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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 [email protected]

Bar No. 14320110

LORI RODRIGUEZ

Senior Assistant

Appellate Public Defender

410 S. Main Ave., Suite 214

San Antonio, Texas 78204

ORAL ARGUMENT REQUESTED (210) 335-0701

FAX (210) 335-0707

[email protected]

Bar No. 90001869

ATTORNEYS OR APPELLANT
mailto:[email protected]:[email protected]:[email protected]:[email protected]


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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

Attorneys Office, 300 Dolorosa St., 5 th 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.

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(2) The State of Texas is represented by the BEXAR COUNTY DISTRICT

ATTORNEYS 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.

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TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL................................................................................................................iiPOINT OF ERROR TWO..........................................................................................................................................x

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

POINT OF ERROR THREE.....................................................................................................................................xiThe 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 legallyessential to Mr. Lezas conviction and death sentence..........................................................................................xi

POINT OF ERROR FOUR........................................................................................................................................xiThe 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...................................................................................................................................xiPOINT OF ERROR FIVE............................................................................................................................................xiMr. Lezas right to a unanimous verdict under the Texas Constitution was violated by a jury charge thatencompassed three separate offenses in a disjunctive clause without instructing the jury to deliver a unanimousverdict; Leza was harmed by this violation...........................................................................................................xi

POINT OF ERROR SIX............................................................................................................................................xiAppellants Capital Trial Was Conducted Before State Judicial Officers Dependent upon Popularly-contestedElections.................................................................................................................................................................xi

POINT OF ERROR SEVEN.....................................................................................................................................xiPOINT OF ERROR EIGHT......................................................................................................................................xiPOINT OF ERROR NINE........................................................................................................................................xiiPOINT OF ERROR TEN.........................................................................................................................................xiiPOINT OF ERROR ELEVEN..................................................................................................................................xiiPOINT OF ERROR TWELVE.................................................................................................................................xiiPOINT OF ERROR THIRTEEN.............................................................................................................................xiiiPOINT OF ERROR FOURTEEN...........................................................................................................................xiii

SUMMARY OF THE ARGUMENTS..........................................................................................................................7Additionally, 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 theimposition of a death sentence, as the indictment against Mr. Leza did not include parties language or languagepertaining 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 Apprendiand Tisons requirement that the jury pass upon elements that increase a defendants punishment above astatutory maximum. The interplay between Texass law of parties and special issues at punishmentunconstitutionally allow for a non-principle to a felony murder to be convicted of capital murder, andqualifying death as an option without the specific findings required by Apprendi, Tison and their progeny.(Point of Error Four). .............................................................................................................................................8

The errors in Mr. Lezas case were compounded by the additional procedural due process error containedwithin Texass capital murder statute and judicial scheme: Texass judicial officers status as elected officialstaints their ability to preside over death penalty cases. (Point of Error Six). ........................................................9

POINT OF ERROR ONE.........................................................................................................................................11The trial court erred in denying the motion to suppress Mr. Lezas videotaped statement, because the Statefailed to establish that Mr. Leza voluntarily waived his right to remain silent, and the statement was thereforetaken in violation of Mr. Lezas Fifth Amendment rights. ..................................................................................11

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POINT OF ERROR TWO........................................................................................................................................26The trial court erred in failing to grant Mr. Lezas videotaped statement under Tex. Code Crim. Proc. art. 38.22and 38.23, because the State failed to establish that Mr. Leza understood his rights as required under the Codeof Criminal Procedure, and the State failed to establish that Mr. Leza had the present capacity to waive thoserights, rendering his statement to police a violation of art. 38.22. .......................................................................26

POINT OF ERROR THREE.....................................................................................................................................30The 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 legallyessential to Mr. Lezas conviction and death sentence.........................................................................................30

POINT OF ERROR FOUR.......................................................................................................................................38The absence of a parties special issue in the jury charge at guilt innocence violated the rule in Apprendi v. NewJersey and Tison v. Arizona..................................................................................................................................38

POINT OF ERROR FIVE............................................................................................................................................71Mr. Lezas right to a unanimous verdict under the Texas Constitution was violated by a jury charge thatencompassed three separate offenses in a disjunctive clause without instructing the jury to deliver a unanimousverdict; Leza was harmed by this violation...........................................................................................................71

POINT OF ERROR SIX...........................................................................................................................................80Appellants Capital Trial Was Conducted Before State Judicial Officers Dependent upon Popularly-contested

Elections................................................................................................................................................................80POINT OF ERROR SEVEN.....................................................................................................................................89POINT OF ERROR EIGHT...................................................................................................................................102POINT OF ERROR NINE......................................................................................................................................107

A definition of the phrase criminal acts of violence as used in the first special issue of the jurys sentencing phaseinstruction 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, 3S.W.3d 547, 572 Tex. Crim. App. 1999). The trial court need not define such terms, because the jury is presumedto 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 entirelyundermined in this case, where the jury explicitly sought clarification. ...................................................................107The 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 grotesquesavagery to the slightest assault. So long as a defendant caused some bodily injury, or even simply physical pain, heis guilty of assault. Tex. Pen. Code 1.07(8); 22.01(a)(1). If the function of the death penalty is to provide aprincipled 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 veryunlikely to commit a grave act of violence, is called for. .........................................................................................107The Court failed to provide a definition limiting criminal acts of violence to only those property offenses thatoccur in conjunction with personal violence).............................................................................................................108

Criminal acts of violence can also be interpreted as including offenses that damage property, but not human lifeor welfare. For example, criminal mischief is a violent crime because it requires the intent to damage or destroyproperty. See Tex. Pen. Code 28.03; Ware v. State, 749 S.W.2d 852 (Tex. Crim. App. 1988). Thus a capitaldefendant is eligible for death if the jury thinks he might at some point in the future commit an act such asintentionally 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, isone which might occur. As stated above, a principled distinction between the death-worthy and those for whom alife is appropriate must be drawn, Lewis, 497 U.S. at 776. In the absence of the jury instruction they requested toenable such a distinction, the jurors in this case were left without guidance to prevent the substantial risk ofarbitrariness and caprice in their decision-making. Gregg v. Georgia, 428 U.S. 153, 188 (1976).............................108

By failing to adequately channel the jurys understanding of the phrase criminal acts of violence the trial courtviolated the Eighth and Fourteenth Amendments to the United States Constitution. Pursuant to Tex. R. App. P.

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44.2(a), if there is constitutional error, the appellate court must reverse unless it determines beyond a reasonabledoubt that the error did not contribute to the conviction. The sentences in this case must therefore be reversed andremanded.....................................................................................................................................................................108

POINT OF ERROR TEN........................................................................................................................................109POINT OF ERROR ELEVEN................................................................................................................................116

POINT OF ERROR TWELVE...............................................................................................................................125POINT OF ERROR THIRTEEN............................................................................................................................131

The trial court should have given a definition of the word probability as used in the first special issue of thejurys 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 acontinuing threat to society. ................................................................................................................................ ...131

Failing to adequately channel the jurys understanding of this term effectively deprived Mr. Leza of his rightsunder 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 reasonabledoubt that the error did not contribute to the conviction. Since the jury here could have applied any definition to theterm probability even interpreting it as requiring far less than a 50% chance of recurring violence- the sentencesmust be reversed and remanded..................................................................................................................................133

POINT OF ERROR FOURTEEN...........................................................................................................................134

CERTIFICATE OF SERVICE..................................................................................................................................140

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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......................................................................29TEX. 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

.............................................................................................................................................

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TO THE COURT OF APPEALS FOR THE FOURTH COURT OF APPEALSDISTRICT 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 4 th 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. Lezas automatic right to appeal (3 CR 838).

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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 isa capital case. Among the issues presented are:

The trial court committed fundamental error in instructing the jury during the guilt phasethat 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: Undersignedcounsel are of the opinion that oral argument would serve to emphasize and clarify thoseissues.

ISSUES PRESENTED

POINT OF ERROR ONE

The trial court erred in denying the motion to suppress Mr. Lezasvideotaped statement, because the State failed to establish that Mr. Lezavoluntarily waived his right to remain silent, and the statement wastherefore taken in violation of Mr. Lezas Fifth Amendment rights.

POINT OF ERROR TWOThe trial court erred in failing to grant Mr. Lezas videotapedstatement under Tex. Code Crim. Proc. art. 38.22 and38.23, because the State failed to establish that Mr. Lezaunderstood his rights as required under the Code of

Criminal Procedure, and the State failed to establish thatMr. Leza had the present capacity to waive those rights,rendering his statement to police a violation of art. 38.22.

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POINT OF ERROR THREEThe trial court erred when it refused to preclude the deathpenalty as a sentencing option or, in the alternative, toquash the indictment because a grand jury had notconsidered and alleged in an indictment the facts legallyessential to Mr. Lezas conviction and death sentence.

POINT OF ERROR FOURThe absence of a parties special issue in the jury charge atguilt innocence violated the rule in Apprendi v. New Jerseyand Tison v. Arizona

POINT OF ERROR FIVE

Mr. Lezas right to a unanimous verdict under the TexasConstitution was violated by a jury charge thatencompassed three separate offenses in a disjunctiveclause without instructing the jury to deliver a unanimousverdict; Leza was harmed by this violation

POINT OF ERROR SIXAppellants Capital Trial Was Conducted Before State

Judicial Officers Dependent upon Popularly-contestedElections.

POINT OF ERROR SEVENThe Texas Death Penalty 10-12 Rule results in Arbitrariness in theimposition of the Death Penalty

POINT OF ERROR EIGHT The trial court violated the First, Eighth and FourteenthAmendments of the United States Constitution by failing todefine the word militates so as to preclude considerationof the defendants age, race, sex, national origin, religion,political views or sexual orientation as a factor supporting a

death sentence.

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POINT OF ERROR NINEThe trial court violated the Eighth and Fourteenth Amendments when itfailed to define the phrase criminal acts of violence for the jury during thesentencing phase.

POINT OF ERROR TENThe trial court erred in failing to grant the Mr. Lezas motion for mistrial,after the State elicited testimony from a detention guard that did notcomport with the required notice provided the defense, and the testimonywas so inflammatory and prejudicial that the trial courts instruction tojurors to disregard it could not remedy the harm it caused.

POINT OF ERROR ELEVENMr. Lezas Due Process right under the Sixth Amendment to present

evidence in defense was violated when the trial court excluded the co-defendants statement against penal interest, in which she tookresponsibility for killing the complainant.

POINT OF ERROR TWELVE(a) The trial court violated the Eighth and FourteenthAmendments of the United States Constitution by failing toinstruct the jury that its consideration of victim impactevidence should not be conducted in connection with thefuture dangerousness special issue.

(b) The trial court violated the Eighth and FourteenthAmendments of the United States Constitution by failing toinstruct the jury that its consideration of victim impactevidence did not relieve the State of its burden to prove thefuture dangerousness issue beyond a reasonable doubt.

(c) The trial court violated the Eighth and FourteenthAmendments of the United States Constitution by failing toinstruct the jury to disregard victim impact evidence that

was not shown to be within the knowledge or reasonableexpectation of the defendant.

(d) The trial court violated the Eighth and FourteenthAmendments of the United States Constitution by failing to

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instruct the jury not to make a comparative worth analysisof the value of the victims to their families and thecommunity compared to the defendant or other members ofsociety.

POINT OF ERROR THIRTEEN The trial court violated the Eighth and FourteenthAmendments when it failed to define the word probabilityfor the jury during the sentencing phase.

POINT OF ERROR FOURTEENMr. Lezas rights to Brady material has been compromised due to actionsby the District Attorneys Office.

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STATEMENT OF FACTS

As part of his job as a cashier at Sams 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 Sams 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).

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Caryl Jean Allen lived alone, but was close with her sister, Gaynell Prao, who

often accompanied Allen to her various doctors appointments. (12 RR 27-31). Prao

became concerned when Allen missed a doctors appointment, and stopped by Allens

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 Allens 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 Allens cars 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).

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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 Allens 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

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kill Allen, because the blade had been broken off in Allens 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 Allens wounds

would have proven fatal. (12 RR 151). Dr. Frost testified that the knife found in Allens

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 Lezas 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

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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

Lezas handcuffs upon Greiners 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 Greiners 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. Lezas sister Amanda, Mr.

Leza spontaneously told Volkman, I cant believe that my sister told on me. It was her. I

know it because she doesnt like me because of my wife. She told metold on me

because I told her what I had done. No one knew that it was me that did it. I would have

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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 Allens 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 Greiners 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

Lezas 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 114115). To ensure

that the match was not merely random, Sailors conducted a random match probability

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to determine how common the DNA sample profile was. Sailors ultimately concluded

that the DNA profile of the blood found on Mr. Lezas 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. Lezas 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).

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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

ofApprendi and Tisons requirement that the jury pass upon elements

that increase a defendants punishment above a statutory maximum.

The interplay between Texass 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. Lezas case

allowed the jury to deliver a guilty verdict on three separate instances presented in the

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apprise the defense of the guards 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. Lezas 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

complainants thoat; such evidence was relevant to the jurys 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 Bradyin failing to

properly inform Mr. Leza of potentially exculpatory evidence pertaining

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

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obtaining warrants, and who may have been involved in the

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

ARGUMENTS AND AUTHORITIES

POINT OF ERROR ONEThe trial court erred in denying the motion to suppress Mr.

Lezas videotaped statement, because the State failed toestablish that Mr. Leza voluntarily waived his right to remainsilent, and the statement was therefore taken in violation ofMr. Lezas 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. Lezas 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 defenses motion to suppress

Appellants videotaped statement as well as an oral statement he made to Officer

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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

Appellants 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, maam. (SX1 12:55:19-12:55:24). She then

repeated, Youve got some outstanding traffic tickets, so Ive 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

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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: Its just Warning of Arrest. Its exactly

what I read you. Before youre asked any questions. And all youre doing is put that you

understand the rights. Youre signing your name, yeah you understand your rights.

Youre under arrest right now for just traffic tickets. You know, its no big deal. (SX1

12:57:03).

Mr. Leza signed and dated the warnings form, per Detective Greiners

instructions. (SX 2). After securing Mr. Lezas 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 drivers license number, and the address of the apartments where

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he stayed with his sister. Despite Greiners 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 forms 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 Greiners 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.

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Throughout Mr. Lezas 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 familys

cooperation, along with other unspecified evidence, was more than enough to secure a

conviction against him for murder. The participation of Mr. Lezas family in the

investigation was stressed. Detective Greiner allowed Mr. Leza to visit with each of his

two sisters early in Mr. Lezas 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. Lezas 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 dont 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,

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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. Youre not the kind of man whos gonna let her take it all by herself. She

already told me everything. Thatsnot 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 cant take that back. (SX

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1). Greiner told Mr. Leza that Treveno wanted to take the blame for him because she

loved him, but its 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 thats going to

allow her to say that? Its 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 its commendable for her to do this,

but its not for a man. You need to sit here and be able to tell the truth. Itsbetter. To sit

and lie about itto a jury and a judge, it doesnt look good. (SX1). Greiners 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 dont want your mommy

sitting out there much longer. I just want to get through this portion. Its 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. Lezas 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

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woman for a while and then asked her for some money. Throughout her interrogation,

Greiner had asked Mr. Leza whether her theory was correctthat 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 Greiners 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 didnt know what I was doing. (SX1).

Greiners 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 its

hard. You cut here whereI 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. Lezas notion of

manhood, Greiner then told Mr. Leza, Theres 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 throatwhat was the next thing? Mr. Leza indicated

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that was it. That, however, was not it; Greiner continued to ask Mr. Leza questions

about what happened after Allens throat had been cut. Appellant could not tell her where

he and Treveno took Allens belongings, and Appellant stated that he could not

remember where they went after leaving Allens 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 complainants chest, a detail that was not discovered until the medical

examiner conducted the autopsy on Allens 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 Amendmentright.

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 defendants statement is admissible

at trial only if the prosecution demonstrates that the defendant waived his rights

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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 alsoTague 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 Courts

interpretation of what actions on a suspects part are required in order to invoke his right

to remain silent. InBerghuis 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 understoodthe Miranda warnings, and has not

invokedhis 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 accuseds invocation of the right to remain silent, the accuseds 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, citingButler v. U.S., 441 U.S. 369, 373 (1979).

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Thus, althoughBergheis 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 States burden to show, perBergheuis, that Mr. Leza did not invoke his

right to remain silent andthat 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. Lezas waiver was not the product of a free and deliberate choice

The circumstances under which Mr. Lezas statement was taken did not afford him

the opportunity to make a free and deliberate choice to waive his right to remain silent. A

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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 Trevenos 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. denied488 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

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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. Lezas 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 defendants 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

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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 Greiners 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 States 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 courts failure to suppress Mr. Lezas 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

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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. Lezas 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. Lezas conviction.

Other than Mr. Lezas statement that he slit the complainants 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.

Lezas contention early in his interrogation was that he merely assisted Treveno carry out

the complainants belongings after the complainant was already dead. The States

forensic evidence, consisting of a bloody footprint and the complainants blood on Mr.

Lezas shoe, comports with Mr. Lezas initial accounting of what happened equally as it

does the States. Establishing that Mr. Leza was in the apartment, and even that he took

the complainants belongings, does not establish the required element that he was an

active participant in the killing.

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Without Mr. Lezas statement, the States evidence would have been factually

insufficient to sustain a conviction for capital murder; indeed, without Mr. Lezas

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.

Lezas video recorded statement was crucial to the States case against Mr. Leza, and this

Court cannot find, beyond a reasonable doubt, that its erroneous admission into evidence

contributed to the jurys guilty verdict as well as to the jurys 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. Lezas 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 TWOThe trial court erred in failing to grant Mr. Lezas videotaped

statement under Tex. Code Crim. Proc. art. 38.22 and38.23, because the State failed to establish that Mr. Lezaunderstood his rights as required under the Code ofCriminal Procedure, and the State failed to establish thatMr. Leza had the present capacity to waive those rights,rendering his statement to police a violation of art. 38.22.

Mr. Lezas 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. Lezas 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

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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 Courts decision of June 1, 2010, in Burgheis, appears to have further

circumscribed suspects 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, discussedsupra 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 suspects

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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 occurredand 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

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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 defendants substantial rights requires reversal

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of a defendants 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. Lezas 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 deathpenalty as a sentencing option or, in the alternative, toquash the indictment because a grand jury had notconsidered and alleged in an indictment the facts legallyessential to Mr. Lezas 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

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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

Defendants 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 inRing, 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 states death penalty, and in

Blakely, supra, the Supreme Court clarified what it meant by the term maximum

penalty.

The maximum penalty forApprendi/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. Lezas 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

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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 defendants punishment beyond

that maximum; it has only the potential to reduce the sentence already authorized by the

jurys 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 inBlakely, 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 states sentencing reform act, the defendants 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

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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 forApprendi purposes is the maximum sentence a jud may impose solely onthe basis of the facts reflected in the jury verdict or admitted by thedefendant In other words, the relevant statutory maximum is not themaximum sentence a judge may impose after finding additional facts, butthe maximum he may impose without any additional findings. When a

judge inflicts punishment that the jurys verdict alone does not allow, the jury has not found all the facts which the law makes essential to thepunishment 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 jurys 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 a34


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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 prosecutions burden, and jurys 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 prosecutors discretion is therefore so broad as to offend the

federal and state constitutional guarantees of equal protection under the law. The equal

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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, Ringand 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. Lezas case.

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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. Lezas Sixth Amendment right to trial by

jury. Ringteaches 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 Courts reconsideration.

Mr. Leza was harmed by the trial courts 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

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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 Appellants Sixth

Amendment rights underApprendi 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,

2Tison v. Arizona, 481 U.S. 137, 151 (1987)3Ring v. Arizona, 5

leza brief final

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