IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-77,122
VICTOR ALEJANDRO GODINEZ, Appellant
v.
THE STATE OF TEXAS
ON DIRECT APPEAL
FROM CAUSE NO. CR-3963-19-H
IN THE 389TH JUDICIAL DISTRICT COURT
HIDALGO COUNTY
MCCLURE, J., delivered the opinion for a unanimous Court.
OPINION
In January 2024, a Hidalgo County jury found Appellant, Victor Alejandro
Godinez, guilty of capital murder for fatally shooting Moises Sanchez, a peace
officer acting in the lawful discharge of an official duty. See TEX. PENAL CODE §
19.03(a)(1). Based on the jury’s answers to the special issues set forth in Texas
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Code of Criminal Procedure Article 37.071, Sections 2(b) and 2(e), the trial court
sentenced Appellant to death. See TEX. CODE CRIM. PROC. art. 37.071, § 2(g). 1
Direct appeal to this Court is automatic. Id. § 2(h). Finding no reversible error, we
affirm the trial court’s judgment of conviction and sentence of death.
BACKGROUND
On April 6, 2019, around 7:30 p.m., Appellant ran a red light through an
intersection in Edinburg. He struck a truck being driven by Eleazar De la Garza,
who was driving home from a birthday party with his girlfriend and her two sons.
Nicole Sanchez witnessed the crash. She saw Appellant’s truck accelerate
toward the intersection before running the red light and causing the collision.
Nicole pulled over, checked on De la Garza, and called 9-1-1. 2 She saw Appellant,
who had exited his truck, walking across the intersection’s median, and she told
him that help was on the way. When Nicole approached Appellant’s truck, she
smelled a “strong” scent of alcohol coming from the vehicle. Appellant said he
needed “to get some air” and sat down. Seconds later, Appellant returned to his
truck, reached for something inside, and fled the scene of the accident on foot.
1
Unless otherwise indicated, all subsequent citations in this opinion to “Article” refer to the Texas Code of Criminal Procedure.
2
Nicole Sanchez has no known relation to the victim, Moises Sanchez, but for clarity we will refer to her by her first name only.
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Nicole waved down Texas Department of Public Safety (DPS) Trooper
Moises Sanchez, who was driving a black-and-white DPS vehicle and wearing his
uniform. She told Sanchez that Appellant had caused the accident and fled the
scene. Sanchez quickly spotted Appellant running across a field. He activated his
vehicle’s red-and-blue flashing lights and followed Appellant into a nearby
subdivision.
Residential surveillance video showed that Sanchez pulled up behind
Appellant as he was jogging on the sidewalk. Sanchez exited his vehicle and
instructed Appellant to stop. Appellant immediately drew a pistol and fired several
shots at Sanchez, who fell to the ground. Appellant took several steps toward
Sanchez and continued firing his pistol before fleeing again.
Following the shooting, Sanchez was unresponsive and bleeding from the
head. He was taken by ambulance to a local hospital. Meanwhile, a manhunt for
Appellant ensued. Units from the Edinburg Police Department, McAllen Police
Department, DPS, and the Texas Rangers responded. Law enforcement set up a
command center, evacuated a restaurant, and blocked off local neighborhoods as
the search for Appellant continued through the night.
After midnight, Investigator Jessie Moreno and Sergeant Sandra Tapia of the
Edinburg Police Department joined the search. They were riding in Moreno’s
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unmarked police vehicle. The vehicle was equipped with red-and-blue flashing
lights, which were activated.
As Moreno and Tapia turned into a subdivision, resident Rodolfo Garcia
waved them down. Garcia told Moreno and Tapia that he had just seen a man
walking barefoot across the street in front of his home. Garcia thought this was odd
given the time of night. The barefoot man had also commented on the large police
presence in the area. Garcia said that the man was walking eastward toward the
street’s cul-de-sac.
Moreno then observed a man, later determined to be Appellant, walking
eastward. Surveillance video showed that Moreno and Tapia stopped their vehicle
behind Appellant, exited, and approached him on foot. They were both wearing
tactical Edinburg Police Department vests and identified themselves as police; they
commanded Appellant to stop. When Moreno shouted, “I need to see your
hands,” Appellant drew a pistol and fired several shots at them. Moreno took cover
behind his car and returned fire. Tapia took cover behind a nearby truck and
radioed for help.
Around 12:30 a.m., DPS Trooper Eugenio Garcia, who had been assisting
with the manhunt, heard gunshots. Shortly thereafter, he saw a man running north.
As Garcia approached, he identified the man as Appellant. Garcia commanded
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Appellant to stop, positioned himself behind his vehicle, and drew his weapon.
Appellant lowered himself to the ground and surrendered.
When Appellant was arrested, he was unarmed. He told arresting officers
that he “already threw” his gun and directed them to where it could be found.
Officers recovered a .357 Magnum revolver east of the cul-de-sac where Appellant
said that he had thrown it. Appellant also advised officers that he had been shot,
and he was taken to a hospital.
The Texas Rangers obtained a warrant for Appellant’s arrest for three
counts of attempted capital murder. When doctors released Appellant from the
hospital, the Rangers arrested him and took him in for a custodial interview. After
being Mirandized, Appellant admitted that he had been drinking when he ran the
red light and crashed his truck. He confessed to shooting Sanchez, which he said he
did because he was “drunk” and “scared.” When asked if he intended to kill
Sanchez, Appellant admitted that he “probably did.”
Appellant also confessed to shooting at Moreno and Tapia when they
approached him on the street. He said that when his pistol was out of bullets, he
started running again before dropping the gun and surrendering to law
enforcement. During the interview, Appellant also revealed that he had applied to
the police academy two years prior but was rejected. He denied that he had been
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planning to shoot police officers.
Moreno and Tapia both suffered minor injuries when Appellant shot at
them. 3 Sanchez was not so fortunate. He sustained two gunshot wounds, one to the
right side of his head and the other to his right shoulder. The gunshot wound to the
head left Sanchez’s skull and brain exposed, which required an emergent
craniectomy on the right side of his brain. Doctors told Sanchez’s wife that the
chances of him surviving the night were “very, very minimal.” He survived the
surgery and was transferred to the intensive care unit. Days later, he had an
emergent left-side craniectomy to relieve pressure from swelling in the brain
caused by the gunshot wound. He was in a coma for about one month after
Appellant shot him. Eventually, Sanchez was transferred to an inpatient
rehabilitation facility though he never regained the ability to walk, talk, move his
limbs, or communicate in any manner.
The shooting and emergent right-side craniectomy left a large defect in
Sanchez’s skull. On August 21, 2019, Sanchez was readmitted to the hospital for a
right-side cranioplasty to replace the defect with a titanium plate. The surgery was
successful, but Sanchez became unstable in the recovery room and was intubated.
3
Appellant was convicted of two counts of attempted capital murder for shooting at Moreno and Tapia. Those convictions are not before this Court in this cause.
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Ultimately, his breathing tube was removed, and he had a seizure. Sanchez was
“pronounced dead by neurologic criteria” on August 24, 2019. The medical
examiner, Dr. Lucile Tennant, testified that Sanchez died of complications from
the gunshot wounds.
SUFFICIENCY & CAUSATION
In point of error one, Appellant contends that the evidence was legally
insufficient to establish that he caused Sanchez’s death. See TEX. PENAL CODE §
19.03(a)(1). Appellant argues that a concurrent cause, namely “a premature
surgery and/or premature extubation,” was clearly sufficient to cause Sanchez’s
death while his conduct alone was clearly insufficient. According to Appellant,
Sanchez survived the shooting, and “gross neglect or improper medical
treatment,” caused Sanchez to die.
A. Applicable Law
We review legal sufficiency challenges by considering all of the evidence in
the light most favorable to the verdict to determine whether a rational trier of fact
could have found the essential elements of the offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 313 (1979); McPherson v. State, 677 S.W.3d 663,
664 (Tex. Crim. App. 2023). We may not substitute our own judgment for that of
the fact finder by reevaluating the weight or credibility of the evidence in the
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record. See Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018). We
presume that the fact finder resolved any conflicts in the evidence in favor of the
verdict and we defer to that determination. Jackson, 443 U.S. at 326.
A person commits the offense of capital murder if he intentionally or
knowingly causes the death of a peace officer who is acting in the lawful discharge
of an official duty and who the person knows is a peace officer. TEX. PENAL CODE
§§ 19.03(a)(1); 19.02(b)(1). Under the Penal Code, a person may be said to have
caused a result “if the result would not have occurred but for his conduct,
operating either alone or concurrently with another cause, unless the concurrent
cause was clearly sufficient to produce the result and the conduct of the actor
clearly insufficient.” Id. § 6.04(a).4 In other words, “[c]ausation is established
where the conduct of the defendant is the ‘but for’ cause ‘operating alone or
concurrently with another cause.’” Cyr v. State, 665 S.W.3d 551, 557 (Tex. Crim.
App. 2022).
However, if a concurrent cause “is clearly sufficient, by itself, to produce the
result and the defendant’s conduct, by itself, is clearly insufficient, then the
defendant cannot be convicted.” Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim.
4
Sufficiency of the evidence is measured against the hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). For purposes of our review of the sufficiency of the evidence, we will assume, without deciding, that the hypothetically correct jury charge would include an instruction tracking the language of Section 6.04.
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App. 1986) (op. on reh’g). “A concurrent cause is another cause in addition to the
actor’s conduct, an agency in addition to the actor.” Id. at n.2 (internal quotation
marks omitted).
B. Analysis
The evidence showed that Appellant shot Sanchez in the head at close range
with a .357 Magnum revolver. Because of the gunshot wound to the head, Sanchez
had to have three brain surgeries. Sanchez never returned home or regained the
ability to walk, talk, move his limbs, or care for himself. Although he attended inpatient rehabilitation, his wife did not see progress in his condition. She testified,
for example, that her husband was unable to communicate with her via eye-blinking
or hand squeezing. Sanchez died approximately four-and-a-half months after the
shooting, shortly after the third brain surgery.
According to medical notes, the final surgery was completed “successfully”
and “without complication.” But Sanchez showed signs of deteriorating in the
recovery room, which Tennant testified was “not surprising under the
circumstances.” He was intubated, which means he was receiving oxygen via a
breathing tube. But Tennant explained that he was extubated after it became
apparent “how severe his brain injuries were.” Tennant testified that hypoxia, a
lack of oxygen, was a “physical reason” for death, but it was not a “cause of
GODINEZ—10
death.” Tennant testified that the cause of death was complications from the
gunshot wounds.
Dr. Glenn Sandberg, a neuropathologist, testified that Sanchez’s brain began
to “die and degenerate” when the bullet struck it. When asked what caused the
brain to start dying, he responded:
Well, the initial cause of that –- it’s an entire process that happens. So
it was initiated with a bullet passing through the brain, which then
started off a cascade of events with -- which ultimately led to
significant increase in pressure within the skull so that -- so the body
was not able to get blood flow through the brain. And that created
what we call hypoxia-ischemia.
And, essentially, hypoxia is just not enough oxygen, and the brain is
somewhat resistant to that. But ischemia means that there’s no blood
flow. So when there’s very little blood flow or no blood flow at all, that
means that oxygen, food for the brain cells, and more importantly the
waste products of that, the metabolism of those brain cells can’t get
out. And that’s very damaging to the brain itself and will wind up
killing the brain cells.
Sandberg concluded that the gunshot “caused the chain of events” that resulted in
the damage to Sanchez’s brain. There was no other medical or expert testimony
concerning Sanchez’s injuries or medical treatment.
No record evidence supports Appellant’s claims that the final surgery or the
extubation were “premature” or that Sanchez received neglectful or improper
medical treatment. Tennant opined that Sanchez received standard medical care.
Tennant also testified that the final surgery was “necessary” and “urgent,”
GODINEZ—11
not elective as Appellant contends, because the defect in Sanchez’s exposed skull
needed to be covered to prevent infection. While hospital records used the term
“elective admission” in connection with the final surgery, Tennant believed that
term referred to scheduling the procedure, not the procedure itself. Regardless,
Sanchez would not have needed this surgery had Appellant not shot him in the
head.
Likewise, Tennant testified that Sanchez was extubated due to the severity
of his brain injuries. Sanchez was injured by the gunshot, not the removal of his
breathing tube. Before the shooting, Sanchez was healthy. A rational fact finder
could find that a healthy uninjured person who was intubated would likely not die if
their breathing tube was removed. See Felder v. State, 848 S.W.2d 85, 89–90 (Tex.
Crim. App. 1992) (removal of life support does not absolve defendant of culpability
when victim’s need of it is attributable to defendant’s actions). Sandberg also
testified that hypoxia-ischemia, the lack of oxygen and blood flow to the brain,
began when the bullet struck Sanchez’s brain.
There is no question that but for Appellant’s conduct, Sanchez would not
have died. See Robbins, 717 S.W.2d at 351. Appellant’s conduct was the only cause
of injury. And a rational fact finder could conclude that even if a concurrent cause
existed, Appellant’s conduct was nevertheless not “clearly insufficient” to cause
GODINEZ—12
Sanchez’s death. See Felder, 848 S.W.3d at 90 n.1; Thompson v. State, 93 S.W.3d 16,
20–21 (Tex. Crim. App. 2001) (finding that shooting victim in the face was not
“clearly insufficient” to cause death “even assuming, arguendo,” medical
treatment was a concurrent cause). Thus, although Sanchez survived for several
months after Appellant shot him, a rational jury nevertheless could have found
beyond a reasonable doubt that Appellant caused Sanchez’s death. Point of error
one is overruled.
JURY CHARGE ERRORS
Appellant raises two challenges to the guilt-phase jury charge. In point of
error two, he contends that the trial court erred by failing to define causation and
include a concurrent causation instruction. See TEX. PENAL CODE § 6.04. In point
of error three, he argues that the trial court commented on the weight of the
evidence by including an Article 38.36(a) instruction. Appellant did not object to
the jury charge on either of these grounds at trial, but he argues on appeal that
these errors egregiously harmed him. 5
A. Applicable Law
We review alleged jury charge errors in a two-step process set out in
5
Appellant objected to the inclusion of an Article 38.36(a) instruction for the attempted murder charges in counts two and three. He argued Article 38.36(a) only applies to murder (not attempted murder). As mentioned, those convictions are not before this Court.
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Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). First,
we determine whether the jury charge was erroneous and, if so, then we must
consider whether the error harmed the defendant. Ngo v. State, 175 S.W.3d 738,
743 (Tex. Crim. App. 2005). If the charge was erroneous and there was a timely
objection to the error at trial, we consider whether it resulted in “some harm to the
accused[.]” Almanza, 686 S.W.2d at 171. This means that “reversal is required if
the error is calculated to injure the rights of the defendant[.]” Id. (internal
quotation marks omitted). But if there was no objection to the charge error at trial,
relief is warranted only if the error resulted in “egregious harm.” Id. “An
erroneous jury charge is egregiously harmful if it affects the very basis of the case,
deprives the accused of a valuable right, or vitally affects a defensive theory.”
Alcoser v. State, 663 S.W.3d 160, 165 (Tex. Crim. App. 2022). An egregious harm
finding must be based on “actual rather than theoretical harm.” Cosio v. State, 353
S.W.3d 766, 777 (Tex. Crim. App. 2011).
Under Almanza, harm is assessed by considering the error in light of four
factors: (1) the entire jury charge; (2) the state of the evidence (including contested
issues and weight of probative evidence); (3) the arguments of counsel; and (4) if
applicable, any other relevant information contained in the record. Campbell v.
State, 664 S.W.3d 240, 245 (Tex. Crim. App. 2022) (citing Almanza, 686 S.W.2d
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at 171).
B. Concurrent Causation Instruction
Generally, a trial court must provide the jury with “a written charge
distinctly setting forth the law applicable to the case.” Art. 36.14; see also Bell v.
State, 635 S.W.3d 641, 645 (Tex. Crim. App. 2021) (“[J]ury-charge error stems
from the denial of a defendant’s right to have the trial court provide the jury with
instructions correctly setting forth the ‘law applicable to the case.’”). But a trial
court has no duty to sua sponte instruct the jury on defensive issues, which are not
subject to a request or objection at trial. See Tolbert v. State, 306 S.W.3d 776, 781–
82 (Tex. Crim. App. 2010); Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App.
1998). “An unrequested defensive issue is not the law applicable to the case.”
Taylor v. State, 332 S.W.3d 483, 487 (Tex. Crim. App. 2011) (citing Posey, 966
S.W.2d at 62).
This Court has not determined whether concurrent causation, pursuant to
Section 6.04, is a defensive issue, and we need not decide that today. See Cyr, 665
S.W.3d at 556. Section 6.04 requires a “but for” causal connection between the
defendant’s conduct and the resulting harm, and it also “limits the but for causality
for concurrent causes by the last phrase[.]” Robbins, 717 S.W.2d at 351 (internal
quotation marks omitted). Thus, to be entitled to a concurrent causation
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instruction, some evidence must show that (1) a concurrent cause, meaning an
agency in addition to the defendant’s conduct, was a but for cause of the result
charged, and (2) the concurrent cause, on its own, is clearly sufficient to produce
the result, and the defendant’s conduct is clearly insufficient. See id.; Cyr, 665
S.W.3d at 557–62.
As detailed above, the evidence showed that Sanchez died as a result of the
brain injury he suffered when Appellant shot him in the head. Tennant and
Sandberg both testified that the gunshot wound caused the complications that led
to Sanchez’s death. There is no record evidence that anything other than the
shooting caused any injury or complication.
The surgery and extubation were the direct result of the shooting and part of
the direct uninterrupted “chain of events” that caused Sanchez’s death. While
Appellant asserts that neglectful, premature, or improper medical treatment caused
Sanchez’s death, he cites no record evidence to support those claims. Even
assuming, arguendo, that the surgery or extubation contributed to Sanchez’s death
in some way, there is no evidence that either “on its own” or “by itself” was
“clearly sufficient” to kill Sanchez. See Cyr, 665 S.W.3d at 562; Robbins, 717
S.W.2d at 351. Therefore, the trial court did not err by omitting a concurrent
causation jury instruction. We overrule point of error two.
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C. Article 38.36(a) Instruction
Appellant argues that the following jury charge instruction constituted an
impermissible comment on the weight of the evidence:
You are instructed that you may consider all relevant facts and
circumstances surrounding the killing, if any, and any previous
relationship existing between the accused and the deceased, if any,
together with all relevant facts and circumstances going to show the
condition of the mind of the accused at the time of the offense, if any.
The written jury charge must not express any opinion as to the weight of the
evidence. See Art. 36.14. Thus, “it is not proper for a charge to single out certain
testimony[.]” Hawkins v. State, 656 S.W.2d 70, 73 (Tex. Crim. App. 1983). A
charge that “assumes the truth of a controverted issue is a comment on the weight
of the evidence and is erroneous.” Whaley v. State, 717 S.W.2d 26, 32 (Tex. Crim.
App. 1986). To avoid impermissible comments upon the weight of the evidence,
non-statutory jury instructions are generally disfavored. Beltran De La Torre v.
State, 583 S.W.3d 613, 617 (Tex. Crim. App. 2019).
Here, the challenged instruction tracked the language of Article 38.36(a),
which provides:
In all prosecutions for murder, the state or the defendant shall be
permitted to offer testimony as to all relevant facts and circumstances
surrounding the killing and the previous relationship existing between
the accused and the deceased, together with all relevant facts and
circumstances going to show the condition of the mind of the accused
at the time of the offense.
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Generally, Article 38.36(a) governs the introduction of evidence. See Garcia
v. State, 201 S.W.3d 695, 702 (Tex. Crim. App. 2006) (recognizing that Article
38.36(a) renders the nature of the relationship between the victim and the accused
admissible). We have recognized that a statute that declares specific evidence
admissible “without assigning any particular degree of weight to that evidence or
otherwise limiting the scope of the jury’s ability to consider it does not call for a
jury instruction.” Bartlett v. State, 270 S.W.3d 147, 153 (Tex. Crim. App. 2008).
But unlike the instruction at issue in Bartlett, the trial court’s general Article
38.36(a) instruction in this case did not “single[] out [a] particular piece of
evidence for special attention.” Id. at 152. Moreover, this Court previously
“expressly overruled” a line of cases holding that Article 38.36(a)’s predecessor
statute “should not be given in the charge, but should serve only as a guide to the
court in passing upon the admissibility of testimony[.]”Wheeler v. State, 239
S.W.2d 105, 106 (Tex. Crim. App. 1951).
Appellant argues that the instruction was improper because there was no
evidence of a previous relationship between him and Sanchez. But the instruction
did not, as Appellant suggests, assume the existence of a prior relationship or
“intimate that the jury should resolve any fact question in a certain way.” See
Atkinson v. State, 923 S.W.2d 21, 25 (Tex. Crim. App. 1996), abrogated on other
GODINEZ—18
grounds by Motilla v. State, 78 S.W.3d 352, 356–57 (Tex. Crim. App. 2002).
Even assuming, arguendo, that the trial court erred to include an Article
38.36(a) instruction, the error was harmless. The harm Appellant alleges—that the
jury would assume there was a prior relationship between Sanchez and Appellant
and consider that fact for some improper purpose—is theoretical. See Cosio, 353
S.W.3d at 777. Likewise, the Almanza factors do not support an egregious harm
finding. See 686 S.W.2d at 171.
First, the jury charge correctly instructed the jury as to the elements of the
offense of capital murder, the burden of proof, and the definitions of the requisite
mental states. Nothing about the Article 38.36(a) instruction undermined the
State’s burden of proof or permitted the jury to convict Appellant without finding
that he intentionally or knowingly caused Sanchez’s death. See TEX. PENAL CODE §
19.03(a)(1).
Second, the state of the evidence weighs heavily in favor of concluding there
was no harm. There was overwhelming evidence of Appellant’s guilt. See Campbell
v. State, 664 S.W.3d 240, 252 (Tex. Crim. App. 2022) (noting that state of
evidence weighed against finding of harm where “State’s case for guilt was
exceedingly strong”). The shooting was captured on video. Appellant drew his
weapon when Sanchez told him to “stop right there.” He began firing and, after
GODINEZ—19
Sanchez fell to the ground, Appellant took several steps toward him and continued
firing. Appellant also confessed to shooting Sanchez and said that he “probably
did” intend to kill him.
Appellant’s defense at trial was that he did not cause Sanchez’s death, and
the complained-of jury instruction had no impact on the issue of causation. See
Alcoser, 663 S.W.3d at 171 (finding no egregious harm because erroneous charge did
not vitally affect defensive theory). Given that there was no evidence of a prior
relationship between Appellant and Sanchez, it is also unlikely the jury relied on
the challenged instruction in arriving at its verdict. See Ladd v. State, 3 S.W.3d 547,
565 (Tex. Crim. App. 1999) (noting that jury “almost certainly did not rely upon”
an instruction for which there was no evidence).
Third, the arguments of counsel do not support an egregious harm finding.
During guilt-phase closing argument, defense counsel told the jury: “You didn’t
hear any evidence that Mr. Godinez and Trooper Sanchez knew each other before.
You didn’t hear any evidence that there was any sort of vendetta or revenge that
Mr. Godinez was exacting on that particular evening.” In rebuttal, the prosecutor
argued Appellant was angry because the police academy rejected him two years
earlier. The prosecutor discussed Appellant’s custodial interview, in which
Appellant said that he was thinking, “I hate these people,” referring to the police
GODINEZ—20
officers who arrested him. But the prosecutor never suggested that Appellant and
Sanchez had a previous relationship or argued that the jury should infer as much.
Fourth, there is no other relevant information pertaining to the jury
instruction at issue. On this record, we conclude that Appellant was not egregiously
harmed by the Article 38.36(a) instruction. See Almanza, 686 S.W.2d at 172. We
overrule point of error three.
ACCESS TO JAIL COMMUNICATIONS
In point of error four, Appellant contends that the trial court erred to deny
his pretrial “Motion to Cease Providing to Hidalgo County District Attorney
Copies of Jail Phone Calls, Mail, & Visitor Log of the Accused & Motion to
Suppress.” The motion sought a ruling ordering the Hidalgo County Sheriff’s
Office to stop providing copies of Appellant’s jail communications and other
information to the District Attorney’s Office. The motion also sought to suppress
the same from being introduced against him at trial. The trial court denied
Appellant’s motion. Appellant argues that the denial violated his due process and
equal protection rights under the Fourteenth Amendment and Texas Constitution.
U.S. CONST. amend. XIV; TEX. CONST. art. I, §§ 3, 9. Appellant contends that
because he was an indigent defendant unable to post bond, his case was subjected
to additional “pre-trial scrutiny” by the prosecutor in violation of his constitutional
GODINEZ—21
rights.
Appellant relies on Ake v. Oklahoma to support his due process claim. See
470 U.S. 68, 83 (1985) (holding that the Fourteenth Amendment’s due process
guarantee entitles indigent defendants to have psychiatrist appointed to assist with
defense). At a pretrial hearing on Appellant’s motion, he made “a due process and
due course of law objection couched in the terms and words of the Supreme Court
in Ake v. Oklahoma,” arguing that he was “entitled to parity” and that the State
would not have access to his jail communications if he had enough money to be out
on bond. However, we have held that Ake does not apply beyond the context of the
appointment of experts. See In re City of Lubbock, 666 S.W.3d 546, 563–64 (Tex.
Crim. App. 2023). Thus, Appellant’s Ake-based due process claim lacks merit.
The Fourteenth Amendment’s Equal Protection Clause prohibits states
from denying to any person the equal protection of the law, “which is essentially a
direction that all persons similarly situated should be treated alike.” City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). But the Equal Protection
Clause “creates no substantive rights.” Vacco v. Quill, 521 U.S. 793, 799 (1997).
Rather, it “embodies a general rule that States must treat like cases alike but may
treat unlike cases accordingly.” Id.
State action is generally presumed valid and will be upheld when it is
GODINEZ—22
“rationally related to a legitimate state interest.” Estes v. State, 546 S.W.3d 691,
697 (Tex. Crim. App. 2018) (quoting Cleburne, 473 U.S. at 440). In reviewing equal
protection claims, we consider whether (1) an Appellant was treated differently
than others similarly situated due to a particular legislative classification, and (2) if
so, whether the difference in treatment is rationally related to a legitimate state
interest. 6 Id. at 708 (Newell, J., concurring); see also State v. Rosseau, 396 S.W.3d
550, 557 n.7 (Tex. Crim. App. 2013).
With regard to the challenged state action, Appellant mistakenly presumes
that incarcerated and non-incarcerated defendants are similarly situated. They are
not. See Bell v. Wolfish, 441 U.S. 520, 545–46 (1979) (“A detainee simply does not
possess the full range of freedoms of an unincarcerated individual.”). There is no
argument or evidence that the Sheriff’s Office disparately treated inmates. And, as
Appellant concedes, the Sheriff’s Office has a legitimate security interest in
monitoring non-privileged inmate communications. See TEX. ADMIN. CODE § 291.2
(permitting only nonprivileged inmate mail to be opened and read); see also Hudson
6
Only when a state action “classifies by race, alienage, or national origin,” or “impinges on personal rights protected by the Constitution” is it subjected to strict scrutiny, requiring the action to be “suitably tailored to serve a compelling state interest.” Estes, 546 S.W.3d at 697. Appellant does not argue that he is a member of a “suspect class.” See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 29 (1973) (“[T]his Court has never heretofore held that wealth discrimination alone provides an adequate basis for invoking strict scrutiny[.]”).
GODINEZ—23
v. Palmer, 468 U.S. 517, 524 (1984) (“The curtailment of certain rights is
necessary, as a practical matter, to accommodate a myriad of institutional needs
and objectives of prison facilities, chief among which is internal security[.]”)
(internal quotations marks and citation omitted). Thus, to the extent the Sheriff’s
Office treats criminal defendants who are incarcerated differently than those who
are out on pretrial bond, that difference is rationally related to a legitimate state
interest. That non-privileged jail communications, which inmates know are
monitored, may be provided to a prosecutor does not morph otherwise permissible
state action into an equal protection violation.
Finally, although Appellant cites the Texas Constitution, he does not
“analyze, argue or provide authority to establish that his protection under the
Texas Constitution exceeds or differs from that provided to him by the Federal
Constitution.” See Arnold v. State, 873 S.W.2d 27, 33 (Tex. Crim. App. 1993).
Therefore, we will not address Appellant’s state constitutional claims. See id.; TEX.
R. APP. P. 38.1(i). We overrule point of error four.
CONCLUSION
We affirm the trial court’s judgment of conviction and sentence of death.
Delivered: October 8, 2026
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