KELLER, P.J., delivered the opinion of the Court in which RICHARDSON, YEARY,KEEL,andSLAUGHTER,JJ.,joined.HERVEY,NEWELL,WALKER,andMCCLURE, JJ., concurred. OPINION Appellant was charged with the capital murder of Javier Vega, Jr. (“Harvey”),[1] by intentionally causing his death in the course of committing or attempting to commit the offense of robbery.[2] A jury found Appellant guilty of capital murder and answered the special issues in such a manner that appellant was sentenced to death.[3] Appeal to this court is automatic.[4] Appellant raises twenty-seven points of error. Finding no reversible error, we affirm the trial court’s judgment and sentence. I. BACKGROUND On Sunday, August 3, 2014, HarveyVega, a border patrol agent, and his family and one of his son’s friends went to Harvey’s parents’ house for a barbeque. Afterwards, Harveyand some of the others left to go target shooting. Later, theyall decided to meet up again to go fishing. Harvey’s parents drove their own truck. Harvey’s father, Javier, always carried his gun for protection when he went somewhere, so along with their fishing gear, he brought his .40 caliber Sig Sauer, a .22 pistol, and a .22 rifle. As the two vehicles traveled to the fishing spot, they passed a red SUV parked on the side of the road with two men inside. Harvey’s mother noticed that the SUV was parked on an upslope. That was unusual to her because, “No one ever parks on the upslope.” Harvey’s father got a good look at the two men, and his mother made eye contact with them. Both parents waved at the two men as they passed. The SUV started following them. After the Vega family arrived at and set up the fishing site, the SUV drove to within 30 yards but then reversed and drove away. Ten or fifteen minutes later, the SUV returned. Two men jumped out and began firing their guns at the Vega family. The driver shot Harvey point blank and the passenger shot at the parents. According to the parents, the driver shouted “Al suelo, cabron,” meaning “Down to the ground, motherfucker.”[5] After Appellant shot Harvey, the passenger shot Javier. Javier fell to the ground, went for his gun, and shot at the passenger. When that happened, the two men got back into the SUV and drove away, with the passenger hanging on to the door. Harvey’s parents identified Appellant as the driver and testified that Appellant shot Harvey. The friend, Aric Garcia, testified that the driver shot Harvey. Harvey’s wife testified that Appellant was one of the men in the SUV. Harvey died, never regaining consciousness. Around 2:00 the next morning, the SUV broke down and Appellant and his passenger were forced to walk. Theywent to a house and asked for help. The woman who lived there let them in, but she alerted border patrol agents after seeing a helicopter search light. Appellant and his passenger were arrested. Swabs from testing Appellant’s hands tested positive for gunshot residue. A .45 caliber Taurus pistol was later found near the scene of Appellant’s arrest. Four .45 caliber cartridge casings found at the crime scene and the bullet that killed Harveywere consistent with having been fired from the Taurus. Bloodstains on the driver’s 6
side seatbelt and the passenger seat backrest of the red SUV matched Appellant’s DNA.[6]At the punishment stage of trial, the State introduced evidence that Appellant participated in three other robberies against people fishing in the area. During these robberies, the victims were ordered at gunpoint to get on the ground. One victim was struck twice in the head with the butt of a gun. Appellant also had convictions for misdemeanor assault, unlawful carryingof a weapon, and driving while intoxicated, as well as two convictions for possession of marijuana. And Appellant had a federal conviction for illegal reentry after deportation. Appellant presented the followingmitigatingevidence at punishment: The woman who lived in the house where Appellant was arrested testified that Appellant did not mistreat, harm, or act disrespectfullyto her or her four children while he was there and that she did not feel threatened by him. The evidence also showed that Appellant surrendered peacefullyto border patrol agents when theyfound him. And adirector from the Texas Department of Criminal Justice testified that she saw nothing in Appellant’s records that indicated he was part of a security threat group, though she testified on cross-examination that he had previously been placed in administrative segregation. II. GUILT A. Venue In point of error fourteen, Appellant complains that the trial court erred in refusing to grant a change of venue due to prejudicial publicity. When a defendant seeks a change of venue based on publicity about the case, he must show that the publicity was “pervasive, prejudicial, and inflammatory.”[7] Widespread publicity is not by itself inherentlyprejudicial.[8] The defendant must show an actual, identifiable prejudice attributable to pretrial publicityon the part of the community from which members of the jurywill come.[9] Wereview a trial court’s rulingon amotion to change venue for abuse of discretion and will uphold the trial court’s decision if it is within the zone of reasonable disagreement.[10] The two primarymethods of determiningwhether publicityis pervasive are a hearing on the motion to change venue and the testimony of prospective jurors at voir dire.[11] Appellant was indicted in Willacy County, where Harvey was killed. Appellant initially sought and obtained an order restricting publicity. He later moved to change venue on the basis of prejudicial pretrial publicity, requesting that venue be changed to a county outside the Rio Grande Valley, towards Laredo, Nueces, or San Antonio. Defense counsel conducted an informal poll of prospective jurors in Willacy and Cameron counties. In Willacy County, 20 out of 69 respondents (29%) had not formed an opinion as to Appellant’s guilt. In Cameron County, 87 out of 130 respondents (67%) had not formed an opinion as to Appellant’s guilt. The trial court changed venue to Cameron Countyon the basis of the evidence and because Cameron Countyhad adequate facilities for a capital murder prosecution while Willacy County did not. Nevertheless, Appellant later moved to change venue again. In support, he introduced testimonyfrom two local criminal defense attorneys who thought Appellant could not get a fair trial in Cameron County. On cross-examination, one of these attorneys said that he was not surprised by poll results showing over 60% of respondents in Cameron Countynot having formed an opinion as to guilt.[12] The State introduced the testimonyof two people—an administrative director of nursing and the owner of a home health care company—who said that they believed Appellant could get a fair trial in Cameron County. The trial court denied the motion. Appellant points to the fact that, after an initial panel of 337 prospective jurors, the trial court called two supplemental panels, one of 115 and one of 113. Appellant further contends that nine of the people who actually served on the jury specifically recalled hearing about the case from local news sources around the time the crime occurred. The State responds that none of the twelve jurors indicated significant prior knowledge of the case and that all twelve said that they could render a verdict based solely on the evidence heard in court. After reviewingAppellant’s nine record citations, we find that most involved jurors who had heard little if anything about the case. And as the State points out, all of the jurors said that they could base their decisions about the case solelyon the evidence offered at trial. We conclude that the trial court was within its discretion to decide that Appellant could get a fair trial in Cameron County. Point of error fourteen is overruled. B. Jury Selection 1. Outside Appellant’s Presence In points of error eleven and twelve, Appellant complains that the trial court erred in hearing qualifications, excuses, and exemptionsforthree venire panels outside the presence of Appellant and his attorney. He claims that the trial court’s conduct violated both constitution and statute. Prospective jurors can be summoned for jury service in general and sent to a central jury room, to be sorted into panels later, or they can be summoned to a “special venire,” one that is already assigned to a particular case.[13] Appellant’s jury was selected from three special venires called on three different days. The court reporter’s record indicates that Appellant and his attorney were not present when the trial court conducted a general inquiry into the prospective jurors’ qualifications, excuses, and exemptions but arrived afterwards. We initially perceived a possible conflict in the record because the docket sheets seemed to suggest that Appellant and his attorney were present on these occasions. And in a hearingon Appellant’s motion for mistrial, the trial court suggested that Appellant and his attorney were present: Okay. Hold on. What Itold you was, we had to qualifythem just to make . .. certain that, you know, theywere—theywere a U.S. citizen and a citizen of Texas, presiding in . . . Just pre-qualifications. And Itold you you didn’t need to be there. In fact, you were there, though.[14] Pursuant to our authority to have an inaccuracy in the record corrected,[15] we remanded the case to the trial court to determine if there was an inaccuracy in either the clerk’s record or the reporter’s record.[16] On remand, the trial court concluded that neither record was inaccurate. Rather, the clerk’s record simplydenoted the date and general time period for when Appellant and counsel were present but did not pinpoint specific times they were present. The trial court found that Appellant’s attorney observed—but did not participate in—a portion of the first qualifications, excuses, and exemptions proceeding. The trial court also found that the court’s questioning of prospective jurors at this time was sotto voce, at a whisper, and that Appellant’s attorney could not hear what was being said. The trial court further found the court reporter’s record to “be the most reliable source for what occurred” and that Appellant, his attorney, and the interpreter were not present during the second and third hearings on qualifications, excuses, and exemptions. The trial court also found that all three hearings were held off the record. Although the right to be present at trial is rooted to a large extent in the right to confrontation, when the defendant is not confronting witnesses or evidence, the right to presence is rooted in due process.[17] A defendant has a due process right to be present “whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.”[18] Under Article 33.03, a defendant in a felony case must be personally present at the trial and, in fact, can voluntarily absent himself only after the jury has been selected.[19] The question here is whether the hearings on general qualifications, excuses, and exemptions were part of his “trial” or otherwise had a reasonably substantial relation to his opportunity to defend himself. Article 35.03 provides: [T]he court shall then hear and determine excuses offered for not serving as a juror, including any claim of an exemption or a lack of qualification, and if the court considers the excuse sufficient, the court shall discharge the prospective juror or postpone the prospective juror’s service to a date specified by the court, as appropriate.[20] And Article 35.04 provides: Any person summoned as a juror who is exempt by law from jury service may establish his exemption without appearing in person by filing a signed statement of the ground of his exemption with the clerk of the court at any time before the date upon which he is summoned to appear. The fact that an exemption can be claimed in advance indicates that the defendant and his attorney need not be present for the grantingof an exemption. Even for mere “excuses,” the possible remedy of postponing a prospective juror’s service suggests that excuses are meant to be heard before the prospective juror is assigned to a particular case, and consequently, before a defendant’s or his attorney’s presence would be expected. In Jasper v. State, we explained that the hearing of general qualifications, excuses, and exemptions ordinarily occurs before a prospective juror is assigned to a panel: Generally, when prospective jurors are initially summoned, they are assembled in a general jury pool or general assembly. Members of the general assembly are qualified on their abilityto serve and exemptions and excuses are heard and ruled on by the judge presiding over the general assembly. Prospective jurors who are not disqualified, exempt, or excused are divided into trial panels and sent to the individual courts trying the cases. At that point, attorney voir dire will result in the jury that will ultimately hear the case.[21] We further explained that this “general assembly” portion of jury selection “is not considered part of ‘the trial’ and therefore the accused is not entitled to be present.”[22] We have reiterated that a defendant does not have a constitutional right to be present or have counsel present duringa general assembly in which exemptions are determined.[23] We noted in Jasper that the judge in that case was apparently presiding over a jury panel assigned to that case.[24] We “assume[d]that appellant’s trial had begun at the time of the exemptions, excuses and qualifications,” for the purposes of addressinghis point of error, but concluded that the defendant’s absence from the proceeding was harmless beyond a reasonable doubt.[25] Appellant relies on Jasper for the proposition that a trial court errs to hold a general qualifications, excuses,andexemptionsproceedingoutside the defendant’s presence when the venire is a special venire. Based on that case, the State concedes that the trial court erred. We disagree. Jasper did not hold that a defendant’s presence is required if the trial court hears general qualifications, excuses, and exemptions for a panel assigned to the defendant’scase. Jasper assumed it for the sake of argument, and then found the assumed error to be harmless. In Crutsinger v. State, this Court indicated that the defendant need not be present for excuses unless the excuse is an economic one— even in a capital case.[26] In so concluding, Crutsinger cited Black v. State.[27] In Black, outside the presence of the defendant and the attorneys for both sides, the trial court excused a prospective juror because she was hard of hearing.[28] We held that the trial court did not abuse its discretion in doing so.[29] Crutsinger and Black appear to be cases in which the prospective juror was excused from a panel assigned to the defendant’s case.[30] In any event, the reasons we have given for permitting a judge to conduct this type of proceeding outside the presence of the defendant and his attorney apply with equal force to special venires. We have explained that the “process of hearingand grantingjuror exemptions and excuses of this type lack the traditional adversarial elements of most voir-dire proceedings.”[31] Further, the “right to be excused from the venire belongs to each of its individual members, not to the defendant.”[32] And it seems nonsensical to suggest that a perfectly permissible procedure becomes a constitutional violation based on how or where the prospective juror is first summoned. Whether the prospective juror is assigned first to the central jury room or to a special venire, a preliminary inquiry into his general qualifications, excuses, and exemptions is not the sort of proceeding that needs to be conducted in the defendant’s presence. And nothing in the statute authorizing a special venire for a capital case requires that an Article 35.03 proceeding be held in the presence of the defendant.[33] Points of error eleven and twelve are overruled. 2. Lack of Record In point of error thirteen, Appellant contends that the failure to record the proceedings on qualifications, excuses, and exemptions requires a new trial. He relies on the appellate ruleregarding lost and destroyed records.[34] His reliance on this rule is misplaced because the rule has historically applied onlywhen a record was made and later lost or destroyed.[35] Nevertheless, an error might be predicated on the failure to record proceedings, provided that the defendant lodged an objection to preserve that claim.[36] The trial court’s findings on remand suggest that defense counsel had no way of knowing that the proceedings were not being recorded. Assuming Appellant has not forfeited his complaint about the absence of a record, that complaint is without merit. If instead of beingsummoned for aspecial venire, the prospective jurors had first been summoned to a central jury room for such a proceeding, one would not expect that proceedingto be recorded. Because we have held that these proceedings should be viewed the same as proceedings conducted in a central jury room—not being a part of Appellant’s trial and him generally having no right to be present—he would not have a right to have those proceedings recorded. As alluded to above, a defendant has a statutory right to be present to hear and object to an economic excuse for not servingon a jury.[37] That does not mean, however, that he is entitled to have an Art. 35.03 proceeding recorded on the off-chance that the trial court would violate that right. Otherwise, a defendant would have the right to have central juryroom proceedings recorded for that same reason. And Appellant points to nothing to suggest that a juror was in fact excused for an economic reason. Point of error thirteen is overruled. C. Conflict of Interest In points of error nine and ten, Appellant contends that he was denied his right to counsel and his right to a fair and impartial tribunal. He claims that his attorneys gave the trial court confidential information in ex partehearings and improperlydelegated decisions to Appellant in order to protect themselves against possible ineffective assistance claims. He claims that the attorneys improperly delegated to him the choice of what witnesses to call and what evidence to present. He talks about his attorneys complaining that he wanted to control which witnesses they investigated, about his attorneys affording him the decision on which witnesses would testify, and about the attorneys affording him the decision on whether to present evidence of his criminal past at the guilt stage of trial. Appellant claims that his attorneys’ conduct on these matters constituted a conflict between Appellant’s interest in a favorable outcome for his case and his attorneys’ interests in protecting themselves. He also claims that the trial court was not impartial because it acted to protect the attorneys interests’ in contravention to Appellant’s own. But in Monreal v. State, we held that this type of situation did not involve a conflict of interest.[38] There, we said that the attorney was “not required to make a choice between advancing her client’s interest in a fair trial or advancing her own interest in avoiding a future claim of ineffective assistance.”[39] So her personal interest did not actually conflict with the defendant’s interest.[40] This was true even if the attorneywas “less than artful in executingher personal interest” and elicited unnecessary and potentially damaging information.[41] So the claim that the attorney’s action to protect herself from an ineffective assistance claim worked to the client’s detriment had to be analyzed under the traditional Strickland framework for ineffective assistance claims.[42] Citing a more recent case,[43] Appellant contends that Monreal did not hold that Strickland applies when a defendant alleges a conflict because the counsel was acting to protect his own interests. We agree with this contention as far as it goes, but it does not gofar enough. Monreal did not suggest that Strickland applies any time the defendant alleges a conflict with counsel’s own interests,[44] but Monreal did find Strickland applicable to a claim similar to the one here—a claim that the attorney’s own interest in protectingagainst an ineffective assistance claim created a conflict because of inartful attempts to protect that interest. We see nothing about the facts of this case that distinguishes it meaningfully from Monreal. At least ordinarily, an attorney’s own interests in protecting against an ineffective assistance claim will not conflict with the client’s interests. Overzealousness, mistakes, or malfeasance in protecting one’s own interest in that regard is not sufficient to show a conflict; there has to be a showing that the interest itself is antithetical to the client. The whole point of a conflict is that it impugns the attorney’s ability to represent the defendant at all.[45] All of Appellant’s contentions simply allege that counsel should have engaged in different behavior to protect his otherwise non-conflicting interest of avoiding an ineffective assistance claim. That does not show a conflict. And because Appellant frames his challenge to his attorneys’ conduct solelyas a conflict of interest, he makes no attempt to show prejudice under Strickland.[46] And even if we assume that the trial court was too deferential to Appellant’s attorneys in their attempts to protect themselves, that does not establish that the trial court lacked impartiality. Judicial rulings and a judge’s efforts at courtroom administration almost never constitute a valid basis for finding bias or partiality.[47] Absent an extrajudicial source of bias, a judge’s actions during trial can show bias only if they reveal “such a high degree of favoritism or antagonism as to make fair judgment impossible.”[48] That cannot be shown when the trial judge’s manifest intent is to benefit the defendant and protect his rights.[49] Here, the trial judge’s conduct was manifestlyintended for the defendant’s benefit. Because the jury, not the trial judge, was the factfinder at both guilt and punishment, the trial judge could receive confidential information without the risk of tainting the factfinder’s decision-making. And as Appellant acknowledges, these hearings were held ex parte, so that the State was not privyto the discussions. The hearings involved explaining to Appellant the reasons behind his attorney’s actions, explaining the advantages and disadvantages of various trial strategies, and ensuring that Appellant was satisfied with the particular course of action being taken. Appellant’s own brief acknowledges that his attorneys complained that Appellant wanted to control aspects of the representation (what witnesses to investigate) that the attorneys did not think he could control. Giving Appellant control over many trial choices is consistent with a conclusion that Appellant wanted (and perhaps insisted on) as much control as possible. Moreover, we have recognized that a trial judge is “obliged to respect the attorney-client relationship”[50] and that “anypotential disruption of the relationship is subject to careful scrutiny.”[51] A trial court’s refusal to inject itself into the attorney-client relationship is not byitself a sign of bias or partiality on the trial court’s part. Points of error nine and ten are overruled. D. Recorded Statements In points of error three through seven, Appellant contends that the trial court erred in failing to suppress his recorded custodial statements to the Texas Rangers. He claims that parts of the statements were inadmissible because they were obtained in violation of Miranda v. Arizona[52] and Article 38.22 after he invoked his right to silence. He also claims that the statements were coerced or involuntary in violation of constitutional and statutory protections and that constitutional and statutory requirements were violated because he did not knowingly, intelligently, and voluntarily waive his rights prior to the statements. In point of error eight, Appellant contends that the trial court should have instructed the jury on voluntariness under Section 7 of Article 38.22. 1. General Law on Confessions, Standard of Review, and Standard of Harm Ordinarily, for an electronically recorded statement made by a defendant in custody to be admissible under Article 38.22, the officers takingthe statement must, prior to the statement and on the recording, convey certain warnings outlined in the statute or their fully effective equivalent.[53] And the statute requires that the suspect knowingly, intelligently, and voluntarily waive the rights set out in the warnings.[54] The statute outlines the followingwarnings to be conveyed to the suspect: (1) he has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial; (2) any statement he makes may be used as evidence against him in court; (3) he has the right to have a lawyer present to advise him prior to and during any questioning; (4) if he is unable to employa lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and (5) he has the right to terminate the interview at any time.[55] Miranda has a warnings and waiver requirement that is consistent with the Article 38.22 requirements.[56] Giving the Article 38.22 warnings and waiving rights in accord with the statute is sufficient to complywith the Miranda requirements regardingthe givingof warnings and the initial waiver of rights.[57] Other confession issues, such as whether Miranda rights are scrupulously honored and whether a confession is voluntaryunder due process or other aspects of state law, will be addressed later in this opinion when those issues are discussed. Constitutional and statutory confession claims are evaluated under the bifurcated standard set out in Guzman v. State,[58] with questions of historical fact and questions that turn on credibility and demeanor beingreviewed with deferencetothetrial court’s rulingand application-of-law-to-fact questions that do not turn on credibility and demeanor being reviewed de novo.[59] If a statement has been found to be admitted in violation of Mirandaor due process, we apply the constitutional-error harm analysis, which requires the error to be found harmful unless the appellate court “determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.”[60] If a statement has been found to be admitted only in violation of a statute, then the harm analysis for non-constitutional errors applies, requiring the error to be found harmless if it did not affect the defendant’s substantial rights.[61] A substantial right is affected only if the error had “a substantial and injurious effect or influence” on the jury’s verdict.[62] Stated another way, a substantial right is not affected if the appellate court has “fair assurance from an examination of the record as a whole that the error did not influence the jury, or had but a slight effect.”[63] A different harm analysis applies to jury-charge errors, which we shall address in our discussion of Appellant’s jury-charge claim. 2. The Interviews Appellant was arrested at about 2:00 a.m. While still at the scene, Appellant’s hands were tested for gunshot residue. Before taking custody of Appellant for purposes of transporting him to jail and before frisking him, State Trooper Jason Vela asked him if he had any weapons or guns or anything that could poke the officer. Appellant responded that he had “thrown the gun away already.” He was then taken to the Willacy County Jail. At about 5:40 a.m., a DNA sample was obtained from Appellant. Two Texas Rangers—Donato Vela and Patrick O’Connor—sat in an interview room with Appellant. Ranger Vela interviewed Appellant in Spanish. A transcript with an English translation was before the trial court as an exhibit at the suppression hearing, and a redacted version of the transcript was admitted at trial. The first interview began on August 4, 2014, at 6:37 a.m. The 6
