Johnson, Matthew Lee ( 2015 )

COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 12/29/2014 9:08:43 PM
Accepted 1/13/2015 9:18:15 AM
January 13, 2015 ORAL ARGUMENT IS REQUESTED ABEL ACOSTA
CLERK
No. AP-77,030
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
MATTHEW LEE JOHNSON,
APPELLANT
V.
THE STATE OF TEXAS,
APPELLEE
On appeal from the 363rd Judicial District Court of Dallas County, Texas
In Cause No. F12-23749
STATE’S BRIEF
Counsel of Record:
Craig Watkins Christine Womble
Criminal District Attorney Assistant District Attorney
Dallas County, Texas State Bar No. 24035991
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399
(214) 653-3625
(214) 653-3643 fax
CWomble@dallascounty.org
Attorneys for the State of Texas
TABLE OF CONTENTS
Index of Authorities ................................................................................................... v
Statement Regarding Oral Argument ....................................................................... 1
Statement of the Case ................................................................................................ 1
Statement of Facts ...................................................................................................... 1
Summary of the Arguments ..................................................................................... 47
Argument ................................................................................................................. 50
State’s Response to Issue Nos. 1 through 7: ............................................................ 50
THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S BATSON
CHALLENGES.
State’s Response to Issue Nos. 8 through 19: .......................................................... 71
THE TRIAL COURT DID NOT ERR IN GRANTING THE STATE’S CHALLENGES
FOR CAUSE.
State’s Response to Issue Nos. 20 through 27: ........................................................ 86
THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S CHALLENGES
FOR CAUSE.
State’s Response to Issue Nos. 28 through 30: ...................................................... 113
THE TRIAL COURT DID NOT ERR IN GRANTING THE STATE’S CHALLENGES
FOR CAUSE.
State’s Response to Issue Nos. 31 and 32: ............................................................ 119
APPELLANT WAS NOT DEPRIVED OF A LAWFULLY CONSTITUTED JURY.
ii
State’s Response to Issue No. 33: .......................................................................... 120
THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT APPELLANT’S
CONVICTION FOR CAPITAL MURDER.
State’s Response to Issue Nos. 34 and 35: ............................................................ 126
THE TRIAL COURT PROPERLY ADMITTED THE SURVEILLANCE VIDEO OF THE
INSTANT OFFENSE AS WELL AS STILL PHOTOGRAPHS FROM THAT VIDEO.
ALTERNATIVELY, ANY ERROR IS HARMLESS.
State’s Response to Issue Nos. 36 and 37: ............................................................ 137
THE TRIAL COURT PROPERLY ADMITTED THE AUTOPSY PHOTOGRAPHS AND
THE PHOTOGRAPHS OF THE COMPLAINANT IN THE HOSPITAL.
ALTERNATIVELY, ANY ERROR IS HARMLESS.
State’s Response to Issue Nos. 38 through 40: ...................................................... 143
THE TRIAL COURT PROPERLY ADMITTED EVIDENCE OF STATEMENTS MADE
BY THE COMPLAINANT PRIOR TO HER DEATH.
State’s Response to Issue No. 41: .......................................................................... 153
THE TRIAL COURT PROPERLY ADMITTED EVIDENCE OF APPELLANT’S
ACTIONS AFTER HE FLED THE WHIP-IN.
State’s Response to Issue No. 42: .......................................................................... 157
THE TRIAL COURT PROPERLY INSTRUCTED THE JURY ON VOLUNTARY
INTOXICATION.
State’s Response to Issue Nos. 43 and 44: ............................................................ 160
THE TRIAL COURT PROPERLY ADMITTED EVIDENCE DURING THE
PUNISHMENT PHASE OF APPELLANT’S EXTRANEOUS OFFENSES.
iii
State’s Response to Issue Nos. 45 through 48: ...................................................... 165
THE TRIAL COURT PROPERLY ADMITTED EVIDENCE OF APPELLANT’S
ARRESTS AND CERTAIN JUDGMENTS AND SENTENCES.
State’s Response to Issue No. 49: .......................................................................... 170
THE TRIAL COURT PROPERLY ADMITTED THE TESTIMONY OF WARDEN
MELODYE NELSON.
State’s Response to Issue No. 50: .......................................................................... 173
THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT THE JURY’S FINDING
THAT APPELLANT IS A FUTURE DANGER.
State’s Response to Issue Nos. 51 through 53: ...................................................... 178
THE TRIAL COURT PROPERLY DENIED APPELLANT’S REQUESTED JURY
INSTRUCTIONS AND OVERRULED HIS OBJECTIONS TO THE CHARGE.
State’s Response to Issue Nos. 54 through 65: ...................................................... 183
THE TRIAL COURT PROPERLY DENIED APPELLANT’S CHALLENGES TO THE
DEATH PENALTY STATUTE.
Prayer .....................................................................................................................187
Certificate of Compliance ......................................................................................187
Certificate of Service .............................................................................................188
iv
INDEX OF AUTHORITIES
Cases
Apolinar v. State,
106 S.W.3d 407 (Tex. App.—Houston [1st Dist.] 2003) aff’d, 155 S.W.3d 184
(Tex. Crim. App. 2005) ............................................................................. 162, 164
Apprendi v. New Jersey,
530 U.S. 466 (2000) ...........................................................................................184
Archer v. State,
607 S.W.2d 539 (Tex. Crim. App. 1980) ...........................................................155
Barnes v. State,
855 S.W.2d 173 (Tex. App.—Houston [14th Dist.] 1993, pet. ref'd) ..................55
Barfield v. State,
63 S.W.3d 446 (Tex. Crim. App. 2001) .............................................................124
Batson v. Kentucky,
476 U.S. 79 (1986) ....................................................................................... passim
Beltran v. State,
593 S.W.2d 688 (Tex. Crim. App. 1980) ...........................................................124
Blue v. State,
125 S.W.3d 491 (Tex. Crim. App. 2003) ...........................................................181
Bodde v. State,
568 S.W.2d 344 (Tex. Crim. App. 1978) ...........................................................118
Bone v. State,
77 S.W.3d 828 (Tex. Crim. App. 2002) ...............................................................63
Brooks v. State,
323 S.W.3d 893 (Tex. Crim. App. 2010) ...........................................................121
v
Camacho v. State,
864 S.W.2d 524 (Tex. Crim. App. 1993) ...........................................................155
Cantu v. State,
939 S.W.2d 627 (Tex. Crim. App. 1997) .................................................. 180, 182
Chamberlain v. State,
998 S.W.2d 230 (Tex. Crim. App. 1999) ...........................................................129
Chambers v. State,
866 S.W.2d 9 (Tex. Crim. App. 1993) .................................................................53
Colburn v. State,
966 S.W.2d 511 (Tex. Crim. App. 1998) ........................................ 78, 81, 88, 117
Coleman v. State,
881 S.W.2d 344 (Tex. Crim. App. 1994) .................................................... 98, 103
Cook v. State,
858 S.W.2d 467 (Tex. Crim. App. 1993) .............................................................56
Cooper v. State,
67 S.W.3d 221 (Tex. Crim. App. 2002) .............................................................121
Cordova v. State,
733 S.W.2d 175 (Tex. Crim. App. 1987) ...........................................................103
Davis v. State,
329 S.W.3d 798 (Tex. Crim. App. 2010) ...........................................................179
Davis v. Washington,
547 U.S. 813 (2006) ...........................................................................................150
Devoe v. State,
354 S.W.3d 457 (Tex. Crim. App. 2011) ...........................................................154
Duffy v. State,
567 S.W.2d 197 (Tex. Crim. App. 1978) .................................................. 181, 182
vi
Emery v. State,
881 S.W.2d 702 (Tex. Crim. App. 1994) ...........................................................128
Escamilla v. State,
143 S.W.3d 814 (Tex. Crim. App. 2004) ............................................ 89, 140, 186
Espada v. State,
No. AP-75,219, 2008 Tex. Crim. App. Unpub. LEXIS 806 (Tex. Crim. App.
2008) (not designated for publication) ...................................................... 181, 182
Estrada v. State,
313 S.W.3d 274 (Tex. Crim. App. 2010) .................................................. 171, 180
Feldman v. State,
71 S.W.3d 738 (Tex. Crim. App. 2002) ....................................................... passim
Flowers v. State,
220 S.W.3d 919 (Tex. Crim. App. 2007) .................................................. 168, 169
Furman v. Georgia,
408 U.S. 238 (1972) ...........................................................................................185
Gallo v. State,
239 S.W.3d 757 (Tex. Crim. App. 2007) ...........................................................171
Garcia v. State,
887 S.W.2d 862 (Tex. Crim. App. 1994) ...........................................................149
Gardner v. State,
306 S.W.3d 274 (Tex. Crim. App. 2009) ..................................................... passim
Gonzales v. State,
353 S.W.3d 826 (Tex. Crim. App. 2011) .................................................... 72, 113
Gordon v. State,
784 S.W.2d 410 (Tex. Crim. App. 1990) .................................................. 130, 131
Granados v. State,
85 S.W.3d 217 (Tex. Crim. App. 2002) .............................................. 85, 117, 119
vii
Gray v. State,
233 S.W.3d 295 (Tex. Crim. App. 2007) ...........................................................120
Green v. State,
912 S.W.2d 189 (Tex. Crim. App. 1995) ...........................................................181
Griffith v. State,
983 S.W.2d 282 (Tex. Crim. App. 1998) ...........................................................171
Hernandez v. New York,
500 U.S. 352 (1991) .............................................................................................61
Hernandez v. State,
176 S.W.3d 821 (Tex. Crim. App. 2005) ...........................................................163
Hernandez v. State,
563 S.W.2d 947 (Tex. Crim. App. 1978) .............................................................91
Hooper v. State,
214 S.W.3d 9 (Tex. Crim. App. 2007) ......................................................... 121-22
Jackson v. State,
33 S.W.3d 828 (Tex. Crim. App. 2000) .............................................................181
Jackson v. State,
992 S.W.2d 469 (Tex. Crim. App. 1999) ...........................................................181
Jackson v. Virginia,
443 U.S. 307 (1979) ...........................................................................................121
Jones v. State,
982 S.W.2d 386 (Tex. Crim. App. 1998) ..................................................... passim
Jordan v. State,
928 S.W.2d 550 (Tex. Crim. App. 1996) ...........................................................171
King v. State,
29 S.W.3d 556 (Tex. Crim. App. 2000) .......................................... 74, 78, 81, 121
viii
King v. State,
953 S.W.2d 266 (Tex. Crim. App. 1997) ...........................................................135
Ladd v. State,
3 S.W.3d 547 (Tex. Crim. App. 1999) ........................................ 98, 129, 141, 173
Lane v. State,
933 S.W.2d 504 (Tex. Crim. App. 1996) ...........................................................165
Lane v. State,
822 S.W.2d 35 (Tex. Crim. App. 1991) ................................................ 91, 93, 112
Leza v. State,
351 S.W.3d 344 (Tex. Crim. App. 2011) ...........................................................182
Long v. State,
823 S.W.2d 259 (Tex. Crim. App. 1991) ...........................................................142
Luna v. State,
301 S.W.3d 322 (Tex. App.—Waco 2009, no pet.) ...........................................162
Martinez v. State,
327 S.W.3d 727 (Tex. Crim. App. 2010) ...........................................................174
Mason v. State,
905 S.W.2d 570 (Tex. Crim. App. 1995) ...........................................................114
Matamoros v. State,
901 S.W.2d 470 (Tex. Crim. App. 1995) .................................................. 132, 134
Matchett v. State,
941 S.W.2d 922 (Tex. Crim. App. 1997) ...........................................................181
Mathis v. State,
67 S.W.3d 918 (Tex. Crim. App. 2002) ...............................................................54
Medellin v. Dretke,
378 F.3d 270 (5th Cir. 2004) ................................................................................59
ix
Middleton v. State,
187 S.W.3d 134 (Tex. App.—Texarkana 2006, no pet.) .....................................55
Miller-El v. Dretke,
545 U.S. 231 (2005) ................................................................................ 58, 63, 70
Montgomery v. State,
810 S.W.2d 372 (Tex. Crim. App. 1990) ...........................................................129
Morales v. State,
32 S.W.3d 862 (Tex. Crim. App. 2000) .............................................................135
Moses v. State,
105 S.W.3d 622 (Tex. Crim. App. 2003) ...........................................................154
Mosley v. State,
983 S.W.2d 249 (Tex. Crim. App. 1998) .................................................. 180, 183
Munoz v. State,
853 S.W.2d 558 (Tex. Crim. App. 1993) ...........................................................124
Narvaiz v. State,
840 S.W.2d 415 (Tex. Crim. App. 1992) ...........................................................181
Nieto v. State,
365 S.W.3d 673 (Tex. Crim. App. 2012) .............................................................57
Paredes v. State,
129 S.W.3d 530 (Tex. Crim. App. 2004) ...........................................................128
Patrick v. State,
906 S.W.2d 481 (Tex. Crim. App. 1995) .................................................. 124, 125
Paulson v. State,
28 S.W.3d 570 (Tex. Crim. App. 2001) .............................................................181
Pena v. State,
285 S.W.3d 459 (Tex. Crim. App. 2009) .............................................................79
x
Purkett v. Elem,
514 U.S. 765 (1995) .............................................................................................53
Raby v. State,
970 S.W.2d 1 (Tex. Crim. App. 1998) ...............................................................183
Rachal v. State,
917 S.W.2d 799 (Tex. Crim. App. 1996) .............................................................78
Reed v. Quarterman,
555 F.3d 364 (5th Cir. 2009) ......................................................................... 51, 62
Reese v. State,
33 S.W.3d 238 (Tex. Crim. App. 2000) .............................................................177
Renteria v. State,
206 S.W.3d 689 (Tex. Crim. App. 2006) ...........................................................181
Rhoades v. State,
934 S.W.2d 113 (Tex. Crim. App. 1996) ...........................................................182
Roberts v. State,
220 S.W.3d 521 (Tex. Crim. App. 2007) ...........................................................180
Robertson v. State,
871 S.W.2d 701 (Tex. Crim. App. 1993) ...........................................................182
Rocha v. State,
16 S.W.3d 1 (Tex. Crim. App. 2000) .................................................................179
Roethel v. State,
80 S.W.3d 276 (Tex. App.—Austin 2002, no pet.) ...........................................162
Rojas v. State,
986 S.W.2d 241 (Tex. Crim. App. 1998) .................................................. 140, 142
Romero v. State,
800 S.W.2d 539 (Tex. Crim. App. 1990) ...........................................................128
xi
Russeau v. State,
291 S.W.3d 426 (Tex. Crim. App. 2009) .................................................. 181, 182
Sadler v. State,
977 S.W.2d 140 (Tex. Crim. App. 1998) .............................................................72
Salazar v. State,
38 S.W.3d 141 (Tex. Crim. App. 2001) .............................................................148
Saldano v. State,
232 S.W.3d 77 (Tex. Crim. App. 2007) ....................................................... passim
Sakil v. State,
287 S.W.3d 23 (Tex. Crim. App. 2009) .................................................... 158, 159
Santellan v. State,
939 S.W.2d 155 (Tex. Crim. App. 1997) ...........................................................139
Segundo v. State,
270 S.W.3d 79 (Tex. Crim. App. 2008) ...............................................................85
Simpson v. State,
119 S.W.3d 262 (Tex. Crim. App. 2003) ...................................................... 82, 85
Soliz v. State,
432 S.W.3d 895 (Tex. Crim. App. 2014) ...........................................................182
Templin v. State,
711 S.W.2d 30 (Tex. Crim. App. 1986) .............................................................164
Thuesen v. State,
No. AP-76,375, 2014 Tex. Crim. App. Unpub. LEXIS 191 (Tex. Crim. App. Feb
26, 2014) (not designated for publication) .........................................................182
Threadgill v. State,
146 S.W.3d 654 (Tex. Crim. App. 2004) ........................................ 72, 87, 88, 172
United States v. Figueroa,
618 F.2d 934 (2nd Cir. 1980) .............................................................................129
xii
Vinson v. State,
252 S.W.3d 336 (Tex. Crim. App. 2008) ...........................................................150
Walder v. State,
85 S.W.3d 824 (Tex. App.—Waco 2002, no pet.) .............................................155
Watkins v. State,
245 S.W.3d 444 (Tex. Crim. App. 2008) ..................................................... passim
Weatherred v. State,
15 S.W.3d 540 (Tex. Crim. App. 2000) ....................................................... passim
Wells v. State,
578 S.W.2d 118 (Tex. Crim. App. 1979) ...........................................................156
Wesbrook v. State,
29 S.W.3d 103 (Tex. Crim. App. 2000) .................................................... 155, 158
Will. v. State,
958 S.W.2d 186 (Tex. Crim. App. 1997) ...........................................................152
Witherspoon v. Illinois,
391 U.S. 510 (1968) .............................................................................................78
Wood v. State,
18 S.W.3d 642 (Tex. Crim. App. 2000) .............................................................180
Woodward v. Epps,
580 F.3d 318 (5th Cir. 2009) ................................................................................59
Young v. State,
826 S.W.2d 141 (Tex. Crim. App. 1991) .............................................................62
Zuliani v. State,
97 S.W.3d 589 (Tex. Crim. App. 2003) .................................................... 148, 151
Constitutional Provisions
Tex. Const. art. I...................................................................................... 71, 184, 186
xiii
U.S. Const. amend. VI ............................................................................................71
U.S. Const. amend. XIV .........................................................................................71
Statutes
Tex. Code Crim. Proc. Ann. art. 35.16 (West 2006) ...................................... 71, 119
Tex. Code Crim. Proc. Ann. art. 35.16 (a)(9) ................................................... 87, 91
Tex. Code Crim. Proc. Ann. art. 35.16 (c)(2) ........................................... 86, 87, 101
Tex. Code Crim. Proc. Ann. art. 35.17, § 2 ...................................................... 75, 79
Tex. Code Crim. Proc. Ann. art. 35.261(a) (West 2006). ........................................51
Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g) ............................. 161, 162, 163, 164
Tex. Code Crim. Proc. Ann. art. 37.071, § 2(a)(1) ................................................161
Tex. Code Crim. Proc. Ann. art. 37.071, § 2(b)(1) ................................................173
Tex. Code Crim. Proc. Ann. art. 37.071, § 2(c)............................................ 101, 173
Tex. Code Crim. Proc. Ann. art. 37.071 § 2(d)(1) .................................................173
Tex. Code Crim. Proc. Ann. art. 37.071, § 2(e-f) ................................. 182, 184, 185
Tex. Penal Code Ann. § 8.04(a) .................................................................... 158, 159
Tex. Penal Code Ann. § 19.03 ........................................................................ 78, 121
Tex. Penal Code Ann. § 29.02(a)...........................................................................121
Tex. Penal Code Ann. § 31.03(a)...........................................................................121
xiv
Rules
Tex. R. App. P. 33.1(a) ................................................. 61, 76, 79, 94, 113, 155, 168
Tex. R. App. P. 38.1(h) ......................................................................... 149, 155, 179
Tex. R. App. P. 44.2(b) ............................................................. 82, 85, 135, 143, 172
Tex. R. Evid. 201 .....................................................................................................58
Tex. R. Evid. 403 .................................................. 128, 129, 134, 137, 138, 140, 142
Tex. R. Evid. 404(b).............................................................................. 153, 154, 161
Tex. R. Evid. 702 ...................................................................................................170
Tex. R. Evid. 801(c) ...............................................................................................147
Tex. R. Evid. 801(d)...............................................................................................147
Tex. R. Evid. 803(2).............................................................................. 147, 148, 149
Tex. R. Evid. 804(b)(2) ................................................................................. 148, 150
Tex. R. Evid. 1001(b).............................................................................................128
xv
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
The State of Texas submits this brief in response to the brief of Appellant,
Matthew Lee Johnson.
STATEMENT REGARDING ORAL ARGUMENT
The State requests the opportunity to present oral argument if the Court
grants Appellant’s request to argue.
STATEMENT OF THE CASE
This is an automatic appeal from a sentence of death. See Tex. Code Crim.
Proc. Ann. art. 37.071, § 2(h). The trial court sentenced Appellant to death on
November 8, 2013 for the capital murder of Nancy Harris. Appellant filed his
brief on direct appeal on August 1, 2014. He filed an amended brief on August 21,
2014. He presents sixty-five allegations of reversible error.
STATEMENT OF FACTS
Guilt/Innocence
The Offense
On May 20, 2012, 76-year-old great-grandmother Nancy Judith Harris went
to her job as a clerk at the Fina Whip-In (hereinafter, “the Whip-In”) convenience
store. (RR44:23; RR46:10; SX#2, 25). At 7:071 a.m., Appellant entered the store
1
The surveillance video is time stamped 6:07 a.m. (RR44:49; SX#17). Anna Lunceford, the
manager of the Whip-In, testified that the time was off by one hour; at the time she had not
1
carrying a lighter and a clear plastic bottle filled with lighter fluid. (RR44:50, 230;
SX#17, 79, 83, 85). Once inside, Appellant walked straight to the sales counter,
then around and behind and into the area reserved for employees. (RR44:43;
SX#17). Nancy was standing behind the counter. (SX#17). She tried to push
Appellant back. (SX#17). Appellant poured the contents of the plastic bottle over
Nancy’s head. (SX#17).
Appellant stood behind Nancy and watched as she tried to open the cash
register. (SX#17). He took two lighters from a display to the right of the register.
(RR44:231; SX#17, 85). Then, he took two packages of cigarettes from an
overhead dispenser. (RR44:231; SX#17, 87, 88). He tried to remove Nancy’s
ring from her right finger. (RR44:231; SX#17, 89, 90). The ring did not come
off easily; Appellant licked his fingers to help slide it off. (RR44:232; SX#17, 90,
91). Nancy finally got the register open2 and Appellant took all of the cash from
the cash tray. (RR44:232; SX#17, 96, 97). Then, he removed the cash tray out of
the drawer and took some of the coins. (SX#17).
Almost immediately after Appellant took the money from the register,
flames are reflected on the screen above the cash register. (RR44:232; SX#17, 97).
realized she would have to manually change the time following the time change. (RR44:35, 49-
50; SX#17).
2
Nancy opened the register for a no sale transaction at 7:10:54 a.m. (RR44:54, 128-29; SX#19,
20).
2
Nancy, engulfed in flames from her shoulders up, ran out from behind the counter.
(RR44:233; SX#17, 98). Appellant followed close behind. (RR44:233; SX#17).
Nancy ran to a nearby sink and leaned over to put out the flames. (SX#17).
Appellant calmly walked out of the store with his bottle, stopping only to take a
few pieces of candy and stuff them in his pocket. (RR44:233-34; SX#17, 98, 99,
100).
Nancy bent over the sink, trying to put out the flames consuming the upper
portion of her body. (SX#17). She stopped to pull her shirt over her head and
dropped it on the floor. (SX#17). As Nancy leaned back over the sink, her shirt,
which was still burning on the floor, lit her left leg on fire. (SX#17). Unable to
put out all of the flames, Nancy, still on fire, walked outside and waited for help.
(SX#17).
On the morning of the offense, Garland Police Officers Billy Coffey and
Simon were dispatched to “the 3300 block of Broadway at the Soulman’s Bar-B-
Que and also at the plasma center.” (RR44:62, 64). Police had received calls
regarding an audible alarm. (RR44:62). When the officers arrived at the plasma
center, they found the area secure. (RR44:64). They got back into their squad
cars and began to proceed to Soulman’s when Simon noticed flames across the
street inside the Whip-In. (RR44:62, 65-66; SX#24). Concerned, the officers
made their way to the Whip-In. (RR44:66). At that point, they had no idea what
3
was on fire. (RR44:83). Coffey was at the red light, waiting to turn into the Whip-
In, when he saw “the flames move across the inside of the building.” (RR44:66).
Now, it was an emergency situation. (RR44:84). Coffey turned on his lights and
sirens and hurried into the parking lot. (RR44:66).
By the time the officers pulled into the parking lot, Nancy was standing
outside. (RR44:84; SX#17). She was still on fire. (RR44:68; SX#17). Coffey
retrieved a fire extinguisher from the trunk of his patrol vehicle, ran up, and
extinguished the remaining flames. (RR44:68, 84-85; SX#17). Nancy was
“screaming for help.” (RR44:69). She told the officers that a man had robbed her
and poured something on her. (RR44:69). She gave a description of the robber:
a “heavy-set black male with blue jeans . . . and a T-shirt.” (RR44:70).
Garland firefighter and paramedic William Crews was in the area on an
unrelated call when a police officer flagged him down for help. (RR44:89, 92).
Crews pulled up to the Whip-In in the ambulance and began to treat Nancy.
(RR44:93). “She was in a lot of pain. She was very worried.” (RR44:93). She
had “first, second, and third degree burns to her face, her shoulders, her abdomen,
both of her upper arms, and to her - - her legs.” (RR44:93). Crews loaded Nancy
into the ambulance and left for the hospital.3 (RR44:94). At first, Nancy was
3
Crews was familiar with Nancy. He had “made runs on her before” and was aware of her
diabetes, high blood pressure and the fact that she had a pacemaker. (RR44:94, 97, 102). He
and his fellow firefighters also patronized the Whip-In. (RR44:94, 101-02).
4
conscious and able to provide her name and history. (RR44:98). As they drove,
her airway began to close and she had a harder time communicating. (RR44:98).
At the hospital, Nancy was still conscious and able to speak. (RR45:80-81).
April Gradel, a trauma nurse clinician in the burn unit, gave police a few minutes
to speak with Nancy. (RR45:85, 172, 178; SX#143). Nancy had “at minimum
second to third-degree burns over her entire head, including her face, her neck, her
upper torso, and both of her arms.” (RR45:174). Given the location of Nancy’s
burns, Gradel knew that she was going to have to be intubated. (RR45:175).
Gradel saw a police officer in the hallway and told him that if he was going to
speak with Nancy, it had to be immediately. (RR45:175). Gradel was “quite
convinced it would be [Nancy’s last opportunity to speak].” (RR45:176). Nancy
told Officer Larry Wilson that “a man she described as a black male, heavy-set,
short dark hair, and a chubby face, came into the store and demanded money from
her. She advised he took the money and then he poured something on her. She
didn’t know what - - what it was, and then he lit her on fire.” (RR45:82).
Dr. John Hunt was also involved in Nancy’s care in the Burn Unit.
(RR46:5). Dr. Hunt testified when an individual is on fire, the mechanism of
injury is the heat. (RR46:7). “Heat destroys.” (RR46:7). Dr. Hunt described the
three types of burns:
The way I usually tell it to family is if the skin is an inch thick, a
sunburn is a first-degree burn, and let’s say hypothetically that’s 1/16th
5
of an inch. So you’ve got, you know, 15/16ths of an inch left, and
that’s not injured and it heals very quickly. A third-degree burn goes
through that entire inch of skin. Now, the skin is not an inch thick,
but just vision [sic] it as it would be. When that inch of skin is
destroyed, that is a third-degree burn. By definition, it destroys any
potential for that area that’s third-degree to heal on its own. So a
second-degree is anyplace between that sunburn which is 1/16th and
that total inch, which is third-degree, in between. So potentially
second-degree burns will heal, depends on how deep they are and how
long it takes. But the skin elements are there in a second-degree burn,
and potentially it will heal. A third-degree, it will not.
(RR46:8-9). There is also a fourth-degree burn. (RR46:17). This type of burn
does not stop at the underside of the skin; it goes all the way through the skin into
the fat. (RR46:17).
Dr. Hunt testified that Nancy had burns over 40% of her body. (RR46:10).
The burns to Nancy’s upper body and face were third and fourth-degree burns.
(RR46:18; SX#146). The burns to her left arm and hand were second and third-
degree burns. (RR46; SX#147). The burns to her right shoulder and breast were
third and fourth-degree. (RR46:19; SX#148). The lower portion of her right arm
and hand were second and third-degree burns. (RR46:19; SX#148). The burns to
the top of her head were third-degree. (RR46:19-20; SX#149).
Because Nancy’s injuries were to her face and neck, she was intubated and
placed on a ventilator. (RR46:11). Her face was swollen and her eyes were shut.
(RR46:14). She was able, however, to nod her head and gesture with her hands.
(RR46:14).
6
Nancy’s treatment team determined that Nancy was not going to survive her
injuries and that treatment would be futile. (RR44:31; RR46:23). Prior to the
instant offense, Nancy executed a DNR, a do-not-resuscitate order.4 (RR44:30-31;
SX#8). On May 25, 2012, given the severity and the extent of Nancy’s injuries
and in accordance with her DNR, the decision was made to discontinue life
support, and Nancy passed away. (RR46:23-24).
Dr. Tracy Dyer, a medical examiner with the Dallas County Medical
Examiner’s Office, performed Nancy’s autopsy. (RR46:25, 29-30; SX#9, 151-59).
During the autopsy, Dr. Dyer observed “significant serious burns that involved her
entire head, chest, portions of the upper back, and portions of, I believe, it was the
left lower extremity or left thigh and leg.” (RR46:32). Her hands and palms were
completely burned, destroying Nancy’s fingerprints. (RR46:32). On the back of
her left hand, there were “some areas of skin slippage”; the thermal injuries caused
loosening under the layers of Nancy’s skin, causing it to peel off. (RR46:36;
SX#155, 156). Nancy’s right hand was more severely affected. (RR46:37). On
that hand, “the superficial layers of the skin are gone, and what you have is that
reddened deep tissue in this case, underneath.” (RR46:37; SX#157). Dr. Dyer
observed skin slippage on Nancy’s left leg and thighs. (RR46:37; SX#158).
4
Nancy’s DNR is dated May 17, 2002. (SX#8).
7
Nancy’s injuries were consistent with flame burns. (RR46:38). Fire was a
deadly weapon in this case. (RR46:38). The cause of Nancy’s death was thermal
injury. (RR46:34, 39). The manner of her death was homicide. (RR46:39).
Appellant’s Capture
Shortly after police arrived at the Whip-In that morning, calls started coming
in about a man hiding in the alleyways and between the homes in the neighborhood
directly behind the store. (RR44:70, 86). That person matched Nancy’s
description. (RR44:70-71, 86). Officers set up a perimeter around the
neighborhood behind the Whip-In. (RR44:71). Officer Rafael Perez participated
in the search. (RR44:178). In the alley behind Mt. Vernon Street, he noticed a
“heavy-set black male, no shirt, with dark pants” matching the suspect’s
description. (RR44:181-82). Perez identified Appellant as the man he saw in the
alley. (RR44:182-83). When Appellant saw Perez, he took off running.
(RR44:182-83). Perez lost sight of him briefly, but then he saw Appellant’s leg
sticking out from under a bush. (RR44:184-85). “He was laid back, kind of
leaning against the wall with one leg out.” (RR44:185). Perez drew his weapon
and instructed Appellant to come out from the bushes and get on the ground.
(RR44:185-86). Coffey arrived and they placed Appellant in handcuffs.
(RR44:186). Appellant asked the officers, “What took you so long[?] Y’all are
getting slow.” (RR44:186). Appellant was arrested and searched before he was
8
placed in the squad car. (RR44:74). From Appellant’s pockets, Coffey collected a
used lighter, a red lighter, a purple lighter, a gold ring, a car key, coins, and cash.
(RR44:75-78; SX#6, 26, 28-30, 59, 60). Appellant did not appear intoxicated.
(RR44:187).
Coffey transported Appellant to the police station.5 (RR44:74). On the
drive to the station, Appellant tried repeatedly to engage Coffey in conversation.
(RR44:80-81; SX#31). He asked, “What am I being booked for, man?” (SX#31,
1:01). When Coffey advised Appellant was arrested for attempted capital murder,
Appellant asked, “Attempted capital murder of who?” (SX#31, 11:38-1:39).
Appellant continued to try to engage Coffey in conversation. (See SX#31). He
asked if Coffey was a family man. (SX#31, 2:55). He asked whether Coffey was
Coffey or Perez. (SX#31). Coffey did not respond to Appellant’s questions.
Appellant stated, “I can tell you everything, man. I can tell you what you want to
know.” (SX#31, 3:32-3:36). A few minutes later, Appellant told Coffey that he
had been waiting for police. (SX#31, 6:25). He said that the police came “because
I want[ed] you to.” (SX#31, 6:32). Coffey testified that during the transport,
Appellant did not appear intoxicated. (RR44:79, 87). Appellant did not slur his
speech and he did not smell of alcohol. (RR44:79, 87). Appellant appeared “[to
be] coming down from [an] adrenaline rush, maybe fatigued.” (RR44:79-80).
5
A video recording of the transport video was admitted into evidence as State’s Exhibit #31.
(RR44:80-81).
9
Detective Stacy Tooke was the lead detective on the case. (RR44:213-14).
Tooke contacted Appellant at the jail after his arrest. (RR44:219). He requested
and was granted consent to take a sample of Appellant’s DNA. (RR44:219-21;
SX#103). A forensic investigator collected Appellant’s DNA and took
photographs of Appellant’s person. (RR44:221). Tooke interviewed Appellant at
the jail. (RR44:237).
The jury heard testimony from three of the residents from the neighborhood
behind the Whip-In, where Appellant hid after the instant offense. Jim Medley
lives across the alley, behind the Whip-In. (RR44:142-43). On the morning of the
offense, he was at home alone. (RR44:143-44). He heard his dog barking in the
backyard, so he went outside to investigate. (RR44:144). The gate to his rear-
entry driveway was open. (RR44:144). On his way back inside the house,
Medley saw a “black man without a shirt, pushing a bicycle. That was about, oh,
two houses away.” (RR44:148). At the time, it “seemed like a lot of commotion
in the neighborhood.” (RR44:145). Medley saw police cars and could hear
sirens. (RR44:145). He noticed his garbage container had been moved and a pack
of cigarettes in his driveway. (RR44:146; SX#48, 78). Medley is not a smoker.
(RR44:146). He picked them up and put them in the garbage. (RR44:146, 151-
53; SX#50). Inside the garbage can, he found a t-shirt. (RR44:147; SX#77).
10
Ken Marecle was at home with his daughter on the morning of the offense.
(RR44:155-56). At one point, Marecle’s daughter said a man was on their back
porch and was heading for their front door. (RR44:156). Marecle cracked open
the front door. (RR44:157). Appellant was standing on the front porch.
(RR44:159, 166-67; SX#55). Appellant’s “eyes were really wide and big.”
(RR44:169). He did not smell of alcohol. (RR44:168-69). He was wearing pants
and “military style black rim glasses” but he did not have a shirt on. (RR44:162).
Appellant told Marecle he needed help. (RR44:157, 159). Then, he tried to force
his way into Marecle’s home. (RR44:159-60). Marecle used his shoulder to push
Appellant outside into the courtyard. (RR44:160, 169). Appellant started fighting
and flailing his arms. (RR44:161, 169). He pushed Marecle backwards.
(RR44:162). Marecle fell and skinned his arms and knee. (RR44:162, 165;
SX#56). When he stood up, Appellant took the glasses off of Marecle’s face and
fled.6 (RR44:162-63, 170). Marecle and his daughter were later shown a lineup
but neither was able to identify the man they saw that morning. (RR44:210-11).
Lawrence Denson lives on Colonial, near the Whip-In. (RR45:7-8; SX#65).
On the morning of the offense, Denson was in his kitchen when he noticed
“[Appellant], looked like he was trying to get inside my gate on the side of my
house.” (RR45:9). Denson went outside to confront him. (RR45:9, 11).
6
The glasses were found several weeks later in the hedges by a neighbor. (RR44:165-66).
11
Appellant approached Denson “with his arms out, and said, man, I’m in a bad
way.” (RR45:9, 11-12; SX#51-53). Denson told him that “he needed to get his
bad way out of my yard.” (RR45:12). A family friend staying at Denson’s home
came outside. (RR45:12-13). Appellant turned around and ran toward an alley.
(RR45:13-15). Appellant did not appear to be intoxicated. (RR45:16). Denson
picked Appellant out of a lineup. (RR44:210; RR45:18-19; SX#62-63).
The Investigation
On the morning of the offense, Anna Lunceford, Nancy’s manager and
friend, was notified that the panic button had been activated at the Whip-In.
(RR44:35, 38, 44; SX#25). When she arrived at the store, Nancy was not there.
(RR44:44). The police asked Lunceford to retrieve the footage from the
surveillance cameras.7 (RR44:46). Lunceford rewound the DVR and played the
surveillance video for the police. (RR44:45-46; SX#15, 16, 17).
After she reviewed the surveillance video, Arson Investigator Nancy
Carpenter instructed firefighters to look around for the bottle that Appellant was
carrying in the video. (RR44:110-11; RR45:48-49). Firefighter Gary Church went
outside and walked toward the back of the building. (RR44:111, 113-14). He
found a drinking bottle on the ground in the grass. (RR44:111-12; SX#35, 36).
7
Lunceford testified that the Whip-In is equipped with three surveillance cameras. (RR44:39-
40; SX#10-12). The images from the cameras are recorded on a digital video recorder.
(RR44:45).
12
Inside the bottle was a paper towel, “down inside the bottle, kind of in the neck[.]”
(RR45:49; SX#36). The bottle smelled of a petroleum-type product. (RR45:49).
Carpenter collected the plastic bottle. (RR45:50-51; SX#36, 114, 115).
Inside the store, Carpenter pulled back the mat on the floor behind the sales
counter. (RR45:60). Carpenter discovered a liquid pooled beneath and collected
a sample. (RR45:60-62; SX#117, 118, 129). Carpenter transported all of the
evidence she collected to the Armstrong Laboratory, a lab capable of testing
evidence involved in an arson investigation. (RR45:69).
Dr. Kelly Wouters is a chemist with Armstrong Lab. (RR45:106-07;
SX#136). He testified to the results of the chemical testing. (RR45:110, 112, 113;
SX#137, 138). Analysis of the contents of the plastic drinking bottle and Nancy’s
clothing showed “a medium petroleum distillate of the primary recovery, and . . . a
lower level of isopropyl alcohol.” (RR45:113-14; SX#137). A medium
petroleum distillate is “the type of ignitable liquid that we encounter as charcoal
starter fluid or paint thinners - - we call it mineral spirits sometimes[.]”
(RR45:114). Isopropyl alcohol is rubbing alcohol. (RR45:115). Medium
petroleum distillates and isopropyl alcohol are “immiscible”; they do not mix.
(RR45:115). The pooled liquid collected from under the mat behind the sales
counter contained medium petroleum distillate. (RR45:116). Appellant’s t-shirt,
pants, belt, left shoe and sock, and his right shoe also contained medium petroleum
13
distillate. (RR45:116-17; SX#138). Neither the pooled liquid nor Appellant’s
clothes and shoes contained isopropyl alcohol. (RR45:116-17). No ignitable
liquids were detected on the swabs of Appellant’s hands. (RR45:116).
Dr. Wouters testified that the liquid contained in SX#60, the cigarette
lighter, was “probably butane[,]” which is not a medium petroleum distillate.
(RR45:118). The same is true for the liquid contained in SX#59, the other
cigarette lighter. (RR45:119).
The plastic drinking bottle was swabbed for a DNA sample. (RR45:128-
30; SX#160-164). Appellant’s DNA was found on the swab of the exterior of the
plastic bottle. (RR45:154; SX#142). He was also included as a possible
contributor of a DNA profile from the interior and exterior opening of the bottle.
(RR45:155; SX#142). Appellant was included as a possible contributor of a low
level sample of DNA from the cash drawer. (RR45:156; SX#142). The swab
from the cash drawer was not a very strong match to Appellant. (RR45:160). A
partial DNA profile from the cigarette package matched Appellant. (RR45:156;
SX#142). No DNA profile was obtained from one of the swabs of the T-shirt, one
of the stains from the counter, or the door handle. (RR45:150, 152; SX#142).
Another stain from the T-shirt was a match to Appellant. (RR45:150; SX#142).
There was also a profile of an unknown male and an unknown female obtained
from that stain. (RR45:150; SX#142). Nancy Harris was excluded as a possible
14
contributor to the unknown female profile. (RR45:153). A sample from a cutting
of the t-shirt was also a match to Appellant. (RR45:153; SX#142). This sample
contained a profile of an unknown female and an unknown female as well.
(RRR45:153-54).
Punishment
The State’s Case-in-Chief
At punishment, the State presented evidence of Appellant’s criminal history
and bad behavior while in prison:
In 1993, Appellant lived with Amy Armstrong Franks and three of her
children. (RR47:35-37). At the time, Appellant was Franks’ boyfriend.
(RR47:36). He was 17 and she was 23. (RR47:38). Appellant was good to
Franks’ children, but over time, he and Franks started fighting. (RR47:37, 39).
Appellant “put his hands on [Franks]” and would grab her and hit her. (RR47:40).
Franks fought back. (RR47:40, 68).
On one occasion, after a fight, Franks left the apartment and went to a
friend’s apartment upstairs. (RR47:41). She left her two-year-old daughter
downstairs. (RR47:41). While Franks was gone, Appellant took Franks’ two-
year-old and left. (RR47:41). He eventually returned, and he and Franks
reconciled. (RR47:42).
15
The last straw for Franks was when, during yet another fight, Appellant hit
Franks while she was holding her daughter. (RR47:42). Her daughter “caught the
back part of his hand.” (RR47:42). When Appellant left, Franks locked him out
and refused to let him back in her apartment. (RR47:42). She called the police
and told them what had happened. (RR47:44). Appellant returned after the police
left but Franks refused to let him in. (RR47:45). She told him that their
relationship was over. (RR47:46). Appellant banged on the door and threatened
to kick it in. (RR47:46). He threatened to beat her behind. (RR47:70, 75).
Franks barricaded the door and blocked the windows with mattresses and a bunk
bed. (RR47:46, 51). She turned off the lights and waited in the hallway with a
gun – Appellant’s gun. (RR47:47, 70). “And then [Appellant] went around and
set my patio on fire.” (RR47:46). Appellant threw something onto the patio,
setting a rug on fire. (RR47:49). Franks saw the flames and went outside.
(RR47:50). She shot at Appellant as he ran away. (RR47:50-51, 73). Then she
put out the fire. (RR47:50-51).
On September 8, 1993, Dallas Police Officer Eric Hagen was dispatched to
Franks’ apartment. (RR47:21). When he arrived, Franks was “extremely agitated
and upset” but would not let Hagen inside. (RR47:22). Hagen walked around to
the back porch of the ground-floor apartment. (RR47:23, 26). He looked over the
16
fence and saw “a burned piece of wood and burned patio carpet.” (RR47:24). It
appeared someone had tried to set the carpet on fire. (RR47:26).
On November 9, 1993, Garland Police Investigator Berry Oliver was on
routine patrol when he saw Appellant walking down the street smoking a joint.
(RR47:101, 104–107). When Appellant saw Oliver, he attempted to conceal the
joint by “stick[ing] it down the back of his neck and then [he] immediately starts
trying to get into the trunk of the car[.]” (RR47:104-05). Oliver stopped Appellant
and patted him down. (RR47:105). He found the joint “between [the] coat and
[the] shirt [Appellant was wearing]” and he found a bag of marijuana inside a
towel that Appellant was carrying. (RR47:105, 107). Oliver arrested Appellant for
possession of marijuana and an outstanding warrant. (RR47:105, 108). Appellant
pleaded guilty and received six months’ probation. (RR47:109-110; SX#167). His
probation was subsequently revoked and he was sentenced to 30 days in jail.
(RR47:110; SX#167).
On July 23, 1994, while on patrol Garland Police Officer Blaine Ralston ran
a routine check of a license plate on a black four-door Cadillac to check for
outstanding warrants. (RR47:116-17). There was an outstanding warrant on the
vehicle, so Ralston attempted to initiate a traffic stop. (RR47:117-18). He
activated his red and blue lights, but the vehicle did not stop; it “just continue[d] to
roll down the road.” (RR47:118). Ralston could see there were two people in the
17
vehicle. (RR47:118). The female driver made eye contact via the rear view
mirror. (RR47:118, 120). Ralston activated his siren but the vehicle still did not
stop. (RR47:119). The vehicle ran a stop sign. (RR47:119). Ralston could see
the male passenger motioning for the driver to ignore Ralston. (RR47:12021).
The vehicle “started to slow roll” at which point Appellant jumped out and ran
toward a house, ignoring commands to stop. (RR47:122–23). Appellant tried but
was unable to open the front door of the house. (RR47:123). Ralston and his
partner apprehended him. (RR47:123–24). He told the officers “he had told [the
driver, his wife Daphne Johnson] to continue to go and not stop because he had
warrants for his arrest.” (RR47:125). Appellant was later convicted of evading
arrest and given one year of probation. (RR47:127-28; SX#168). His probation
was subsequently revoked and he was sentenced to 180 days in jail. (RR47:128;
SX#168).
On August 7, 1995, Garland Neighborhood Police Officer M.G. Clark was
dispatched to locate Appellant, who was wanted on an ongoing aggravated assault
with a deadly weapon call. (RR47:132-33). Throughout the night, Appellant had
been making threatening phone calls and police had received a tip he was at a
particular location. (RR47:133-34). Clark located Appellant and arrested him for
outstanding warrants and the aggravated assault case. (RR47:134-37). At the jail,
Appellant threatened Clark so Clark filed a retaliation case against Appellant,
18
primarily for record purposes. (RR47:138-40). Appellant was later convicted of
the aggravated assault and sentenced to ten years in prison, probated for five years.
(RR47:140–41, 143; SX #169). The complainant on the aggravated assault case
was Courtney Johnson. (RR47:143; SX#169). The retaliation charge was no-
billed. (RR47:144).
On October 9, 2002, Garland Police Officers Clay Lacey and Gary
Steadman responded to a hit-and-run call. (RR47:147, 155). The person who
called police was following the vehicle that was involved in the hit-and-run.
(RR47:148, 155). By the time Lacy arrived at the scene, “the person in the car
was getting out.” (RR47:148-49). Lacy and Steadman searched the area and
eventually found and apprehended Appellant. (RR47: 150–151, 155–57).
Appellant repeatedly ignored Steadman’s commands to stop running and to get on
the ground. (RR47:157-58). Steadman eventually tackled Appellant and arrested
him for evading arrest. (RR47:158-60). Appellant was later convicted of the
offense and sentenced to 75 days in jail. (RR47:160-61; SX#170).
On June 14, 2004, Digna Salmeron was in her truck preparing to leave for
work when she heard a knock on the window. (RR47:182, 191). The man stated
he was sick and needed to use a phone to call an ambulance. (RR47:183). Scared,
Salmeron told the man she did not have a phone. (RR47:183-84). The man “just
went at [her].” (RR47:184). He tried to force his way into the truck. (RR47:184–
19
85, 191). The man eventually wrested the keys away from Salmeron and threw her
into the yard. (RR47:186). He then started the truck and left. (RR47:186). He later
wrecked Salmeron’s truck, rendering it inoperable. (RR47:188, 197). Salmeron
could not fully identify the person who did this to her, except that he was a big and
strong Black man. (RR47:189, 192-93).
Garland Police Officer Matthew St. Clair was dispatched as backup on the
call regarding the carjacking of Salmeron’s truck. (RR47:165, 167). When St.
Clair arrived in the area, Officer McClendon had already located the stolen vehicle
and “was in the midst of a . . . high speed vehicle pursuit through some
neighborhoods.” (RR47:166-67). The driver – Appellant – “lost control and
wrecked out and struck a wall, some parked cars in a driveway, and the corner of a
house.” (RR47:168, 170). At that point, Appellant got out and attempted to flee
on foot. (RR47:170). He was eventually taken into custody. (RR47:171-72).
Appellant was subsequently convicted of robbery and sentenced to five years in
prison and assessed a $1,500 fine. (RR47:175-76; SX#171). He was also
convicted of evading arrest, sentenced to a year in state jail, and assessed a $1,500
fine. (RR47:175-76; SX#171).
On September 13, 2004, Garland Police Lieutenant John Spera responded to
“a family disturbance” call. (RR47:78-79). “[T]here was a suspect there
attempting to kick the door in and that there was also a protective order on him.”
20
(RR47:79-80). The complainant was Daphne Johnson. (RR47:80). Daphne told
police that Appellant “had told her he was coming over to get some money and that
he would kick in the door if he had to.” (RR47:84). Footprints were visible on
the door. (RR47:85). There were two children in the apartment at the time.
(RR47:87). Appellant was subsequently convicted for violation of a protective
order and sentenced to 330 days in jail. (RR47:97; SX#166).
The State also presented evidence of a theft committed by Appellant against
his former employer. David Contente owns Kwik Kar Oil and Wash in Mesquite.
(RR48:157). Appellant worked for him in December 2010, performing State
inspections and helping out in the shop. (RR48:158-61). He later became a
cashier. (RR48:161, 183). Appellant worked ten hours a day, five days a week.
(RR48:180). He was reliable and was given a set of keys to the business.
(RR48:162, 164). Appellant did not handle conflict well, however. (RR48:163).
“He was too rigid, in our rules, you know.” (RR48:163).
On November 14, 2011, Appellant called Contente at 5:00 in the morning.
(RR48:163-64). Appellant “said I needed to come down to the store so he could
talk to me and that he had done a bad thing.” (RR48:164). Contente went to his
computer and tried to access the surveillance cameras at the store, but the camera
was blacked out. (RR48:165, 166; SX#175-178). Contente “went to the police
department and asked a policeman to go down there with me.” (RR48:170). He
21
“thought the worst.” (RR48:171). The police accompanied him to the store.
(RR48:171). There, Contente discovered that three state inspection booklets, $325
in cash, and a monitor were missing. (RR48:172-73). The inspection booklets and
the cash were taken from the safe. (RR48:172-73). The booklets are valued at
$2100. (RR48:172). Footage from surveillance camera showed Appellant in the
store earlier that morning and that Saturday night. (RR48:174; SX#173, 174).
Appellant was arrested. (RR48:178). The monitor was returned but the inspection
booklets and the cash were not. (RR48:175, 178; SX#174).
On April 15, 2012, at 5:30 in the morning, Appellant was brought into the
emergency room by Dallas police and paramedics. (RR48:190-91; SX#188). He
was handcuffed, “highly agitated” and “somewhat combative.” (RR48:194). He
was in a substance-induced psychosis. (RR48:202-03). It took eight or nine
people to hold Appellant on the bed. (RR48:194). He had to be placed in a body
net, a four-point restraint that lays over the patient and attaches to the bed.
(RR48:194-95). The more the staff tried to hold Appellant down, the more
agitated it made him. (RR48:195). Appellant made several statements: “I hope
they’re getting this on TV, God is watching all of this, XLT and divorce is a bad
thing, and I’m going to grab your gun.” (RR48:197). Once Appellant was
medicated he calmed down. (RR48:198). He reported that he had being smoking
22
crack cocaine, ice, and marijuana laced with PCP. (RR48:198). He did not report
any mental health concerns. (RR48:199-200, 208).
Parker was not involved in his discharge, but per hospital protocol,
Appellant would have been offered information and resources regarding drug
treatment. (RR48:200-01, 205, 208-09).
On the morning of April 26, 2012, Carina Pinzon was working as a
housekeeper at the Express Inn in Garland. (RR48:101). She was cleaning one of
the rooms and left the door propped open with her cart. (RR48:102). When she
was cleaning the bathroom, a man moved her cart and entered the room.
(RR48:102-03). Pinzon turned around when the man touched her shoulder.
(RR48:103-04). He said something to her in English, but she did not understand
him. (RR48:103). She asked if he needed something. (RR48:103). At that point,
she noticed that the zipper on his pants was down. (RR48:104, 108). “[H]e had
his penis outside and that’s when I got scared.” (RR48:104). His penis was erect.
(RR48:108). He tried to grab her hand. (RR48:105). Pinzon threw a bucket of
water at him, pushed him and ran away. (RR48:105). She ran to the office and
her manager called the police. (RR48:105-06).
Garland Police Officer Mark Mendoza was dispatched to the Express Inn.
(RR48:117-18). There, he spoke with Pinzon and got a description of the suspect.
(RR48:119). He then consulted with the manager to determine whether the suspect
23
was a guest at the motel. (RR48:119). The manager gave him some names and
Mendoza went to those rooms. (RR48:120). Appellant was one of the possible
suspects. (RR48:120). Mendoza recognized Appellant from a prior arrest.
(RR48:120). Appellant allowed Mendoza into his motel room, which smelled of
marijuana. (RR48:121, 129). Mendoza noticed that Appellant’s clothes were wet.
(RR48:121, 123). Appellant told Mendoza that he had been smoking crack all
night, but he did not appear intoxicated. (RR48:121, 123, 130). Mendoza asked if
Appellant had anything illegal in his room. (RR48:122). Appellant advised that he
“probably had a crack pipe or something somewhere in the room.” (RR48:122).
Mendoza asked Appellant about the incident with Pinzon. (RR48:122). Appellant
told him that “he was just trying to drop off some towels to the room.”
(RR48:122). Pinzon confirmed Appellant was the man who had exposed himself to
her. (RR48:124). Appellant was not arrested, but he was issued a criminal
trespass warning and was ordered to leave the motel. (RR48:124-25).
Mendoza had previously arrested Appellant on May 31, 1994. Mendoza and
his partner, Officer Ehrman, were dispatched to the scene of a man and woman
fighting on the side of the road. (RR48:111-12). Upon arrival, the officers
separated Appellant and the woman and ran a check for outstanding warrants.
(RR48:112). They seated Appellant in the patrol car. (RR48:113). When Officer
Mendoza opened the door to notify Appellant that he would be arrested on a
24
warrant, Appellant “came charging out of the back [of the] squad car, like trying to
get away, and we began wrestling with him.” (RR48:113). Appellant put up “a
pretty good struggle.” (RR48:114). He bit Mendoza on the arm. (RR48:114).
He bit Ehrman. (RR48:114). He bit Ehrman so hard that he bit through the
officer’s watch. (RR48:114). Appellant later pleaded guilty to resisting arrest and
was sentenced to twelve months’ probation. (RR48:115-16; SX#189). His
probation was revoked and he was sentenced to 365 days in jail. (RR48:116;
SX#189).
Carlton Jenkins was incarcerated with Appellant at the Rudd Unit for two
months in 2005. (RR47:201, 203, 238). They were bunkmates. (RR47:202). At
first, Appellant and Jenkins had “a decent relationship.” (RR47:205). Jenkins
testified that Appellant “stopped going to work . . . [and] was confined to the
housing unit then.” (RR47:207). Several times, Appellant was not able to buy
groceries at the commissary. (RR47:210). Jenkins shared some of his food with
him. (RR47:211). The bunkmates’ relationship began to change. (RR47:214).
Jenkins saw Appellant sitting on the head of his bed, which is a sign of disrespect.
(RR47:214). Appellant’s “demeanor went south.” (RR47:215). Appellant “quit
school, too.” (RR47:216). He “was on confined housing.” (RR47:216). Jenkins
tried to talk to Appellant but “It went bad.” (RR47:219).
25
July 25, 2005 “was GI day.” (RR47:220). “[E]verybody cleans the dorm.”
(RR47:220). Afterwards, Appellant “was sitting on [Jenkins’] bunk.”
(RR47:222). Jenkins told Appellant that they needed to talk because he wanted
Appellant to stop disrespecting him. (RR47:223, 247). The men went to the back
of the dorm. (RR47:223, 248). There, “[Appellant] assaulted [Jenkins]. He
swung at [him].” (RR47:223). He hit Jenkins in the head. (RR47:224). The men
“sort of grabbed each other[.]” (RR47:224). They separated when they thought a
guard was approaching. (RR47:225). Then, they “went back and then [they]
fought some more.” (RR47:225). Appellant grabbed Jenkins below his knees and
flipped him, causing Jenkins’ head to his the concrete floor. (RR47:226, 233).
Jenkins “split [his] head open.” (RR47:227). He was bleeding; “[t]here was
blood everywhere.” (RR47:227-28). Jenkins was transferred to another unit to
receive medical treatment. (RR47:230). The injury to his head required nine
staples. (RR47:230–231; SX #172). Jenkins also suffered bruising from blows to
his face and head. (RR47:232). Appellant was sent to solitary confinement.
(RR47:230).
Ashley Villegas worked for a year as a correctional officer with the Texas
Department of Criminal Justice (“TDCJ”) at the Price Daniel Unit in Snyder,
Texas. (RR47:256-57). Villegas worked the overnight shift, from 9:00 p.m. to
5:00 a.m., which required that every two hours she walk the unit and count the
26
inmates. (RR47:260, 262). On February 14, 2006, when she arrived at
Appellant’s cell during her 1:00 a.m. count, she “noticed the offender having one
arm up on his door and the other arm on his penis masturbating and looking at me
and smiling like with a grin, I guess as if he thought it was funny.” (RR47:263-
64). Appellant’s pants were down and his penis was visible. (RR47:264).
Villegas testified that Appellant was “known as . . . a high profile inmate so that
means that all the officers knew who he was, but not in a good way, because they
had also written disciplinary reports on him, too.” (RR47:271).
Jennifer Pyburn is a detention officer at the Lew Sterrett Jail. (RR48:134).
At one time, Appellant was under her supervision. (RR48:137). One time when
Pyburn was escorting Appellant to a visit, he turned around “and he was like, I
ought to just pull you in here, which is like the visitation door.” (RR48:145).
Appellant “didn’t say it in a mean - - mean way[.]” (RR48:145). He was smiling.
(RR48:145). Appellant later apologized. (RR48:155).
On another occasion, Pyburn observed an interaction between Appellant and
another detention officer when Appellant was disrespectful. (RR48:147-48). The
officer told Appellant the shower he was supposed to be cleaning was not clean
enough. (RR48:147). Appellant told her that was the way he cleaned it.
(RR48:147-48). When Pyburn instructed Appellant how to clean the shower, he
told her that “we do not pay him enough to clean the shower.” (RR48:149).
27
Pyburn testified that although it is against the rules, inmates tattoo
themselves while in jail. (RR48:140-41). The tattooing device is usually
fashioned using staples or parts from a dismantled intercom and the ink is created
using colorful candy. (RR48:140-41).
Melodye Nelson, a 25-year veteran of TDCJ, testified as an expert on the
prison system in Texas. (RR48:18). She is the senior warden of the female death
row located at the Mountain View Unit in Gatesville, Texas. (RR48:19). She
previously served as a major at the male death row located at the Polunsky Unit in
Livingston, Texas for over three years. (RR48:18-19). Nelson testified generally
about the types of facilities, number of inmates and guards statewide, and how
inmates are classified within the system.
When an inmate arrives at TDCJ, he is sent to intake in order to determine
his custody level. (RR48:32). Among the factors considered are the inmate’s
history of incarceration and prior jail conduct, as well as the nature of his current
offense and the length of his sentence. (RR48:31-32). General Population 1, or
“G1,” are those offenders who are the lowest risk. (RR48:32, 34). A G1 may be a
trustee, which allows him or her to live and work outside of the facility’s perimeter
fences. (RR48:34). General Population 2, or “G2,” is the largest percentage of
the general inmate population. A G2 may live in a dormitory and work in
maintenance, food service or laundry. (RR48:41). General Population 3, or “G3,”
28
includes inmates serving 50 years or more. (RR48:32). A G3 is not allowed into
public unrestrained and without armed supervision. (RR48:35). A G3 “cannot be
assigned anywhere on a facility that they would have access to multiple areas, such
as maintenance crews.” (RR48:41). G3s are permitted contact visits with their
immediate family. (RR48:58). General Population 4, or “G4,” are those inmates
who are disciplinary problems. (RR48:32). A G4’s movement and job assignment
are very restricted. (RR48:42). General Population 5, or “G5,” are those inmates
who are disciplinary problems and exhibit assaultive behaviors. (RR48:32-33).
Finally, administrative segregation is reserved for inmates with multiple
disciplinary incidents or gang affiliation or inmates who “have posed a threat - - a
continuing threat to the safety and security of our institutions.” (RR48:44). The
inmate’s initial classification is then referred to a State Classification Committee.
(RR48:33). Based on that classification, the inmate will be assigned to a facility
within TDCJ. (RR48:33). Once in that facility the Unit Classification Committee
will monitor and adjust the inmate’s custody level. (RR48:33).
An inmate convicted of capital murder and sentenced to life without parole
is classified as a G3 upon arrival at TDCJ. (RR48:48). A capital murderer
sentenced to life without parole will never receive a classification better than G3,
although they may be classified as a G4 or G5 or placed in administrative
segregation. (RR48:48).
29
With regard to death row inmates, there are three custody levels: 1, 2, and 3.
(RR48:46). Nelson described them as follows:
Death Row 1 meaning no disciplinaries, not a behavior problem; 2
would be the same thing, had a major disciplinary case; and a Death
Row 3 would be assaultive death row, or assaultive disciplinary case.
And we keep them as a D3 30 days. We review them. If they haven’t
had another assaultive case, we move them up to a D2. A Death Row
2, Level 2 stays there 90 days. At the 90-day mark, we review them,
and if they haven’t had some continued disciplinary problems, we - -
we bump them back up to a Death Row Level 1, a D1.
(RR48:46). All death row inmates are housed in one-man cells and most are
allowed up to two hours of recreation per day. (RR48: 46, 77). They are allowed
two hours of visitation once a week as well as a visit from a spiritual advisor.
(RR48:77).
TDCJ maintains some records of inmates’ disciplinary infractions.
(RR48:36). Records of minor infractions are not maintained; they are shredded.
(RR48:36). Minor infractions include: being out-of-place; giving things to
another inmate; failing to obey a direct order; not going to school, etc. (RR48:38).
Often, verbal confrontations between the inmate and a guard do not result in a
disciplinary case. (RR48:38). Nelson testified death row inmates have been
involved in assaults on other inmates, assaults on staff, sexual misconduct,
possession of contraband, possession of weapons, possession of drugs, and
possession of cell phones. (RR48:47). For demonstrative purposes, Nelson
30
brought some weapons she has confiscated from inmates over the years made from
materials like cardboard, parts of a typewriter, screws, and pencils. (RR48:59-62).
Appellant’s Case
Appellant testified regarding his upbringing, drug use and the instant
offense. He testified he has been using crack cocaine for “about 14 years[]” and
has experimented with alcohol and PCP. (RR49:8). He testified he began
smoking marijuana at seven years of age. (RR49:9). He bought it with his
allowance money. (RR49:9).
Appellant testified he was released from prison in July 2009 and relapsed in
October of 2011. (RR49:11). He started smoking crack and “ice.” (RR49:11).
At first, it was only on weekends. (RR49:12). He was still paying his bills.
(RR49:12). His relapse was “devastating.” (RR49:16). It made him lazy and he
fell into a deep depression. (RR49:16). “I stayed home in the dark, you know, just
was embarrassed, ashamed.” (RR49:16).
On the night before the offense, Appellant went by himself to his brother
Anthony’s wedding reception. (RR49:19). He stayed for about an hour.
(RR49:24). Everybody was happy and having a good time, but Appellant felt like
he was in his own personal hell. (RR49:19-20). Because he had missed so much
work due to his drug use, Appellant had lost his job. (RR49:20). He also felt
ashamed of his clothes and hair. (RR49:22).
31
Appellant went home, ate dinner, then walked back to the party. (RR49:25-
26). He told his cousin that he messed up his car when he put gas mixed with
water in the tank. (RR49:26-28). The cousin gave him $30 and suggested how to
fix it. (RR49:27-28). Appellant was drunk, so he used the money “to get high.”
(RR49:28). For the next several hours, Appellant “[c]ontinued to smoke, sell a
little bit, smoke, sell a little bit, smoke.” (RR49:28). He also had some Xanax to
use when it was time to return home to babysit his daughter. (RR49:29).
At about 6 o’clock in the morning, Appellant walked back to his brother’s
house. (RR49:30). He found a bottle of wine on the patio and drank the whole
thing. (RR49:30). He “wanted money. I wanted to get high on crack.”
(RR49:30). He saw a plastic water bottle. (RR49:30). He put lighter fluid in it.
(RR49:30). He was “[j]ust going to take it and scare the person.” (RR49:30). He
planned to “[p]our it on her.” (RR49:30). It was going to be a “scare tactic.”
(RR49:31). Although he did not remember having a lighter, he acknowledged he
would have had to have one to smoke crack. (RR49:32).
Appellant walked across the street to the Whip-In. (RR49:31). He wanted
to get the money and leave. (RR49:32). He did not intend to set Nancy on fire.
(RR49:31). Appellant walked inside and “saw a lady.” (RR49:33). She was
getting the mop bucket ready. (RR49:33). Appellant walked behind the counter.
(RR49:33). Nancy followed him and told him he was not supposed to be behind
32
the counter. (RR49:33). When she got close to him “I just poured the fluid over
her head. At that time I remember she was - - started trembling.” (RR49:33).
Appellant told Nancy to open the cash register because he wanted the
money. (RR49:33). While she was opening the register, he took a lighter and
some cigarettes. (RR49:33). He did not remember taking Nancy’s ring.
(RR49:33-34). Nancy opened the register and moved away. (RR49:34).
Appellant took the money. (RR49:34). He warned Nancy to stand back because
he had a lighter. (RR49:34). She moved toward him and he “flipped [the lighter]
once to try to scare her but that didn’t stop her.” (RR49:34). Nancy reached
across him again. (RR49:34). It “spooked” Appellant so he flicked the lighter
“again, twice, hoping that she would move back.” (RR49:34). That’s when
Nancy’s clothes ignited. (RR49:35). Appellant was not thinking. (RR49:35-36).
He was intoxicated; he had smoked nearly $100 worth of crack, consumed alcohol,
and had taken a Xanax. (RR49:36). He did not think to help Nancy once she was
on fire. (RR49:36).
Appellant “knew [he] had [done] a bad thing, so [he] just - - [he] just ran.”
(RR49:41). He ran and hid in some bushes and smoked a cigarette. (RR49:41).
He “got tired of laying in those bushes, so when [he] came out, that’s when [he]
saw the police car parked at the end of the street.” (RR49:40-41). Appellant
33
started running. (RR49:41). When he tired of running, he sat on a porch and
waited for the police. (RR49:41).
Appellant remembered “tussling” with Marecle but did not remember his
encounter with Denson. (RR49:41). He remembered stealing a bicycle.
(RR49:41-42). He testified he thought the ride to the police station was “very
short. It was like I just closed my eyes and opened my eyes and I was there.”
(RR49:42). When he was in the patrol car, he did not understand what he had
done. (RR49:43).
Appellant’s testified that his parents were married. (RR49:46, 90). His
mother worked during the day and his father worked at night. (RR49:46). They
took him to church and taught him right from wrong. (RR49:90). Appellant has
two brothers, Anthony and Timothy. (RR49:47). Anthony went into the military.
(RR49:47). Timothy “has been in prison half his life.” (RR49:47).
When Appellant was five years old, a cousin “put his penis in my mouth,
[and] peed in my mouth.”8 (RR49:50). Appellant’s cousins and uncle laughed at
him. (RR49:50). When he was eight, the family friend he bought drugs from,
fondled him. (RR49:48). “He pulled my penis out and wanted to suck it.”
(RR49:48). Appellant “let him do it for a little while, but then [he] knew that
8
Appellant testified he never said anything about childhood sexual abuse prior to counsel on the
instant offense. (RR49:91). He never mentioned it during previous incarcerations or when he
was hospitalized because he thought it “was irrelevant at the time.” (RR49:91).
34
wasn’t right.” (RR49:48). He told him to stop. (RR49:48). Appellant still bought
drugs from him. (RR49:48-49). Appellant used the fondling incident “to hold
over [the friend’s] head.” (RR49:49). Appellant threatened to tell about the abuse
and the man “gave [him] what [he] wanted.” (RR49:49).
Appellant testified that when he dated Amy Armstrong they fought and
argued. (RR49:53-54). He admitted that he hit Armstrong, but “I didn’t just hit
her enough just to really hurt her, but just enough to make her stop hitting me[.]”
(RR49:53). He testified he threw the burning log on her patio “to get her to come
outside, get her to let me in. I had nowhere to go.” (RR49:54).
Appellant is married to Daphne Johnson. They have three daughters.
Appellant and Daphne started dating when he was fifteen years old and married
when they were eighteen. (RR49:52, 55). Appellant admitted that he used to hit
Daphne. (RR49:55). He never hit her “enough to just hurt her, just enough to back
her off.” (RR49:57).
Appellant dropped out of school when he was in eleventh grade. (RR49:46).
He was never placed in special education classes, but he was in “basic classes.”
(RR49:91). He took courses in auto body technology at Richland College.
(RR49:91). Appellant testified he “learn[s] at a slow pace[,]” but he does not have
a learning disability. (RR49:92).
35
Appellant worked at a company called Sanden for about five years, from
1997 until 2002. (RR49:58). He started on the assembly line, but was promoted
four times, all the way to repairman. (RR49:59). He was eventually fired because
he missed too many days of work. (RR49:58-59). At the time, he was using
drugs on the weekends and “it carried on until the Mondays and Tuesdays[.]”
(RR49:59). After he was fired, Appellant checked himself into Green Oaks
Hospital to be treated for drug abuse. (RR49:59). He was there for a week and
was diagnosed with depression. (RR49:60). After Green Oaks, he was sent to
Summer Sky in Stephenville for further inpatient treatment. (RR49:60).
Appellant spent 35 days at Summer Sky. (RR49:60). He “wasn’t ready [to leave],
but [his] insurance ran out.” (RR49:61). He spent a week in a halfway house, then
returned home to his wife. (RR49:61). Upon his return home, he stayed sober for
a few weeks, then went back to using crack and marijuana and drinking alcohol.
(RR49:61-62).
Appellant testified he was “under the influence[]” when he stole Salmeron’s
truck and “coming down off of [drugs]” during the theft of the Kwik Kar’s money
and inspection books. (RR49:62, 75). Appellant testified he did not remember the
incident with Pinzon. (RR49:118). Every time he has been in trouble, it was
because of the drugs and depression. (RR49:99-100). He was depressed “because
I couldn’t do more for my family and myself.” (RR49:99). He testified the first
36
time he spoke with Daphne after the instant offense, he “couldn’t remember what
[he] had done.” (RR49:80). Appellant confirmed his criminal history:
 September 15, 1991: At 15, Appellant was arrested driving a stolen car.
(RR49:100).
 February 4, 1992: He was arrested for pushing a police officer.
(RR49:100).
 December 9, 1992: He was arrested for theft. (RR49:100).
 August 13, 1993: He was arrested for assaulting Armstrong.
(RR49:100-01).
 September 8, 1993: He was arrested after he threw the burning object
onto Armstrong’s patio. (RR49:101).
 September 9, 1993: He was arrested for possession of marijuana.
(RR49:102). This is the only drug charge Appellant has ever had.
(RR49:102).
 February 8, 1994: Appellant was arrested for outstanding warrants.
(RR49:102).
 April 16, 1994: He was arrested for an outstanding warrant on the
marijuana charge. (RR49:102).
 May 31, 1994: He was arrested for assault warrants. (RR49:103). This
is when he bit Officers Mendoza and Ehrman. (RR49:103).
 July 23, 1994: Appellant directed Daphne not to stop the car when the
police were trying to pull her over. (RR49:103).
 August 7, 1995: He was arrested for aggravated assault against Daphne’s
sister, Courtney Johnson. (RR49:104).
 June 9, 2002: He was issued a Class C assault citation for hitting
Daphne. (RR49:105).
37
 October 9, 2002: He was arrested for evading arrest. (RR49:105).
 November 15, 2002: He was arrested for assaulting Daphne.
(RR49:105).
 July 3, 2003: Appellant did not remember walking up and hitting Daphne
as she sat in the drive though at Braum’s. (RR49:106). But, he did not
deny that the incident happened. (RR49:47).
 September 7, 2003: He was arrested for assaulting Daphne. (RR49:107).
 January 5, 2004: He was arrested for theft. (RR49:107)
 June 19, 2004: He was arrested for robbing Salmeron. (RR49:107).
 September 13, 2004: He violated Daphne’s protective order.
(RR49:108).
Appellant testified the reason he set Nancy on fire was because she was
coming at him. (RR49:120). Appellant acknowledged that when he was arrested,
he only told police that he had consumed cocaine and two beers prior to the
offense. (RR49:120). He did not mention the bottle of wine or the Xanax.
(RR49:120). “It was irrelevant. I was intoxicated.” (RR49:120).
Photographs of Appellant’s tattoos were admitted into evidence.
(RR49:130-33; SX#179-186). Appellant testified he got several of them while he
was in prison. He acknowledged that he was never caught for those rule
violations. (RR49:132). Recently, while incarcerated for the instant offense,
38
Appellant had “Gift from God” tattooed around his collarbone. (RR49:132, 133).
He did not get caught for this rule violation. (RR49:132).
Appellant’s supervisor from Sanden testified that Appellant was a good
worker. (RR49:137-38, 141). His only problem was his attendance. (RR49:142).
Several co-workers testified Appellant was polite and friendly. (RR49:149-50,
157, 162). They testified this offense was out-of-character. (RR49:153, 158-59,
166).
Daphne Johnson testified she is Appellant’s wife. (RR49:184). She testified
when they married, they were immature. (RR49:186). They struggled financially,
they did not communicate well, and their arguments got physical. (RR49:186).
They hit each other. (RR49:217). Daphne did not remember reporting to police
that Appellant had made threatening phone calls. (RR49:219). She did not
remember her sister filing an aggravated assault charge against Appellant.
(RR49:220).
In an application for protective order, Daphne alleged that on December 9,
2003, Appellant “became angry and punched [her] in the face.” (RR49:223;
SX#193). She also wrote that Appellant “very frequently” did the following:
called her names and criticized her; tried to keep her from doing something; going
out with friends; gave her angry looks or stares; prevented her from having money
for her own use; threatened to hit or throw something at her; pushed, grabbed, or
39
shoved her; put down her family or friends; and, slapped, hit or punched her.
(RR49:222; SX#193). In the affidavit, Daphne also detailed Appellant’s prior
assaults. (RR49:223-24; SX#193). In November of 2003, Daphne locked
Appellant out when he came home very late. (RR49:224). He beat and banged on
the door. (RR49:224). When Daphne finally let him in, he pushed her.
(RR49:224). In October of 2003, Daphne again locked the door when Appellant
went out. (RR49:224). Appellant kicked in the door and punched her in the face
and chest. (RR49:224). She suffered a black eye, scratches on her face and neck,
and soreness and pain. (RR49:224). She was unable to work for two weeks.
(RR49:224). Daphne wrote:
Over the last nine years, Matthew has been physically violent and
abusive to me. He has hit me, punched me, slapped me, kicked me
once, strangled me, pushed and shoved me, and thrown me around.
I’ve had bruises, black eyes, a bloody nose, a busted lip, scratches;
soreness, swelling and pain.
(SX#193).
Daphne first became aware of Appellant’s drug use after his grandmother
died. (RR49:187). He “would go off on binges” and disappear for a day or two.
(RR49:188). Appellant would get physical with Daphne when he was high.
(RR49:198). Daphne kicked him out of the house four to six times. (RR49:190).
She tried to talk to him about his drug use. (RR49:195). He tried to stop using on
his own. (RR49:195). Appellant also suffers from depression. (RR49:209). The
40
depression became more frequent after the Kwik Kar incident. (RR49:210). In
Daphne’s opinion, Appellant was high at the time of the offense. (RR49:243). She
testified that Appellant “was an awesome father” to their three daughters.
(RR49:192).
Pharmacologist Dr. John Roache testified as an expert regarding illegal
drugs and addiction. (RR50:27). Roache testified addiction is “a learning process
that happens with repeated use of drugs of abuse.” (RR50:30-31).
Cocaine is a stimulant. (RR50:33). It increases wakefulness and vigilance
and produces feelings of intense euphoria and motivation. (RR50:34). Marijuana
is a plant and a mild hallucinogen. (RR50:34). Phencyclidine or, PCP, is a
hallucinogen. (RR50:35). A user feels “superhuman empowered.” (RR50:35). It
can also produce “psychotic like effects, where you can have hallucinations,
paranoia, and extreme agitation.” (RR50:35). Methamphetamine or “ice,” is a
stimulant, which produces effects similar to cocaine. (RR50:35). Xanax is a
benzodiazepine. (RR50:36). It is a sedative and used to treat anxiety. (RR50:36).
Commonly, an addict will use multiple chemical substances. (RR50:37).
This is referred to as poly-substance dependence or poly-substance abuse.
(RR50:37). When an individual is under the influence, he may be more impulsive.
(RR50:37). “[T]he addict becomes more driven for the immediate consequences
of the drug experience and less thoughtful or conscientious or cognitively decisive
41
about longer term consequences.” (RR50:37-38). Often, addicts have relapses
after periods of sobriety. (RR50:43).
Roache conceded that when Appellant checked himself into the hospital in
2002, he was depressed because he was unable to quit using drugs. (RR50:44).
Indeed, the discharge instructions indicate “The patient was profoundly depressed
because of his inability to stop doing drugs, and having observed his many losses,
including job, family, financial, and clearly self esteem.” (RR50:53; DX#22).
Roache conceded that while incarcerated prior to trial, Appellant was not
diagnosed with depression, but with poly-substance abuse and substance-induced
mood disorder. (RR50:45).
Although Roache did not review the surveillance video of this offense, he
opined Appellant was intoxicated at the time he committed the offense.
(RR50:45). Roache did not think it was “necessary[]” to review the surveillance
video. (RR50:45-46).
Frank AuBuchon testified as an expert on the Texas prison system. He
described the various classification levels and the types of housing available.
(RR50:146-47, 151, 158, 160-61). AuBuchon reviewed Appellant’s entire
classification file, records of Appellant’s incarceration at the Dallas County Jail, a
summary of Appellant’s extraneous offenses, and a summary of the instant offense.
42
(RR50:145-46). AuBuchon testified Appellant will go into TDCJ as a G3 and will
be placed in a high security unit. (RR50:157).
Dr. Jonathan Sorensen testified that he conducted an actuarial analysis to
determine the probability that Appellant will be violent in prison. (RR51:22, 27;
DX#25). Sorensen opined that Appellant “will fare better than the average
incoming capital offender.” (RR51:30; DX#26). The factors that decreased
Appellant’s risk of violence include: his age; his educational level; a lack of a
disruptive group or gang affiliation; his prior prison behavior and classification
level; and, the fact that he would be serving life without the possibility of parole.
(RR51:30-31, 38, 42, 44). The factors that increased Appellant’s level of risk
include: his prior incarceration; his prior assaults while incarcerated; and, the fact
that his capital murder involved a contemporaneous robbery. (RR51:45-46, 20-
51).
James Aiken, a prison consultant who has never worked in a Texas prison,
testified that Appellant “fares low on the factors of providing unusual risk to staff,
inmates, or the general public.” (RR51:58, 60, 61; DX#27).
Appellant’s older brother Timothy9 testified about their family and their
history of drug use. All three brothers used drugs. (RR50:74). Timothy was
aware that Appellant used drugs at a young age. (RR50:73). Twice, he took away
9
At the time of trial, Timothy was serving a 40-year sentence for a 2004 conviction for theft of a
person and assault on a public servant. (RR50:67).
43
Appellant’s marijuana. (RR50:75). Then, Timothy went to prison when Appellant
was 15 years old and was gone for eleven years. (RR50:85). Timothy returned
home for a couple of years, then went back to prison on two 40-year sentences.
(RR50:85).
Timothy was present during one fight between Appellant and Daphne.
(RR50: 80-81). Appellant tried to slap Daphne. (RR50:81). Timothy intervened
and he and Appellant “had a fight - - a tussle.” (RR50:81). In Timothy’s opinion,
Appellant was intoxicated at the time because “he was big and I’m smaller and I
handled him - - I mean, real easy.” (RR50:82).
Appellant’s mother-in-law, Hazel Johnson, testified that Appellant is a good
person and a good father. (RR50:88, 90, 92). In the month before the offense,
Appellant was stressed and depressed. (RR50:93-94). Daphne’s aunt, Frances
Wilson, testified she learned that Appellant had a drug problem about five years
after he and Daphne were married. (RR50:100). She started talking to him about
it in 2011. (RR50:101-02). Appellant was depressed and Wilson worried that he
would harm himself. (RR50:103). Wilson was not aware of any physical abuse
between Appellant and Daphne. (RR50:100). Daphne’s sister Courtney Johnson
testified Appellant and Daphne’s relationship was “a normal relationship, just like
any other married couple would have.” (RR50:111-12). She never saw Appellant
physically abuse Daphne, but she would “hear stuff from [her] sister.”
44
(RR50:112). Courtney was aware of Appellant’s drug problem and has seen him
under the influence. (RR50:113). She did not recall the incident on August 7,
1995 when Garland police were called to her apartment. (RR50:126-27). She did
not recall telling police that Appellant pointed a gun at her. (RR50:128). She did
not recall trying to drop charges with the district attorney’s office. (RR50:128).
She has no recollection of the fact that Appellant pleaded guilty to that offense and
served out a probation. (RR50:126-27).
A week before this instant offense, Courtney went with Appellant to the
Garland Police Station when he asked them to “lock him up” because he was on
drugs and wanted to avoid getting into trouble. (RR50:123). Without any active
warrants, the police did not arrest him. (RR50:124).
Valerie Braziel is Appellant’s daughter Matduxx’s godmother. (RR50:166,
169). They met in 2009 after Appellant’s release from prison. (RR50:169-70).
Since that time, they have become friends. (RR50:170). In the time leading up to
this offense, Appellant was withdrawn and Braziel felt as though he was depressed.
(RR50:174). Braziel had no idea that he was a drug addict. (RR50:174). She was
not aware of any domestic violence between Appellant and Daphne. (RR50:173).
The State’s Case-in-Rebuttal
Nurse Kelly Nelson treated Nancy in the Burn Intensive Care Unit at
Parkland Hospital. (RR51:71-73). Nancy was in pain. (RR51:74). She was
45
unable to speak because she had a breathing tube. (RR51:74). Nelson
communicated with Nancy using non-verbal pain scales “based on how the patient
is acting or like body language, emotion.” (RR51:74). Nelson was able to ask
Nancy “yes” or “no” questions and Nancy responded using hand signals and nods.
(RR51:74-75). On May 23, Nancy was “in critical condition.” (RR51:75).
Nancy was concerned about her prognosis. (RR51:75). “She attempted to
communicate to me by using her finger and writing in the air, and she spelled out
the word die, d-i-e. I clarified that that’s what she had spelled out to me, and she
nodded, yes. . . . She nodded yes to the question, are you wondering if you are
going to die.” (RR51:75). When Nelson explained all of the “interventions” that
the medical team was performing, Nancy “was shaking her head no.” (RR51:76).
Nancy “didn’t want all the interventions that we were providing for her.”
(RR51:76).
The State published the recording from Officer Coffey’s dashboard camera.
(RR51:81; SX#187). On the video, when the officers pull up to the Whip-In,
Nancy is standing outside. (SX#187). She is still on fire. (SX#187). She can be
heard screaming and pleading for help. (SX#187).
Nancy’s daughter-in-law, Elizabeth Harris, testified briefly regarding the
effect of Nancy’s death on the family. (RR51:82). Elizabeth is married to Chris
Harris, Nancy’s youngest son. (RR51:82). She was very close to Nancy. (RR51:
46
84). Elizabeth and Chris have three daughters, Lorelei, Hanna, and Olivia.
(RR51:84). Every Friday Nancy would pick up the girls from school and have a
“Mimi day[.]” (RR51:84). Nancy was an “amazing” grandmother. (RR51:85).
SUMMARY OF THE ARGUMENT
Issue Nos. 1-7: The trial court properly denied Appellant’s Batson
challenges to the State’s exercise of peremptory challenges against seven minority
veniremembers. Appellant has not met his burden to show that the State’s strikes
were the product of racial discrimination.
Issue Nos. 8-19: The trial court properly granted the State’s challenges for
cause against 4 prospective jurors. These jurors possessed biases against the law
the State was entitled to rely upon. Appellant has failed to show that he was
deprived of his right to a fair and impartial jury.
Issue Nos. 20-27: The trial court properly denied Appellant’s challenges for
cause against 8 prospective jurors. All of the denials were proper and Appellant
has failed to show that he was denied the use of a statutorily provided peremptory
challenge.
Issue Nos. 28-30: The trial court properly granted the State’s challenges for
cause against 3 prospective jurors. These jurors possessed biases against the law
the State was entitled to rely upon. Appellant has failed to show that he was
deprived of his right to a fair and impartial jury.
47
Issue Nos. 31-32: Appellant’s argument that he was deprived of a lawfully
constituted jury lacks merit. Appellant has failed to prove that any of the trial
court’s rulings on any of the challenges resulted in the seating of a juror who was
biased or prejudiced.
Issue No. 33: The evidence is sufficient to support Appellant’s conviction
for capital murder. Contrary to the assertions in his brief, the record is replete with
evidence showing his specific intent to kill Nancy Harris. Further, the evidence
also shows that the murder took place during the course of committing or
attempting to commit robbery.
Issue No. 34-35: The trial court properly admitted the surveillance video of
the instant offense as well as the still photographs from that video. While the
video is graphic, it simply depicts the reality of Appellant’s crime. The probative
value of this evidence was not substantially outweighed by its prejudicial effect.
Issue Nos. 36-37: The trial court properly admitted the photographs of
Nancy at autopsy and at the hospital prior to her death. The photographs helped
the medical examiner and her physician in their testimonies, and they depict
nothing more than the reality of Appellant’s brutal crime.
Issue Nos. 38-40: The trial court properly admitted evidence of statements
Nancy made prior to her death. These statements were admissible as excited
utterances and/or dying declarations. Alternatively, any error is harmless.
48
Issue No. 41: The trial court properly admitted evidence of Appellant’s
actions after he fled the Whip-In. This evidence was admissible as same-
transaction contextual evidence. Alternatively, any error is harmless.
Issue No. 42: The trial court properly instructed the jury regarding voluntary
intoxication. Appellant’s cross-examination may have led the jury to believe his
actions were excused by his intoxication.
Issue Nos. 43-44: The trial court properly admitted during the punishment
phase, evidence of Appellant’s extraneous conduct with former girlfriend, Amy
Franks. There is no evidence that the State acted in bad faith and Appellant has
failed to show that he was surprised or that his defensive strategy would have
changed in any way.
Issue Nos. 45-48: The trial court properly admitted during the punishment
phase, evidence of Appellant’s prior convictions. The State presented evidence
tying Appellant to each of the complained-of exhibits.
Issue No. 49: The trial court properly admitted the expert testimony of
Warden Melodye Nelson as her testimony was relevant and helpful to the jury in
deciding the first special issue. Alternatively, any error is harmless.
Issue No. 50: The evidence was legally sufficient to support the jury’s
answer to the future dangerousness special issue. Based upon the facts of the
instant offense, as well as the evidence of Appellant’s past acts of crime and
49
violence, a rational jury could find that Appellant would constitute a continuing
threat to society.
Issue Nos. 51-53: Appellant’s arguments regarding the punishment charge
are inadequately briefed and multifarious. Regardless, the trial court properly
denied his requested instructions and properly overruled his objections to the
charge.
Issue Nos. 54-65: Appellant’s admittedly meritless federal constitutional
challenges to the Texas death penalty statute are presented only to preserve the
complaints for federal habeas review. And while Appellant invites this Court to
revisit its prior holdings against his position, he provides no new authority for this
Court or the State to address.
ARGUMENT
STATE’S RESPONSE TO ISSUE NOS. 1 THROUGH 7: THE TRIAL COURT DID NOT ERR IN
DENYING APPELLANT’S BATSON CHALLENGES.
In Issues 1 through 7, Appellant contends that the trial court erred in
overruling his objection based on Batson v. Kentucky, 476 U.S. 79 (1986) to the
State’s use of peremptory challenges on veniremembers Sheppard Brown,
Kimberly Houston, Percy Phillips, Shirley Wilson, Telli White, Dionne Hashaway,
and Christylynn Kyles. (Appellant’s Br. at 35-51). These contentions lack merit
and should be overruled.
50
Applicable Law
The Texas Code of Criminal Procedure and the U.S. Constitution prohibit
the use of peremptory challenges to exclude prospective jurors on the basis of race.
Tex. Code Crim. Proc. Ann. art. 35.261(a) (West 2006); Batson, 476 U.S. at 85;
Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App. 2008). Under Batson, a
defendant must first make a prima facie showing that the prosecution exercised its
peremptory challenges on the basis of race. Reed v. Quarterman, 555 F.3d 364,
368 (5th Cir. 2009). If the defendant makes that showing, the burden shifts to the
prosecutor to present race-neutral explanations for striking the jurors in question.
Id. The court must then determine whether the defendant has carried his burden of
proving purposeful discrimination. Id.
At the second step of this process, the proponent of the strike need only
tender an explanation that is race-neutral. Watkins, 245 S.W.3d at 447. The
ultimate plausibility of that race-neutral explanation is to be considered as part of
the third step of the analysis, in which the trial court determines whether the
opponent of the strike (usually the defendant) has satisfied his burden of
persuasion to establish by a preponderance of the evidence that the strike was
indeed the product of the proponent’s racial discrimination. Id. Whether the
opponent satisfies his burden of persuasion to show that the proponent’s facially
51
race-neutral explanation for his strike is pre-textual, not genuine, is a question of
fact for the trial court to resolve in the first instance. Id.
This Court should not overturn the trial court’s resolution of the Batson issue
unless it determines that the trial court’s ruling was clearly erroneous. See
Watkins, 245 S.W.3d at 447-48. In assaying the record for clear error, vel non, this
Court should consider the entire record of voir dire; it need not limit itself to
arguments or considerations that the parties specifically called to the trial court’s
attention so long as those arguments or considerations are manifestly grounded in
the appellate record. Id. at 448. But this Court should examine a trial court’s
conclusion that a facially race-neutral explanation for a peremptory challenge is
genuine, rather than a pretext, with great deference, reversing only when that
conclusion is, in view of the record as a whole, erroneous. Id.
Analysis
I. Appellant failed to establish a prima facie case of discrimination, but
the issue is moot.
After the parties exercised their peremptory strikes, Appellant asserted that
he “would have Batson objections to some of the State’s strikes.” (RR43:19).
Appellant identified seven African-Americans veniremembers that the State struck.
(RR43:19-20). The State argued that Appellant failed to establish a prima facie
case. (RR43:20). Without ruling on the State’s objection, the trial court stated
that it “would prefer that the State explain their strikes.” (RR43:20). The State did
52
not object to the trial court’s failure to rule. Consequently, this Court must assume
that Appellant satisfied his step-one obligation to make a prima facie case of
purposeful discrimination and address only the second and third steps. See
Watkins, 245 S.W.3d at 448; see also Chambers v. State, 866 S.W.2d 9, 23 (Tex.
Crim. App. 1993) (where the State fails at trial to object to the trial court’s failure
to rule on the defendant’s prima facie case, that issue becomes moot and it cannot
be raised on appeal).
II. The State’s race-neutral explanations
At the second step of the Batson process, the prosecutor need only tender an
explanation that is race-neutral on its face. Purkett v. Elem, 514 U.S. 765, 768
(1995) (indicating the State has a burden of production in the second step merely to
present a facially valid explanation for its strike); Watkins, 245 S.W.3d at 447.
Brown, Phillips, White, Hashaway, and Kyles
At the Batson hearing, the State explained that it stuck all qualified
prospective jurors who ranked themselves as a “3” on their questionnaire.
(RR43:20-21). Question No. 2 on the questionnaire asked: “With reference to the
death penalty, which of the following statements best represents your feelings?”
(RR4-RR34; RR36-RR42; Q. p. 1). A ranking of “3” indicates the following
opinion: “Although I do not believe that the death penalty should ever be imposed,
as long as the law provides for it, I could assess it under the proper set of
53
circumstances.” (RR4-RR34; RR36-RR42; Q. p. 1). The State explained that it
struck every person on the qualified-juror panel that selected number “3,”
including Sheppard Brown (Juror 2A, an African-American male), Percy Phillips10
(Juror 60A, an African-American male), Telli White (Juror 329A, an African-
American female), Dionne Hashaway (Juror 911A, an African-American female),
and Christylynn Kyles (Juror 1133A, an African-American female), Christina
Moore (Juror 271A, a Caucasian female), Laura Luna (Juror 340A, a Caucasian
female), Ronald Drake (Juror 759A, a Caucasian male), and Scot McComas (Juror
1331A, a Caucasian male). (RR43:20-21; Brown, Juror 2A, Q. p.1; Phillips, Juror
60A, Q. p.1; White, Juror 329A, Q. p.1; Hashaway, Juror 911A, Q. p.1; Kyles,
Juror 1133A, Q. p.1; Moore, Juror 271A, Q. p.1; Luna, Juror 340A, Q. p.1; Drake,
Juror 759A, Q. p.1; McComas, Juror 1331A, Q. p.1). The State also intended to
strike Jerry Matlock, (Juror 1500A, a Caucasian male), the last juror in the
alternate pool, on the same grounds. (RR43:21; Matlock, Juror 1500A, Q. p.1).
The State’s reason was grounded in these jurors’ opinion about the death
penalty and is race-neutral. Courts have found similar grounds as facially neutral.
See, e.g., Mathis v. State, 67 S.W.3d 918, 924-25 (Tex. Crim. App. 2002) (holding
prosecutor’s explanations—that he struck a juror because she was in favor of the
10
Percy Phillips ranked himself as a three and a five on this question. (RR43:20-21; Phillips,
Juror 60A, Q. p.1).
54
death penalty only in two specified circumstances and she felt the death penalty
was imposed too frequently—were facially race-neutral).
Kimberly Houston
At the Batson hearing, the State explained that it exercised a peremptory
challenge against Houston because “she’s an attorney and we don’t think that
attorneys are generally good on jury panels.” (RR43:21). When the State indicates
that it challenged a prospective juror based on that person's type of employment
and that the State has had poor success with that type of worker, the reason is a
race-neutral explanation for exercising the peremptory strike. Middleton v. State,
187 S.W.3d 134, 142 (Tex. App.—Texarkana 2006, no pet.) (citing Barnes v.
State, 855 S.W.2d 173, 174 (Tex. App.—Houston [14th Dist.] 1993, pet. ref'd)).
Shirley Wilson
At the Batson hearing, the State explained that it exercised a peremptory
challenge against Wilson because the State did not believe that Wilson was
qualified. (RR43:20). Indeed, during individual voir dire, the State challenged
Wilson for cause because Wilson vacillated on Special Issue No. One. (RR8:225-
26). The State questioned Wilson at length on this issue. (RR8:205-09). She
testified that she could never answer Special Issue No. 1 “yes” because she
believes there is no way to predict an individual’s future actions. (RR8:205-09).
When questioned by the defense, Wilson initially repeated her earlier position,
55
stating “I can’t see what you can really show to me [to prove] what the future is
going to hold. I’m not for sure if I could answer that yes[.]” (RR8:220). Then, in
contradiction, she said she could answer the first special issue in the affirmative.
(RR8:221). The State’s challenge for cause was denied. (RR8:227). Given
Wilson’s vacillation regarding Special Issue No. One, the State chose to
peremptorily strike Wilson. Vacillating is a race-neutral reason for exercising a
peremptory strike. See Cook v. State, 858 S.W.2d 467, 472 (Tex. Crim. App.
1993) (finding no clear error in trial judge’s conclusion that the State’s peremptory
strike of a vacillating juror was a satisfactory race-neutral reason).
Conclusion
The record supports all of the State’s proffered race-neutral explanations for
exercising peremptory strikes against the seven prospective minority jurors.
Therefore, the trial court did not clearly err in finding that the State satisfied its
step-two burden of production to tender facially race-neutral explanations for its
peremptory strikes. See Watkins, 245 S.W.3d at 451.
III. Appellant has not established by a preponderance of the evidence
that the strikes were the product of racial discrimination
Appellant has not shown purposeful discrimination by the State. Here, the
defendant has the burden to persuade the trial court that the prosecutor’s
explanations for the State’s strikes were incredible or disingenuous. Watkins, 245
S.W.3d at 457. The focus of the Batson inquiry in this stage is on the genuineness,
56
not reasonableness, of the asserted non-racial motive. Nieto v. State, 365 S.W.3d
673, 676 (Tex. Crim. App. 2012). The question of pretext is a question of fact for
the trial court to resolve, subject to reversal on appeal only for clear error.
Watkins, 245 S.W.3d at 457.
Appellant primarily contends that the State’s strikes must have been racially
motivated because these jurors were qualified jurors and had some characteristics
potentially favorable to the State’s position on the death penalty. (Appellant’s Br.
at 36, 38, 39, 41, 42, 43, 45, 47). The jurors’ qualifications for jury service are
irrelevant to the analysis, however. Factors relevant to determining whether
purposeful discrimination has been proven include the following:
1. whether the State utilized its option to shuffle the jury panels
in a manner that supported an inference of race
discrimination;
2. whether the prosecutor’s office trying the case followed a
formal policy to exclude minority venire members from jury
service which was known to at least one of the prosecutors
at trial;
3. whether the State exercised its peremptory challenges to
eliminate a far greater proportion of minority venire
members than non-minority venire members;
4. whether the reasons the State asserted for eliminating the
minority venire members in question appeared to apply
equally well to many non-minority venire members whom
the State did not challenge; and
5. whether the State directed questions expressly designed to
elicit grounds for peremptory challenges disproportionately,
in a manner that suggested an intent to single out minority
venire members for elimination.
57
Watkins, 245 S.W.3d at 448-49 (relying on Miller-El v. Dretke, 545 U.S. 231, 240-
64, 266 (2005)). This Court looks to the collective and cumulative impact of these
non–exclusive factors in determining whether an inference of racial discrimination
is so powerful that it overcomes the deference given to trial courts. See id. at 449,
457.
An analysis of these factors demonstrates that Appellant’s claim of
purposeful discrimination lacks merit.
1. Jury Shuffle
There is no evidence of jury shuffling in this case. The parties selected the
group of qualified jurors from a June 21, 2013 special venire. (RR4). Appellant
does not assert or demonstrate that the venire was shuffled or otherwise arranged in
a manner to decrease the possibility of a minority member.
2. Formal Policy Prohibits Discrimination
The Dallas County District Attorney’s office’s notorious formal policy of
excluding minorities is a relic of a bygone era. It is common knowledge that the
office policy of the last several years not only forbids such discrimination, it
requires an investigation into sustained Batson challenges and authorizes discipline
ranging from reprimand to termination. The State asks this Court to take judicial
notice of this well-known fact. Tex. R. Evid. 201.
58
3. Proportionality of Strikes
Appellant argues that even one racially motivated peremptory strike violates
Batson and he makes no effort to demonstrate a pattern of discriminatory strikes.
He does not identify the size or racial makeup of the pool of qualified venire
members. Nor does he analyze the number of strikes used by either side or how
they were used. He merely argues that the State used 7 of its 12 peremptory strikes
to eliminate 60% of the African-Americans on the qualified prospective jury panel,
a statistic with which the State disagrees. 11 (Appellant’s Br. at 50).
For statistical evidence to be relevant, data concerning the entire pool is
necessary. See Medellin v. Dretke, 378 F.3d 270, 278 (5th Cir. 2004). By itself,
the number of African Americans struck is an irrelevant statistic. Woodward v.
Epps, 580 F.3d 318, 339 (5th Cir. 2009) (holding that the State’s striking 100% of
the black jurors alone does not support a finding of discrimination and does not
show any disparity in relation to the non-minority jurors).
The data evinces no discriminatory intent by the State. The panel of
qualified venire members consisted of 44 people. Of these, 12 (27%) were
African-American, 27 (61%) were Caucasian, 4 (9%) were Hispanic, and 1 (2%)
declined to indicate his race. The State exercised 15 peremptory strikes.
11
Appellant states in his brief that the State “used 7 of its 12 peremptory strikes to eliminate 60%
of the African-Americans on the qualified prospective jury panel.” (Appellant’s Br. p. 50). In
fact, the State exercised all 15 of its statutorily authorized peremptory strikes. The State
presumes that Appellant’s reference to the State’s use of 12 strikes is a clerical error.
59
(RR43:8-19). Seven of those 15 strikes (47%) were used on African-Americans, 7
(47%) were used on Caucasians, and 1 (6%) was used on a Hispanic juror.
(RR43:8-19). Appellant exercised 17 peremptory strikes. (RR43:8-19). Of his 17
strikes, 2 were used on African-American jurors, 11 were used on Caucasian
jurors, and 3 were used on Hispanic jurors. (RR43:8-19). The result was a 12-
member jury consisting of 3 African-American jurors and 9 Caucasian jurors, with
2 Caucasian alternate jurors.
The State’s use of 7 strikes on African-American venire members is not
definitive of the inquiry in Batson’s third step; instead, a reviewing court must look
at all relevant factors. See Watkins, 245 S.W.3d at 452 (upholding the trial court,
despite the State’s disproportionate use of 6 of its 11 peremptory challenges
against a racial group making up only 22% of the venire). Of the 44 venire
members who could conceivably be chosen for the jury, 12 (27%), were African-
American. A random selection would yield either 3 or 4 African-American jurors
in the 14 jurors selected (12 plus 2 alternates) (or 27% of fourteen, equaling 3.78
jurors). See Watkins, 245 S.W.3d at 451-52 (holding a random selection from a
22% African-American venire would yield 2 or 3 black jurors because 22% of 12
jurors, plus 1 alternate, was 2.86). This jury panel had 3 African-American jurors.
Thus, 27% of the qualified jurors were African-American and 25% of the 12-
person jury was African-American. This jury had the expected amount of African-
60
American members as would be expected from a random selection of the 44
qualified jurors. Statistical analysis simply fails to show any racial discrimination.
4. Comparative Analysis
Appellant contends on appeal that the prosecutor’s stated reasons are a
pretext for racial discrimination because non-minority jurors with similar responses
or characteristics were not struck by the State. (Appellant’s Br. at 50). At the
Batson hearing, however, defense counsel failed to provide a comparative analysis
on the jurors. (RR43:21-22). Counsel did not cross-examine the prosecutor about
her reasons for not striking any similarly situated venire members. (RR43:20-23).
As such, the prosecutor had no opportunity to respond to counsel’s allegations.
Appellant should not be permitted to raise claims of disparate treatment for the first
time on appeal. By failing to properly present this claim at trial, he denied the
prosecutor the opportunity to create a record on the prosecutor’s strategy, and he
denied the trial court an opportunity to rule on the claim.
Whether a prosecutor intended to discriminate on the basis of race is a
question of historical fact properly decided in the trial courts. See Hernandez v.
New York, 500 U.S. 352, 367-69 (1991). State procedural rules demand that
allegations of disparate treatment by the prosecutor be raised in the trial court, so
that they can be properly answered by the State and decided by that court. See
Tex. R. App. P. 33.1(a); Watkins, 245 S.W.3d at 457-58 (Keller, P.J., concurring);
61
Young v. State, 826 S.W.2d 141, 147-49 (Tex. Crim. App. 1991) (Campbell, J.,
dissenting).
The State acknowledges this Court’s majority opinion in Young that a non-
capital defendant is not required to raise a comparative analysis in the trial court to
have evidence of such considered on appeal. Young, 826 S.W.2d at 145-46. The
Fifth Circuit has applied Young to a capital case and criticized this Court’s
inconsistency in its application of the contemporaneous objection rule to Batson
claims in capital cases. Reed, 555 F.3d at 370.
This Court should explicitly overrule Young. See generally Watkins, 245
S.W.3d at 457-58 (Keller, P.J., concurring); Young, 826 S.W.2d at 147-49
(Campbell, J., dissenting). Its majority—and the courts that rely on it—view the
comparative analysis as merely an appellate argument that can be fairly addressed
for the first time on appeal. Young, 826 S.W.2d at 146. In truth, it is a factual
allegation of unfair treatment between jurors. If properly raised in the trial court,
the prosecution’s response may provide additional facts for the appellate court to
consider when reviewing the Batson ruling. If raised at trial successfully, the trial
court can cure the error before trial even begins. If not raised at trial, the
prosecutor’s mental process and the trial judge’s credibility decision concerning
the non-strikes are simply omitted from the record. Jurors are not products of a set
of cookie cutters, and the unexplained decision not to strike a non-minority juror
62
who shares one trait in common with a minority juror is held against the State on
appellate review. See, e.g., Miller-El, 545 U.S. at 244 (stating, “If, indeed, Fields’s
thoughts on rehabilitation did make the prosecutor uneasy, he should have worried
about a number of white panel members he accepted with no evident
reservations.”) (emphasis added). The prosecutor’s explanation of her voir dire
strategy and the trial court’s ruling on the strategy is critical to a fair appellate
review.
At the very least, a prosecutor should enjoy favor on appeal when the matter
is not raised at trial, much like the presumption against a finding of ineffective
assistance of defense counsel. In claims regarding violations of a client’s
constitutional right to counsel, this Court has stated that “counsel should ordinarily
be accorded an opportunity to explain her actions before being condemned as
unprofessional and incompetent.” Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim.
App. 2002). A prosecutor’s credibility is the heart of Batson review, and she
should be accorded no less of an opportunity to explain her actions.
This Court should conclude that the comparative analysis is not preserved
for review or, alternatively, presume that the comparative analysis favors the
prosecutor absent affirmative evidence on the record.
In any event, Appellant has wholly failed to establish that the potential jurors
who are the focus of his Batson challenge were similarly situated to non-minority
63
potential jurors who were not struck.
Brown, Phillips, White, Hashaway, and Kyles
As argued above, the State struck each and every qualified prospective juror
regardless of race who ranked him/herself as a “3,” indicating a belief that,
“Although I do not believe that the death penalty should ever be imposed, as long
as the law provides for it, I could assess it under the proper set of circumstances.”
(RRR43:20-21). The State struck all 9 “3s” on the qualified prospective juror
panel. (RR43:20-21). Appellant points to no evidence to the contrary. He
cannot show disparate treatment of Brown, Phillips, White, Hashaway, and Kyles
compared to accepted non-minority veniremembers. As such, Appellant has failed
to show that the prosecutor’s explanation was a pretext for discrimination.
Kimberly Houston
The State explained that it struck Houston because she is an attorney12 and
because “we don’t think that attorneys are generally good on jury panels.”
(RR43:21; Houston, Juror 27A, Q. p.1). Houston was the only attorney on the
qualified-juror panel. (RR43:21). As such, this rationale was a unique explanation
for the strike, which applied to no other prospective juror. Importantly, during
12
The State expressed this same opinion during the voir dire of another juror, Sheppard Brown.
In explaining the terms used in the special issues, the prosecutor commented that “That’s a whole
lot of legal words. I’m going to try to talk to you about it in terms that - - that anybody would
get, because we’re - - we’re not putting lawyers on this jury.” (RR5:30). She also stated that,
“We’re going to put air conditioning techs and people who don’t know the law [on the jury].
And there’s a good reason for that, by the way. Lawyers are not always the smartest people in
town.” (RR5:30).
64
the Batson hearing, defense counsel did not challenge the prosecutor’s stated
reason. Whether Appellant’s counsel personally felt such information should be
the basis for a strike, is irrelevant; nothing indicates this was a pretext for
discrimination. He cannot show that Houston was treated differently from non-
minority venire members who the State accepted.
Shirley Wilson
The State struck Wilson because it did not believe that she was a qualified
juror. During the State’s questioning, Wilson stated repeatedly that she did not
believe that the State could ever present proof beyond a reasonable doubt that a
defendant would be a future danger. The following exchange took place:
[Prosecutor]: Now we’re talking about punishment, and that Special
Issue Number 1, about what he’s going to do in the future, because
you can see how that’s asking the jury to decide if this person is going
to continue to constitute a continuing threat, if he’s going to continue
to commit criminal acts of violence. Do you see that?
[Wilson]: Yes, I see it.
[Prosecutor]: I mean, basically we’re asking you to look into the
future and decide whether it’s more likely than not he’s going to be a
continuing threat to society. How are you going to decide that?
[Wilson]: I can’t decide that.
[Prosecutor]: You can’t decide that?
[Wilson]: Huh-uh.
[Prosecutor]: Is there anything that I could do to prove to you beyond
a reasonable doubt - -
65
[Wilson]: No.
[Prosecutor]: - - that a person is going to do something in the future?
[Wilson]: No.
[Prosecutor]: Or is more likely than not going to do something in the
future?
[Wilson]: You can’t.
[Prosecutor]: And why is that?
[Wilson]: Because we just can’t determine what the future going [sic]
to be and what that person is going to do.
[Prosecutor]: Okay. So there’s - - there’s nothing that I could do, no
evidence I could bring to you - -
[Wilson]: No.
[Prosecutor]: - - that would get you to answer Special Issue Number 1
yes?
[Wilson]: No. I don’t think there’s any - - you know, we just don’t
know. We don’t know what a person would do, whether it’s good or
bad in the future.
[Prosecutor]: Sure. I mean, people can change?
[Wilson]: Yes, they can.
[Prosecutor]: But you don’t know 100 percent, but you’re telling me
you - - there’s no way I’m going to be able to tell you - - or bring to
you proof to convince you that it’s more likely than not that a person
is going to do something in the future?
[Wilson]: I just don’t - - no, I don’t think there’s any evidence just - -
you can bring and just - - to tell me what the future hold for that
66
person, if that person going to be able to do it or not, no.
[Prosecutor]: Okay. And you understand that - - that the law would -
- well, let me rephrase that. I guess - - I mean, I totally see where
you’re coming from. We don’t have a crystal ball.
[Wilson]: Huh-uh.
[Prosecutor]: But in a trial situation there’s not - - no evidence,
there’s nothing I could present to you to convince you of what the
future is going to hold for somebody?
[Wilson]: No.
[Prosecutor]: So you’re automatically going to answer that Special
Issue Number 1 no because there’s nothing I can do. You’re always
going to say no to Special Issue Number 1? Do you see what that
question is asking?
[Wilson]: Let me just read it again. Maybe I’m - - I mean, maybe
I’m - - I’m just saying I just don’t see how you can - - how - - I’m not
saying you, but who can present what a person is going to do in the
future when it come [sic] down to criminal acts.
[Prosecutor]: Sure. And I’m not arguing with you. Please don’t - -
please don’t think that.
[Wilson]: So I guess I have to answer no.
[. . . ]
[Prosecutor]: Okay. And there’s nothing I assume that I could say to
change your mind about that?
[Wilson]: Probably not.
(RR8:205-08). The prosecutor questioned Wilson at length on this issue and
Wilson maintained her stance. (RR8:205-08).
67
During questioning by the defense, counsel asked Wilson whether she could
“keep an open mind to Special Issue Number 1 and wait until you hear all the
evidence before you decide what the appropriate answer is[.]” (RR8:219). Wilson
responded that, now that she understood that special issue, she would “have to just
wait before I could just say this person is no good to nothing, anymore, period,
there’s no chance.” (RR8:219). But that line of questioning did not ask whether
she could ever find a defendant to be a future danger. This question simply asked
whether she could keep an “open mind.” When defense counsel specifically asked
whether she could answer Special Issue No. 1 “yes,” Wilson maintained, as she did
under questioning by the State, that she could not say that she would do so.
(RR8:220). She stated that “I can’t see what you can really show to me what the
future is going to hold. I’m not for sure if I could answer that yes[.]” (RR8:220).
Very shortly thereafter, however, she gave a response that seemed to indicate that
she changed her mind and could answer Special Issue No. 1 in the affirmative:
“Yes, I guess, if I’m presented with the evidence and here it is [. . .] then I would
have to say yes, now that I understand the question better.” (RR8:221).
Importantly, a review of Wilson’s testimony under questioning by the
defense indicates that Wilson may have been confused about the fact that in order
for the death penalty to be assessed, she would have to answer the first special
issue “yes.” And, that in order to answer special issue No. 1 “yes,” she would
68
have to find a defendant to be a future danger. Defense counsel asked Wilson
whether she understood that life without the possibility of parole and death are the
only two possible punishments. (RR8:215). She did. (RR8:215). Then, he asked
whether she understood that “in order for someone to receive the death sentence,
you would have to answer Special Issue Number 1 yes?” (RR8;216-17). Wilson
said, “No. I read that over and over, but I didn’t know I needed to answer yes in
order for a person to receive the death penalty[.]” (RR8:217). They discuss the
terms “probability” and “criminal acts of violence.” (RR8:217-20). Then, she
reiterates the position she took when under questioning by the State, “I can’t see
what you can really show to me [to prove] what the future is going to hold.”
(RR8:220).
Wilson’s responses indicate that she was either unwilling or unable to
answer Special Issue No. 1 in the affirmative or that she was a vacillating juror.
Since the trial court denied the State’s challenge, the State exercised a peremptory
challenge. Indeed, the State struck all jurors that it had unsuccessfully challenged
for cause. Of the 44 qualified jurors, the State unsuccessfully challenged for cause
4 potential jurors: Wilson (Juror 196A, an African-American female), Chad Davis
(Juror 265A, a Caucasian male), Ronald Drake (Juror 759A, a Caucasian male),
and Wanda Benjamin (Juror 1369A, an African-American female). Davis was
later excused (RR31:5) as was Benjamin (RR41:28). The State struck Drake.
69
(RR43:12). Appellant has failed to show Wilson was treated differently from
accepted non-minority venire members.
Conclusion
Appellant has wholly failed to show that Jurors Brown, Phillips, White,
Hashaway, Kyles, Houston, or Wilson were similarly-situated to non-minority
jurors that were not struck by the State.
5. Disparate Questioning
Appellant points to no instances of disparate questioning by the State. Cf.
Miller-El, 545 U.S. at 256-57 (prosecutors used a graphic script when describing
the death penalty to African-American jurors who were ambivalent to the death
penalty more often than with white jurors who also were ambivalent). Nor is any
disparate questioning apparent in the record.
Conclusion
Appellant has not established by a preponderance of the evidence that the
State’s exercise of its peremptory challenges against 7 African-Americans was the
product of racial discrimination. Appellant has not shown that the State’s
explanations did not apply equally to non-minority venire members that the State
did not challenge, that the State directed questions expressly designed to elicit
grounds for peremptory challenges disproportionately, or that a formal policy
excludes minorities from jury service. The record before this Court supports the
70
trial court’s resolution of the fact question of pretext. Consequently, the trial court
did not err in denying Appellant’s Batson challenges. See Watkins, 245 S.W.3d at
456-57.
Issues 1 through 7 should be overruled.
STATE’S RESPONSE TO ISSUE NOS. 8 THROUGH 19: THE TRIAL COURT DID NOT ERR IN
GRANTING THE STATE’S CHALLENGES FOR CAUSE.
In Issues 8 through 19, Appellant contends that the trial court erred in
granting the State’s challenges for cause against potential jurors Mary Boulos,
Judith McDaniel, Terry Plank, and Floyd Stanmore. (Appellant’s Br. pp.51-64).
He contends the exclusion of these jurors and the failure of the trial court to allow
him to voir dire these jurors violated article 35.16 of the Code of Criminal
Procedure as well as his right to counsel under the federal and state constitutions.
See U.S. CONST. amends VI & XIV; Tex. Const. art. I, § 10; Tex. Code Crim.
Proc. Ann. art. 35.16 (West 2006). Appellant’s contentions lack merit and should
be overruled.
Applicable Law
Article 35.16(b) of the Texas Code of Criminal Procedure provides as
follows:
A challenge for cause may be made by the State for any of the following
reasons:
1. That the juror has conscientious scruples in regard to the infliction
of the punishment of death for crime, in a capital case, where the
71
State is seeking the death penalty.
2. That he is related within the third degree of consanguinity or
affinity as determined under Chapter 573, Government Code, to
the defendant; and
3. That he has a bias or prejudice against any phase of the law upon
which the State is entitled to rely for conviction or punishment.
Tex. Code Crim. Proc. Ann. art. 35.16(b). A “bias against the law” is the refusal to
consider or apply the relevant law. Sadler v. State, 977 S.W.2d 140, 142 (Tex.
Crim. App. 1998). The test is whether the bias or prejudice would substantially
impair the prospective juror’s ability to carry out his oath and instructions in
accordance with the law. Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim.
App. 2004).
On appeal, a reviewing court will overturn the trial court's ruling on a
challenge for cause only if it clearly abused its discretion. Gonzales v. State, 353
S.W.3d 826, 831 (Tex. Crim. App. 2011). The reviewing court gives great
deference to the trial court’s decision on a challenge for cause because the trial
judge was in the best position to observe the venire member during voir dire. Id.
When the record reflects that a venire member vacillated or equivocated on her
ability to follow the law, the reviewing court must defer to the trial judge. Id;
Gardner v. State, 306 S.W.3d 274, 295 (Tex. Crim. App. 2009).
72
Analysis
The trial court did not err in granting the State’s challenges for cause against
prospective jurors Mary Boulos, Judith McDaniel, Terry Plank, and Floyd
Stanmore.
Mary Boulos
On her questionnaire, Mary Boulos wrote that she is in favor of the death
penalty but that she does have “moral, religious, or personal beliefs that would
prevent [her] from sitting in judgment of another human being[.]” (Boulos, Juror
285A, Q. p. 1). In fact, on that questionnaire, Boulos made statements in four
places in which she indicated that she does not believe she has the right to judge
another human being: “I don’t feel that I have the right to judge someone’s future”
(RR11:18; Boulos, Juror 285A, Q. p.2); the best argument against the death
penalty is “judging whether a person has the right to live or not” (Boulos, Juror
285A, Q. p. 2); “still don’t have the right to judge whether someone lives or dies”
(Boulos, Juror 285A, Q. p.2); and “I do not feel that I have the right to judge
whether or not someone is given the death penalty or life.” (Boulos, Juror 285A,
Q. p.18).
During voir dire, the prosecutor probed Boulos as to how she felt about
sitting in judgment and answering questions in such a way that a death sentence
would be imposed. (RR11:17-18). Boulos responded she was not comfortable
73
because “[she’s] not somebody to sit there and judge somebody else[.]”
(RR11:18). The prosecutor tried to get a definitive answer regarding Boulos’
ability to sit in judgment. The following exchange took place:
[Prosecutor]: Okay. And like I told you in the beginning, the law is
not going to require - - we’re not going to require that you sit in
judgment of an individual in this situation - -
[Boulos]: Yeah.
[Prosecutor]: - - if it’s going to do violence to your conscience.
[Boulos]: Yeah.
[Prosecutor]: If it is something you cannot do because of personal,
moral, or religious reasons; is that where you stand?
[Boulos]: Yes.
(RR11:18). The State challenged Boulos for cause. (RR11:19). Appellant
objected and stated that Boulos had not said “that her feelings would impair her
ability to answer the questions and follow the law.” (RR11:19-20). The trial
court granted the State’s challenge. (RR11:20). The totality of Boulos’ voir dire
shows Boulos could not sit in judgment of another individual and her statements
support the trial court’s decision. To the extent, if any, that some of Boulos’ other
remarks could be interpreted as contradictory, the trial court was the fact finder
during voir dire and, thus, free to resolve her conflicting answers in the State’s
favor. See King v. State, 29 S.W.3d 556, 568 (Tex. Crim. App. 2000) (particular
deference is given to the trial court’s conclusion that venire member cannot follow
74
law when venire member’s answers are vacillating, unclear, or contradictory). To
conclude otherwise would controvert this Court’s policy of encouraging trial
court’s to liberally grant challenges for cause rather than err by denying a
challenge on a close question. Jones v. State, 982 S.W.2d 386, 394 (Tex. Crim.
App. 1998).
The record reflects that the State challenged Boulos for cause and that the
trial court granted the State’s challenge. (RR11:19-20). Contrary to the statements
in Appellant’s brief, there is no evidence that the trial court excused Boulos sua
sponte.
Finally, on appeal, Appellant contends that he was denied the opportunity to
question Boulos. (Appellant’s Br. p. 57). During voir dire when the State
challenged this juror, however, Appellant did not request an opportunity to
question Boulos. (RR11:20). See Tex. Code Crim. Proc. Ann. art. 35.17, § 2
(stating that “In a capital felony case . . . on demand of the State or defendant,
either is entitled to examine each juror on voir dire individually and apart from the
entire panel, and may further question the juror on the principles propounded by
the court.”). As a prerequisite to presenting a complaint for appellate review,
however, the record must show that the complaint was made to the trial court by a
timely request, objection, or motion and that the trial court either (1) ruled on the
request, objection, or motion; or (2) refused to rule on the request, objection, or
75
motion, and the complaining party objected to the refusal. Tex. R. App. P. 33.1
(a). Given Appellant’s failure to request the opportunity to question Boulos, he
failed to preserve any issue for this Court’s review.
Judith McDaniel
On her questionnaire, Judith McDaniel wrote that she is not in favor of the
death penalty. (McDaniel, Juror 317A, Q. p.1). Among other reasons, she
believes in “the possibility of redemption” and in light of “Craig Watson’s [sic]
push to find those wrongfully convicted,” McDaniel wrote she is against the death
penalty. (McDaniel, Juror 317A, Q. p.1). McDaniel ranked herself as a “3,”
indicating, “Although I do not believe that the death penalty should ever be
imposed, as long as the law provides for it, I could assess it under the proper set of
circumstances.” (McDaniel, Juror 317A, Q. p.1). She noted, however, “Maybe I
should circle #5[,]” which provides that “I could never, under any circumstances,
return a verdict which assessed the death penalty.”
Additionally, McDaniel wrote that although it is improving, she does not
believe that the death penalty is applied fairly in Dallas County. (McDaniel, Juror
317A, Q. p.4). She wrote that the death penalty is used too often in Texas.
(McDaniel, Juror 317A, Q. p.4).
During voir dire, McDaniel reiterated her general opposition to the death
penalty and gave answers suggesting considerable discomfort in participating in a
76
process where an individual may be sentenced to death. McDaniel testified that
even though her opinion about the death penalty has wavered over the years, “I
really doubt that I - - I could be in favor of the death penalty.” (RR11:101).
When asked whether she could participate in death penalty decision, she stated, “I
don’t want to. I don’t - - I don’t think I can.” (RR11:104). The prosecutor
explained the death penalty is not automatic. (RR11:105). The prosecutor
explained the special issues and asked McDaniel if she could answer them in such
a way that would result in a death sentence. (RR11:105-07). McDaniel testified
that she “can’t honestly say, but I am pretty sure I would not go for the death
penalty.” (RR11:107). When finally pinned down, McDaniel testified she could
not guarantee the ability to set aside her personal feelings. (RR11:121). The
following exchange took place:
[Prosecutor]: I’m going to - - I - - “I don’t think” and “maybe” and
“probably” are not - - are not words that lawyers are very good at
accepting, and I apologize, but the record has to be very clear, so I’m
going to ask it a different way. You don’t think you could. I’m going
to turn that around and ask you, can you guarantee both sides of this,
the State and the Defense, that you could set aside your personal
feelings and be a juror in this case, even if it resulted in the death
sentence?
[McDaniel]: No, I can’t guarantee it.
[Prosecutor]: Thank you.
(RR11:121). The State challenged McDaniel for cause, which was granted over
Appellant’s objection, based on the fact that “she would not be able to make that
77
decision or at minimum could not guarantee us that she could set aside her
personal feeling and assess a sentence that may result in execution.” (RR11:122).
A venireperson may not be excused for her general opposition to the death
penalty. Witherspoon v. Illinois, 391 U.S. 510, 522-23 (1968); Rachal v. State, 917
S.W.2d 799, 810 (Tex. Crim. App. 1996). A veniremember is challengeable for
cause, however, if his beliefs against capital punishment would prevent or
substantially impair the performance of his duties as a juror in accordance with the
court's instructions and the juror's oath. See Colburn v. State, 966 S.W.2d 511, 517
(Tex. Crim. App. 1998). A juror must be able to set aside her personal
preferences and biases to consider as death eligible all those defined as death
eligible by section 19.03 of the penal code and article 37.071 of the criminal
procedure code. Rachal, 917 S.W.2d at 812.
Clearly, the totality of McDaniel’s voir dire testimony demonstrates that her
beliefs about capital punishment would prevent or substantially impair the
performance of her duties as a juror as required by law. She had a bias against the
law governing a defendant’s eligibility for the death penalty. The record supports
the trial court’s decision to grant the State’s challenge. See King, 29 S.W.3d at
568. To conclude otherwise would controvert this Court’s policy as stated earlier.
Jones, 982 S.W.2d at 394.
78
Appellant’s contention that he was denied the opportunity to question
McDaniel lacks merit. (Appellant’s Br. p. 59). During voir dire, when the State
challenged this juror, Appellant did not request an opportunity to question her.
(RR11:122). See Tex. Code Crim. Proc. Ann. art. 35.17, § 2. As such, any claim
of that nature is not preserved for this Court’s review. Tex. R. App. P. 33.1 (a);
Pena v. State, 285 S.W.3d 459, 463 (Tex. Crim. App. 2009).
Terry Plank
In his questionnaire, Terry Plank wrote he is not in favor of the death
penalty. (Plank, Juror 320A, Q. p.1). He wrote, “I feel no one has the right to
take the life of another, including the State.” (Plank, Juror 320A, Q. p.1). In six
separate places, Plank wrote that he does not believe in the death penalty. (Plank,
Juror 320A, Q. p.1, 2, 3). In one instance, he described the death penalty as “state
sanctioned murder.” (Plank, Juror 320A, Q. p.2). In contradiction, Plank ranked
himself as a “3,” indicating that “Although I do not believe that the death penalty
should ever be imposed, as long as the law provides for it, I could assess it under
the proper set of circumstances.” (Plank, Juror 320A, Q. p. 1).
During voir dire, Plank testified he was “ambivalent” about the death
penalty. (RR12:24). Ultimately, he conceded that he could not guarantee that he
could set aside his personal feelings about the death penalty and follow the law.
(RR12:29). The following exchange took place:
79
[Prosecutor]: We’ve got to have people whose feelings are the death
penalty is appropriate in some cases, based on the evidence. And
yours is never.
[Plank]: Right.
[Prosecutor]: And so I would - - I would tell you that you’d be a great
juror on a case where the punishment range was 5 to 99 or life or even
on a capital murder case where we weren’t seeking the death penalty.
Sounds to me like you could give the State a fair trial in the first part
of the case on guilt/innocence, no issues there, but it’s the penalty
phase that causes you some concerns because of your personal
beliefs?
[Plank]: Absolutely.
[Prosecutor]: And if I had to ask you for today for a guarantee those
[beliefs] wouldn’t interfere, you couldn’t guarantee me that?
[Plank]: I don’t - - I know I disagree, so it’s hard to - - it’s hard to say
that I would just all of a sudden agree.
[Prosecutor]: Right. And - - and you don’t have to - - I’m not trying
to change your opinion about the death penalty.
[Plank]: Right.
[Prosecutor]: Just because you don’t agree with it, doesn’t necessarily
disqualify you from the jury pool. But you’ve got to be able to
promise me today and guarantee me today that your feelings against
the death penalty would not interfere with your ability to follow the
law, listen to the evidence, and base your verdict only on the
evidence, even if that meant that the death penalty was imposed. And
you’ve kind of already told me that this isn’t - - this isn’t really for
you, the death penalty; is that right?
[Plank]: I believe so.
[Prosecutor]: This won’t be the last jury summons you get, I promise.
And hopefully the next one wouldn’t be on a case where the death
80
penalty was at issue. And I know it’s hard to say what you could or
couldn’t do in the future because you’ve never been put in those
shoes, but I’m telling you, you don’t have to be put in that position, if
you can’t guarantee me you could - - you could do it.
[Plank]: Right. I don’t think I can guarantee anything, not - - not
knowing, you know - - not ever having been in that position before.
(RR12:27-29). The State challenged Plank for cause because “he cannot guarantee
the State that he would be able to follow the law and base his verdict on the
evidence because of his strong opposition to the death penalty.” (RR12:29). The
totality of Plank’s voir dire testimony clearly demonstrates his beliefs about capital
punishment would prevent or substantially impair his ability to follow the law.
See Colburn, 966 S.W.2d at 517. The record supports the trial court’s decision to
grant the State’s challenge. See King, 29 S.W.3d at 568. To conclude otherwise
would controvert this Court’s policy as stated earlier. Jones, 982 S.W.2d at 394.
Appellant argues that he was denied the opportunity to question Plank.
(Appellant’s Br. p. 61-62). After the State challenged Plank for cause, Appellant
requested the opportunity to question him. (RR12:30). The judge said that he
would “give [the defense] a chance,” but that the court “[didn’t] think he’s
qualified.” (RR12:30). Then he granted the State’s challenge. (RR12:30).
Appellant objected. (RR12:30). He did not, however, renew his request to
question Plank as the court had previously said it would allow. (RR12:30).
Instead, he “object[ed] to not being able to rehabilitate him.” (RR12:30).
81
Any error in denying Appellant’s request to question Plank is harmless. See
Tex. R. App. P. 44.2(b); Jones v. State, 982 S.W.2d 386, 391-92 (Tex. Crim. App.
1998). With regard to the erroneous excusal of a venire member, reversal is
required if the defendant was deprived of a lawfully constituted jury. See id. at
394. As argued in detail above, the totality of Plank’s voir dire testimony clearly
demonstrates his beliefs about capital punishment would prevent or substantially
impair his ability to follow the law. See Simpson v. State, 119 S.W.3d 262, 266-67
(Tex. Crim. App. 2003) (finding error harmless where “Given the venire member’s
testimony, it is highly unlikely that the appellant would have been able to convince
the juror to say otherwise or that the trial court would have abused its discretion in
dismissing her for cause.”). Moreover, Appellant did not make a proffer of the
questions that he would have asked Plank had he been given the opportunity.
(RR12:29-30). As such, it cannot be determined whether he was denied the
opportunity to properly question Plank. Appellant has failed to show that he was
deprived of a lawfully constituted jury.
Floyd Stanmore
In his questionnaire, Floyd Stanmore ranked himself as a “2,” which
indicates that he believes the death penalty is appropriate in some murder cases and
that he could return a verdict in a proper case which assessed the death penalty.
(Stanmore, Juror 1118A, Q. p.1). Stanmore later contradicted this statement,
82
however, when asked whether there was any reason why he would not want to
serve as a juror in this case. He wrote, “I am not sure that I could vote for the
death [penalty] [sic].” (Stanmore, Juror 1118A, Q. p18). In his questionnaire,
Stanmore stated his concern that the death penalty is applied unfairly to minorities
in Texas, including Dallas County. (Stanmore, Juror 1118A, Q. pp.2-3). Beyond
the death penalty, Stanmore wrote that the biggest problem in our criminal justice
system is that “I do not think that minorities are treated fairly always.” (Stanmore,
Juror 1118A, Q. p.4).
During voir dire, Stanmore reiterated his concern about whether all
defendants receive a fair trial. (RR32:70). He wondered “how many defendants
or convicted individuals have actually been executed who were actually innocent.”
(RR32:70). Stanmore testified as follows:
I can’t [100%] [sic] say that I would be able to sit through the process,
look at all the evidence, and listen to the evidence and still be able to
come to a conclusion that the death penalty is warranted in this case.
(RR32:72). The following exchange took place:
[Prosecutor]: So just from what you’re telling me, it kind of sounds
like, Mr. Stanmore, that you kind of did come in, you know, not
knowing - - most people, when we say the word you come in with a
bias or already come in with a preconceived notion, people think of
that negatively. I’m not saying it in a negative way. But I’m saying it
in such a way that as you sit here right now, you already kind of
know, based on your reservation, how you’d feel or how you would
lean toward, you know, a certain outcome of the trial. Like I said,
maybe this particular case isn’t the one for you. You know, maybe
another type of case that you don’t know as much information about
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or another type of case that the death penalty is nowhere near it.
Would you say that’s a true statement?
[Stanmore]: That’s pretty close to the truth, yes. I would say, yes.
[Prosecutor]: And that as you sit here right now, and you said you
can’t guarantee, let’s say the State, [100%] that you could base all of
you[r] information on the facts and evidence that come in this case,
that you’re still going to bring with you some of these reservations
because you didn’t leave those at the door, did you?
[Stanmore]: Not at all.
[Prosecutor]: All right.
[Stanmore]: That reservation is about the death penalty itself, not
about conviction.
(RR32:73-74). The prosecutor explained the procedure involved in a capital case
and that the State believed that it had the type, quality, and quantity of evidence
that would require the jury to answer the first special issue in the affirmative and
the second special issue in the negative. (RR32:76-77). Stanmore stated that “it
would bother [him] as an individual” to participate in the process. (RR32:78). At
that point, the State successfully challenged Stanmore for cause. (RR32:78).
Appellant argued that Stanmore’s “reservations” and his reluctance to participate
were insufficient to sustain the State’s challenge. (RR32:79).
The totality of Stanmore’s voir dire testimony clearly shows his beliefs
about the criminal justice system and capital punishment would prevent or
substantially impair his ability to carry out his obligations as a juror. At a
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minimum, Stanmore vacillated. Where the venire member either vacillates or
equivocates on his ability to follow the law, the Court should defer to the trial
court’s judgment on the challenge for cause. Granados v. State, 85 S.W.3d 217,
231 (Tex. Crim. App. 2002). The record supports the trial court’s decision to grant
the State’s challenge. See Segundo v. State, 270 S.W.3d 79, 94 (Tex. Crim. App.
2008) (“We therefore defer to the trial judge, who can best determine, based upon
the [venire member’s] tone and tenor, whether that person could follow the
applicable law despite his views about the death penalty.”). To conclude otherwise
would controvert this Court’s policy as stated earlier. Jones, 982 S.W.2d at 394.
Appellant also contends that he was denied the opportunity to question
Stanmore. (Appellant’s Br. p. 63-64). After the State challenged Stanmore for
cause, Appellant objected to Stanmore being excused without the opportunity to
question him. (RR32:79). Any error in denying Appellant’s request is harmless.
See Tex. R. App. P. 44.2(b); Jones, 982 S.W.2d at 391-92. As argued in detail
above, the totality of Stanmore’s voir dire testimony clearly shows his beliefs
about the criminal justice system and capital punishment would prevent or
substantially impair his ability to carry out his obligations as a juror. He was also a
vacillating juror. See Simpson, 119 S.W.3d at 266-67. As above, Appellant did
not make a proffer of the questions that he would have asked Stanmore had he
been given the opportunity. (RR32:78-79). As such, it cannot be determined
85
whether he was denied the opportunity to properly question Stanmore. Appellant
has failed to show that he was deprived of a lawfully constituted jury.
Conclusion
The trial court did not abuse its discretion in granting the State’s challenges
for cause regarding Boulos, McDaniel, Plank, and Stanmore. Even assuming their
excusal was erroneous, it was harmless. The erroneous excusal of a venireperson
warrants reversal only if the record shows that the error deprived the defendant of a
lawfully constituted jury. Jones, 982 S.W.2d at 393. Appellant makes no such
showing. Moreover, no evidence indicates that the jurors who served on
Appellant’s jury were in any way biased, interested, or otherwise disqualified from
serving. As a result, reversal is unwarranted. See Feldman v. State, 71 S.W.3d
738, 749 (Tex. Crim. App. 2002) (holding any error in excusing venireperson was
harmless absent any showing that she was excused based on general opposition to
death penalty or that any juror was unfit for jury duty).
Issues 8 through 19 should be overruled.
STATE’S RESPONSE TO ISSUE NOS. 20 TO 27: THE TRIAL COURT DID NOT ERR IN
DENYING APPELLANT’S CHALLENGES FOR CAUSE.
In Issues 20 through 27, Appellant contends that the trial court erred in
denying his challenges to 8 prospective jurors. In so doing, Appellant argues, the
trial court violated his right to a fair and unbiased jury under the United States
Constitution and article 35.16(c)(2) of the Texas Code of Criminal Procedure.
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Applicable Law
A prospective juror may be challenged for cause if, among other reasons, he
possesses a bias or prejudice in favor of or against the defendant or he possesses a
bias against an aspect of the law upon which the State or the defendant is entitled
to rely. See Tex. Code Crim. Proc. Ann. arts. 35.16(a)(9), (c)(2); Threadgill, 146
S.W.3d at 667.
Appellant has the burden of establishing that his challenge for cause is
proper. See Feldman, 71 S.W.3d at 747. Before a venire member can be excused
for bias, the law must be explained to him and he must be asked whether he can
follow that law regardless of his personal views. Threadgill, 146 S.W.3d at 667.
Appellant does not meet his burden of establishing that his challenge for cause is
proper until he has shown that the prospective juror understood the requirement of
the law and could not overcome his prejudice well enough to follow it. See
Feldman, 71 S.W.3d at 747.
When reviewing a trial court’s decision to deny a challenge for cause, the
appellate court looks at the entire record to determine if there is sufficient evidence
to support the ruling. Feldman, 71 S.W.3d at 744. The appellate court reviews a
trial court’s ruling with “considerable” or “great” deference because the trial judge
is in the best position to evaluate the prospective juror’s demeanor and was present
to observe the juror and listen to his tone of voice. Threadgill, 146 S.W.3d at 667;
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Saldano v. State, 232 S.W.3d 77, 91 (Tex. Crim. App. 2007). Particular deference
is given when the venire member’s answers are vacillating, unclear, or
contradictory. Threadgill, 146 S.W.3d at 667. When the venire member is
persistently uncertain about having the ability to follow the law, the reviewing
court does not second guess the trial court and must defer to its decision. Gardner,
306 S.W.3d at 295-96; Colburn, 966 S.W.2d at 517. The appellate court reverses a
trial court’s ruling on a challenge for cause “only if a clear abuse of discretion is
evident.” Colburn, 966 S.W.2d at 517.
Harm from the erroneous denial of a defense challenge for cause occurs
under the following circumstances: (1) a defendant exercises a peremptory
challenge on a prospective juror whom the trial court erroneously failed to excuse
for cause at the defendant’s request, (2) the defendant uses all of his statutorily-
allotted peremptory challenges, and (3) the trial court denies the defendant’s
request for an additional peremptory challenge to use on another prospective juror
whom the defendant identifies as “objectionable” and who actually sits on the jury.
Saldano, 232 S.W.3d at 91. When all of these conditions are met, the defendant
has been wrongfully deprived of one of his statutory peremptory challenges in that
he was forced to use a peremptory challenge to remove a prospective juror who
should have been removed for cause. See id. If the defendant received additional
peremptory challenges beyond the fifteen allotted by statute, he must show harm
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by proving that the trial court erroneously denied a number of defense challenges
for cause equal to at least one more than the number of additional peremptory
challenges granted. Escamilla v. State, 143 S.W.3d 814, 821 (Tex. Crim. App.
2004).
Analysis
After the trial court qualified a panel of 44 prospective jurors, the parties
asserted their peremptory challenges at a hearing, which was conducted on October
15, 2013. (RR43). During this hearing, Appellant exhausted all 15 of his statutory
peremptory strikes as well as 2 additional strikes granted by the court. (RR43:9-
18). He struck James Couch (Juror 80A), Craig Matthews (Juror 154A), Kevin
Powell (Juror 179A), Kimberly Turvan (Juror 295A), Laura Carroll (Juror 433A),
Molli Elliston (Juror 532A), Jerry Mace (Juror 615A), Rudy Ochoa (Juror 617A),
Holly Sanders (Juror 636A), Debra Filler (Juror 701A), Sandra Gromacki (Juror
756A), Sabastian Coleman (Juror 1023A), Jessica Magee (Juror 1149A), Sarah
Wagler (Juror 1168A), Deemie Naugle (Juror 1196A), Raul Ibarra-Avila (Juror
1351A), and Christina Salazar (Juror 1365A). (RR43:8-17). Appellant requested
a third additional strike. (RR43:17). That request was denied and the next
qualified prospective juror, Shonquidria Jenkins (Juror 1368A), was seated on the
jury. (RR43:17-18). Appellant identified Jenkins as an “objectionable juror” and
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again requested an additional strike.13 (RR43:17-18). That request was denied.
(RR43:18). After Jenkins, the next qualified prospective juror, Jerri Adams (Juror
1393A), was seated on the jury. (RR43:18). Appellant did not identify Adams as
an “objectionable juror.” (RR43:18).
At trial, Appellant did not identify Powell, Matthews, Carroll, Elliston,
Mace, Gromacki, Wagler, or Adams as “objectionable jurors.” (RR43:9, 10, 11,
12, 15-16). The only juror he identified as objectionable was Jenkins. (RR43:17-
18, 23). And, of the pool of jurors identified in Issues 20 through 27, the only
juror Appellant was forced to accept who actually sat on the jury and deliberated
was Jerri Adams.
Since Appellant received 2 extra peremptory challenges in addition to the 15
allotted by statute for use on the pool in selecting 12 jurors, he must show that the
trial court erroneously denied at least three of his challenges for cause. See, e.g.,
Saldano, 232 S.W.3d at 93 (noting that Saldano would have to show 3 erroneous
denials because he received two extra peremptory strikes). Appellant has not met
his burden.
Issue #20: Kevin Powell
During voir dire, Appellant challenged Kevin Powell for cause because
Powell answered in his questionnaire that he would give more credibility to police
13
Later in the hearing, Appellant explained that Jenkins was objectionable “primarily because
she had indicated that she was a victim of family violence or domestic violence[.]” (RR43:23).
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officers. (RR8:56). Powell also answered “yes” to a question asking whether he
believed that police officers are more likely to tell the truth than the average
person. (Powell, Juror 179A, Q. p. 5). Appellant’s challenge was denied.
(RR8:60).
A defendant may insist on jurors who will impartially judge the credibility
of witnesses. Hernandez v. State, 563 S.W.2d 947, 950 (Tex. Crim. App. 1978).
A venire member who believes a police officer would never lie under oath has an
impermissible bias against the defendant under article 35.16(a)(9) of the Code of
Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 35.16(a)(9); Lane v. State,
822 S.W.2d 35, 42 (Tex. Crim. App. 1991).
During voir dire, the prosecutor questioned Powell regarding his view of
police officer credibility. (RR8:15-16). Powell affirmed he could wait until a
witness testifies before he judges their credibility. (RR8:15-16). Under
questioning by defense counsel, Powell affirmed his belief that police officers are
more likely to tell the truth than the average person. (RR8:41-42). Defense
counsel explained the law required that “you have to start all witnesses off the
same, that just because of a person’s occupation, they are not deemed more
credible than anyone else.” (RR8:42). Powell affirmed he understood the law.
(RR8:42). Counsel asked whether Powell would agree that the opinion expressed
in his questionnaire is different than his testimony in court. (RR8:42). Powell
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responded, “Well, you asked me about my feelings, and that’s what I responded
to.” (RR8:42). Apparently, Powell was attempting to distinguish that the opinions
expressed in his questionnaire were his “feelings” as opposed to the law. The
following exchange took place:
[Defense Counsel]: Okay. And are your feelings that even knowing
what the law says, that you give police officers more credibility than
you do the average citizen? And as I said, there’s no such thing as a
right answer or wrong answer. I just want to know how you feel.
[Powell]: Right. Again, I understand, you know, what you’re saying
to me, and - - and I base this on, you know, my feelings, but I can be,
you know, fair with every witness that - - if I heard that testimony.
(RR8:42-43). Later, defense counsel returned to the subject and asked whether, if
he served on the jury and understood the law, Powell would give police officers
more credibility. (RR8:44). Powell testified he “would look at everything that has
been given and all the testimony that, you know, I hear and I believe I can give a
good and fair response to it.” (RR8:44).
The totality of Powell’s testimony indicates he would wait to hear a
witness’s testimony before judging that witness’s credibility. To the extent that
any of his responses may be interpreted as contradictory, this Court should defer to
the trial court’s resolution of his responses. See Feldman, 71 S.W.3d at 744. The
reviewing court must give great deference to the trial court’s decision on a
challenge for cause based on the trial judge’s opportunity to observe the venire
member during voir dire. Id. When the record reflects that a prospective juror
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vacillated or equivocated on her ability to follow the law, the reviewing court must
defer to the trial judge. Gardner, 306 S.W.3d at 295. Given Powell’s assurances
that he could follow the law, the trial court could have reasonably concluded that
Powell was not biased against Appellant. See Lane, 822 S.W.2d at 45 (holding
that the trial court did not abuse its discretion in denying a challenge for cause
where, venire member said she would “evaluate a police officer[’s credibility] as
she would any other [witness]”).
Appellant also challenged Powell on the basis that he would automatically
assess the death penalty after finding a guilty verdict on capital murder. In his
questionnaire, Powell wrote he is in favor of the death penalty and “If a person is
proven guilty of taking someones [sic] life in commission of a crime their life
should be taken.” (Powell, Juror 179A, Q. p.2.). On its face, Powell’s response
suggests he believed that all murders warrant a death sentence. The remainder of
Powell’s questionnaire and voir dire indicates otherwise, however.
During voir dire, the prosecutor explained that a verdict of guilty as to
capital murder does not automatically lead to the death penalty. (RR8:25, 29, 34-
35). The jurors would then have to consider the special issues. (RR8:25-26, 29-
35). Powell affirmed that he understood. (RR8:25-26, 29-353). He affirmed that
he would hold the State to its burden of proof on the first special issue. (RR8:37-
38). Importantly, Powell wrote in his questionnaire and affirmed during voir dire
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that in some circumstances, a life sentence is appropriate. (RR8:17; Powell, Juror
179A, Q. p.2). Thus, although Powell believed that the death penalty was an
appropriate punishment for murder he did not believe the death penalty should be
automatic for every murder. His answer to the first special issue would be
determined by an examination of all the evidence, rather than solely the guilty
verdict.
Lastly, Appellant contends that Powell should have been excused based on
his belief that the death penalty is appropriate in circumstances involving robbery,
sexual assault, torture, or abuse of children and the elderly. (Appellant’s Br. at 65).
This complaint was not asserted at trial and is not properly preserved for this
Court’s review. See Tex. R. App. P. 33.1(a). Regardless, Appellant’s contention
lacks merit. During voir dire, Appellant briefly questioned Powell about his belief
that other offenses should be eligible for the death penalty. (RR8:48-49). Powell
affirmed his belief that the death penalty should be available for sexual assault,
torture, or abuse of children or the elderly. (RR8:49). Defense counsel did not
ask Powell whether this belief would interfere with his ability to follow the law in
this case. (RR8:48-49). Indeed, counsel simply moved on to a different line of
questioning. (RR8:49). As such, he failed to show that Powell was challengeable
for cause on this basis.
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Based on the totality of the voir dire testimony, sufficient evidence supports
the trial court’s ruling, and the court did not abuse its discretion in denying
Appellant’s challenge for cause against Powell. No evidence sustains that Powell
was biased in any way against Appellant or the law. During voir dire, Powell
affirmed he would afford Appellant the presumption of innocence; he would hold
the State to its burden of proof; he would not require the defense to present any
evidence; he would not consider Appellant’s silence as evidence; he would wait to
hear a witness’s testimony before determining credibility; and, he understood that
the death penalty is not automatic for capital murder. (RR8:12-18, 25-26, 29, 34,
37-38). Accordingly, Issue 20 should be overrruled.
Issue #21: Craig Matthews
Appellant challenged Craig Matthews for cause on the basis that he would
be “predisposed or leaning toward answering Special Issue Number 1 yes” if he
found Appellant guilty of capital murder. (RR9:111). The trial court stated:
I don’t think a disqualifying question was asked him on that matter.
And I think after hearing all of his testimony, I think he can follow the
law and be a fair juror, so I’m going to deny your challenge.
(RR9:111). The record supports the trial court’s determination.
During voir dire, the prosecutor explained, “There are no automatics in this
process.” (RR9:54). She further explained that after a verdict of guilt, jurors do
not vote whether the defendant should receive a life or death sentence; the jurors
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would have to answer the special issues. (RR9:55). Matthews affirmed his
understanding. (RR9:55-56). The following exchange took place:
[Prosecutor]: Absolutely. And, you know, we ask you all these
things before the law has been explained to you, and that’s why I just
want to make sure that even though this is your personal belief that
you are completely entitled to at all times, that you would then be able
to - - and you’re not going to have to memorize this. You’ll see it
again in the jury’s charge, the special issues. I just want to make sure
that if the law is given to you by the Court, you would then be able to
render your verdict based on the law and the evidence and not have
any automatics. No automatic response because somebody is found
guilty of the offense of capital murder and no matter how cold,
horrible, and heinous, that you will be able to deliberate with regards
to Special Issue Number 1 and make the State prove that to you
beyond a reasonable doubt before answering it yes.
[Matthews]: Yeah.
(RR9:71). Matthews repeatedly affirmed his understanding that the verdict must
be based on the law and the evidence and with no automatic answers. (RR9:56,
58, 59, 60, 67, 68, 74, 81). When defense counsel asked Matthews what his
“feelings on the death penalty” would be after he (on a hypothetical jury) found a
defendant guilty of capital murder, Matthews responded:
I don’t know. My understanding of the law as it’s been presented to
me is that - - if those causes and consequences are proven, then - -
then it’s an option relative to the two special issues.
(RR9:85). Matthews accepted that the appropriate punishment for someone
found guilty of capital murder could be life without parole. (RR9:85). The record
reflects that Matthews’ examination of the law and evidence as related to the two
96
special issues would control his answers rather than the verdict. As such, the trial
court did not abuse its discretion by denying Appellant’s challenge for cause
against Matthews.
Issue 21 should be overruled.
Issue #22: Laura Carroll
At trial, Appellant challenged Laura Carroll for cause because she was
“mitigation impaired” and because “someone would have to convince her that life
was the more appropriate verdict.” (RR15:74). The trial court denied this
challenge. (RR15:74). The record reflects no bias against the law governing the
mitigation special issue and, thus, supports the trial court’s ruling.
During voir dire, Carroll affirmed that if she were to find someone guilty of
capital murder, she would not “be leaning toward the death penalty[.]” (RR15:49).
She testified, “No. It would depend on the circumstances throughout the entire
trial. I can’t make a presumption like that without having any kind of evidence to
say that, yes, I would go either way.” (RR15:49). Carroll testified that Special
Issue No. 2 “always matters.” (RR15:57). “There could be” evidence that would
convince her that life is the appropriate punishment. (RR15:57). She testified she
would “lean more closely toward the death penalty” (after having found someone
guilty of capital murder and found him a future danger), “but [she] would have no
problem listening to others and discussing why we should go with a life sentence
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instead.” (RR15:57-58). See Coleman v. State, 881 S.W.2d 344, 352 (Tex. Crim.
App. 1994) (holding that the trial court did not err in denying a challenge for cause
for an inability to consider mitigating evidence where the record showed that the
prospective juror could listen to the evidence with an open mind).
In Saldano, this Court stated that a veniremember is not challengeable for
cause simply because he would place the burden of proof on the defense regarding
mitigation. Saldano, 232 S.W.3d at 92 (citing Ladd v. State, 3 S.W.3d 547, 559
(Tex. Crim. App. 1999)). Nevertheless, Carroll testified she would not require the
defense to present such evidence. (RR15:58). The following exchange took
place:
[Defense counsel]: If you - - if - - on your hypothetical jury, you
found somebody guilty of capital murder, you found beyond a
reasonable doubt that they are going to be a threat in the future, is the
Defense going to have to bring you some kind of evidence to convince
you that life is appropriate at that point?
[Carroll]: You would think that they would. I would think that they
would.
[Defense Counsel]: Would you require that?
[Carroll]: No.
(RR15:58). Defense counsel later returned to the topic and asked whether Carroll’s
personal feeling, after having found someone a future danger, would be that the
death penalty is appropriate. (RR15:71). Carroll testified, “It would be, yes.”
(RR15:71). Counsel asked whether her feeling would remain unless “somebody
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can convince you otherwise[.]” (RR15:71). Carroll testified, “I would be, yes.”
(RR15:71). Carroll never testified the defense must bring any evidence to
convince her that life was the appropriate sentence. (RR15:71). The totality of
Carroll’s testimony indicates she would be fair and impartial and would listen to all
evidence in order to answer the two special issues. This Court should defer to the
trial court’s resolution of any of her possible conflicting responses. See Feldman,
71 S.W.3d at 744.
Issue 22 should be overrruled.
Issue #23: Molli Elliston
At trial, Appellant challenged Molli Elliston for cause because, as to Special
Issue No. 1, Elliston would only require one criminal act of violence. (RR16:56).
The trial court denied Appellant’s challenge for cause. (RR16:56).
During voir dire, defense counsel questioned Elliston regarding Special
Issue No. 1. When discussed “criminal acts of violence,” he asked Elliston
whether she would require a single act of violence or multiple and instructed her
that the term had no definition. (RR16:44). Elliston testified she would “have to
think about that, if that truly means acts plural and not a singular act.” (RR16:44).
She testified that it “seems a little bit like splitting hairs to whether it would be just
one or multiple.” (RR16:45). The following exchange took place:
[Defense counsel]: But that seems to be a hair that the legislature has
split.
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[Elliston]: Okay. Well, I’d have to think about that.
[. . .]
[Defense counsel]: Well, do you want me to - - to - - to come back to
it? Do you - - or - - because it’s - - it’s an important question, and it’s
- - it’s what the legislature requires, that you would have to believe
that the Defendant would commit criminal acts, plural, of violence.
[Elliston]: I’m thinking. Criminal acts of violence - - If - - I - - if you
think a person is - - is likely to commit another act of violence which
would constitute a threat to society, then I’m having trouble
distinguishing it it’s - - if you have - - if anybody can be so specific as
saying, one - - they can do one future act of violence but not five. I
don’t know how - - I don’t know how you ever - - I’m not sure they
did intend that. I think it’s maybe - - I don’t know. I don’t know. If I
- - if I thought - - if that act of violence is to kill somebody else, that’s
a continuing threat to society. One person being killed is a threat,
whether it’s a prison - -
[. . .]
[Defense Counsel]: And hopefully we can - - we can figure this out.
Are you saying that if you thought there’s a probability that the
Defendant would commit a criminal act, singular, that would be
sufficient for you to answer Special Issue Number 1 yes, as opposed
to criminal acts, plural?
[Elliston]: Yeah, I think so. I think when you’ve already got a strike
against you and if you - - if some - - I just don’t - - you’re - - you’re -
- you’re speculating anyway at best whether or not they will commit
future acts. It’s - - no one really knows that. So I do not see how you
can break it down and say I think they’ll possibly commit one other
act, but that would certainly be their limit. I just don’t think you can
do that. If that’s what the legislature intended, I’m a believer in
following the law, regardless of my beliefs, but I just got to - - I don’t
- - I’d love to - -
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(RR16:46-47). Importantly, Elliston testified that she would have to “think about
that.” (RR16:45). Elliston vacillated on this issue. (RR16:45-47). When the
record reflects that a prospective juror vacillated or equivocated on her ability to
follow the law, the reviewing court must defer to the trial judge. Gardner, 306
S.W.3d at 295.
Issue 23 should be overruled.
Issue #24: Jerry Mace
At trial, Appellant challenged Jerry Mace for cause for the following
reasons: (1) he would presume future danger if the individual is guilty of capital
murder; and (2) he is “mitigation impaired.” (RR18:68). Appellant’s challenge
was denied. (RR18:68). The record supports the trial court’s ruling.
The State must prove the future dangerousness special issue beyond a
reasonable doubt. Tex. Code Crim. Proc. Ann. art. 37.071, § 2(c). Any venire
member who would automatically answer the future dangerousness special issue in
the affirmative or who would place the burden of proof on the defense is
challengeable for cause under article 35.16(c)(2) for having a bias or prejudice
against a law applicable to the case upon which the defense is entitled to rely.
Feldman, 71 S.W.3d at 745.
Mace’s voir dire testimony shows he held no bias against the law governing
the first special issue. During voir dire, the prosecutor explained the various
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aspects of the first special issue, particularly that the State must prove that the
answer to that question is “yes.” (RR18:26-31, 30). She explained that while the
jury could consider the facts of the case in answering the question, “it’s not an
automatic answer. In other words, just because you’re convicted of capital murder
doesn’t always mean that Special Issue Number 1 is yes.” (RR18:30). Mace
indicated he understood. (RR18:31). He testified, “Well, you have to be
concerned about [the facts of the offense], but you’ve got to listen to everything
that went down and just determine then was it - - or is he going to do it again or
more than likely will he do it again[.]” (RR18:31). Moreover, when he was
questioned by the defense, Mace denied that a robbery indicates a person is a
continuing threat to society. (RR18:57). Clearly, Mace understood the State had
to prove future danger and he would hold the State to its burden.
Appellant’s complaint that Mace is “mitigation impaired” is also refuted by
the record. On his questionnaire, Mace was asked what he thought about the fact
that “[s]ome people feel genetics, circumstances of birth, upbringing and
environment should be considered when determining the proper punishment of
someone convicted of a crime.” Mace wrote, “B.S.! I’m not concerned about
how they were raised. Only that a horrific crime was committed.” (Mace, Juror
615A, Q. p.6). Notably, this answer was given before Mace was instructed on the
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applicable law. During voir dire, defense counsel questioned Mace about his
answer. The following exchange took place:
[Defense Counsel]: You don’t have to use the - - use the word, but
does the B.S. represent the way you feel?
[Mace]: To bring it in as - - yes, in a sense. The - - the act itself was
the individual’s - - at that moment, what transpired growing up and - -
and such, probably got him to that point or got her to that point or
helped to get to that point, but that didn’t - - that doesn’t come into
play when it’s the act itself.
[Defense Counsel]: Okay. And does it come into play when you’re
considering punishment?
[Mace]: It may, depending on Special Issue Number 2 and the
mitigation circumstances. I don’t know. You know, if certain
circumstances say that - - I’d have to - - I’d have to hear it. I don’t
know. You know, I mean, I would be open to listening to it, and I
definitely wouldn’t be qualified to say that, well, background and
generics [sic] - - genetics have a lot of pull on this. I wouldn’t know
that. I would expect you all to tell me what is going on here.”
(RR18: 58-59). Mace testified he could consider mitigating circumstances, which
could warrant a life sentence. (RR18:60). His testimony shows that he would
consider the evidence but that he might not regard it as mitigating. His testimony
does not show that he would not consider the evidence at all. That Mace could
consider mitigating evidence is all that is constitutionally required. See Cordova v.
State, 733 S.W.2d 175, 189 (Tex. Crim. App. 1987); see also Coleman, 881
S.W.2d at 352 (holding that the trial court did not err in denying a challenge for
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cause for an inability to consider mitigating evidence where the record showed that
the venire member could “listen with an open mind”).
Issue 24 should be overruled.
Issue #25: Sandra Gromacki
At trial, Appellant challenged Sandra Gromacki for cause because Gromacki
could not presume a life sentence is the proper punishment and “she leaned toward
the death penalty.” (RR20:103-04). He also complained that “she would consider
it if the Defendant failed to testify during the penalty phase in consideration of
Special Issue Number 2.” (RR20:104). Appellant’s challenge was denied.
(RR20:104). The record supports the trial court’s ruling.
The law does not require that a juror presume a life sentence is the proper
punishment. See Gardner, 306 S.W.3d at 303. Nevertheless, the record shows
Gromacki would apply such a presumption. During voir dire, defense counsel
asked whether, if Gromacki found someone guilty of capital murder, she would
“lean heavily toward the death penalty?” (RR20:81). Gromacki admitted that she
would but testified that “[her] answer for that, though, would not be like
[100%][.]” (RR20:81). Defense counsel later returned to this subject and
Gromacki affirmed her previous stance. (RR20:94). Defense counsel asked
whether Gromacki was “telling us that you could not follow the presumption that
life without parole would be the appropriate punishment[.]” (RR20:95). Gromacki
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responded, “No[,]” that while she might lean toward the death penalty, she would
still follow the presumption regarding life without parole. (RR20:95).
Next, Gromacki was asked whether she agreed that she would have to hear
from Appellant in order to answer Special Issue No. 2 “yes.” (RR20:88).
Gromacki testified, “Not - - not necessarily, no.” (RR20:88). Then, the following
exchange took place:
[Defense Counsel]: Well, there are people that come in and say, you
know what, I could never find something sufficiently mitigating
unless - - without hearing from him, without hearing if he was sorry or
how he felt about it. Do you know what I mean?
[Gromacki]: Uh-huh, yes.
[Defense Counsel]: How do you feel about that?
[Gromacki]: I could see that playing a part in the mitigating
circumstances.
[Defense Counsel]: So it is something that you would consider?
[Gromacki]: Yes.
[Defense Counsel]: If the Defendant didn’t testify in the penalty
phase with regard to Special Issue Number 2, that is something you
would take into consideration?
[Gromacki]: Yes.
[Defense Counsel]: Despite the fact that the law says he doesn’t have
to testify?
[Gromacki]: Yes.
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(RR20:89). The trial court later rehabilitated Gromacki. The judge explained the
law and asked whether Gromacki could follow the law. (RR20:103). Gromacki
said she could. (RR20:103). The judge then asked whether Gromacki, knowing
the law, would require Appellant to testify as to Special Issue No. 2. (RR20:103).
Gromacki said “no.” (RR20:103).
The totality of Gromacki’s testimony indicates that she would be fair and
impartial and would listen to all evidence to answer the two special issues. This
Court should defer to the trial court’s resolution of any possible contradictory
responses. See Feldman, 71 S.W.3d at 744.
Issue 25 should be overruled.
Issue #26: Sarah Wagler
At trial, Appellant challenged Sarah Wagler for cause on the basis that she
could not fairly apply the presumption of innocence and that she “would require
the Defense to do something.” (RR34:83). Appellant’s challenge was denied.
(RR34:83). The record reflects that Wagler had no bias against the presumption of
innocence. Although she would expect Appellant to present evidence in his
defense, she would not require him to.
During voir dire, the prosecutor asked Wagler whether she was familiar with
the Fifth Amendment. (RR34:17). Wagler responded, “That’s not to incriminate
yourself, correct?” (RR34:17). The prosecutor explained a defendant cannot be
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compelled to testify. (RR34:17). Wagler affirmed she understood. (RR34:17).
The prosecutor asked what Wagler’s verdict would be if the State failed to prove
its case and Wagler responded she “would have to acquit.” (RR34:17). The
record is clear that Wagler could fairly apply the presumption of innocence.
Then, defense counsel questioned Wagler regarding the fact that the defense
has no burden of proof:
[Defense counsel]: You understand that this table has absolutely no
burden to present any evidence to the jury at all.
[Wagler]: Right.
[Defense counsel]: And you can’t require that.
[Wagler]: Right.
[. . .]
[Defense Counsel]: But under the law, we don’t have to prove a thing
to you.
[Wagler]: Right.
[Defense Counsel]: We don’t have to prove that Matthew Johnson is
not guilty. We don’t have to prove that Matthew Johnson would not
be a continuing threat to society.
[Wagler]: Uh-huh.
[Defense Counsel]: And we don’t have to prove any kind of
mitigation to you.
[Wagler]: Right. My reasonable expectation would be that if the
State presented X, Y, and Z, that the Defense would come back and
counter why X, Y, and Z did not exist or what made changes to X, Y,
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and Z, not just sit there and let them make a statement and not say
anything back. That’s what I meant by both good and bad - -
[Defense Counsel]: Okay.
[Wagler]: - - in play.
[Defense Counsel]: But you understand the State has got the burden
of proving it. We don’t have - - we don’t have to prove why the
State’s wrong or that the State’s wrong or - - or anything like that.
[Wagler]: Right.
(RR34:60-61). Later, however, when defense counsel asked whether she would
require the defense to “counter” the State’s evidence, Wagler testified, “[I]f there’s
no counter, then to me, you’re accepting what’s being said.” (RR34:62).
Essentially, Wagler would require the defense to “counter what is being said or
what is being presented[.]” (RR34:62-63). Defense counsel explained the law did
not place any burden on the defense. (RR34:64). Wagler testified she “would
have an expectation that [the defense] would want to counter something that was
negative.” (RR34:64). Without that “counter,” Wagler testified that “then it’s just
my personal belief as to whether or not I happen to feel whichever person is
speaking for the State is saying the truth or not the truth.” (RR34:65). Wagler
testified she would require the defense to counter the State’s evidence or “assume
the responsibility that I’m going to make a personal judgment on my own as to
whether or not I believe what the State is presenting or not presenting.”
(RR34:65).
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The trial court interjected and instructed Wagler regarding the presumption
of innocence and the fact that a defendant has no burden of proof. (RR34:66).
Wagler affirmed she understood. (RR34:66). Wagler testified she could presume
innocence and return a verdict of not guilty even if the defense did not present any
evidence. (RR34:67). She also testified she could answer Special Issue No. 1 “no”
without hearing anything from the defense. (RR34:72).
The totality of Wagler’s testimony shows that she could apply the
presumption of innocence and that she would not require the defense to present any
evidence. This Court should defer to the trial court’s resolution of any possible
contradictory responses. See Feldman, 71 S.W.3d at 744.
Issue 26 should be overruled.
Issue #27: Jerri Adams
At trial, Appellant challenged Jerri Adams for cause for the following
reasons: (1) she would disregard trial court instructions that conflicted with
Scripture; (2) she would extend more credibility to police officers; and, (3) she is
“mitigation challenged based on her answers in her questionnaire and her answers
to the Court.” (RR39:99). The trial court denied Appellant’s challenge, and with
good cause. (RR39:99).
Adams testified that she attends church regularly and that her faith is very
important to her. (RR39:61-62). She testified her religious beliefs do not conflict
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with the death penalty. (RR39:16). On her questionnaire, in response to a question
asking if the death penalty should be available for murder in the course of robbery,
Adams wrote that she agreed and that the “laws of the land should be followed as
long as there is no contradiction with Scripture – the Bible gives several
reasons/examples in both the old and new testaments where death was the
punishment.” (Adams, Juror 1393A, Q. p.2). Defense counsel questioned Adams
at length about this subject. (RR39:61-68). Adams clarified when she wrote the
aforementioned statement in her questionnaire, she “meant in the bigger picture[.]”
(RR39:62). She testified, “If the law says you can do it, I still don’t think you can
do it, because I believe it is against [S]cripture.” (RR39:62). She mentioned
abortion as an example. (RR39:62, 64). Adams “didn’t mean that [she was] not
going to obey whatever the law is in the court for determining [a legal outcome].”
(RR39:62).
Defense counsel again pursued the subject and at one point, Adams
conceded if the instructed law conflicted with Scripture, Adams would follow
Scripture. (RR39:64-65). Adams noted, however, she had never encountered
such a situation and she could not imagine one. (RR39:65, 67). She testified,
“There’s not any - - there’s not a law that I - - that I know of that’s going to not
allow me to follow.” (RR39:66). Ultimately, Adams testified that she would
follow the law applicable in a death penalty case. (RR39:68).
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In Gardner, a prospective juror testified, like Adams, that if the law violated
Scripture, he would follow Scripture. Gardner, 306 S.W.3d at 298. Also like
Adams, the juror testified he had never encountered such a situation. Id. This
Court held the trial judge did not abuse its discretion in denying Gardner’s
challenge for cause because the existence of “some unknown, hypothetical
situation in which man’s law was in conflict with [the juror’s] understanding of
Scripture does not mean that he was unable or unwilling to follow the law in a
death-penalty case.” Id. at 299. The same logic applies here. Adams testified
some unknown situation may cause the law to conflict with Scripture. (RR39:65-
66). Even so, she testified she would follow the law in a death penalty case.
(RR39:68). The trial judge was in the best position to evaluate Adams’ responses
regarding her ability to follow the law, and he found them credible.
On her questionnaire, Adams wrote police officers are more likely to tell the
truth “because they are a group that has been culled from all that apply & they
likely better understand the repurcussions [sic] of not telling the truth.” (Adams,
Juror 1393A, Q. p. 5). During voir dire, she affirmed she would wait to hear what
a witness had to say and would not automatically assume credibility based on one’s
position as a police officer. (RR39:29-30). Defense counsel posed the question to
Adams again later. (RR39:95). Adams reiterated that she would not give the
officer more credibility. (RR39:95). She “would expect them to be telling the
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truth on things, but [. . .] I don’t think anybody else stepping up here would be any
less credible than the officer just because he had a uniform.” (RR39:95-96). The
totality of Adams’ testimony indicates she would wait to hear a witness’s
testimony before passing judgment on credibility. Given her assurances to follow
the law, the trial court reasonably concluded that Adams held no bias. See Lane,
822 S.W.2d at 45.
Finally, Appellant’s complaint that Adams was “mitigation challenged”
lacks merit. Adams affirmed that if she heard evidence that was sufficiently
mitigating, she would answer “yes” to Special Issue No. 2. (RR39:44, 46-47). She
could not envision a situation in which she would answer that issue “yes,” but she
could imagine the possibility. (RR39:46-47). She affirmed she would keep an
open mind as to Special Issue No. 2. (RR39:53). In short, the record reflects no
bias against Appellant on the mitigation issue, and Appellant fails to articulate one.
At trial, Appellant did not specify how Adams was “mitigation challenged”
except by “her answers in her questionnaire.” (RR39:99). Appellant failed to
identify, however, which answers on Adams’ 19-page questionnaire indicated a
bias.
In his brief, Appellant argues Adams’ emotional state during voir dire shows
a lack of objectivity to consider some of the evidence presented at trial. This
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complaint was not asserted at trial and was not properly preserved. See Tex. R.
App. P. 33.1(a).
Issue 27 should be overruled.
Conclusion
Appellant has not shown even one erroneous ruling on his challenges for
cause, much less three erroneous rulings. See Gonzales, 353 S.W.3d at 837.
Therefore, he has not shown this Court that he was denied the use of a statutorily
provided peremptory strike. Issues 20 through 27 should be overruled.
STATE’S RESPONSE TO ISSUE NOS. 28 THROUGH 30: THE TRIAL COURT DID NOT ERR
IN GRANTING THE STATE’S CHALLENGES FOR CAUSE.
In Issues 28, 29, and 30, Appellant contends the trial court erred in granting
three of the State’s challenges for cause over his objection against venire members
Alan Avidon, John Cavner, and Douglas Green. (Appellant’s Br. pp.87-91). He
contends the trial court abused its discretion in excusing these jurors. Appellant’s
contentions lack merit and should be overruled.
Issue #28: Alan Avidon
Prior to voir dire, the State notified the trial court that Avidon had not
answered a question on his questionnaire truthfully. (RR13:4). Avidon checked
“no” in response to a question asking “Have you . . . ever been accused, arrested or
convicted (including probation, deferred adjudication, conditional discharge, fine,
etc.) of a crime above the level of a traffic ticket.” (Avidon, Juror 247A, Q. p. 8)
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(emphasis in original). The State ran Avidon’s criminal history and discovered
Avidon had “received deferred [adjudication] in Dallas County for a DWI back in
1980, as well as an arrest in New York for possession of a dangerous drug.”
(RR13:4-5). Given Avidon’s lack of candor, the State challenged Avidon for
cause. (RR13:5). Appellant objected. (RR13:5). The trial court brought Avidon
into the courtroom to inquire about his criminal history. (RR13:7). Avidon
admitted to the two arrests. (RR13:9). He testified he “didn’t indicate it on the
questionnaire thinking that it was, you know, so long that the statute of limitation
passed.” (RR13:9). The court excused the juror and granted the State’s challenge.
(RR13:10).
A challenge for cause may properly be asserted on grounds not specifically
enumerated in article 35.16 if the challenge is based on facts that show the
prospective juror would be “incapable or unfit to serve on the jury.” See Mason v.
State, 905 S.W.2d 570, 577 (Tex. Crim. App. 1995). These challenges are
addressed to the trial court’s discretion. See id. Avidon withheld critical
information when he failed to truthfully answer the question regarding his criminal
history. Importantly, Avidon did not simply forget the arrests. (RR13:9). Instead,
he claimed he thought the statute of limitations had passed. (RR13:9). Avidon
placed his veracity – and, therefore, his fitness to serve – in question. The trial
court did not abuse its discretion by granting the State’s challenge for cause against
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Avidon. To conclude otherwise would controvert this Court’s policy as stated in
connection with the State’s response to Issues 8-19. Jones, 982 S.W.2d at 394.
Regardless, even if this Court finds that the trial court erred in granting the
State’s challenge for cause against Avidon (which the State does not concede), any
alleged error is harmless. The erroneous excusing of a venire member will call
for a reversal only if the record shows that the error deprived the defendant of a
lawfully constituted jury. Jones, 982 S.W.2d at 394. Appellant has made no such
showing.
Issue 28 should be overruled.
Issue #29: John Cavner
During voir dire, the prosecutor explained the phases of a death penalty trial
and asked Cavner whether he would be more inclined to answer the special issues
in such a way that a life sentence would result. (RR17:122). Cavner responded, “I
think there is - - that I would be constantly trying to prove to myself that is not the
right answer. In other words, that would be my - - my - - my leaning, my bias
probably.” (RR17:122). When asked whether he could guarantee he would set
aside his personal feelings and beliefs and decide the case based on the facts and
evidence, Cavner testified that he could not make that guarantee. (RR17:124-25).
On the other hand, when questioned by the defense, Cavner testified he “can
keep an open mind.” (RR17:127). He testified he could listen to the evidence but
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“I - - as I’ve said before, I know I’m going to have a, going in, bias[.]”
(RR17:130). At one point, he finally said that if he “could find nothing mitigating,
then [he could assess the death sentence].” (RR17:130). Apparently recognizing
Cavner’s inconsistent answers, the trial court attempted to clarify Cavner’s
responses. The following exchange took place:
[Trial Court]: All I want you to do is tell me, and I know you will,
how - - exactly how you feel and believe. Would - - will you always
find mitigating evidence regardless of the evidence?
[Cavner]: Well, I answered his question the way I did because I think
it will be very difficult for there not to be mitigating evidence.
[Trial Court]: Well, that’s all right, too. Can there ever be - - with
your opinion about the death penalty and your opposition to it, again,
if you want to look at Special Issue Number 2, can you - - will you
ever be - - regardless of the evidence, will you ever be able to answer
that issue yes, knowing death - - I’m sorry, no, knowing that the death
penalty will result? Whatever you say that’s it.
[Cavner]: I don’t believe I could do it.
[Trial Court]: Well - -
[Cavner]: I can’t do it.
[Trial Court]: Any doubt in your mind?
[Cavner]: No doubt.
(RR17:132-33). The State challenged Cavner for cause because “he would never
ever be able to answer Special Issue Number 2 in such a way that would result in
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the death sentence.” (RR17:134). The trial court granted the State’s challenge
over Appellant’s claim that Cavner was qualified. (RR17:134).
The totality of Cavner’s voir dire testimony clearly shows his beliefs about
capital punishment would prevent or substantially impair the performance of his
duties as a juror in accordance with the court’s instructions and his oath.
See Colburn, 966 S.W.2d at 517. At a minimum, he was a vacillating juror and
the Court should defer to the trial court’s judgment on the challenge for cause.
Granados, 85 S.W.3d at 231. To conclude otherwise would controvert this
Court’s policy as stated earlier. Jones, 982 S.W.2d at 394.
Issue 29 should be overruled.
Issue #30: Douglas Green
Douglas Green gave multiple contradictory answers during voir dire. The
State challenged him for cause and that challenge was granted. (RR21:122-23).
In his questionnaire, in response to convictions based on circumstantial
evidence, Green wrote that he agreed, “If DNA or forensic evidence to 100%
conclusion.” (Green, Juror 597A, Q. p.3). When questioned by the prosecutor,
Green affirmed that “[u]nder the circumstances with a death penalty, yes[,]” he
would require the State to prove its case beyond all doubt. (RR21:98). He
understood that this would be holding the State to a higher burden of proof than
required. (RR21:97-98). When questioned by the defense, Green testified he
117
would “follow the law” and affirmed he would not hold the State to a higher
burden of proof. (RR21:115). Jurors may be challenged and removed for bias
against the law, which includes the burden of proof. See Bodde v. State, 568
S.W.2d 344, 349 (Tex. Crim. App. 1978) (finding juror properly excluded where
juror insisted she would hold the state to a more stringent standard of proof than
"beyond a reasonable doubt").
Next, the prosecutor explained that at trial, the State is required to prove
certain elements for a conviction of capital murder. (RR21:75-77). She gave a
hypothetical in which the State alleged a murder committed during the course of a
sexual assault. (RR21:75, 77). In the hypothetical, the State proved the murder,
but instead of sexual assault, proved a robbery. (RR21:74-76). Green testified that
he “might” still convict of capital murder even though the State did not prove the
offense as alleged. (RR21:78). The defense attempted to rehabilitate Green on this
issue, but Green testified that “if [he] knew someone had committed murder, [he]
would have a hard time[.]” (RR21:107-08). Then, he testified he would follow the
law. (RR21:108).
Finally, in his questionnaire, in response to a question asking what would be
important to him in deciding whether a person should receive a life or death
sentence, Green wrote, “Does the person have an evil heart.” (Green, Juror 597A,
Q. p.3). When questioned by the prosecutor, he testified he would “rather hear the
118
person tell me why than someone else speak for them.” (RR21:95). He testified,
“I can’t imagine if I was in that - - in the other position that I wouldn’t want to tell
my story.” (RR21:95). When defense counsel asked whether Green could follow
an instruction on the Fifth Amendment right to silence, Green testified, “I could. I
would feel it’s strange, but I - - I could.” (RR21:119).
Green gave contradictory answers regarding several critical issues: (1) his
ability to apply the proper standard of proof; (2) his ability to require that the State
prove each and every element; and, (3) a defendant’s right to remain silent. The
State challenged him on all three of these bases, and the trial court acted well
within its discretion in granting the challenge. (RR21:122-23). Green was a
classic vacillating juror. The Court should defer to the trial court’s judgment on
the challenge for cause. Granados v. State, 85 S.W.3d 217, 231 (Tex. Crim. App.
2002).
Issue 30 should be overruled.
STATE’S RESPONSE TO ISSUE NOS. 31 AND 32: APPELLANT WAS NOT DEPRIVED OF A
LAWFULLY CONSTITUTED JURY.
In Issues 31 and 32, Appellant contends the trial court’s rulings “in relation
to overruling Appellant’s objections to the trial court’s actions in reference to each
juror complained about previously” deprived him of a lawfully constituted jury
resulting in violations of his rights under the state and federal constitutions, and
under article 35.16 of the Code of Criminal Procedure. (See Appellant’s Br. pp.
119
92-93). He fails to specify, however, whether he is referring to the trial court’s
denial of his challenges for cause or the granting of the State’s challenges for
cause.
In any event, Appellant has failed to show he was deprived of a lawfully
constituted jury. He has failed to show the trial court’s rulings on any of the
challenges resulted in the seating of a juror who was biased or prejudiced. If an
appellant does not present record evidence demonstrating that the trial court’s error
deprived him of a jury comprised of legally qualified jurors, he has suffered no
harm and the reviewing court should presume the jurors are qualified. See Gray v.
State, 233 S.W.3d 295, 301 (Tex. Crim. App. 2007).
Issues 31 and 32 should be overruled.
STATE’S RESPONSE TO ISSUE NO. 33: THE EVIDENCE IS LEGALLY SUFFICIENT TO
SUPPORT APPELLANT’S CONVICTION FOR CAPITAL MURDER.
In Issue 33, Appellant contends that the evidence is insufficient to support
his conviction for capital murder. Specifically, Appellant contends that he lacked
the specific intent to kill Nancy and that the State failed to show a nexus between
the murder and the theft. (Appellant’s Br. p. 94). Appellant’s contentions lack
merit and should be overruled.
Standard of Review
When reviewing a challenge to the sufficiency of the evidence, an appellate
court considers all the evidence in the light most favorable to the verdict to
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determine whether any rational trier of fact could have found the essential elements
of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319
(1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). This
standard gives full play to the responsibility of the trier of fact to resolve conflicts
in the testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts. Jackson, 443 U.S. at 319. The appellate court does
not reweigh the evidence or substitute its judgment for that of the factfinder. King,
29 S.W.3d at 562.
Applicable Law
A person commits the offense of capital murder if he intentionally commits
murder in the course of committing or attempting to commit robbery. Tex. Penal
Code Ann. § 19.03 (a)(2). A person commits robbery if, in the course of
committing theft, he intentionally, knowingly, or recklessly causes bodily injury to
another, or intentionally or knowingly threatens or places another in fear of
imminent bodily injury or death. Id. § 29.02(a). A person commits theft if he
unlawfully appropriates property with intent to deprive the owner of the property.
Id. § 31.03(a).
The State must prove a nexus between the murder and the theft, i.e., that the
murder was committed in order to facilitate the taking of the property. See Cooper
v. State, 67 S.W.3d 221, 222-23 (Tex. Crim. App. 2002); Hooper v. State, 214
121
S.W.3d 9, 13 (Tex. Crim. App. 2007) (in reviewing the sufficiency of the evidence,
the appellate court should look at events occurring before, during and after the
commission of the offense and may rely on actions of the defendant which show an
understanding and common design to do the prohibited act).
Analysis
The following evidence proves that Appellant intended to kill Nancy Harris
and that the murder occurred to facilitate the taking of property:
 Appellant walked into the Whip-In carrying a lighter and a plastic bottle
filled with a flammable liquid.
 He walked straight to the sales counter, then around and behind into the area
reserved for employees.
 When Nancy attempted to push him back, Appellant poured the contents of
the plastic bottle, the flammable liquid, over Nancy’s upper body.
 Appellant stood directly behind Nancy as she tried to open the register. He
took two lighters from a display to the right of the register. He took two
packages of cigarettes from an overhead dispenser. He took the ring Nancy
was wearing on her right hand. When Nancy opened the register, Appellant
took all of the cash and some of the coins.
 After Appellant took the money from the register he flicked his lighter and
the flame ignited the liquid on Nancy.
 While Nancy, engulfed in flames from her shoulders up, ran out from behind
the counter, Appellant calmly walked out of the store with his plastic bottle
and the stolen property. On his way out, he stopped to take some candy and
stuff it in his pocket.
 Appellant made no effort to help Nancy extinguish the flames.
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 Appellant fled the store and hid from police in the neighborhood behind the
Whip In.
 Nancy told police that “a black male, heavy-set, short dark hair, and a
chubby face, came into the store and demanded money from her. She
advised he took the money and then he poured something on her. She didn’t
know what - - what it was, and then he lit her on fire.” (RR45:82).
 Nancy was rushed to the hospital. She suffered second-, third-, and fourth-
degree burns over forty percent of her body.
 Five days after Appellant set her on fire, life support was discontinued.
Nancy died as a result of her burns.
 Appellant was arrested shortly after the offense in the neighborhood behind
the Whip-In. When he was handcuffed, he asked the officers what had taken
them so long. He commented that they were “getting slow.” (RR44:186).
 Three lighters, Nancy’s ring, coins, and cash were recovered from
Appellant’s pocket after his arrest.
 A plastic bottle was found in the grass behind the Whip-In. DNA on the
plastic water bottle was identified as Appellant’s.
 Testing of the contents of the plastic water bottle and Nancy’s clothing
showed a medium petroleum distillate of the primary recovery and a lower
level of isopropyl alcohol. A medium petroleum distillate is an ignitable
fluid, which is found in charcoal starter fluid, paint thinner, and mineral
spirits.
Despite the aforementioned evidence, Appellant nevertheless contends that
no evidence proves he went to the Whip-In “to murder the Complainant in order to
rob her[,]” and that, as such, no evidence shows his specific intent to kill. In
support of his contention, he cites his own testimony from the punishment phase
that he had no intent to murder Nancy. (Appellant’s Br. p. 96). In a bifurcated
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trial before a jury on a plea of not guilty, however, “consideration of the evidence
is necessarily limited to the evidence before the jury at the time it rendered its
verdict of guilt.” Barfield v. State, 63 S.W.3d 446, 450 (Tex. Crim. App. 2001).
Absent a judicial confession, evidence from the punishment phase of a trial will
not be considered in determining the sufficiency of the evidence to support a
conviction. Munoz v. State, 853 S.W.2d 558, 560 n.3 (Tex. Crim. App. 1993).
Accordingly, because Appellant’s punishment-phase testimony was not before the
jury when it found Appellant guilty of capital murder, it should not be considered
in determining the sufficiency of the evidence to support his conviction.
Regardless, the evidence overwhelmingly contradicts Appellant’s
punishment testimony and argument that he lacked the specific intent to kill.
“Intent can be inferred from the acts, words, and conduct of the accused.” Patrick
v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995) (citing Beltran v. State, 593
S.W.2d 688, 689 (Tex. Crim. App. 1980)). Appellant walked in to the Whip-In
armed with his plastic bottle of flammable liquid and his lighter. The first thing
that he did when he walked behind the counter was pour that liquid over Nancy’s
upper body. Immediately after he robbed her, he flicked his lighter and ignited the
fluid on her body. That Appellant actually poured the lighter fluid over Nancy and
later ignited it supports a conclusion of specific intent. Notably, he made no effort
to call an ambulance or extinguish the flames. He simply left by walking casually
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out of the store as his elderly victim was left to contend with the flames now
engulfing her entire upper body. Based on this evidence, a rational jury could have
found Appellant intended to kill Nancy. See Patrick, 906 S.W.2d at 487 (finding
evidence legally sufficient to prove intent to kill in light of the extent of the
complainant’s injuries, how the injuries were inflicted, and the relative size and
strength of the parties).
Moreover, the evidence was sufficient to prove the murder took place during
the course of committing or attempting to commit robbery. Appellant argues the
theft was unrelated to the murder and was an afterthought, and thus is insufficient
to prove capital murder. (Appellant’s Br. at 97). Appellant’s argument is once
again contradicted by the surveillance video. The video shows that Appellant went
into the Whip-In that morning with his plastic bottle of flammable liquid and his
lighter. He was fully prepared to commit robbery. Once inside the store, he
poured the fluid over Nancy. Then he took the lighters, the cigarettes, Nancy’s
ring, and the money. After he had what he wanted and had no further need for
Nancy, he flicked his lighter and the flame ignited the fluid on her body. This
gave him the opportunity to flee the scene. In short, the murder and the robbery
are closely intertwined. Appellant poured the lighter fluid over Nancy so that she
would cooperate and open the register. He waited to set her on fire until after she
opened the register and he had a chance to take all that he wanted. Once he had
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what he wanted, he set Nancy on fire and left. The robbery was anything but an
afterthought.
Considering all the evidence in the light most favorable to the jury’s verdict,
a rational trier of fact could have found the essential elements of capital murder
beyond a reasonable doubt. As such, the evidence is legally sufficient to support
the conviction.
Issue 33 should be overruled.
STATE’SRESPONSE TO ISSUE NOS. 34 AND 35: THE TRIAL COURT PROPERLY
ADMITTED THE SURVEILLANCE VIDEO OF THE INSTANT OFFENSE AS WELL AS STILL
PHOTOGRAPHS FROM THAT VIDEO. ALTERNATIVELY, ANY ERROR IS HARMLESS.
In his Issue 34, Appellant contends that the trial court erred in overruling his
objection to 24 still photographs from the surveillance video of the instant offense.
In Issue 35, Appellant contends that the trial court erred in admitting the
surveillance video over his Rule 403 objection. Appellant’s contentions lack merit
and should be overruled.
Pertinent Facts
During a hearing outside the presence of the jury, Appellant objected that the
surveillance video of the instant offense was unfairly prejudicial and asked the trial
court to conduct “a 403 balancing test.” (RR44:33). The trial court overruled
Appellant’s objection and stated that “the evidence about to be presented by the
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State is more probative than prejudicial.” (RR44:33). The surveillance video was
offered and admitted and published to the jury.14 (RR44:48-49; SX#16-17).
Later, the State moved to admit State’s Exhibits 79-102, which are still
photographs taken from the surveillance video. (RR44:229). The following
exchange took place:
[Prosecutor]: I’m going to show you State’s Exhibits 79 through 102,
and ask you if those are screen shots or still shots from this
surveillance video that showed some of the significant things that
occurred in the video?
[Detective Tooke]: Yes, they are.
...
[Prosecutor]: I would offer State’s Exhibit 79 through 102.
(State’s Exhibits 79 through 102 offered.)
[Defense Counsel]: Your Honor, we’re going to object to 79 through
102 due to their cumulative nature and also the previous objections
that were set out in Pretrial Motion Number 57.
[Trial Court]: Any response?
[Prosecutor]: Judge, I can show the video multiple times and stop and
freeze this, but I believe that this is more expedient. The fact is that
the content contained in these photographs is already in evidence
through the video, and this just allows the State to show this and point
out the - - the specific - - the specific aspects of the video without
playing it again.
14
Two copies of the surveillance video were admitted. (RR44:49; SX#16, 17). State’s Exhibit
#16 is the unedited version, which contains footage from all three surveillance cameras.
(RR44:47; SX#16). State’s Exhibit #17 is the compilation version, which combines the footage
from the cameras for ease of the viewer. (RR44:47-49; SX#17). State’s Exhibit #17 is the
version that was shown to the jury. (RR44:49; SX#17).
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[Trial Court]: All right. Defense’s objection is overruled.
(RR44:229). The photographs were published to the jury. (RR44:229-234).
Applicable Law
Standard of Review
A trial court’s ruling on the admissibility of evidence is reviewed under an
abuse of discretion standard. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex.
Crim. App. 2000). The trial court’s ruling should be upheld if it is within the zone
of reasonable disagreement. Id. And, it will be upheld if it is correct on any theory
of law applicable to the case. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim.
App. 1990).
Photograph and Videotape Evidence
The admissibility of a photograph falls within the sound discretion of the
trial judge. Paredes v. State, 129 S.W.3d 530, 539 (Tex. Crim. App. 2004).
Generally, if testimony about the matters that are depicted in the photograph is
admissible, then the photograph will also be admissible. Id. at 539. Videotapes
are considered in the same manner. See Tex. R. Evid. 1001(b).
Rule 403
The admissibility of photographic evidence alleged to be unduly prejudicial
is governed by Texas Rule of Evidence 403. Tex. R. Evid. 403; Emery v. State,
881 S.W.2d 702, 710 (Tex. Crim. App. 1994). Under Rule 403, all relevant
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evidence is admissible unless “its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, or needless presentation of cumulative evidence.”
Tex. R. Evid. 403. In performing a Rule 403 analysis, “the trial court must
consider the host of factors affecting probativeness . . . and balance those factors
against the tendency, if any, that the photographs have to encourage resolution of
material issues on an inappropriate emotional basis.” Ladd v. State, 3 S.W.3d 547,
568 (Tex. Crim. App. 1999). Relevant factors a court may consider in making this
determination include the number of exhibits offered, their gruesomeness, their
detail, their size, whether they are black-and-white or color, whether they are
close-up, whether the body is naked or clothed, the availability of other means of
proof, and other circumstances unique to the individual case. Chamberlain v.
State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999).
All probative evidence proffered by an adverse party will be prejudicial, but
only unfair prejudice warrants exclusion of the evidence. See Montgomery v.
State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990) (citing United States v.
Figueroa, 618 F.2d 934, 943 (2nd Cir. 1980).
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Analysis
Issue #35: The Surveillance Video
The trial court did not err in admitting the surveillance video depicting the
instant offense. The footage from the surveillance video is in black-and-white and
is 4 minutes and 44 seconds long. (SX#17). Given the relative positions of the
cameras, at times, some angles offer a closer view of Nancy and Appellant behind
the sales counter as she opens the register and as he takes lighters, cigarettes,
money, and her ring. (SX#17). The later portion of the video is graphic as it
shows an elderly woman on fire and the removal of her shirt in an attempt to put
out the flames engulfing her upper body. (SX#17). The video is without a doubt,
both graphic and disturbing. Yet, the video simply shows the offense as it
occurred. It depicts nothing more than the reality of the brutal crime that
Appellant committed.
Furthermore, the video aided the jury in understanding how the crime
occurred. In Gordon v. State, this Court described the utility of video recordings
as follows:
Video recordings in general may be more helpful to a jury than still
photographs. While still photographs offer to the jury an isolated and
fixed content, a video recording allows a more panoramic
representation of the physical and forensic evidence.
Gordon v. State, 784 S.W.2d 410, 412 (Tex. Crim. App. 1990). Beyond the
depiction of the offense itself, the video helped the jury understand the testimony
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regarding the crime scene, including the layout of the sales counter at the Whip-In
and Appellant and Nancy’s position during the offense.
Appellant correctly states “There was no question for the jury as to how the
victim died.” (Appellant’s Br. p. 104). It was undisputed that Nancy died as a
result of thermal injuries. What was disputed, however, was Appellant’s intent.
At no time did Appellant concede his guilt for the offense of capital murder.
Indeed, during voir dire, defense counsel told many of the potential jurors that in
counsel’s opinion, the jury would never reach the punishment phase because they
would not find Appellant guilty. (RR5-RR42). The State was obligated to prove
each and every element of the offense, including Nancy’s identity and all of the
circumstances surrounding her robbery and murder. The video of the offense is
relevant because it shows the offense as it happened. It establishes not only that
Appellant committed the instant offense, but also the way in which he committed
it. And, the way in which Appellant committed the offense – walked into the
Whip-In with a flammable liquid, went straight to the sales counter, poured the
liquid over the elderly female clerk’s head and upper body, robbed her, set her on
fire, then walked casually out of the store leaving his victim engulfed in flames – is
highly probative of his intent. In sum, the video of the offense is highly probative
of Appellant’s specific intent to kill Nancy Harris, and is in no way unfairly
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prejudicial to Appellant. Therefore, the trial court did not abuse its discretion in
admitting it.
Issue #34: Still Photographs
The trial court did not err in admitting the still photographs as they are not
cumulative of the video. This Court has held that “a still photograph is not
cumulative of a videotape.” Matamoros v. State, 901 S.W.2d 470, 476 (Tex. Crim.
App. 1995). A still photograph allows the jury to examine the scene in detail.
Id. Like the video, the twenty-four still photographs are in black-and-white.
(SX#79-102). These photographs were used by Detective Tooke as he described
the details of the offense. (RR44:229-34). While it is true that the jury had
already seen the surveillance video, a single viewing of a 5 minute video is hardly
sufficient time for the jury to take in all of the details. Rather than play the video
multiple times during Detective Tooke’s testimony, the prosecutor used the
photographs to describe the critical details from the offense.
For example, State’s Exhibits #79-82 shows Appellant as he enters the
Whip-In. (SX#79-82). State’s Exhibit #83 shows Appellant carrying the plastic
bottle in his right hand. (SX#83). State’s Exhibit #84 shows Appellant as he
starts to walk behind the sales counter. (SX#84). State’s Exhibit #85 shows
Appellant behind the sales counter with Nancy. (SX#85). He has a lighter in his
hand and is taking lighters from a display. (RR44:230; SX#85). State’s Exhibit
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#86 is another view of Appellant and Nancy behind the counter. (SX#86). State’s
Exhibits #87 and 88 show Appellant taking cigarettes. (RR44:231; SX#87, 88).
State’s Exhibit #89 shows Appellant’s hand on Nancy’s hand. (RR44:231;
SX#89). State’s Exhibits #90 and 91 show Appellant licking his fingers.
(RR44:232; SX#90, 91). State’s Exhibits #92 again shows Appellant’s hand on
Nancy’s hand. (RR44:232; SX#92). State’s Exhibit #93 shows Appellant’s hand
on the counter. (RR44:232; SX#93). State’s Exhibits #94 and 95 show the register
drawer open. (RR44:232; SX#94, 95). State’s Exhibit #96 shows Appellant’s
hand going from the register drawer. (RR44:232-33; SX#96). State’s Exhibit #97
shows the fire as it is reflected on the register monitor. (SX#97). State’s Exhibits
#98-102 show Nancy on fire and Appellant as he walks out of the store. (SX#98-
102).
Each photograph provided an additional detail critical to the jury’s
understanding of the offense and the crime scene. Notably, the prosecutor’s
questioning of Detective Tooke regarding the photographs was very brief,
comprising only six pages of an otherwise lengthy record. (RR44:229-34).
Appellant argues that State’s Exhibits #98, 99, and 100 “are exceptionally
prejudicial in that they depict Ms. Harris on fire. . . . The jury did not need to see
still photographs of a burning woman to discern what had taken place.”
(Appellant’s Br. p. 99). The State acknowledges that State’s Exhibits #98, 99, and
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100 are graphic in that these photographs show Nancy on fire. (SX#98, 99, 100).
Nevertheless, these photographs are not overly gruesome, and they provided the
jury with the means to focus on some highly relevant details of the offense.
State’s Exhibit #98 shows Nancy from the chest down, as she runs out from
behind the counter and Appellant walks out behind her. (SX#98). State’s Exhibit
#99 shows Nancy on fire, and provides another view of Appellant casually leaving
the store. (SX#99). State’s Exhibit #100 shows Nancy on fire as she walks toward
the sink. (SX#100). Importantly, the left side of the photograph shows Appellant
walking out of the store carrying the plastic bottle. (SX#100). The complained-of
exhibits helped the jury to understand not only what Appellant did to Nancy but
also how, afterward, he fled the scene, taking his bottle of flammable liquid with
him.
The probative value of all 24 photographs was not substantially outweighed
by their prejudicial effect. See Tex. R. Evid. 403. The trial court did not abuse its
discretion in admitting them. See Matamoros, 901 S.W.2d at 476 (finding no
abuse of discretion in admitting crime scene photographs over Matamoros’
objection that they were cumulative of a crime scene video previously admitted as
the photographs provided different vantage points, which might enhance the jury’s
understanding of the crime scene and they permitted the jurors to examine the
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scene in detail). At a minimum, its decision falls within the zone of reasonable
disagreement. See Weatherred, 15 S.W.3d at 542.
Any Alleged Error is Harmless
Even if the trial court erred in admitting the video and the still photographs,
Appellant was not harmed. The erroneous admission of photographs is non-
constitutional error governed by Rule of Appellate Procedure 44.2(b). See Tex. R.
App. P. 44.2(b). Nonconstitutional error that does not affect the substantial rights
of the defendant is disregarded by the appellate court. See Tex. R. App. P. 44.2(b).
A substantial right is affected when the error has a “substantial and injurious effect
or influence in determining the jury’s verdict.” See King v. State, 953 S.W.2d 266,
271 (Tex. Crim. App. 1997). In making this determination, this Court may consider
the entire record, including the nature of the evidence supporting the verdict, and
the character of the error and its relationship to other evidence. See Morales v.
State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).
Here, overwhelming evidence supported the jury’s verdict. When officers
arrived at the Whip-In, Nancy told them that a man had robbed her and poured
something on her. (RR44:69). She described her attacker as a “heavy-set black
male with blue jeans . . . and a T-shirt.” (RR44:70). At the hospital, she told
Wilson that “a black male, heavy-set, short dark hair, and a chubby face, came into
the store and demanded money from her. She advised he took the money and then
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he poured something on her. She didn’t know what - - what it was, and then he lit
her on fire.” (RR45:82).
When Perez searched the neighborhood behind the Whip-In, he saw a man
matching Nancy’s description. (RR44:178, 181-82). After a foot chase, Perez
arrested the man, Appellant. (RR44:181-86). Appellant asked police, “What took
you so long[?] Y’all are getting slow.” (RR44:186). From Appellant’s pockets,
police collected a used lighter, a red lighter, a purple lighter, a gold ring, a car key,
coins, and cash. (RR44:75-78; SX#6, 26, 28-30, 59, 60).
Investigators collected pooled liquid underneath the floor mat behind the
sales counter as well as a plastic drinking bottle found in the grass behind the store.
(RR44:111-12; RR45:50-51, 60-62; SX#35, 36, 114, 115, 117, 118, 129). Testing
of contents of the plastic bottle and Nancy’s clothing showed “a medium
petroleum distillate of the primary recovery, and . . . a lower level of isopropyl
alcohol.” (RR45:113-14; SX#137). The pooled liquid from under the floor mat
also contained medium petroleum distillate as did Appellant’s t-shirt, pants, belt,
left shoe and sock, and his right shoe. (RR45:116-17; SX#138). A medium
petroleum distillate is an ignitable liquid often encountered as charcoal starter
fluid, paint thinner or mineral spirits. (RR45:114).
Appellant’s DNA was found on the exterior of the plastic bottle and he was
included as a possible contributor of a DNA profile from the interior and exterior
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opening of the bottle. (RR45:154-55; SX#142). Appellant was included as a
possible contributor of a low level sample of DNA from the cash drawer.
(RR45:156; SX#142). And, a partial DNA profile from the cigarette package
matched Appellant. (RR45:156; SX#142). Finally, the jury heard medical
testimony regarding the severity and extent of Nancy’s injuries.
Accordingly, taking the entire record into consideration, Appellant was not
harmed by the admission of the surveillance video or the still photographs taken
from the video. Issues 34 and 35 should be overruled.
STATE’S RESPONSE TO ISSUE NOS. 36 AND 37: THE TRIAL COURT PROPERLY
ADMITTED THE AUTOPSY PHOTOGRAPHS AND THE PHOTOGRAPHS OF THE VICTIM IN
THE HOSPITAL. ALTERNATIVELY, ANY ERROR IS HARMLESS.
In Issue 36, Appellant contends the trial court erred in admitting, over his
Rule 403 objection, nine photographs taken during Nancy’s autopsy. In Issue 37,
Appellant contends the trial court erred in admitting, over his Rule 403 objection,
seven photographs of Nancy taken at the hospital prior to her death. Appellant’s
contentions lack merit and should be overruled.
Pertinent Facts
During trial, in a hearing outside the presence of the jury, the State offered
into evidence nine autopsy photographs: State’s Exhibit Nos. 9, 151, 152, 153,
137
154, 155, 156, 157, and 158.15 (RR45:182). An additional 34 photographs taken
during the autopsy were not offered. (RR45:183). The State also offered seven
photographs taken of Nancy at the hospital prior to her death: State’s Exhibit Nos.
144, 145, 146, 147, 148, 149, 150. (RR45:182). An additional 22 photographs
taken at the hospital were not offered. (RR45:183-84).
Appellant objected to all sixteen photographs on the basis of his previously
filed Pretrial Motion #57 as well as Rule 403. (RR45:183). The trial court
affirmed it had reviewed all of the photographs, including those not offered into
evidence, and overruled Appellant’s objection. (RR45:184-85). The nine
autopsy photographs were admitted through Dr. Dyer, the medical examiner.
(RR46:30). The seven hospital photographs were admitted through Dr. Hunt, the
physician who treated Nancy at the Burn Unit at Parkland Hospital. (RR46:16).
Analysis
Issue #36: Autopsy Photographs
The trial court did not err in admitting nine photographs taken during
Nancy’s autopsy. All 9 photographs of Nancy’s deceased body were displayed to
the jury in color. (RR45:182; SX#9, 151-58). Although Nancy is not clothed,
most of the photographs are close-ups of specific parts of her body. And, the
15
Prior to trial, the State offered into evidence State’s Pretrial Exhibit #2, which contains copies
of all photographs taken during Nancy’s autopsy and all photographs taken of Nancy at the
hospital prior to her death. (RR41:25; State’s Pretrial Exhibit #2).
138
photographs are not repetitious; each depicts a different area of injury. For
example, State’s Exhibit #9, the autopsy identification photograph, is a close up of
Nancy’s face. (RR46:37; SX#9). State’s Exhibit #152 shows the back of Nancy’s
head and top of her shoulders. (RR46:35; SX#152). State’s Exhibit #153 shows
Nancy’s back. (RR46:36; SX#153). State’s Exhibit #154 shows the back of
Nancy’s left leg. (RR46:36; SX#154). State’s Exhibit #155 shows the top of
Nancy’s left hand. (RR46:36; SX#155). State’s Exhibit #156 shows the underside
of Nancy’s left hand. (RR46:36-37; SX#156). State’s Exhibit #157 shows the top
of Nancy’s right hand. (RR46:37; SX#157). State’s Exhibit #158 shows Nancy’s
left foot. (RR46:37; SX#158).
State’s Exhibit #151 is not a close-up photograph. It shows Nancy’s
unclothed body from the waist down. (RR46:33; SX#151). Her private area is
covered on the photograph by what appears to be a white box. (RR46:33;
SX#151). A photograph, which is used to describe the complainant’s injuries, is
not inadmissible simply because it depicts an unclothed body. See Santellan v.
State, 939 S.W.2d 155, 172-73 (Tex. Crim. App. 1997) (finding no error in
admitting photographs of victim’s naked body during autopsy where the
photographs show damage done to victim’s body by Sanetellan and no damage
attributable to the autopsy is apparent).
139
The 9 complained-of photographs are not unfairly prejudicial under Rule
403. All 9 autopsy photographs were probative of Nancy’s injuries; they show the
external injuries – burns, swelling, skin slippage and necrosis – that Nancy
suffered as a result of the instant offense. (RR46:33-38; SX#9, 151-158). The
photographs were used by the medical examiner, Dr. Dyer, to explain those
injuries. (RR46:33-38). This Court has held that a trial court does not abuse its
discretion in admitting autopsy photographs over a Rule 403 objection where they
help to explain the medical examiner’s testimony describing the victim’s various
wounds for which appellant is responsible. See Escamilla, 143 S.W.3d at 826.
Given the nature of Nancy’s injuries – thermal injury – the photographs were
especially important to help the jury understand how and why she died. The
photographs are also probative of Appellant’s intent. The location and severity of
Nancy’s injuries show Appellant intended to kill her. See Rojas v. State, 986
S.W.2d 241, 249-50 (Tex. Crim. App. 1998) (finding no abuse of discretion in
admitting autopsy photo because, among other reasons, it was probative of Rojas
mental state at the time of the murder). Notably, Dr. Dyer’s testimony regarding
the photographs consisted of only five pages in an otherwise lengthy record.
(RR46:33-38).
Appellant argues that the photographs are “extremely gruesome[.]”
(Appellant’s Br. p.107). The photographs are gruesome, but they depict nothing
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more than the injuries that Appellant inflicted on Nancy. See Ladd, 3 S.W.3d at
568 (holding that the trial court did not abuse its discretion in admitting 10
photographs of the victim’s body, including autopsy photos, because the
photographs depicted the manner of death and were no more gruesome than the
crime).
The trial court did not abuse its discretion when it admitted the nine autopsy
photographs. At a minimum, its decision falls within the zone of reasonable
disagreement. See Weatherred, 15 S.W.3d at 542.
Issue #37: Hospital Photographs
The trial court did not err in admitting 7 photographs of Nancy taken in the
hospital prior to her death. Like the autopsy photographs, Nancy is not clothed but
most of the photographs are close-ups of specific body parts. The photographs are
not repetitious; each depicts a different area of injury. State’s Exhibit #144 shows
Nancy’s badly burned left leg next to her unburned right leg. (RR46:16-17;
SX#144). Her private area is covered by a towel. (SX#144). State’s Exhibit #145
is a close-up of Nancy’s left leg. (SX#145). State’s Exhibit #146 shows Nancy’s
severely burned upper body. (SX#146). She is attached to a ventilator. (RR46:18;
SX#146). She is unclothed, but because she is so severely burned, her breasts are
not easily discerned. (SX#146). State’s Exhibit #147 shows the underside of
Nancy’s left arm. (RR46:18-19; SX#147). State’s Exhibit #148 shows the top of
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Nancy’s right arm and a small part of her unclothed right side. (RR46:19;
SX#148). State’s Exhibit #149 is a close-up of the top of Nancy’s severely burned
head and face. (RR46:19-20; SX#149). State’s Exhibit #150 shows Nancy’s
unclothed lower back. (RR46:20; SX#150).
The seven complained-of photographs are not unfairly prejudicial under
Rule 403. These photographs, like the autopsy photographs, were probative of the
injuries Nancy suffered as a result of the instant offense. (RR46:16-20; SX#144-
150). They were used by Dr. Hunt to explain those injuries. (RR46:16-20). Dr.
Hunt testified Nancy was burned over 40% of her body. (RR46:10). He used the
photographs to identify Nancy’s second-, third-, and fourth-degree burns.
(RR46:16-20; SX#144-150). It would have been impossible for the jury to
understand the nature and extent of her injuries without seeing photographs of
them.
Moreover, the photographs are probative of Appellant’s intent. Appellant
poured a flammable liquid over the upper body of an elderly woman and lit her on
fire. The location and severity of Nancy’s injuries show Appellant intended to kill
her. See Rojas, 986 S.W.2d at 249-50. At a minimum, the trial court’s decision
to admit the photographs falls within the zone of reasonable disagreement. See
Weatherred, 15 S.W.3d at 542; see also Long v. State, 823 S.W.2d 259, 273 (Tex.
Crim. App. 1991) (holding that the trial court did not abuse its discretion in
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admitting thirteen photographs of the victims’ bodies at the crime scene because
the photographs were limited in number, reflected the manner of death, and had to
be viewed together to get an accurate assessment of the injuries sustained by the
victims).
Any Alleged Error is Harmless
Even if the trial court erred in admitting the 16 complained-of photographs,
Appellant was not harmed. As previously argued, there was overwhelming
evidence supported the jury’s verdict regardless of the photographs of Nancy.
Accordingly, taking the entire record into consideration, it is clear that any alleged
error in admitting the complained-of photographs clearly did not affect Appellant’s
substantial rights and should be disregarded. See Tex. R. App. P. 44.2(b).
Issues 36 and 37 should be overruled.
STATE’SRESPONSE TO ISSUE NOS. 38, 39, AND 40: THE TRIAL COURT PROPERLY
ADMITTED EVIDENCE OF STATEMENTS MADE BY THE COMPLAINANT PRIOR TO HER
DEATH.
In Issue 38, Appellant contends the trial court erred in admitting during the
guilt/innocence phase of trial, evidence of statements Nancy made to police at the
Whip-In. In Issue 39, Appellant contends that the trial court erred in admitting
evidence of statements Nancy made to police when she was at the hospital. In
Issue 40, Appellant contends the trial court erred in admitting during the
143
punishment phase, evidence of statements Nancy made to police at the Whip In.
Appellant’s contentions lack merit and should be overruled.
Pertinent Facts
Issue #38: Nancy’s Statements at the Whip-In (Guilt/Innocence Phase)
During the guilt/innocence phase of trial, Officer Coffey testified that when
he drove into the parking lot of the Whip-In, Nancy was stepping out the front
door, “still on fire.” (RR44: 67-68). Officer Coffey grabbed his fire extinguisher
and put out the flames. (RR44:68). Nancy was “screaming for help.” (RR44:69).
The following exchange then took place:
[Prosecutor]: Was she able to give Officer Simon a description of the
person that had done this to her?
[Coffey]: Yes. She said a black male came into the store - -
[Defense Counsel]: Your Honor, I’m going to object to hearsay and
confrontation.
(RR44:69). The prosecutor noted that the statement was an excited utterance and
that it was nontestimonial. (RR44:69). Appellant’s objection was overruled.
(RR44:69). Officer Coffey testified Nancy “told officer Simon and then he
repeated it to me, that - - she said there was a black male that came into the store
and he robbed her and poured something on her.” (RR44:69).
144
Issue #39: Nancy’s Statements at the Hospital
Later, Officer Wilson testified about the conversation he had with Nancy at
the hospital while she was still conscious and able to speak. (RR45:81). She was
about to be intubated and placed on a ventilator. (RR45:81). Appellant objected
when the prosecutor asked what Nancy told him. (RR45:81). The following
exchange took place:
[Prosecutor]: Was she able to describe to you what happened to her?
[Wilson]: Yes, she was.
[Prosecutor]: What did she tell you?
[Defense Counsel]: Your Honor, I’m going to object to hearsay.
[Prosecutor]: It’s an exception, dying declaration.
(RR45:81). Appellant objected “under the confrontation clause.” (RR45:82).
That objection was overruled. (RR45:82). Wilson testified Nancy told him that “a
black male, heavy-set, short dark hair, and a chubby face, came into the store and
demanded money from her. She advised he took the money and then he poured
something on her. She didn’t know what - - what it was, and then he lit her on
fire.” (RR45:82).
Issue #40: Nancy’s Statements at the Whip-In (Punishment Phase)
After the defense rested and before the State’s case-in-rebuttal during the
punishment phase of trial, the trial court conducted a hearing on the admissibility
145
of the in-car video of one of the patrol officers who drove up to the Whip-In on the
morning of the offense. Appellant objected as follows:
[Defense Counsel]: Your Honor, we would object to that as - - first
off, it’s not in rebuttal to anything that we have presented in our case-
in-chief, so we would argue it’s improper rebuttal.
We would further argue that her statements are hearsay and
violate the right to confrontation. We would object to the relevance of
it at this point. And furthermore, under Rule 403, we would object.
[Trial Court]: Ms. Moseley.
[Prosecutor]: Your Honor, this is proper rebuttal. There has been at
least a day and a half of testimony from the Defendant and his family
about the impact this crime and the potential sentence will have on
him and his family. And I believe under the law, we’re entitled to
present victim impact testimony so that the jury has something to
weigh as it relates to Special Issue 2 and the mitigation. The question
is, is it sufficiently mitigating, and the impact on the victim is
certainly relevant to that.
I would also argue as to the hearsay objection that it is a dying
declaration, and that by the Defendant setting her on fire and causing
her death, he’s waived a confrontation argument.
And, as to 403, I think the Court should watch the video, but it
would be - - certainly before making the ruling, we would ask the
Judge to watch the video to make that determination, but there’s
nothing more probative as to the impact of this crime on the victim
than the jury being able to see it themselves.
(RR51:69). The trial court watched the video and overruled Appellant’s
objection. (RR51:70; SX#187).
State’s Exhibit #187 was offered and admitted over Appellant’s objection
through the testimony of Officer Simon. (RR51:81; SX#187). On the video,
146
Nancy can be heard shouting repeatedly, “Help me,” “Oh God, help me,” “Help
me, please.” (SX#187). Nancy provides her name, date of birth, address, and
telephone number. (SX#187). She says that she is “going to faint.” (SX#187).
She says, “guy tried to rob me.” (SX#187). When she is asked whether the man
threw something on her, she says that the man threw Chlorox and fire. (SX#187).
Nancy described the man as a young Black male, short and heavy set with a round
face. (SX#187).
Applicable Law
Hearsay
Hearsay is defined as “a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” Tex. R. Evid. 801(d). The matter asserted is defined as “any
matter explicitly asserted, and any matter implied by a statement, if the probative
value of the statement as offered flows from declarant’s belief as to the matter.”
Tex. R. Evid. 801(c).
Excited Utterance
An excited utterance is defined as “[a] statement relating to a startling event
or condition made while the declarant was under the stress of excitement caused by
the event or condition.” Tex. R. Evid. 803(2). Excited utterances are not
147
excluded by the hearsay rule. Id. In Zuliani v. State, this court described the
basis for this exception as follows:
[It is] a psychological one, namely, the fact that when a man is in the
instant grip of violent emotion, excitement or pain, he ordinarily loses
the capacity for reflection necessary to the fabrication of a falsehood
and the truth will come out. In other words, the statement is
trustworthy because it represents an event speaking through the
person rather than the person speaking about the event.
Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003) (internal quotations
omitted). “The critical determination is whether the declarant was still dominated
by the emotions, excitement, fear or pain of the event or condition at the time of
the statement.” Salazar v. State, 38 S.W.3d 141, 154 (Tex. Crim. App. 2001)
(internal quotations omitted).
Dying Declaration
A dying declaration is a “statement made by a declarant while believing that
the declarant’s death was imminent, concerning the cause or circumstances of what
the declarant believed to be impending death.” Tex. R. Evid. 804(b)(2).
“All that the rule requires is sufficient evidence, direct or circumstantial, that
demonstrates that the declarant must have realized that he was at death’s door at
the time that he spoke.” Gardner, 306 S.W.3d at 288 n.20.
It is well settled that the dying declaration exception to the hearsay rule does
not violate a defendant’s right of confrontation under the federal or Texas
Constitution. See id. at 288 n.20.
148
Analysis
As a threshold matter, it is the State’s position that Appellant failed to
properly brief Issues 38, 39, and 40. See Tex. R. App. P. 38.1(h). Appellant cites
the complained-of testimony and generally asserts that it is hearsay, but he fails to
offer any specific argument or authority in support of his contentions. This Court
is not required to make Appellant’s case for him. Garcia v. State, 887 S.W.2d 862,
882 (Tex. Crim. App. 1994) (stating that a reviewing court “will not brief
appellant’s case for him”). Appellant’s thirty-eighth, thirty-ninth, and fortieth
issues should be overrruled on this basis.
Should this Court nevertheless find that Appellant has properly briefed these
issues, the State offers the following response:
Issue #38: Nancy’s Statements at the Whip-In (Guilt/Innocence Phase)
The trial court did not err in admitting Officer Coffey’s testimony regarding
Nancy’s description of her attacker. Nancy’s statements were admissible as an
excited utterance. See Tex. R. Evid. 803(2). When Nancy made the complained-of
statements, she had just experienced a startling event: she was robbed and set on
fire. Indeed, the flames on her body were extinguished only seconds before she
made the complained-of statements. She was screaming for help. She was
clearly still under the stress or excitement caused by the offense and her statements
concerned the startling event. See Tex. R. Evid. 803(2).
149
Furthermore, the statements’ admission had no impact on Appellant’s
confrontation rights because they were non-testimonial in nature. Statements are
non-testimonial when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the interrogation
is to enable police assistance to meet an ongoing emergency. Davis v. Washington,
547 U.S. 813, 822 (2006); see Vinson v. State, 252 S.W.3d 336, 339-40 (Tex.
Crim. App. 2008). When the police arrived at the Whip-In, Nancy was still on fire.
She made the complained-of statements shortly after the flames were extinguished.
At the time, police were trying to help Nancy and determine what had happened;
they had not yet received notification regarding the store’s panic alarm. (RR44:68-
69). It was clearly an ongoing emergency situation.
The trial court did not abuse its discretion in admitting the complained-of
statements. At a minimum, the decision falls within the zone of reasonable
disagreement. See Weatherred, 15 S.W.3d at 542.
Issue #39: Nancy’s Statements at the Hospital
The trial court did not err in admitting Officer Wilson’s testimony regarding
Nancy’s statements to him at the hospital. Nancy’s statements were admissible as
a dying declaration. See Tex. R. Evid. 804(b)(2). Nancy made the complained-of
statements to Officer Wilson minutes after she arrived in the hospital emergency
room to be treated for severe burns. (RR45:80). Shortly before she arrived at the
150
hospital, Nancy, a 76-year-old woman with a pacemaker and diabetes, had been
doused with a flammable liquid and set on fire. She was about to be intubated.
Given the fact that she was in the emergency room and considering the nature and
extent of her injuries as well as her own medical history, the trial court could have
reasonably concluded that Nancy believed she was dying when she made the
statements regarding the cause or circumstances of her impending death. See
Gardner, 306 S.W.3d at 291-92 (finding no abuse of discretion in admitting
complainant’s statements to 911 operator that her husband shot her even though
complainant did not expressly state that she was dying and no one explicitly told
her that she was dying). Because the complained-of statements were admissible
as a dying declaration, Appellant’s confrontation right was not violated. See
Gardner, 306 S.W.3d at 288 n.20.
The complained-of statements were also admissible as an excited utterance.
Zuliani, 97 S.W.3d at 595. Nancy was still under the stress of the startling event
described above. The fact that some time had passed between the event and her
statements is merely a factor to be considered in the analysis. Id. at 596 (noting
that whether time has elapsed since the startling event is only one factor to be
considered in determining whether a statement is an excited utterance). As stated,
Nancy made the statements shortly after she arrived in the emergency room and
151
while she was being treated for her burns. She was still under the pain and stress
of the startling event and her statements concerned that startling event.
The trial court did not abuse its discretion in admitting the complained-of
statements. At a minimum, the decision falls within the zone of reasonable
disagreement. See Weatherred, 15 S.W.3d at 542.
Issue #40: Nancy’s Statements at the Whip-In (Punishment Phase)
The trial court did not err in admitting during the punishment phase of trial,
the in-car police video containing Nancy’s statements to police regarding the
instant offense. As previously argued in response to Issue 38, Nancy’s statements
to police when they arrived at the Whip-In were admissible as excited utterances
and because they were non-testimonial in nature. Since the testimony of the two
officers was admissible, the video is therefore admissible. See Williams v. State,
958 S.W.2d 186, 195 (Tex. Crim. App. 1997) (stating that “a photograph is
admissible if verbal testimony as to matters depicted in the photographs is also
admissible.”). State’s Exhibit #187, the in-car video, simply allows the jury to
hear the statements from Nancy in her own voice.
The trial court did not abuse its discretion in admitting the complained-of
statements. At a minimum, the decision falls within the zone of reasonable
disagreement. See Weatherred, 15 S.W.3d at 542.
152
Any Error is Harmless
Even if this Court finds that the trial court erred, any alleged error is
harmless. Nancy’s descriptions of the man who attacked her did not have a
substantial and injurious effect or influence in determining the jury’s verdicts.
Before any of the officers testified about Nancy’s statements to them, the jury saw
the surveillance video. (RR44:49; SX#17). The jury saw with their own eyes,
how on May 20, 2012, Appellant walked in to the Whip-In, robbed Nancy, and set
her on fire. (SX#17). Nancy’s descriptions to police regarding the person who
robbed her and set her on fire only confirmed what the jury had already seen.
Issues 38, 39, and 40 should be overruled.
STATE’S RESPONSE TO ISSUE NO. 41: THE TRIAL COURT PROPERLY ADMITTED
EVIDENCE OF APPELLANT’S ACTIONS AFTER HE FLED THE WHIP-IN.
In Issue 41, Appellant contends that, during the guilt phase, the trial court
erred under Rule 404(b) in admitting evidence of the bad acts and offenses he
committed after he fled the Whip-In. Appellant’s contentions lack merit and
should be overruled.
Pertinent Facts
During the guilt/innocence phase, Appellant objected to testimony from
three of the residents from the neighborhood behind the Whip-In, where Appellant
hid after the instant offense: Jim Medley, Ken Marecle, and Lawrence Denson.
Prior to their testimony, Appellant objected, arguing that their testimony involved
153
extraneous offenses which were “not necessary to the jury’s understanding[.]”
(RR44:140). Appellant’s objection was overruled. (RR44:141).
Standard of Review
A ruling on the admissibility of extraneous offenses is reviewed for abuse of
discretion. See Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011).
Applicable Law
Rule 404(b) provides, in pertinent part, as follows:
Evidence of other crimes, wrongs or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may however be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
Tex. R. Evid. 404(b). Evidence of extraneous offenses may be admissible,
however, if it has relevance apart from character conformity. See Moses v. State,
105 S.W.3d 622, 626 (Tex. Crim. App. 2003).
Analysis
Appellant has failed to properly brief this issue. He recites trial counsel’s
objection and the law, but does not actually identify whose testimony he contends
was improperly admitted. Importantly, in the cited exchange, wherein trial
counsel lodged her objection, only two of the three neighborhood residents are
identified by name, Medley and Marecle. (Appellant’s Br. p. 113). As such, any
alleged error as to the third neighborhood resident, Lawrence Denson, was not
154
preserved. See Tex. R. App. P. 33.1(a). As to Medley and Marecle, the issue is
inadequately briefed. Rule 38.1(h) of the Texas Rules of Appellate Procedure
requires that a brief contain a clear and concise argument for the contentions made,
with appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(h);
see, e.g., Walder v. State, 85 S.W.3d 824, 827 (Tex. App.—Waco 2002, no pet.)
(setting forth the elements necessary to satisfy the mandatory requirement of a
“clear and concise argument” pursuant to Rule 38.1).
Nevertheless, testimony from all three of the neighborhood residents –
Medley, Marecle, and Denson – was admissible as same transaction contextual
evidence. Same transaction contextual evidence is admissible to impart
information to the jury that is essential to understanding the context and
circumstances of events which, although legally separate offenses, are blended or
interwoven. See Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993)
(finding evidence of kidnapping and murder of complainant’s wife and son
admissible as same transaction contextual evidence as it was necessary to
understand the charged offense). “[E]vents do not occur in a vacuum, and the jury
has a right to hear what occurred immediately prior to and subsequent to the
commission of the act so that it may realistically evaluate the evidence.”
Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (citing Archer v.
State, 607 S.W.2d 539, 542 (Tex. Crim. App. 1980)).
155
The three neighborhood residents’ testimony provide context to the offense
and show Appellant’s consciousness of guilt. Medley’s testimony helped the jury
to understand where Appellant went when he fled the Whip-In and how he tried to
get rid of the t-shirt he wore while he committed the offense. Evidence of flight
and attempts to conceal incriminating evidence are admissible as circumstances
showing consciousness of guilt. See Wells v. State, 578 S.W.2d 118, 119 (Tex.
Crim. App. 1979). Medley testified that on the morning of the offense, he found a
pack of cigarettes in his driveway. (RR44:146; SX#48, 78). Inside the garbage
can, he found a t-shirt. (RR44:147; SX#77). DNA on the t-shirt matched
Appellant. (RR44:206-07; RR45:134; SX#77, 135, 141, 142). A medium
petroleum distillate was also detected on the t-shirt. (RR44:206-07; RR45:117;
SX#77, 135, 138).
Marecle and Denson’s testimony informed the jury of Appellant’s attempts
to try to avoid detection and apprehension. Marecle testified that Appellant
appeared on his porch, asking for help. (RR44:157, 159, 166-67; SX#55). His
“eyes were really wide and big.” (RR44:169). He was wearing pants and black-
rim glasses, but no shirt. (RR44:162). He tried to push his way into Marecle’s
home. (RR44:159-60). Marecle pushed Appellant outside. (RR44:160, 169).
There, Appellant pushed Marecle to the ground. (RR44:161, 169). When Marecle
stood up, Appellant took the glasses off of Marecle’s face and fled. (RR44:162-63,
156
170). At Denson’s house, Appellant tried to get inside the gate. (RR45:9). When
Denson confronted him, Appellant approached him saying “man, I’m in a bad
way.” (RR45:9, 11-12; SX#51-53).
The trial court did not abuse it’s discretion in admitting the testimony of the
three neighborhood residents. At a minimum, the decision falls within the zone of
reasonable disagreement. See Weatherred, 15 S.W.3d at 542. Even if this Court
finds that the trial court erred, however, any alleged error is harmless. As argued in
detail above, the State presented overwhelming evidence of Appellant’s guilt.
Issue 41 should be overruled.
STATE’S RESPONSE TO ISSUE NO. 42: THE TRIAL COURT PROPERLY INSTRUCTED THE
JURY ON VOLUNTARY INTOXICATION.
In Issue 42, Appellant contends that the trial court erred in overruling his
objection to the jury instruction regarding voluntary intoxication. Appellant’s
contentions lack merit and should be overruled.
Pertinent Facts
The court’s charge during the guilt/innocence phase of trial included the
following instruction:
Voluntary intoxication does not constitute a defense to the
commission of a crime. “Intoxication” means the disturbance of
mental or physical capacity resulting from the introduction of any
substance into the body.
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(CR14:4508). Appellant objected to this instruction. (RR45:187-88). His
objection was overruled. (RR45:188).
Standard of Review
A reviewing court examines the trial court’s submission of jury instructions
under an abuse of discretion standard. Wesbrook, 29 S.W.3d at 122.
Applicable Law
Texas Penal Code § 8.04(a) provides that voluntary intoxication does not
constitute a defense to the commission of a crime. Tex. Penal Code Ann. §
8.04(a). It is appropriate to include an § 8.04(a) instruction in the guilt/innocence
charge if there is evidence from any source that might lead a jury to conclude that
the defendant’s intoxication somehow excused his actions. Sakil v. State, 287
S.W.3d 23, 26 (Tex. Crim. App. 2009). It is not necessary that the defendant
assert intoxication as a defense for the § 8.04(a) instruction to be included in the
charge. Id. at 26 fn. 8. It is not necessary that the evidence conclusively establish
the defendant’s intoxication for the instruction to be included in the charge. See id.
at 27-28.
Analysis
The trial court did not err when it included the complained-of instruction
during guilt/innocence as there was evidence that might have led the jury to believe
that Appellant was intoxicated and that his intoxication excused his actions.
158
Appellant cross-examined Officer Coffey regarding his opinion of whether
Appellant was intoxicated after he was arrested and was being transported to jail.
(RR44:87). Coffey testified he did not “smell anything on [Appellant.]”
(RR44:87). Appellant asked whether someone can be intoxicated “from a
substance that didn’t have a smell[.]” (RR44:87). Coffey conceded that
possibility. (RR44:87). He also conceded that Appellant appeared “erratic” on
the transport video. (RR44:87). Appellant also cross-examined Marecle about
whether Appellant appeared intoxicated at the time of their encounter. (RR44:168-
69). Indeed, Marecle testified “It had to be something because he didn’t look - -
his eyes were really wide and big.” (RR44:169). Finally, the State notes that
during closing argument, defense counsel argued that “any person with common
sense can tell [Appellant] is under the influence” when he is in the patrol car.
(RR46:54-55).
Because there was some evidence that Appellant may have been intoxicated,
the trial court did not abuse its discretion when it included a § 8.04 instruction in
the charge during guilt/innocence. See Sakil, 287 S.W.3d at 24, 27-28 (finding no
error in including § 8.04(a) instruction where evidence of Sakil’s intoxication was
equivocal: the complainant told the 911 operator that Sakil was not intoxicated, but
that he was behaving “oddly” during their fight; psychiatrist testified to Sakil’s
history of poly-substance abuse).
159
Issue 42 should be overruled.
STATE’SRESPONSE TO ISSUE NOS. 43 AND 44: THE TRIAL COURT PROPERLY
ADMITTED EVIDENCE DURING THE PUNISHMENT PHASE OF APPELLANT’S
EXTRANEOUS OFFENSES.
In Issues 43 and 44, Appellant contends that, during punishment, the trial
court erred in admitting over his objection, evidence of his extraneous bad acts.
He contends that the State’s notice of its intent to present the evidence was
inadequate under article 37.07 of the Texas Code of Criminal Procedure in that it
failed to include the date of the acts and county in which they occurred.
Appellant’s contentions lack merit and should be overruled.
Pertinent Facts
On September 27, 2013, thirty days prior to trial, the State filed and served
Appellant with its notice of extraneous offenses. (CR14:4461-69). Included in
that notice were four specific assaults Appellant committed against his former
girlfriend Amy Armstrong Franks.16 (CR14:4461-62). Also included was the
following:
 During the defendant’s relationship with Amy Armstrong, in or about
the year 1993, the defendant was physically abusive. The defendant
was jealous and would get violent if he thought she was with
someone else. She said he punched her, pushed her, and choked her.
He drank alcohol a lot and smoked marijuana. He threatened Ms.
Armstrong, saying, “Nobody’s gonna have you if I can’t have you.”
These incidents all occurred in Dallas County, Texas.
16
At the time of trial, Amy Armstrong had married and gave her name as Amy Franks.
(RR47:29-30).
160
(CR14:4468). During the punishment phase of trial, Appellant objected to the
State presenting evidence of ongoing abuse between Appellant and Amy
Armstrong. (RR47:9). Appellant argued that the State’s notice “lacks detail with
regard to specific dates.” (RR47:10). He objected that there was no date or time
associated with the claim regarding Appellant’s threat, “Nobody’s gonna have you
if I can’t have you.” (RR47:10). He objected that the claims regarding drugs and
alcohol were “very general and vague.” (RR47:10). Finally, he objected that the
“offenses or transactions” were not relevant to Appellant’s death worthiness
because they occurred 20 years ago and are “highly prejudicial.” (RR47:12).
Appellant’s objection was overruled. (RR47:12).
Applicable Law
The introduction of extraneous conduct evidence in the punishment phase of
a capital murder trial is governed by the notice requirements of Article 37.07, §
3(g) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art.
37.071, § 2(a)(1). Article 37.07, § 3(g) requires the State, on timely request, to
give the defendant reasonable notice of extraneous crimes or bad acts that the State
intends to use at trial. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g)
(incorporating Texas Rule of Evidence 404(b)’s reasonable notice requirement).
This statute also requires the State to give additional notice if it intends to use an
extraneous offense that has not resulted in a final conviction. To be reasonable, the
161
notice must include the date on which the offense occurred, the county where it
occurred, and the name of the alleged victim. Id.
The purpose of article 37.07, § 3(g) is to avoid unfair surprise and to enable
the defendant to prepare to answer the extraneous-offense evidence. See Luna v.
State, 301 S.W.3d 322, 326 (Tex. App.—Waco 2009, no pet.); Apolinar v. State,
106 S.W.3d 407, 414-15 (Tex. App.—Houston [1st Dist.] 2003) aff’d, 155 S.W.3d
184 (Tex. Crim. App. 2005); Roethel v. State, 80 S.W.3d 276, 282 (Tex. App.—
Austin 2002, no pet.). To determine harm in light of that purpose, an appellate
court should examine the record to determine whether the deficient notice resulted
from prosecutorial bad faith or prevented the defendant from preparing for trial.
Roethel, 80 S.W.3d at 282. In determining whether the defendant was prevented
from preparing for trial, appellate courts look at whether the defendant was
surprised by the substance of the testimony and whether that affected his ability to
prepare cross-examination or mitigating evidence. Id.
Analysis
Of the five offenses or acts committed against Amy Franks listed in the
State’s Notice of Extraneous Offenses, only one does not identify the specific date
on which the offense was committed: the one describing Appellant’s abusive
behavior and his drug and alcohol use. (CR14:4468). Although the notice does
not provide the month and day, it does identify the year that the offenses were
162
committed, 1993, and it states that the offenses were committed in Dallas County,
Texas. (CR14:4468).
The record contains no indication that the State acted in bad faith when it
failed to comply with article 37.07, § 3(g). To the contrary, the record
demonstrates that the State provided Appellant notice of the extraneous conduct to
the best of its ability and that the only reason the notice did not identify the date
more specifically was because more specific information was not known to the
State. There is no indication from the record that the omission was intended to
mislead Appellant or prevent him from preparing a defense.
Notably, Appellant does not argue that he was surprised by the substance of
Franks’ testimony. He does not point to anything in the record that would support
the notion that his ability to mount an adequate defense was hindered by the lack of
notice; nor does he argue on appeal that his ability to prepare cross-examination or
mitigating evidence was affected by the lack of adequate notice. Appellant has
failed to make any showing of how his defense strategy might have been different
had the State identified the exact days and months when the abuse and substance
abuse occurred. See, e.g., Hernandez v. State, 176 S.W.3d 821, 825-26 (Tex.
Crim. App. 2005) (finding any error in admitting evidence of extraneous offense
during punishment phase despite failure to provide notice was harmless because
Hernandez did not contend that witness’s testimony caused him surprise, that
163
omission from notice prevented him from preparing a defense, or that had he
known, his defense strategy would have been different). As such, any error by the
trial court in admitting evidence of this offense was harmless.
Appellant also contends that the offenses associated with Franks were too
remote to be relevant on the issue of mitigation. However, this Court has
specifically declined to fashion a “per se” rule that an extraneous transaction is too
remote in time to be introduced into evidence at trial. See Templin v. State, 711
S.W.2d 30, 34 (Tex. Crim. App. 1986). Indeed, the fact that Appellant abused
Franks and drugs and alcohol in 1993 shows his penchant for violence and
addiction to mind-altering substances is long lived, which is most definitely
relevant to both future danger and mitigation.
Based on the foregoing, the trial court could have reasonably concluded that
the complained-of evidence was relevant and admissible. This decision was not
outside of the zone of reasonable disagreement. The trial court did not abuse its
discretion in admitting the evidence.
Even if the trial court erred, any alleged error is harmless. Error in admitting
evidence with insufficient notice under article 37.07, § 3(g) is non-constitutional
error. See Apolinar, 106 S.W.3d at 414. The evidence at issue was no more
serious and potentially inflammatory than the facts of the offense and the other
punishment evidence admitted without objection. There is nothing in the record to
164
indicate that the jury was not equipped to evaluate the probative force of the
evidence. Moreover, the trial court instructed the jury that any testimony regarding
extraneous offenses committed by appellant could be considered only if they
believed appellant committed the offenses beyond a reasonable doubt and even
then only in determining their answers to the special issues.17 (CR14:4517). This
minimized any potential for improper influence on the jury. See, e.g., Lane v. State,
933 S.W.2d 504, 520 (Tex. Crim. App. 1996).
Issues 43 and 44 should be overruled.
STATE’SRESPONSE TO ISSUE NOS. 45 THROUGH 48: THE TRIAL COURT PROPERLY
ADMITTED EVIDENCE OF APPELLANT’S ARRESTS AND CERTAIN JUDGMENTS AND
SENTENCES.
In Issues 45, 46, 47, and 48, Appellant contends that the trial court erred in
admitting, over his objection, evidence of certain prior arrests and convictions. He
contends that the evidence was not sufficiently tied to him. Appellant’s
contentions lack merit and should be overruled.
17
Specifically, the instruction stated: “You are instructed that if there is any evidence before you
in this case regarding the defendant having committed an offense or offenses other than the
offense alleged against him in the indictment, you cannot consider this evidence for any purpose
unless you find and believe beyond a reasonable doubt that the defendant committed such other
offenses, if any were committed, and even then you may only consider the same in determining
the answers to the special issues.” (CR14:4517).
165
Pertinent Facts
Issue No. 45: State’s Exhibit #166
Lieutenant John Spera testified he responded to “a family disturbance” call
at 4263 Rose Hill Road on September 13, 2004. (RR47:78-79). The complainant
was Daphne Johnson. (RR47:80). “[T]here was a suspect there attempting to kick
the door in and that there was also a protective order on him.” (RR47:79). Spera
found Appellant and arrested him for the offense of violation of a protective order.
(RR47:86-89, 92). The State offered State’s Exhibit #166, Appellant’s judgment
and sentence in Cause No. MA04-28690, convicting him of the offense of
violation of a protective order. (RR47:97; SX#166). The judgment recites that
the offense was committed on September 13, 2004. (SX#166).
Appellant objected that the information contained in State’s Exhibit #166
was not “sufficiently tied to” him. (RR47:93). Appellant’s objection was
overruled. (RR47:94).
Issue No. 46: State’s Exhibit #169
Officer M.G. Clark testified that on August 7, 1995 was dispatched to locate
a suspect involved in an earlier aggravated assault, deadly weapon. (RR47:132-
33). Appellant was the suspect. (RR47:134-36). Clark located Appellant,
arrested him, and booked him for, among other offenses, aggravated assault,
deadly weapon. (RR47:136). The State offered State’s Exhibit #169, a certified
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copy of Appellant’s prior conviction for aggravated assault, deadly weapon in
Cause No. F95-25906. (RR47:141; SX#169). Appellant objected to this exhibit,
arguing that it was not “sufficiently tied to [Appellant].” (RR47:142). His
objection was overruled. (RR47:142, 143).
Issue No. 47: State’s Exhibit #171
Officer St. Clair testified about the events leading to Appellant’s arrest for
robbery and evading arrest on June 19, 2004. (RR47:165-174). St. Clair
recognized Appellant from the car chase and arrest. (RR47:170). During St.
Clair’s testimony, the State offered State’s Exhibit #171, which is a pen packet
containing a judgment and sentence for robbery in Cause No. F04-26727.
(RR47:175; SX#171). It also contains a judgment and sentence for evading arrest
or detention in Cause No. F04-26728. (RR47:175; SX#171). The date of offense
on both cases is June 19, 2004. (RR47:175; SX#171). Appellant objected to this
exhibit, arguing that there was a lack of sufficient identifying information.
(RR47:175). His objection was overruled. (RR47:175).
Issue No. 48: State’s Exhibit #170
Officer Steadman testified that on October 9, 2002 at about 1:50 a.m., he
was dispatched as back up on a hit-and-run call. (RR47:154-55). Steadman
located the suspect – Appellant – and, after a foot chase, captured and arrested him
for evading arrest. (RR47:155-59). The State offered State’s Exhibit #170, a
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certified copy of Appellant’s judgment and sentence for the offense of evading
arrest in Cause No. M02-27021. (RR47:160). Appellant objected, arguing that
there was not sufficient identifying information to tie the documents to Appellant.
(RR47:160-61). Appellant’s objection was overruled. (RR47:161).
Applicable Law
To establish a defendant’s prior criminal conviction, the State must prove
beyond a reasonable doubt the following: (1) that a prior conviction exists, and (2)
that the defendant is linked to that conviction. See Flowers v. State, 220 S.W.3d
919, 921 (Tex. Crim. App. 2007). Texas law does not require that the prior
conviction be proven in any specific manner. Id. at 922. “Any type of evidence,
documentary or testimonial, might suffice.” Id.
Analysis
Appellant has failed to properly brief these issues. He recites trial counsel’s
objections and the law, but he does not provide any specific argument as to why
the exhibits are inadmissible. See Tex. R. App. P. 33.1(a).
Regardless, all four exhibits were properly admitted as the testimony linked
the convictions to Appellant. Spera testified that he arrested Appellant on
September 13, 2004 for the offense of violation of a protective order. (RR47:78-
79, 86-89, 92). State’s Exhibit #166 is a certified copy of a judgment regarding
Appellant’s prior conviction for violation of a protective order, alleged to have
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been committed on September 13, 2004. (RR47:97; SX#166). Clark testified that
he arrested Appellant on August 7, 1995 for aggravated assault, deadly weapon.
(RR47:136). State’s Exhibit #169 is a certified copy of a judgment regarding
Appellant’s prior conviction for aggravated assault, deadly weapon alleged to have
been committed on August 7, 1995. (RR47:141; SX#169). St. Clair testified that
he participated in Appellant’s arrest for robbery and evading arrest on June 19,
2004. (RR47:165-174). State’s Exhibit #171 is a penitentiary packet containing a
copy of a judgment regarding Appellant’s conviction for robbery alleged to have
been committed on June 19, 2004. (RR47:175; SX#171). Steadman testified that
he arrested Appellant on October 9, 2002 for evading arrest. (RR47:154-59).
State’s Exhibit #170 is a certified copy of a judgment regarding Appellant’s prior
conviction for evading arrest alleged to have been committed on October 9, 2002.
(SX#170).
Based on the foregoing, there was sufficient evidence for the jury to find
beyond a reasonable doubt that Appellant was the individual who committed the
aforementioned extraneous offenses. As such, the trial court did not abuse its
discretion in admitting them. See Flowers, 220 S.W.3d at 922 (noting that there
are many ways to prove a prior conviction; “Just as there is more than one way to
skin a cat, there is more than one way to prove a prior conviction.”).
Issues 45, 46, 47, and 48 should be overruled.
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STATE’SRESPONSE TO ISSUE NO. 49: THE TRIAL COURT PROPERLY ADMITTED THE
TESTIMONY OF WARDEN MELODYE NELSON.
In Issue 49, Appellant contends that the trial court erred in allowing
testimony from Warden Melodye Nelson regarding prison violence and the nature
of weapons found in prison. (Appellant’s Br. pp. 122-1240. Appellant contends
that Nelson’s testimony violated his right to individualized sentencing as her
testimony concerned the conduct of individuals other than Appellant. Appellant’s
contentions lack merit and should be overruled.
Pertinent Facts
In a hearing outside the presence of the jury, Appellant objected to the
testimony of Warden Melodye Nelson. (RR48:16-17). Specifically, he objected to
“testimony by Warden Nelson, concerning violence and weapons and - - and things
done by other inmates.” (RR48:16). Appellant’s objection was overruled.
(RR48:17).
Applicable Law
Rule 702 of the Texas Rules of Evidence provides as follows:
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion or
otherwise.
Tex. R. Evid. 702. “The proponent of scientific evidence must show, by clear and
convincing proof, that the evidence is sufficiently relevant and reliable to assist the
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jury in accurately understanding other evidence or in determining a fact in issue.”
Gallo v. State, 239 S.W.3d 757, 765 (Tex. Crim. App. 2007).
Additionally, the trial court must determine whether the expert “make[s] an
effort to tie pertinent facts of the case to the scientific principles which are the
subject of his testimony.” Jordan v. State, 928 S.W.2d 550, 555 (Tex. Crim. App.
1996). The testimony must be “sufficiently tied to the facts” to be helpful to the
jury. Id.; see Griffith v. State, 983 S.W.2d 282, 288 (Tex. Crim. App. 1998)
(holding that expert witness “fit” his expert knowledge with the particular facts of
the case in his evaluation of appellant’s future dangerousness).
Analysis
The trial court did not err in admitting Warden Nelson’s testimony because
it was relevant to helping the jury determine Special Issue No. 1, whether
Appellant would commit criminal acts of violence that would constitute a
continuing threat to society. It is well settled that “society” includes the prison
population. See Estrada v. State, 313 S.W.3d 274, 281 (Tex. Crim. App. 2010).
Nelson’s testimony described for the jury what Appellant’s life would be like if
Appellant were sentenced to life in prison and his “society” became prison society.
See Jordan, 928 S.W.2d at 555-56. Prison society is not something within a
juror’s common knowledge. Nelson testified regarding staffing, classification,
housing, daily routine, discipline and the potential for violence. She did not
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specifically testify that Appellant would be more or less likely to commit violent
acts in prison, only that there is a potential for drugs and violence, even in prison.
Nelson showed weapons that were found and confiscated in prison over the years
in an effort to illustrate her testimony for the jury. Indeed, Nelson testified, “for
someone who hasn’t worked inside of one of our prisons, [the inmates are] very
creative in how they can construct a weapon. I will tell you there’s - - we still find
weapons and things of that nature that it shocks me.” (RR48:59). See Threadgill,
146 S.W.3d at 670-671 (finding no abuse of discretion in admitting criminal
investigator’s testimony regarding the prevalence of violence in prison as well as
photographs of weapons made by inmates in prison).
Even if the trial court erred in admitting Nelson’s testimony, any alleged
error was harmless. See Tex. R. App. P. 44.2(b). The jury had already seen and
heard evidence regarding the instant capital murder. The jury had already heard
about Appellant’s violent and threatening behavior with his wife, sister-in-law and
ex-girlfriend, his oppositional behavior with police, his prior violent criminal
offenses and the assault he committed against Jenkins while he was in prison. The
jury would later hear about his failure to obey orders while incarcerated, even
while awaiting trial on the instant charges. Furthermore, the prejudicial effect of
Nelson’s testimony was minimized by its general nature. It was neither graphic
nor disturbing in content. That fact, in conjunction with the admission of other
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more compelling punishment evidence by the State, rendered harmless any error in
the admission of Warden Nelson’s testimony.
Issue 49 should be overruled.
STATE’S RESPONSE TO ISSUE NO. 50: THE EVIDENCE IS LEGALLY SUFFICIENT TO
SUPPORT THE JURY’S FINDING THAT APPELLANT IS A FUTURE DANGER.
In Issue 50, Appellant contends that the evidence is legally insufficient to
support the jury’s finding that there is a probability that he will commit criminal
acts of violence in the future. Appellant contends that he has no prior violent
offense convictions and several of his witnesses testified that he was a low risk for
future dangerousness.
Applicable Law
The State has the burden of proving the future dangerousness punishment
issue beyond a reasonable doubt. Tex. Code Crim. Proc. Ann. art. 37.071, §§
2(b)(1), 2(c); Ladd, 3 S.W.3d at 557. In its determination of the issue, the jury is
entitled to consider all of the evidence presented at both the guilt and punishment
stages of trial. See Tex. Code Crim. Proc. Ann. art. 37.071 § 2(d)(1).
A jury may consider a variety of factors when determining whether a
defendant will pose a continuing threat to society: the circumstances of the
offense, the defendant’s state of mind, whether he was working alone or with other
parties, the calculated nature of his acts, the forethought and deliberation exhibited
by the crime’s execution, the existence of a prior criminal record, the defendant’s
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age and personal circumstances at the time of the offense, whether the defendant
was acting under duress or the domination of another at the time of the offense,
psychiatric evidence, and character evidence. See Martinez v. State, 327 S.W.3d
727, 730 n.4 (Tex. Crim. App. 2010). In reviewing the sufficiency of the evidence,
this Court views all of the evidence in the light most favorable to the jury’s finding
and determines whether, based on that evidence and reasonable inferences
therefrom, a rational jury could have found beyond a reasonable doubt that the
answer to the future-dangerousness issue was “yes.” Id. at 730.
Analysis
The evidence from both phases of trial unquestionably demonstrates
Appellant’s propensity for violence. Indeed, the facts of the offense, standing
alone, are sufficient to support a finding of future dangerousness. Appellant
poured lighter fluid over the upper body of an elderly woman, robbed her, lit her
on fire, and then casually walked away as she tried in vain to extinguish the flames
ravaging her upper body.
The State did not rely on the facts of the offense alone, however. The State
presented the following additional evidence showing Appellant’s future
dangerousness:
 In 1993, at the age of 17, Appellant was physically violent with his then-
girlfriend, Franks. (RR47:38-40). Over the course of their short relationship,
he hit her, grabbed her, and threatened her. (RR47:38-40). One time, he
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threw a burning piece of wood onto her patio, setting a rug on fire.
(RR47:49).
 Also in 1993, Appellant was arrested when an officer saw him walking
down the street with a joint. (RR47:101, 104–107). In addition to the
joint, Appellant had a bag of marijuana on his person. (RR47:105, 107).
He was arrested for the marijuana and an outstanding warrant. (RR47:105,
108).
 The following year, in 1994, Appellant was arrested when officers
responding to a call of a man and woman fighting on the side of the road
determined that he had outstanding warrants. (RR48:111-12). Appellant
struggled with police when he was informed that he would be arrested.
(RR48:114). He bit both officers’ arms. (RR48:114). He bit one of the
officers so hard that he bit through the officer’s watch. (RR48:114).
 Also in 1994, Appellant instructed Daphne not to stop when an officer tried
to pull them over. (RR47:125). After a slow-speed chase, Appellant jumped
out of the vehicle and tried to flee. (RR47:118–23).
 In 1995, Appellant was arrested for aggravated assault with a deadly
weapon. (RR47:134-37). He had been making threatening phone calls for
hours. (RR47:133-34). When he was booked in, he threatened the arresting
officer. (RR47:138-40).
 In 2002, Appellant evaded arrest. (RR47: 150–151, 155–58).
 In 2003, Daphne filed an application for a protective order. (SX#193). In
her application, she detailed assaults he committed on her in October,
November and December of 2003. She wrote that Appellant punched her,
pushed her, and kicked in their door. (SX#193). Daphne wrote, “Over the
last nine years [Appellant] . . . hit me, punched me, slapped me, kicked me
once, strangled me, pushed and shoved me, and thrown me around. I’ve had
bruises, black eyes, a bloody nose, a busted lip, scratches[,] soreness,
swelling, and pain.” (SX#193).
 In 2004, Appellant attacked Salmeron in her driveway, threw her out of her
truck, and stole it. (RR47:183-86, 191). After a high-speed chase, he
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wrecked Salmeron’s truck, rendering it inoperable. (RR47:166-68, 170,
188, 197).
 Also in 2004, while Daphne’s protective order was still in effect, Appellant
went to Daphne’s apartment and attempted to kick down her door.
(RR47:78-80, 84).
 While in prison in 2005, Appellant refused to attend school or go to work.
He fought with his bunkmate, Jenkins. (RR47:223). He grabbed Jenkins
below his knees and flipped him, causing Jenkins’ head to strike the concrete
floor and “split [his] head open.” (RR47:226-27, 233). Jenkins’ injuries
required nine staples. (RR47:230–231; SX#172).
 In 2006, while still in prison, Appellant masturbated at the door of his cell in
front of a female guard while leering at her. (RR47:263-64).
 In 2011, Appellant broke into his employer’s safe and stole $325 in cash and
three state inspection books valued at $2,100. (RR48:158, 172-73). He also
stole a computer monitor. (RR48:172-73). He returned the monitor but not
the inspection booklets or cash. (RR48:175, 178; SX#174).
 In 2012, Appellant was brought into the emergency room by Dallas police
and paramedics. (RR48:190-91; SX#188). He was handcuffed, “highly
agitated” and “somewhat combative.” (RR48:194). He was in a substance-
induced psychosis. (RR48:202-03). It took eight or nine people to hold him
to the bed. (RR48:194). A body net bound him to the bed. (RR48:194-95).
 Later in 2012, Appellant approached Pinzon as she cleaned a bathroom at
the Express Inn and exposed his erect penis to her. (RR48:101-04, 108).
 While in jail awaiting trial on the instant offense, Appellant violated the
rules by disobeying staff orders and tattooing himself. (RR48:147-49;
RR49:132-33).
Appellant argues that he has no prior convictions for violent offenses.
(Appellant’s Br. at 124). Appellant is incorrect. In 1994, he was convicted of
resisting arrest after he resisted arrest and bit two police officers. (RR48:114-16;
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SX#189). In 1995, Appellant was convicted of aggravated assault, deadly weapon
after he made repeated threatening phone calls to his sister-in-law Courtney
Johnson. (RR47:132-34, 140-41, 143; SX#169). In 2004, Appellant was
convicted of robbery and evading arrest after he robbed Salmeron of her truck in
her driveway. (RR47:175-76; SX#171). In 2004, Appellant was also convicted of
the offense of violation of a protective order when he tried to kick Daphne’s door
in. (RR47:79-80, 97; SX#166).
Additionally, the State presented substantial evidence of unadjudicated
offenses, many of which involved violence: the domestic violence between
Appellant and Franks, including when he threw a burning piece of wood onto her
patio; the domestic violence between Appellant and Daphne; the assault on Jenkins
while in prison; and, the time he exposed himself to Pinzon.
The State notes that many of Appellant’s most violent offenses, both
adjudicated and unadjudicated, involve violence against women: Franks, Daphne,
Salmeron, Pinzon, and Nancy. Appellant apparently has no trouble threatening,
hitting, punching, kicking, strangling or robbing a woman. He has no problem
setting a woman on fire. His history also demonstrates an inability to follow the
rules, whether he is in the free world, whether he is in prison, or whether he is in
jail awaiting trial on a charge of capital murder. Cf. Reese v. State, 33 S.W.3d
238, 247 (Tex. Crim. App. 2000) (noting that it was in capital “[defendant’s] best
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interest to behave well while in jail awaiting trial”). Appellant blames all of his
offenses on his drug use and depression. (RR49:99-100). Importantly, multiple
witnesses – including Appellant’s own experts – testified that drugs are available
in prison. (RR47:253, 272; RR48:47, 69, 72; RR50:85-86; RR51:37, 52, 63).
Viewed in the light most favorable to the verdict, the evidence here is more
than sufficient to support the jury’s finding beyond a reasonable doubt that
Appellant would constitute a continuing threat to society. The evidence is
sufficient to support the jury’s answer to the future dangerousness special issue.
Issue 50 should be overruled.
STATE’S RESPONSE TO ISSUE NOS. 51 THROUGH 53: THE TRIAL COURT PROPERLY
DENIED APPELLANT’S REQUESTED JURY INSTRUCTIONS AND OVERRULED HIS
OBJECTIONS TO THE CHARGE.
In Issues 51, 52, and 53, Appellant contends that the trial court erred in
denying his requested instructions and overruling his objections to the court’s
punishment charge. (Appellant’s Br. 129-38). Appellant’s contentions lack merit
and should be overruled.
Pertinent Facts
Prior to trial, Appellant filed Pre-Trial Motion No. 63, “Defendant’s
Requested Instructions for Punishment Charge.” (CR3:660-73). In that motion,
Appellant requested 13 instructions to be included in the court’s punishment
charge. He also requested 2 additional special verdict forms. (CR3:660-73).
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Appellant also filed Pre-Trial Motion No. 64, “Defendant’s Objections to the
Charge at Punishment.” (CR3:641-58). In this motion, Appellant raised 61
objections to the trial court’s punishment charge. (CR3:641-58).
Both of Appellant’s motions were presented during a hearing outside the
presence of the jury. (RR51:92-106). Both of Appellant’s motions were denied.
(RR51:92-106).
Analysis
Issues 51, 52, and 53 are inadequately briefed. Tex. R. App. P. 38.1(h). In
three issues, Appellant asserts 76 challenges to the court’s punishment charge.
The bulk of his briefing on these issues, however, consists of simply a shorthand
recitation of the challenges raised in Pre-Trial Motion Nos. 63 and 64. Only 15 of
the 76 challenges contain citations to authority. Appellant neither challenges the
reasoning of the existing case law nor asserts any novel legal arguments to support
his claims. Conclusory assertions of error, unsupported by substantive legal
analysis, present nothing for review. See Rocha v. State, 16 S.W.3d 1, 20 (Tex.
Crim. App. 2000). Moreover, this Court has held that an issue that embraces more
than one legal theory is multifarious and risks rejects on that basis alone. See
Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010). Without adequate
briefing, the State cannot respond to Appellant’s complaints. Issues 51, 52, and
179
53 should be overruled as multifarious and inadequately briefed. See Wood v.
State, 18 S.W.3d 642, 649 n.6 (Tex. Crim. App. 2000).
To the extent that the State is able to discern Appellant’s objections or
requested instruction, the State agrees that with Appellant his claims are foreclosed
by well-settled law. (See Appellant’s Br. p. 129). Where possible, the State has
attempted to provide the Court with a citation to the applicable statute or to
authority wherein the same or similar issue, instruction, or objection has been
addressed and rejected.
Issue #51: General Punishment Instructions by Defense
 51.1: Roberts v. State, 220 S.W.3d 521, 531 (Tex. Crim. App. 2007).
 51.2: An instruction regarding the burden of proof as to extraneous
offenses was included in the charge. (CR14:4517).
 51.3: Saldano, 232 S.W.3d at 105-07.
 51.4: Mosley v. State, 983 S.W.2d 249, 261 n.16 (Tex. Crim. App.
1998).
 51.5: Saldano, 232 S.W.3d at 105-07.
 51.6: Estrada v. State, 313 S.W.3d 274, 306-07 (Tex. Crim. App.
2010).
 51.7-51.9: Saldano, 232 S.W.3d at 105-07.
 51.10-51.11: Tex. Code Crim. Proc. Ann. art. 37.071, § 2(a); Cantu v.
State, 939 S.W.2d 627, 644 (Tex. Crim App. 1997).
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 51.12: Renteria v. State, 206 S.W.3d 689, 709 (Tex. Crim. App.
2006).
 51.13: Duffy v. State, 567 S.W.2d 197, 208 (Tex. Crim. App. 1978).
 51.14-51.15: Green v. State, 912 S.W.2d 189, 195 (Tex. Crim. App.
1995).
 51.16: Narvaiz v. State, 840 S.W.2d 415, 427 (Tex. Crim. App.
1992).
 51.17: Paulson v. State, 28 S.W.3d 570, 582 (Tex. Crim. App. 2001).
Issue #52: Instructions Regarding Future Dangerousness
 52.1: Jackson v. State, 992 S.W.2d 469, 477-79 (Tex. Crim. App.
1999).
 52.2: Jackson, 992 S.W.2d at 479 (citing Matchett v. State, 941
S.W.2d 922, 937 (Tex. Crim. App. 1997)).
 52.3: Jackson v. State, 33 S.W.3d 828, 833-34 (Tex. Crim. App.
2000).
 52.4: Russeau v. State, 291 S.W.3d 426, 434 (Tex. Crim. App. 2009).
 52.5-52.15: Blue v. State, 125 S.W.3d 491, 504-05 (Tex. Crim. App.
2003).
 52.16: Russeau, 291 S.W.3d at 436.
 52.17: Russeau, 291 S.W.3d at 436.
 52.18-52.20: Saldano, 232 S.W.3d at 106-07.
 52.21: Espada v. State, No. AP-75,219, 2008 Tex. Crim. App.
Unpub. LEXIS 806, at *39-40 (Tex. Crim. App. 2008) (not designated
for publication).
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 52.24-52.25: Saldano, 232 S.W.3d at 105-07.
 52.26: Leza v. State, 351 S.W.3d 344, 362 (Tex. Crim. App. 2011).
 52.27: Espada, 2008 Tex. Crim. App. Unpub. LEXIS at *50-51.
Issue #53: Instructions Regarding Mitigation
 53.1: Rhoades v. State, 934 S.W.2d 113, 128-29 (Tex. Crim. App.
1996).
 53.2-53.3: Espada, 2008 Tex. Crim. App. Unpub. LEXIS at *46-47.
 53.4-53.5: Tex. Code Crim. Proc. Ann. art. 37.071.
 53.6: Soliz v. State, 432 S.W.3d 895, 904 (Tex. Crim. App. 2014).
 53.7: Cantu, 939 S.W.2d at 627 (citing Robertson v. State, 871
S.W.2d 701, 711-12 (Tex. Crim. App. 1993)).
 53.8-53.9: Tex. Code Crim. Proc. Ann. art. 37.071, § 2(e-f).
 53.10: Thuesen v. State, No. AP-76,375, 2014 Tex. Crim. App.
Unpub. LEXIS 191, at *159-60 (Tex. Crim. App. Feb 26, 2014) (not
designated for publication).
 53.11-53.12: Soliz, 432 S.W.3d at 904-05.
 53.13: Cantu, 939 S.W.2d at 648-49.
 53.14-53.16: Russeau, 291 S.W.3d 434-36.
 53.17: Duffy, 567 S.W.2d at 204.
 53.18: Cantu, 939 S.W.2d at 648-49.
 53.19-53.22: Tex. Code Crim. Proc. Ann. art. 37.071, § 2(e-f).
 53.23: Russeau, 291 S.W.3d at 436.
182
 53.24-25: Raby v. State, 970 S.W.2d 1, 9 (Tex. Crim. App. 1998).
 53.26: Mosley, 983 S.W.2d at 261 n.16.
 53.27: Raby, 970 S.W.2d at 9.
 53.29: Saldano, 232 S.W.3d at 105-07.
 53.31-53.32: Saldano, 232 S.W.3d at 105-07.
The trial court did not abuse its discretion in denying Appellant’s requested
instructions. The trial court did not abuse its discretion in overruling Appellant’s
objections to the charge. At a minimum, the rulings fall within the zone of
reasonable disagreement. See Weatherred, 15 S.W.3d at 542.
Issues 51, 52, and 53 should be overruled.
STATE’S RESPONSE TO ISSUE NOS. 54 THROUGH 65: THE TRIAL COURT PROPERLY
DENIED APPELLANT’S CHALLENGES TO THE DEATH PENALTY STATUTE.
In Issues 54 through 65, Appellant challenges the constitutionality of the
Texas death penalty statute. He acknowledges that these issues have been
previously submitted to this Court and overruled, citing Saldano, 232 S.W.3d 77,
but invites the Court to review its prior stance on these issues. He claims that he
asserts these issues not to cause unnecessary litigation but to preserve the issues for
federal court review. (Appellant’s Br. at 138).
In Issue 54, Appellant contends the statute under which he was sentenced to
death violates the Eighth Amendment by allowing the jury too much discretion in
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determining who should live and who should die and results in the arbitrary and
capricious imposition of the death penalty. (Appellant’s Br. at 138).
In Issue 55, Appellant contends that the Texas death penalty statute violates
the due process mandates of the Fourteenth Amendment because it implicitly puts
the burden of proving the mitigation special issue on him rather than placing the
burden on the State to prove beyond a reasonable doubt that no circumstances
warrant a life sentence rather than a death sentence. (Appellant’s Br. at 139).
In Issue 56, Appellant contends the trial court erred in denying his motion to
hold that Article 37.071, § 2(e) and (f) violates Article I, §§ 10 and 13 of the Texas
Constitution. (Appellant’s Br. at 140).
In Issue 57, Appellant contends that the Texas death penalty scheme violates
the due process protections of the U.S. Constitution because it does not require the
State to prove the absence of sufficient mitigating circumstances beyond a
reasonable doubt, contrary to Apprendi v. New Jersey, 530 U.S. 466 (2000), and its
progeny. (Appellant’s Br. at 140).
In Issue 58, Appellant contends that the Texas death penalty scheme violates
his rights against cruel and unusual punishment and to due process of law under
the Eighth and Fourteenth Amendments by requiring at least ten “no” votes for the
jury to return a negative answer to a punishment special issue. (Appellant’s Br. at
141).
184
In Issue 59, Appellant contends that the Texas death penalty scheme violates
his rights against cruel and unusual punishment, to an impartial jury, and to due
process of law under the Sixth, Eighth, and Fourteenth Amendments because
vague, undefined terms in the punishment jury instructions effectively determine
the difference between a life or death sentence. (Appellant’s Br. at 142).
In Issue 60, Appellant contends that the trial court erred in overruling his
motion to hold Art. 37.071, § 2(e) and (f) unconstitutional because it fails to
require the jury to consider all mitigating evidence. (Appellant’s Br. at 143).
In Issue 61, Appellant contends that the mitigation special issue is
unconstitutional because it fails to place the burden of proof on the State to prove
that aggravating evidence exists beyond a reasonable doubt. (Appellant’s Br. at
141).
In Issue 62, Appellant claims that the mitigation special issue is
unconstitutional under the Eighth and Fourteenth Amendments to the U.S.
Constitution because it permits an open-ended discretion which was condemned by
Furman v. Georgia, 408 U.S. 238 (1972). (Appellant’s Br. at 144).
In Issue 63, Appellant contends that Texas’ statutory capital sentencing
scheme is unconstitutional under the Eighth and Fourteenth Amendments because
it lacks meaningful appellate review. (Appellant’s Br. at 144).
185
In Issue 64, Appellant contends that the trial court erred in overruling his
motion to quash the indictment as being unconstitutional based on the numerous
constitutional defects of the Texas death penalty scheme. (Appellant’s Br. at 145).
In Issue 65, Appellant contends that the cumulative effect of these alleged
constitutional violations denied him due process of law in violation of the Fifth and
Fourteenth Amendments of the U.S. Constitution and due course of law under
Article I, § 19 of the Texas Constitution. (Appellant’s Br. at 147).
Appellant invites the Court to revisit its prior decisions on these issues,
which he agrees have all been previously overruled. See Appellant’s Brief at 138;
Saldano, 232 S.W.3d at 107-09 (overruling multiple challenges to death penalty
statute); Escamilla, 143 S.W.3d at 828-829 (overruling similar challenges).
Appellant presents no new arguments for the State to address. Accordingly, the
State asks this Court to decline his invitation to revisit these legal claims and to
overrule issues 54 through 65.
186
PR
RAYER
The
T State prays
p that this Hono
orable Couurt will afffirm the juudgment off the
trial cou
urt.
Respecctfully subm
mitted,
Craig Watkins
W Christiine Womb ble
Criminnal Districtt Attorney
y Assistaant Districct Attorneyy
Dallas County,
C Teexas State B
Bar No. 240035991
Frank CCrowley Courts Buildding
133 N. Riverfrontt Blvd., LB
B-19
Dallas, Texas 752207-4399
(214) 6653-3625
(214) 6653-3643 fa
fax
TIFICATE
CERT E OF COM
MPLIANC
CE
I hereby certify that there
t are 42,769 worrds in this document,, excludingg the
caption,, statementt regarding
g oral argu
ument, tablle of conteents, index of authoriities,
statement of the case, stattement of issues ppresented, signature,, certificatte of
nce. This number exceeds tthe maxim
service,, and certtificate off complian mum
allowab i Tex. R. App. P. 9..4(i)(2)(A)). The Staate is
ble numberr of words provided in
filing a Motion to Exceed th
he Word Co
ount conteemporaneouusly with tthis brief.
_______________________
Christinne Womble
187
CE
ERTIFICA
ATE OF S
SERVICE
I hereby ceertify that a true copy
y of the fooregoing bbrief was sserved on JJohn
Tatum, attorney for Appelllant, 990 South Shherman Strreet, Richaardson, Teexas,
75081, by
b email and
a by Unitted States mail,
m on D
December 330, 2014.
Christinne Womble
188