Ahead, what the series doesn't show about the woman responsible for the icon's death. In fact, she uprooted her life for Selena. In , she was promoted to running Selena's two boutiques in Texas, essentially becoming a trusted part of Selena's life.
But their relationship had a dark side. She was very possessive of Selena. She'd get, like, very angry if you crossed her.
She would play so many mind games, say people had said things they hadn't said," Gomez told The Washington Post. I knew that I had finished a certain piece, but I would come back from a trip to New York and the hems would be ripped out. It was very strange. Soon, customers were complaining about unfulfilled orders.
She'll be eligible for parole in Nothing will bring my daughter back. Thereafter, appellant gave her written statement. After hearing other testimony and argument, the trial court denied appellant's pretrial motion to suppress her written statement. In its findings of fact and Conclusions of law, the trial court found appellant knowingly, intelligently and voluntarily waived her rights and gave a statement to police. During trial, the trial court reconsidered appellant's motion to suppress after admitting audiotapes made during the parking lot standoff and after hearing the testimony of two members of the special negotiation team who facilitated appellant's surrender.
Appellant contends the officers' testimony and the following excerpt of the audiotape of the negotiations reflects her clear and unequivocal invocation of her right to counsel:. I don't wanna live. Richard Garza? Officer Larry Young, a member of the negotiation team, acknowledged that he offered to call an attorney for appellant, but testified that he did not promise appellant an attorney as soon as she surrendered to police.
Officer Isaac Valencia, another member of the negotiation team, testified that the team offered to call an attorney because appellant "needed to have a hope to talk to somebody else. Valencia said Garza was apprehensive about talking to him, but assisted him after Valencia stressed that he was not conducting a criminal investigation but gathering personal information to build a rapport with appellant. Both officers testified they did not attempt to procure an attorney for appellant after her surrender.
After hearing argument outside the jury's presence, the trial court denied appellant's motion to suppress her written statement. In its findings of fact and Conclusions of law, the trial held the negotiations with police during the standoff did not constitute custodial interrogation and appellant never clearly and unambiguously invoked her right to counsel during the standoff.
Reviewing the record in light of the totality of the circumstances surrounding the parking lot standoff, we find the record supports the trial court's findings of fact and Conclusions of law. The record reflects that appellant did not clearly and unambiguously invoke her Fifth Amendment right to counsel as provided in Miranda.
At most, the negotiation team offered her an opportunity to talk with an attorney. Moreover, appellant did not invoke the right to counsel during custodial interrogation as required by Miranda. Although appellant was clearly surrounded by police and could not escape the parking lot during the standoff, she was armed and not restrained. The communications between the negotiation team were clearly not intended to elicit an incriminating response.
See Cooks v. The negotiations regarding her surrender, therefore, cannot be characterized as custodial interrogation. See Hernandez v. Because she did not invoke her right to counsel, police officers acted properly by providing her with the Miranda warnings and obtaining a waiver of her rights before initiating custodial interrogation at the police station.
Accordingly, we overrule appellant's fourth point of error. In her fifth point of error, appellant asserts her confession is involuntary and therefore, inadmissible under article Appellant claims Officers Young and Valencia violated these provisions when they repeatedly told her during negotiations that they wanted to help her, that it was in her best interest to publicly tell her story, and that the Lord, Himself, wanted her to publicly tell her story.
In spite of the inappropriateness of these warnings, appellant asserts, the trial court admitted her written statement over objection. Appellant, however, did not urge an article Appellant urged an article The trial court heard no evidence regarding the standoff negotiations at the pretrial hearing.
Appellant voiced another objection to the admissibility of her statement after the trial court admitted the audiotapes and the testimony of Officers Young and Valencia. At the hearing outside the jury's presence, appellant objected to the admissibility of the statement on the ground that she invoked her right to counsel during the standoff and the State dishonored her request. The trial court entertained no objection and heard no argument regarding the officers' allegedly inappropriate warnings at this hearing.
Finally, appellant reurged all of her previous objections when the trial court admitted her written statement. Because appellant did not object at trial on the ground she now asserts on appeal, she waives review of this point of error. See Serrano v. Accordingly, we overrule appellant's fifth point of error. In her sixth through eleventh points of error, appellant complains of trial error in admitting evidence of extraneous misconduct and in failing to give the jury a limiting instruction regarding extraneous misconduct.
In her seventeenth point of error, appellant contends she is entitled to a new trial because the documents related to the extraneous offense were lost or destroyed without her fault. An appellate court reviews the trial court's decision to admit or exclude evidence under an abuse of discretion standard.
See Green, S. Therefore, as long as the trial court's ruling is within the zone of reasonable disagreement, the appellate court will not intercede.
See Montgomery, S. In point of error six, appellant contends the trial court abused its discretion in admitting evidence of extraneous misconduct because the State did not give adequate, timely notice as required by rule b of the Texas Rules of Criminal Evidence. Former rule b prohibits the admission of evidence of extraneous offenses committed by the defendant for the purpose of proving her character by showing she acted in conformity with that character on the occasion in question. Evidence of extraneous misconduct is admissible, however, to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident provided that upon timely request the State provides reasonable notice in advance of trial of its intent to introduce evidence of the extraneous misconduct in its case-in-chief.
At a pretrial hearing on discovery motions held two months before trial, appellant asked the trial court to rule on her rule b motion requesting notification of the State's intent to introduce evidence of an extraneous offense in its case-in-chief. At that time, the State indicated its intent to introduce evidence that Quintanilla thought appellant was embezzling funds and confronted her about it. Appellant's sixth point of error is overruled.
In her eighth point of error, appellant contends the trial court abused its discretion in admitting evidence of extraneous misconduct during the guilt-innocence phase of the trial because the evidence was irrelevant and prejudicial, and the State did not prove embezzlement beyond a reasonable doubt.
To preserve error in the admission of extraneous offenses under the rules of evidence, the opponent of extraneous offense evidence must first object under rule b. See Santellan, S. The State must then "show the proffered evidence is relevant apart from its tendency to show that the defendant is a criminal. At the defendant's request, the trial court should then require the State to articulate the limited purpose for which the evidence is offered.
In making a determination as to the relevancy of the evidence, the trial court must, under rule b of the rules of criminal evidence, determine, "at the proffer of the evidence, that a jury could reasonably find beyond a reasonable doubt that the defendant committed the extraneous offense. If the trial court determines the evidence is relevant, the defendant must further object under rule and obtain a ruling as to whether the probative value of the evidence is substantially outweighed by its prejudicial effect.
Appellant did not raise a rule b or a rule objection when Quintanilla testified at trial that he thought appellant was embezzling funds from the Selena fan club. Moreover, appellant did not object on the basis of rules b and to the testimony of complainant's sister, Suzette Arriaga. Arriaga testified, over a hearsay objection, that complainant intended to fire appellant because she thought appellant was embezzling funds from complainant's company.
Appellant's eighth point of error is overruled. In points ten and eleven, appellant contends the trial court erred by not giving the jury a limiting instruction regarding extraneous misconduct as required by rule a of the Texas Rules of Criminal Evidence and by refusing her request to instruct the jury in the court's charge as to the limited use of the extraneous offense evidence and the standard of proof it must apply in considering the evidence.
Former rule a requires the trial court, upon request, to restrict evidence to its proper scope and to instruct the jury accordingly, when evidence is admitted for a limited purpose. A party opposing evidence, nevertheless, has the burden of objecting and requesting a limiting instruction at the introduction of the evidence. See Garcia v. Once admitted, evidence that might have been inadmissible for certain purposes if the proper objection had been made is not limited in its use. In this case, appellant did not make a proper objection to the admission of unadjudicated extraneous offense evidence and did not request a limiting instruction when the State proffered the evidence at the guilt-innocence phase of trial.
Therefore, appellant forfeited any error and the trial court admitted the evidence as probative of any question to which it was relevant.
Thus, the trial court did not err by not charging the jury with a limiting instruction regarding extraneous offense evidence. We overrule appellant's tenth and eleventh points of error.
In point of error nine, appellant maintains the trial court erred in admitting harmful hearsay regarding extraneous misconduct in violation of her right to confront and cross-examine witnesses as guaranteed by the United States and Texas Constitutions.
Appellant specifically complains about the admissibility of Perez's statement that complainant did not trust appellant and Arriaga's testimony that complainant was going to fire appellant because complainant thought appellant was embezzling funds from her company.
The State contends appellant did not preserve error in both instances. In the alternative, the State contends Arriaga's testimony was admissible as an exception to the hearsay rule. On direct examination, Perez testified that he and complainant removed appellant as a signatory to complainant's business checking accounts. When asked why they removed appellant as a signatory, Perez testified, over a hearsay objection, that "Selena and I didn't trust her.
I remember there was a phone conversation where Selena said that she couldn't trust her anymore. It was after that meeting that took place at the shop. Generally, a party waives error regarding improperly admitted evidence if the same evidence is later admitted without objection. See Rogers v. In this case, Perez repeated his previous statement that complainant did not trust appellant without objection.
On the other hand, appellant preserved error as to her claims that Arriaga's testimony constituted inadmissible hearsay. Arriaga testified she spoke with complainant in her home a week or so after the meeting. When the prosecutor asked Arriaga about her conversation with complainant, appellant objected to the testimony as hearsay and requested a limiting instruction. The prosecutor argued Arriaga's testimony was an exception to the hearsay rule as a statement of complainant's emotional intent or state of mind.
Outside the jury's presence, the trial court heard argument from counsel regarding the testimony. Appellant's trial attorney argued the testimony was clearly hearsay as follows:. Selena's not here for us to cross-examine. It is not a present sense about the offense itself, which is when that rule can come into play.
Going to fire doesn't have anything to do with the shooting and I object. We can't cross-examine Selena, she's not here, she's not available as a witness.
Both sides agreed the statement, "I'm going to fire Yolanda," was a statement of what complainant was going to do, although they disagreed whether the statement went to complainant's state of mind. The trial court overruled the objection. Arriaga then testified that complainant "said that she was going to fire Yolanda because she thought she was embezzling from her company. Hearsay is a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
Hearsay is inadmissible at trial except as provided by statute or by the rules of criminal evidence. Former rule 3 of the rules of criminal evidence provides for the admissibility of a "statement of the declarant's then existing state of mind, emotion, sensation, or physical condition such as intent, plan, motive, design, mental feeling, pain, or bodily health "; it does not permit a statement of memory or belief to prove the fact remembered or believed.
In this case, Arriaga's statement consists of two distinct clauses. In the first, Arriaga states complainant told her she was going to fire appellant. Although appellant specifically objected to this clause at trial on the ground that the statement did not go to complainant's state of mind, she conceded the clause was a statement of what complainant was going to do.
Bordens, Inc. Moreover, complainant's intent to terminate appellant's employment was relevant to show the state of the relationship between complainant and appellant at the time of the shooting and to establish a motive for the shooting.
Therefore, the statement was admissible as a state-of-mind exception to the hearsay rule. The second clause of Arriaga's statement, that complainant thought appellant was embezzling from her company, does not fall within the rule 3 exception.
Instead, the clause denotes complainant's belief about appellant's past actions, which rule 3 specifically prohibits. Therefore, the trial court abused its discretion in admitting the second clause of Arriaga's statement.
Nevertheless, our review of the record in its entirety leads us to conclude that the error did not affect a substantial right of the appellant. A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. See King, S.
United States, U. There are several reasons the admission of Arriaga's statement is harmless. First, her testimony regarding complainant's belief that appellant was embezzling funds was brief. The State did not offer any documentary evidence to support Arriaga's embezzlement allegation and did not pose any additional questions to Arriaga regarding the allegation.
Second, any potential harm was defused by other evidence, which the trial court admitted without proper objection. For instance, Quintanilla testified that he confronted appellant in complainant's presence about discrepancies in fan club records and his intent to pursue the matter legally. Perez also testified that he and complainant did not trust appellant because appellant could not give an adequate explanation to their questions regarding business matters.
He further testified that complainant fired appellant. Third, the State did not emphasize Arriaga's statement in closing argument at the guilt-innocence phase of trial. Instead, the prosecutor recounted Arriaga's testimony as follows:. But there was some evidence that she needed to finish that business in Mexico. Even if the jurors considered Arriaga's statement, it is unlikely they would have placed any substantial weight on it. Accordingly, the admission of this evidence was not substantial or injurious.
Appellant, nevertheless, contends the admission of Perez's and Arriaga's testimony violated her rights under the Confrontation Clause of the United States and the Texas Constitutions. See Idaho v. Wright, U. Appellant, however, objected at trial on the ground of hearsay, not on the ground that the admission of hearsay violated her right of confrontation under either the state or federal constitutions.
Therefore, appellant did not preserve error for appellate review. See Serrano, S. Accordingly, we overrule appellant's ninth point of error. In point of error seven, appellant contends the trial court abused its discretion and violated article Appellant also argues the trial court erred by overruling her request for production of the documents as required by rule of the rules of criminal evidence when Quintanilla testified about fan club records at trial.
Because she was denied discovery of these documents, appellant claims she was denied due process of law, the right to confront and cross-examine witnesses, and the effective assistance of counsel when Quintanilla testified he believed appellant was embezzling funds from the fan club.
A defendant in a criminal trial does not have a general right to discovery of evidence in possession of the State. See Kinnamon v. Nevertheless, decisions involving pretrial discovery of evidence which is not exculpatory, mitigating, or privileged are within the discretion of the trial court.
In this case, the trial court permitted appellant and the State limited discovery of complainant's business records that were in Quintanilla's possession by means of a subpoena duces tecum. At the trial court's request, Quintanilla turned over two boxes of business records to his attorney who remitted the boxes to the State. Quintanilla stated he thought the fan club records were in one of the boxes.
The trial court inspected the boxes in camera and disclosed several documents to both parties, but did not disclose the fan club records to either party. Appellant tendered the documents in her possession to the trial court as Court Exhibit 1, but neither party ever offered the documents at trial.
The undisclosed documents remaining in the two boxes after the trial court's inspection were not offered into evidence or placed in the trial court's file and are not before this Court. As a general rule, evidence willfully withheld from disclosure under a discovery order should be excluded from evidence.
See Pena v. There is no evidence the State willfully withheld fan club records from appellant. Moreover, there is no evidence the State ever possessed the records or had access to the records, apart from those the trial court disclosed to appellant.
Instead, the record reflects that the trial court exerted its discretion in providing limited discovery of complainant's business records after reviewing the content of the boxes in camera. Because the documents and records were Quintanilla's private papers and not part of the State's file, we cannot say the trial court abused its discretion in disclosing the documents in Court Exhibit 1 to both parties and declining to disclose others.
Appellant also contends the trial court abused its discretion in denying her request for production of Selena fan club records when Quintanilla testified at trial. Former rule of the Texas Rules of Criminal Evidence provides when a "witness uses a writing to refresh his memory for the purpose of testifying either while testifying or before testifying, an adverse party is entitled to have the writing produced at the hearing to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.
Nevertheless, appellant is only entitled to fan club records if Quintanilla actually used the records to refresh his memory. See Pondexter v. In this case, there is no evidence that Quintanilla used the fan club records to refresh his memory during or before his testimony. Outside the jury's presence, Quintanilla testified about the specific documents he thought were proof that appellant was embezzling funds, but he never stated he used those documents to refresh his memory at any time.
Therefore, appellant's contention under rule must fail. Because the trial court did not abuse its discretion in denying appellant's pretrial discovery request for fan club records and her request for the documents during trial, we overrule appellant's seventh point of error.
In her twelveth point of error, appellant alleges the trial court did not properly inform the jury regarding the voluntariness of her conduct by overruling her objection to paragraph six of the jury charge and by refusing a requested instruction on the issue. In Defendant's Objections to the Charge, appellant specifically objected to paragraph six of the court's charge, which applies the law to the facts of the case.
Appellant argued the paragraph did not adequately apply the law to the facts as proven in the case because it did not limit the jury's determination of voluntary conduct to her specific conduct at the time the gun discharged.
Appellant asserted that the facts reflected, at the time of the fatal shot, she was threatening suicide by holding a loaded, cocked revolver to her head and the gun discharged as she waved it toward the door in her motel room. Appellant requested the following instruction regarding voluntariness of her conduct:. Conduct is not rendered involuntary merely because the person did not intend the results of her conduct.
The trial court overruled the objection to the charge and refused the requested instruction. On appeal, appellant asserts paragraph six is defective because it informs the jury not to consider voluntariness unless and until it is convinced appellant acted with the intent or knowledge that the death would occur, thus precluding a juror wavering on intent from considering the voluntariness issue. Appellant claims her requested instruction cures the defect because "it informs the jury that if it believes the death occurred, it may consider the voluntariness of the act which caused the death.
Proof of both a culpable mental state and a criminal act, committed voluntarily, are necessary to support criminal liability. See Alford v. Only if the evidence raises an issue regarding the voluntariness of the conduct charged must the trial court instruct the jury to acquit if there is reasonable doubt as to whether she voluntarily engaged in the conduct of which she is accused.
See Brown v. In this case, the trial court did not err in instructing the jury in paragraph six of the charge and in refusing appellant's requested instruction. The record reflects the State charged appellant with murder by shooting complainant with a firearm. The trial court instructed the jury to find appellant guilty if it found beyond a reasonable doubt that appellant committed the act of shooting complainant with a firearm with the requisite mental state.
It further instructed the jury to acquit appellant if it found she did not voluntarily shoot complainant with a firearm. The charge did not condition the jury's consideration of the voluntariness of the act of shooting complainant on whether it also found appellant had the culpable mental state to commit the act.
Appellant's requested instruction, on the other hand, summarizes facts derived from trial testimony, which article Accordingly, we overrule appellant's twelveth point of error. In her seventeenth point of error, appellant contends she is entitled to a new trial because original documents, specifically those related to the extraneous offense of embezzlement tendered to the trial court at a pretrial hearing for in camera inspection, have been lost or destroyed without her fault.
At the time of appellant's trial, Rule 50 e of the Texas Rules of Appellate Procedure provided as follows:. If the appellant has made a timely request for a statement of facts, but the court reporter's notes and records have been lost or destroyed without appellant's fault, the appellant is entitled to a new trial unless the parties agree on a statement of facts.
Appellant believed the State planned to charge her with embezzlement or introduce evidence at the murder trial that she was embezzling funds from the Selena fan club. To prepare her defense, appellant filed a discovery motion requesting the State to produce documents and papers that the State obtained from appellant, and records, documents, or summaries upon which a claim can be made that appellant was embezzling money from complainant.
She sought the production of similar documents from complainant's father, Abraham Quintanilla, by means of a subpoenas duces tecum. Quintanilla filed a motion to quash the subpoenas. After an evidentiary hearing, the trial court ordered Quintanilla to turn over records regarding Selena business entities to the trial court. Quintanilla turned over two boxes of documents to his attorney, who remitted the boxes to the trial court.
A few weeks later, at a hearing on another motion, the trial court granted appellant's request that the State produce documents that were obtained from appellant, except for papers belonging to Quintanilla.
At the same hearing, the trial court denied appellant's request for documents or summaries upon which a claim could be made that appellant was embezzling money. Appellant then requested the trial court to seal the two boxes of documents obtained from Quintanilla if the court was not going to inspect the documents. The trial court took the request under consideration and indicated that it would inspect, in camera, the records from Quintanilla. A month later, at another pretrial hearing, the trial court indicated that it had reviewed two boxes of Quintanilla's documents and would turn over one or more documents to the State and to appellant.
At trial, Quintanilla testified he believed appellant was embezzling funds from the Selena fan club and confronted her about his suspicions. Outside the presence of the jury, Quintanilla stated he based this belief on a letter appellant had written to Bank One of San Antonio and on forged checks, which were payable to appellant.
He said he gave the fan club records to his attorney and he thought his attorney gave them to the trial court. He further stated that of the two boxes turned over to the court, one box contained the checks and the letter appellant wrote and the other box contained records of another Selena business entity.
Under oath, one of appellant's trial attorneys testified appellant had not received Selena fan club records, although appellant had received some records of another Selena business entity. The trial court stated it had inspected the two boxes of documents on two occasions and turned over to appellant all matters to which the trial court believed she was entitled. The trial court also indicated it reviewed other fan club records that it declined to turn over to appellant.
Following a brief recess, appellant's trial counsel tendered the records that the trial court had provided to appellant as Court Exhibit 1, but the documents were not admitted into evidence. The trial court sentenced appellant on October 25, Appellant filed a Motion for New Trial and Arrest of Judgment on November 22, , alleging she was denied the effective assistance of counsel because the trial court refused to allow discovery of financial records relating to allegations of embezzlement.
On December 5, , Quintanilla appeared on a television show with the forged checks and the Bank One letter to support his claim that appellant was embezzling funds from the Selena fan club. A videotape of the television program and an English translation of the transcript of the program were admitted as defense exhibits. The trial court denied the motion. On August 3, , appellant filed with this Court her third motion to supplement the record with the originals of all sealed records that were produced by the State and complainant's father for in camera inspection.
On August 8, , this Court ordered the trial court to certify and transmit 1 all sealed records produced by the State and by complainant's father for in camera inspection and 2 all records relating to embezzlement charges, which the trial court turned over to appellant and were admitted as Court Exhibit 1. The trial court clerk informed this Court that appellant's criminal file and exhibit file did not contain the documents requested.
On October 15, , appellant filed a motion to supplement the record with affidavits of various court personnel stating the sealed records produced for in camera inspection were not in the trial court's possession.
Appellant alleged the documents had been lost or destroyed without her fault. On November 14, , the State filed a motion to supplement the record with affidavits, one of which stated that Court Exhibit 1 had been located and forwarded to this Court. Because other documents produced by the State and by complainant's father for in camera inspection had not been located, we ordered the trial court to conduct an evidentiary hearing to determine whether any portions of the record were missing and whether they were missing without appellant's fault.
After an evidentiary hearing, the trial court made the following findings of fact and Conclusions of law:. After reviewing those portions of the statement of facts and transcript submitted to this Court as Dx , the Court finds that those portions of the record do not support Appellant's contention that some "exhibits" have been lost or destroyed. Specifically, though there are several references in the statement of facts and transcript to 1 the documents subpoenaed from Abraham Quintanilla, 2 the mental health records of Rosario Garza, 3 the records of attorney Albert Huerta, and 4 a "manager for life" contract, Appellant never made these documents part of the trial record for appellate review.
The clerks of the th and th District Courts never had custody or possession of whatever it is that appellant contends is lost or destroyed. Appellant never requested that they make it a part of the record.
The official court reporters of the th and th District Courts never had custody or possession of whatever it is that Appellant contends is lost or destroyed.
Other than Court Exhibit No. All exhibits which were properly marked, offered and admitted into the record are accounted for and are in the custody of the Fourteenth Court of Appeals. Whatever it is that Appellant contends is lost or destroyed, other than Court Exhibit No. Appellant never made a formal or informal bill of exception regarding whatever it is that Appellant contends is lost or destroyed. The great bulk of material that remained in the courtroom and the surrounding area after the trial was removed to the office of Appellant' counsel by a delivery service.
Exact copies of the documents subpoenaed from Abraham Quintanilla have been substituted in their entirety for the purposes of this hearing only. This specific instruction is not part of the record. Both clerks and the official court reporter of the th District Court specifically recall not having been instructed to do this. The Court learned at this hearing that it is the custom and practice in Harris County to require a written order to facilitate the inclusion of in camera documents in the Court's file.
Because Tex. Appellant does not specifically dispute the trial court's findings of fact and Conclusions of law on appeal. Instead, she makes a general assertion that some of the original papers and exhibits on file or admitted at trial were lost or destroyed without her fault. After reviewing the record, we perceive nothing that shows the trial court abused its discretion in making its findings of fact or drawing incorrect Conclusions of law from the findings of fact.
See Wynne v. None of the documents that form the basis of appellant's complaint were admitted as evidence or placed in the trial court's file; consequently, none of the documents were ever part of the record. Therefore, rule 50 e affords appellant no relief. Accordingly, we overrule appellant's seventeenth point of error. In point of error fourteen, appellant contends the trial court committed reversible error in overruling her objections and denying her motion for mistrial based on the prosecutor's comments on her failure to testify.
To be proper, jury argument must encompass one or more of the following: 1 summation of the evidence presented at trial; 2 reasonable deduction from that evidence; 3 answer to opposing counsel's argument; or 4 a plea for law enforcement. See Cockrell v. A comment on the defendant's failure to testify violates the privilege against self-incrimination contained in the Fifth Amendment to the United States, Article I, Section 10 of the Texas Constitution, and Article See U.
V; Tex. To determine whether a prosecutor's remark constituted an impermissible reference to an accused's failure to testify, we consider whether the offending language, when viewed from the jury's standpoint, was manifestly intended or of such a character that the jury would necessarily and naturally take it as a comment on the accused's failure to testify.
See Montoya v. It is not sufficient that the offending language might be construed as an implied or indirect allusion to the defendant's failure to testify; the implication that the offending language made reference to the failure to testify must be a necessary one. See Swallow v. On the other hand, "[l]anguage that can reasonably be construed to refer to a failure to present evidence other than from the defendant's own testimony does not amount to comment on failure to testify.
In applying this standard, we consider the facts and circumstances of each case to determine whether the language used was an impermissible comment.
See Montoya, S. Appellant complains of the following two arguments, in which the prosecutor commented on appellant's failure to give an adequate explanation for her actions:. Quintanilla suspected her [appellant] of a lot of things and confronted her with it in front of Selena and in front of Suzette.
What's happened? She was never able to give a satisfactory explanation, she could never explain why these people that sent in their money hadn't gotten anything. SKURKA: "And, again, you've got a registered nurse here, folks, somebody that knows about reporting this kind of stuff and documenting this evidence and everything. How come she doesn't report it down in Mexico?
How come she doesn't do that? How come she drives her sister back to San Antonio and then comes back to Corpus and never reports it?
Neither argument, in this case, was a comment on appellant's failure to testify at trial. The first argument was a summation of the evidence. Quintanilla, Arriaga, and Perez testified that appellant was unable to give an adequate explanation for fan club discrepancies and other document discrepancies when confronted with their suspicions. The second argument was a rhetorical question based upon a reasonable deduction from the evidence. A rhetorical question, however, may constitute an impermissible comment on the failure to testify if it is accompanied by an statement pointing to the lack of an explanation.
She said that the evidence, which consisted of shoes worn by Selena when she was killed, would have somehow helped prove that she accidentally shot Selena. However, her request for a new trial was denied, Radar Online reported. She was fired after money went missing from the store. Selena had met Saldivar at the motel to get financial documents from her related to the boutique. Saldivar first told Selena that she had been raped and so Selena and Saldivar went to an emergency room in Aransas Pass, Texas.
Carla Anthony, a registered nurse there, testified that she saw Saldivar and Selena that morning around 10 a. Saldivar looked depressed and said she was raped in Mexico. They instructed Saldivar to speak to the police in San Antonio because the case was out of their jurisdiction, she said.
She was shot at a room at the Days Inn just shortly before noon. Saldivar still claims today that she accidentally shot Selena. She was found guilty of murder. After Selena was shot, she ran to the motel lobby and collapsed. Saldivar surrendered to police after a more-than-nine-hour standoff at the motel parking lot, Houston Chronicle reported.
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