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Brenda Delgado v. the State of Texas
Citation: Not availableDocket: 05-19-00821-CR
Court: Court of Appeals of Texas; October 21, 2021; Texas; State Appellate Court
Original Court Document: View Document
Brenda Delgado was convicted of capital murder and sentenced to life imprisonment without parole. She raised eleven issues on appeal, which the court found to have no reversible error, affirming the trial court's judgment. The case involved the shooting of Dr. Kendra Hatcher on September 2, 2015, in Dallas, orchestrated by Delgado after Hatcher began dating Delgado's ex-boyfriend. Kristopher Love and Crystal Cortes carried out the murder in exchange for money or drugs from Delgado. Following the crime, Delgado fled to Mexico but was indicted in October 2015 and arrested in April 2016, with her trial commencing in May 2019. Key evidence included surveillance footage of a black Jeep Cherokee, recognized by Jose Ortiz, who had loaned it to Delgado and Cortes. Ortiz testified that after seeing the Jeep on the news, Delgado attempted to downplay its significance, suggesting it might have been involved in drug activity. She urged Ortiz to hide the Jeep and offered to help paint it a different color to avoid police detection. Ortiz ultimately reported his suspicions to the police, providing information about the Jeep's use and his interactions with Delgado and Cortes, clarifying he had no knowledge of any murder plans. Ortiz drove his Jeep, while the appellant and Cortes used a BMW borrowed from Roberto Menendez, who testified that the car had significant mechanical issues. On September 1, appellant asked Menendez to fix her Lexus, and they switched cars. Menendez was unable to reach appellant on the evening of September 2 when they were supposed to meet to swap cars, and she eventually contacted him later that night while he was dining. Cortes, who cooperated with the prosecution following a plea deal, implicated appellant in the murder of Kendra Hatcher, stating that appellant harbored resentment towards Hatcher because she was dating appellant's ex-boyfriend, Paniagua. Appellant expressed a desire to "get rid of" Hatcher and solicited Cortes for help in planning the murder. The two discussed various methods of killing Hatcher, including using heroin, a sedative, or a gun, and sought assistance from others, including Love and his friends. They ultimately decided that shooting Hatcher would be the quickest method. Cortes and appellant attempted to purchase a gun but reconsidered due to the risk of being implicated. Love later acquired a Smith & Wesson handgun and showed it to them. Although Cortes was initially designated as the shooter, they switched roles because Cortes was more familiar with Dallas. Cortes also inquired about a silencer for the gun via social media. Evidence from appellant's phone revealed a video discussing the silencer. Cortes testified that appellant promised to compensate her and Love for the murder, claiming to be affiliated with a cartel, offering Love drugs and money, and cash for Cortes. Appellant flaunted her wealth before the murder and tracked Paniagua using his iPhone account. They selected September 2 to execute their plan, intending to stage it as a robbery gone wrong before Hatcher’s planned trip to Mexico with Paniagua. Cortes testified about the planning and execution of the murder of Hatcher, detailing how she and the appellant followed Hatcher's daily routine to determine the best time and location for the act. They gained access to Hatcher's parking garage by tailing another vehicle. Prior to the murder, the trio conducted a reconnaissance drive to familiarize themselves with the timing involved in reaching Hatcher's work and home. They acquired gloves, syringes, disinfectant, and a temporary license plate for the Jeep used in the crime. On the day of the murder, Cortes and the appellant picked up Love, dropped him off at a Jack in the Box, and exchanged Menendez’s BMW for the Jeep at Ortiz's car shop. After picking up Love again, they drove to Hatcher's workplace but lost her in traffic. They managed to enter Hatcher’s garage and parked strategically to observe her arrival. Love, armed with a gun and wearing gloves, exited the vehicle and approached Hatcher, who was ultimately shot in the back of the head. Following the shooting, Cortes drove away from the scene, initially in the wrong direction, before returning to clean the Jeep of fingerprints and switch license plates. Love rummaged through Hatcher's belongings, taking cash and other items before Cortes dropped him off and returned to her grandmother's house. The group later met to dispose of Hatcher's belongings, burning items linked to the crime. Cortes testified about financial transactions involving drugs after the murder, including receiving money from the appellant and giving cash to Love. Police later discovered incriminating photos on Cortes's phone related to the crime. Detective Barnes obtained a search warrant for the appellant's apartment after her arrest, where police discovered a Chase ATM receipt for a $500 withdrawal dated August 28. Following an interview with Ortiz, who informed Barnes that the appellant had borrowed a Jeep, Barnes spoke with the appellant at the police station. She claimed to have started her day at a Carrollton library, transported by Cortes, due to her car being in the shop. While she struggled to recall details, she confidently mentioned having a receipt from Chili's on the night of the murder. Appellant noted her phone died at Chili's and she requested a charger from a waitress, but denied knowing Hatcher. However, a later extraction of her cell phone revealed a saved photo of Hatcher and Paniagua, which was used as evidence in court. When shown a picture of the black Jeep, appellant denied any knowledge, stating only that Cortes had borrowed it. After learning of the shooting and the Jeep's connection, she did not inquire about it from Cortes. Surveillance footage from Ortiz's neighbor depicted appellant and Cortes exchanging the Jeep for a BMW the night of the murder, contradicting her earlier claims of going straight home from Chili's. Cell phone data corroborated her presence with Cortes and Love before the murder, with timestamps indicating her phone was near the Jack in the Box where they dropped off Love and later at the library. Further evidence revealed a call from Ortiz’s phone to Cortes after the murder and a deleted call from Cortes to appellant around the same time. Over a two-week period, there were 99 contacts between appellant and Cortes. Following Love's arrest, a canine unit alerted to his car for explosives and gunshot residue, leading to the discovery of a .40 caliber Smith & Wesson handgun beneath an ashtray in the vehicle, which matched a cartridge case found at the crime scene. Testimony from appellant's cousin, Moses Martinez, indicated that she had discussed wanting to scare Hatcher with a baseball bat, initially downplaying her intentions. However, when confronted with prior testimony, Martinez admitted that appellant explicitly wanted him to harm Hatcher with the bat, which she had shown him. Jennifer Escobar testified that the appellant exhibited obsessive and angry behavior toward Paniagua following their breakup, including tracking his movements and accessing his personal accounts. Escobar recounted that the appellant solicited her to assist in killing Kendra Hatcher, offering drugs, $2,000, and a car in exchange for committing the act. After consulting her parents, Escobar declined to participate. Another friend, Menendez, noted the appellant frequently mentioned Hatcher and expressed anger when questioned about her obsession. He recounted an instance where the appellant asked him to drive her to the Gables apartments, where Hatcher lived and was later murdered. Menendez also confirmed that the appellant inquired about obtaining a gun, which he refused to help with. Evidence from the appellant's cell phone supported these testimonies, including images of Paniagua and Hatcher, a screenshot of a tracking app for Paniagua’s phone, and saved documents related to Paniagua's travel and personal information. The appellant challenged the sufficiency of evidence regarding the murder's financial motive. The court applies the standard from Jackson v. Virginia, assessing whether a rational jury could find the essential elements of the crime proven beyond a reasonable doubt, while allowing the trier of fact to resolve testimonial conflicts and draw reasonable inferences. Appellate review focuses on ensuring the jury acted rationally, and a guilty verdict will stand if supported by any valid theory presented to the jury. Circumstantial evidence can be as conclusive as direct evidence in establishing an accused's guilt. The appellant was indicted for capital murder on two theories. The first theory alleged the appellant intentionally caused the death of Kendra Hatcher by hiring Kristopher Love to murder her for payment, which included drugs and cash from both the appellant and a drug cartel. The second theory included a charge of unlawful killing during a robbery attempt. The jury was instructed that they could convict under either theory, but the court determined that sufficient evidence supported a conviction solely under the first theory. Under the penal code section 19.03(a)(3), it is capital murder if a person commits murder by employing another for remuneration. The State provided evidence of the appellant's motive for wanting Hatcher dead, stemming from anger over a breakup with Paniagua and an obsession with his new relationship with Hatcher. Witnesses, including Cortes, Menendez, Escobar, and Martinez, testified about this motive. Evidence from the appellant's phone indicated she tracked Paniagua, saved images related to him and Hatcher, and asked Cortes to kill Hatcher for money. Cortes testified that she and the appellant recruited Love to help in the murder plot, promising him money and drugs. They planned to make the killing appear as a robbery. Hatcher was shot in the back of the head in her apartment parking garage with a .40 caliber firearm found in Love's car. Surveillance footage captured a black Jeep leaving the scene, which was loaned to the appellant and Cortes. Testimony confirmed they returned the Jeep that night, with security footage supporting this. A video on the appellant's phone indicated discussions about acquiring a silencer for a handgun. Additionally, Cortes testified that the appellant provided financial incentives for Love and herself, with evidence of cash withdrawals and photos taken shortly after the murder suggesting post-crime financial exchanges. Cell phone data presented at trial indicated that the appellant was frequently in contact with Cortes and Love before the murder of Hatcher, including a call from Cortes to the appellant approximately forty-five minutes post-murder, which was later deleted. Following police questioning, the appellant fled to Mexico. The appellant contended there was no evidence of Love's acceptance of an offer for the murder; however, the State needed to demonstrate that the appellant employed Love for remuneration as per TEX. PENAL CODE § 19.03(a)(3). Cortes testified that Love was to receive drugs and money for the murder and that she and the appellant acquired drugs worth about $900 shortly after the crime, with the appellant also providing cash to Love. The evidence was deemed sufficient for a rational factfinder to conclude that the appellant was guilty of capital murder, having employed Love to kill Hatcher for drugs and money. Regarding corroboration of accomplice testimony under TEX. CODE CRIM. PROC. art. 38.14, the court found enough non-accomplice evidence to support Cortes’s account. Accomplice testimony cannot solely establish guilt without corroborating evidence linking the defendant to the crime. The court evaluated the evidence excluding Cortes's testimony, identifying multiple witnesses who indicated the appellant had a fixation on Hatcher and expressed violent intentions toward her. Additional evidence included cellphone data that corroborated witness statements and the appellant's unusual car movements around the time of the murder, with surveillance footage capturing the vehicle linked to the appellant in Hatcher’s vicinity before and after the shooting. Overall, the cumulative evidence was sufficient to connect the appellant to the murder. Ortiz testified that he loaned a Jeep to the appellant and Cortes on the day of the shooting, returning it that night, which was recorded on video admitted at trial. After confronting the appellant about the Jeep's appearance on the news, Ortiz stated she suggested repainting it. Prior to the shooting, appellant recorded a conversation on her phone discussing a silencer for a .40 caliber Smith & Wesson, the weapon used to kill Hatcher. Appellant's cell phone data indicated she was with Cortes and Love on the murder day, showing extensive communication with Cortes before and after the event. Two photos on Cortes’s phone, taken shortly after the murder, included images of cash and the appellant with Cortes. This evidence, beyond just Cortes’s testimony, connected the appellant to the crime, indicating motivation and ties to the vehicle, weapon, and individuals involved. The appellant contested the sufficiency of the corroborative evidence regarding the remuneration element of capital murder, asserting that the evidence could suggest innocent activity. However, it was concluded that the non-accomplice evidence sufficiently connected her to the offense. The court also denied the appellant's request for judicial notice of documents submitted in her brief, emphasizing their reluctance to consider evidence that impacts the merits of the case and reaffirming their limited role in reviewing the evidence for connections to the commission of the offense. Appellant contends that discrepancies between Cortes’s testimonies in Love’s trial and the current case indicate she fabricated her narrative to align with police knowledge from September 21, 2018, when she claimed to start telling the truth. Appellant seeks to introduce documents evidencing these inconsistencies but is denied judicial notice, as appellate review is limited to the trial record, including both properly and improperly admitted evidence, without considering any not admitted. Allowing such evidence would enable a defendant to essentially retry the case on appeal. Regarding the jury instructions, appellant argues that the trial court erred in including a charge based on article 38.36 of the Texas Code of Criminal Procedure, which permits consideration of all relevant facts about the killing and the relationship between the defendant and the deceased. Appellant objected, claiming the instruction emphasized the State's perspective and was inappropriate for the case context. The State argued the instruction was consistent with article 38.36, and the trial court denied the removal request. The appellate review process entails first determining if the charge was erroneous, followed by a harm analysis based on whether the error was preserved for appeal. The trial court must provide a written charge reflecting applicable law without expressing opinions on evidence weight. The contested instruction, being statutory and directly tracking article 38.36, was deemed appropriate and not an impermissible comment on evidence weight. Instructions based on Article 38.36 are recognized as traditional elements of murder jury charges. The court found that the instruction did not improperly comment on the weight of the evidence, as it did not refer to specific evidence or suggest how the jury should resolve factual questions or weigh evidence differently. This distinguishes it from a prior case, Bartlett v. State, where the jury charge included a detailed explanation of evidence related to a breath test refusal, which the court deemed an impermissible comment on evidence weight. The court outlined three circumstances where a trial court may highlight specific evidence in jury instructions without implying a biased view of its weight: (1) when law assigns particular weight to certain evidence, (2) when the Legislature mandates specific evidence be highlighted, and (3) when evidence is admissible based on certain predicate facts for the jury's determination. The Article 38.36 instruction provided a general framework for the jury to consider all relevant facts about the offense and the defendant's mental state without singling out any specific evidence. No cases indicated that including an Article 38.36 instruction in a jury charge constitutes error; rather, other courts have affirmed its propriety. Historical cases, such as Wheeler v. State, support this interpretation, indicating that the predecessor statute should be included in charges rather than solely guiding admissibility discussions. Consequently, the trial court's decision to retain the Article 38.36 instruction in the jury charge was deemed correct, and the appellant's related issue was overruled. The appellant contends the trial court erred by not adequately instructing the jury on the law of parties as per Texas Penal Code § 7.02(a)(2). The jury was instructed to find the appellant guilty if it determined that she intentionally caused Kendra Hatcher's death by hiring Kristopher Love to murder her for payment, and that Love intentionally killed Hatcher. The State argues that this charge relates to one method of committing capital murder as a principal, so a law of parties instruction was unnecessary. The First Court of Appeals previously dismissed a similar argument in Lopez v. State, where the indictment followed section 19.03(a)(3) of the penal code and specified that the defendant employed others for remuneration. The appellate court found that the jury was properly instructed to convict based on the required mental state of "intentionally or knowingly." The facts in the current case align with Lopez, as the indictment and jury charge mirrored the statutory language. In capital murder cases under § 19.03(a)(3), the solicitation aspect is inherently included in the statute. Thus, the jury was correctly instructed to convict the appellant as a principal rather than as a party. The court found no error in the jury charge and overruled the appellant’s argument. Appellant contends that a jury veniremember, Sweet, was improperly excused from serving on the jury panel, arguing she was not shown to be disqualified. During an off-record discussion, the trial court noted Sweet had been posting about the trial online, and the State agreed to her excusal. Appellant objected, suggesting she be admonished, but the trial prosecutor challenged her for cause, citing a violation of court instructions. The trial court granted this challenge. Under TEX. CODE CRIM. PROC. art. 35.16(a), a challenge for cause alleges a juror's incapacity or unfitness. The State can assert additional grounds beyond those listed in Article 35.16 if they demonstrate incapacity for jury service, and such challenges not listed are evaluated at the trial judge's discretion. A trial court's ruling on these challenges is given considerable deference due to the judge's unique position to assess jurors' demeanor and responses. Even if the court erred in excusing Sweet, it is believed that such an error did not affect appellant's substantial rights, as a defendant does not have a right to any specific individual on the jury but only to qualified jurors. The ruling on juror dismissal necessitates a showing that the error deprived the defendant of a lawfully constituted jury; in this case, appellant did not claim that the sworn jurors were unfair or biased. The presumption exists that jurors are qualified unless the record suggests otherwise. Consequently, any potential error in granting the State's challenge to Sweet did not impact appellant's substantial rights. In a separate issue, appellant argues that Veniremember Perry was unlawfully excused, thus violating her right to limit the State's peremptory challenges to ten. Perry indicated during voir dire that he would likely lean toward guilt if appellant did not testify and admitted he could not follow the trial judge's instruction to disregard any consideration of appellant's failure to testify. The State successfully challenged a juror for cause, despite the appellant's objection that reliance on the Fifth Amendment privilege was improper. The trial court's decision to grant the State's challenge was supported by the precedent that jurors may be disqualified if they exhibit bias against a legal principle relevant to the State’s case, specifically citing the belief that a defendant's silence implies guilt. The appellant's request for an additional peremptory challenge was denied, and her assertion that she could "waive" the juror’s disqualification was rejected, lacking legal support and conflicting with established case law. Furthermore, the appellant contended that the State improperly gained an extra peremptory challenge through the successful challenge for cause, which was also dismissed as incorrect. In terms of evidentiary issues, the appellant claimed her constitutional right was violated when the trial court denied her request to present video snippets of a witness, Cortes, during cross-examination. The defense argued that the jury needed to see how Cortes appeared when lying. The court maintained that the jury could assess the witness's demeanor directly and granted the appellant the right to question Cortes about her credibility. On appeal, the appellant argued for the videos' admissibility under Texas Rule of Evidence 611(b) and the Confrontation Clause, with the trial court's evidentiary rulings subject to an abuse of discretion standard. The court allowed for cross-examination on relevant credibility matters but denied the video playback. Extrinsic evidence of a witness's prior inconsistent statements or biases is inadmissible unless the witness has been questioned about these issues and does not unequivocally admit to them, per TEX. R. EVID. 613(a)(4) and 613(b)(4). The Confrontation Clause of the Sixth Amendment grants an accused the right to confront witnesses, which includes cross-examination to challenge credibility or expose bias. However, this right is not absolute; trial judges have broad discretion to limit cross-examination scope. Generally, state evidentiary rules do not conflict with constitutional rights, but in cases of conflict, the Constitution prevails according to Rule 101(c), which emphasizes reasonable construction and application of evidentiary rules to avoid constitutional issues. In this case, witness Cortes admitted during direct examination to lying to law enforcement and prosecutors multiple times, explaining her motivations and the eventual plea bargain that involved her testimony. During cross-examination, she acknowledged specific lies, which allowed the trial court to reasonably exclude extrinsic video evidence under rule 613(a)(4), as Cortes's admissions negated the need for that evidence. The appellant's reliance on rule 611(b) to cross-examine on credibility was upheld, as it allows cross-examination on any relevant matter. Appellant had the opportunity to cross-examine Cortes extensively regarding her credibility and past dishonesty. The trial court did not err in excluding a video of Cortes’s police interview, as admission was not mandated by rule 611(b), especially since Cortes had already admitted to her previous lies. Under rule 403, the court could reasonably determine the video’s probative value was outweighed by the risk of unnecessary cumulative evidence. Although the video was relevant, it offered limited additional insight beyond Cortes's in-person testimony. The court noted that the jury could assess Cortes's demeanor during her testimony without the video. Appellant’s constitutional argument, citing cases Hammer and Johnson, was found unconvincing, as these cases affirm the trial court's broad discretion to limit cross-examination scope, particularly regarding motives, biases, or prejudices. Cortes's demeanor during the police interview did not pertain to any of these factors. The trial court acted within its discretion in ruling the video inadmissible, and appellant's seventh issue, claiming deprivation of her constitutional right to present relevant evidence regarding Cortes's plea bargain and parole eligibility, was also overruled. Cortes clarified during the trial that she did not have a deal in place at the time of her initial truthful statements to the police. A witness, Cortes, testified regarding a plea deal that resulted in a 35-year sentence for a murder charge. In exchange for her testimony against Kristopher Love and Brenda Delgado, she received a deal that spared her from the death penalty. Cortes acknowledged the gravity of her situation, confirming that lying could lead to severe consequences, including the possibility of facing the death penalty. During cross-examination, the appellant emphasized the significant difference between capital murder and straight murder sentences, questioning Cortes about her understanding of parole laws. She admitted to a lack of understanding regarding parole prior to the deal but stated she comprehends it now. The court sustained objections to certain lines of questioning regarding parole eligibility, affirming that while exposing a witness's motivations is crucial for cross-examination, limitations can be imposed by the trial court. The case referenced, McDuff v. State, established that while defendants can explore a witness’s potential bias or motive, they cannot delve into the witness's understanding of parole eligibility if it does not directly impact their relationship with the State or their testimony. Both parties extensively questioned Cortes about her plea agreement. The appellant faced a thirty-five year confinement plea deal, potentially avoiding harsher penalties like the death penalty or life without parole, in exchange for her testimony against others. During cross-examination, appellant successfully revealed Cortes's motive for testifying against her due to the significant benefits she received from the plea. The trial court limited further questioning regarding Cortes's knowledge of parole eligibility, which the appellate court found did not constitute an abuse of discretion. In a separate issue, the appellant challenged the trial court's decision to admit an expert's written report analyzing gunshot residue found on Kendra Hatcher's hands, which was argued to be hearsay. The forensic analyst testified that the residue indicated Hatcher either fired a gun, handled a gun, or was near a gun when it was fired. The report, which confirmed the presence of six primer gunshot residue particles, was admitted despite the objection. The appellate court concluded that even if the report was deemed inadmissible hearsay, its admission did not violate the appellant’s substantial rights, as it reflected the analyst's prior testimony. Ultimately, the appellate court ruled that the error, if any, was non-constitutional and did not significantly impact the jury's verdict, thus overruling both the seventh and eighth issues raised by the appellant. Appellant contends the trial court erred in admitting a video of security footage from in front of Ortiz's house due to lack of proper authentication. She raised objections based on personal knowledge, hearsay, and confrontation rights under the Sixth and Fourteenth Amendments. On appeal, her argument focuses solely on the failure to authenticate the video. The appellate review of authentication issues is conducted for abuse of discretion. To authenticate evidence, the proponent must provide sufficient evidence to support a finding that the item is what it claims to be, as outlined in Texas Rule of Evidence 901(a). The jury ultimately determines the authenticity, while the trial court makes a preliminary assessment based on the evidence provided. In this case, Detective Barnes obtained the video from Ortiz’s neighbor, and the first part of the video was admitted without objection during Cortes’s testimony, where she identified herself, Ortiz, and appellant. Ortiz corroborated that the video captured their meeting. The second part of the video, which appellant challenges, showed the same view from the following day when appellant and Cortes discussed a vehicle. It was admitted during Detective Barnes's testimony, who confirmed it was a copy of the surveillance video. The timestamp on the video correlated with Ortiz's and appellant's accounts of their meetings. The court concluded that the trial court did not abuse its discretion in finding sufficient evidence for the video's authenticity. Appellant's ninth issue was thus overruled. Furthermore, in her tenth and eleventh issues, appellant argues that the trial court improperly admitted "backdoor hearsay" through Detective Barnes's testimony, which she claims implied the falsity of her statements. However, she fails to specify which parts of the eleven pages of testimony she objects to. Barnes provided testimony regarding his investigation that included information from Ortiz, who stated that his Jeep was borrowed by appellant and Cortes due to Cortes's car troubles and was to be returned in the evening. Ortiz and appellant were childhood friends. Barnes also indicated that Cortes dropped off appellant at a library at the investigation's onset. He learned from Menendez that appellant had brought his car for repairs and testified about a prior relationship between Mirlande and Paniagua, who dated appellant before. Barnes's testimony contradicted appellant's claim that Cortes borrowed a BMW. Despite appellant's objections on the grounds of hearsay and improper bolstering, the court found that any potential error did not affect appellant's substantial rights, as similar evidence was admitted through other witnesses, including Ortiz, Cortes, Menendez, and Paniagua. The court ruled that Barnes's repetition of investigative details could not have significantly influenced the jury's verdict. Consequently, the trial court's judgment was affirmed.