial, clearly contributed to his conviction and also affected
Mr. Leza was entitled to grand jury consideration of all specific facts essential to
his conviction and death sentence as a matter of federal constitutional law. A defendant
has the constitutional right to have a grand jury consider and allege in the indictment all
specific facts legally essential to his conviction and death sentence, and to have a trial
jury determine all such facts beyond a reasonable doubt, including facts supporting a
negative answer to the mitigation special issue. Jones v. United States 526 U.S. 227
(1999); Apprendi v. New Jersey, 530 U.S. 466, (2000); Ring v. Arizona, 536 U.S. 584,
122 (2002) and Blakely v. Washington, 542 U.S. 296 (2004). The Eighth Amendment
30
protection against the arbitrary imposition of the death penalty provides further support
for the application of the foregoing due process and Sixth Amendment holdings to
Defendant’s case.
The United States Supreme Court held in Apprendi, supra, basing its decision on
the Sixth and Fourteenth Amendments, that any fact other than a prior conviction that
increases the maximum penalty for a crime must be charged in an indictment, then
submitted to a jury and proven beyond a reasonable doubt. The decision in Ring, supra,
was premised upon the Sixth Amendment right to trial by jury; the Court held the jury,
rather than the trial court, must decide the facts justifying the state’s death penalty, and in
Blakely, supra, the Supreme Court clarified what it meant by the term “maximum
penalty”.
penalty law, is the life sentence that is authorized up to and until the jury returns a
essential to the imposition of death in Texas and the “maximum penalty” concept was
The indictment in this case did not contain any grand jury charge that there was a
probability that Mr. Leza would commit future acts of violence that would constitute a
continuing threat to society, nor does it reflect a grand jury charge that the mitigating
31
statutory facts are the elements required to impose the sentence of death; they have a
unique status as the only facts upon which Mr. Leza could be held to answer for the crime
with his life. See TEX. CODE CRIM. PROC. Art. 37.071 § 2 (b) – (g).
The lack of an indictment on the Texas “death facts”: the special issues and the
supporting facts, violated Mr. Leza’s state constitutional rights, so that the trial court
should have precluded the State from seeking the death penalty, or quashed the
Mr. Leza was entitled to grand jury consideration of all specific facts essential to
his conviction and death sentence as a matter of Texas constitutional law. The lack of
an indictment on the Texas “death facts” - the special issues and the supporting facts -
violated Mr. Leza’s state constitutional rights, so that the trial court should have
precluded the State from seeking the death penalty, or quashed the indictment as
constitutionally deficient. Parallel to the federal Fourteenth Amendment due process and
Sixth Amendment right to jury trial, the Texas Constitution affords a parallel right to the
right to trial by jury and to “due course of law” and also guarantees that, “No person shall
be held to answer for a criminal offense unless on an indictment of a grand jury”, TEX.
CONST. art. I, §§ 10 and 19; TEX. CONST. art. I, § 3. The State of Texas denied Mr. Leza
the right to due course of law and the consequent notice and opportunity to prepare that it
implies, by failing to present evidence to the grand jury so that it could decide if there
were facts supporting the State’s seeking the death penalty. Mr. Leza was also entitled to
32
place upon the state the burden of proving beyond a reasonable doubt a negative answer
Texas currently places no burden of proof upon the State to prove the negative
answer on the mitigation special issue that is the prerequisite for imposing the death
penalty. See, e.g., Hankins v. State, 132 S.W.3d 380, 386 (Tex. Crim. App. 2004).
One question is central to the resolution of these claims regarding the application
“maximum statutory punishment” in the Texas scheme? This Court has said in recent
capital cases that the maximum statutory punishment is death, and that a negative finding
on mitigation does not have the effect of increasing a defendant’s punishment beyond
that maximum; it has only the potential to reduce the sentence already authorized by the
jury’s finding that he is a continuing threat. See, e.g., Hankins, supra; Blue v. State, 125
The decision in Blakely, 542 U.S. at 296, contradicts this reasoning. In that case,
the defendant entered a guilty plea and was convicted of second-degree kidnapping.
Under the applicable Washington statute, the maximum punishment was ten years
confinement. However, under the state’s sentencing reform act, the defendant’s offense
sentence outside the standard range only upon making certain fact findings. After
conducting a hearing, the trial judge made findings of fact and determined that Blakely
33
had acted with “deliberate cruelty”. Based on that finding he assessed punishment at 90
months confinement, within the statutory maximum but well above the standard range.
When the defendant appealed his sentence on Apprendi grounds, claiming that he
was denied his constitutional right to have a jury determine beyond a reasonable doubt all
facts legally essential to his sentence, the State responded that Apprendi did not apply
because the relevant “statutory maximum” was 120 months, not 53 months, pointing out
that no “exceptional sentence” delivered under the sentencing guidelines was permitted to
exceed that maximum. Writing for a majority of the Court, Justice Scalia explained the
Our precedents make clear, however, that the ‘statutory maximum’ for
Apprendi purposes is the maximum sentence a jud may impose solely on
the basis of the facts reflected in the jury verdict or admitted by the
defendant … In other words, the relevant statutory maximum is not the
maximum sentence a judge may impose after finding additional facts, but
the maximum he may impose without any additional findings. When a
judge inflicts punishment that the jury’s verdict alone does not allow, the
jury has not found all the facts which the law makes essential to the
punishment … and the judge exceeds his proper authority.
Blakely, 542 U.S. at 303 (internal quotations and citations omitted, emphasis in opinion).
Under Texas law the jury’s negative answer to the mitigation special issue is
legally essential to the imposition of the death penalty. The affirmative answer to the
statutory aggravating issue will not alone authorize the death sentence. TEX. CODE CRIM.
PROC. Art. 37.071 § 2(g) (Life sentence shall be imposed unless jury unanimously
answers first question “yes” and mitigation question “no”.) Therefore, even after a
34
capital jury answers the continuing threat special issue “yes”, their verdict authorizes
only a life sentence under Texas law. Only if they make an additional unanimous finding
of “no” to the mitigation special issue does Texas law authorize the sentence of death. If
the jury is unable to answer the mitigation special issue, the affirmative answer on the
aggravating special issue still does not authorize the imposition of death.
Since a negative answer to the second special issue is an essential for the death
penalty to be imposed, the prosecution’s burden, and jury’s finding on that issue, must
federal constitutional law by the lack of grand jury involvement in the decision to seek
the death penalty. The grand jury does not participate in the decision to seek the death
penalty, the prosecution does not present to it any of the factors the District Attorney may
use to seek death. It is not asked to screen the information for factual accuracy, or
reliability or according to their own perception of the propriety of seeking death. The
prosecution has complete discretion in selecting the facts that will be used to prove the
special issue answers so as to impose the death penalty. Those facts are legally essential
to the imposition of the death penalty, yet are not included in the indictment; even the
special issues are not charged in the indictment, because the grand jury hears no evidence
and makes upon them. The prosecutor’s discretion is therefore so broad as to offend the
federal and state constitutional guarantees of equal protection under the law. The equal
35
protection guarantee safeguards against arbitrariness and caprice that may attend the
presentation of facts and the return of an indictment on the decision to seek death, the
State would at least dilute the unequal treatment that exists under the present system: that
capital defendants who are similarly situated are tried differently in different counties (or
even within the same county) based upon considerations that do not properly single one
out for death. Equal Protection is denied to a defendant who might face a death
prosecution in another county. See generally, Bush v. Gore, 531 U.S. 98 (2000.
The decisions in Apprendi, Ring and Blakely support the proposition that even
though unfettered discretion has been afforded previously to the prosecution, it is now a
constitutional prerequisite that in order to seek the death penalty, the State must use the
grand jury process: there must be the return of an indictment alleging the existence of the
legally essential “death facts” in terms of the Texas special issues, as well as the non-
statutory aggravating facts upon which it has based its request that the special issues will
be answered for death. Without this indictment, the Texas system violated the Eighth
36
Mr. Leza was also denied the sixth amendment protection of a jury trial in this
case Defense counsel requested that the State be precluded from seeking the death
penalty against Mr. Leza, or to quash the indictment, because the indictment did not
allege the existence of the statutory special issues and the supporting facts necessary to
impose a death sentence in violation of Mr. Leza’s Sixth Amendment right to trial by
jury. Ring teaches that capital defendants, no less than noncapital defendants, are entitled
under the Sixth Amendment to a jury determination of any fact on which a legislature has
conditioned an increase in the defendants' maximum punishment. Id. at 609. Since the
facts which were relied on in order to seek death against Mr. Leza were not contained in
the indictment, and those facts, as stated elsewhere in this brief, were totally undefined
for the jury, there cannot in any way have been a meaningful jury verdict in this case in
the sense that Ring requires. Such critical terms as “probability”, “criminal acts of
Counsel is aware of the existence of adverse authority from this Court, see, e.g.,
Perry v. State, 158 S.W. 3d 438 (Tex. Crim. App. 2004); Woods v. State, 152 S.W. 3d
105, 121 (Tex. Crim. App. 2004); Rayford v. State, 125 S.W. 3d 521, 533 (Tex. Crim.
App. 2003), but nonetheless contends that these issues merit the Court’s reconsideration.
Mr. Leza was harmed by the trial court’s failure to grant his motion and
the appellate court must reverse unless it determines beyond a reasonable doubt that the
37
error did not contribute to the conviction. The protections afforded by the Sixth, Eighth
and Fourteenth Amendments to the United States Constitution and Texas Constitution
Art. I, §§ 3, 10 and 19 are clearly of constitutional dimension. Since, but for the trial
court’s error, this case would not have proceeded at all, or not proceeded with death as a
sentencing option, the error must be found, beyond a reasonable doubt to have
Texas law has long authorized conviction of a capital defendant under the law of
parties even when the defendant was indicted solely as a principal. Mr. Leza does not
allege that his trial counsel were unaware of this long-standing principle of Texas
criminal law. The Supreme Court's opinions in Apprendi, Blakely, and Ring1 make clear
that only a jury can make the factual determinations necessary to impose a sentence of
death on a criminal defendant. (footnotes omitted)). See Foster v. Dretke, 2005 U.S. Dist.
1
Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 542 U.S. 296, 303 (2004); Ring v. Arizona,
536 U.S. 584 (2002).
38
The Eighth Amendment prohibits the execution of a defendant who did not kill or
intend to kill unless the defendant showed reckless indifference to life and was a major
participant in the accompanying crime. Neither Section 7.02(b) nor Article 37.071
demands this level of culpability. Furthermore, the Texas scheme does not require a jury
Amendment. Moreover, even if a jury finds that a defendant meets the Tison
requirements at the punishment phase of trial, Tison imposes vague, subjective criteria
In short, Texas should not execute defendants for murders they did not commit solely
The absence of any mention of the law of parties in the instant indictment and the
in the jury charge at the guilt innocence stage of trial violated Appellant’s Sixth
Amendment rights under Apprendi and Ring3 because Mr. Leza was indicted as acting
alone, however the jury charge as given does not allow to an individualized finding of
guilt for Appellant, Mr. Leza, which violates the Eighth Amendment. See (CR, 797-
815). At the charge conference at the guilt innocence portion of trial, the defense
requested the charge on parties and the lesser included offense of felony murder, murder,
and just robbery. (14 RR 19-20). Defense counsel argued that as a party to the offense,
2
Tison v. Arizona, 481 U.S. 137, 151 (1987)
3
Ring v. Arizona, 536 U.S. 584 (2002),
39
Mr. Leza did not have the specific intent to assist in the murder of complainant which
occurred during the course of the robbery. (14 RR 21). Mr. Leza assisted Trevino, at
least after the commission of the offense and the defense theory was that Ms. Trevino
killed and robbed the complainant. The trial court denied the felony murder charge. (15
RR 5). The defense also objected to the conspiracy language in the guilt innocence
charge, which was also denied. (15 RR 6). Defense counsel argued that “We think that
there is no evidence, not a modicum or scintilla of evidence that was presented to the jury
that supports conspiracy as charged.” (15 RR 6). Defense counsel ably argued that if the
court left the conspiracy charge in, then the defense requested and should be entitled to a
special issue in addition to the parties’ language to avoid a general verdict. This was
The Supreme Court has clearly ruled that the reasonable doubt standard for
determining guilt in a criminal case was a required element of Constitutional due process.
In re Winship, 397 U.S. 358 (1970) (emphasis added). In this case, an Apprendi-Ring
parties missing from the indictment. The conviction of the capital crime for which all
elements were submitted to the jury for a decision beyond a reasonable doubt exposed
40
While Appellant acknowledges this Court’s opinions contrary to Appellant’s
arguments, to preserve error for federal review and to provide for the exhaustion of state
remedies, counsel must set out in great detail why this Court’s previous holdings are
incorrect in its analysis and holding, as discussed below in the recent Gongora decision.
In his first three points of error, appellant claims that the trial
court erred in overruling his motion to quash the indictment
because it failed to put him on notice that the State would be
seeking to establish his criminal responsibility as a party or
co-conspirator. See TEXAS PENAL CODE §§ 7.02(a) and (b).
Appellant asserts that the law of parties must be pled in the
indictment because guilt as a party is an “additional element
of the offense” which the State must prove beyond a
reasonable doubt. Appellant relies on Apprendi v. New Jersey,
530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and
Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d
556 (2002), to support his argument.
Gongora v. State, 2006 Tex. Crim. App. LEXIS 2531, 3-4 (Tex. Crim. App. Feb. 1,
Apprendi and Ring apply to facts that increase the penalty for
a crime beyond the statutory maximum. Guilt as a party does
not increase a defendant's responsibility for a crime, nor does
it increase the maximum sentence to which a defendant might
be subjected. It is well settled that the law of parties need not
be pled in the indictment. Vodochodsky v. State, 158 S.W.3d
502, 509 (Tex. Crim. App. 2005); Marable v. State, 85
S.W.3d 287 (Tex. Crim. App. 2002). Apprendi and Ring do
not change this caselaw. Points of error one through three are
overruled.
Gongora v. State, 2006 Tex. Crim. App. LEXIS 2531, 3-4. Appellant respectfully
disagrees.
41
Juries must determine the culpability of the accused as a principal or an
accomplice in death penalty cases, that is, an intent to kill, regardless of how Texas
categorizes the “parties” scheme, in order to assess the death penalty. In Enmund v.
Florida, the Court imposed a categorical rule that the Eighth Amendment does not allow
the imposition of the death penalty on a defendant who participates in a felony involving
a killing, but who does not himself kill, attempt to kill, or intend that a killing occur.
Enmund v. Florida, 458 U.S. 782, 788 (1982). However, in Tison v. Arizona, the Court
created an exception to this general rule, allowing the death penalty in cases in which the
defendant did not kill or intend to kill, but still played a “major” role in the
Arizona, 481 U.S. 137, 151 (1987). This Enmund/Tison rule sets limits within which
states may impose capital punishment on defendants who did not kill or intend to kill.
Prior to its decision in Enmund, the Court considered a similar set of circumstances in
Lockett v. Ohio. Lockett v. Ohio, 438 U.S. 586 (1978). The State had sentenced Sandra
Lockett to death for her role as the getaway driver in an armed robbery that unexpectedly
resulted in murder. Id. at 593-94. While the plurality opinion declined to consider the
proportionality of Lockett's sentence. Id. at 609 n.16. The four-Justice plurality found the
statute under which Lockett was sentenced unconstitutional because it did not permit “the
type of individualized consideration of mitigating factors ... required by the Eighth and
42
Justice White addressed the issue in his separate opinion and argued that “it
violates the Eighth Amendment to impose the penalty of death without a finding that the
defendant possessed a purpose to cause the death of the victim.” Id. at 624 (White, J.,
imposing the death penalty without any consideration of the defendant's involvement or
degree of mens rea “skirts the limits of the Eighth Amendment proscription ... against
gross disproportionality,” but he did not find Justice White’s suggested approach
“entirely convincing” and thought that a bright-line rule would be unworkable. Id. at
613-14, 614 n.2 (Blackmun, J., concurring). Nevertheless, only four years later, Justice
Blackmun joined Justice White’s majority opinion in Enmund, adopting a bright-line rule
similar to the one Justice White proposed in Lockett. See Enmund v. Florida, 458 U.S.
782, 788 (1982). The facts in Enmund were similar to those in Lockett. Earl Enmund
drove the getaway car during a robbery that unexpectedly resulted in the killing of two
people. Id. at 783-86. The record contained no evidence that Enmund killed, intended to
kill, knew that his cohorts would kill, or was even present at the scene of the killings, yet
The Court first examined the relevant objective indicia of contemporary values
noting that, in the United States, “only eight jurisdictions authorize imposition of the
death penalty solely for participation in a robbery in which another robber takes life.”. Id.
43
at 789. Additionally, among the eight states that had enacted new death penalty statutes
since 1978, none would permit the death penalty in Enmund's circumstances. Id. at 792.
The Court also examined jury sentencing decisions citing a survey showing that
out of 362 executions for homicide since 1954 (that were reported in appellate court
decisions), only six of those executed were “nontriggerman felony murderers,” and all six
were executed in 1955. Id. at 794-95. Based on these findings, the Court concluded that
because most legislatures and juries would not permit the death penalty in circumstances
like Enmund’s, such a punishment was inconsistent with contemporary values. Id. at
794-96. After considering this data, the Court conducted a proportionality analysis
following the approach used in Gregg. The Court found Enmund’s sentence “excessive”
under the Eighth Amendment for four reasons. First, robbery, while a serious offense,
was not by itself severe enough to warrant the most extreme penalty. Id. at 797.
Second, the state could not base Enmund’s sentence4 on the culpability of the actual
killers; rather it must base Enmund’s sentence on his own culpability. . Id. at 798. Third,
the Court expressed doubt that the death penalty could serve as an effective deterrent for
people who do not kill or intend to kill, and suggested that capital punishment could only
deter premeditated or deliberate murders. Id. at 798-99. On this point, the Court seemed
to foreshadow its later opinion in Tison, suggesting that if the likelihood that a killing
would occur during a particular crime were substantial enough, then the defendant could
4
Appellant notes that he is complaining of the law of parties as applied at the guilt innocence stage, which this Court
has not addressed.
44
potentially be responsible for the killing based on his or her participation in the associated
crime. The Court, however, expressly rejected this rationale for robberies, citing statistics
Finally, the Court considered the retributive goal of punishment. It concluded that
because Enmund’s punishment had to be limited to his "personal responsibility and moral
guilt," the execution of Enmund “to avenge two killings that he did not commit and had
no intention of committing or causing did not measurably contribute to the retributive end
of ensuring that the criminal gets his just deserts.” Id. at 801.
Five years later, in Tison, the Court created a narrow exception to the Enmund
holding. Tison v. Arizona, 481 U.S. 137 (1987). Compared to Enmund, the facts in
Tison were aggravated. The defendants, armed with an ice chest full of weapons, helped
to free two convicted murderers from prison. Id. at 139. After the escape, the defendants
and the escapees kidnapped a family of four, robbed them, and stole their car. Id. at 139-
40. Later the escapees murdered the family while the defendants stood by. Id. at 141.
Although the defendants did not fire the fatal shots, both received the death penalty. Id.
at 141-43.
a similar approach to that used in Enmund. Id. at 152-54. But see id. at 168 (Brennan, J.,
dissenting) (criticizing the Court for its “failure to conduct the sort of proportionality
45
analysis that the Constitution and past cases [such as Enmund] require”). Id. at 152-54.
But see id. at 168 (Brennan, J., dissenting) (criticizing the Court for its "failure to conduct
the sort of proportionality analysis that the Constitution and past cases [such as Enmund]
require").
The Court examined the relevant state statutes finding that, of the states that
authorized capital punishment at the time, only eleven “forbade imposition of the death
penalty even though the defendant's participation in the felony murder is major and the
at 154 (majority opinion). Next, the Court addressed the defendants’ culpability, which
in Enmund played a key role in undermining the retributive justification for the death
penalty. The Tison Court acknowledged that the idea that “more purposeful” crimes
deserve more serious punishments is “deeply ingrained in our legal tradition.” Id. at 156.
The Court, however, rejected the notion that “intent to kill” could always
among some of the most dangerous and inhumane of all.” Conversely, those who
intentionally kill in self-defense are culpable, but not criminally liable. Id. at 157. As
to the moral sense as an “intent to kill,’” the Court describes "the person who tortures
another not caring whether the victim lives or dies, or the robber who shoots someone in
the course of the robbery, utterly indifferent to the fact that the desire to rob may have the
46
unintended consequence of killing the victim as well as taking the victim's property." Id.
But see id. at 169-70 (Brennan, J., dissenting) (criticizing these examples because they
both involve murders in which the defendant did, in fact, kill the victim and because the
Thus, the Court concluded that the culpability requirement of Enmund is met if the
defendant was a major participant in the crime and showed “reckless indifference to
The Supreme Court, in Apprendi v. New Jersey, 530 U.S. 466 (2000), established
the principle that to meet Sixth Amendment mandates, any fact that increases the
statutorily prescribed maximum penalty, other than a prior conviction, must be proven by
a jury beyond a reasonable doubt. Two years later, in Ring v. Arizona, 536 U.S. 584
(2002), the Supreme Court cleared up some ambiguities left by that decision and
emphasized that the ruling applies to capital-sentencing schemes, and where at least one
aggravating circumstance must be found before a death sentence can be imposed, the
equivalent” of an element of the offense and thus must be determined by a jury under the
reasonable doubt standard. Appellant asserts that rather than have the parties issue
determined regarding “whether the defendant actually caused the death of the deceased or
did not actually cause the death of the deceased but intended to kill the deceased or
47
another or anticipated that a human life would be taken,” 5must be a clear and specific
finding at the guilt innocence portion of trial rather than a punishment issue, under the
after Apprendi came Ring v. Arizona, 536 U.S. 584 (2002), which clarified some of the
ambiguities left by Apprendi. Ring endorsed Apprendi and overruled Walton6, and
reasoned that capital defendants, no less than noncapital defendants, were entitled to a
jury determination of any fact on which the legislature conditioned an increase in their
maximum punishment. In other words, while sentencing factors may guide or confine a
Apprendi, at 481, judge-found sentencing factors cannot increase the maximum sentence
a defendant might otherwise receive based purely on the facts found by the jury. United
States v. O'Brien, 2010 U.S. LEXIS 4167 (U.S. May 24, 2010). Additionally, Ring made
clear that Apprendi does apply to capital-sentencing schemes; before Ring, a number of
cases examining Apprendi-based claims reasoned that the decision was not applicable to
such situations. Moreover, the Court rejected the state's claim that, because the capital-
sentencing statute prescribed “death or life imprisonment” for first-degree murder, the
defendant had been sentenced to no more than the maximum punishment authorized by
5
See Article 37.071Section 2(b)(2). (CR, guilt/innocence charge, 15 RR 5-8).
6
Walton v. Arizona, 497 U.S. 639 (1990), reh’g denied, 497 U.S. 1050 (1990)
48
the jury verdict. Rather, the Court determined that this argument overlooked Apprendi’s
instruction that the relevant inquiry was one not of form, but of effect.
defendant to a greater punishment than that authorized by the jury’s guilty verdict.” The
Court concluded that, because at least one aggravating circumstance had to be found
before a death sentence could be imposed, the finding of that particular aggravating
it overruled Walton to the extent that it allowed a sentencing judge, sitting without a jury,
to find an aggravating circumstance necessary for imposition of the death penalty. This
is the problem for Mr. Leza. Because of the mixture of conspiracy, parties, and general
verdict, the aggravating circumstance, that Leza intentionally caused the death of the
deceased, must be addressed at guilty innocence because that finding affects his
eligibility for the life or death sentence rather than a culpable mental state.7
49
Since 1976, Texas has conducted over one-third of all executions in the United
States. Death Penalty Info. Ctr., The Death Penalty in 2009: Year End Report 1 (2009),
available at http://www.deathpenaltyinfo.org/documents/2009YearEndReport.pdf. At
the end of 2009, 1,188 people had been executed in the United States since 1976, 447 of
whom were executed in Texas. Id. In 2009 Texas executed 24 persons out of 52 persons
executed in the entire United States. This number remained fairly consistent for the
accessed June 10, 2010. Texas is number two in the United States for the number per
chart below.
Cumulative
2008 Executions: Executions per
State/Rank
Population 1976-April Capita (x10,000)
17, 2009
50
Additionally, Texas has executed more persons than the country of Iran. .8 Iran’s
Texas law has long authorized conviction of a capital defendant under the law of
parties even when the defendant was indicted solely as a principal. Petitioner does not
allege that his trial counsel were unaware of this long-standing principle of Texas
criminal law. The Supreme Court's opinions in Apprendi, Blakely, and Ring make clear
that only a jury can make the factual determinations necessary to impose a sentence of
death on a criminal defendant." (Footnotes omitted)). See Foster v. Dretke, 2005 U.S.
Two years after Ring, in Blakely v. Washington, 542 U.S. 296, 303 (2004), the
Court held "that the "statutory maximum' for Apprendi purposes is the maximum
sentence a judge may impose solely on the basis of the facts reflected in the jury verdict
8
At least 346 people were executed, including at least eight juvenile offenders sentenced for crimes committed
when they were under 18. The actual totals were likely to have been higher, as the authorities restricted reporting of
executions. Executions were carried out for a wide range of offences, including murder, rape, drug smuggling and
corruption. At least 133 juvenile offenders faced execution in contravention of international law. Many Iranian
human rights defenders campaigned to end this practice. The authorities sought to justify executions for murder on
the grounds that they were qesas (retribution), rather than ‘edam (execution), a distinction not recognized by
international human rights law. In January, new legislation prescribed the death penalty or flogging for producing
pornographic videos, and a proposal to prescribe the death penalty for “apostasy” was discussed in the parliament,
but had not been enacted by the end of 2008. In January, the Head of the Judiciary ordered an end to public
executions in most cases and in August judicial officials said that executions by stoning had been suspended,
although at least 10 people sentenced to die by stoning were still on death row at the end of the year and two men
were executed by stoning in December. In December, Iran voted against a UN General Assembly resolution calling
for a moratorium on executions. Iran’s Population 72.2 million as of 2009 was three times that of Texas. See
http://www.amnestyusa.org/annualreport.php?id=ar&yr=2009&c=IRN (last Accessed June 11, 2010)
9
See id.
51
or admitted by the defendant." Because Enmund imposes "a substantive limit [] on
sentencing," restricting who may be put to death, a life sentence is the maximum sentence
allowed by the jury verdict if Enmund/Tison is not met. In Texas, courts should interpret
appellate level, and to require the jury to find that the defendant either killed or intended
to kill, as required by Enmund, or that the defendant was a major participant and acted
with reckless indifference to life, as required by Tison, at the guilt innocence stage of
trial, not punishment. When measured at the punishment phase and later reviewed by an
The federal district court in Foster v. Dretke, 2005 U.S. Dist. LEXIS 13862, at 82-
83 (W.D. Tex. Mar. 3, 2005) (“The Supreme Court's recent opinions in (Apprendi,
Blakely, and Ring] make clear that only a jury can make the factual determinations
followed this interpretation when it granted habeas relief on the basis that a jury had not
determined the “major participation” requirement of the Tison rule. The court concluded
that Foster's conviction was unconstitutional because the jury had not determined all the
necessary facts as required by Apprendi/Ring. Id. at 82-83. Although the Fifth Circuit
ultimately reversed this decision in Foster v. Quarterman, the court based its ruling on
the non-retroactivity of Apprendi, Ring, and Blakely rather than finding them inapplicable
52
More recently, in Gongora v. Quarterman, the district court raised the issue of
whether Apprendi and Ring required a jury finding of major participation under Tison,
but did not rule on the question because the defendant did not raise it on appeal. Gongora
v. Quarterman, 498 F. Supp. 2d 919, 924-25, 925 n.5 (N.D. Tex. 2007). Instead,
Gongora challenged the lack of a jury finding of the reckless indifference prong of Tison,
and the court rejected his challenge based on the jury's affirmative response to the anti-
parties special issue. Id. But see below (discussing the Texas courts' use of the anti-
parties charge to satisfy the Tison reckless indifference requirement and the constitutional
Thus, it appears that the federal courts are poised to interpret Apprendi and its
progeny to require jury findings of the Enmund/Tison criteria in Texas death penalty
cases. Foster v. Quarterman, 466 F.3d 359, 369-70 (5th Cir. 2006) (“Foster's conviction
became final, however, in April 2000 ... before Apprendi, Ring, and Blakely were
decided. None of those cases applies retroactively.... Therefore, they do not apply to this
excessiveness inherent in the Tison exception. As set out below, the law of parties in
Texas is violative of all of the above discussed post Apprendi and Ring safeguards.
53
Texas's current capital murder statute is similar to the statute upheld in Jurek. See
Jurek v. Texas, 428 U.S. 262, 268-69 (1976) (plurality opinion) (noting that after Texas's
death penalty scheme was found unconstitutional in Branch v. Texas, decided with
Furman v. Georgia, 408 U.S. 238 (1972), the Texas legislature enacted a new scheme
limiting the types of offenses eligible for capital punishment). The applicable statute
2007).
If the jury finds the defendant guilty and if the State decides to seek the death
penalty, the jury must then consider up to three special issues during the punishment
phase of the trial. TEX. CODE CRIM. PROC. Ann. art 37.071, §§2(b), (e) (1) (O’Connor’s
2007). The first issue requires the jury to find whether the defendant “constitutes a
dangerousness.” TEX. CODE CRIM. PROC. ANN. art 37.071, § 2(b) (1) (O’Connor’s 2007).
The second requires the jury to determine whether the defendant, if convicted as a party,
“actually caused the death of the deceased or ... intended to kill the deceased or another
or anticipated that a human life would be taken.” TEX. CODE CRIM. PROC. ANN. art 37.071,
§ 2(e) (1) (O’Connor’s 2007). Finally, the third issue allows the jury to consider whether
any mitigating circumstances warrant a sentence of life without parole instead of the
death penalty as required by Penry. TEX. CODE CRIM. PROC. ANN. art 37.071, § 2(e) (1)
54
(O’Connor’s 2007). A death sentence requires an affirmative finding, beyond a
reasonable doubt, for the first two issues as well as a negative finding for the third;
otherwise, the defendant receives life imprisonment without parole. If the jury imposes a
death sentence, the defendant is entitled to automatic review by the Texas Court of
Criminal Appeals. TEX. CODE CRIM. PROC. ANN. art 37.071, § 2(g) (O’Connor’s 2007).
Sections 7.01 and 7.02 of the Texas Penal Code establish the circumstances under
which a defendant may be charged for offenses committed by others and is commonly
known as “the law of parties.” TEX. PENAL CODE ANN. §§7.01, 7.02 (O’Connor’s 2007).
Under Section 7.01, a person may be charged with an offense if the offense is committed
by his or her own conduct or by the conduct of another for which the defendant is
“criminally responsible.” TEX. PENAL CODE ANN. §7.01 (O’Connor’s 2007). Section 7.02
identifies when a defendant is criminally responsible for the conduct of another. TEX.
55
and was one that should have been anticipated as a result of
carrying out the conspiracy.
In order to convict the defendant as a party under Section 7.02(b), the jury must
find that “the offense was committed in furtherance of the unlawful purpose” of the
conspiracy and the offense “was one that should have been anticipated as a result of
carrying out the conspiracy.” Id. Although the provision refers to "conspiracy," which the
Penal Code defines as a separate offense, See TEX. PENAL CODE ANN. §15.02 (O’Connor’s
2007). The State need not charge the defendant with conspiracy because the statute
addresses only an “attempt to carry out a conspiracy.” English v. State, 592 S.W.2d 949,
In short, Section 7.02(b) allows the State to convict a defendant without having to
prove that the defendant intended or even anticipated the offense. Prystash v. State, 3
S.W.3d 522, 541 n.4 (Tex. Crim. App. 1999) (Keller, J., concurring). In the case of
murder, this rule is similar to the common law felony murder rule in that both allow for
It is useful for the analysis of Mr. Leza’s case,10 to distinguish the law of parties
from the felony murder rule. At common law, the felony murder rule imposed a form of
10
It is important to also note that defense counsel at trial requested a charge on felony murder and it was denied.
56
strict liability for any killing committed during the commission of a felony. Pinkerton v.
United States, 328 U.S. 640, 647 (1946)). The rule applied regardless of whether the
murder rule, which Justice Brennan criticized as “a living fossil,” Tison, 481 U.S. at 159.
(Brennan, J., dissenting) (“This curious doctrine is a living fossil from a legal era in
which all felonies were punishable by death.”), has endured in the United States despite
extensive criticism. 11 Texas preserves this rule in section 19.02(b) (3) of the Penal Code.
The penal code version, however, is more lenient than the strict liability common
law rule, requiring that in the course of a felony, the defendant commit, or attempt to
commit, “an act clearly dangerous to human life that causes the death of an individual.”
Id. The course-of-felony eligibility factor contained in the capital murder statute is also
similar to the felony murder rule. TEX. PENAL CODE ANN. § 19.03(a) (2) (O’Connor’s
2007).
This widely used provision allows for capital murder convictions for intentional
murders committed in the course of any of several enumerated felonies. Id. This
11
, The Common Law 57-58, Oliver Wendell Homes, Jr. (Little, Brown & Co. 1923) (1881) (“If the object of the
[felony murder] rule is to prevent [accidental killings,] it should make accidental killing with firearms murder, not
accidental killing in the effort to steal; while, if its object is to prevent stealing, it would do better to hang one thief
in every thousand by lot.”).
57
“Minimizing Risk: A Blueprint for Death Penalty Reform in Texas” 33 Tex. Defender
Section 7.02(b) of the law of parties is similar to the felony murder rule in that
both allow a jury to convict a defendant of murder without requiring a finding that he or
she intentionally or knowingly killed. Compare TEX. PENAL CODE ANN. § 19.02(b) (3) with
Additionally, the two rules can act in tandem because the law of parties is a theory
of liability, and the felony murder rule provides for a substantive offense. TEX. PENAL
CODE ANN. § 19.02(b) (3). For example, a defendant can be convicted as a party when an
accomplice commits felony murder. In this case, the jury could convict both the
defendant and the accomplice of felony murder, but neither defendant would receive the
death penalty because felony murder is not a capital offense in Texas. . See Cuevas v.
State, 742 S.W.2d 331, 343 (Tex. Crim. App. 1987) (“Felony murder in Texas is not a
However, if the State charges the killer with capital murder instead of felony
murder, party liability could allow both to be sentenced to death: this is the problem with
Mr. Leza’s case and all of those defendants similarly situated. This is especially
problematic when one co-defendant makes a deal with the prosecution to testify against
distinction: Thelma and Louise decide to rob a bank. Thelma, armed with a gun,
approaches the teller and demands the money while Louise waits outside in the getaway
car. If the teller then dies from a heart attack because of the robbery, Louise could be
convicted of felony murder as a party to the offense, but neither defendant would be
eligible for the death penalty because felony murder is not a capital offense. On the other
hand, if Thelma intentionally shoots the teller, Louise could be convicted of capital
result, the State could only seek the death penalty for Louise in the second scenario, even
though Louise’s role in the crime was identical in both scenarios. Indeed, the only proof
of Louise’s intent would be forcing her to take the stand in violation of her Fifth
Amendment rights, or allowing Thelma to testify against Louise or for Louise with no
Section 7.02(b) of the law of parties allows the State to convict a defendant for a
murder that the defendant did not commit or intend, but Enmund/Tison prohibits the
imposition of the death penalty unless the defendant's conduct satisfies the major
participant and reckless indifference requirements, as discussed ante. The Texas scheme
does not adequately address these requirements and therefore allows imposing death
accomplice if the accomplice at least “should have ... anticipated” the offense. Prystash
to their accomplices for death penalty purposes. . Enmund v. Florida, 458 U.S. at 798.
(holding that it was “impermissible under the Eighth Amendment” for the State to
Because the use of conspiracy liability would clearly violate Enmund if it were the
sole basis for a death sentence, Texas courts have “limited” the use of the law of parties
to the guilt-innocence phase of capital trials and prohibited the jury from applying the
rule to the special issues answered during the punishment phase. Green v. State, 682
S.W.2d 271, 286-88 (Tex. Crim. App. 1984) (discussing the requirements of Enmund and
“holding that it is error to apply directly the law of parties to any of the punishment issues
Anti-parties Charge
If the jury finds the defendant guilty of capital murder as a party, it must then answer
the three special issues provided by Article 37.071 before it may impose the death
penalty. TEX. CODE CRIM. PROC. ANN. Art. 37.071. The second of these special issues,
60
which is also known as the “antiparties” special issue, requires the jury to find whether
the defendant actually killed, intended to kill, or anticipated that a life would be taken. .
Prystash, 3 S.W.3d at 540-41, 541 n.4. This issue theoretically directs the jury to focus
exclusively on the defendant's conduct, rather than the conduct of co-conspirators, and
therefore avoids the attribution of culpability prohibited by Enmund. TEX. CODE CRIM.
However, the Enmund/Tison rule also prohibits the imposition of the death penalty
on defendants who did not kill or intend to kill unless the defendant was a major
participant and displayed reckless indifference to life. The theory of party liability
provided in Section 7.02(a) ostensibly avoids this issue because it requires the jury to
find, during the guilt-innocence phase, that the defendant “intended to promote or assist
the commission of’ an intentional murder.” Lawton v. State, 913 S.W.2d 542, 555 (Tex.
On the other hand, Section 7.02(b) clearly dispenses with any intent requirement,
and was one that should have been anticipated” by the defendant. TEX. PENAL CODE ANN. §
7.02(b). The Court must examine the issue of whether, following a conviction under
Shortly after Enmund and Tison were decided, the Texas Court of Criminal
Appeals addressed the effect of those decisions on the death penalty scheme in Cuevas v.
State. Cuevas v. State, 742 S.W.2d 331 (Tex. Crim. App. 1987). The Cuevas court
found that the Enmund/Tison rule was satisfied by a special issue, answered during the
punishment phase, which required the jury to find “whether the conduct of the defendant
that caused the death of the deceased was committed deliberately and with the reasonable
expectation that the death of the deceased or another would result.” Id. at 343.
Because the jury could not apply the law of parties during the punishment phase,
this special issue required the jury to focus exclusively on the defendant's own conduct
and to determine not only that the defendant reasonably expected death to result, but also
that he or she acted deliberately. Id. This special issue, which is no longer a part of the
Texas death penalty scheme, imposed a much higher culpability standard than the current
Texas again modified Article 37.071 adding the mitigation special issue now
found in Section 2(e). . See McFarland v. State, 928 S.W.2d 482, 521 (Tex. Crim. App.
1996) (noting that Section 2(e) was added in order to comply with Penry's requirement
that the jury be able to consider, and give effect to, relevant mitigating evidence).
Cuevas and added the anti-parties charge, which requires the jury to find that the
62
defendant killed, intended to kill, or anticipated that a life would be taken. (1991
amendments to Article 37.071). This question sought to clarify any remaining confusion
about whether a defendant could be executed solely based on the conduct of his or her co-
actors. But see Green v. State, 682 S.W.2d 271, 286-88 (Tex. Crim. App. 1984) (holding
that “it is error to apply directly the law of parties to any of the punishment issues in a
Although the addition of the anti-parties charge may have remedied constitutional
concerns about the attribution of culpability, the deletion of the deliberateness special
issue raises questions about the level of culpability required for a death sentence under
Culpability of Parties.
The anti-parties charge imposes a lesser culpability standard than the previous
deliberateness issue that the Cuevas court found satisfied Enmund/Tison. The Texas
Court of Criminal Appeals has repeatedly held "that the term “deliberately” [as used in
“knowingly’” Prystash v. State, 3 S.W.3d 522, 541 (Tex. Crim. App. 1999) (Keller, J.,
concurring) (citing Ramirez v. State, 815 S.W.2d 636, 653-54 (Tex. Crim. App. 1991)
However, “the words ‘intended’ and ‘anticipated’ (in the anti-parties issue) appear to
63
encompass the same or less culpability than the culpable mental states required for
Section 7.02(a) (2), the lower culpability standard imposed by the anti-parties issue
appears to this Court as unlikely to raise any Enmund/Tison concerns. . Lawton v. State,
913 S.W.2d at 555. (holding that “neither Enmund nor Tison are directly applicable to
Article 37.071” when the defendant is convicted as a party under § 7.02(a) (2)). This is,
theoretically, because in order to convict under Section 7.02(a) (2), the jury must find that
the defendant “acted with [the] intent to promote or assist the commission of the [capital
murder].” TEX. PENAL CODE ANN. § 7.02(a) (2). This means that the jury has already found
that the defendant acted intentionally, with respect to the murder, before it even reaches
the sentencing phase in which it decides whether the defendant anticipated that the
The problem with this paradigm or methodology is under Section 7.02(b), the jury
need not find that the defendant intended to promote or assist in the offense, only that the
defendant "should have ... anticipated" that the offense would occur. TEX. PENAL CODE
ANN. § 7.02(b). As a result, the conviction of a defendant for capital murder under
Section 7.02(b) does not necessarily require a finding that the defendant killed, attempted
to kill, or intended to kill as required by Enmund. Therefore, in order for the defendant to
be sentenced to death, Tison requires that the defendant acted with reckless indifference
64
to life and was a major participant in the accompanying felony. The jury never explicitly
makes these Tison findings under the Texas scheme, as applied in Mr. Leza’s case.
The question then, is whether the anti-parties charge, which requires that the
defendant at least “anticipated that a human life would be taken,” demonstrates the same
challenge to the anti-parties issue stating that “anticipating that a human life will be taken
is a highly culpable mental state at least as culpable as the one involved in Tison v.
Arizona.” Ladd v. State, 3 S.W.3d 547, 573 (Tex. Crim. App. 1999) (emphasis omitted).12
This holding, however, is erroneous because it contradicts the clear language of Tison.
In Tison, the Court flatly rejected the Arizona Supreme Court's interpretation that
“inten[t] to kill [under Enmund] includes the situation in which the defendant intended,
contemplated, or anticipated that lethal force would or might be used or that life would or
might be taken.” Tison, 481 U.S. at, 150. (quoting State v. Tison, 690 P.2d 755, 757
(Ariz. 1984)).
The Court rejected this interpretation as overly broad, noting that “participants in
violent felonies like armed robberies can frequently ‘anticipate that lethal force ... might
12
JUDGES: MANSFIELD, J., delivered the opinion of the Court, in which McCORMICK, P.J., and MEYERS,
PRICE, HOLLAND, WOMACK, JOHNSON, and KEASLER, JJ., joined. KELLER, J., joined the opinion of the
Court except its discussion of points of error seven and eight, in which she concurred only as to the result.
Ladd v. State, 3 S.W.3d 547 (Tex. Crim. App. 1999)
65
be used’” and concluded that “Enmund himself may well have so anticipated.” n179 The
Tison Court plainly recognized that with violent crimes, “the possibility of bloodshed
is ... generally foreseeable and foreseen; it is one principle reason that felons arm
themselves.” Id. at 150-51 Even so, the Court concluded that a defendant who anticipated
violence, without major participation and reckless indifference, did not demonstrate the
Therefore, contrary to the Ladd court's rationale, the anti-parties special issue,
requiring only that the defendant anticipated the taking of a life, is not equivalent to the
reckless indifference and major participation requirements of Tison. As a result, when the
jury convicts a defendant of capital murder under Section 7.02(b), the jury is never
required to make the requisite Enmund/Tison findings. This is problematic because the
lack of such a jury finding increases the risk that the sentence does not satisfy
Enmund/Tison and because, in light of recent cases, the Constitution requires that a jury
The Texas Scheme must be changed to meet the mandates of Tison and Enmund.
Apprendi and Ring have sub silentio overruled the prior Texas cases that find the
Apprendi and Ring show that the Texas scheme must require a jury determination of
culpability at the guilt innocence stage prior to the petit jury determining an accused’s
sentence. TEX. CODE CRIM. PROC. ANN. art. 37.071, § 2(b) (2) (O’Connor’s 2007). Under
66
the current anti-parties charge, a jury may sentence a defendant to death for an offense
committed by another that the defendant merely anticipated. TEX. CODE CRIM. PROC. ANN.
art. 37.071, § 2(b)(2) This level of culpability falls below the reckless indifference to life
standard that Tison requires. Attempts to rectify this deficiency at the appellate level are
In order to ensure that Enmund/Tison and Apprendi/Ring are satisfied, the parties
language to be used at the guilt-innocence stage of a capital murder case, must result in
specific findings to the particular accused including his culpable mental state and the act
or acts he actually performed, rather than allow multiple allegations to result in a general
verdict on this particular accused. The indictment and the jury charge should set out the
different counts the accused is believed to have committed and the manner and means for
the homicide and the jury must find beyond a reasonable doubt specifically what the
accused did and what his culpability (mens rea) was at the time of the offense. If that
occurs, then the guilt-innocence phase of such a case as Mr. Leza’s would provide an
individualized, narrowly defined, eligibility for a sentence of life or death, specifically for
Further, a risk of arbitrary sentencing due to the vague standards Tison is created
by the law of parties in Texas. In addition, when a defendant did not kill or intend to kill,
use of the death penalty risks imposing a disproportionate punishment that does not
67
measurably serve the goals of retribution and deterrence. For these reasons, this Court
must prohibit the use of Section 7.02(b) in death penalty cases. This modification is
unlikely to undermine the social purposes used to justify the death penalty.13 This
approach would only affect co-conspirators who did not intend to kill. Primary actors
would continue to be directly liable under Section 19.03. Accomplices who act
The only defendants who would no longer be eligible for the death penalty under
this application of the Texas scheme are those who did not kill or intend to kill. Such
defendants are already constitutionally ineligible for death under Enmund unless they
defendants who might otherwise be eligible under Tison is justified by the rationale of
According to Enmund, the death penalty is unlikely to deter defendants who do not
intend to kill, and the low level of culpability of such defendants undermines the
retributive goal of seeing that criminals get what they deserve. Additionally, this change
would not frustrate the state’s interest in punishing those “nonintentional murderers”
described by the Tison Court, who “may be among the most dangerous and inhuman of
13
Counsel is not waiving any arguments to the constitutionality of the death penalty, or to the moral arguments
attached to such a sentence.
68
Texas, however, has already determined that these types of killings do not warrant
the death penalty. Under the penal code, a defendant who tortures a victim to death
without intending to kill has committed noncapital murder. . See TEX. PENAL CODE ANN.
bodily injury and commits an act clearly dangerous to human life that causes the death of
an individual"). TEX. PENAL CODE ANN. §19.02(b)(3). However, if the defendant commits
an intentional murder during one of several enumerated felonies, such as robbery, then he
or she commits capital murder. See TEX. PENAL CODE ANN. § 19.03 (defining capital
murder).
Likewise, a defendant who unintentionally kills during the course of a felony has
committed felony murder and not capital murder. TEX. PENAL CODE ANN § 19.02(b) (3).
Therefore, the elimination of conspiracy liability as a basis for capital murder convictions
would only disqualify from the death penalty a narrow group of defendants, for whom a
under Tison.
To meet the mandates of the Sixth and Eight Amendments to the United States
Constitution, this Court must require the jury to make Enmund/Tison findings at the guilt
innocence portion at the trial court level. If the jury does not make such findings,
69
appellate courts must commute the death sentences of defendants convicted solely as
Conclusion
The death penalty is an excessive under the Eighth Amendment and therefore
7.02(b). Section 7.02(b) allows for capital murder convictions when a co-conspirator
commits an offense that merely “should have been anticipated” by the defendant. Article
37.071 supposedly adds an additional layer of protection for the defendant at the
sentencing phase, requiring a finding that the defendant at least “anticipated that a human
life would be taken.” Nevertheless, this anti-parties charge does not adequately ensure
that only the worst offenders receive death sentences and that those sentences are
did not kill or intend to kill unless the defendant showed reckless indifference to life and
was a major participant in the accompanying crime. Neither Section 7.02(b) nor Article
37.071 demands this level of culpability. Furthermore, the Texas scheme does not require
finds that a defendant meets the Tison requirements at the punishment phase of trial,
Tison imposes vague, subjective criteria that create a substantial risk of unconstitutionally
70
arbitrary and excessive punishments. In short, Texas should not execute defendants for
murders they did not commit solely based on their associations with the actual killers.
The absence of any mention of the law of parties in the instant indictment and the
in the jury charge at the guilt innocence stage of trial violated Appellant’s Sixth
Amendment rights under Apprendi and Ring14 because Mr. Leza was indicted as acting
alone, however the jury charge as given does not allow to an individualized finding of
guilt based on elements of the offense of conviction for Appellant, Mr. Leza, which
violates the Eighth Amendment, and the Sixth Amendment. As a result, Mr. Leza’s
The capital murder charge employed against Leza was disjunctive and contained
three distinct criminal acts. The three acts all contained distinct verbs and objects,
indicating that they were different criminal acts rather than different means of committing
the same act. Jurors may have disagreed over which act Leza performed, and what the
object of the act was, but the charge indicated that they did not need to come to consensus
regarding the verb and object to find Mr. Leza guilty. Without consensus regarding the
14
Ring v. Arizona, 536 U.S. 584, (2002)
71
verb and object, the jury could not have come to a consensus regarding which act Leza
was guilty of, violating Mr. Leza’s right to a unanimous verdict. This error is analyzed in
two steps: 1) whether the error is present; and 2) whether the harm warrants reversal.
Ngo v State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005).
a. The Texas Constitution and the Texas Code of Criminal Procedure require the jury to
deliver a unanimous verdict for felonies
The Texas Constitution and the Texas Code of Criminal Procedure guarantee
criminal defendants unanimous jury verdicts. TEX. CONST. ART. I, § 19; TEX. CONST. ART.
V, § 13; TEX. CODE CRIM. PROC. ANN. Arts. 36.29(a), 37.02, 37.03 (O’Connor’s 2007). A
unanimous verdict does not require unanimity over the method, only unanimity over the
criminal act. Pizzo v. State, 235 S.W.3d 711, 715 (2007). Schad v. Arizona, 501 U.S.
624, 632 (1991) (Due process clause permits non-unanimity on the course of conduct and
state of mind). Discerning which elements refer to the commission of the criminal act
rather than the method by which it was committed necessitates a return to grammar
school to determine the legislative intent behind the statute upon which the charge is
based. Stuhler v. State, 218 S.W.3d 706, 718 (Tex.Crim.App. 2007) (citing Jefferson v.
State, 189 S.W.3d 305, 315-16 (Tex. Crim. App. 2006) (Cochran, J., concurring, joined
The “eighth grade grammar” test requires that the jury unanimously agree upon
the subject, verb, and direct object (if present) to convict a defendant of a crime. Stuhler,
218 S.W.3d at 718 (citing Jefferson, 189 S.W.3d at 315-16. The subject refers to the
72
defendant, the verb refers to the criminalized conduct, and the direct object (if present)
refers to the criminalized result. Id. This test divides crimes into two distinct categories:
result oriented and conduct oriented, based on the presence or absence of a direct object.
See Id. Unanimity requires more than just agreeing on whether the criminal act is result
or conduct oriented however, differences in verb and object may distinguish two result or
conduct oriented offenses. Stuhler, 218 S.W.3d at 718-19 (three distinct criminal acts are
contained in the statute defining “injury to a child”, these acts share a verb but have
distinct objects).
The charge used to convict Mr. Leza was drawn from the capital murder statute,
the law of parties statute, and the conspiracy statute. TEX. PENAL. CODE ANN. Art. 7.01,
7.02, 15.02, 19.02, 19.03 (O’Connor’s 2007) (murder is included because it is the basis
for the capital murder charge). These statutes, though intertwined on many points, are
separate criminal acts and an analysis of their grammatical composition makes this clear.
The first criminal act encompassed by the capital murder charge identifies Mr.
Leza as the principal actor. This act corresponds to murder as defined in the Texas Penal
Code. TEX. PEN. CODE Ann. Art. 19.02 (O’Connor’s 2007) (capital murder adds
enhancements to murder, the core structure is shared). The relevant elements of the
charge, necessary for unanimity on the criminal act, are “person” (subject), “causes”
73
(verb), “death” (direct object). The jury, to find a defendant guilty of murder, must agree
on the subject, verb, and object. See Landrian v. State, 268 S.W.3d 532, 537 (Tex. Crim.
App. 2008); Stuhler, 218 S.W.3d at 718-19; Bundy v. State, 280 S.W.3d 425, 440 (Tex.
App.—Fort Worth 2009, pet ref’d) (Dauphinot J., dissenting) (applying the grammar test
The second criminal act encompassed by the capital murder charge identifies Mr.
Leza not as the principal, rather as a party. The law of parties provides the statutory basis
for this criminal act. TEX. PENAL CODE ANN. Art. 7.02 (O’Connor’s 2007). To be
convicted under the law of parties, the jury must agree on “person” (subject), “solicits”
(or synonym, verb), “[an]other person” (direct `object). See Landrian, 268 S.W.3d at
537; Stuhler, 218 S.W.3d at 718-19; Bundy, 280 S.W.3d at 440; TEX. PENAL CODE ANN.
Art. 7.02 (a)(2) (O’Connor’s 2007) (the charge against Mr. Leza draws from this
subsection of the statute). Though Art. 7.01 notes that a party found criminally
responsible for another’s conduct may be charged with the crime as if they were the
actor, this is a conjunctive association. To unanimously convict under the law of parties,
the jury must find all the elements of the felony offense unanimously, and also find all
The third criminal act charged, conspiracy, when analyzed under the “eighth grade
grammar” test, operates as a restatement of the law of parties, but one contemplating the
commission of a felony not anticipated by the conspiring parties. TEX. PENAL. CODE Ann.
74
7.02(b) (O’Connor’s 2007). Mr. Leza’s conviction under this prong of the law of parties
required jury unanimity on “person” (subject), “conspires” (verb), “to commit” (infinitive
serving as a direct object). See Landrian, 268 S.W.3d at 537; Stuhler, 218 S.W.3d at
718-19; Bundy v., 280 S.W.3d at 440; TEX. PENAL CODE Ann. Art. 15.02 (O’Connor’s
2007). Similarly to the basic law of parties, an additional criminal act must be committed
by a person other than the defendant. As with the basic law of parties, the additional
c. The jury was not instructed that they needed to unanimously agree on the act which
resulted in their guilty verdict, violating Mr. Leza’s right to a unanimous verdict
The capital murder charge presented against Mr. Leza disjunctively incorporated
three distinct criminal acts and failed to direct the jury that unanimity was required
regarding which act the jury relied upon to convict. (3 CR 803). By failing to so direct
the jury, the charge implicitly authorized a non-unanimous verdict in violation of Mr.
Leza’s rights.
defendant, and agreement cannot be had when three distinct verbs and objects are
incorporated into the charge. See Ngo, 175 S.W.3d at 744 (the jury must agree on the
criminal act committed to deliver a unanimous verdict). The “eighth grade grammar” test
identifies the subject, verb, and object as the elements which compose a distinct criminal
act. See Landrian, 268 S.W.3d at 537; Stuhler, 218 S.W.3d at 718-19; Bundy, 280
S.W.3d at 440.
75
When presented with the capital murder charge against Leza, the jury was offered
three completely distinct verbs and objects. The verbs presented to the jury are “causes”,
“solicits”, and “conspires”. The verbs are not synonyms, explicating different methods of
committing the same act (with a generous reading “solicits” and “conspires” may be
lumped together, but this does not remedy their difference from “causes”) See Contreras
v. State, NO. PD-0490-09, 31 (Tex. Crim. App June 9, 2010) (noting that causing the
death of an individual is the sine qua non of homicide offenses; Contreras was convicted
of felony murder and different mental states were presented disjunctively in the charge).
The objects presented to the jury are “death”, “[an]other person”, and “to commit”. The
objects are not synonymous either. Presented with a veritable smorgasbord of verbs and
objects, the jury is afforded unconstitutional latitude. Though their agreement on the
subject of the three acts is assured, the charge authorizes them to disagree on the act and
the object supporting the capital murder conviction, violating Mr. Leza’s right to a
unanimous verdict. See Ngo, 175 S.W.3d at 749 (if jury is presented with different acts
yet instructed that only the ultimate verdict need be unanimous, the charge contains
error).
Furthermore, the similarity between the criminal acts conjoined to the second and
third acts in the charge (“solicits” and “conspires”) does not affect the “eighth grade
grammar” analysis because the verb and object in the second and third acts still demand
unanimity. See Landrian, 268 S.W.3d at 537; Stuhler, 218 S.W.3d at 718-19; Bundy v.,
76
280 S.W.3d at 440. Though the jury may all agree that Dolores Trevino killed the
complainant, some jurors may find that Mr. Leza solicited Trevino’s action, while others
may find that Mr. Leza conspired with Trevino and that Trevino acted independently of
Mr. Leza’s direction. The central problem remains, the jury was authorized to deliver a
unanimous verdict without agreement on the criminal act, violating Mr. Leza’s right to a
unanimous verdict. See Huffman v. State, 267 S.W.3d 902, 905 (Tex. Crim. App. 2008)
(citing Kitchens v. State, 823 S.W.2d 256, 257 (Tex. Crim. App. 1991)) (alternative
felonies underlying capital murder did not require a unanimous verdict; the grammar test
would cast the two different felonies as outside the core unit of the offense)
The “eighth grade grammar” test not yet been applied to capital murder or law of parties.
See Huffman, 267 S.W.3d at 907. (comment mentions capital murder, but does not
unanimous verdict because it distills the offense down to its most basic elements.
Distractions like method and intent are excised. When the grammar test is applied, the
fundamental nature of the criminal acts contained in the charge are revealed, indicating
d. Mr. Leza was harmed by the denial of his right to a unanimous verdict
The jury charge contains an error allowing for a non-unanimous verdict, to which
Mr. Leza objected. (15 RR 6-8). With a timely objection, this Court must examine: “1)
77
the entire jury charge; 2) the state of the evidence; 3) the arguments of counsel; and 4)
any other relevant information in the record”, for “some harm” to the defendant. Ngo,
175 S.W.3d at 750 (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.
1985)). Mr. Leza was certainly harmed by a statement from the bench implying that
unanimity was not necessary for a capital murder charge which required it. And, Mr.
Leza was definitely harmed by a jury charge that permitted a due process violation.
After the jury charge was read, the judge informed the jury that they needed to be
unanimous only as to the crime committed. (15 RR 20). Under the grammar test
unanimity is required regarding the type of capital murder committed. The judge’s
instruction implied that the jury did not need to find the type of capital murder
punishment phase. This runs counter to the constitutional mandate that all the sentence
XIV; Apprendi v. New Jersey, 530 U.S. 466, 491-93 (2000). Because of the non-
unanimous verdict, Mr. Leza could have been convicted on a criminal act premised on
party liability or a criminal act premised on principal liability; and the general verdict
requested by the charge would not indicate which act the jury relied upon.
78
The death penalty, the ultimate sentence, may not be assessed if the actor is not a
principal, and this determination is made during the punishment phase, against
Apprendi’s holding. TEX. CODE CRIM. PRO. Art. 37.071. See Apprendi, 530 U.S. at 491-93.
general verdict form, the question of Mr. Leza’s status as a principal or a party is deferred
to the punishment phase. Whether or not Mr. Leza was a principal determines whether
he is subject to the death penalty. TEX. CODE CRIM. PRO. Art. 37.071. The Fourteenth
Amendment requires that this question be answered at the guilt/innocence phase of trial;
because only a non-unanimous general verdict was delivered, this requirement was not
met and Mr. Leza’s constitutional rights were violated. A constitutional violation is
The harm Mr. Leza suffered from the erroneous jury charge necessitates reducing
his sentence to life in prison. The source of the error, and a compounding factor in its
harm, is the Texas Penal Code and Code of Criminal Procedure. Reversing Mr. Leza’s
conviction and remanding this cause for trial to correct the error would prove futile,
because the statutory structure would remain. The Constitution demands that Mr. Leza’s
eligibility for the death penalty be settled by the jury in the guilt/innocence phase, and the
jury charge made this impossible. With this understanding, the appropriate remedy is
simply the delivery of the sentence invited by the charge: life in prison.
79
POINT OF ERROR SIX
Appellant’s Capital Trial Was Conducted Before State
Judicial Officers Dependent upon Popularly-contested
Elections.
Mr. Leza’s conviction and sentence violate the constitutional guarantees of due
process of law, equal protection of the laws and reliable sentencing because capital trial
and review on direct appeal were conducted before state judicial officers whose tenure in
office was not during good behavior but rather was dependent on popular election. See
U.S. Const. Amends. V, VIII and XIV. As John Adams stated, “It is the right of every
citizen to be tried by judges as free, impartial and independent as the lot of humanity will
admit.” See Pennekamp v. Florida, 328 U.S. 331, 355 (1946), quoting the First
Constitution of Massachusetts.
In support of this claim, Appellant alleges the following facts. The tenure of
judges of the Texas state courts including the Texas Court of Criminal Appeals is
Constitution, Article V, § 1. The justices of the highest Criminal court in the State of
Texas perform mandatory review of capital death sentences directly without intermediary
15
THE TEXAS CONSTITUTION
ARTICLE 5. JUDICIAL DEPARTMENT
Sec. 1. JUDICIAL POWER; COURTS IN WHICH VESTED. The judicial power of this
State shall be vested in one Supreme Court, in one Court of Criminal Appeals, in Courts of
Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices
of the Peace, and in such other courts as may be provided by law.
The Legislature may establish such other courts as it may deem necessary and
prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the
district and other inferior courts thereto.
80
appellate court review. TEX. CODE CRIM. PROC. Article 37.071 section 2, (h). Appeal to
The Texas Court of Criminal Appeals derives its power from Article V, Sec. 5 of
the Texas Constitution. Section 5 provides that the Court of Criminal Appeals has final
(a) The Court of Criminal Appeals shall have final appellate jurisdiction
coextensive with the limits of the state; and its determinations shall be final,
in all criminal cases of whatever grade, with such exceptions and under
such regulations as may be provided in this Constitution or prescribed by
law.
Additionally, Section 5 provides the Judges of the Court of Criminal Appeals
matters before that Court, it also clearly stands for the proposition that, in matters
criminal, the Court of Criminal Appeals is the final arbiter. By extension, the Court of
Criminal Appeals must also be the exclusive arbiter of criminal law matters. To that end,
subsection (c) provides the Court of Criminal Appeals with authority to carry out its
orders and protect its jurisdiction in an administrative manner, by providing the Court the
81
authority to issue writs of mandamus, procedendo, prohibition, and certiorari. The Court
of Criminal Appeals, not the Texas Supreme Court, governs criminal law matters within
This sentiment is echoed in the provision from which the Texas Supreme Court
The Supreme Court shall exercise the judicial power of the state except as
otherwise provided in the Constitution. Its jurisdiction shall be co-extensive
with the limits of the State and its determinations shall be final except in
criminal law matters. Its appellate jurisdiction shall be final and shall
extend to all cases except in criminal law matters and as otherwise provided
in this Constitution or by law.
Tex . Constitution. Art. V Sec. 1.
Like the Court of Criminal Appeals, the Texas Supreme Court is vested with the
authority to issue writs of habeas corpus, mandamus, procedendo, and certiorari, under
language almost identical to that granting the same authority to the Court of Criminal
Appeals. The provisions of Article V delineating the jurisdiction and authority of the
Supreme Court and Court of Criminal Appeals establish that the two courts are
independent of one another, and each is the final arbiter of the law in its own respective
field. The Court of Criminal Appeals is not subordinate to the Supreme Court. As such,
the Court of Criminal Appeals should control the criminal dockets of the appellate courts.
If the transfer of cases between the appellate courts is proper, it is the Court of Criminal
Appeals, as the final arbiter of criminal matters, not the Supreme Court, that has the
82
fully elected court is unconstitutional as applied and facially because it fails to respect the
At the time of the adoption of the United States Constitution, the common law
definition of due process of law included the requirement that judges who presided over
trials in capital cases, which at that time potentially included all felony cases, have tenure
during good behavior. All of the judges who performed the appellate function of
deciding legal issues reserved for review at trial had tenure during good behavior. This
mechanism was intended to, and did, preserve judicial independence by insulating
judicial officers from the influence of the sovereign that would otherwise have
16
Ironically, Senator John Cornyn from Texas made remarks on the Senate Floor which raised the ire of many
citizens. ‘ Sen. John Cornyn said yesterday that recent examples of courthouse violence may be linked to public
anger over judges who make politically charged decisions without being held accountable. In a Senate floor speech
in which he sharply criticized a recent Supreme Court ruling on the death penalty, Cornyn (R-Tex.) -- a former
Texas Supreme Court justice and member of the Judiciary Committee -- said Americans are growing increasingly
frustrated by what he describes as activist jurists. “It causes a lot of people, including me, great distress to see judges
use the authority that they have been given to make raw political or ideological decisions,” he said. Sometimes, he
said, “the Supreme Court has taken on this role as a policymaker rather than an enforcer of political decisions made
by elected representatives of the people.”
Cornyn continued: “I don't know if there is a cause-and-effect connection, but we have seen some recent episodes of
courthouse violence in this country. . . . And I wonder whether there may be some connection between the
perception in some quarters, on some occasions, where judges are making political decisions yet are unaccountable
to the public, that it builds up and builds up and builds up to the point where some people engage in, engage in
violence. Certainly without any justification, but a concern that I have.”
Cornyn, who spoke in a nearly empty chamber, did not specify cases of violence against judges. Two fatal episodes
made headlines this year, although authorities said the motives appeared to be personal, not political. In Chicago, a
man fatally shot the husband and mother of a federal judge who had ruled against him in a medical malpractice suit.
And in Atlanta last month, a man broke away from a deputy and fatally shot four people, including the judge
presiding over his rape trial. http://www.washingtonpost.com/wp-dyn/articles/A26236-2005Apr4.html last accessed
May 26, 2010.
83
Texas law does not include any mechanism for insulating state judges and justices
from majoritarian or political pressures which would affect the impartiality of an average
expending significant personal resources, of both time and money, to defend against an
election challenger who can exploit popular sentiment against the jurist’s pro-capital
defendant rulings, and poses the threat of ultimate removal from office. Judges or
justices who are subject to these pressures cannot be impartial with due process standards
in a capital case.
Trends in judicial elections may increase the prominence that issues such as the
death penalty play in electing judges. Judicial campaigns in Texas have followed a
public’s fear of crime generally, and support for capital punishment specifically.” Brace
and Boyea, “State Public Opinion, the Death Penalty, and the Practice of Electing
Judges,” American Journal of Political Science, Vol. 52 No. 2, 361. The recent dramatic
rise in judicial campaign and judicial tenure issues regarding the death penalty in Texas17,
17
As TIME magazine noted “Presiding Judge Keller faced a trial in a San Antonio courtroom that could lead to her
removal and will certainly focus wide attention on Texas'’ enthusiasm for the death penalty. Keller finds herself at
this pass because of a four-word sentence she uttered on Sept. 25, 2007: "We close at 5." According to a newspaper
interview with Keller in October 2007 and pretrial testimony last year, she said those words to Ed Marty, general
counsel for the Texas Court of Criminal Appeals (CCA). As the court's logistics officer, Marty had called the judge
at the behest of lawyers for Michael Richard, 49, who had been on death row for two decades and whose execution
was scheduled for that evening. The lawyers were allegedly having computer trouble and problems getting last-
minute paperwork to the Austin court. Keller was reportedly at her home dealing with a repairman that afternoon
84
Also raises concern for judicial independence in Texas, especially regarding the “hot-
Justice Sandra O’Connor wrote a news article recently printed by the New York
Times. She stated “A better system is one that strikes a balance between lifetime
appointment and partisan election by providing for the open, public nomination
approve the judge or vote him out. This kind of merit selection system — now
http://www.nytimes.com/2010/05/23/opinion/23oconnor.html?ref
=todayspaper
The Texas Code of Judicial Conduct permits judges and judicial candidates to
announce their views on disputed legal and political issues so long as they do not commit
or appear to commit to a position on a case likely to come before the court. Because the
authorization provision of TEX. CODE JUD. CONDUCT Canon 5(2) implicated the liberty
interest of free expression, the canon must be strictly construed in favor of petitioner, and
"endorsing" was interpreted to mean more than support. This type of speech is protected
when she got the request — and made her reply. Richard's lawyers failed to meet the deadline, and at 8:23 p.m.
Richard was declared dead following a lethal injection.”
White, 536 U.S. 765, (2002) cited by In re Hecht, 213 S.W.3d 547 (Tex. 2006).
However, another canon appears to conflict with political agendas and raising money for
provides:
Under these rules judges and judicial candidates are permitted to announce their
views on capital punishment. A recent study found that such judicial campaign
restrictions, or lack thereof, are a factor in the likelihood of judges’ death penalty
Elections and strong public opinion exert a notable and significant direct
influence on judge decision making in these cases, but these effects do not
outweigh the impact of case characteristics and judge ideology. In close
cases, however, these differences could literally mean the difference
between life and death.
Id. at 370.
May 2009, ¶¶ 5-22, 24-27, 74)” This Chapter of the Handbook collects the observations
focuses on the systemic inadequacies within a State’s laws or judicial procedures that can
Judges and justices who are subject to popular election cannot be impartial in any
capital case within due process standards because of the threat of removal as a result of
Judicial independence
10. Alabama and Texas both have partisan elections for judges. Mandate
does not extend to an evaluation of how a system of multi-million dollar
campaigns for judicial office comports with judicial independence
requirements. But if – as research and practice show – the outcome of such
a system is to jeopardize the right of capital defendants to a fair trial and
appeal, there is clearly a need to consider changes. Studies reveal that in
states where judges are elected there is a direct correlation between the
level of public support for the death penalty and judges’ willingness to
impose or uphold death sentences. There is no such correlation in non-
elective states. In particular, research shows that, in order to attract votes or
19
http://www.extrajudicialexecutions.org/application/media/Handbook.pdf last accessed May 27, 2010.
87
campaign funds, judges are more likely to impose or refuse to reverse death
sentences when: elections are nearing; elections are tightly contested; pro-
capital punishment interest organizations are active within a district or
state; and judges have electoral experience.
Because the facts of this case – the killing of a woman – were particularly
disturbing, the case naturally received media attention in Bexar County and its
capital case, at trial or on direct appeal, would have been devastating to the chances of re-
election of any judicial officer who made such a ruling, and at minimum would have
required the judicial officer to expend significant resources in time and money to retain
Conducting a capital trial or direct appeal before a tribunal that does not meet
sentences be vacated. Appellant was denied due process under the Fifth and Fourteenth
88
POINT OF ERROR SEVEN
The Texas Death Penalty 10-12 Rule results in Arbitrariness in the
imposition of the Death Penalty
A. Introduction:
In Texas, about one in four death row inmates has been defended by lawyers who
have been reprimanded, placed on probation, suspended or banned from practicing law
by the State Bar. (Dallas Morning News, Sept. 10, 2000). The Capital Jury Project
studied more than 1,200 jurors from 14 states. Based on this research, Professors Bowers
and Foglia conclude that the constitutionally mandated requirements established to guide
juror discretion and to eliminate arbitrary sentencing are not working. The study
Mr. Leza challenges TEX. CODE CRIM. PROC. Art. 37.071 § 2(d)(2) and TEX. CODE
CRIM. PROC. Art. 37.071 § 2(f)(1) (O’Connor’s 2007), which create the “10-12 Rule” with
and TEX. CODE CRIM. PROC. Art. 37.071 § 2(a)(1) which forbids the defense to inform
jurors of the true state of the law. This issue was raised and denied by two pretrial
The “10-12 Rule” states that the jury may not answer the future dangerousness
issue “‘yes’ unless it agrees unanimously and it may not answer any issue “no” unless 10
or more jurors agree[.]” Art. 37.071 § 2(d)(2). With regard to the mitigating
circumstances issue the converse applies, the jury “may not answer the issue ‘no’ unless
it agrees unanimously and may not answer the issue ‘yes’ unless 10 or more jurors
90
agree[.]” Art. 37.071 § 2(f)(1)(emphasis added).20 If the jury cannot so answer either or
both of the issues, the court must sentence the defendant to a life term. Art. 37.071 §
2(g). However, the statute explicitly prevents the jury from knowing that. Art. 37.071 §
2(a)(1). Mitigating factors are not viewed as elements of the crime but rather as evidence
20
(b) On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:
(1) whether there is a probability that the defendant would commit criminal acts of violence that would
constitute a continuing threat to society; and
(2) in cases in which the jury charge at the guilt or innocence stage permitted the jury to find the defendant guilty
as a party under Sections 7.01 and 7.02, Penal Code, whether the defendant actually caused the death of the
deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or
anticipated that a human life would be taken.
(c) The state must prove each issue submitted under Subsection (b) of this article beyond a reasonable doubt, and
the jury shall return a special verdict of "yes" or "no" on each issue submitted under Subsection (b) of this Article.
(d) The court shall charge the jury that:
(1) in deliberating on the issues submitted under Subsection (b) of this article, it shall consider all evidence
admitted at the guilt or innocence stage and the punishment stage, including evidence of the defendant's background
or character or the circumstances of the offense that militates for or mitigates against the imposition of the death
penalty;
(2) it may not answer any issue submitted under Subsection (b) of this article "yes" unless it agrees unanimously
and it may not answer any issue "no" unless 10 or more jurors agree; and
(3) members of the jury need not agree on what particular evidence supports a negative answer to any issue
submitted under Subsection (b) of this article.
(e) (1) The court shall instruct the jury that if the jury returns an affirmative finding to each issue submitted under
Subsection (b), it shall answer the following issue:
Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's
character and background, and the personal moral culpability of the defendant, 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.
(2) The court shall:
(A) instruct the jury that if the jury 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 defendant to
imprisonment in the Texas Department of Criminal Justice for life without parole; and
(B) charge the jury that a defendant sentenced to confinement for life without parole under this article is
ineligible for release from the department on parole.
(f) The court shall charge the jury that in answering the issue submitted under Subsection (e) of this article, the
jury:
(1) shall answer the issue "yes" or "no";
(2) may not answer the issue "no" unless it agrees unanimously and may not answer the issue "yes" unless 10 or
more jurors agree;
(3) need not agree on what particular evidence supports an affirmative finding on the issue; and
(4) shall consider mitigating evidence to be evidence that a juror might regard as reducing the defendant's moral
blameworthiness.
91
relevant to a defendant's character or record or other circumstances of the offense that
might lead a sentencer to decline to impose the death sentence. See McCleskey v. Kemp,
481 U.S. 279, 304 (1987). Accordingly, a state may not require unanimity in finding
mitigating evidence." McKoy, 494 U.S. at 444. In fact, as Mills v. Maryland, 486 U.S.
367, (1988), and McKoy v. North Carolina, 494 U.S. 433 (U.S. 1990) hold, any
requirement that mitigating factors must be found unanimously is incoherent. See Mills,
486 U.S. at 386; McKoy, 494 U.S. at 442-43. A unanimity requirement on mitigating
factors means that, if aggravating factors have been found by the jury, one or more jurors
who -- in disagreement with other jurors -- find no mitigating factor, or find different
mitigating factors, or find that the aggravating (militating) factors do not outweigh
mitigating factors found by some (but not all) of the jurors, or find that no mitigating
factor outweighs aggravating factors, could still produce a death verdict or a hung jury,
g) If the jury returns an affirmative finding on each issue submitted under Subsection (b) and a negative finding on
an issue submitted under Subsection (e)(1), the court shall sentence the defendant to death. If the jury returns a
negative finding on any issue submitted under Subsection (b) or an affirmative finding on an issue submitted under
Subsection (e)(1) or is unable to answer any issue submitted under Subsection (b) or (e), the court shall sentence the
defendant to confinement in the Texas Department of Criminal Justice for life imprisonment without parole.
(h) The judgment of conviction and sentence of death shall be subject to automatic review by the Court of
Criminal Appeals.
(i) This article applies to the sentencing procedure in a capital case for an offense that is committed on or after
September 1, 1991. For the purposes of this section, an offense is committed on or after September 1, 1991, if any
element of that offense occurs on or after that date.
92
depending on how state law treats the disagreement. Yet, in Texas, the statute requires a
jury to have unanimity for a “no” answer, that mitigating factors exist which lessen Mr.
Leza’s culpability or moral blameworthiness, against giving Mr. Leza death, but does not
explain to the jury that in the “ten” votes necessary for a non-death sentence, just one
person can prevent a death sentence. Thus, in order for Eighth Amendment law on
confusion, a capital jury must understand that, in the words of the Federal Death Penalty
Act, “a finding with respect to a mitigating factor may be made by one or more members
of the jury.” It is the purpose of the confusion of the special punishment issues to
confuse the jurors, which in principle pushes the jury more towards entering a sentence of
death.
The Texas “10-12 rule” violates this principle because the jury is left with
“militating.” Thus the jury never knows that if they are not unanimous in reaching a yes
to the future dangerousness issue and no to the mitigating evidence issue, the result will
be a life sentence, without parole, for this offense. The jury never is to know that. It is a
well kept secret in Texas from juries. In addition, the jury is told there does not have to
militating towards death as a proper sentence for this individual. Further, the jury never
93
understands, unless they are a criminal law specialist, that if one individual cannot agree,
individualized decision. See Reese v. Dretke, 99 Fed. Appx. 503, 505 (5th Cir. Tex.
2004). The decision in Mills was not limited to cases in which the jury is required to
impose the death penalty if it finds that aggravating circumstances outweigh mitigating
circumstances or that no mitigating circumstances exist at all. Rather, the Court held that
it would be the "height of arbitrariness to allow or require the imposition of the death
penalty" where 1 juror was able to prevent the other 11 from giving effect to mitigating
evidence. Ibid. (emphasis added). McKoy, 494 U.S. at 439-440 (U.S. 1990). As the
‘“In contrast to the carefully defined standards that must narrow a sentencer's
discretion to impose the death sentence, the Constitution limits a State's ability to narrow
impose the death sentence.’ McCleskey v. Kemp, 481 U.S. 279, 304 (1987) (emphasis in
original). Indeed, it is precisely because the punishment should be directly related to the
personal culpability of the defendant that the jury must be allowed to consider and give
94
This Court has of course previously denied challenges to this legislation:21 Mr.
Leza nonetheless urges these issues as meritorious. It does not matter that the jury in his
case did not ask the court for clarification concerning the rule: “A trial judge's duty is to
give instructions sufficient to explain the law, an obligation that exists independently of
any question from the jurors or any other indication of perplexity on their part. Time after
time appellate courts have found jury instructions to be insufficiently clear without any
record that the jury manifested its confusion; one need look no further than Penry v.
Johnson, 532 U.S. 782 (2001), for a recent example.” Kelly v. South Carolina, 534 U.S.
C. The Texas capital sentencing statute’s “10-12 Rule” creates an impermissible risk of
arbitrariness in the sentencing process.
Mississippi, 472 U.S. 320, 323 (1985). The process must “guarantee as much as humanly
possible, that the sentence was not imposed out of whim . . . or mistake.” Eddings v.
Oklahoma, 455 U.S. 104, 188 (1982) (O’Connor, J. concurring). The court’s instruction
fostered confusion because it provided no answer to the jurors as to what happens if they
cannot reach the number of votes asked for by their instructions. Because they are told
that a life sentence ensues from one set of answers and a death sentence from the other, a
21
See, e.g,. Lawton v. State, 913 S.W.2d 542, 558 (Tex. Crim. App. 1995); Lagrone v. State, 942 S.W.2d 602, 620
(Tex. Crim. App. 1997). However, both of these cases are prior to South Carolina v. Kelly and the most recent
Penry opinion.
95
reasonable juror would conclude that the only way to obtain either of these punishments
is to answer the questions posed to the jury. See Francis v. Franklin, 471 U.S. 316
juror could have understood the charge as meaning”). Thus a juror can only speculate as
The action taken by a juror confused by their instructions can only be guessed at:
a holdout juror could opt to join a majority in favor of death, or could tilt the scales
toward a life verdict, but would not in fact be acting with full awareness of the perfectly
legal choice available to them, the choice not to vote or to remain a holdout.
sentencing term, a defendant may demand instruction on its meaning, and a death
sentence following the refusal of such a request should be vacated as having been
‘arbitrarily or discriminatorily’ imposed.” Furman v. Georgia, 408 U.S. 238, 249 (1972)
(Douglas, J., concurring) quoted in Simmons v. South Carolina, 512 U.S. 154 (1994)
(Souter, J. concurring).
D. The Texas capital sentencing statute’s “10-12 Rule” denies the right to
individualized sentencing.
The defendant is entitled to have every juror enabled to consider and weigh
evidence unilaterally, independent of whether any other juror believes that particular item
of evidence is mitigating. Mills v. Maryland, 486 U.S. 367, 374-75 (1988). While a juror
96
may decide, contrary to their eleven peers, that sufficient mitigation exists to warrant a
life sentence, or that there is insufficient evidence of future dangerousness, the “10-12”
scheme provides them with no clear outlet to express their finding. That situation was
exacerbated in Mr. Leza’s case by the failure of the trial court to give the requested
special issue regarding the parties issue. The instructions as given therefore doubly
deprived Mr. Leza of the possibility that one member of his jury, standing alone, could
have decided to spare his life. Where there is a risk of erroneous imposition of the death
penalty, whether through statute, jury charge or evidentiary ruling, the court must remand
E. The Texas capital sentencing statute’s “10-12 Rule” denied Mr. Leza the right to a
fair and impartial jury.
The “10-12 Rule” permits jurors with misconceptions about the law formed prior t
o trial and outside the courtroom to introduce such ideas into deliberations. A reasonable
and conscientious juror might be led to believe that just as death may not be imposed unle
ss the jury is unanimous with regard to both special issues, life may not be imposed unles
s at least ten jurors agree. This possibility raises Sixth Amendment concerns.
The right to an impartial jury is fundamental. See, e.g., Lockhart v. McCree, 476
U.S. 162 (1986). It is particularly crucial in capital cases, where “the decision whether a
man deserves to live or die must be made on scales that are not deliberately tipped toward
informed that neither of these outcomes will result if they cannot agree in the case of capi
tal sentencing under the Texas statute. The “10-12 Rule” compels the jury to guess what
would happen were they unable to answer the special issues, may lead them to believe tha
t an unacceptable third alternative other than life and death would follow, and then leaves
them to draw upon their own preconceptions in coming to a verdict. Capital jurors must
therefore have their misperceptions corrected, or be examined for bias during voir dire. S
ee Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981) (holding that voir dire “play
s a critical function in assuring the criminal defendant that his Sixth Amendment right to
lse information under Article 37.071 § 2 (a)(1) the defense should have been permitted to
protect the right to a fair and impartial jury by explaining that if the jury is unable to reac
h the number of votes required to give an answer to any one of the special issues, there is
no sanction and that the court will sentence the defendant to life imprisonment.
F. The Texas capital sentencing statute’s “10-12 Rule” prevented Mr. Leza from
receiving effective assistance of counsel.
determination of whether a defendant shall live or die [made] by a jury of people who ma
y never before have made a sentencing decision.” Gregg v. Georgia, 428 U.S. 153, 190
(1976), (Stewart, Powell, and Stevens, JJ.). The Fifth Circuit has declared that it was inef
98
fective assistance of counsel for the trial lawyer to not “inform the trial court of sentencin
g alternatives . . . .” Burley v. Cabana, 818 F.2d 414, 418 (5th Cir. 1987). If it was ineffe
ctive not to inform the judge of his sentencing alternatives, it is equally ineffective not to
inform a sentencing jury of its sentencing alternatives. Yet this is precisely what the “10-
12 Rule” forces trial counsel to do by preventing them from informing the jury of the true
state of the law. A reasonable defense attorney would inform each juror that not only is it
that juror’s right, but that juror’s duty, to individually weigh the evidence and make a det
G. The Texas capital sentencing statute’s “10-12 Rule” has a coercive effect upon the
jury.
“[T]he principle that jurors may not be coerced into surrendering views conscienti
ously held is so clear as to require no elaboration.” Jenkins v. United States, 380 U.S. 44
5, 446 (1965); United States v. United States Gypsum Co., 438 U.S. 422, 462 (1978)(app
lying Jenkins in holding that reversal appropriate “solely because of the risk that the fore
man believed the court was insisting on a dispositive verdict.”) Within the context of cap
ital sentencing, instructing the jury that they “will” answer “yes” or “no” to the special iss
ues presented to them acts as undue coercion. Within the context of the demand that each
issue must be answered, setting minimum votes for each answer has the effect of coercin
g holdouts for life or death to feel that the need to come to a verdict takes precedent over
roceedings and doubly so in this case where the court omitted the instruction allowing the
99
jurors to each speak in his or her own voice with regard to mitigation evidence. TEX. CODE
H. The Texas capital sentencing statute’s “10-12 Rule” denies the jury Equal Protection
under the law.
The court’s charge failed to inform jurors that if they did not unanimously agree
on their answers to the special issues, their inability to agree unanimously was entitled
under the law to the same dignity and respect as a “Yes” or “No” answer. Such a
material omission in the instructions to jurors denied them equal protection of the law as
well as their own right to due process. This is because such an omission subverts and
distorts their right to participate freely in the criminal justice system. The judge, the
prosecutors, the defense counsel all knew the effect of having a hold-out juror. Only the
jurors themselves were kept in the dark. The jurors themselves deserved fair and equal
treatment under the law. Since the jurors themselves are not in a position to assert their
rights in this regard, Mr. Leza may do so. See Powers v. Ohio, 499 U.S. 400 (1991);
The Texas capital sentencing statute’s “10-12 Rule” deprived the jury of an effective
vehicle to express their reasoned moral response to the mitigating evidence.
As discussed above, the “10-12 Rule” makes it impossible for an individual juror
to know the potential impact of their vote and may result in their feeling compelled to
vote against their conscience because of their lack of true understanding. They are
presented with a forced and artificial choice: It is “both logically and ethically
100
impossible” for such a juror to follow both their conscience and their instructions. Cf.
Penry v. Johnson, 532 U.S. 782, 799 (2001)(Penry II). The more “rules-oriented” the
juror, the more painful the dilemma that is forced upon them. As with the instructions in
Penry II, a juror intent on abiding by their oath and coming to a “true verdict . . .
according to the law,” TEX. CODE CRIM. PROC. ART. 35.22, might well agonize as to what to
give a false answer to the questions presented to them. The jury must be provided with
an effective “vehicle for expressing its ‘reasoned moral response’ to the evidence” it has
heard. Penry v. Lynaugh, 492 U.S. 302, 328 (1989)(Penry I)(quoting Woodson, 428 U.S.
at 304). Here the jurors were provided with a vehicle so unreliable – so “ineffective and
illogical” - that they could not predict the direction in which it would move. Penry II,
As in Simmons v. South Carolina, 512 U.S. 154, 169 (1994) the State here
mechanism which might have resulted in a sentence of life and which due process plainly
required the defense should have been permitted to reveal, and on which the court should
have given instructions. This was a case where: “Any realistic assessment of the manner
in which the [instructions] operated would therefore lead to the … conclusion … ‘[A]
reasonable juror could well have believed that there was no vehicle for expressing the
view that [Mr. Leza] did not deserve to be sentenced to death based upon his mitigating
101
evidence.’” Penry II, 532 U.S. at 804, quoting Penry I, 492 U.S. at 326.
The failure by the court to explain the “10-12 Rule” resulted in error in the jury
charge.22 These errors are of constitutional magnitude in that they deprived Mr. Leza of
rights guaranteed him by the United States Constitution. Consequently the Court must
reverse unless it determines beyond a reasonable doubt that the errors did not contribute
to Mr. Leza’s sentence. TEX. R. APP. P. 44.2(a). Given that at least one juror could have
influenced a life sentence, and that the instructions given were calculated to confuse and
coerce such a juror, the Court cannot so conclude, and should reverse and remand for a
A life can hang on the meaning given by Texas jurors to the word
sentencing statute. TEX. CODE CRIM. PROC. Art. 37.071. The trial court
here instructed the jury: “[Y]ou shall consider all evidence submitted at
22
Counsel tried to have the trial court permit voir dire of individual jurors on mitigating evidence, but the trial court
would only commit to allowing voir dire depending on “how the question is framed.” (3 RR 18).
102
evidence of the defendant’s background or character or the
http://dictionary.reference.com/wordoftheday/archive/2004/05/04.html
(last visited June 10, 2010)(“To have force or influence; bring about an
effect or change”).
in a jury charge if they are not statutorily defined, but terms which
103
have a technical legal meaning may need to be defined. “This is
particularly true when there is a risk that the jurors may arbitrarily
apply their own personal definitions of the term or where a definition of the
125 S.W.3d 450, 454 (Tex. Crim. App. 2003). Given the acknowledged
understood by the average juror. “If one were to ask the average juror
what [militates] means, the smart money says he will not get even
The jurors here were left without guidance as to how to apply this
critical word and consequently may have given weight to factors which
should have been excluded from their thinking, and arbitrarily applied
State may not offer evidence of race and ethnicity to suggest that
those factors make it more likely that the defendant will engage in
23
See, e.g., Amiram Elwork et al., Juridic Decisions: In Ignorance of the Law or in Light of It?, 1 LAW & HUM.
BEHAV. 163, 165 (1977) (explaining that the language of lawyers and judges may be foreign to a lay person
serving as jurors); Geoffrey P. Kramer & Dorean M. Koenig, Do Jurors Understand Criminal Jury Instructions?
Analyzing the Results of the Michigan Juror Comprehension Project, 23 U. MICH. J.L. REFORM 401, 431
(1990); Walter W. Steele, Jr. & Elizabeth G. Thornberg, Jury Instructions: A Persistent Failure to Communicate,
67 N.C. L. Rev. 77, 109 (1988) (indicating that empirical research reveals that “juror comprehension of their
instructions is pitifully low”).
104
future criminal conduct. TEX. CODE CRIM. PROC. Art. 37.071 § 2(2).24 An
admonition to the jury to the same effect would have served to protect
Mr. Leza, an Hispanic male, from a juror giving his race inappropriate
word “militates,” see Martinez v. State, 924 S.W.2d 693, 699 (Tex.
Crim. App. 1996). It is nonetheless the case that the legislative policy
interests: Age, sex, national origin, religion, political views and sexual
specific relevance. See, e.g., Barclay v. Florida, 463 U.S. 939, 949
Instructions should therefore have been given to insure that the other
State, 946 S.W.2d 844 , (Tex. Crim. App. 1997) (gender discrimination
violates Equal Protection clause); Marx v. State, 141 Tex. Crim. 628,
determine beyond a reasonable doubt that the error did not contribute
106
POINT OF ERROR NINE
The trial court violated the Eighth and Fourteenth Amendments when it
failed to define the phrase “criminal acts of violence” for the jury during the
sentencing phase.
A definition of the phrase “criminal acts of violence” as used in the first special
issue of the jury’s sentencing phase instruction concerning future dangerousness, was not
given to the jury. TEX. CODE CRIM. PROC. Art. 37.071 § 2(b)(1).
It is acknowledged that this Court has stated that a definition of this phrase is not
required. See e.g. Ladd v. State, 3 S.W.3d 547, 572 Tex. Crim. App. 1999). “The trial
court need not define such terms, because the jury is presumed to understand them
without instruction.” Id. at 572-73; King v. State, 553 S.W.2d 105, 107 (Tex. Crim. App.
1977). However, the presumption that the jury will understand the phrase “criminal acts
of violence” was entirely undermined in this case, where the jury explicitly sought
clarification.
The Court failed to provide a definition limiting “criminal acts of violence” to the most
serious such offenses
“Criminal acts of violence” could be interpreted as falling at every point along the
scale from deeds of grotesque savagery to the slightest assault. So long as a defendant
caused some bodily injury, or even simply physical pain, he is guilty of assault. TEX. PEN.
principled distinction between those who deserve death and those who do not, see Lewis
v. Jeffers, 497 U.S. 764, 776 (1990), an instruction that would exclude a person who
107
might commit a minor assaultive offense, but is very unlikely to commit a grave act of
The Court failed to provide a definition limiting “criminal acts of violence” to only those
property offenses that occur in conjunction with personal violence)
damage property, but not human life or welfare. For example, criminal mischief is a
violent crime because it requires the intent to damage or destroy property. See TEX. PEN.
CODE § 28.03; Ware v. State, 749 S.W.2d 852 (Tex. Crim. App. 1988). Thus a capital
defendant is eligible for death if the jury thinks he might at some point in the future
commit an act such as intentionally running over fences with a tractor and letting some
cows escape. See Drager v. State, 548 S.W.2d 890 (Tex. Crim. App. 1977). This clearly
would be an absurd result, but in the absence of a narrowing instruction, is one which
might occur. As stated above, a principled distinction between the death-worthy and
those for whom a life is appropriate must be drawn, Lewis, 497 U.S. at 776. In the
absence of the jury instruction they requested to enable such a distinction, the jurors in
this case were left without guidance to prevent the substantial risk of arbitrariness and
caprice in their decision-making. Gregg v. Georgia, 428 U.S. 153, 188 (1976).
acts of violence” the trial court violated the Eighth and Fourteenth Amendments to the
error, the appellate court must reverse unless it determines beyond a reasonable doubt
108
that the error did not contribute to the conviction. The sentences in this case must
During the State’s case on punishment, the State called as a witness James Porter,
a Detention Officer at the Bexar County Adult Detention Center. (18 RR 79). Porter
testified that during a period in which inmates were allowed outside of their cells, he
entered Mr. Leza’s cell because Mr. Leza had left his cell door open, despite having been
instructed to close it. As Porter stood in Mr. Leza’s cell, Mr. Leza came up behind him.
According to Porter’s testimony, Mr. Leza appeared calm, but threatened him. Porter’s
testimony was:
And he said, ‘What were you doing in my cell?’ I said, ‘You should have
shut the door like I told you.’ And he looked at me and said to me, just as
plain as I’m talking to you, just as calm as he could be, ‘If you go in my
cell again, I’ll fucking kill you.’ And I said, ‘Excuse me, sir?’ He said,
‘You heard me. I’ll throw you off this tier. I’ll fucking kill you.’ I said,
‘Fair enough.’
(18 RR 82)
Porter told jurors he then turned around, and immediately went down the steps and
wrote a disciplinary report on Mr. Leza’s “terroristic threats” and sent the report to his
Sergeants office. The State asked Porter to explain what a “tier” is, and Porter explained:
109
Ma’am, there’s two levels in each block of the jail. There’s a bank of ten
cells on the bottom and then there’s sets of steps that goes upstairs. That is
considered the upper tier. So it’s about, from the top of the railing to the
concrete floor beneath it, probably about, I’m just estimating, about a 15-
foot drop.”
(18 RR 82).
The defense objected, and the trial court excused the jury. The defense objected to
Porter’s testimony, because the testimony did not comport with the notice provided by
the State pursuant to Mr. Leza’s request for notice of extraneous bad acts. Defense
counsel explained to the trial court that the notice given the defense was that when the
State was to ask Mr. Porter what Mr. Leza said to him, Porter would testify that Mr. Leza
said, “I’m here on a capital murder and I have nothing to lose. If you go in my cell again
or mess with me in any way, I’m going to make you regret it. I’m going to do something
bad to you. You can write me up. I don’t give a fuck, but it isn’t a threat. It’s a promise.
(18 RR 84-85). Upon questioning outside the presence of the jury, Porter maintained that
Mr. Leza said, “I’m going to fucking kill you,” despite the fact that the phrase is
The trial court sustained Mr. Leza’s objection to Porter’s testimony, and when the
jury returned, the trial court admonished the jury that it was to disregard the entirety of
Porter’s testimony, as follows: “Ladies and gentlemen, the last witness, Sergeant James
Porter. I’m ordering you to disregard anything he may have said during his testimony.
You’re not to take it into consideration for any purpose at this time. Okay?” (18 RR 89).
Defense counsel then requested, but was denied, a mistrial. (18 RR 89).
110
The trial court recognized that Porter’s testimony, which did not comport with the
notice provided the defense, was inadmissible and correctly instructed the jury to
disregard the entirety of it. The trial court abused its discretion in failing to grant Mr.
Leza’s motion for mistrial, because the harm from Porter’s improper testimony could not
The defendant was entitled to adequate notice regarding extraneous bad acts the State
planned to introduce in punishment, and Porter’s testimony was properly excluded
because it went outside the scope of the State’s notice.
Mr. Leza made a timely request for the State to provide notice of all extraneous
bad acts the State intended to introduce at the punishment phase of trial. Pursuant to TEX.
CODE CRIM. PROC. 37.071 Sec. 2(a)(1) at punishment, “the introduction of evidence of
It is undisputed in the record that the defense made timely request for notice of
extraneous bad acts and was therefore entitled to such notice. The notice provided by the
111
State did not include a threat to kill Porter or the specific threat as to how Mr. Leza would
carry out his threat. Thus, the trial court was correct in instructing the jury to disregard
Porter’s testimony, but the trial court should have declared a mistrial because Porter’s
testimony was so inflammatory that no instruction could have ameliorated the harm
resulting from the jury having heard it. Porter’s testimony bore directly upon the question
of the likelihood of future dangerousness on Mr. Leza’s part, even within the prison
community, no instruction from the trial court could have served to have adequately
removed from the jury’s minds the impact of Porter’ s testimony. Indeed, if anything, the
instruction to jurors to disregard in its entirety Porter’s testimony most likely served to
In reviewing a trial court's ruling on a motion for mistrial, an appellate court must
uphold the trial court's ruling if it was within the zone of reasonable disagreement. Wead
v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). “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).. The standard of review is abuse of discretion.
“[W]hether a mistrial should have been granted involves most, if not all, of the
same considerations that attend a harm analysis.” Hawkins, 135 S.W. 3d at 77. In Mosley
v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998), this Court set forth a test for
determining whether mistrial was required. Mosely involved the question of whether
112
improper jury argument warranted a mistrial. Although the issue presently before the
Court involves improperly admitted testimony, the Mosely factors are appropriate in
considering the trial court’s failure to grant a mistrial here. The Mosley factors, as applied
1) the severity of the improper testimony (the magnitude of the prejudicial effect );
2) measures adopted to cure the misconduct (the efficacy of any cautionary
instruction by the judge); and
3) the certainty of conviction absent the misconduct (the strength of the evidence
supporting the conviction). Where applied to error at punishment, this Court has
analyzed the third factor with regard to certainty of the punishment assessed. See
Martinez v. State, 17 S.W.3d 677, 693 (Tex. Crim. App. 2000).
Although rare, mistrial is appropriate for highly prejudicial and incurable errors.
Mistrial may be used to end trial proceedings when faced with error so prejudicial that
“expenditure of further time and expense would be wasteful and futile.” Simpson v. State,
119 S.W.3d 262, 272 (Tex. Crim. App. 2003). The trial court is required to grant a
motion for a mistrial only when the improper question is “clearly prejudicial to the
When a trial court strikes evidence and instructs the jury to disregard it, in the
absence of evidence indicating that the members of the jury failed to do so, the jury is
presumed to have followed the trial court’s instruction. See Ladd v. State, 3 S.W.3d 547,
567 (Tex. Crim. App. 1999); State v. Boyd, 202 S.W.3d 393, 402 (Tex. App.--Dallas
2006, pet. ref’d). When assessing the curative effect of the court’s instruction to
113
disregard, the correct inquiry is whether the argument was extreme or manifestly
improper, injected new and harmful facts into the case, or violated a mandatory statutory
provision and was thus so inflammatory that an instruction to disregard could not cure its
prejudicial effect. Faulkner v. State, 940 S.W.2d 308, 312 (Tex. App.—Fort Worth 1997,
pet. ref’d.). Only offensive or flagrant error warrants reversal when there has been an
instruction to disregard. Wesbrook v. State, 29 S.W.3d 103,116 (Tex. Crim. App. 2000).
If the instruction cured any harm caused by the improper argument, a reviewing court
should find that the trial court did not err. Dinkins v. State, 894 S.W.2d 330, 357 (Tex.
The trial court’s instruction for jurors to disregard the testimony of Porter could
not have adequately ameliorated the harm that resulted from Porter’s improper testimony.
In a fashion, the deputy’s testimony was “manifestly improper” and it “injected new and
harmful facts into the case.” Porter testified, with great specificity, that Mr. Leza
threatened to kill him by throwing him off the tier, for going into Mr. Leza’s jail cell.
Importantly and surely to impress upon jurors in determining the likelihood Mr. Leza
presented for future dangerousness, Porter testified that Mr. Leza predicated his threat
with the statement that he had nothing to lose because he was in jail on a capital murder
charge. Clearly, the implication of Porter’s testimony, and purpose of the State calling
Porter as a witness in the first place, was to show that Mr. Leza presented a substantial
114
Hearing Porter’s testimony, jurors could not but help have been indelibly
impressed that Mr. Leza presented a present, continuing, and future danger. Jurors, who
had just found Mr. Leza guilty of capital murder, could not have helped but consider that
Mr. Leza, now facing a minimum of Life Without Parole, had even less to lose than when
No instruction from the trial court could have served to have adequately removed
from the jury’s minds the impact of Porter’s testimony. Indeed, if anything, the
instruction to jurors to disregard in its entirety Porter’s testimony most likely served to
amplify the impact of the improper testimony. As this Court presciently noted in Walker
v. State, 610 S.W.2d 481, n.6 (Tex. Crim. App. 1980)(reversed on other grounds): “The
State’s contention that the instruction ‘cured the error if any,’ reminds us that it is better
to follow the rules than to try to undo what has been done. Otherwise stated, one ‘cannot
unring a bell;’ after the thrust of the saber it is difficult to say forget the wound;” and
finally, ‘if you throw a skunk into the jury box, you can’t instruct the jury not to smell it.’
Walker, citing Dunn v. United States, 307 F.2d 883, 887 (5th Cir. 1962). The jury, having
heard from Porter that Mr. Leza threatened to “fucking kill” Porter by throwing him off a
tier in the jail, and that Mr. Leza did not have anything to lose because he was
incarcerated on a capital murder charge, could not un-hear it, no matter what the trial
court instructed. Because the issue about which Porter’s improper testimony bore directly
upon the question of Mr. Leza’s potential for future dangerousness, the trial court abused
115
its discretion in failing to grant a mistrial. The only proper remedy is to reverse Mr.
Leza’s sentence, and remand the case for a new trial on punishment.
During the defense’s case on punishment, the defense called as a witness Amanda
Leza, Mr. Leza’s sister. After the State objected to her testimony, the trial court
conducted a hearing outside of the presence of the jury. Amanda testified that as she was
driving in a car with her mother, Mr. Leza, and Treveno, Treveno admitted that she had
killed the complainant, and that she smiled when she said it, while Mr. Leza was
remorseful about what had happened. (18 RR 105). The defense then asked Amanda,
“Why did you turn Dolores and your brother in,” to which Amanda answered, “Because
she said she did it and the cops were looking for her.” (18 RR 106).
inadmissible hearsay, and that the “Defense is not entitled to admission of party
he’s not their party opponent.” The State urged that the content of any conversation from
The defense correctly asserted that Dolores’ statement was a statement against
penal interest, which the trial court answered, “It may be a statement against penal
116
interest, but where does it fit?” The defense answered that it was an exception to hearsay,
and that in the proffered statement, Dolores took full responsibility. (18 RR 108).
The trial court wanted to know what Dolores said exactly, so defense counsel
asked Amanda, “What did Dolores Treveno state to you exactly?” Amanda answered,
“That she’s the one that tied her up and slit her throat.” (18 RR 108). The trial court still
was not satisfied, asking, “No. What did she say exactly? Once again, she’s paraphrasing
that someone said—you’re making a conclusion of what she says. It’s the same thing we
kind of ran into with that other officer when he testified to what they said.” (18 RR 108-
109).
Defense counsel then again asked Amanda, “What did she say exactly?” Amanda
answered, “That she slit her throat and she tied her up.” Defense counsel asked, “Did she
at any time say that she did it all,” which did not elicit an audible response. (18 RR 109).
Asked once more what Dolores Treveno said to her, Amanda answered, “She slit her
The State argued that the proffered statement was not admissible as a statement
against penal interest because the rule states, “In criminal cases, a statement tending to
clearly indicate the trustworthiness of the statement,” and that the “evidence doesn’t
corroborate it. In the trial, the Defendant testified, ‘I cut her throat first.’ It’s the Court’s
117
The trial court answered, “I think from that statement, you can contend that they
did it together. It doesn’t mean she did it alone.” (18 RR 111). After further questioning
by the State, Amanda contended that Dolores told her she had acted alone, and, after the
trial court again instructed her to repeat exactly what was said, “not an interpretation of
anything,” Amanda stated, “A quote? That she slit her throat and tied her up.” (18 RR
112). After further questioning by the defense, Amanda again answered, “That she slit
her throat, tied her up, and she did it.” (19 RR 113). The trial court ruled, “She’s not
going to testify to that. She can’t follow directions,” and Amanda’s testimony pertaining
to Treveno’s admission to her was excluded from the jury’s consideration. (19 RR 113).
Whether rooted directly in the Due Process Clause of the Fourteenth Amendment
complete defense.’” Holmes v. South Carolina, 547 U.S. 319, 324 (2006), citing Crane v.
Kentucky, 476 U.S. 683, 690 (1986)(quoting California v. Trombetta, 467 U.S. 478, 485
(1984). This right is abridged by evidence rules that “infring[e] upon a weighty interest of
the accused” and are “‘arbitrary’ or ‘disporportionate to the purposes they are designed
to serve.’” Holmes, 547 U.S. at 325, citing United States v. Scheffer, 523 U.S. 303, 308
(1998)).
118
Holmes involved a case in which the accused sought to introduce evidence of third
party guilt that would have tended to exculpate him. South Carolina law prohibited the
admission of such evidence if it “merely casts a bare suspicion upon another,” or raises a
conjectural inference as to the commission of the crime by another. The South Carolina
Supreme Court held that “where there is strong evidence of an appellant’s guilt,
especially where there is strong forensic evidence, the proffered evidence about a third
party’s alleged guilt does not raise a reasonable inference as to Mr. Leza’s own
In rejecting the state court’s interpretation of law, the Supreme Court pointed out
that state hearsay rules that “did not include an exception for statements against penal
interest” was especially troublesome, because it did not permit the defendant to introduce
the self-incriminating statements of another regarding the offense for which the defendant
was on trial. The exclusion of evidence of the out-of-court statements of another claiming
responsibility, coupled with an inability to cross examine that individual, denies a trial in
accordance with traditional and fundamental standards of due process. Holmes, 547 U.S.
325-326.
Here, the defense sought to introduce during punishment Amanda’s testimony that
Treveno told her she acted alone in slitting the complainant’s throat and tying up the
119
Rule 803(24):Statements Against Penal Interest:
Statement Against Interest. --A statement which was at the time of its
making so far contrary to the declarant's pecuniary or proprietary interest,
or so far tended to subject the declarant to civil or criminal liability, or to
render invalid a claim by the declarant against another, or to make the
declarant an object of hatred, ridicule, or disgrace, that a reasonable person
in declarant's position would not have made the statement unless believing
it to be true. In criminal cases, a statement tending to expose the declarant
to criminal liability is not admissible unless corroborating circumstances
clearly indicate the trustworthiness of the statement.
TEX. RULE EVID. 803(24).
The proffered statement in which Treveno took responsibility for cutting the
complainant’s throat was clearly a statement against Treveno’s penal interest, and was
The State’s argument that the proffered statement did not fit the “trustworthiness”
requirement of the rule misses the point; the corroborating circumstances which would
indicate the trustworthiness of the statement would be the fact that the complainant was,
indeed, found to have been tied up with her throat slit. The fact Mr. Leza admitted in his
statement to police that he had slit the complainant’s throat does not make Treveno’s
the jurors should have been given the opportunity to know that Treveno had made such a
statement, prior to their arrest, in considering its answer to Special No. 2.25
25
With regard to special issue No. 2, jurors were instructed:
You are instructed that the State must prove Issue No. 2 beyond a reasonable doubt.
In deliberating upon Issue No. 2, you shall consider all evidence admitted at the guilt or innocence stage
and the punishment stage, including evidence of the defendant’s background or character or the
circumstances of the offense that militates for or mitigates against the imposition of the death penalty.
The jury may not answer Issue No. 2 “Yes” unless there is unanimous agreement of the individual jurors
upon that answer.
120
“Evidence tending to show the commission by another person of the crime
reasonable doubt of, his own guilt; but frequently matters offered in evidence for this
purpose are so remote and lack such connection with the crime that they are excluded”;
40A AM. JUR. 2d, Homicide §286, pp 136-138 (1999). “[T]he accused may introduce any
legal evidence tending to prove that another person may have committed the crime with
which the defendant is charged…[Such evidence] may be excluded where it does not
sufficiently connect the other person to the crime, as, for example, where the evidence is
speculative or remote, or does not tend to prove or disprove a material fact in issue at the
defendant’s trial.” Holmes, 547 U.S. at 327. Such is clearly not the situation in the present
case, where Treveno’s admission clearly connects her to the crime. Had the jury believed
given while under the effects of heroin and only after two hours of police interrogation
encouraging him to take responsibility for the killing and “be a man,” then the jurors
Harm Analysis
The jury may not answer Issue No. 2 “No” unless ten (10) or more jurors agree upon that answer.
In determining the answer to Issue No. 2, you are instructed that the members of the jury need not agree on
what particular evidence supports a negative answer to the issue.
Issue No. 2 is:
Do you find from the evidence beyond a reasonable doubt that the defendant, Armando Leza, actually
caused the death of Caryl Jean Allen or did not actually cause the death of Caryl Jean Allen but intended to
kill Caryl Jean Allen or anticipated that a human life would be taken?
(3 CR 819).
121
The meaningful opportunity to present a complete defense is a right of
constitutional dimension; thus, harm analysis should proceed under the standard for
constitutional error: “If the appellate record in a criminal case reveals constitutional error
that is subject to harmless error review, the court of appeals must reverse a judgment of
conviction or punishment unless the court determines beyond a reasonable doubt that the
error did not contribute to the conviction or punishment. TEX. R. APP. P. 44.2(a). Given
the nature of the evidence excluded from the jury’s consideration, there is no way the
State can establish that this error did not contribute to the jury’s determination of Special
Issue No. 2.
Had jurors heard Amanda’s testimony that Treveno admitted to having slit the
complainant’s throat and tied her up, they could have taken that information and
reconsidered the statements Mr. Leza made leading up to his videotaped admission in
which he accepted the blame. Testimony from Officer Porter indicated that Mr. Leza
stated to him, during a smoke break, that he knew it was his sister who turned him in,
because she was the only one who knew what had happened, and that his sister turned
him in because she does not like his wife. Why, if Mr. Leza were taking full personal
responsibility for having slit the complainant’s throat and tied her up, would he have
mentioned his sister’s feelings toward his wife? If Mr. Leza had acted singularly, and
Treveno never admitted to Amanda that she was the one responsible for the
122
complainant’s death, would Amanda’s feelings toward Treveno even be a consideration
The jury charge at guilt/innocence left open the possibility for jurors to convict
Mr. Leza based on his participation as a party or a conspirator. Thus, the jury charge as
presented to the jury, and concomitantly the general verdict returned against Mr. Leza,
leaves open the possibility that the jury convicted him at guilt/innocence not because the
jury believed his statement, given after over two hours of questioning, while Mr. Leza
was high on heroin, and very vague as to specifics of the crime, but because the jury
believed that Treveno had, in fact, committed the actual killing, with Mr. Leza there to
promote or assist her. In other words, based upon the charge given to the jurors, the
possibility exists that the jury convicted Mr. Leza not because it believed his statement
that he slit the complainant’s throat, but because the jury believed he acted as a party to
The proffered testimony from Amanda included her explanation as to why she
turned in Mr. Leza--that she did so because she believed Treveno had killed the
complainant, and that the police were looking for Treveno. This comports with, and gives
new context to, Mr. Leza’s repeated assertions heard on the videotaped statement in
which he claims his family turned him in because they did not like his wife.
The law is clear that one may be convicted of capital murder merely upon a
showing that one acted as a party to the offense.. The law is equally clear, though, that in
123
order to sustain a sentence of death, the State must show, under Special Issue No. 2, that
the defendant actually caused the death, intended that a life be taken, or that he should
have anticipated such. Evidence tending to suggest that Treveno admitted to performing
the actual killing of the complainant would not necessarily have prevented the jury from
convicting Mr. Leza of capital murder, since the jury charge included the law of parties
and the law of conspiracy. However, where the State seeks to exact the ultimate
Mr. Leza either committed the act resulting in death, intended a life be taken, or should
have anticipated it. The jury was entitled to know that there was evidence suggesting this
may have not been the case, despite Mr. Leza’s purported “confession.”
complete defense.’” Holmes, 47 U.S. at 324. When the jury was not allowed to know that
Mr. Leza’s co-defendant had taken full responsibility for the killing, smiling as she
repeated what she had done, that constitutional right was violated. The jury may or may
not have believed Amanda’s testimony pertaining to Treveno’s confession—but the jury
was wrongfully precluded from making that determination when the trial court excluded
the testimony. This Court cannot conclude, beyond a reasonable doubt, that the trial
penal interest, did not contribute to the jury’s determination of the special issue and Mr.
124
Leza’s ultimate sentence of death. TEX. R. APP. P. 44.2 (a). For that reason, Mr. Leza’s
held that the Eighth Amendment did not per se bar evidence about the
125
Process clause acts as a safety net to protect a defendant if the effect
fundamentally unfair. Payne, 501 U.S. at 825. In due course this Court
announced in Mosley v. State, 983 S.W.2d 249, 262 (Tex. Crim. App.
the mourning family member and alienate the jury, or show proper
decorum and risk preservation of error. Daryl Allen was the complainant’s
twin brother, and testified that the two of them, born 14 minutes apart, were very close
throughout their lives. (18 RR 93). Allen testified about the complainant’s family, telling
jurors she had 4 children and 11 grandchildren, and that she was involved in helping raise
The majority of Allen’s testimony centered upon the impact his twin sister’s death
had on his life. He stated that, of he and his two siblings, the complainant’s death
126
probably had the “most devastating” impact upon him. (18 RR 96). He explained to
jurors that he and his siblings, including the complainant, were raised to be very
generous; after regaling jurors with several anecdotal accounts of examples of his own
generosity, Allen told jurors that he is no longer like that, after his sister was killed. He
does not consider helping other people when he sees them in need; Allen told jurors he
Allen further told jurors of the impact the complainant’s death had on his
surviving sister, Gaynell, who was the first to find the complainant after she had died.
Allen explained that the loss of the complainant was particularly difficult because
Gaynell, being the only family member living in San Antonio, has had to by herself deal
with the aftermath of the complainant’s murder. (18 RR 100). Allen further explained
that the loss had been particularly difficult for Gaynell because she moved away from
home, settling in San Antonio, 35 years ago, and had not had extensive contact with the
complainant since the complainant was 9 years old. After the complainant left their
hometown of New Orleans in the wake of Hurricane Katrina, she came to live with
The complainant was survived by Daryl, as well as Gaynel and another brother.
The State asked Allen how the complainant’s death impacted his brother and older sister,
and he answered that they were impacted as one might expect under the circumstances.
127
He then added, “Actually, I was the one that cried out and said, “They didn’t have to do
this to her.” It didn’t have to be done. She wasn’t a big woman. She was a small woman.
She had had a stroke. She was sickly. It didn’t have to be done. I was the one that cried
out, ‘Why did you hurt my little sister?” Allen then, apparently agitated, directly
addressed Mr. Leza from the witness stand: “That was my sister, you fool. You coward.
That’s what you are. You’re a damn coward.” (18 RR 101). Defense counsel began to
object to Allen’s outburst, but only got out, “Your Honor-,” when Allen immediately
said, “Excuse me.” The trial court replied, “It’s all right, Mr. Allen.” The State then
passed the witness. Defense counsel did not cross examine Allen, saying, “You have my
sympathy, sir. And I have no questions for you. Thank you.” And with that, the State
could reasonably have seen the impact of the victim’s death on others.
Jackson v. State, 33 S.W.3d 828, 833-834 (Tex. Crim. App. 2000); Cf.
128
to future dangerousness). However, Payne held specifically that the
refers to the legitimate role that such evidence can play when the jury
and the suffering of their loved ones did not make Mr. Leza’s
propensity to commit future violent acts more or less likely. See TEX. R.
EVID. 401.27
encouraged the very kind of process that is prohibited: one that allows
26
In this instance, anticipated rebuttal since the State’s evidence was presented during its case-in-chief on
punishment, before any defense witnesses at all were called.
27
TEX. R. EVID. 401: “Relevant evidence” means evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than it would be without the
evidence.
129
a decision to turn upon a factor that is entirely arbitrary and random.
Furman v. Georgia, 408 U.S. 238, 255 (1972) (the “high service”
victim impact evidence did not relieve the state of its burden to prove
limitations upon the “amount, kind and source of victim impact and
logical nexus between the inherently emotive victim evidence and the
probability that Mr. Leza would commit future criminal acts of violence,
an instruction would have reminded the jury that what the State had to
prove concerned Mr. Leza’s own future conduct and not the past and
The trial court should have given a definition of the word “probability” as used in
the first special issue of the jury’s sentencing phase instruction concerning future
probability that the defendant would commit criminal acts of violence that would
e.g., Robison v. State, 888 S.W.2d 473 (Tex. Crim. App. 1994).
However, the word may well not be understood by jurors to mean even
“more likely than not”: there may be little probability that some
particular event will occur, but there will still be “a probability” of it.
“Probability” can mean “more likely than not,”or “95% likely” but it
131
can also mean little more than a fortuitous occurrence: See the Merriam-
2010), , which gives the definition “the chance that a given event will occur.” Thus, a
juror would have been compelled to answer the first special issue “yes”
and caprice. Gregg v. Georgia, 428 U.S. 153, 188 (1976), cautioned
and provided with standards to guide its use. Id. at 195. That guidance
specific and detailed guidance, that make the process for imposing a
420, 428 (1980). See also Maynard v. Cartwright, 486 U.S. 356 (1988)
v. Stephens, 462 U.S. 862, 877 (1983); Lewis v. Jeffers, 497 U.S. 764,
132
776 (1990); Richmond v. Lewis, 506 U.S. 40, 46 (1992); Clemons v.
Mississippi, 494 U.S. 738, 738 (1990) (all to same effect). The word
Mr. Leza.
possibility” that even the most upright member of society will never,
truthful answer to the Texas special issue would have to be “yes” with
the word “probability” deprives the whole special issue of its intended
purpose: to separate the merely bad from the worst of the worst.
term effectively deprived Mr. Leza of his rights under the Eighth and
133
Fourteenth Amendments to the United States Constitution. Pursuant
that the error did not contribute to the conviction. Since the jury here
Attorney’s office on March 2, 2010, and on Joe Luna, another death penalty case,
currently in the post-conviction writ stage, that a Deputy Sheriff Flores, was under
investigation for Perjury and Official misconduct. The letters on these cases are
134
135
136
Counsel reviewed these two cases, quickly, and two other cases in which letters were
received. As evidenced in the attached emails, counsel could not tell from the appellate
record, what role if any this deputy played in the instant case. Counsel requested further
information from Mr. Ishimoto, which was declined. Counsel also contacted the writ
attorneys on these two death penalty cases who were not informed of the deputy’s role in
the two death penalty cases, and had not received letters on these cases. Counsel has
been continuing her own investigation and also assisting and working with the local
defense bar who received over 200 letters regarding this deputy on cases at various stages
Undersigned counsel contacted Mr. Enrico Valdez, Chief of the Appellate Section
with the District Attorneys office, who graciously offered to review Mr. Leza’s case file
to determine if Deputy Flores was or was not involved in this case. Mr. Valdez, to whom
great credit is due, assures counsel that this letter was sent in error and will confirm in
Until counsel is notified in writing of the facts surrounding this deputy and his
involvement or lack thereof in this matter, counsel must continue to work with writ
counsel, Mr. Jay Brandon, to investigate and to file for an abatement and hearing, if
necessary. Counsel is comforted by the integrity of Mr. Valdez and his well known
character for truth and veracity and expects that Mr. Valdez with clear this matter with an
137
acknowledgement that the deputy under investigation was not involved in the instant
case.
As a result of this significant issue in this death penalty case, and the resulting
time consumed as a result of the letter received by counsel, further time was necessary to
complete the review of the record and continue writing the issues on appeal for Mr. Leza.
Counsel requested and received a 60 day extension in order that she may fufill her ethical
to her clients, complete the investigation regarding the deputy’s involvement in this case,
and to continue her research and writing of this brief. Mr. Valdez has notified counsel
that according to what he has seen in the case, which is not the complete file from the
District Atttorney’s Office, that in his best belief, the letter discussed above was sent to
counsel in error. However, no explanation has ever been given as to why this letter was
sent to counsel in the first place. Counsel only wishes to preserve any error in this case
and not waive any opportunity to make a further record of this issue since not enough
without question. However, it is the policies of the district attorney’s office in sending
out such letters and refusing to provide further guidance as to the Brady material that is
138
the issue at hand. See Brady v. Maryland, 373 U.S. 83(1963). cited in Neal v. State, 256
PRAYER
Court uphold the points of error, reverse the Appellant’s conviction, and enter an
acquittal or in the alternative remand the case for a new trial, or a new trial on
Respectfully Submitted,
ANGELA J. MOORE
BEXAR COUNTY PUBIC DEFENDER
LORI O. RODRIGUEZ
ASSISTANT BEXAR COUNTY
PUBLIC DEFENDER
410 So. Main, Suite 214
San Antonio, Texas 78204
(210) 335-0701
Fax: (210) 335-0707
Attorneys for Appellant
139
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Appellant’s Brief was
hand-delivered to the Bexar County District Attorney’s Office, Appellate Division,
Cadena-Reeves Justice Center, 300 Dolorosa, San Antonio, Texas 78205, as well as the
Office of the State Prosecuting Attorney, via USPS, on the 14th day of June, 2010. A copy
was also mailed to Mr. Armando Leza.
Angela Moore
140