2015-09

William Gerard Palmer v. State ( 2015 )

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ACCEPTED
05-14-00671-CR
FIFTH COURT OF APPEALS
DALLAS, TEXAS
9/15/2015 4:47:22 PM
LISA MATZ
CLERK
5th Court of Appeals
FILED: 09/15/2015
Lisa Matz, Clerk
The State requests oral argument only if Appellant argues
No. 05-14-00671-CR
RECEIVED IN
5th COURT OF APPEALS
DALLAS, TEXAS
IN THE COURT OF APPEALS
9/15/2015 4:47:22 PM
FOR THE FIFTH DISTRICT OF TEXAS LISA MATZ
AT DALLAS Clerk
WILLIAM GERARD PALMER,
APPELLANT
V.
THE STATE OF TEXAS,
APPELLEE
On appeal from Criminal District Court No. 4 of Dallas County, Texas
In Cause No. F12-00445
STATE’S BRIEF
Counsel of Record:
Susan Hawk Christine Womble (SBT 24035991)
Criminal District Attorney Assistant District Attorney
Dallas County, Texas Frank Crowley Courts Building
133 N. Riverfront Boulevard, 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
Table of Contents .................................................................................................. ii-iii
Index of Authorities ............................................................................................ iv-vii
Statement of the Case ................................................................................................ 1
Statement of Facts ................................................................................................ 1-17
Summary of the Argument ................................................................................ 17-18
Argument ................................................................................................................. 18
State‘s Response to Issue Nos. One and Two ......................................................... 18
THE TRIAL COURT PROPERLY EXCLUDED THE TESTIMONY OF DR.
KRISTI COMPTON. ALTERNATIVELY, ANY ALLEGED ERROR IS
HARMLESS.
State‘s Response to Issue No. Three........................................................................ 35
APPELLANT HAS FAILED TO PRESERVE ERROR FOR THIS COURT’S
REVIEW. INANY EVENT, EVEN ASSUMING ERROR WAS PRESERVED,
THE TRIAL COURT PROPERLY OVERRULED HIS REQUEST FOR AN
INSTRUCTION REGARDING THE LESSER-INCLUDED OFFENSE OF
MANSLAUGHTER.
State‘s Cross-Point ................................................................................................... 43
THE JUDGMENT SHOULD BE MODIFIED OR REFORMED TO CORRECTLY
REFLECT APPELLANT’S SENTENCE.
Prayer ....................................................................................................................... 45
ii
Certificate of Compliance ........................................................................................ 45
Certificate of Service ............................................................................................... 46
iii
INDEX OF AUTHORITIES
Cases
Almanza v. State,

686 S.W.2d 157

(Tex. Crim. App. 1985) ..................................................... 37, 38, 43
Arnold v. State,

234 S.W.3d 664

(Tex. App.—Houston [14th Dist.] 2007, no pet.) ...................... 40
Bigley v. State,

865 S.W.2d 26

(Tex. Crim. App. 1993) ................................................................... 44
Blanton v. State,
No. 74,214, 2004 Tex. Crim. App. LEXIS 2210 (Tex. Crim. App. 2004) (not
designated for publication) ......................................................................................... 39
Boles v. State,

598 S.W.2d 274

(Tex. Crim. App. 1980) ................................................................. 38
Cardenas v. State,

30 S.W.3d 384

(Tex. Crim. App. 2000) ................................................................... 39
Cavazos v. State,

382 S.W.3d 377

(Tex. Crim. App. 2012) ............................................... 37, 40, 41, 43
Crane v. Kentucky,

476 U.S. 683

(1986) .................................................................................................... 23
Erazo v. State,

144 S.W.3d 487

(Tex. Crim. App. 2004) ................................................................. 24
Estrada v. State,

334 S.W.3d 57

(Tex. App.—Dallas 2009, no pet.) ................................................. 44
Gallo v. State,

239 S.W.3d 757

(Tex. Crim. App. 2007) ................................................................. 24
iv
Hernandez v. State,

438 S.W.3d 876

(Tex. App.—Texarkana 2014, pet. ref‘d).................................... 23
Hutch v. State,

922 S.W.2d 166

(Tex. Crim. App. 1996) ................................................................. 38
Jackson v. State,

160 S.W.3d 568

(Tex. Crim. App. 2005) ........................................................... 25, 26
King v. State,

953 S.W.2d 266

(Tex. Crim. App. 1997) ........................................................... 33, 35
Lizcano v. State,
AP-75,879, 2010 Tex. Crim. App. Unpub. LEXIS 270 (Tex. Crim. App. May 5,
2010) (not designated for publication)...................................................................... 26
Marshall v. State,
No. 11-10-00057-CR, 2012 Tex. App. LEXIS 1083 (Tex. App.—Eastland Feb.
9, 2012, no pet.) (not designated for publication) ................................................... 30
Mathis v. State,

67 S.W.3d 918

(Tex. Crim. App. 2002) ................................................................... 39
Mays v. State,

318 S.W.3d 368

(Tex. Crim. App. 2010) ................................................................. 25
Middleton v. State,

125 S.W.3d 450

(Tex. Crim. App. 2003) ................................................................. 37
Montgomery v. State,

810 S.W.2d 372

(Tex. Crim. App. 1990) (op. on reh‘g) .................................. 23, 24
Morales v. State,

32 S.W.3d 862

(Tex. Crim. App. 2000) ................................................................... 33
Ngo v. State,

175 S.W.3d 738

(Tex. Crim. App. 2005) ................................................................ 38
Penry v. State,

903 S.W.2d 715

(Tex. Crim. App. 1995) ................................................................. 25
v
Rice v. State,

333 S.W.3d 140

(Tex. Crim. App. 2011) ........................................................... 36, 37
Romero v. State,

800 S.W.2d 539

(Tex. Crim. App. 1990) ................................................................. 23
Ruffin v. State,

270 S.W.3d 586

(Tex. Crim. App. 2008) ........................................................... 25, 26
Teel v. State,
No. 02-09-00150-CR, 2010 Tex. App. LEXIS 9391 (Tex. App.—Fort Worth,
Nov. 24. 2010, pet. ref‘d) (not designated for publication).................................... 27
United States v. Cameron,

907 F.2d 1051

(11th Cir. 1990) .................................................................................. 26
Vasquez v. State,

919 S.W.2d 433

(Tex. Crim. App. 1996) ................................................................. 38
Ward v. State,
AP-75,750, 2010 Tex. Crim. App. Unpub. LEXIS 94 (Tex. Crim. App. Feb. 10,
2010) (not designated for publication)...................................................................... 32
Weatherred v. State,

15 S.W.3d 540

(Tex. Crim. App. 2000) ................................................................... 33
Wiley v. State,
No. 09-07-00436-CR, 2009 Tex. App. LEXIS 225 (Tex. App.—Beaumont Jan.
14, 2009, pet. ref‘d) (not designated for publication) ............................................. 28
Wyatt v. State,

23 S.W.3d 18

(Tex. Crim. App. 2000)...................................................................... 22
Yebra v. State,
No. 08-12-00201-CR, 2014 Tex. App. LEXIS 10875 (Tex. App.—El Paso Sept.
30, 2014, no pet.) (not designated for publication) ................................................. 30
vi
Statutes
Tex. Code Crim. Proc. Ann. art. 36.14 ....................................................................38
Tex. Code Crim. Proc. Ann. art. 36.19 ....................................................................37
Tex. Code Crim. Proc. Ann. art. 37.09 ............................................................. 36, 37
Tex. Code Crim. Proc. Ann. art. 38.36(a) ......................................................... 25, 31
Tex. Penal Code Ann. § 6.03 (a-b) .................................................................... 31-32
Tex. Penal Code Ann. § 6.03(c)...............................................................................40
Tex. Penal Code Ann. § 12.31(a)(2) ........................................................................44
Tex. Penal Code Ann. § 19.04(a).............................................................................40
Rules
Tex. R. App. P. 43.2(b) ............................................................................................44
Tex. R. App. P. 44.2(b) ..................................................................................... 33, 35
Tex. R. Evid. 401 .....................................................................................................23
Tex. R. Evid. 403 ........................................................................................ 24, 25, 31
Tex. R. Evid. 702 .............................................................................................. 24, 26
vii
TO THE HONORABLE COURT OF APPEALS:
The State of Texas submits this brief in response to the brief of Appellant,
William Gerard Palmer.
STATEMENT OF THE CASE
Appellant entered a plea of not guilty to the offense of capital murder.
(RR4:6). The jury found him guilty and the Court sentenced him to confinement
for life without the possibility of parole in the Texas Department of Criminal
Justice. (CR:500-04; RR8:155).
STATEMENT OF FACTS
Appellant stabbed to death his wife, Donya, and his in-laws, Mary and
Raymond ―Ray‖ Davis.
The Palmer Family
Appellant was married to Donya Palmer. (RR4:64). They had three
children: Brianna, Danielle, and Brett. (RR4:57-58). Donya‘s father is Ray
Davis. (RR4:53-54; SX5). Mary Davis is her stepmother. (RR4:52-56). Kelley
Davis Dennehy is her half-sister. (RR4:52-56; SX5).
Appellant and Donya‘s marriage was ―okay at first, but the last couple of
years it was a lot of arguing and they weren‘t really getting along.‖ (RR4:214).
They no longer showed affection toward each other. (RR5:44-45). Donya
suffered from Lupus, an autoimmune disease, which causes tremendous fatigue.
(RR4:214; RR5:41; RR6:15). Appellant did not like the fact that Donya stayed in
1
bed and missed a lot of family gatherings and events. (RR4:214; RR5:5).
Appellant would yell and cuss at Donya. (RR4:215). At times, he would ―raise his
voice, saying, Oh, you‘re so worthless. Get out of bed. You‘re being lazy.‖
(RR5:58).
Donya was ―hooked on‖ an online social networking game, Mafia Wars.
(RR5:41). She spent a great deal of time playing the game on her computer.
(RR5:22-23). ―She would stay up to like 3:00 or 4:00 in the morning playing
Mafia Wars, knowing she had to be up at 5:00 in the morning for work.‖
(RR6:15).
A few weeks before the murders, Appellant told the children that Donya had
decided that they should ―go their separate ways[.]‖ (RR4:219). Appellant moved
out of the house and into a motel for a week. (RR4:219). He ―was very upset . . .
he was really heartbroken.‖ (RR4:220). He wanted to reconcile with Donya.
(RR4:220-21). Appellant continued to function normally. (RR4:221). He
maintained his routine of going to church and to work. (RR4:221-22). There was
no indication that Appellant was experiencing any mental issues. (RR4:223).
At some point, Donya left and travelled to Arkansas to spend time with
2
another man.1 (RR4:223, 228). She was gone for about a week. (RR4:223).
Danielle became angry with her mother. She testified:
I was mad because my dad had told us, the kids, that my mom had left
us and she was never coming back and that she took the dog and she
maxed out the bank account and left him with no money for us to start
over. He basically just made up a lot of lies to us and just basically
told us that she was never coming back, that she left us for good.
(RR4:224). Danielle refused Appellant‘s request that she text Donya that if
Appellant got remarried that the new woman would be her new mother.
(RR4:225-26). It was about this time that Appellant started saying ―that [Donya]
was surrounded by demons and that it was because she played Mafia Wars too
much.‖ (RR5:30). Danielle testified that ―[Appellant] wanted us to get on his
side so we could stay with him [after the separation]. So, basically, he was saying
stuff so we would want to be with him and not her.‖ (RR5:30).
Donya returned from Arkansas on Wednesday, January 25th. (RR4:63-64,
227). She planned to stay at the Davis house and wanted Danielle to pick up their
dog, Rebel. (RR4:63-64,227). Before going to pick up the dog, Danielle,
Brianna, Brett and Appellant went to church. (RR4:228). Appellant ―went to man
church, he was by himself.‖ (RR4:229). The kids attended services for teenagers.
(RR4:229). Afterward, Appellant said ―that God really spoke to him tonight and
1
Donya told Danielle that she had gone to Arkansas to stay with her friend, Jacqueline.
(RR5:11-12). In fact, she had gone to see a man.
3
told him what he needed to do.‖ (RR4:229). The family went home and then later
out to the Davis house to see Donya. (RR4:64, 69, 231; RR5:51).
At the Davis house, Danielle spent some time with Donya. (RR4:232). She
apologized for sending Donya mean text messages. (RR4:232; RR5:12). She
learned that, contrary to what Appellant had told her, Donya had not maxed out
their bank account, leaving them without anything. (RR4:232). Donya told Brett
that she would ―do whatever it takes to make this work.‖ (RR5:53). Kelley
described the visit as follows:
It was kind of awkward between the kids and Donya, just because I
think - - their own confusion. They didn‘t understand what was going
on. And Donya was just - - she was very quiet, very quiet. And he
came over, when he got the dog in hopes, you know, that he wanted to
make the marriage work. He came over and told everybody he loved
them and hugged them before he left or whatnot. And he told Donya
that he loved her and then she just looked at me and rolled her eyes.
(RR4:69-70). Appellant and the kids stayed for about thirty minutes then left.
(RR4:71). When Appellant and the kids were getting ready to leave, Appellant
was upset and kept asking Mary whether she had talked to Donya and whether
Donya was done with their marriage. (RR4:233). Mary told him that she didn‘t
know. (RR4:233).
Appellant was quiet on the drive home to Sachse. (RR4:234). He behaved
normally. (RR4:234-25; RR5:32, 53).
4
The Murders
The next morning, back at the Davis house, Kelley got up at about 6 a.m.
(RR4:74). She woke Donya to get ready for work. (RR4:74-75). Donya went
outside to her car, a Durango, to get her clothes. (RR4:75). Kelley heard
screaming and walked into the living room to see what was going on. (RR4:75).
―[The screaming] was coming from the front of the house and as I was walking
into the living room, Donya came running through the front door with blood on her
and [Appellant] was chasing her with a knife.‖ (RR4:75). Appellant was dressed
in a black sweatshirt, jeans, black weightlifting gloves and a black toboggan.
(RR4:75, 101). Donya was screaming for help. (RR4:75). Appellant was
stabbing her. (RR4:78).
Kelley called out for her father. (RR4:76). Ray tried to make his way to
Kelley, but Appellant began stabbing him. (RR4:76). Ray fell to the floor,
asking Appellant why he was stabbing him. (RR4:76). Appellant responded, ―I‘m
sorry, I have to. Your‘re here.‖ (RR4:76). Kelley ran away, cutting her arm on
Appellant‘s knife as she fled. (RR4:78, 80). As Kelley ran upstairs to her
daughter, Mary was on her way downstairs. (RR4:76, 79). Kelley and Jaiden hid
in a closet. (RR4:77). She testified:
I put me and my daughter in the closet and put her behind my dad‘s
clothes. And I could hear a lot of thudding and banging. And I know
where the closet is downstairs, below the closet from the front door is
where the end of stairs end and I heard a very loud thud and I knew
5
that that was my stepmother, that he had gotten her. And he - - I
heard him opening up the door, asking where we were. I remember
hearing the bedroom door hitting the wall up against - - in the closet.
The other side was where the door was.
And I heard him running through the bathroom, opening up the
shower curtain and looking into the other bedroom and stuff. And
then I heard him come back down and he was like, Shit. Like, he
couldn‘t find us. Then he went back downstairs. And after he went
back downstairs, I carefully opened up the closet door and went and
got my step mom‘s cell phone off of her dresser and went back in the
closet and called 911.
(RR4:77). Kelley stayed on the phone with the 911 dispatcher until police arrived.
(RR4:85-86; SX13).
Senior Corporal Alyssa Wadas was dispatched to ―a cutting call[.]‖
(RR4:21). ―[T]hree people had been stabbed and . . . the caller was hiding in a
closet with a small child.‖ (RR4:21). When Corporal Wadas and her partner,
Officer Brian Madalinski, arrived and pulled into the driveway, she observed two
vehicles parked outside the house. (RR4:22, 24). The driver‘s side door of one
of the vehicles, a red Durango, was open. (RR4:24-25). The officers approached
and entered the house. They found three dead bodies. (RR4:26). All three had
been stabbed. (RR4:26). The officers searched the house, but did not locate the
suspect. (RR4:31).
Senior Corporal Lance Raymond found Kelley hiding upstairs with her
daughter, Jaiden. (RR4:32, 55, 113; SX79-80). Kelley told the officers that ―her
brother-in-law had been at the house and he had stabbed his wife.‖ (RR4:36).
6
Kelley described the knife, ―that it would look something like a filet knife out of a
kitchen.‖ (RR4:36). Officer Raymond conveyed the information Kelley
provided to dispatch. (RR4:117).
A short time later, Deployment Officer Ubaldo Lopez was assigned to
conduct surveillance on Appellant‘s home in Sachse. (RR4:140-41). Officer
Lopez parked about a half a block away, got out and ―[got] eyes on the actual
physical address of it.‖ (RR4:147). As he walked back to his vehicle, he ―heard an
engine start and I saw that the lights came on, on the van that we were looking
for.‖ (RR4:147). He followed the van to a nearby fast-food restaurant, Taco
Bueno. (RR4:147-48; SX83-84, 97-98). When Appellant pulled into the drive-
through, Officer Lopez drove to the parking lot of the bank where the rest of his
team was planning Appellant‘s arrest. (RR4:151). He updated them regarding
Appellant‘s location. (RR4:151). Appellant was arrested as he left the drive-
through of the Taco Bueno. (RR4:151-52, 163).
Officer Gilbert Padilla testified that there was nothing unusual about
Appellant‘s physical or mental affect when he arrested him at the Taco Bueno.
(RR4:174, 176). Officer Padilla did, however, observe that Appellant had tape
around some of his fingers and that blood was coming out from under the tape.
(RR4:176-77).
7
At police headquarters, Officer Michael Gonzalez photographed Appellant
and collected his clothing. (RR4:191, 194, 199-201; SX207). Officer Gonzalez
testified that Appellant ―had a red substance on his right little finger. [He] thought
it was blood. [He] noticed blood on the fingernail of his left hand under by the
electrical tape.‖ (RR4:201-02; SX155-62). His injuries ―appeared pretty major . .
. like they were very painful;‖ Appellant started bleeding when he removed the
tape from his fingers. (RR4:202).
Officer Gonzalez testified that he had no problem communicating with
Appellant. (RR4:205-06). He followed directions and appeared to understand
what the officer was talking about. (RR4:206). ―Everything seemed normal.‖
(RR4:206). Officer Gonzalez had no concern about Appellant‘s mental state.
(RR4:207).
Detective Dan Town searched Appellant‘s van but did not locate the murder
weapon or any bloody clothing. (RR5:90; SX83-88). The interior of the van did
have a powder cleaner that appeared to have been freshly sprinkled inside.
(RR5:86).
Lisa Routh, a registered nurse, evaluated Appellant when he was brought to
the Lew Sterrett Jail following his arrest. (RR5:175, 177, 183-85). At the time,
Appellant ―was just rocking back and forth. He was crying. He couldn‘t believe
8
he had done it. He didn‘t know why he had done it.‖ (RR5:185). Appellant also
told Routh about the murders:
He just talked to me about his father-in-law. He was upset because
his father-in-law - - he didn‘t know why he had killed him. He said,
he just got in his business - - he‘d got in their business and it was just
- - I only knew - - at that point, I only knew it was his father-in-law
that he had killed.
I knew he had come in with - - they told me it was murder. And all he
would talk about was his father-in-law and that he loved the man and
he didn‘t know - -
(RR5:202).
Routh did not observe Appellant to be under the influence of drugs or
alcohol. (RR5:188). He did not appear manic or paranoid. (RR5:192). Appellant
reported that he suffered from depression and attention deficit disorder.
(RR5:188). He reported that the events of the day were repeating in his head.
(RR5:193-94). Routh believed that ―[l]ike the event, he couldn‘t get passed it. He
was reliving it.‖ (RR5:194). She did not believe he was psychotic. (RR5:194).
Routh testified that her encounter with Appellant stood out in her mind:
Like, the one, They were out to get me. He was rocking back and
forth and he said - - he needed to know - - he had just left and he had
went to the Taco Bueno to get him a breakfast burrito because he
liked them and he knew it would be quite a while before he got
another one and they just swarmed him.
(RR5:200-01). She said, ―The reason I remember [her encounter with Appellant]
was because it was so bazaar [sic]. Most people don‘t rock back and forth crying
and then talk about eating a burrito.‖ (RR5:207).
9
Dr. Joni McClain testified that Mary Davis‘ cause of death was ―[m]ultiple
sharp force injury.‖ (RR5:158). Dr. Jill Urban testified that Ray Davis‘ ―died as a
result of multiple, sharp force injuries.‖ (RR5:162, 164-71; SX178-84, 187-200).
Ron Krugjohann, a neighbor, testified that he was awake early in the
morning on the day of the murders. (RR4:132). At about 5:30 a.m., Krugjohann
looked outside his front window and noticed that ―[a]cross the street directly in
front of [his] house was a van that [he] did not recognize.‖ (RR4:134, 136; SX83-
84). The van was gone by 6:30 a.m. (RR4:136).
Appellant’s Case
Brianna testified that during the week before the murders, when Donya had
left, Appellant had trouble sleeping. (RR6:23-25). ―He would stay up all hours of
the night.‖ (RR6:24). Brianna ―could just tell he hadn‘t been [sleeping].‖
(RR6:25).
When the family went to church2, Brianna went with Appellant while
Danielle and Brett attended teen services. (RR6:30). During the service, Brianna
and Appellant went to the altar to be prayed for; congregants placed their hands on
them and prayed in tongues over them. (RR6:28-30). Brianna testified about
Appellant‘s attitude after church:
2
At one point, Brianna testified that this occurred on the Wednesday night immediately
preceding the Thursday morning murders. Later, she testified that this occurred on the Sunday
before the murders. (RR6:33).
10
He was excited. You know, he was telling all of our family that we
went to church and that everything is going to be okay and that God‘s
going to work all this - - it‘s all going to work out.
(RR6:31).
After church on January 25th, Brianna went to a friend‘s house, returning
home between midnight and 12:30 a.m. (RR6:42-43). Brianna ―went in my
dad‘s room and we talked for a little bit and watched some TV and then I passed
out.‖ (RR6:43). While they watched television, Appellant dozed. (RR6:43).
Brianna woke up at 4 a.m. to use the bathroom and Appellant was not in bed.
(RR6:45). She assumed he was downstairs eating. (RR6:45). The next thing she
remembered was Appellant turning on the light and telling Brianna to wake up and
get Brett ready for school. (RR6:45). He asked her to take Brett to school.
(RR6:45). When Brianna asked Appellant why he couldn‘t take Brett to school, he
told her that he had an emergency at work, then ran and got into the shower.
(RR6:45). At some point, Brianna heard Appellant scream that he cut himself.
(RR6:45). He came out of the bathroom with a towel around his hand; he was
bleeding heavily. (RR6:46). He treated his cut with hydrogen peroxide, wrapped
tape around it and left for work. (RR6:46).
Dr. Antoinette McGarrahan, a psychologist specializing in forensic
psychology and neuropsychology, performed a neuropsychological evaluation of
Appellant. (RR6:105, 109). Dr. McGarrahan determined that Appellant was of
11
average intellectual ability. (RR6:115). Although he had no learning disabilities,
he does experience ―problems in the area of planning, organization, problem
solving, [and] coping.‖ (RR6:116). Appellant has low self-esteem and ―sees his
life as so negative and sees himself as so severely impaired that it raised a ‗cry for
help‘ response.‖ (RR6:117-18). He has ―significant difficulties‖ in his
relationships with others. (RR6:118). He becomes panicked or fearful if he feels
that he is going to be abandoned or rejected by people with whom he has
significant relationships. (RR6:119). Dr. McGarrahan also reported that Appellant
―has a long history of impulsivity . . . [He] is somebody who for many, many,
years, most of his life, has acted without thinking, without thinking about the
consequences and without being able to plan and prepare very well.‖ (RR6:118).
Dr. McGarrahan conceded that while Appellant may have experienced some
impairments, he was able to own and operate a business. (RR6:132).
Appellant has a history of major depressive disorder and attention deficit
hyperactivity disorder. (RR6:119-20). He has a generalized anxiety disorder.
(RR6:120). He also exhibits ―some borderline and dependent personality traits
and those have caused him significant difficulties in his life.‖ (RR6:120). An
MRI of his brain showed that Appellant ―had chronic microvascular ischemic
changes[,]‖ meaning that he had problems with the arteries supplying oxygen to his
12
brain. (RR6:125). Microvascular changes are ―fairly common[ly]‖ seen in MRIs
of 50-year-old men. (RR6:148).
Dr. Jonathan Lipman, a neuropharmacologist, testified regarding the
medications Appellant was taking at the time he committed the instant murders:
Lexapro (an antidepressant); Adderral (an amphetamine) and Lamictal (an
anticonvulsant also used to treat bipolar disorder). (RR6:153, 182-83). Lamictal
was first prescribed for Appellant on January 4, a few weeks before the murders.
(RR6:185). It was discontinued on January 19th because Appellant ―was
presenting with [an] itch[,]‖ a potentially life-threatening condition associated with
anticonvulsant drugs. (RR6:186). That same day, Appellant‘s dosage of Lexapro
was increased. (RR6:186). On the 23rd, Appellant was prescribed Trileptal,
another anticonvulsant. (RR6:188-90).
State’s Case-in-Rebuttal
Dr. Mitchell Dunn, a psychiatrist, testified that he interviewed Appellant on
February 22, 2014. (RR8:17, 23). Dr. Dunn testified that Appellant‘s 30
milligram dose of Lexapro, while it was high, was ―not an irrational dose.‖
(RR8:28-29). Appellant‘s 60 milligram dose of Adderral is not uncommon.
(RR8:29). The Lamictal and Trileptal were both prescribed at starting dosages,
lower than what would be considered therapeutic. (RR8:29). Dr. Dunn testified
that he ―didn‘t see any evidence that the medications were having an adverse effect
13
on [Appellant]‖ at the time of the instant offense. (RR8:44-45). The following
exchange took place:
[Prosecutor]: And, again, on what do you base that opinion?
[Dr. Dunn]: Looking at what we know about his behavior and his
statements before, during and after. An adverse medication effect
doesn‘t just pop up and then go away. It‘s usually manifested by
some type of physical problem, not simply by a psychosis or bazaar
[sic], delusional belief. That simply is not something that‘s usually
seen in psychiatry.
We have information regarding the texts that he was sending in the
hours just prior to this offense and we also have information regarding
what he was saying and what his behavior was like. His texts were
very consistent with the texts that he had been sending to Donya - - I
just seen [sic] the ones that she received - - were very consistent in
terms of coherence, logic, normal requests, nothing that seemed to be
disorganized.
If somebody is having to text, you know, that‘s - - I mean, we all
fumble when we‘re texting, but I didn‘t even see mistakes in the
texting. So, that shows some degree of his capacity, not just for his
cognitive ability, but also for his physical abilities just prior to that
time.
Also we know from the records, from testimony, from interviews, that
his behavior before the offense and just after the offense appeared to
be, you know, well organized, structured and designed to try anything
to create a situation in which it appeared as if he might not have been
involved in the offense. That type of organized behavior, you know,
the evidence that he was trying to make other people, like family
members, believe that he had been there the whole time or that he had
hurt himself in some other way, is not evidence of anybody that‘s had
a significant problem in terms of their medication. It appears to be
somebody who was thinking clearly and while maybe trying to avoid
criminal prosecution, certainly not having problems in terms of their
cognitive abilities or behavioral issues.
14
(RR8:46-48).
Dr. Dunn agreed with Dr. McGarrahan‘s assessment that Appellant suffers
from depression and attention deficit disorder. (RR8:37-38). Although he agreed
that Appellant suffers from anxiety, he did not agree that Appellant suffered from
generalized anxiety. (RR8:38). Dr. Dunn also agreed that Appellant has a
dependent personality. (RR8:38). With regard to the claim that Appellant was
psychotic at the time he committed the instant offense, Dr. Dunn testified that he
―[had] no evidence that Mr. Palmer was in a psychotic state at the time of the
offense.‖ (RR8:48). As to the claim that Appellant went to the Davis house and
committed the instant offense as part of an effort to rid Donya of demons, the
following exchange took place:
[Prosecutor]: And with respect to him - - well, let me move on. Let
me ask you, there‘s been a lot of talk in this trial about demons: Did
he report - - in your interview, did Mr. Palmer report any
hallucinations or delusions, anything like that?
[Dr. Dunn]: I guess, it depends on how you understand this talk about
demons.
[Prosecutor]: From your perspective and part of your assessment, can
you explain to that, how that would factor in here, this talk of
demons?
[Dr. Dunn]: Certainly. Mr. Palmer told me that he had discussed
this possibility that Donya might have been afflicted by demons in
some way and that‘s why she perhaps wanted to get the divorce, that
she had been playing this Mafia Wars game and that he had heard that
perhaps this could be some type of entry of portal to sin or portal to
her soul and had discussed this with the daughter of the church [sic]
15
they went to the Wednesday before this event occurred and that she
said, Yes, that‘s certainly a possibility. And so this was a belief that
was endorsed by the pastor‘s daughter and he felt, you know that he
could kind of accept that that was a possibility.
When Dr. Lipman testified about the psychosis, he talked about this
belief in demons. It sounds from, at least from Mr. Palmer‘s
description, this was something that the Pentecostal church kind of
endorsed. If somebody was doing something wrong, that maybe they
were afflicted by demons in some way and you could pray them out.
In fact, he said that the minister‘s daughter said, You just need to pray
really, really, hard for her.
A delusional belief is a false, fixed, belief. It‘s something that you
believe that simply isn‘t true. Psychosis - - so there‘s no psychotic
illness in which somebody - - massive people believe something that‘s
not true. So, in this kind of situation, if indeed the church did believe
that you did something wrong that that meant that you were afflicted
by demons, I wouldn‘t consider that psychosis, but rather a kind of
more extreme religious belief.
I think we‘ve all - - you know, even if we don‘t belong to a
Pentecostal religion, we have seen perhaps on TV, ministers who will
decree this kind of thing, that if you - - if there‘s somebody who has
done something bad or you‘ve done something bad, that‘s the demon
that‘s within you. That doesn‘t mean that there‘s 3 million people
watching this church broadcast that believe - - that are all psychotic at
the same time, it‘s just some kind of a more extreme religious belief.
...
[Prosecutor]: Okay. And with respect to his assertions about, I went
there to address the demons, in your assessment were there things
factually about this case and from the evidence that are contrary, they
don‘t square with his assertion to us?
[Dr. Dunn]: Yes.
[Prosecutor]: What are those, sir?
16
[Dr. Dunn]: Well, if he had gone on Wednesday and had determined
from speaking to the pastor‘s daughter that there were these demons
that were in Donya in some way - - he saw her that night. I mean, if
there was something he wanted to do to get rid of the demons, that
would have been the first time that he could have done so, but he was
with family, there were children there, there were other witnesses. He
was entirely normal in that interaction from what was described. I
would think that if he had the psychotic belief from that Wednesday
afternoon on, then Wednesday night, the first time he saw her, might
have been his first opportunity to act.
The other thing was that he never, at any time, suggested in the
interaction with the church that his in-laws were also some how [sic]
afflicted by these demons nor did they indicate to him that he had to
kill the demons. He told me that they simply said that he had to pray
for her and try to find out the demons‘ name and if they found out
their names, then perhaps he could pray and get them out of her more
rapidly. The idea that he would have to kill them and then have to kill
his in-laws because they got in the way somehow and then would
have to go looking for a witness who wasn‘t afflicted in any way,
shape or form by these demons, is not consistent with psychosis,
rather with something entirely different.
(RR8:51-54).
Dr. Dunn testified that he received the records prepared by Nurse Routh
when Appellant was initially brought to jail. (RR8:45). Appellant‘s blood
pressure was ―somewhat elevated.‖ (RR8:45). Other than that, Appellant‘s vital
signs were normal. (RR8:46).
SUMMARY OF THE ARGUMENT
Issue Nos. One and Two: The trial court properly excluded the testimony of
Dr. Kristi Compton. Dr. Compton did not have an opinion to offer regarding
17
Appellant‘s intent as it pertains to the capital murder of Mary and Ray Davis.
Even assuming Dr. Compton had an opinion to offer, the probative value of the
proffered evidence was substantially outweighed by the danger of unfair prejudice,
confusion of the issues, misleading the jury, or by considerations of undue delay,
or needless presentation of cumulative evidence. Alternatively, any alleged error is
harmless.
Issue No. Three: Appellant failed to preserve for this Court‘s review his
claim that he was entitled to an instruction in the charge regarding the lesser-
included offense of manslaughter. In any event, while manslaughter is a lesser-
included offense of capital murder, there is no evidence in the record that would
have permitted the jury to reach a rational conclusion that if guilty, Appellant was
guilty only of recklessly causing Mary‘s and Ray‘s death.
State’s Cross-Point: The judgment in this case should be modified or
reformed. The judgment reflects that Appellant was sentenced to life in prison. In
fact, Appellant was sentenced to life in prison without the possibility of parole.
ARGUMENT
STATE’S RESPONSE TO ISSUE NOS. ONE AND TWO: THE TRIAL COURT PROPERLY
EXCLUDED THE TESTIMONY OF DR. KRISTI COMPTON. ALTERNATIVELY, ANY
ALLEGED ERROR IS HARMLESS.
Appellant contends that the trial court erred in excluding the testimony of
Dr. Kristi Compton regarding his diminished capacity to form the requisite intent
18
to commit the offense of capital murder. Appellant contends that he was deprived
of relevant evidence and that he was deprived of a viable defensive theory.
Appellant‘s contentions lack merit and should be overruled.
Pertinent Facts
During a sub rosa hearing in the guilt/innocence phase of trial, Appellant
proffered the testimony of clinical and forensic psychologist Dr. Kristi Compton
regarding Appellant‘s sanity and his capacity to form the requisite intent to commit
capital murder at the time he committed the instant offense. (RR5:258-59). Dr.
Compton conducted four diagnostic interviews with Appellant and administered
various psychological tests. (RR5:260).
Dr. Compton testified that she could not render an opinion regarding
Appellant‘s sanity. (RR5:261-63). The following exchange took place:
[Defense Counsel]: Okay. And with respect to insanity, are you able
to give an opinion as to whether or not you believe him to be insane?
[Dr. Compton]: I cannot.
[Defense Counsel]: Why is that?
[Dr. Compton]: I was lacking information. There was information
that‘s lacking from the time period of about 9:00 p.m. on that
Wednesday until 6:00 a.m. in the morning that does not allow me to
form a full opinion on whether he was insane at the time of the
offense.
(RR5:261). She ―[had] very limited information about what his mental state was
during that time period.‖ (RR5:262). Dr. Compton was then asked for her opinion
19
regarding Appellant‘s state of mind at the time he committed the instant offense.
The following exchange took place:
[Defense Counsel]: And lastly, based upon all of your interviews,
your testing, your documents that you have reviewed, have you
formed an opinion as to his state of mind at the time of the
commission of the offenses to form the requisite mental intent?
[Dr. Compton]: I have formed an opinion - - a probability of his
mental state at the time of the offense. Whether it‘s a requisite intent,
that one, there is both factors for that he could not and factors that he
could. So it kind of goes both ways.
[Defense Counsel]: Okay. Do you believe that he had a diminished
capacity based upon his - - how he presented?
[Dr. Compton]: Yes. Based upon the information that I have
available to me, I believe he was in a diminished mental state at the
time of the killing.
[Defense Counsel]: And may well not have been able to form the
requisite intent - -
[Dr. Compton]: He may not - -
[Defense Counsel]: - - you just can‘t say that for sure?
[Dr. Compton]: Pardon me?
[Defense Counsel]: You just can‘t say that for sure?
[Dr. Compton]: I cannot, no.
(RR5:261-62). Ultimately, Dr. Compton testified that she could not say for sure
whether Appellant did or did not have the requisite intent to commit capital
murder. (RR5:261-62).
20
Dr. Compton testified that Appellant gave her ―his version of [his] mental
state.‖ (RR5:265). She testified that there were ―some factors that corroborate it
and some factors that do not.‖ (RR5:265). Appellant told Dr. Compton the
following:
Specifically, he told me that he had gone to church. He began to
believe that there was demonic oppression and this was the cause of
his wife leaving him and being with the family. And as the days went
on, he began talking to family and talking to the church members and
he came to believe that this was a demonic or spiritual oppression and
he had to rid his wife of the demonic forces.
...
He did not tell me [that he went to the Davis house to rid his wife of
demonic forces] specifically. That was his explanation for what
occurred. He told me that he woke up about 3:00, 4:00 in the
morning, was at a well lit Laundromat and he went to the Davis‘
house, stayed in his van and was praying and calling out the names of
the demons. Purportedly, the church had told him he had to call out
the names of the demons to get them to go away. And that is his last
recollection.
(RR5:267).
The prosecutor asked Dr. Compton for her understanding of the legal
definition of intent. (RR5:268). Dr. Compton described intent as when ―you have
the mental capacity and the cognitive capacity to form the intent to commit
whatever act you‘re going to commit, that there‘s nothing impairing your ability to
do so.‖ (RR5:268).
21
Dr. Compton testified that there was a ―probability‖ that Appellant went to
the Davis house in an effort to rid Donya of demonic possession. (RR5:268).
When asked specifically whether Appellant intended to kill, Dr. Compton testified
that she did not know. (RR5:269). She could testify to factors that would indicate
that he was in a diminished mental state, but she could not ethically express an
opinion as to whether Appellant intended to kill the complainants. (RR5:269).
The Court ruled that Dr. Compton‘s testimony would not help the jury.
(RR5:271). The trial court stated that her testimony ―would probably confuse [the
jury] more than anything and muddy up things because she doesn‘t have - - she
didn‘t say he‘s insane, she didn‘t say he has diminished capacity[.]‖ (RR5:271).
Later, during a hearing on Appellant‘s bill of review, Dr. Compton testified
that she was prepared to testify regarding the probability that Appellant lacked the
requisite mental capacity to commit capital murder. (RR6:5). She identified the
various factors that she used to form her opinion. (RR6:6-9). Dr. Compton
testified that ―[t]hose are the things that caused me to pause. There is a likelihood
or probability that he was in a diminished mental state.‖ (RR6:9-10).
Standard of Review
The trial court‘s decision to allow a witness to testify as an expert will not be
disturbed on appeal absent a clear abuse of discretion. See Wyatt v. State,

23 S.W.3d 18

, 27 (Tex. Crim. App. 2000). ―An abuse of discretion is shown only
22
when the trial court's ruling lies outside the ‗zone of reasonable disagreement.‘‖
Hernandez v. State,

438 S.W.3d 876

, 878 (Tex. App.—Texarkana 2014, pet. ref‘d)
(quoting Montgomery v. State,

810 S.W.2d 372

, 391 (Tex. Crim. App. 1990) (op.
on reh‘g)).   If the trial judge‘s decision is correct on any theory of law applicable
to the case, it will be sustained. See Romero v. State,

800 S.W.2d 539

, 543 (Tex.
Crim. App. 1990).
Applicable Law
Right to Present a Defense
The Sixth and Fourteenth Amendments to the United States Constitution
guarantee a defendant a meaningful opportunity to present a complete defense.
Crane v. Kentucky,

476 U.S. 683

, 690 (1986). Even so, trial courts possess wide
latitude to exclude evidence, which is only marginally relevant or poses an undue
risk of confusion of the issues. See

id. at 689-90.

Rule 401: Relevant Evidence
Relevant evidence is defined as ―evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.‖ Tex. R. Evid.
401.
23
Rule 403: Probative v. Prejudicial
Rule 403 provides that relevant evidence may be excluded if:
―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.    When making a determination under Rule 403, an appellate
court considers the following factors: (1) the probative value of the evidence; (2)
the potential to impress the jury in some irrational, yet indelible way; (3) the time
needed to develop the evidence; and (4) the proponent‘s need for the evidence.
Erazo v. State,

144 S.W.3d 487

, 489 (Tex. Crim. App. 2004) (citing

Montgomery, 810 S.W.2d at 389-390

).
Rule 702: Expert Testimony
Rule 702 of the Texas Rules of Evidence provides that a witness qualified as
an expert may testify in the form of an opinion or otherwise if her ―scientific,
technical, or other specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue.‖ 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 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).
24
Article 38.36(a)
Article 38.36(a) of the Texas Code of Criminal Procedure provides as
follows:
In all prosecutions for murder, the state or the defendant shall be
permitted to offer testimony as to all relevant facts and circumstances
surrounding the killing and the previous relationship existing
between the accused and the deceased, together with all relevant facts
and circumstances going to show the condition of the mind of the
accused at the time of the offense.
Tex. Code Crim. Proc. Ann. art. 38.36(a).       Evidence admissible under article
38.36(a) may be excluded under Rule 403 if the probative value of the evidence 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. See Tex. R. Evid. 403.
Diminished Capacity
The Texas legislature has not enacted any affirmative defenses, other than
insanity, based on mental disease, defect, or abnormality. Ruffin v. State,

270 S.W.3d 586

, 593 (Tex. Crim. App. 2008). Thus, they do not exist in Texas.

Id. A defendant

may, however, introduce evidence of his diminished capacity
(mental illness less than insanity) if it negates his culpable mental state. See Mays
v. State,

318 S.W.3d 368

, 380-81 (Tex. Crim. App. 2010); Jackson v. State,

160 S.W.3d 568

, 573-74 (Tex. Crim. App. 2005); see also Penry v. State,

903 S.W.2d 715

, 768 (Tex. Crim. App. 1995) (Maloney, J., concurring) (distinguishing
25
diminished capacity as an affirmative defense from evidence of diminished
capacity, which negates mental state). Generalized evidence of the defendant‘s
mental health history, which is not related to the culpable mental state, is
inadmissible.   See

Ruffin, 270 S.W.3d at 596

fn. 32 (citing United States v.
Cameron,

907 F.2d 1051

, 1067-68 (11th Cir. 1990)); see also Lizcano v. State, AP-
75,879, 2010 Tex. Crim. App. Unpub. LEXIS 270, at *64-65 (Tex. Crim. App.
May 5, 2010) (not designated for publication) (finding proffered evidence did not
negate Lizcano‘s mens rea; it merely suggested general limitations in cognitive
ability, intoxication at the time of the offense, and general deficits in adaptive
functioning). Evidence that does negate the culpable mental state may still be
excluded under Rule 403. See

Jackson, 160 S.W.3d at 574

.
Application of Law to Facts
The trial court properly excluded Dr. Compton‘s testimony regarding
Appellant‘s ability to form the requisite intent to commit capital murder. As a
preliminary matter, Dr. Compton was unable to render an expert opinion on the
very issue for which her testimony was proffered: whether, at the time of the
offense, Appellant had the requisite intent to commit capital murder. As such,
she would not be able to ―assist the trier of fact to understand the evidence or to
determine a fact in issue[.]‖ Tex. R. Evid. 702. When asked whether she formed
26
an opinion as to Appellant‘s ―state of mind at the time of the commission of the
offenses to form the requisite mental intent[,]‖ Dr. Compton testified as follows:
I have formed an opinion - - a probability of his mental state at the
time of the offense. Whether it‘s a requisite intent, that one, there is
both factors for that he could not and factors that he could. So it kind
of goes both ways on that.
(RR5:261). While she believed that Appellant was in a ―diminished mental state,‖
she was apparently conflicted as to whether that diminished mental state affected
his ability to form the intent to commit capital murder. (RR5:261-62). On cross-
examination, the prosecutor asked Dr. Compton very specifically whether she was
going to express an opinion to the jury ―as to whether or not [Appellant] intended
to kill these people?‖ (RR5:269). Dr. Compton responded, ―I cannot.‖
(RR5:269). She summarized her anticipated testimony as follows:
I think what I‘ve been asked to provide is, does he have a mental
disease or defect? Yeah. What were factors leading up to the
offense? What were some of the factors that would indicate he was in
a diminished mental state? And there are also factors that would
indicate that he was not, specifically, in a diminished mental state.
Ethically, I cannot say one way or the other if he formed the intent to
kill Mr. and Mrs. Davis and his wife.
(RR5:269). Given this testimony, the trial court properly excluded Dr. Compton‘s
testimony. See Teel v. State, No. 02-09-00150-CR, 2010 Tex. App. LEXIS 9391,
at *5-6 (Tex. App.—Fort Worth, Nov. 24. 2010, pet. ref‘d) (not designated for
publication) (finding no abuse of discretion in excluding expert testimony where
27
the expert stated that he had no opinion regarding Teel‘s sanity or mens rea at the
time of the offense); Wiley v. State, No. 09-07-00436-CR, 2009 Tex. App. LEXIS
225, at *6-7 (Tex. App.—Beaumont Jan. 14, 2009, pet. ref‘d) (not designated for
publication) (finding no abuse of discretion in excluding psychiatrist‘s testimony
where witness could not offer an opinion as to Wiley‘s sanity at the time of the
offense).
Even assuming, arguendo, that Dr. Compton had an expert opinion to offer
regarding Appellant‘s diminished capacity to form the requisite intent, her
testimony was nevertheless irrelevant as it failed to negate Appellant‘s intent as to
the murder of the named complainants, Mary and Ray Davis. The indictment in
this case provides that on or about January 26, 2012, Appellant:
Did unlawfully then and there intentionally and knowingly cause the
death of an individual, to-wit: RAYMOND DAVIS, by STABBING
AND BY CUTTING DECEASED WITH A KINFE, A DEADLY
WEAPON, AND A BOX CUTTER, A DEADLY WEAPON, AND A
BLADED OBJECT, A DEADLY WEAPON, and during the same
criminal transaction said defendant did then and there intentionally
and knowingly cause the death of another individual, to-wit: MARY
DAVIS, by STABBING AND BY CUTTING DECEASED WITH A
KNIFE, A DEADLY WEAPON, AND A BOX CUTTER, A
DEADLY WEAPON, AND A BLADED OBJECT, A DEADLY
WEAPON.
28
(CR:17). Dr. Compton gave no testimony regarding Appellant‘s ability to form
the requisite intent to intentionally or knowingly cause the death of Mary Davis.3
Dr. Compton gave no testimony regarding Appellant‘s ability to form the requisite
intent to intentionally or knowingly cause the death of Ray Davis. Dr. Compton‘s
testimony addressed Appellant‘s state of mind4 as it related to the murder of his
wife Donya. While it is true that, at trial, evidence of Donya‘s murder was
offered to provide context regarding the instant capital murder – Donya was the
reason Appellant went to the Davis house that morning – Appellant was not on
trial for her murder. He was on trial for the capital murder of Mary and Ray Davis.
(CR:17). Dr. Compton gave no testimony as to Appellant‘s intent or state of mind
as it related to the capital murder of Mary and Ray Davis.
Even as it pertains to Donya‘s murder, however, Dr. Compton‘s testimony
still does not negate the requisite intent for capital murder. Dr. Compton did not
testify that due to his mental illness or defects that it was not Appellant‘s conscious
objective or desire to stab Donya or cause her death. She did not testify that
3
Indeed, Mary and Ray Davis were only mentioned twice during all of Dr. Compton‘s
testimony. During the initial sub rosa hearing, Dr. Compton stated that ―[e]thically [she] cannot
say one way or the other if [Appellant] formed the intent to kill Mr. and Mrs. Davis and his
wife.‖ (RR5:269). Then, during the hearing in connection with Appellant‘s bill of review, she
testified that ―[t]here were no indications, when [she] talked to anyone, that [Appellant] had a
negative relationship with the Davises. To kill them as well did not seem completely rational to
[her].‖ (RR6:9).
4
As will be described in further detail below, Dr. Compton‘s testimony is better described as
evidence of Appellant‘s state of mind as opposed to evidence of his diminished capacity to form
the intent to commit capital murder.
29
Appellant believed he was stabbing someone other than Donya. She did not
testify that due to his mental illness or defects that Appellant was not aware that his
conduct was reasonably certain to cause Donya‘s death. Instead, she merely
testified to Appellant‘s mental and emotional state in the time before and after the
offense. (RR5:264-271). See Yebra v. State, No. 08-12-00201-CR, 2014 Tex.
App. LEXIS 10875, at *10 (Tex. App.—El Paso Sept. 30, 2014, no pet.) (not
designated for publication) (finding no abuse of discretion in excluding expert
where the proffered testimony did not suggest that Yebra did not intend to injure
his wife when he stabbed her repeatedly); Marshall v. State, No. 11-10-00057-CR,
2012 Tex. App. LEXIS 1083, at *21-22 (Tex. App.—Eastland Feb. 9, 2012, no
pet.) (not designated for publication) (finding no abuse of discretion in excluding
expert where the proffered testimony would not negate the required mens rea for
the offense).
Taken as a whole, it is clear that Dr. Compton‘s testimony would have been
simply an attempt to explain and excuse Appellant‘s actions. During her
testimony on Appellant‘s bill of review, she gave a laundry list of reasons why
Appellant‘s mental state was ―probably‖ diminished, including, his prior mental
health history; his extreme pathological separation anxiety; the fact that he was
easily stressed; the lack of history of domestic violence; his return to the church;
and, marital stress. (RR6:6-9). She still failed to explain, however, how or why
30
these factors affected Appellant‘s ability to form intent. Because Dr. Compton‘s
testimony did not negate the requisite mens rea for capital murder it was irrelevant
and inadmissible.
Even if this Court finds Dr. Compton‘s testimony relevant pursuant to article
38.36(a) as evidence of ―the condition of [Appellant‘s] mind . . . at the time of the
offense[,]‖ it was nevertheless inadmissible under Rule 403 as any probative value
was substantially outweighed by the danger of unfair prejudice, confusion of the
issues, and misleading the jury. See Tex. R. Evid. 403. The probative value of
Dr. Compton‘s testimony was low because, as stated above, she did not even have
an expert opinion to offer regarding Appellant‘s intent. Further, Dr. Compton‘s
testimony had the potential to impact the jury in an irrational and indelible way.
To begin with, her definition of intent did not track the statutory definition.
(RR5:268). Section 6.03 of the Texas Penal Code defines ―intentionally‖ and
―knowingly‖ as follows:
(a) A person acts intentionally, or with intent, with respect to the nature of his
conduct or to a result of his conduct when it is his conscious objective or
desire to engage in the conduct or cause the result.
(b) A person acts knowingly, or with knowledge, with respect to the nature of
his conduct or to circumstances surrounding his conduct when he is aware of
the nature of this conduct or that the circumstances exist. A person acts
knowingly, or with knowledge, with respect to the result of his conduct
when he is aware that his conduct is reasonably certain to cause the result.
31
Tex. Penal Code Ann. § 6.03 (a-b). Dr. Compton defined intent as when a person
―[has] the mental capacity and the cognitive capacity to form the intent to commit
whatever act you‘re going to commit, that there‘s nothing impairing your ability to
do so.‖ Appellant‘s intent to commit capital murder was very clearly the central
issue to be decided during the guilt/innocence phase of trial. Given Dr. Compton‘s
testimony, it is not clear that she knew or understood the legal definition of intent.
See Ward v. State, AP-75,750, 2010 Tex. Crim. App. Unpub. LEXIS 94, at *12-13
(Tex. Crim. App. Feb. 10, 2010) (not designated for publication) (noting that the
jury may be overly confused or misled where the expert‘s definition of ―intent‖
was different than the statutory definition). Next, testimony that Appellant may
have believed that Donya was suffering from demonic oppression would confuse
the issues for the jury as they were charged with determining whether Appellant
possessed the requisite intent to murder Mary and Ray Davis – not whether he
possessed the requisite intent to murder Donya Palmer. Finally, the State notes
that Appellant presented much of the proffered evidence through other witnesses.
Dr. McGarrahan testified regarding his history of mental illness. Dr. Lipman
testified regarding his medications and the fact that they had been recently
changed. His daughter and two of his siblings testified to his stress, fatigue, and
depression. Given the foregoing, the trial court did not abuse its discretion in
excluding Dr. Compton‘s testimony. At a minimum, the decision falls within the
32
zone of reasonable disagreement. See Weatherred v. State,

15 S.W.3d 540

, 542
(Tex. Crim. App. 2000).
Even if this Court finds that the trial court erred in excluding Dr. Compton‘s
testimony, which the State does not concede, any alleged error was harmless. See
Tex. R. App. P. 44.2(b); Morales v. State,

32 S.W.3d 862

, 867 (Tex. Crim. App.
2000) (remanding for a harm analysis under Rule 44.2(b) regarding Morales‘ claim
that expert testimony was improperly excluded).        Non-constitutional 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).
Dr. Compton was not the lynchpin of Appellant‘s case. Throughout the
trial, the defensive theory was that Appellant, who suffers from chronic mental
illness, was depressed because his wife was leaving him and he had an adverse
reaction to his recently changed psychiatric medications. Dr. Compton was not
qualified to render an opinion on the issue of Appellant‘s medications. Indeed,
she said so herself when she testified, ―I‘m not a psychopharmacologist. I‘ll let Dr.
Lipman speak to that.‖ (RR5:266-67). When this is then combined with the fact
that Dr. Compton did not even have an expert opinion regarding Appellant‘s intent,
33
it is clear that any contribution she could have made to Appellant‘s case would
have been weak at best.
Appellant was not precluded from presenting a defense. It is undisputed that
he stabbed and killed Mary and Ray Davis. The only contested issue was his
intent. In support of his position that he lacked the requisite intent, Appellant
presented expert testimony from Dr. McGarrahan and Dr. Lipman. Dr.
McGarrahan testified that Appellant has a history of major depressive disorder and
attention deficit hyperactivity disorder and that he has a generalized anxiety
disorder. (RR6:119-20). Dr. Lipman testified regarding the medications Appellant
was prescribed and taking at the time of the offenses. (RR6:153, 182-83). He
testified that Appellant‘s medications were changed or increased at the time of the
offense. (RR6:186-90). Appellant also presented testimony from his daughter
Brianna that during the week preceding the murders, Appellant was having trouble
sleeping. (RR6:23-25). He presented testimony from his younger sister Susan
that when Donya left, he was depressed, tired, and ―spaced out[.]‖ (RR7:18).
Susan testified that after Donya left, before the murders, Appellant started going
back to church. (RR7:20-21). He became concerned that Donya‘s video game
was a ―portal of sin[.]‖ (RR7:21, 26). His brother Dave testified that Appellant
was depressed and concerned about his finances. (RR7:48-50, 55). In light of the
entire record in this case, this Court can have fair assurance that any error in
34
excluding Dr. Compton‘s testimony did not affect Appellant‘s substantial rights.
See Tex. R. App. P. 44.2(b);

King, 953 S.W.2d at 271

. Accordingly, any alleged
error should be disregarded.
Appellant‘s first and second issues should be overruled.
STATE’S RESPONSE TO ISSUE NO. THREE: APPELLANT HAS FAILED TO PRESERVE
ERROR FOR THIS COURT’S REVIEW. IN ANY EVENT, EVEN ASSUMING ERROR WAS
PRESERVED, THE TRIAL COURT PROPERLY OVERRULED HIS REQUEST FOR AN
INSTRUCTION REGARDING THE LESSER-INCLUDED OFFENSE OF MANSLAUGHTER.
Appellant contends that the trial court erred in failing to instruct the jury
regarding a lesser-included offense. Specifically, Appellant contends that he was
entitled to an instruction regarding the lesser-included offense of manslaughter.
Appellant‘s contentions lack merit and should be overruled.
Pertinent Facts
During the charge conference, the following exchange took place:
[Trial Court]: Okay. Let‘s meet back here at 1:30. And I need
everybody to look over the Charge before we get back.
(Break taken, 12:15 – 1:38)
(Open court, defendant present, no jury)
[Trial Court]: All right. Mr. Parks has looked over the Charge and he
and Ms. Womble are here talking about it and it looks like it stands
still as it is right now.
[Defense Counsel]: You‘re asking if we‘re okay with the Charge as it
is?
35
[Trial Court]: I got your objections as to the inclusion of insanity as
well as the lesser included of voluntary manslaughter.
[Defense Counsel]: Judge, I think we would also ask for negligent
homicide.
[Trial Court]: To those I say, no, but your objections are noted.
(RR8:83-84).     The trial court‘s charge to the jury did not contain instructions
regarding any lesser-included offenses. (CR:500-04).
Applicable Law
Lesser-Included Offenses
The determination of whether the trial court should include a lesser-included
offense instruction in the charge requires a two-step analysis: (1) whether the
requested charge is for a lesser-included offense of the charged offense, and (2)
whether there is trial evidence that supports giving the instruction to the jury. Rice
v. State,

333 S.W.3d 140

, 144 (Tex. Crim. App. 2011). An appellate court reviews
the first step de novo. See

id. An offense

is a lesser included offense if: (1) it is
established by proof of the same or less than all the facts required to establish the
commission of the offense charged; (2) it differs from the offense charged only in
the respect that a less serious injury or risk of injury to the same person suffices to
establish its commission; (3) it differs from the offense charged only in the respect
that a less culpable mental state suffices to establish its commission; or (4) it
36
consists of an attempt to commit the offense charged or an otherwise included
offense. See Tex. Code Crim. Proc. Ann. art. 37.09.
In applying the second step, an appellate court must determine whether there
is some evidence in the record that would permit a rational jury to find that, if the
defendant is guilty, he is guilty only of the lesser-included offense.

Rice, 333 S.W.3d at 145

. The evidence must be ―directly germane‖ to the lesser-included
offense and must establish the lesser-included offense as a valid, rational
alternative to the charged offense. Cavazos v. State,

382 S.W.3d 377

, 385 (Tex.
Crim. App. 2012). ―This second step is a question of fact and is based on the
evidence presented at trial.‖

Id. at 383.

Charge Error
An appellate court‘s first duty in evaluating a jury charge issue is to
determine whether error exists. See Middleton v. State,