Full Opinion

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 GODINEZ—2 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. GODINEZ—3 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 GODINEZ—4 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 GODINEZ—5 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 GODINEZ—6 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. GODINEZ—7 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 GODINEZ—8 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. GODINEZ—9 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 in- patient 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. GODINEZ—13 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 GODINEZ—14 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 GODINEZ—15 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. GODINEZ—16 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. GODINEZ—17 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 Do Not Publish