AP-76, 257

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS AT AUSTIN

ARMANDO LEZA,
Appellant

VS.

THE STATE OF TEXAS,

Appellee

Trial Cause No. 2007-CR-4563A

Appeal from the187th District Court
Bexar County, Texas

The Honorable RAYMOND ANGELINI, Judge presiding

BRIEF FOR APPELLANT

ANGELA J. MOORE
Chief Appellate Public Defender
Amoore@bexar.org
Bar No. 14320110

ORAL ARGUMENT REQUESTED
LORI RODRIGUEZ
Senior Assistant
Appellate Public Defender
410 S. Main Ave., Suite 214
San Antonio, Texas 78204
(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:

(1) ARMANDO LEZA, TDCJ ID #00999546, Polunsky Unit, 3872 FM 350

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

and prosecuted this case in the trial court.

The trial attorneys were as follows:

(1) Mr. Leza was represented at trial by TERRENCE MCDONALD and

BARBARA HUGHES, Attorneys at Law, 101 Stumberg, San Antonio, Texas 78205.

(3) The State of Texas was represented by SUSAN D. REED, District

Attorney, and LORINA RUMMEL and JAN ISCHY, Assistant District Attorneys, 300

Dolorosa Street, 5th Floor, San Antonio, Texas 78205.

The appellate attorneys are as follows:

(1) Armando Leza is represented by ANGELA J. MOORE. Chief Appellate

Public Defender, and LORI RODRIGUEZ, Senior Assistant Appellate Public Defender,

410 S. Main Ave., Suite 214, San Antonio, Texas 78204.

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

IDENTITY OF PARTIES AND COUNSEL................................................................................................................ii

POINT OF ERROR TWO..........................................................................................................................................x
The trial court erred in failing to grant Mr. Leza’s videotaped statement under Tex. Code Crim. Proc. art. 38.22
and 38.23, because the State failed to establish that Mr. Leza understood his rights as required under the Code
of Criminal Procedure, and the State failed to establish that Mr. Leza had the present capacity to waive those
rights, rendering his statement to police a violation of art. 38.22. .........................................................................x
POINT OF ERROR THREE.....................................................................................................................................xi
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 FOUR........................................................................................................................................xi
The absence of a parties special issue in the jury charge at guilt innocence violated the rule in Apprendi v. New
Jersey and Tison v. Arizona...................................................................................................................................xi
POINT OF ERROR FIVE............................................................................................................................................xi
Mr. Leza’s right to a unanimous verdict under the Texas Constitution was violated by a jury charge that
encompassed three separate offenses in a disjunctive clause without instructing the jury to deliver a unanimous
verdict; Leza was harmed by this violation...........................................................................................................xi
POINT OF ERROR SIX............................................................................................................................................xi
Appellant’s Capital Trial Was Conducted Before State Judicial Officers Dependent upon Popularly-contested
Elections.................................................................................................................................................................xi
POINT OF ERROR SEVEN.....................................................................................................................................xi
POINT OF ERROR EIGHT......................................................................................................................................xi
POINT OF ERROR NINE........................................................................................................................................xii
POINT OF ERROR TEN.........................................................................................................................................xii
POINT OF ERROR ELEVEN..................................................................................................................................xii
POINT OF ERROR TWELVE.................................................................................................................................xii
POINT OF ERROR THIRTEEN.............................................................................................................................xiii
POINT OF ERROR FOURTEEN...........................................................................................................................xiii
SUMMARY OF THE ARGUMENTS..........................................................................................................................7
Additionally, the trial court erred in failing to preclude the death penalty as a sentencing option, or,
alternatively, to quash the indictment against Mr.Leza. The grand jury did not consider facts essential to the
imposition of a death sentence, as the indictment against Mr. Leza did not include parties language or language
pertaining to the special issues required in order to qualify a death sentence. (Point of Error Three). Similarly,
absence of a parties special 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 that increase a defendant’s punishment above a
statutory maximum. The interplay between Texas’s law of parties and special issues at punishment
unconstitutionally allow for a non-principle to a felony murder to be convicted of capital murder, and
qualifying death as an option without the specific findings required by Apprendi, Tison and their progeny.
(Point of Error Four). .............................................................................................................................................8
The errors in Mr. Leza’s case were compounded by the additional procedural due process error contained
within Texas’s capital murder statute and judicial scheme: Texas’s judicial officers’ status as elected officials
taints their ability to preside over death penalty cases. (Point of Error Six). ........................................................9
POINT OF ERROR ONE.........................................................................................................................................11
The trial court erred in denying the motion to suppress Mr. Leza’s videotaped statement, because the State
failed to establish that Mr. Leza voluntarily waived his right to remain silent, and the statement was therefore
taken in violation of Mr. Leza’s Fifth Amendment rights. ..................................................................................11
v
 POINT OF ERROR TWO........................................................................................................................................26
The trial court erred in failing to grant Mr. Leza’s videotaped statement under Tex. Code Crim. Proc. art. 38.22
and 38.23, because the State failed to establish that Mr. Leza understood his rights as required under the Code
of Criminal Procedure, and the State failed to establish that Mr. Leza had the present capacity to waive those
rights, rendering his statement to police a violation of art. 38.22. .......................................................................26
POINT OF ERROR THREE.....................................................................................................................................30
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.........................................................................................30
POINT OF ERROR FOUR.......................................................................................................................................38
The absence of a parties special issue in the jury charge at guilt innocence violated the rule in Apprendi v. New
Jersey and Tison v. Arizona..................................................................................................................................38
POINT OF ERROR FIVE............................................................................................................................................71
Mr. Leza’s right to a unanimous verdict under the Texas Constitution was violated by a jury charge that
encompassed three separate offenses in a disjunctive clause without instructing the jury to deliver a unanimous
verdict; Leza was harmed by this violation...........................................................................................................71
POINT OF ERROR SIX...........................................................................................................................................80
Appellant’s Capital Trial Was Conducted Before State Judicial Officers Dependent upon Popularly-contested
Elections................................................................................................................................................................80
POINT OF ERROR SEVEN.....................................................................................................................................89
POINT OF ERROR EIGHT...................................................................................................................................102
POINT OF ERROR NINE......................................................................................................................................107
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).
.....................................................................................................................................................................................107
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. ...................................................................107
The Court failed to provide a definition limiting “criminal acts of violence” to the most serious such offenses ....107
“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. Code § 1.07(8); 22.01(a)(1). If the function of the death penalty is to provide a
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 might commit a minor assaultive offense, but is very
unlikely to commit a grave act of violence, is called for. .........................................................................................107
The Court failed to provide a definition limiting “criminal acts of violence” to only those property offenses that
occur in conjunction with personal violence).............................................................................................................108
“Criminal acts of violence” can also be interpreted as including offenses that 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).............................108
By failing to adequately channel the jury’s understanding of the phrase “criminal acts of violence” the trial court
violated the Eighth and Fourteenth Amendments to the United States Constitution. Pursuant to Tex. R. App. P.

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:

This brief is filed on behalf of Appellant, Armando Leza, by Angela J. Moore,

Chief Appellate Public Defender, and Lori Rodriguez, Senior Assistant Appellate Public

Defender.

STATEMENT OF THE CASE

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

convicted on the 3rd day of May, 1999, of Burglary of a Habitation.

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,

2010. This brief follows.

STATEMENT REGARDING ORAL ARGUMENT

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;

It is upon these issues that oral argument is particularly sought: Undersigned

counsel are of the opinion that oral argument would serve to emphasize and clarify those
issues.

ISSUES PRESENTED

POINT OF ERROR ONE

The trial court erred in denying the motion to suppress Mr. Leza’s
videotaped statement, because the State failed to establish that Mr. Leza
voluntarily waived his right to remain silent, and the statement was
therefore taken in violation of Mr. Leza’s Fifth Amendment rights.

POINT OF ERROR TWO

The trial court erred in failing to grant Mr. Leza’s videotaped
statement under Tex. Code Crim. Proc. art. 38.22 and
38.23, because the State failed to establish that Mr. Leza
understood his rights as required under the Code of
Criminal Procedure, and the State failed to establish that
Mr. Leza had the present capacity to waive those rights,
rendering his statement to police a violation of art. 38.22.

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.

POINT OF ERROR FOUR

The absence of a parties special issue in the jury charge at
guilt innocence violated the rule in Apprendi v. New Jersey
and Tison v. Arizona

POINT OF ERROR FIVE

Mr. Leza’s right to a unanimous verdict under the Texas
Constitution was violated by a jury charge that
encompassed three separate offenses in a disjunctive
clause without instructing the jury to deliver a unanimous
verdict; Leza was harmed by this violation

POINT OF ERROR SIX

Appellant’s Capital Trial Was Conducted Before State
Judicial Officers Dependent upon Popularly-contested
Elections.

POINT OF ERROR SEVEN

The Texas Death Penalty 10-12 Rule results in Arbitrariness in the
imposition of the Death Penalty

POINT OF ERROR EIGHT

The trial court violated the First, Eighth and Fourteenth
Amendments of the United States Constitution by failing to
define the word “militates” so as to preclude consideration
of the defendant’s age, race, sex, national origin, religion,
political views or sexual orientation as a factor supporting a
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.

POINT OF ERROR TEN

The trial court erred in failing to grant the Mr. Leza’s motion for mistrial,
after the State elicited testimony from a detention guard that did not
comport with the required notice provided the defense, and the testimony
was so inflammatory and prejudicial that the trial court’s instruction to
jurors to disregard it could not remedy the harm it caused.

POINT OF ERROR ELEVEN

Mr. Leza’s Due Process right under the Sixth Amendment to present
evidence in defense was violated when the trial court excluded the co-
defendant’s statement against penal interest, in which she took
responsibility for killing the complainant.

POINT OF ERROR TWELVE

(a) The trial court violated the Eighth and Fourteenth
Amendments of the United States Constitution by failing to
instruct the jury that its consideration of victim impact
evidence should not be conducted in connection with the
future dangerousness special issue.

(b) The trial court violated the Eighth and Fourteenth

Amendments of the United States Constitution by failing to
instruct the jury that its consideration of victim impact
evidence did not relieve the State of its burden to prove the
“future dangerousness” issue beyond a reasonable doubt.

(c) The trial court violated the Eighth and Fourteenth

Amendments of the United States Constitution by failing to
instruct the jury to disregard victim impact evidence that
was not shown to be within the knowledge or reasonable
expectation of the defendant.

(d) The trial court violated the Eighth and Fourteenth

Amendments of the United States Constitution by failing to
xii
instruct the jury not to make a comparative worth analysis
of the value of the victims to their families and the
community compared to the defendant or other members of
society.

POINT OF ERROR THIRTEEN

The trial court violated the Eighth and Fourteenth
Amendments when it failed to define the word “probability”
for the jury during the sentencing phase.

POINT OF ERROR FOURTEEN

Mr. Leza’s rights to Brady material has been compromised due to actions
by the District Attorney’s Office.

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

the store recently.

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

in her apartment on April 4, 2007. (12 RR 27-31).

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

lookout for the missing property. (12 RR 55-57).

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

investigation. (12 RR 181).

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

evidence. He documented evidence with photographs, videos, sketches, and he made

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

received from Leza and Treveno belonged to Allen. (13 RR 75-79).

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

the police station. (13 RR 6).

Officer Muniz delivered Leza to the custody of Officer Darrell Volkman.

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

Leza’s handcuffs upon Greiner’s instruction. (13 RR 18).

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

belonging to the deceased, indicating a probable match. (13 RR 114—115). To ensure

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

DNA profile of Caryl Jean Allen. (13 RR 114-116).

SUMMARY OF THE ARGUMENTS

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

that ground as well. (Point of Error Two).

7
 Additionally, the trial court erred in failing to preclude the death

penalty as a sentencing option, or, alternatively, to quash the

indictment against Mr.Leza. The grand jury did not consider facts

essential to the imposition of a death sentence, as the indictment

against Mr. Leza did not include parties language or language

pertaining to the special issues required in order to qualify a death

sentence. (Point of Error Three). Similarly, absence of a parties special

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

that increase a defendant’s punishment above a statutory maximum.

The interplay between Texas’s law of parties and special issues at

punishment unconstitutionally allow for a non-principle to a felony

murder to be convicted of capital murder, and qualifying death as an

option without the specific findings required by Apprendi, Tison and

their progeny. (Point of Error Four).

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).

The errors in Mr. Leza’s case were compounded by the additional

procedural due process error contained within Texas’s capital murder

statute and judicial scheme: Texas’s judicial officers’ status as elected

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”

during the sentencing phase of trial. (Point of Error Thirteen).

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

dangerousness evidence should be disregarded by the jury if it was not shown to be

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

in an comparative worth analysis of the value of the complainant to her

families and the community compared to the defendant or other

members of society. (Point of Error Twelve).

Finally, the State violated its duties under Brady in failing to

properly inform Mr. Leza of potentially exculpatory evidence pertaining

to a police officer witness who was under investigation for lying in

10
obtaining warrants, and who may have been involved in the

investigation against Mr. Leza. (Point of Error Fourteen).

ARGUMENTS AND AUTHORITIES

POINT OF ERROR ONE

The trial court erred in denying the motion to suppress Mr.
Leza’s videotaped statement, because the State failed to
establish that Mr. Leza voluntarily waived his right to remain
silent, and the statement was therefore taken in violation of
Mr. Leza’s Fifth Amendment rights.

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

Appellant’s videotaped statement as well as an oral statement he made to Officer

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

tell his side of the story. (SX 1 12:57).

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

knowledge about a murder.

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

after the interrogation was complete.

As Greiner was interviewing Mr. Leza, Detective Wallace Campbell was

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

allow her to say that? It’s not true.” (SX 1).

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

videotape viewed by the jury.

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

of your mouth.” (SX1 3:05:32).

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

then began hitting him. (SX1).

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.”

Mr. Leza finally answered, “I cut her throat first.” (SX1).

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

custodial interrogation. Miranda, 384 U.S. at 475. A defendant’s statement is admissible

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

was obtained. Miranda, 384 U.S. at 475.

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

to remain silent. In Berghuis v. Thompkins, U.S. , 08-1470, (June 1, 2010),

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

statement to the police.” Berghuis v. Thompkins, U.S. , 130 S.Ct.

, 08-1470 (June 1, 2010)(emphasis added).

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

interrogation, to understand the warnings to the degree necessary to waive them.

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

statement forthcoming cannot be categorized as the product of a free and deliberate

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

they were arrested.

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

self-determination (be) critically impaired.” Culombe v. Conneticut, 367 U.S. at 602.

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

the warnings card.

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.

The protection afforded by the Fifth Amendment prohibition against involuntary

confessions is clearly of constitutional dimension. See Jackson v. Denno, 378 U.S. at

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

did not contribute to the conviction.

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

erroneous inclusion of his statement contributed to Mr. Leza’s conviction.

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

active participant in the killing.

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

the trial court for a new trial.

POINT OF ERROR TWO

The trial court erred in failing to grant Mr. Leza’s videotaped
statement under Tex. Code Crim. Proc. art. 38.22 and
38.23, because the State failed to establish that Mr. Leza
understood his rights as required under the Code of
Criminal Procedure, and the State failed to establish that
Mr. Leza had the present capacity to waive those rights,
rendering his statement to police a violation of art. 38.22.

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

admission at trial violated State law.

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

Supreme Court’s decision of June 1, 2010, in Burgheis, appears to have further

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.

State, PD-0490-09 (June 9, 2010)(designated for publication), this Court acknowledged

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.

Proc. 38.23 where there is a factual dispute as to the voluntariness of a suspect’s

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

unambiguous statement for signature, such as “I knowingly, voluntarily and intelligently

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,

intelligent and voluntary waiver of rights be demonstrated. Moreover, the DVD

recording of the interview demonstrates how swiftly and perfunctorily the signing of the

rights card was carried out.

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

carry that burden.

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

therefore implicated his rights under the Texas statute.

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. Therefore, his conviction must be reversed.

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.

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”.

The “maximum penalty” for Apprendi/Ring/Blakely purposes, under Texas death

penalty law, is the life sentence that is authorized up to and until the jury returns a

unanimous negative answer on the sufficiency of mitigation. That finding is legally

essential to the imposition of death in Texas and the “maximum penalty” concept was

crucial to Mr. Leza’s claims as raised in his motion.

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

circumstances are insufficient to warrant a sentence of life imprisonment. Those

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

indictment as constitutionally deficient.

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

to the mitigation special issue.

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

of the Apprendi/Ring/Blakely principle to the Texas death penalty: What is the

“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

S.W.3d 491 (Tex. Crim. App. 2003).

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

carried a “standard range” of 49 to 53 months. The judge was permitted to assess a

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

significance of the “statutory maximum”:

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

therefore be made beyond a reasonable doubt, to be consistent with the

Apprendi/Ring/Blakely analysis. Mr. Leza was denied Equal Protection as a matter of

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

application of the law to similarly situated citizens in a system of elected prosecutors.

By interposing a grand jury composed of citizens of the community, and 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 if he were prosecuted in Harris County, but face a non-death capital

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

Amendment as well as the Fourteenth Amendment constitutional guarantee of equal

protection of the law in Mr. Leza’s case.

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

violence”, and “continuing threat to society” were not defined.

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

subsequent objections: 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

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

contributed to Mr. Leza’s conviction and punishment. Consequently reversal is required,

with the case remanded for reformation to a life sentence.

POINT OF ERROR FOUR

The absence of a parties special issue in the jury charge at

guilt innocence violated the rule in Apprendi v. New Jersey
and Tison v. Arizona

The Law of Parties in Texas applied in Mr. Leza’s case

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.

LEXIS 13862, 51-52 (W.D. Tex. 2005).

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

to examine these standards as required by Apprendi/Ring, thus is violative of the Sixth

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

that create a substantial risk of unconstitutionally arbitrary and excessive punishments.2

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

absence of a proper application of the law of parties, including acting as a co-conspirator

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

also denied. (15 RR 7-8).

Enmund, Tison, Apprendi, and Ring; the whole ill-fated thing.

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

argument against Texas's interrogatory submissions is necessary in light of the law of

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

Mr. Leza to the death penalty.

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.

On direct review on Gongora, this Court explained in a perfunctory manner:

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,

2006) (unpublished). This Court without analysis held:

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

accompanying felony and displayed “reckless indifference to human life.” Tison v.

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

Fourteenth Amendments in capital cases.”Id. at 606.

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.,

concurring). Justice Blackmun also authored an opinion in which he agreed that

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

he was sentenced to death. Id. at 788.

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

showing that less than 1% of robberies result in homicides. Id. at 799.

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.

The Tison Exception.

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.

In assessing the constitutionality of their sentences, the Court purported to follow

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

likelihood of killing is so substantial as to raise an inference of extreme recklessness.” Id.

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

distinguish the most culpable offenders, because “nonintentional murderers may be

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

examples of “nonintentional murderers” whose culpability "may be every bit as shocking

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

murders described, while not premeditated or deliberate, are nevertheless intentional).

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

human life.” Id. at 158 (majority opinion).

Apprendi and its progeny.

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

finding of that particular aggravating circumstance operates as the “functional

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

rulings of Apprendi and Ring.

Apprendi and Ring are a culmination of a number of Supreme Court cases

addressing the parameters of a criminal defendant's constitutional right to a jury. Finally,

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

judge's discretion in sentencing an offender "within the range prescribed by statute,"

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.

In effect, “the required finding of an aggravated circumstance exposed the

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

circumstance operated as the “functional equivalent” of an element of the offense. Thus,

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

The Death Penalty in Texas

Texas leads the nation and the world in executions.

7
Appellant acknowledges that at least one federal court addressing Texas’ death penalty statute has found against
Mr. Leza’s argument in a similar context. “ The right to jury trial under Sixth Amendment was not violated,
pursuant to Ring and Apprendi, by lack of beyond reasonable doubt burden of proof for Texas capital sentencing
scheme's Penry or mitigation special issue, where sentencing scheme made constitutionally required eligibility
decision at guilt-innocence phase by narrowing jury's finding of defendant's eligibility for death penalty to capital
murder beyond reasonable doubt, among different murder classifications, and further narrowed eligibility by jury
finding future dangerousness beyond reasonable doubt, whereas mitigating factors addressed constitutional
requirement of ensuring jury's opportunity in selection decision at punishment phase to render reasoned,
individualized sentence, without burden of proof if evidence was considered solely within selection process, based
on defendant's record, personal characteristics, and circumstances of crime.” U.S. CONST.AMEND. VI; TEXAS CODE
CRIM. PROC. art. 37.071; TEX. PENAL CODE § 19.02(b) (1). Berkley v. Quarterman, 507 F. Supp. 2d 692 (W.D. Tex.
2007).

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

previous seven years prior to 2009. See http://www.tdcj.state.tx.us/stat/annual.htm, last

accessed June 10, 2010. Texas is number two in the United States for the number per

capita for executions, second only to Oklahoma. See

http://www.deathpenaltyinfo.org/state-execution-rates (last accessed June 10, 2010). See

chart below.

Cumulative
2008 Executions: Executions per
State/Rank
Population 1976-April Capita (x10,000)
17, 2009

1. Oklahoma 3,642,361 89 0.244

Texas 24,326,974 437 0.179

50
Additionally, Texas has executed more persons than the country of Iran. .8 Iran’s

population of 72.2 million as of 2009 which,was three times that of Texas.9

Effect of Ring and Apprendi in Texas

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.

Dist. LEXIS 13862, 51-52 (W.D. Tex. Mar. 3, 2005).

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

Apprendi/Ring to end the current practice of making Enmund/Tison findings at the

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

appellate court, sufficiency of the evidence is not available.

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

necessary to impose a sentence of death on a criminal defendant.” (Footnotes omitted)),

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

to the Enmund/Tison findings generally.

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

shortcomings of this approach).

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

case.” (Citations omitted)).

This Court must address the underlying problems of arbitrariness and

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.

Texas’ Current Scheme

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

defines capital murder as intentional or knowing murder committed in any of nine

additional aggravating circumstances. TEX. PENAL CODE ANN. § 19.03(a) (O’Connor’s

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

continuing threat to society,” what is labeled by Texas litigants as “future

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).

The Law of Parties

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.

PENAL CODE ANN. § 7.02 (O’Connor’s 2007).

Mr Leza’s case requires particular focus on the theory of conspiracy liability

established under Section 7.02(b). This section provides:

If, in the attempt to carry out a conspiracy to commit one

felony, another felony is committed by one of the
conspirators, all conspirators are guilty of the felony actually
committed, though having no intent to commit it, if the
offense was committed in furtherance of the unlawful purpose

55
 and was one that should have been anticipated as a result of
carrying out the conspiracy.

TEX. PENAL CODE ANN. § 7.02(b) (O’Connor’s 2007).

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,

954 (Tex. Crim. App. 1980) (emphasis omitted).

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

conviction of a defendant who did not intend to kill.

The Law of Parties and the Felony Murder Rule

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

defendant killed intentionally, recklessly, negligently, or accidentally. Id. The felony

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.

TEX. PENAL CODE ANN. § 19.02(b) (3) (O’Connor’s 2007).

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

provision accounts for approximately 63% of capital murder convictions in Texas.

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

Serv., (2005), available at http://texasdefender.org/risk.pdf (examining all direct appeals

of capital cases from January 1, 2002 to December 30, 2004).

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

TEX. PENAL CODE ANN. § 7.02.

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

capital offense ....”).

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

the other actor or participant.

58
 A simple hypothetical best demonstrates the practical significance of this

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

murder as a party to intentional murder in the course of an enumerated felony. As a

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

other corroboration other than the deceased teller at the bank.

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

sentences that violate the Constitution.

Constitutionality of the Law of Parties in Capital Cases

59
 For many years, Texas courts have applied the law of parties to capital cases. The

law of parties explicitly allows the State to attribute a principle's liability to an

accomplice if the accomplice at least “should have ... anticipated” the offense. Prystash

v. State, 3 S.W.3d at 540-41, 541 n.4 (Keller concurring)(emphasis omitted) (discussing

the function of the anti-parties issue).

Enmund, however, prohibited states from attributing the culpability of principals

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

“attribute [] to Enmund the culpability of those who killed [the victims]”).

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

in a capital murder case” (citations omitted) (emphasis omitted)).

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.

PROC. ANN. Art. 37.071.

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.

Crim. App. 1995) (citations omitted). (Pre-Apprendi).

On the other hand, Section 7.02(b) clearly dispenses with any intent requirement,

thereby allowing a defendant to be convicted of any offense committed by a co-

conspirator, as long as it “was committed in furtherance of the [attempted conspiracy]

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

Section 7.02(b), the anti-parties charge satisfies the necessary Enmund/Tison

requirements and conclude that it does not.

61
The Anti-Parties Charge affect on the jury

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

anti-parties charge. Id.

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).

Additionally, the legislature removed the deliberateness instruction addressed in

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

capital murder case” (citation omitted) (emphasis omitted)).

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

Enmund/Tison when the jury convicts a defendant under Section 7.02(b).

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

the prior version of Article 37.071] means something beyond “intentionally” or

“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

establishing the offense of capital murder.” Prystash, 3 S.W.3d at 541.

In cases in which the defendant is convicted of capital murder as a party under

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

offense would occur. Lawton, 913 S.W.2d at 555.

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

level of culpability as Tison. Appellant urges that it does not.

Inadequacy of the Anti-Parties Charge.

In Ladd v. State, the Texas Court of Criminal Appeals rejected an Enmund/Tison

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

level of culpability the Eighth Amendment requires. Id. at 150-51.

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

make these types of determinations.

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

“antiparties” charge to be an adequate fact finding of the accused’s culpability.

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

potentially inadequate, and further, Apprendi/Ring require a jury determination of

culpability before sentencing a defendant to death.

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

what Mr. Leza did or did not do.

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

intentionally to promote or assist in the commission of offenses could still be convicted

under Section 7.02(a) (2).

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

meet the reckless indifference/major participation requirements of Tison. Excluding

defendants who might otherwise be eligible under Tison is justified by the rationale of

Enmund as well as by the Texas Penal Code.

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

all.” Tison v. Arizona, 481 U.S. 137, 157 (1987).

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.

§19.02(b)(2) (defining murder to include a defendant who "intends to cause serious

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

death sentence is either plainly unconstitutional under Enmund or constitutionally suspect

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

parties under Section 7.02(b).

Conclusion

The death penalty is an excessive under the Eighth Amendment and therefore

unconstitutional punishment for defendants convicted solely as parties under Section

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

proportional to each defendant's individual culpability.

Additionally, 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 to examine these standards as required by Apprendi/Ring. Moreover, even if a jury

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

absence of a proper application of the law of parties, including acting as a co-conspirator

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

sentence must be commuted to life, or an acquittal entered.

POINT OF ERROR FIVE

Mr. Leza’s right to a unanimous verdict under the Texas
Constitution was violated by a jury charge that
encompassed three separate offenses in a disjunctive
clause without instructing the jury to deliver a unanimous
verdict; Leza was harmed by this violation

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

by Price and Johnson, J.J.)).

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).

b. The capital murder charge encompassed three separate offenses in a disjunctive

clause because the criminal act under law of parties is distinct from the criminal act
under capital murder

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

counter to the majority’s holding).

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 elements of the law of parties unanimously.

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

criminal act necessary for conviction is conjunctive.

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.

A unanimous verdict requires agreement on the criminal act committed by the

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

analyze it using the grammar test).

This test eliminates vagary in determining what criminal offenses require a

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

how Mr. Leza’s right to a unanimous verdict was violated.

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

unanimously. Compounding a jury charge error which allows for a non-unanimous

verdict is egregious harm. See Ngo, 175 S.W.3d at 745-48.

The charge allowed non-unanimity regarding Mr. Leza’s status as a principal or a

party, which permitted the jury to consider sentencing-determinative information in the

punishment phase. This runs counter to the constitutional mandate that all the sentence

determinative factors be presented at the guilt/innocence phase. U.S. CONST. AMEND.

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.

By allowing the jury to deliver a non-unanimous verdict regarding capital murder on a

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

certainly more than “some harm.”

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

dependent upon popularly contested elections and retention elections.15 Texas

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.

(Amended Aug. 11, 1891, Nov. 8, 1977, and Nov. 4, 1980.)

80
appellate court review. TEX. CODE CRIM. PROC. Article 37.071 section 2, (h). Appeal to

this court is automatic. Id.

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

appellate jurisdiction on criminal matters:

(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

authority to issue certain orders necessary to its functioning:

(b) Subject to such regulations as may be prescribed by law, the Court of

Criminal Appeals and the Judges thereof shall have the power to issue the
writ of habeas corpus, and, in criminal law matters, the writs of mandamus,
procedendo, prohibition, and certiorari. The Court and the Judges thereof
shall have the power to issue such other writs as may be necessary to
protect its jurisdiction or enforce its judgments. The court shall have the
power upon affidavit or otherwise to ascertain such matters of fact as may
be necessary to the exercise of its jurisdiction.
TEX. CONST. ART. 5.

Although Article 5 describes the authority of the Court of Criminal Appeals in

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

the State of Texas.

This sentiment is echoed in the provision from which the Texas Supreme Court

derives its authority. Article 5, section 1 provides:

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

authority to do so. The Legislature’s enactment of Article 37.071 granting review by a

82
fully elected court is unconstitutional as applied and facially because it fails to respect the

due process rights of the individual on trial.

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

improperly affected their impartiality.16

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

person as a judge in a capital case. Making unpopular rulings favorable to a capital

defendant or to a capitally-sentenced appellant poses the threat to a judge or justice of

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

nationwide trend toward “heated races focused on hot-button issues. . . . Increasingly,

contestants gained attention in these otherwise staid contests by capitalizing on the

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-

button” issue of capital punishment.

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

and appointment of judges, followed in due course by a standardized judicial

performance evaluation and, finally, a yes/no vote in which citizens either

approve the judge or vote him out. This kind of merit selection system — now

used in some form in two-thirds of states — protects the impartiality of the

judiciary without sacrificing accountability.”

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.”

http://www.time.com/time/nation/article/0,8599,1915814,00.html#ixzz0p4sfnpy4 Last accessed on May 26,

2010
85
under the rationale set forth by the Supreme Court in Republican Party of Minnesota v.

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

campaigns. Canon 1 “Upholding the Integrity and Independence of the Judiciary”

provides:

An independent and honorable judiciary is indispensable to justice in our

society. A judge should participate in establishing, maintaining and
enforcing high standards of conduct, and should personally observe those
standards so that the integrity and independence of the judiciary is
preserved. The provisions of this Code are to be construed and applied to
further that objective. TEX. CODE JUDICIAL CONDUCT Canon 1.

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

decisions.18 That same study concluded:

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.

In the “Report on Mission the United States of America (A/HRC/11/2/Add.5, 28

May 2009, ¶¶ 5-22, 24-27, 74)” This Chapter of the Handbook collects the observations

and recommendations of the UN Special Rapporteur with respect to a State’s imposition

18
Brace and Boyea, “State Public Opinion, the Death Penalty, and the Practice of Electing Judges”, 52 American
Journal of Political Science (2008) 367-69.
86
of the death penalty in a criminal proceeding in a civilian or military court. This Chapter

focuses on the systemic inadequacies within a State’s laws or judicial procedures that can

lead to a death sentence being a de facto arbitrary deprivation of life.19

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

unpopular decisions in favor of a capital defendant. A recent study conducted by the

United Nations states:

Alabama’s systematic rejection of concerns that basic international

standards are being violated sits oddly alongside the Government’s
determined and successful bid to attract foreign investment from the
European Union in particular. Indeed, Alabama’s largest export market is
Germany. See U.S. Department of Commerce, “Alabama: Exports, Jobs,
and Foreign Investment” (September 2008), available at
http://www.trade.gov/td/industry/otea/state_reports/alabama.html.
Alabama’s death penalty policies are thus an appropriate subject for
dialogue with the international community.
6 (sic) Judges in both states are elected for 6-year terms. See Article 5,
Constitution of the State of Texas; Amendment 328, Constitution of
Alabama.

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.

11. The goal of an independent judiciary is to ensure that justice is done in

individual cases according to law. Too often, though, under judicial
electoral systems, the death penalty is treated as a political rather than a
legal matter.8 The significant impact of judicial electoral systems on capital
punishment cases was recognized by many with whom I spoke. They
strongly suggested that judges in both Texas and Alabama consider
themselves to be under popular pressure to impose and uphold death
sentences and that decisions to the contrary would lead to electoral defeat.
Numerous government officials in both states openly stated that it was not
possible to speak out against the death penalty and hope to get re-elected.

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

surrounding communities. A ruling favorable to Appellant on any dispositive issue in his

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

his or her office.

Conducting a capital trial or direct appeal before a tribunal that does not meet

constitutional standards of impartiality and requires that Appellant’s convictions and

sentences be vacated. Appellant was denied due process under the Fifth and Fourteenth

Amendments and the reliable sentencing required by the Eighth Amendment.

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

identified the following constitutional problems:

Premature Decision Making - Interviews with jurors found that approximately

50% of those interviewed decided what the penalty should be before the sentencing
phase of the trial. This is before they have heard penalty phase evidence or received
the instructions on how to make the punishment decision.
Bias in Jury Selection - Researchers found that jury selection methods resulted in
disproportionately guilt-prone and death-prone juries.
Failure to Understand Jury Instructions - The study found that 45% of jurors
failed to understand that they were allowed to consider any mitigating evidence
during the sentencing phase of the trial. In addition, two-thirds of jurors failed to
realize that unanimity was not required for findings of mitigation.
Erroneous Beliefs that Death is Required - 44% of jurors said that they believed
the death penalty was required if the defendant's conduct was heinous, vile or
depraved, and nearly 37% of respondents said that the death penalty was required if
the defendant would be dangerous in the future. The Supreme Court has ruled that
no state can require the death penalty solely on the grounds that specific
aggravating circumstances have been established.
Influence of Race - Researchers revealed that the chances of a death sentence in
cases with a black defendant and white victim increase when there are five or more
89
 white males on the jury, and the chances decrease when there is at least one black
male on the jury. These jurors have very different perspectives regarding lingering
doubt, defendant remorsefulness, and defendant future dangerousness.
Underestimating the Death Penalty Alternative - Early findings of the study
found that most jurors grossly underestimated the amount of time a defendant
would serve in prison if not sentenced to death, and that the sooner jurors believed
(wrongly) a defendant would return to society if not given the death penalty, the
more likely they were to vote for death.
William J. Bowers and Wanda D. Foglia, Still Singularly Agonizing: Law's Failure to
Purge Arbitrariness from Capital Sentencing, 39 Crim. L. Bull. 51 (2003).

B. The Texas capital sentencing statute’s “10-12 Rule”.

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

regard to the issues of future dangerousness and mitigating circumstances respectively,

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

motions and hearings before the court. (CR, 176, 195).

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 factors. Such a requirement "impermissibly limits jurors' consideration of

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.

Tex. Code Crim. Proc. art. 37.071

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

mitigating factors to be coherent and capable of judicial administration without serious

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

unfettered use of such mitigating or aggravating factors, which Texas labels a

“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

be any agreement regarding what evidence amounts to mitigating against death or

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,

then a sentence of life will be given.

Mitigation issues guide the jury in tailoring an appropriate punishment - the

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

Court stated in Penry v. Lynaugh, 492 U.S. 302 (1989):

‘“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

a sentencer's discretion to consider relevant evidence that might cause it to decline to

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

effect to mitigating evidence relevant to a defendant's character or record or the ciris

cumstances of the offense.” Id., at 327-328.

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.

246, 256 (2002) (internal citation omitted).

C. The Texas capital sentencing statute’s “10-12 Rule” creates an impermissible risk of
arbitrariness in the sentencing process.

The Eighth Amendment creates a “heightened need for reliability in the

determination that death is the appropriate punishment in a specific case.” Caldwell v.

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

(1985) (sufficiency of capital sentencing statutes is determined by “what a reasonable

juror could have understood the charge as meaning”). Thus a juror can only speculate as

to the result if agreement cannot be reached: a lesser sentence, an expensive retrial or

some other result.

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.

“[W]henever there is a reasonable likelihood that a juror will misunderstand a

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

for resentencing. See Mills, 486 U.S. at 375.

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

death.” Witherspoon v. Illinois, 391 U.S. 510, 523 n. 20 (1968).

The concept of a hung jury is widely understood to be a disfavored result, leading

97
either to a costly retrial or the dropping of charges. Texas jurors in a death case are not

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

an impartial jury will be honored”).

Because of the Eighth Amendment problem in forcing jurors to deliberate using fa

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.

“[A]ccurate sentencing information is an indispensable prerequisite to a reasoned

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

ermination on the basis of that individual’s conscience.

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

their conscientiously held belief. This is particularly unacceptable in capital sentencing p

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

CRIM. PROC. Art. 37.071 § 2(f)(3).

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);

Batiste v. State, 888 S.W.2d 9 (Tex. Crim. App. 1994).

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

do in light of the confusing instruction, and find themselves erroneously compelled 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,

532 U.S. at 804.

As in Simmons v. South Carolina, 512 U.S. 154, 169 (1994) the State here

procured a death penalty relying on evidence of future dangerousness while concealing a

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

new sentencing hearing.

POINT OF ERROR EIGHT

The trial court violated the First, Eighth and Fourteenth

Amendments of the United States Constitution by failing to
define the word “militates” so as to preclude consideration
of the defendant’s age, race, sex, national origin, religion,
political views or sexual orientation as a factor supporting a
death sentence.

A life can hang on the meaning given by Texas jurors to the word

“militates,” but that critical word is not defined by the Texas

sentencing statute. TEX. CODE CRIM. PROC. Art. 37.071. The trial court

here instructed the jury: “[Y]ou shall consider all evidence submitted at

the guilt-innocence stage and the punishment stage, including

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

circumstances of the offense that militates for or mitigates against the

imposition of the death penalty” (15 RR 818).

In order to guide their discretion the jurors needed a definition of the

word “militates.”

“Militates” is not a commonplace word. Its dictionary definitions

vary: See, e.g., Merriam-Webster Online Dictionary ,http://www.m-

w.com/cgi-bin/dictionary?va=militate (last visited June 10, 2010)

(“Etymology: Latin militatus, past participle of militare to engage in

warfare, from milit-, miles: to have weight or effect”); Cf.

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”).

“Militates” therefore generally means to have some weight or

effect or to cause a change, but in the context of a capital case,

“militates” means, in effect, to justify or operate in favor of, the death

penalty. This is different from the usual meaning and, even if

“militate” were a word recognized by the jury, it would not necessarily

be understood by them. As a general rule, terms need not be defined

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

term is required to assure a fair understanding of the evidence.” Middleton v. State,

125 S.W.3d 450, 454 (Tex. Crim. App. 2003). Given the acknowledged

difficulty that jurors have in understanding instructions that may seem

commonplace to lawyers,23 and that “militates” is not a word frequently

encountered in normal life, it is not a word likely to be readily

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

close.” Id. at 457 (Price, J. dissenting).

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

their personal definitions. For example, as a statutory matter, the

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

weight. Miller-El v. Dretke, 545 U.S. 231, 234 (2005)(very integrity of

courts jeopardized by racial discrimination).

It is conceded that this court has previously resisted defining the

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

concerns regarding discrimination on the basis of race and ethnicity

expressed in the statute would be well served by an instruction such as

Mr. Leza’s counsel requested, as would the protection of other

interests: Age, sex, national origin, religion, political views and sexual

orientation are personal characteristics which are protected by the

courts, and not normally relevant to a capital sentencing absent some

specific relevance. See, e.g., Barclay v. Florida, 463 U.S. 939, 949

(1983) (desire to start race war relevant to statutory aggravators).

Instructions should therefore have been given to insure that the other

factors to which the trial court’s attention was alerted by defense

counsel’s objections to the court’s charge were not improperly

24
“[E]vidence may not be offered by the state to establish that the race or ethnicity of the defendant makes it likely
that the defendant will engage in future criminal conduct.”
105
considered by the jury. See, e.g., Roper v. Simmons, 543 U.S. 511

(2005) (abolishing juvenile death penalty and acknowledging

recognized differences between young and mature adults); Fritz v.

State, 946 S.W.2d 844 , (Tex. Crim. App. 1997) (gender discrimination

violates Equal Protection clause); Marx v. State, 141 Tex. Crim. 628,

150 S.W.2d 1014, 1016-17 (1941) (inflammatory comments concerning

national origin required reversal); Dawson v. Delaware, 503 U.S. 159,

166-67(1992) (mere proof of membership in the Aryan Brotherhood

showed only “abstract belief,” and therefore implicated defendant's

First Amendment right of association); Lawrence v. Texas, 539 U.S. 558

(2003) (state cannot criminalize private homosexual activity).

The trial court’s error in failing to give this charge was of a

constitutional nature, therefore this Court must reverse unless it can

determine beyond a reasonable doubt that the error did not contribute

to Mr. Leza’s sentence of death. TEX. R. APP. P. 44.2(a). The

instructions, as given, did not preclude the jury from consideration of

Mr. Leza’s constitutionally protected personal characteristics in

deciding the first special issue and thus, reversal is required.

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.

CODE § 1.07(8); 22.01(a)(1). If the function of the death penalty is to provide a

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

violence, is called for.

The Court failed to provide a definition limiting “criminal acts of violence” to only those
property offenses that occur in conjunction with personal violence)

“Criminal acts of violence” can also be interpreted as including offenses that

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).

By failing to adequately channel the jury’s understanding of the phrase “criminal

acts of violence” the trial court violated 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
108
that the error did not contribute to the conviction. The sentences in this case must

therefore be reversed and remanded.

POINT OF ERROR TEN

The trial court erred in failing to grant the Mr. Leza’s motion for mistrial,
after the State elicited testimony from a detention guard that did not
comport with the required notice provided the defense, and the testimony
was so inflammatory and prejudicial that the trial court’s instruction to
jurors to disregard it could not remedy the harm it caused.

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

contained nowhere within the State’s notice. (18 RR 88).

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

be remedied by the trial court’s instruction to disregard.

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

extraneous conduct is governed by the notice requirements of Section 3(g), Article

37.07.” That section provides:

On timely request of the defendant, notice of intent to introduce evidence

under this article shall be given in the same manner required by Rule
404(b), Texas Rules of Evidence. If the attorney representing the state
intends to introduce an extraneous crime or bad act that has not resulted in a
final conviction in a court of record or a probated or suspended sentence,
notice of that intent is reasonable only if the notice includes the date on
which and the county in which the alleged crime or bad act occurred and
the name of the alleged victim of the crime or bad act. The requirement
under this subsection that the attorney representing the state give notice
applies only if the defendant makes a timely request to the attorney
representing the state for the notice.
TEX. CODE CRIM. PROC. art. 37.07(3)(g).

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

amplify the impact of the improper testimony.

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.

Archie v. State, 221 S.W.3d 695 (Tex. Crim. App. 2007).

“[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

to the present case are:

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

defendant and is of such character as to suggest the impossibility of withdrawing the

impression produced on the minds of the jurors.” Id. at 272.

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.

Crim. App. 1995).

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

risk of being a future danger, even within a prison community.

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

he supposedly threatened Porter pretrial.

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.

POINT OF ERROR ELEVEN

Mr. Leza’s Due Process right under the Sixth Amendment to present
evidence in defense was violated when the trial court excluded the co-
defendant’s statement against penal interest, in which she took
responsibility for killing the complainant.

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).

The State objected to Amanda’s proffered testimony, urging that it was

inadmissible hearsay, and that the “Defense is not entitled to admission of party

opponent, because neither of them are—neither the Defendant—he’s my party opponent,

he’s not their party opponent.” The State urged that the content of any conversation from

Dolores was inadmissible hearsay. (18 RR 108).

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

throat and tied her up.” (18 RR 111).

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

expose declarant to criminal liability is not admissible unless corroborating circumstances

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

determination if there’s corroborating evidence to show she’s trustworthy.” (18 RR 111).

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).

Mr. Leza has a constitutional right to present a defense

Whether rooted directly in the Due Process Clause of the Fourteenth Amendment

or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the

Constitution guarantees criminal defendants ‘a meaningful opportunity to present a

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

innocence.” Holmes, 547 U.S. at 324.

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

complainant. Amanda’s proffered testimony clearly should have been admitted as a

statement against penal interest.

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

admissible as an exception to hearsay under Texas Rule of Evidence 803(24).

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

statement to Amanda Leza less trustworthy in terms of corroborating circumstances, and

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

charged may be introduced by accused when it is inconsistent with, and raises a

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

Treveno’s spontaneous statement to Amanda Leza, instead of Mr. Leza’s statement,

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

could not have answered Special Issue No. 2 in the affirmative.

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

in Mr. Leza’s thought process?

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 killing along with Treveno.

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

punishment-death-Special Issue No.2 requires a showing, beyond a reasonable doubt, that

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.”

Mr. Leza has a constitutional right to ‘a meaningful opportunity to present a

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

court’s error in excluding Amanda’s testimony pertaining to Treveno’s statement against

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

sentence must be reversed, and a new trial on punishment ordered.

POINT OF ERROR TWELVE

(a) The trial court violated the Eighth and Fourteenth

Amendments of the United States Constitution by failing to
instruct the jury that its consideration of victim impact
evidence should not be conducted in connection with the
future dangerousness special issue.

(b) The trial court violated the Eighth and Fourteenth

Amendments of the United States Constitution by failing to
instruct the jury that its consideration of victim impact
evidence did not relieve the State of its burden to prove the
“future dangerousness” issue beyond a reasonable doubt.

(c) The trial court violated the Eighth and Fourteenth

Amendments of the United States Constitution by failing to
instruct the jury to disregard victim impact evidence that
was not shown to be within the knowledge or reasonable
expectation of the defendant.

(d) The trial court violated the Eighth and Fourteenth

Amendments of the United States Constitution by failing to
instruct the jury not to make a comparative worth analysis
of the value of the victims to their families and the
community compared to the defendant or other members of
society.

In Payne v. Tennessee, 501 U.S. 808 (1991) the Supreme Court

held that the Eighth Amendment did not per se bar evidence about the

victim’s personal characteristics or the impact of the murder on the

victim’s family at the punishment stage of a capital trial. The Due

125
Process clause acts as a safety net to protect a defendant if the effect

of such evidence or argument becomes unduly prejudicial or

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.

1998) that evidence of a victim’s character and the impact of the

victim’s murder on family members is admissible to show the

uniqueness of the victim, the harm caused by the defendant, and as

rebuttal to the defendant’s mitigating evidence. The power of victim

impact evidence was acknowledged by the Court in Mosley, which

recognized the risk of unfair prejudice. Id. at 263.

The victim impact evidence introduced in Mr. Leza’s case at

punishment left defense counsel with a King Solomon’s choice: attack

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

her grandchildren. (18 RR 96).

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

even has struggled with a recently developed apprehension of Mexicans, in apparent

reference to Mr. Leza’s ethnicity. (18 RR 98).

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

Gaynel and they had gotten to be very close.

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

rested its case on punishment. (18 RR 102).

The jury should have been instructed that its consideration of

victim impact evidence should not be conducted in connection with the

future dangerousness special issue. This Court originally held in Mosley

that victim evidence is “patently irrelevant … to a determination of

future dangerousness.” Id. at 263. It then held that such evidence

would be relevant to the “future dangerousness” issue if the defendant

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.

id. at 842, Johnson, J. concurring (such evidence only arguably pertains

128
to future dangerousness). However, Payne held specifically that the

legitimacy of the State’s decision to permit victim evidence depends

on its relevance to the jury’s decision. Payne v. Tennessee, 501 U.S.

808, 827 (1991)(“There is no reason to treat such evidence differently

than other relevant evidence is treated.”) Indeed, Payne specifically

refers to the legitimate role that such evidence can play when the jury

is also considering the defense’s mitigation evidence. Id. at 826.

Whatever relevance this evidence may have had to the

uniqueness of the victims, the impact upon their families of their

deaths and in rebuttal of the defense mitigation case,26 it logically

bears no relationship to the issue of whether Mr. Leza would commit

criminal acts of violence in future. The good qualities of the victims

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

Since this evidence had no relevance to the “future

dangerousness” issue, permitting its consideration in that context

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”

rendered by the Eighth Amendment is to require penal laws that are

evenhanded, nonselective, and nonarbitrary).

The jury should have been instructed that its consideration of

victim impact evidence did not relieve the state of its burden to prove

the “future dangerousness” issue beyond a reasonable doubt. As this

Court acknowledged in Mosley, 983 S.W.2d at 263, victim evidence

may rise to prejudicial levels, and requires the imposition of

appropriate limitations by the trial court. While Mosley addressed

limitations upon the “amount, kind and source of victim impact and

character evidence,” other limitations can address the same concerns.

An appropriate instruction from the court would still have served to

focus the jury on the State’s burden of proving “future dangerousness”

beyond a reasonable doubt. As argued above, given the lack of a

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

continuing impact of the victim’s death. Failure to so instruct the jury

130
again raised the risk of an arbitrary rather than a channeled

sentencing process, in violation of the Eight and Fourteenth

Amendments. Jurek v. Texas, 428 U.S. 262, 276 (1976)

(constitutionality of Texas death penalty scheme rests on elimination

of arbitrariness and caprice).

POINT OF ERROR THIRTEEN

The trial court violated the Eighth and Fourteenth

Amendments when it failed to define the word “probability”
for the jury during the sentencing phase.

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”.

It is acknowledged that the Court has previously upheld the

undefined use of the word “probability” in capital jury charges, see,

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-

Webster Online Dictionary http://www.m-w.com/cgi-bin/dictionary (last visited June 11,

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”

if firmly convinced that there was even the remotest probability of

future violence by Mr. Leza. Consequently this issue has merit.

The failure to define the word “probability” has serious

constitutional implications. Death cannot be imposed under

sentencing procedures that create a substantial risk of arbitrariness

and caprice. Gregg v. Georgia, 428 U.S. 153, 188 (1976), cautioned

that the sentencing authority must be apprised of relevant information

and provided with standards to guide its use. Id. at 195. That guidance

is sufficient only if it provides clear and objective standards giving

specific and detailed guidance, that make the process for imposing a

sentence of death rationally reviewable. Godfrey v. Georgia, 446 U.S.

420, 428 (1980). See also Maynard v. Cartwright, 486 U.S. 356 (1988)

(“[t]he construction or application of an aggravating circumstance is

unconstitutionally broad or vague if it does not channel or limit the

sentencer's discretion in imposing the death penalty"). See also Zant

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

“probability” in the Texas statute, rather than providing a principled

distinction is so vague that its meaning can only be guessed at and

that cannot be acceptable, particularly in the case of a criminal

prosecution. Kolender v. Lawson, 461 U.S. 352, 361-362 (1983)(statute

unconstitutionally vague when it failed to explain terms with sufficient

clarity). By permitting the jury to construe “probability” as meaning

“any possibility,” the state therefore secured a great advantage over

Mr. Leza.

By way of illustration, it cannot be said that there is “no

possibility” that even the most upright member of society will never,

ever, pose some danger to person or property in the future. The

truthful answer to the Texas special issue would have to be “yes” with

regard to even the most revered figures in society, such as Mother

Teresa or the Reverend Billy Graham. To fail to narrow the meaning of

the word “probability” deprives the whole special issue of its intended

purpose: to separate the merely bad from the worst of the worst.

Failing to adequately channel the jury’s understanding of this

term effectively deprived Mr. Leza of his rights under the Eighth and
133
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.

POINT OF ERROR FOURTEEN

Mr. Leza’s rights to Brady material has been compromised due to actions
by the District Attorney’s Office.

In addition, Ms. Moore received information in a letter from the District

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

incorporated herein by reference and inclusion.

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

of litigation. This work continues currently.

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

writing; once he has perused the information he has available.

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

information is available for counsel in good conscience to avoid discussion of the

possibility of this deputy’s involvement in this case.

It is important to note that counsel in no way is attacking the professionalism or

credibility, or integrity of Mr. Enrico Valdez. Mr. Valdez’s professional reputation is

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

S.W.3d 264, 280 (Tex. Crim. App. 2008).

PRAYER

WHEREFORE, PRESMISES CONSIDERED, the Appellant prays that this

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

punishment only, and grant any other relief which is appropriate.

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