Gonzalez v. State

• Decision Date: 04 November 2020
• Docket Number: NO. AP-77,066,AP-77,066
• Citation: 616 S.W.3d 585
• Parties: Mark Anthony GONZALEZ, Appellant v. The STATE of Texas
• Court: Texas Court of Criminal Appeals

616 S.W.3d 585

Mark Anthony GONZALEZ, Appellant

v.The STATE of Texas

NO. AP-77,066

Court of Criminal Appeals of Texas.

Delivered: November 4, 2020

Rehearing Denied March 3, 2021

Lauren Scott, Richmond, Jay Brandon, San Antonio, for State.

Michael Lee Young, San Antonio, Michael D. Robbins, Houston, for Appellant.

Keel, J., delivered the opinion of the Court, in which Keller, P.J., and Keasler, Hervey, Newell, Walker, and Slaughter, JJ., joined.

In October 2015, appellant entered a not guilty plea, but a jury convicted him of capital murder for the 2011 murder of a police officer. See TEX. PENAL CODE § 19.03(a)(1). Based on the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, §§ 2(b) and 2(e), the trial judge sentenced appellant to death. TEX. CODE CRIM. PROC. art. 37.071, § 2(g). Direct appeal to this Court is automatic. Id. , § 2(h).

Appellant raises twenty-eight points of error. Point of error four, complaining about the trial court's juror-substitution procedure, is an issue of first impression before this Court, and we address it first. The remaining points of error are addressed generally in trial order in the portion of the opinion not designated for publication. Finding none of his points to have merit, we affirm the trial court's judgment and sentence of death.

Throughout this opinion, unless otherwise specified, all references to "Article" mean the Code of Criminal Procedure, all references to "Section" mean the Penal Code, and all dates refer to 2011. For the sake of clarity we refer to some witnesses by their first names because they share a last name with someone else in the record.

I. OVERVIEW

Shortly after 2:00 a.m. on Saturday, May 28, Memorial Day weekend, Sergeant Kenneth Vann of the Bexar County Sheriff's Office (BCSO) was found shot to death in his patrol car at the intersection of Southeast Loop 410 and State Highway 87 in San Antonio. At the time of his death, Vann was a licensed peace officer working the overnight shift as a first-line supervisor for patrol officers.

Appellant's identity as Vann's killer was not an issue at trial. Rather, the defensive theory was that appellant did not act intentionally, knowingly, or voluntarily because he was in an automatistic state brought on by a "perfect storm" of alcohol and prescription-drug abuse, head injuries, brain dysfunction, and hypoglycemia.

II. JUROR SUBSTITUTION PROCEDURE

In point of error four, appellant asserts that the trial court reversibly erred under the Sixth Amendment by substituting an alternate juror during punishment phase deliberations without instructing the jury to begin its deliberations anew and by telling the attorneys that what the original jury had already decided should "remain." Appellant also cites the Eighth Amendment and various Texas constitutional provisions, but those arguments are inadequately briefed. See Tex. R. App. P. 38.1(i) ; Wolfe v. State , 509 S.W.3d 325, 342–43 (Tex. Crim. App. 2017) (noting that we have no obligation to make an appellant's argument for him); Lucio v. State , 353 S.W.3d 873, 877–78 (Tex. Crim. App. 2011) (finding a point of error inadequately briefed where the brief contains a single-sentence assertion and is unaccompanied by any other argument or authorities); Murphy v. State , 112 S.W.3d 592, 596 (Tex. Crim. App. 2003) ("[B]ecause appellant does not argue that the Texas Constitution provides, or should provide, greater or different protection than its federal counterpart, appellant's point of error is inadequately briefed."). As for his Sixth Amendment argument, it was not preserved, and even if it had been, it is without merit because any error would have been harmless.

II.A. Relevant Facts

Twelve jurors and two alternates were individually interviewed and selected according to the same process. These fourteen all took the same oath to render a true verdict according to the law and evidence and received the same instructions from the trial court, including: injunctions against reading about or researching the case or discussing it with anyone not on the jury; an injunction against discussing it with one another before deliberations; instructions about their exclusive role as judges of the facts proved, the credibility of the witnesses, and the weight to be given the testimony; and an instruction that they would receive the law from the trial court and would be governed by that law.

Immediately before the indictment was read, the trial court addressed the alternate jurors:

[B]oth of you are alternates and what that means is that you will be with us until the jury begins deliberating. So if someone should become disabled or something happens that the person can't finish the trial, then one of you will be selected to step into their place. Okay?

This instruction comported with the pre-2007 version of Article 33.011(b).

Before reading the guilt-phase charge to the jury on Monday, October 12, 2015, the trial court instructed the jury in accord with the applicable version of Article 33.011(b):

Ladies and gentlemen of the jury: Your jury includes two alternates. In order of selection, they are jurors [S.F.] and [M.R.]. The law now requires that the alternate jurors remain through the entirety of the trial process.

The alternate jurors will accompany the jurors into the jury room. The alternate jurors will not participate in any deliberations or in any voting unless they are instructed to do so by this Court. The alternate jurors must attentively listen to all deliberations as it is always uncertain if and when we might need to utilize one or both of them.

The trial court then read the charge. The twelve jurors, shadowed by the two alternate jurors, retired to select a presiding juror and to deliberate. Roughly one hour later, the jury returned a verdict finding appellant guilty of capital murder as charged in the indictment. When polled individually, each regular juror affirmed the verdict.

Punishment phase testimony began on Thursday, October 15, 2015. The alternate jurors listened to and observed the evidence along with the regular jurors, the parties rested and closed late that same day, and proceedings resumed the following Monday after lunch. Before reading the punishment charge, the trial court again gave a preliminary instruction about the alternates’ roles:

Pertaining to the alternate jurors, [S.F.] and [M.R.], you will accompany the jurors into the jury room. The alternate jurors will not participate in any deliberations or in any voting unless they are instructed to do so by this Court.

The alternate jurors must attentively listen to all deliberations as it is always uncertain if and when we might need to utilize one or both of them.

After argument, the trial court sent the regular jurors to the jury room to begin deliberating. The alternate jurors accompanied them.

At about 7:00 p.m., the jury sent its first note, asking, "Can you clarify Issue #2? In particular, ‘character & background’[?] Can you please rephrase in other terms? Also, please clarify ‘sufficient.’ " The trial court issued its first supplemental charge in response to this note, stating in relevant part, "Be advised that you have all the law and evidence before you, please continue to deliberate."

At 11:24 p.m., the trial court asked the jury whether it wished to continue deliberating that night; it did. Sometime later, the trial court informed the parties that "EMS" was going to take regular juror R.P. to the hospital and that the trial court was therefore going to send the remainder of the jury to a hotel to rest for the night. "The jury" in this context appears to have referred to both the regular jurors and the alternates. The trial court stated, "I'm going to have them come back at 10:00 o'clock in the morning. [R.P.] may be better by then and if so he will be asked to come back to deliberate beginning at 10:00 o'clock."

Sometime after the jurors asked to continue deliberating and before the trial court reported R.P.’s condition, the jury sent a second note asking: "Are we deciding life imprisonment or the death penalty? Or only deciding if any mitigating circumstances [sic]? Also, if anything that reduces blameworthiness [sic]? Both relate to Issue # 2."

The next morning, October 20, 2015, the trial court, prosecutors, and defense counsel interviewed juror R.P. in chambers. He said that he had suffered a debilitating anxiety or panic attack during deliberations the night before and still had uncontrollable physical symptoms. R.P. did not reveal anything about the state of the jury's deliberations except that "things" had become "very tense." The trial court excused R.P. from jury service over defense counsel's generic, non-specific objection.

The trial court then summoned alternate juror S.F. to chambers and spoke with her as follows:

THE COURT: [S.F.], how are you?

JUROR [S.F.]: Good.

THE COURT: I wanted to let you know that you are going to replace [R.P.]. He is ill.

JUROR [S.F.]: Yes, ma'am.

THE COURT: And so you have taken an oath. You have sat through all of the deliberations.

JUROR [S.F.]: Yes.

THE COURT: And so now you will be able to not only join the deliberations but also vote.

JUROR [S.F.]: Okay.

THE COURT: And so you will replace him and it's official as of right now.

JUROR [S.F.]: Okay.

THE COURT: All right? Thank you.

The trial court did not summon the other jurors to the courtroom to inform them that R.P. had been excused and that alternate juror S.F. had replaced him. Nor did the trial court provide the jury with any instructions about how, if at all, S.F.’s substitution should affect its punishment deliberations to that point.

The parties then started to argue about the proper response to the jury's second note, but during this argument, defense counsel objected to R.P.’s replacement by alternate juror S.F.:

[LEAD DEFENSE COUNSEL]: I need to object to the seating of the alternate juror. She is not one of the 12 that originally found the defendant guilty and she supposedly [has]

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