Thomas, Kenneth Dewayne ( 2016 )

AP-77,047
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 9/16/2016 9:28:49 AM
Accepted 9/16/2016 10:28:08 AM
September 16, 2016 ABEL ACOSTA
ORAL ARGUMENT IS REQUESTED CLERK
No. AP-77,047
IN THE
COURT OF CRIMINAL APPEALS September 27, 2016
OF TEXAS
KENNETH WAYNE THOMAS,
APPELLANT
V.
THE STATE OF TEXAS,
APPELLEE
On appeal from the 194th Judicial District Court of Dallas County, Texas
In Cause No. F86-85539
STATE’S BRIEF
Counsel of Record:
Susan Hawk Christine Womble
Criminal District Attorney Assistant District Attorney
Messina Madson State Bar No. 24035991
First Assistant Frank Crowley Courts Building
Criminal District Attorney 133 N. Riverfront Blvd., LB-19
Dallas County, Texas 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 ....................................................................... vii-xviii
Statement Regarding Oral Argument ..................................................... 1
Statement of the Case ............................................................................... 1
Statement of Facts ............................................................................... 1-44
Summary of the Argument ................................................................ 44-49
Argument................................................................................................. 49
State’s Response to Issue Nos. 1-7: ......................................................... 49
THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S
BATSON CHALLENGES.
State’s Response to Issue Nos. 9-23: ....................................................... 78
THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S
CHALLENGES FOR CAUSE.
State’s Response to Issue Nos. 24-30: ................................................... 140
THE TRIAL COURT DID NOT ERR IN GRANTING THE STATE’S
CHALLENGES FOR CAUSE.
State’s Response to Issue No. 31:.......................................................... 168
THE SUPREME COURT’S DECISION IN HALL V. FLORIDA DID NOT
INVALIDATE THIS COURT’S DECISION IN EX PARTE BRISENO.
ii
State’s Response to Issue Nos. 32-34: ................................................... 178
THE TRIAL COURT DID NOT ERR IN OVERRULING APPELLANT’S
MOTION TO QUASH, HIS MOTION TO RE-QUESTION JURORS, AND
HIS MOTION TO LIMIT THE STATE’S VOIR DIRE.
State’s Response to Issue Nos. 35-36: ................................................... 187
APPELLANT WAS NOT DEPRIVED OF A LAWFULLY CONSTITUTED
JURY.
State’s Response to Issue No. 37:.......................................................... 188
THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S
MOTION TO DISQUALIFY THE DISTRICT ATTORNEY’S OFFICE.
State’s Response to Issue No. 38:.......................................................... 195
THE TRIAL COURT PROPERLY OVERRULED APPELLANT’S
MOTION FOR MISTRIAL DURING APPELLANT’S COMPETENCY
TRIAL.
State’s Response to Issue No. 39:.......................................................... 202
APPELLANT’S CLAIM THAT THE TRIAL COURT ERRED IN
OVERRULING HIS OBJECTION DURING THE COMPETENCY TRIAL
IS NOT PROPERLY BEFORE THE COURT.
State’s Response to Issue Nos. 40-41: ................................................... 205
THE EVIDENCE WAS SUFFICIENT TO PROVE APPELLANT’S
COMPETENCY TO STAND TRIAL.
iii
State’s Response to Issue No. 42:.......................................................... 227
THE TRIAL COURT PROPERLY OVERRULED APPELLANT’S
OBJECTION TO DR. PRICE’S TESTIMONY THAT APPELLANT
EXHIBITS TRAITS CONSISTENT WITH ANTI-SOCIAL PERSONALITY
DISORDER.
State’s Response to Issue No. 43:.......................................................... 238
DR. PRICE DID NOT TESTIFY BEFORE THE JURY REGARDING
APPELLANT’S REMORSE.
State’s Response to Issue No. 44:.......................................................... 240
THE TRIAL COURT DID NOT ERR IN ADMITTING A SILHOUETTE OF
A KNIFE AS A DEMONSTRATIVE AID.
State’s Response to Issue No. 45:.......................................................... 247
THE TRIAL COURT PROPERLY ADMITTED THE AUTOPSY
PHOTOGRAPHS. ALTERNATIVELY, ANY ERROR IS HARMLESS.
State’s Response to Issue No. 46:.......................................................... 254
THE TRIAL COURT DID NOT ERR IN OVERRULING APPELLANT’S
OBJECTION TO THE TESTIMONY OF JAMES BELT, SR.
State’s Response to Issue Nos. 47-48: ................................................... 261
APPELLANT IS NOT INTELLECTUALLY DISABLED.
iv
State’s Response to Issue No. 49:.......................................................... 278
THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT THE
JURY’S FINDING THAT APPELLANT IS A FUTURE DANGER.
State’s Response to Issue No. 50:.......................................................... 282
THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S
REQUESTED JURY INSTRUCTION.
State’s Response to Issue No. 51:.......................................................... 287
THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S
REQUEST THAT THE JURY BE ALLOWED TO ENTER A NON-
UNANIMOUS VERDICT REGARDING THE INTELLECTUAL
DISABILITY SPECIAL ISSUE.
State’s Response to Issue No. 52:.......................................................... 291
THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S
REQUEST FOR AN ACCOMPLICE WITNESS INSTRUCTION.
State’s Response to Issue No. 53:.......................................................... 293
THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S
REQUEST FOR AN ANTI-PARTIES INSTRUCTION IN THE CHARGE.
State’s Response to Issue No. 54:.......................................................... 295
THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S
REQUEST FOR A SECOND COMPETENCY HEARING.
State’s Response to Issue No. 55:.......................................................... 304
APPELLANT’S CLAIM THAT THE EVIDENCE IS INSUFFICIENT TO
SUPPORT HIS CONVICTION FOR CAPITAL MURDER PRESENTS
NOTHING FOR THIS COURT’S REVIEW.
v
State’s Response to Issue Nos. 56-67: ................................................... 305
THE TRIAL COURT PROPERLY DENIED APPELLANT’S
CHALLENGES TO THE DEATH PENALTY STATUTE.
Prayer .................................................................................................... 310
Certificate of Compliance ...................................................................... 311
Certificate of Service ............................................................................. 311
vi
INDEX OF AUTHORITIES
Cases
Adanandus v. State,
866 S.W.2d 210 (Tex. Crim. App. 1993).......................................... 56-57
Almanza v. State,
686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh’g) ...................... 286
Apprendi v. New Jersey,
530 U.S. 466 (2000) ............................................................................ 307
Atkins v. Virginia,
536 U.S. 304 (2002) ............................................................................ 170
Baker v. State,
177 S.W.3d 113 (Tex. App.—Houston [1st Dist.] 2005, no pet.) ....... 243
Barber v. State,
757 S.W.2d 359 (Tex. Crim. App. 1988)..................................... 200, 201
Barnes v. State,
876 S.W.2d 316 (Tex. Crim. App. 1994)............................................. 106
Batson v. Kentucky,
476 U.S.79 (1986) ......................................................................... passim
Belyeu v. State,
791 S.W.2d 66 (Tex. Crim. App. 1989) .............................................. 294
Bodde v. State,
568 S.W.2d 344 (Tex. Crim. App. 1978)..................................... 183, 186
Bone v. State,
77 S.W.3d 828 (Tex. Crim. App. 2002) ................................................ 66
vii
Brandon v. State,
599 S.W.2d 567 (Tex. Crim. App. 1979)............................................. 199
Broadnax v. State,
No. AP-76,207, 2011 Tex. Crim. App. Unpub. LEXIS 920 (Tex. Crim.
App. Dec. 14, 2011) (not designated for publication) ..................... 67-68
Butcher v. State,
454 S.W.3d 13 (Tex. Crim. App. 2015) ...................................... 217, 225
Callaway v. State,
594 S.W.2d 440 (Tex. Crim. App. 1980)..................................... 199, 200
Chambers v. State,
866 S.W.2d 9 (Tex. Crim. App. 1993) .................................................. 53
Cherry v. State,
959 So. 2d 702 (Fla. 2007) (per curiam)............................................. 173
Clark v. State,
929 S.W.2d 5 (Tex. Crim. App. 1996) ................................................ 146
Coble v. State,
330 S.W.3d 253 (Tex. Crim. App. 2010)............................................. 205
Colburn v. State,
966 S.W.2d 511 (Tex. Crim. App. 1998)....................................... 80, 145
Coleman v. State,
246 S.W.3d 76 (Tex. Crim. App. 2008) .............................................. 191
Cordova v. State,
733 S.W.2d 175 (Tex. Crim. App. 1987)..................................... 122, 127
Devoe v. State,
354 S.W.3d 457 (Tex. Crim. App. 2011)..................................... 279, 281
viii
Easley v. State,
424 S.W.3d 535 (Tex. Crim. App. 2014)............................................. 183
Easton v. State,
920 S.W.2d 747 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d) ..... 304
Escamilla v. State,
143 S.W.3d 814 (Tex. Crim. App. 2004)............................... 81, 249, 309
Estrada v. State,
313 S.W.3d 274 (Tex. Crim. App. 2010)............................................. 257
Ex parte Briseno,
135 S.W.3d 1 (Tex. Crim. App. 2004) .......................................... passim
Ex parte Cathey,
451 S.W.3d 1 (Tex. Crim. App. 2014) .........174, 176, 264, 272, 276, 277
Ex parte Hagans,
558 S.W.2d 457 (Tex. Crim. App. 1977)............................................. 199
Ex parte Hearn,
310 S.W.3d 424 (Tex. Crim. App. 2010)..................................... 175, 264
Ex parte Lizcano,
No. WR-68,348-03, 2015 Tex. Crim. App. Unpub. LEXIS 331 (Tex.
Crim. App. Apr. 15, 2015) (Alcala, J., dissenting) (not designated for
publication)......................................................................................... 176
Ex parte Moore,
470 S.W.3d 481 (Tex. Crim. App. 2015), cert. granted in part, 136 S.
Ct. 2407 (2016) ................................................... 174, 175, 178, 263, 264
Ex parte Sosa,
364 S.W.3d 889 (Tex. Crim. App. 2012)............................................. 178
Ex parte Tennard,
960 S.W.2d 57 (Tex. Crim. App. 1997) .............................................. 266
ix
Ex parte Thomas,
No. AP-76,405, 2010 Tex. Crim. App. Unpub. LEXIS 452 (Tex. Crim.
App. Aug. 25, 2010) (not designated for publication) ........................ 305
Ex parte Woods,
296 S.W.3d 587 (Tex. Crim. App. 2009)............................................. 175
Feldman v. State,
71 S.W.3d 738 (Tex. Crim. App. 2002) ............................ 79, 80, 96, 137
Furman v. Georgia,
408 U.S. 238 (1972) ............................................................................ 308
Gallo v. State,
239 S.W.3d 757 (Tex. Crim. App. 2007)............................................. 290
Garcia v. State,
887 S.W.2d 862 (Tex. Crim. App. 1994) 183-84, 193, 232, 240, 292, 294
Gardner v. State,
306 S.W.3d 274 (Tex. Crim. App. 2009)................. 80, 96, 115, 136, 137
Gonzales v. State,
353 S.W.3d 826 (Tex. Crim. App. 2011)............................. 104, 139, 141
Good v. State,
723 S.W.2d 734 (Tex. Crim. App. 1986)............................................... 99
Goodman v. State,
701 S.W.2d 850 (Tex. Crim. App. 1985)...................................... 199-200
Goodwin v. State,
799 S.W.2d 719 (Tex. Crim. App. 1990)..................................... 149, 152
Granados v. State,
85 S.W.3d 217 (Tex. Crim. App. 2002) .............................. 146, 160, 165
x
Gray v. State,
233 S.W.3d 295 (Tex. Crim. App. 2007)............................................. 188
Griffith v. State,
983 S.W.2d 282 (Tex. Crim. App. 1998)........................................ 235-36
Guevara v. State,
97 S.W.3d 579 (Tex. Crim. App. 2003) ...................................... 203, 245
Hall v. Florida,
134 S. Ct. 1986 (2014) .................................................................. passim
Hawkins v. State,
135 S.W.3d 72 (Tex. Crim. App. 2004) .............................................. 198
Hernandez v. New York,
500 U.S. 352 (1991) ........................................................................ 53, 64
Hernandez v. State,
757 S.W.2d 744 (Tex. Crim. App. 1988)............................................. 200
Howard v. State,
153 S.W.3d 382 (Tex. Crim. App. 2004)............................................. 239
Hunter v. State,
243 S.W.3d 664 (Tex. Crim. App. 2007)............................................. 289
In re Allen,
462 S.W.3d 47 (Tex. Crim. App. 2015) .............................................. 174
Johnson v. State,
68 S.W.3d 644 (Tex. Crim. App. 2002) ................................................ 56
Johnson v. State,
429 S.W.3d 13 (Tex. App.—Houston [1st Dist.] 2013, no pet.) .......... 302
Jones v. State,
982 S.W.2d 386 (Tex. Crim. App. 1998)....................................... passim
xi
Kelly v. State,
824 S.W.2d 568 (Tex. Crim. App. 1992)............................................. 232
King v. State,
29 S.W.3d 556 (Tex. Crim. App. 2000) ................. 149, 152, 154, 156-59
King v. State,
953 S.W.2d 266 (Tex. Crim. App. 1997)............................................. 279
Ladd v. State,
3 S.W.3d 547 (Tex. Crim. App. 1999) ... 106, 139, 167-68, 198, 253, 278
Landers v. State,
256 S.W.3d 295 (Tex. Crim. App. 2008)..................................... 194, 195
Martinez v. State,
327 S.W.3d 727 (Tex. Crim. App. 2010)........................................ 278-79
Martinez v. State,
899 S.W.2d 655 (Tex. Crim. App. 1994)............................................. 294
Martinez v. State,
924 S.W.2d 693 (Tex. Crim. App. 1996)............................................. 279
Mathis v. State,
67 S.W.3d 918 (Tex. Crim. App. 2002) ................................................ 55
Matlock v. State,
392 S.W.3d 662 (Tex. Crim. App. 2013)..................................... 217, 218
Mendoza v. State,
552 S.W.2d 444 (Tex. Crim. App. 1977)..................................... 182, 185
Meraz v. State,
785 S.W.2d 146 (Tex. Crim. App. 1990)............................................. 218
Miller-El v. Dretke,
545 U.S. 231 (2005) .................................................................. 59, 65, 77
xii
Montgomery v. State,
810 S.W.2d 372 (Tex. Crim. App. 1990)............................................. 231
Morris v. State,
301 S.W.3d 281 (Tex. Crim. App. 2009)............................................. 225
Mosley v. State,
983 S.W.2d 249 (Tex. Crim. App. 1998)........................................ 256-59
Murphy v. Florida,
421 U.S. 794 (1975) ............................................................................ 116
Neal v. State,
256 S.W.3d 264 (Tex. Crim. App. 2008)................................ 261-64, 277
Nenno v. State,
970 S.W.2d 549 (Tex. Crim. App. 1998)............................................. 232
Nieto v. State,
365 S.W.3d 673 (Tex. Crim. App. 2012).......................................... 57-58
Owens v. State,
473 S.W.3d 812 (Tex. Crim. App. 2015)............................................. 199
Payne v. Tennessee,
501 U.S. 808 (1991) ............................................................................ 257
Powell v. State,
898 S.W.2d 821 (Tex. Crim. App. 1994)............................................. 236
Purkett v. Elem,
514 U.S. 765 (1995) .............................................................................. 54
Rachal v. State,
917 S.W.2d 799 (Tex. Crim. App. 1996)............................................. 145
Reed v. Quarterman,
555 F.3d 364 (5th Cir. 2009) .......................................................... 50, 64
xiii
Romero v. State,
800 S.W.2d 539 (Tex. Crim. App. 1990)............................................. 230
Ross v. State,
133 S.W.3d 618 (Tex. Crim. App. 2004)............................................. 300
Sadler v. State,
977 S.W.2d 140 (Tex. Crim. App. 1998)............................................. 141
Salazar v. State,
90 S.W.3d 330 (Tex. Crim. App. 2002) .............................................. 257
Saldano v. State,
232 S.W.3d 77 (Tex. Crim. App. 2007) ....... 80-81, 83, 90, 139, 305, 309
Sanders v. State,
832 S.W.2d 719 (Tex. App.—Austin 1992, no pet.) ................... 304, 305
Santellan v. State,
939 S.W.2d 155 (Tex. Crim. App. 1997)............................................. 252
Scarborough v. State,
54 S.W.3d 419 (Tex. App.—Waco 2001, pet. ref’d) ............................ 193
Shuffield v. State,
189 S.W.3d 782 (Tex. Crim. App. 2006)............................................. 231
Simmons v. State,
622 S.W.2d 111 (Tex. Crim. App. 1981)..................................... 243, 245
Solomon v. State,
49 S.W.3d 356 (Tex. Crim. App. 2001) .............................................. 237
State ex rel. Eidson v. Edwards,
793 S.W.2d 1 (Tex. Crim. App. 1990) ........................................ 191, 192
State ex. rel. Hill v. Pirtle,
887 S.W.2d 921 (Tex. Crim. App. 1994)..................................... 191, 194
xiv
Tamez v. State,
27 S.W.3d 668 (Tex. App.—Waco 2000, pet. ref’d) ............................ 183
Threadgill v. State,
146 S.W.3d 654 (Tex. Crim. App. 2004)....................................... passim
Torres v. State,
116 S.W.3d 208 (Tex. App.—El Paso 2003, no pet.) .................. 243, 244
Turner v. State,
422 S.W.3d 676 (Tex. Crim. App. 2013)..................................... 199, 299
United States v. Figueroa,
618 F.2d 934 (2nd Cir. 1980) .............................................................. 231
Vollbaum v. State,
833 S.W.2d 652 (Tex.App.—Waco 1992, pet. ref'd) ........................... 243
Walder v. State,
85 S.W.3d 824 (Tex. App.—Waco 2002, no pet.)................................ 235
Waldo v. State,
746 S.W.2d 750 (Tex. Crim. App. 1988)............................................. 201
Walters v. State,
247 S.W.3d 204 (Tex. Crim. App. 2007)............................................. 237
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) .............. 185, 230, 246, 253, 286
Will. v. State,
191 S.W.3d 242 (Tex. App.—Austin 2006, no pet.) ........................... 225
Will. v. State,
270 S.W.3d 112 (Tex. Crim. App. 2008)..................................... 171, 290
xv
Witherspoon v. Illinois,
391 U.S. 510 (1968) ............................................................................ 145
Wood v. State,
18 S.W.3d 642 (Tex. Crim. App. 2000) .............................................. 198
Woodward v. Epps,
580 F.3d 318 (5th Cir. 2009) ........................................................... 61-62
Young v. State,
826 S.W.2d 141 (Tex. Crim. App. 1991)............................................... 64
Zamora v. State,
411 S.W.3d 504 (Tex. Crim. App. 2013)............................................. 293
Constitutional Provisions
Tex. Const. art. I.................................................................................... 306
U.S. Const. amend. VIII ............................................................... 170, 306
U.S. Const. amend. XIV ....................................................................... 306
Statutes
Tex. Code Crim. Proc. Ann. art. 35.16(a)(9) (West 2006) ....................... 79
Tex. Code Crim. Proc. Ann. art. 35.16(b) (West 2006) .................... 140-41
Tex. Code Crim. Proc. Ann. art. 35.16(c)(2) (West 2006) ........................ 79
Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007) ...................... 284, 285
Tex. Code Crim. Proc. Ann. art. 37.0711, §3(b)(2)(West Supp. 2015) ... 94,
278
xvi
Tex. Code Crim. Proc. Ann. art. 37.0711, §3(c) (West Supp. 2015) ...... 278
Tex. Code Crim. Proc. Ann. art. 37.0711, §3(e) (West Supp. 2015)....... 94,
306-08
Tex. Code Crim. Proc. Ann. art. 37.0711, §3(f) (West Supp. 2015) . 306-08
Tex. Code Crim. Proc. Ann. art. 37.0711, §3(j) (West Supp. 2015) .......... 1
Tex. Code Crim. Proc. Ann. art. 38.08 (West 2005) ................................ 99
Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005) .............................. 292
Tex. Code Crim. Proc. Ann. art. 46B.003(a) (West 2006) .... 204, 216, 220,
298-99, 301
Tex. Code Crim. Proc. Ann. art. 46B.003(b) (West 2006) ..... 216, 217, 298
Tex. Code Crim. Proc. Ann art. 46B.024(1) (West Supp. 2015) ........... 217
Tex. Health & Safety Code Ann. §591.003(1) (West Supp. 2015) ........ 266
Tex. Health & Safety Code Ann. §591.003(7-a) (West Supp. 2015) .... 170,
263
Tex. Health & Safety Code Ann. §591.003(20) (West Supp. 2015) ...... 264
Tex. Loc. Gov’t Code Ann. §87.013 (West 2008) ................................... 191
Tex. Loc. Gov’t Code Ann. §87.018(a) (West 2008) ............................... 191
Tex. Penal Code Ann. § 19.03(a)(2) (West Supp. 2015) .......................... 93
Rules
Tex. R. App. P. 33.1(a) ..................................................................... passim
xvii
Tex. R. App. P. 38.1(i)...................................................................... passim
Tex. R. App. P. 44.2(b) ........................................... 237, 238, 247, 254, 260
Tex. R. Civ. P. 292 ................................................................................. 290
Tex. R. Evid. 103 ........................................................................... 237, 260
Tex. R. Evid. 401 .................................................................................. 203
Tex. R. Evid. 403.................................................................... 231, 245, 257
Tex. R. Evid. 702 ...................................................................... 230-31, 232
Tex. R. Evid. 705(b) ............................................................................... 233
xviii
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
The State of Texas submits this brief in response to the brief of
Appellant, Kenneth Wayne Thomas.
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. 37.0711, § 3(j) (West Supp. 2015). The trial
court sentenced Appellant to death on July 23, 2014 for the capital
murder of Mildred Finch. (CR:88-89; RR70:84-85).1 Appellant filed his
brief on direct appeal on June 22, 2015. He filed an amended brief on
August 24, 2016. Appellant presents sixty-seven allegations of
reversible error.
STATEMENT OF FACTS
On or about March 16, 1986, Kenneth Wayne Thomas
(hereinafter, “Appellant”), broke into the home of Fred and Mildred
1The State will refer to the Clerk’s Record filed on December 23, 2014 as “CR,” the
Clerk’s Record filed on October 27, 2015 as “CR2,” the Clerk’s Record filed on
November 30, 2015 as “CR3,” the Clerk’s Record filed on March 3, 2016 as “CR4,”
and the Sealed Clerk’s Record as “CR-S.”
1
Finch. Fred and Mildred were home at the time of the burglary and
Appellant stabbed and killed them both.
Fred and Mildred
At the time of their death, Fred and Mildred Finch had been
married for many years. (RR68:221). Fred and Mildred were both in
their mid-60s and they shared a small house on Rose Lane, the home
that they purchased in the 1950s. (RR60:31; RR68:223-25; SX34A).
Mildred, a smart and strong-willed woman with a master’s degree in
math and science, was a Professor of Mathematics at El Centro College.
(RR68:224; SX2). Fred, a World War II veteran and former Tuskegee
airman, was a Harvard-educated lawyer who had worked to integrate
schools and hotels in Dallas. (RR68:221-22; SX1). Fred and Mildred
had one child, a daughter named Molly. (RR68:221). Molly married
James Belt, Jr. (RR68:220-21). Molly and James gave Fred and
Mildred two grandchildren, James III and Melanie. (RR68:226).
On Sunday, March 16, 1986, the Belt family attended the 8:00
a.m. services at their church. (RR68:227). Afterward, Molly planned to
take Mildred to the mall. (RR68:227). James stayed behind at the
church to attend Sunday school. (RR68:227). He would get a ride
2
home with a friend later. (RR68:227). While James was waiting for
his ride, he was notified that he had a phone call. (RR68:227). It was
Melanie. (RR68:226, 228). Melanie said that James needed to come to
Rose Lane immediately. (RR68:228).
When James arrived, Molly, Melanie, and James III were in front
of the house. (RR68:228). A police officer was there. (RR68:228).
James went to the back door and asked whether the officer had been
inside the house. (RR68:228). The officer had not. (RR68:228).
James noticed that the back door was open and Fred’s car was in the
driveway. (RR68:228). At that point, James knew something was
wrong so he went inside the house. (RR68:228). James described the
scene:
I guess I was on my knees or crawling or something, and I
crawled through the kitchen. When I got midway through
the kitchen, at the end of the kitchen, I saw [Mildred]. Oh,
God. She was laying on the floor, and blood was everywhere.
Blood was everywhere: On the floor, on the wall, on the
ceiling. It was everywhere. When I touched her, she was
cold. I felt her pulse. She was dead.
I went into the bedroom. [Fred] was dead. Bed was just
covered with blood. Blood was on the floor, it was on the
wall, it was on the ceiling. It was everywhere.
3
...
In the living room, there was clothes piled up everywhere.
In the bedroom, the drawers had been pulled out. There
were clothes and things on the floor. I could tell that the
house had just been ramshacked (sic).
(RR68:228-29). Fred and Mildred appeared to have been stabbed
multiple times. (RR60:34).
Mildred’s body was found lying in the hallway, up against the
wall. (RR60:40, 65-66, 72-75; RR63:11; SX48-53). Detective Gallagher
testified:
There was blood everywhere. There was blood on the walls.
There were smears on the baseboards. She was wrapped in
some sheets and some blankets, and you could still see
multiple stab wounds all over her. It was a mess.
(RR60:40; SX50, 51). Several feet from her body was “a bloody palm
print or fingerprint on the hallway wall.” (RR60:43).
Fred’s body was found in the bedroom, lying on the floor about five
feet from Mildred. (RR60:40-41, 76; RR63:11; SX42-47). That scene
was described as follows:
Mr. Finch suffered multiple stab wounds. He was almost in
a kneeling-type position on the floor, with his head down on
the floor. There were blankets and everything. Disarray. It
was blood everywhere in there. He had pajamas on, but his
4
pajamas were down around his ankles or his calves. So his
bare buttocks was very obvious to me, as I peered down the
hallway.
(RR60:41). There was blood on the bed, the walls, and the floor.
(RR60:41; RR63:12). There was blood “up and down the hallway, from
the baseboard almost to the ceiling.” (RR60:63).
James tried to determine whether anything had been stolen from
the house. (RR68:230). He saw “a gap in the closet.” (RR68:230). A
number of Fred’s suits were gone as were his shirts, hats and caps.
(RR68:230). Fred’s gold and silver Rolex was also gone. (RR68:231-32).
Dr. Edward McDonough performed an autopsy on Mildred.
(RR61:46-47; SX71-83). Mildred “had extensive sharp-force trauma
over almost all the surfaces of her body. Particularly, above the waist.”
(RR61:54). The total number of sharp-force wounds was “probably more
than 90.” (RR61:54).
Mildred suffered multiple injuries to the head. Dr. McDonough
described the following: a stab-wound to the right side of her chin; a v-
shaped cut to her scalp; a superficial stab wound above her right
eyebrow; a three-inch cut on the back of her scalp; and, two stab wounds
to her right-back shoulder. (RR61:63-65; SX75-76, 79-80). Mildred’s
5
other wounds were grouped based on their location: the head; right-
chest; abdomen; and back. (RR61:66; SX82). There were 20 individual
stab wounds to Mildred’s abdomen. (RR61:67; SX82). Most were
superficial, however, some entered the abdominal cavity. (RR61:67).
There were 17 wounds to Mildred’s back, some of which penetrated her
right chest cavity. (RR61:68-69). There were “about 35 individual
wounds of various widths and depths” to the right side of Mildred’s
body, from her armpit down to her thigh. (RR61:69; SX70A, 83).
“There’s a lot of wounds that are even confluent, where they’re so close
together they actually blend together.” (RR61:71). There were stab
wounds to the left side of Mildred’s body. (RR61:71; SX71). There were
four or five stab wounds to the back of her left upper arm. (RR61:71;
SX81). There were wounds to her right hand. (RR61:72; SX73). There
was a “through and through stab wound of the wrist” on her left arm.
(RR61:72-74; SX74). Dr. McDonough estimated the depth of the stab
wounds as five to six inches deep. (RR61:68). She had defensive
wounds on her hands, wrists, and forearms. (RR61:66).
Many of the stab wounds affected Mildred’s organs. There was a
stab wound to her right lung; her left lung; eleven stab wounds to the
6
liver; her aorta was transected. (RR61:75). Mildred also suffered a
“fairly-significant blunt-force trauma, which consisted of a fracture of
the right humerus.” (RR61:67; SX82). Almost every one of her ribs
was fractured, some in two places. (RR61:67-68). Mildred’s cause of
death was “multiple stab wounds of the torso.” (RR61:74).
Dr. Gilliland performed an autopsy on Fred.2 (RR61:47-48, 51-52;
SX57-70, 70A). Dr. Gilliland documented 21 sharp-force injuries on
Fred. (RR61:58). Fred had a stab wound to the right side of his head
that was about an inch long. (RR61:79, 80; SX58, 65). He suffered five
stab wounds to the left side of his trunk, injuring his left upper lung,
heart, abdomen, liver, stomach and pancreas. (RR61:79-81; SX58, 62).
The approximate depth of these wounds is “up to six inches[.]”
(RR61:80). He suffered ten blunt and sharp-force wounds to his back.
(RR61:80, 82; SX67, 59). These injuries caused damage to Fred’s left
lung and spleen as well as a fracture of the 11th rib. (RR61:80; SX67).
He suffered stab wounds to his arms. (RR61:81; SX64). The medical
examiner also “noted there were several cuts between the buttocks.”
2 Dr. McDonough was present and observed Fred’s autopsy. (RR61:47-48).
7
(RR61:83; SX61). Fred’s cause of death was “multiple stab wounds.”
(RR61:83).
All of Mildred’s and Fred’s wounds are consistent with a single-
edged knife. (RR61:58, 61). All of the wounds could have been inflicted
by a single knife. (RR61:61, 88).
Physical Evidence of the Crime
The Finch home appeared to have been burglarized. (RR60:37,
43). The point-of-entry appeared to be a window. A couple of the
window sills on the front of the house appeared to have been recently
damaged and there were two open windows. (RR60:36, 55-57, 148-50;
RR63:13; SX35, 37, 107-08). The window in the front of the house was
open, but blocked on the inside by a heavy piece of furniture.
(RR60:147, 149, 188; RR63:13; SX108, 110). A bent window screen in
the yard appeared to fit this window. (RR60:36, 56, 144, 182; SX35-37).
A window on the side of the house was also open. (RR60:149, 187;
SX36-37). There was an air conditioning window unit sitting in the
grass nearby. (RR60:36, 145, 150; SX36-37). The cord for the unit
stretched from the unit though the open window to the outlet where it
was still plugged in inside. (RR60:36, 145, 148; SX36-37, 107, 109). On
8
the inside of the house, the curtains were pulled away, consistent with
someone coming through the side window from the outside to the inside.
(RR60:150-51; SX109-10).
The home appeared to have been ransacked. (RR63:12). In the
living room, a stereo, and a cardboard box were stacked up by the front
door. (RR60:39, 179). The box appeared to have been “stacked up for a
purpose.” (RR60:204). Inside the box were some suits and a raincoat.
(RR60:107, 109, 179, 204; SX111). The black raincoat appeared to have
blood on it. (RR60:180, 204).
In the kitchen, there was a bloody rag on the floor near the
refrigerator. (RR60:37; RR63:12; SX41). There was blood on the
handle of the refrigerator. (RR60:38). On the kitchen table, there was
a Saturday-edition of the Sunday March 16th newspaper.3 (RR60:37-
38, 109-10; RR61:197; SX112, 114, 116). The newspaper had blood on
it. (RR60:37-38, 109-10; SX112, 114, 116). The blood appeared to be
an outline of a knife. (RR60:110, 125; SX116). “It looks like there was
3 The Dallas Times Herald newspaper on the table was a “Sunday noon dog
edition[.]” (RR61:197; SX114). This version of the Sunday paper was part of an
edition that would have gone to press in the morning of Saturday, March 15, 1986.
(RR61:197; SX114). It would have been available for sale at various over-the-
counter locations throughout the county “around 8:30, 9:00 o’clock Saturday
morning.” (RR61:197-98).
9
blood on a knife tip and it was wiped off on the newspaper.” (RR60:178,
209; SX112-16).
Police walked around the scene trying to find the murder weapon.
(RR60:118, 197). It was never recovered. (RR60:127-28).
The Investigation
On March 18th, the Crime Stoppers Unit received a tip from Kathy
Johnson. (RR60:83, 85, 122). Kathy knew about the stolen property
and the type of weapon. (RR60:85). She provided Appellant’s name.
(RR60:86). Kathy met with police later in the day and provided
Appellant’s brother’s name, Lonnie Thomas, and advised that Lonnie
knew of the stolen property as well. (RR60:87, 122).
Detectives James Gallagher and Phillip Jones went to 4323
Electra to speak with Lonnie. (RR60:87; RR63:22). Lonnie wasn’t
home, but they spoke with his mother, Shirley Baldwin, and his other
brother, Billy Thomas. (RR63:22). Shirley told Jones that Appellant
admitted to the murders. (RR63:63). Jones requested and was granted
consent to enter the house. (RR63:23). Inside, Jones found a three-piece
black suit, an umbrella, and black-and-white shoes. (RR63:23). He did
not find a bloody knife or bloody clothing. (RR63:24).
10
Later that day, Billy called Jones to let him know that Lonnie had
returned home. (RR63:26). Jones and Gallagher went back to the
house on Electra. (RR63:26). Lonnie agreed to accompany them back
to the station. (RR60:87; RR63:26). Jones testified:
What Lonnie told me, en route from 4323 Electra to the
office, was that when Kenneth woke him up, he had been
stacking property in the house; that he asked him to come
out and help move some of the stuff. He walked outside and
he said, at that point, that the property had been taken out
of the back of a yellow car.
(RR63:54).
At the station, Lonnie provided a written statement implicating
Appellant.4 (RR60:88, 90, 124; RR63:30). Lonnie told police that he
saw Appellant in possession of a bloody weapon. (RR60:127).
Detectives were on their way to return Lonnie back to Electra when
they learned that Lonnie had recently disposed of some of the Finch’s
property at a “makeshift dump” on the 4000 block of Hancock Street.
(RR60:91-95; RR63:31; SX34D, 87-88, 94, 100). Lonnie had not
mentioned Hancock in his statement. (RR63:30). The detectives drove
to the dump site where they recovered several hat boxes, black trash
4Lonnie claimed to be home in bed with his girlfriend, Delores Easter. (RR60:93,
131).
11
bags containing clothing, and Fred’s brown briefcase. (RR60:95-97;
RR63:31; SX87-88, 94-99).
Lonnie was transported back to the station where he gave a
voluntary statement and was arrested. (RR60:98-99; RR63:32-33). This
time, Lonnie said that Kathy Johnson helped him dump the property.
(RR63:32). He claimed that he did not call the police because he “was
afraid that he would be charged or considered a suspect in the case.”
(RR63:49)
Late that night, Appellant was arrested at the house on Electra,
which is about four blocks from the Finch home. (RR60:49, 53, 103;
RR63:35-36; SX34B, 225). Appellant was wearing Fred’s Rolex watch.
(RR60:106; RR63:36-37; SX219-21).
The Hancock Dumpsite
At the Hancock dumpsite, police located a great deal of Fred’s
property, including suitcases, clothing, suits, men’s hats, and hat boxes.
(RR61:97-99, 104-10; SX5-14, 18-21, 23, 86-88, 94-101, 207). Hats and
hat boxes were found under a white sheet. (RR61:100, 102, 104-10;
SX87, 95). A brown hat box was found on top of a couch. (RR61:101;
SX87, 98). Two black garbage bags containing clothing were found
12
near the couch. (RR61:101-03; SX88, 95, 97). There was also a brown
satchel containing men’s dress shirts and a loaded Enfield .38-caliber
revolver in a holster. (RR61:97-98, 103-05, 123; SX84, 85, 87,5 97, 99,
207).
Among the items collected from the dumpsite were: a men’s three-
piece suit (SX23); a grey and red flannel suit (SX25); a grey plaid suit
containing the label “Fred James Finch, Jr” and dated December 10,
1982 (SX27); a grey suit containing the label “Custom Tailored for Fred
Finch” (SX26); a yellow shirt (SX8); a light colored shirt (SX7); a blue
and red plaid shirt (SX12); a blue striped shirt (SX11); a white and blue
shirt (SX9); a gray shirt (SX10); a light-colored plaid shirt (SX6); a blue
patterned shirt (SX13); a blue shirt with a white collar (SX5); a multi-
colored shirt (SX28); a silver patterned shirt (SX17); two Dobbs hats
(SX19-20); a flannel newsies hat (SX23); a brown fur hat (SX101); a blue
hat (SX21); a tweed hat (SX18); a straw hat; (SX14); a pair of brown
gloves (SX93); three pairs of black gloves (SX102-04); a blue striped
scarf (SX29); a brown suede jacket (SX16).6 (RR61:105-20).
5 The gun and holster were released following Appellant’s 1987 trial. (RR61:116;
SX87).
6 The property from the Hancock dumpsite that was introduced into evidence
represents about one-third of the property collected from that site. (RR61:124).
13
Bernard Blackmon7 testified that he worked for the Leonard
Custom Tailoring Company in Cincinnati and the Ripley Shirt
Company in Dallas, selling tailored suits and tailored shirts.
(RR61:190). Blackmon sold Fred custom suits. (RR61:193). He
identified State’s Exhibit 26 as a custom-made suit that he sold Fred.
(RR61:193; SX26). He also ordered custom-tailored shirts for Fred as
well. (RR61:194-95; SX10-3, 17). The cuffs of these shirts are
monogramed with Fred’s initials, FJF. (RR61:195).
Forensic Evidence
Appellant’s fingerprints were found on the inside portion of the
window sill, on the inside of the window screen, and on the air
conditioning unit. (RR60:215-16, 252-57; SX117-24). The bloody palm
and fingerprint found near Mildred’s body also belonged to Appellant.
(RR60:111-14, 171-76, 217, 232-257; SX125-26, 202). Police had no
information suggesting that Appellant knew the Finches or had any
reason to be at their home. (RR60:113-14). Lonnie’s fingerprints did
not match those recovered from the Rose Lane address. (RR60:131).
7Bernard Blackmon was deceased at the time of the 2014 trial. The transcript of
his prior testimony was read into the record. (RR61:188).
14
Appellant’s fingerprints were found on the Knox hat box recovered
from the Hancock Street dumpsite. (RR60:221, 260; SX134, 202).
In 1986, Carolyn VanWinkle performed serological testing on the
following items: the black raincoat (SX111); some pillowcases; black
and white shoes; a bedsheet and mattress pad; Mildred’s clothes; and
the sheets from around Mildred’s body. (RR61:15, 18-19, 21). The
raincoat tested positive for blood. (RR61:22; SX111). It was Fred’s and
Mildred’s blood. (RR61:22, 26; SX111). Further testing of the samples
from the raincoat did not reveal the presence of any foreign blood.
(RR61:28-29). A presumptive test performed on the black-and-white
shoes was positive for blood. (RR61:35-38; SX30). The gold bedsheet
and white mattress pad collected with Mildred’s body both “had a large
quantity of blood and blood soaked into it.” (RR61:38-39). Samples of
the blood corresponded to the Finches. (RR61:39).
A pink and green pillowcase that was received with Fred’s body by
the medical examiner was also tested. (RR61:30-31). “[T]here was
semen identified on the pillowcase.” (RR61:31). “[S]permatozoa were
identified on that stain.” (RR61:33-34). A screening test performed on
15
the anal swab collected during Fred’s autopsy was positive for the
presence of semen. (RR61:32-33, 43). The semen was Fred’s. (RR61:43).
Certain items of evidence were subjected to testing “for handler
DNA or any epithelial cells that may have come off when somebody was
carrying them or maybe wearing them.” (RR61:128, 132-33; SX208-09).
Mildred’s pajama shirt contained human blood. (RR61:137). There
were three available cuttings from the shirt, but only one sample
yielded a genetic profile. (RR61:158; SX210). A sample of blood from
Mildred’s pajama shirt yielded a partial DNA profile, which was
identified as Mildred’s own blood. (RR61:153-55). There were four
available cuttings from Mildred’s pajama pants. (RR61:159; SX210).
One sample yielded a partial profile that matched Mildred. (RR61:159;
SX210). There were six available cuttings from the bedsheet from the
Finch home. (RR61:160; SX210). One sample yielded a full genetic
profile, which was that of Mildred. (RR61:161-62; SX210). Several
partial genetic profiles from the sheet were also a match to Mildred.
(RR61:162-63; SX210). Testing of a hair curler yielded a partial profile
matched to Mildred. (RR61:163; SX210). Testing of a hair curler clip
yielded a partial profile matched to Mildred. (RR61:163; SX210).
16
Three stains from the raincoat did not yield any DNA. (RR61:164;
SX210). One stain from the raincoat, however, matched Mildred’s
DNA. (RR61:164-65; SX210). The cutting from a pillowcase matched
Fred’s DNA profile. (RR61:171-72; SX217).
Angela Fitzwater tested the anal swab from Fred’s rape kit.
(RR61:169; SX218). Both the epithelial cell fraction and the sperm cell
fraction matched Fred’s DNA profile. (RR61:170, 173-74; SX218). DNA
testing from Fred’s right-hand fingernail clippings was also a match to
Fred. (RR61:170; SX218).
The Thomas Family
In March of 1986, Appellant, his mother (Shirley Thomas), his
brother (Lonnie Thomas), his sister (Shirley), and Lonnie’s girlfriend
(Delores Easter) shared a home at 4323 Electra. (RR62:11-13, 28, 30,
73, 81, 118-19). Lonnie and Easter occupied one of the bedrooms in the
house.
On Saturday, March 15, 1986, Lonnie watched wrestling on
television, after which he and Easter went to bed. (RR62:74). Early
the following morning, Appellant woke him up, “bringing in some
clothing and bags and boxes.” (RR62:74). He had “a suitcase, with a
17
pistol in it. He had boxes with hats and clothes, and he had [sic] Rolex
watch on. (RR62:14). Appellant wanted Lonnie to help him bring
everything inside. (RR62:32, 75-76). Appellant put the property on the
living room couch, on the porch and in the back room. (RR62:31).
Included among the property were long-sleeve shirts with initials
embroidered on them. (RR62:15-17). The initials did not correspond
with Appellant’s name. (RR62:15). Appellant claimed that he got the
property as payment for helping a lady “move something out of her
garage.” (RR62:76).
At one point, Appellant went into the bathroom. (RR62:76).
When Appellant came out, Lonnie saw a shirt lying in the bathtub.
(RR62:77). The shirt was covered in blood on the right side from the
wrist to the elbow. (RR62:76-77). Lonnie also saw a bloody knife in
the bedroom. (RR62:78-79). It was a long hunting-type knife.
(RR62:78). It was about six inches long and had a “cream-colored speck
with brown” handle. (RR62:78). Appellant claimed that he had
stabbed a dog. (RR62:13-14, 78).
Appellant showed Lonnie “an old model .38 Breakdown front side”
firearm. (RR62:79). The gun was in a briefcase. (RR62:80). Appellant
18
was wearing “a gold-band watch.” (RR62:80-81; SX221). After he
showed Lonnie the property, Appellant “basically kind of just sat down
and fell asleep.” (RR62:82). When Lonnie woke up the following
morning, Appellant was gone. (RR62:83). The bloody shirt and knife
were also gone. (RR62:83).
That day, Appellant’s other brother, Billy,8 went to the house on
Electra at about noon. (RR62:143). He wanted his mother to pay him
for babysitting his nieces and nephew. (RR62:142-43). At the house,
Billy noticed some big boxes in the bedroom where Lonnie and Kenneth
slept. (RR62:144, 177, 200). He did not see how the boxes got there.
(RR62:177, 200).
On Monday, Appellant met up with his cousin Thomas Penagraph.
(RR62:42, 43). Appellant went over to Thomas’s house, then Appellant,
Thomas, and Thomas’s girlfriend Brenda Jackson all went to the house
on Electra. (RR62:43-44). There, Appellant changed into a black suit.
(RR62:45, 50; SX24). He showed Thomas “[t]he suede brown jacket. A
couple of hats . . . [and] some suits[.]” (RR62:44-45; SX16, 18-19).
Appellant was wearing a watch that was big and looked expensive.
8Billy Thomas was deceased at the time of the 2014 trial. The transcript of his
prior testimony was read into the record. (RR62:140).
19
(RR62:45; SX219-21). Thomas had not seen Appellant with that watch
or that property before. (RR62:45-46, 52, 68). Appellant gave Thomas
one of the jackets and one of the hats. (RR62:46; SX16, 19).
On Tuesday, Lonnie heard on the radio that a lawyer and his wife
had been killed “in the South Dallas area, close to where I lived.”
(RR62:85). That day, Lonnie moved the property from Electra to his
cousin Bobby Roy’s house. (RR62:86, 101). Billy had told Lonnie of a
call that he had received from Kathy, “to get the stuff out of my mom’s
house because my brother had killed some people.” (RR62:87). Later,
Billy called and told Lonnie to get rid of the property because the police
were looking for him. (RR62:87). Lonnie put everything in a sheet
and trash bags and he and Kathy took the property to Hancock.
(RR62:88-89; SX87-88). Afterward, he went back to the house on
Electra. (RR62:90).
The police came and picked Lonnie up and took him to the station
where he gave a statement. (RR62:91, 132-35; SX223). In this
statement Lonnie told Detective Gallagher that he saw Appellant with
the property on Sunday morning. (RR62:92-93). He told them about
the bloody shirt. (RR62:93). He did not say anything about the knife
20
or the gun or about dumping the property on Hancock. (RR62:93, 128-
29). The police were taking Lonnie home when they learned that
someone had seen Lonnie dumping the property. (RR62:93, 122-23).
Lonnie realized that he had to be honest. (RR62:123, 125). On
Hancock, he pointed out the property that he and Kathy had dumped.
(RR62:94). Lonnie was placed under arrest for murder.9 (RR62:94, 96).
He gave a second statement. (RR62:95; SX224). In this statement, he
told police about the bloody knife, the bloody shirt, the pistol, and how
the property moved from Electra to Hancock. (RR62:95, 135; SX224).
After Lonnie’s arrest, Billy started receiving calls from Appellant.
(RR62:156-57). During one call, Appellant said he was coming to the
house to get his clothes. (RR62:158, 187). Appellant also said “[t]hat he
was going to kill us.” (RR62:159). During another call, Appellant said
“[t]hat he was going to kill us all if he didn’t get what he wanted.”
(RR62:160). He wanted “[h]is money and clothes.” (RR62:161). The
threat to kill was directed at Billy and their mother. (RR62:163). Billy
called the police. (RR62:188). He was told to call back if Appellant
went to the house. (RR62:188).
9After Lonnie testified at the trial in 1987, his case was “dismissed for insufficient
evidence.” (RR62:97, 137).
21
That night, Appellant returned to the Electra house. (RR62:164-
65). Appellant and Billy discussed Lonnie and money.10 (RR62:164-65,
205, 207, 216-17). Appellant wanted Billy to give him $8,000.
(RR62:165, 193). Appellant went to the back room, came back, pointed
a gun at Billy’s head and then pulled the trigger.11 (RR62:166, 193-94,
205). He pulled the trigger six times. (RR62:166, 194). Billy told
Appellant that the police had called. (RR62:167). Appellant said that
“he didn’t know what the police were looking for him for unless they
had some money to give him.” (RR62:167). If Billy didn’t give
Appellant his money or clothes, Appellant was going to kill the family.
(RR62:167-68). Appellant was upset. (RR62:170).
Lonnie’s father, Lonnie Burrell,12 went to the house on Electra
that night. (RR62:225). When he arrived, Appellant was walking out.
(RR62:226). Appellant asked where Lonnie was. (RR62:226). Burrell
said Lonnie was probably in jail for something that Appellant did.
10 On direct examination, Billy testified that the encounter with Appellant and the
gun occurred on Tuesday night. On cross-examination, he testified that the
encounter occurred on Monday night. (RR62:197, 205, 207, 209-14). His memory
was refreshed with his prior testimony wherein he testified that the encounter took
place on Tuesday. (RR62:209-15). He eventually testified that “maybe I had the
days mixed up.” (RR62:211).
11 Billy had not previously seen a gun at the house on Electra. (RR62:200-01).
12 Lonnie Burrell was deceased at the time of the 2014 trial. The transcript of his
prior testimony was read into the record. (RR62:220).
22
(RR62:226-27). Appellant told Burrell that Lonnie did not know
anything. (RR62:227). He said that Lonnie was not with him “during
the time.” (RR62:227). Later that evening, coverage of the murders
appeared on the news. (RR62:228). Appellant’s mother asked
Appellant whether he killed them and Appellant said yes. (RR62:164,
169-70, 217-18, 228). He said that “the dead can’t talk and he wasn’t
through yet.” (RR62:164). Appellant said that he was not finished
killing yet. (RR62:229).
Appellant was arrested later that night. (RR62:172, 229).
Appellant’s Criminal History
The State presented evidence of Appellant’s criminal history and
bad behavior while in prison:
On February 18, 1979, an 18-year-old Marvin Lindwood went to
his friend Vicki Calhoun’s house for drinks. (RR63:68-69, 88).
Lindwood and Vicki were sitting around having a good time when
Appellant came over. (RR63:69). Vicki invited him in. (RR63:69). For
the first couple of hours, everything went well but then Appellant tried
to attack Vicki. (RR63:70). In the kitchen “he had her in there up
against the sink. He was trying to pull her clothes off of her.”
23
(RR63:70). Lindwood told Appellant to leave Vicki alone. (RR63:70,
79). He and Appellant started fighting. (RR63:70, 79, 90). “He hit me.
I hit him.” (RR63:70). At some point, Appellant left. (RR63:71).
Lindwood stayed with Vicki to continue drinking and listening to music.
(RR63:71). Later, Lindwood heard someone calling his name outside.
(RR63:71). It was Appellant. (RR63:71).
“When [Lindwood] went to the door, [Appellant] was standing up
out there acting like he wanted to apologize and all that there.”
(RR63:71). He told Lindwood that he knew he was wrong and asked
Lindwood to apologize to Vicki for him. (RR63:71). He said he would
not return. (RR63:71). Appellant got up as if he were going to walk off.
(RR63:71, 87). Lindwood turned to go inside. (RR63:71, 87, 90). The
last thing he remembered was reaching for the screen door. (RR63:71-
73, 90). “That’s when [Appellant] stabbed [him] in the head with that
screwdriver.” (RR63:72). When Lindwood woke up, he was in the
hospital and nearly a month had passed. (RR63:74).
The screwdriver penetrated Lindwood’s brain. (RR63:75).
Lindwood suffered irreversible, permanent brain damage. (RR63:84).
The stabbing caused permanent damage to the left side of his body.
24
(RR63:74-75). Lindwood suffered a loss of mobility to his left side.
(RR63:74).
That same day, Billy, who was living with Appellant, Lonnie, their
sister, and their mother, gave Appellant money to buy beer.
(RR63:111). Appellant did not come back with any beer. (RR63:111,
116-17). Instead, Appellant returned late. (RR63:111). Then, they got
into a fight during which Appellant cut Billy.13 (RR63:112). Appellant
also cut Billy’s friend, who happened to be at the house during the fight.
(RR63:112-13). After the fight with Billy, Appellant went next-door, to
his ex-girlfriend Joyce Brown’s house. (RR63:101-02). When Brown
refused to let him inside, Appellant broke her window. (RR63:102-03).
Appellant was tried for the offense against Lindwood. He was
convicted of aggravated assault with a deadly weapon and was
sentenced to ten years’ confinement in the institutional division of the
Texas Department of Criminal Justice. (RR60:223, 264-65; SX205).
In January of 1983, Michael Ferguson was arrested and jailed
for murder. (RR63:136). He was assigned to a cell with Appellant.
(RR63:137-38). Initially, Appellant was “playing the nice-guy role.”
13 On direct examination, Billy testified that he was cut on his forehead.
(RR63:112). On cross, Billy admitted that it could have been on his chest.
(RR63:115).
25
(RR63:138). Appellant was religious and read scripture. (RR63:138).
Once Ferguson let his guard down, however, Appellant became
aggressive. (RR63:138-39). Appellant “started coming on to me
sexually, of course. Extortion. Wanted to know if I had money and
whatnot.” (RR63:138-39). Appellant was “[d]emanding.” (RR63:139).
He was a “predator.” (RR63:142). Ferguson was transferred out of
Appellant’s tank. (RR63:140-41).
On June 13, 1983, Steven McCarroll was in the Dallas County
Jail, incarcerated on a charge of aggravated robbery. (RR63:150).
McCarroll was assigned to Appellant’s tank. (RR63:150). That day,
McCarroll saw Appellant “raping another inmate.” (RR63:151).
McCarroll was sleeping on the bunk on one side of the cell. (RR63:152-
53). Appellant was on the bunk on the other side with “the sheet up
over the top of the bunk.” (RR63:152). The sheet fell down and
McCarroll saw Appellant on top of the other inmate. (RR63:152). The
inmate was screaming. (RR63:153).
The following day, when McCarroll got out of the shower
Appellant approached him “want[ing] me to suck his dick.” (RR63:154).
McCarroll “tried to get away from him. Ended up with a broke nose and
26
two black eyes.” (RR63:154). “So he was going to try to force me to
suck his dick.” (RR63:154).
On August 25, 1983, then-17-year-old Larry Dean Turner was
incarcerated at the Dallas County Jail on an aggravated robbery
charge. (RR63:163, 165, 173). Appellant befriended Turner. (RR63:168).
At first, Appellant “got [Turner] to wash his clothes for him.”
(RR63:167). Then, he tried to get Turner to be “[h]is kid.” (RR63:167).
“All the big peoples [sic] up there. You had younger people on the tank
with them at that time.” (RR63:168). Appellant wanted Turner to
“[r]ide with him: Be his bitch.” (RR63:168). Turner explained that
meant that Turner was supposed to be Appellant’s “woman. Kid.
Where I do sexual stuff for him, and stuff like that there.” (RR63:168).
Additionally, “If he told me to have sex with people, I have to have sex
with people.” (RR63:169).
Over the course of the four and a half years Appellant was
incarcerated at the Dallas County Jail, he was moved multiple times.
(RR63:181-82). Among the reasons for his moves were: placing in
administrative custody; assaultive towards other inmates; causing
27
trouble in tank; fighting; making sexual threats; unable to get along
with others; and to keep down trouble. (RR63:182; SX228).
Appellant was released from prison on June 1, 1984. (RR63:187;
SX226). He was required to report to his parole officer, Linda Nelson,
on a monthly basis but he failed to do so. (RR63:186, 188). Appellant
was “unstable with his residence” and he “did not maintain stable
employment.” (RR63:192-93). While on parole, Appellant tried to stab
his mother. (RR63:189). He had a parole violation hearing after which
he was ordered to go to a halfway house for six months.14 (RR63:189).
Appellant absconded from the halfway house. (RR63:190).
Records relating to Appellant’s disciplinary incidents in prison
were also admitted. (RR65:36; SX245). While in prison, Appellant
engaged in the following conduct: he created a disturbance by flooding
his cell (twice); he used indecent or vulgar language; he threw his tray
out of his cell; he threatened an officer, telling him, “If you put me on
that list again, I will do something to your ass”; Appellant refused to
obey an order (multiple times); he got into a fistfight with another
14 At the hearing, Appellant’s mother denied that Appellant had assaulted her; she
testified that she wanted him arrested for a few days and she knew she would have
to tell the police something serious. (RR63:196-97). The assault against Appellant’s
mother was reduced to a Class C misdemeanor. (RR63:196).
28
inmate; he threw two glasses of water at an officer, striking him on the
face and chest; he was found in possession of contraband (multiple
times); and, he threatened an officer, telling him, “I’m going to burn
your ass.” (RR65:37-40; SX245).
Appellant’s Case
Appellant’s cousin, Anthony Penagraph, testified that he and
Appellant grew up “over there in Frazier Court.” (RR65:43). It was
difficult there because in that area “you go to the store, you go to school,
you had to fight. And Kenneth was not the type of person that was a
fighting person.” (RR65:44). Anthony testified that Appellant was
picked on and had to be rescued a couple of times. (RR65:47). If
Appellant had to defend himself, however, he would. (RR65:56).
Appellant’s mother worked a lot. (RR66:78). According to several
of Appellant’s cousins, Shirley treated Appellant differently than her
other children. (RR65:51; RR66:80, 129). “[W]hen it came to Kenneth .
. . she didn’t do too much for him. Just to get by.” (RR65:51).
Appellant did not have a father figure growing up. (RR66:77).
According to Anthony, Appellant “was a little slow[.]” (RR65:49).
Appellant made it through school but “they would help you get through
29
those grades.” (RR65:49). His grades were “low.” (RR65:49).
Appellant’s cousin Cynthia Penagraph Rice also believed that Appellant
was slower than others. (RR66:130). She testified that:
We always thought that. Because sometimes it will take
him, like, quite a minute to kind of catch on. He would say,
“What you say?” You know, he was slow.
(RR66:131).
When he was 15, Appellant received a head injury at Fair Park.
(RR65:52; RR66:19). “It was a guy jumped on him out there and hit him
in the head with some object. And he been acting different ever since.”
(RR65:52). After Appellant’s head injury, Appellant “kind of drifted
away a little bit.” (RR66:84). He was “[m]ore quiet.” (RR66:85). After
his head injury, “he seem [sic] to get a little slower.” (RR66:132).
Appellant’s cousin Bobby testified that Appellant never did any
drugs around him. (RR66:90). He had seen him drink beer, however.
(RR66:90).
Rice was surprised when she learned that Appellant was arrested
for the Finch murders. (RR66:135). She testified that Appellant is “not
that type.” (RR66:135). She did not think that Appellant could have
committed the offense by himself. (RR66:135).
30
Rodney Turner is Appellant’s half-brother.15 (RR66:96). Growing
up, Turner had only brief interaction with Appellant. (RR66:96). In
1990, however, he and Appellant reconnected by writing letters when
they were both in prison. (RR66:97). The men encouraged each other
through their letters. (RR66:97). Appellant would include in his letters
citations to scripture for Turner to look up in the Bible. (RR66:106).
When Turner was let out on parole, he visited Appellant in the Dallas
County Jail. (RR66:101-02). During their twice-weekly visits, the men
discussed religion. (RR66:102). Appellant is able to discuss the Bible,
scriptures, “you know - - just helpful things.” (RR66:102). Turner
brought Appellant’s mother to visit him a couple of times. (RR66:103).
She appeared supportive of him during the visits, but “when she got in
the car, was something totally different.” (RR66:103).
Several detention officers who have supervised Appellant in the
Dallas County Jail since he was transferred from prison in October
2010 testified that Appellant does not cause problems in the jail.
(RR67:19-21, 23-24, 41, 50; RR68:22, 25-26, 28). Van Similine testified
15 At the time of his testimony, Turner was incarcerated as the result of a parole
violation on charges of aggravated sexual assault and burglary of a habitation.
(RR66:97-98). Turner admitted that he has ten felony convictions and is a
registered sex offender. (RR66:106).
31
that Appellant “stays to himself. Don’t [sic] cause no [sic] problems.”
(RR67:41). In his cell, Appellant is “[e]ither reading or sleeping.”
(RR67:41). Appellant reads “novels off the law library cart.” (RR67:45).
During Appellant’s recreation time, he goes to the gym and walks or
plays basketball. (RR67:42). Curfey Anderson described Appellant as
“[i]nstitutionalized.” (RR67:24).
Defense expert, James Aiken, a prison consultant, reviewed the
records detailing Appellant’s confinement history. (RR67:67, 74).
According to Aiken, since he has been incarcerated, Appellant has been
on a “predictable scale.” (RR67:83). Appellant has “gone from
disruptive behavior, down, down, down, to compliant behavior[.]”
(RR67:83). Aiken opined that Appellant “can be adequately managed
for an extended period of time, without causing unusual risk to staff,
inmates or the general public.” (RR67:97). If he is placed in general
population, “[h]is vulnerability level will be high. His adjustment level
would be excellent.” (RR67:97).
Appellant’s Psychological Experts
Dr. Jim Hom, a neuropsychologist, evaluated Appellant’ brain
functioning in 1987. (RR65:82, 91). Dr. Hom administered the
32
Halstead-Reitan Neuropsychological Test Battery. (RR65:88). On the
WAIS-II,16 a “measure of intelligence,” Dr. Hom determined that
Appellant’s reading level is at a fourth grade level,17 his spelling below a
third grade level, and math below a third grade level. (RR65:110, 115).
Appellant scored a verbal IQ of 73, a performance IQ of 85, and a full-
scale IQ of 77. (RR65:118). In his report, Dr. Hom noted that, with
regard to Appellant’s low scores, “it is likely that these performances
represent poor education experience.” (RR65:123; DX7).
Appellant performed well on the Tactual Performance Test, “a test
of psychomotor problem solving, incidental memory learning.”
(RR65:132). “This is a very challenging test.” (RR65:133). Appellant
performed well on the Trail Making Test, Part A, a “test of attention
and concentration[.]” (RR65:134). Appellant demonstrated no problems
on tests of vision, hearing, touch, and sensation. (RR65:135).
Appellant’s ability for “inscription” using his left hand was “quite
strong” despite a history of being stabbed on his left arm. (RR65:135;
DX7).
16The current version of this test is the WAIS-IV. (RR65:111).
17Given Appellant’s reading level, the results of two tests were considered invalid:
the Minnesota Multiphasic Personality Inventory (MMPI) and the Cornel Health
Index. (RR65:89-90).
33
Dr. Hom testified that Appellant’s “test results are consistent with
someone who has what I believe is a significant head injury of one sort
or another.” (RR65:102-03). He assessed Appellant’s intelligence in the
“low 70 range” and his academic abilities at the third and fourth grade,
level. (RR65:103). He opined that Appellant has “significant problems
in reasoning and thinking,” and difficulty in sequencing, concentrating,
language and function. (RR65:103-04). He described Appellant’s verbal
memory as “moderately to severely impaired.” (RR65:105). He also
showed “mild motor and sensory difficulties.” (RR65:107). Dr. Hom
conceded that during testing Appellant was, at times, nonchalant and
“[r]eluctant to perform.” (RR65:120, 125, 128; DX7).
Dr. Antoinette McGarrahan, a psychologist specializing in forensic
psychology and neuropsychology, performed a neuropsychological
evaluation of Appellant in 2012. (RR66:15-16). Dr. McGarrahan
administered 30 to 35 tests over the course of two days. (RR66:21). Dr.
McGarrahan measured Appellant’s full-scale IQ at 71. (RR66:23). She
placed this score in “what we used to call ‘mildly mentally retarded’
range to borderline functioning[.]” (RR66:23). She noted that the
interval of Appellant’s IQ is “essentially plus or minus five points,’ thus
34
placing his true score somewhere in the range of 66-76. (RR66:29-30).
She observed “significant deficits in [Appellant’s] academic skills” and
mild to moderate memory impairment. (RR66:23). Based on the
results of her evaluation, Dr. McGarrahan concluded that Appellant is
intellectually disabled.18 (RR66:24).
During the evaluation, Dr. McGarrahan learned that Appellant
was raised in “the projects” and that his family was poor. (RR66:18).
Dr. McGarrahan also pointed out the fact that Appellant’s mother
smoked and drank alcohol while she was pregnant with Appellant.
(RR66:26). And, Appellant was born with the umbilical cord wrapped
around his neck while his mother was in a car on the way to the
hospital. (RR66:26). He was never placed in special education but he
did not learn to drive; he had problem making change; he had difficulty
using a phone book. (RR66:18, 25). He had “very few jobs over his life.”
(RR66:18). Appellant was a loner and had difficulty getting along
with others. (RR66:25). He does not have “a psychiatric history.”
(RR66:19).
18Intellectual disability was previously referred to as mental retardation. At trial,
the terms were used interchangeably.
35
Dr. McGarrahan testified that, consistent with Dr. Hom’s
findings, in both sets of testing, the primary areas in which Appellant
demonstrated impairment are reasoning, logical thinking, planning,
and problem solving. (RR66:33).
On cross-examination, Dr. McGarrahan testified that the history
Appellant gave her “wasn’t quite accurate.” (RR66:36). Appellant told
Dr. McGarrahan that “he had a wonderful childhood; that there were no
problems; that he had great relationships with his family members;
that he did okay in school.” (RR66:36). Dr. McGarrahan conceded that
Appellant is capable of lying to avoid criminal responsibility.
(RR66:53). She acknowledged that when Appellant was interviewed by
a reporter, he said that on the day of the murders he went to church
with his girlfriend in the morning and then had supper at his father’s
house. (RR66:52-53). He also told the reporter that there was no proof
that he committed the murders because the police did not have a
weapon. (RR66:52).
36
Psychiatrist Dr. Jaye Crowder became involved in Appellant’s
case in 1987.19 (RR66:140-42). Back then, Dr. Crowder performed a
mental status exam, conducted background interviews, and reviewed
Appellant’s medical records. (RR66:142). Dr. Crowder was concerned
that Appellant had suffered a traumatic brain injury so he referred him
to Dr. Hom for testing. (RR66:142). Dr. Hom’s testing confirmed the
presence of central nervous system damage. (RR66:144). According to
Dr. Crowder, Appellant saw difficulty with abstract reasoning.
(RR66:145). “So, in other words, it was more difficult for him to assess
the likely consequences of particular behavior.” (RR66:145).
Additionally, “you have typically some impulsiveness and irritability
that goes with this so that people can overreact in an aggressive way[.]”
(RR66:145).
Dr. Crowder examined Appellant on January 24, 2013 and again
on July 3, 2014. (RR66:146, 153). Appellant remembered him from
their 1987 interaction. (RR66:149-50). In the 2013 exam, Dr. Crowder
spent about an hour with Appellant and performed a basic psychiatric
19Dr. Crowder testified to his memory of his 1987 examination. (RR66:151). He no
longer has his notes from that time. (RR66:151). He no longer had the notes from
the interview he conducted with Appellant’s mother and uncle. (RR66:152). Other
than the mother and uncle, Dr. Crowder could not recall who he interviewed.
(RR66:152).
37
interview and a Montreal Cognitive Assessment. (RR66:146, 150). He
concluded that Appellant suffered from “major cognitive disorder due to
traumatic brain damage and intellectual disability.” (RR66:148).
Regarding Appellant’s adaptive functioning, Dr. Crowder opined that
Appellant has difficulty in interaction, trouble with employment, and
did not perform well academically. (RR66:157-58). In Dr. Crowder’s
opinion, the probability of Appellant being a future danger is low.
(RR66:149). He admitted, however, that an absolute prediction of
future danger cannot be made. (RR66:162). And, he conceded that he
testified at Appellant’s prior trial that Appellant “is certainly a danger
if he’s not treated and not put in a structured setting.” (RR66:164).
Dr. Crowder also conceded his prior testimony that Appellant’s alibi –
that he was with his girlfriend between midnight and six in the
morning – was easily refutable and not very believable. (RR66:169).
The State’s Case-in-Rebuttal
Melodye Nelson, a 25-year veteran of TDCJ, testified as an expert
on the prison system in Texas. (RR68:144). She is the senior warden
of two correctional facilities located in the Gatesville area. (RR68:144).
She has previously served as a major at a high-security male prison
38
facility. (RR68:146). “Our majors are what we consider our chiefs of
security. They are the highest-ranking security supervisors that we
have.” (RR68:146). Nelson testified generally about the types of
facilities, number of inmates and guards statewide, and how inmates
are classified within the system. (RR68:144-45).
Inmates in TDCJ are classified “in a custody level that is suitable
for the safety and security of the institution.” (RR68:151). Among the
factors considered are the inmate’s history of incarceration and prior
jail conduct, the length of his sentence, and the inmate’s behavior and
attitude. (RR68:152). General Population 1, or “G1,” includes those
inmates who are considered “minimum custody.” (RR68:153). A G1
may be a trustee, which allows him to live and work outside of the
facility’s perimeter fences. (RR68:153). General Population 2, or “G2,”
is the largest percentage of the general inmate population. (RR68:153).
A G2 may live and work in a dormitory. (RR68:153). A G2 is allowed to
work anywhere inside the secure perimeter. (RR68:163).
General Population 3, or “G3,” includes inmates serving 50 years
or more. (RR68:153). G3s may live in dormitories. (RR68:157). They
are allowed to work, so long as they do not “have access to multiple
39
areas of the facility.” (RR68:158). General Population 4, or “G4,”
includes those inmates who have multiple disciplinary infractions.
(RR68:153). G4s are “housed in cell blocks, two-man cells.”
(RR68:182). They have fewer work opportunities. (RR68:182). General
Population 5, or “G5,” are those inmates who are “chronic-rule
violators[.]” (RR68:153). G5s live on cell blocks and are not allowed
contact visits. (RR68:182). Their ability to purchase from the
commissary is reduced. (RR68:183). Finally, administrative segregation
is “a classification outside of general population.” (RR68:154). These
offenders are “housed singularly . . . [and they] recreate individually[.]”
(RR68:154).
An inmate coming into TDCJ with a life sentence is classified as a
G3 upon arrival. (RR68:155). A capital murderer with a life sentence
will be initially classified and housed with all other G3s. (RR68:157).
A G3 will change classification to a G2 after ten years of incarceration if
he has never taken a hostage or escaped a secure correctional facility.
(RR68:162).
Nelson testified that, on average, there are about 15,000 assaults
in prison each year. (RR68:165). This figure includes inmate-on-
40
inmate assaults as well as inmate-on-staff assaults. (RR68:165). In
prison, murders occur as well. (RR68:166). There have been murders
of inmates, guards, and civilian contractors. (RR68:166).
Dr. Richard Hughes, an educational psychologist, testified that
students in the Dallas Independent School District (DISD) are routinely
administered achievement tests and intelligence tests. (RR68:190).
Dr. Hughes reviewed records of Appellant’s scores on the California
Test of Mental Maturity and the Iowa Test of Educational
Development. (RR68:190, 192-93; SX246-247). Both tests have an
average score of 100 with a standard deviation of 15. (RR68:192).
Because these tests are group-administered, they are less reliable than
an individualized testing experience. (RR68:208).
Appellant was administered the California Test of Mental
Maturity when he was in second grade in May of 1973. (RR68:200).
The California Test of Mental Maturity is “a group-administered
measure of intelligence.” (RR68:198). Appellant scored a 78 language
IQ, a 92 non-language IQ, and an 82 total IQ. (RR68:198).
Appellant was administered the Iowa test in September of 1975.
(RR68:207). This test includes sections on reading, language arts,
41
math, social studies, science, the use of sources,20 and a composite.
(RR68:195). On the reading portion, his score of 91 falls within the
average range. (RR68:196). On the language arts section, he scored a
78, which falls within the borderline range. (RR68:196). Math was
Appellant’s highest score; he scored a 97-98, which is just below the
average score of 100. (RR68:197). On the social studies portion,
Appellant scored an 89-90, which is “one foot in the low-average range.
The other in the average range.” (RR68:197). On the science portion,
Appellant scored an 83. (RR68:197). On the use of sources portion, he
scored a 93. (RR68:197). On the composite portion, he scored at the
88-89 level. (RR68:197).
Dr. Hughes also reviewed Appellant’s grades. Dr. Hughes noted
that “[g]rades are not good reflections of intellectual capacity.”
(RR68:201). Indeed, grades measure only “a student’s ability or
20 Dr. Hughes described the Use of Sources portion as follows:
The Use of Sources is a sub-test designed to see how a student can
utilize sources to pursue answers to problems.
For example, multiple-choice questions might be posed that says in
order to find the capital of the state of Texas, you would look in A, a
dictionary; B, an encyclopedia; C, D, and choices like that, to see if they
can select the correct source to obtain information that they are
pursuing.
(RR68:195).
42
willingness to comply, whether they bring their homework assignment
in on time or whether they push through an extra-credit project or
whether they complete their class work assignment.” (RR68:201).
Grades do not measure cognitive functioning. (RR68:201).
Elementary school children are evaluated using a numerical system,
giving grades of one through four. (RR68:199-200). A one is assigned
for “rapid progress,” a two for “satisfactory progress,” a three for
“acceptable progress,” and a four for “little or no progress.” (RR68:200).
In junior high and high school, students are given grades of A through
F. (RR68:199).
In his elementary years, Appellant received a number of 3s and
4s. (RR68:203). In sixth grade, Appellant received Bs, Cs, and Ds.
(RR68:204). In seventh grade he received Ds and Fs. (RR68:203). In
eighth grade he received all Fs. (RR68:203). When Appellant started
attending Metro North in tenth grade, he received Bs and Cs.
(RR68:203). Appellant was moved to Metro North after his head injury
at Fair Park. (RR68:210). Metro North is “an alternative regular-
education program that was on a special class placement for
handicapped students.” (RR68:204).
43
Appellant’s grades stand in contrast to his test scores, which
reflect an ability to do well in school. (RR68:201-02). Had Appellant
applied himself in school, his grades would have been better.
(RR68:202). There is no evidence in Appellant’s DISD records that he
was ever placed in a special education program. (RR68:207). “The
records from Dallas ISD indicate his education was all offered within
the general education program.” (RR68:207). Notably, Appellant’s
school records “are not consistent with a student that’s mentally
retarded.” (RR68:207).
Forensic psychologist and neuropsychologist, Dr. Randy Price,
testified that Appellant does not meet the definition of intellectually
disabled as that term is described in Special Issue No. One. (RR69:14).
Dr. Price became involved in Appellant’s case in 2003. (RR69:18). Dr.
Price was scheduled to interview Appellant on July 13, 2014, but he was
unable to do so as Appellant refused. (RR69:21-22).
SUMMARY OF THE ARGUMENT
Issues 1-7: The trial court did not err in denying Appellant’s
Batson challenges to the following prospective jurors: Biswas, Tilley,
Moore, Nohe, Figures, McGowan, Prieston, and Barbosa.
44
Issues 9-23: The trial court did not err in denying Appellant’s
challenges for cause to fifteen prospective jurors. He was not denied the
right to a fair and unbiased jury.
Issues 24-30: The trial court did not err in granting the State’s
challenges for cause against the following prospective jurors: Kingery,
Morris, Davila, Hawkins, Kinzie, Flores, and Hogan.
Issue 31: The decision by the United States Supreme Court in
Hall v. Florida, 134 S. Ct. 1986 (2014), did not invalidate this Court’s
decision in Ex parte Briseno.
Issue 32-34: The trial court did not err in denying Appellant’s
request to quash the panel of prospective jurors. The trial court did not
err in denying Appellant’s request to re-question the jurors following
Hall.
Issue 35-36: Appellant was not deprived of a lawfully
constituted jury.
Issue 37: The trial court properly denied Appellant’s Motion to
Disqualify the District Attorney’s Office after Appellant’s former
second-chair counsel, Russell Wilson, accepted a job at the Dallas
County District Attorney’s Office. While it is true that Wilson was
45
disqualified from assisting in the prosecution of Appellant’s case, the
elected district attorney and his other assistants were not.
Issue 38: The trial court properly overruled Appellant’s motion
for mistrial during the competency trial when the prosecutor referred to
the “murder weapon.” Alternatively, any alleged error was cured by the
trial court’s instruction to disregard.
Issue 39: Appellant’s objection to the prosecutor’s question
during the competency trial regarding the 1987 reversal of Appellant’s
punishment is not properly before this Court. Regardless, the same
information was later received elsewhere without objection.
Issue 40-41: The evidence is both legally and factually sufficient
to prove Appellant’s competency to stand trial.
Issue 42: The trial court properly overruled Appellant’s
objection to Dr. Price’s testimony that Appellant exhibits traits
consistent with anti-social personality disorder. Alternatively, any
alleged error is harmless.
Issue 43: Although Dr. Price testified regarding Appellant’s
lack of remorse during a sub rosa hearing, he did not do so before the
jury.
46
Issue 44: The trial court did not err in admitting a silhouette of
a knife as a demonstrative aid. Alternatively, any alleged error is
harmless.
Issue 45: The trial court properly admitted the photographs
from Mildred’s and Fred’s autopsies as they help to explain the nature
and extent of their injuries. Alternatively, any alleged error is
harmless.
Issue 46: The trial court did not err in overruling Appellant’s
objection to the victim-impact testimony from the Finches’ son-in-law,
James Belt, Jr.
Issue 47-48: Appellant failed to prove by a preponderance of the
evidence that he was intellectually disabled. The jury’s answer to the
intellectual disability special issue was not so against the great weight
and preponderance of the evidence so as to be manifestly unjust.
Issue 49: The evidence is legally sufficient to support the jury’s
decision to find that Appellant is a future danger.
Issue 50: The trial court did not err in overruling Appellant’s
requested jury instructions regarding significantly sub-average general
47
intellectual functioning. One of the proffered instructions was
incorrect. The other was a comment on the weight of the evidence.
Issue 51: The trial court did not err in overruling Appellant’s
request that the jury not be required to be unanimous regarding the
intellectual disability special issue. Appellant presents no authority
mandating such an instruction.
Issue 52: The trial court did not err in overruling Appellant’s
request for an instruction in the punishment charge that Lonnie
Thomas was an accomplice witness. He points to no authority that this
instruction is required in a punishment charge.
Issue 53: The trial court did not err in overruling Appellant’s
request for an anti-parties charge. Contrary to the statements in his
brief, the guilt-innocence instruction did not include a parties’
instruction.
Issue 54: The trial court did not abuse its discretion in denying
Appellant’s motion, filed prior to sentencing, for an additional inquiry
into Appellant’s competency to stand trial. Appellant failed to present
evidence of a material change in circumstances suggesting that
Appellant’s mental status had deteriorated.
48
Issue 55: Appellant’s claim that the evidence is insufficient to
support his conviction for capital murder presents nothing for this
Court’s review. Appellant was retried on punishment only. His guilt
was not at issue.
Issues 56-67: The trial court properly denied Appellant’s
challenges to the death penalty. Appellant concedes that this Court has
previously overruled these issues.
ARGUMENT
STATE’S RESPONSE TO ISSUE NOS. 1-7: 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
prospective jurors Neena Biswas, Leon Tilley, Deborah Moore, Pronsak
Nohe, Cassie Figures, Mary McGowan, Artherine Prieston, and Martha
Barbosa. (Appellant’s Brief pp. 34-50). These contentions lack merit
and should be overruled.
Applicable Law
The U.S. Constitution prohibits the use of peremptory challenges
to exclude prospective jurors on the basis of race. See Batson, 476 U.S.
49
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
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.
50
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. A trial court’s conclusion that a facially
race-neutral explanation for a peremptory challenge is genuine, rather
than a pretext, should be given great deference and reversed only when
that conclusion is, in view of the record as a whole, clearly erroneous.
Id.
Analysis
Appellant failed to establish a prima facie case of discrimination
but the issue is moot.
After the competency trial, but before the punishment jury was
sworn, Appellant objected to the composition of the jury under Batson.
(RR59:66). He identified eight minority veniremembers that the State
struck. (RR59:66). The Court did not immediately rule and instead
asked, “What says the State?” (RR59:67). Without requesting a ruling,
51
the State introduced a copy of and read into the record, the Dallas
County District Attorney’s Office policy regarding Batson claims.
(RR59:67-68; SX3Z). The prosecutor then provided a “breakdown [of]
the strikes” to show that the State did not use a disproportionate
number of strikes on the basis of race or gender. (RR59:68-70). At that
point, the State objected “to the Court having found a prima facie case”
and asked for a ruling. (RR59:70-71). The Court stated that it would
“withhold at this moment a ruling on whether the Defense has made a
prima facie case or not and have the State go into [an] explanation of
their strikes.” (RR59:71). The State then explained its strikes.
(RR59:71-76).
At the conclusion of the State’s explanation, the trial court found
that “the strikes made by the State were not based upon the panel
members’ race. They were neutral in that respect, and denies the
Batson.” (RR59:77). The State then requested a ruling regarding its
prior objection that Appellant failed to present a prima facie case.
(RR59:77). The trial court stated that it was “of the opinion that a
prima facie case was not presented by the Defense.” (RR59:77).
52
The issue of whether Appellant established a prima facie case that
the State exercised its peremptory strikes on the basis of race is moot.
“Once a prosecutor has offered a race-neutral explanation for the
peremptory challenges and the trial court has ruled on the ultimate
question of intentional discrimination, the preliminary issue of whether
the defendant had made a prima facie showing becomes moot.”
Hernandez v. New York, 500 U.S. 352, 359 (1991); see also Watkins, 245
S.W.3d at 447. Because the State articulated the reasons for its strikes
and the trial ruled on the ultimate question of purposeful
discrimination, the preliminary issue of whether Appellant established
a prima facie case is moot and not subject to review on appeal. See
Chambers v. State, 866 S.W.2d 9, 23 (Tex. Crim. App. 1993) (stating,
“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”). This Court must therefore 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 447.
53
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’s burden here is to
present a facially valid explanation for its strike); Watkins, 245 S.W.3d
at 447. The State satisfied this burden.
Figures, Prieston, Barbosa, Tilley, Moore, Nohe
At the Batson hearing, the State stated that it struck Figures,
Prieston, Barbosa, Tilley, Moore, and Nohe because they ranked
themselves as either a “3” or “4.” (RR59:72-73). The State explained
that it struck all qualified veniremembers who ranked themselves as
either a “3” or a “4.” (RR59:72-73). Question No. 2 on the questionnaire
asked: “With reference to the death penalty, which of the following
statements best represents your feelings?” (Figures, Juror 755, Q. p.1).
A ranking of “3” indicated 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
circumstances.” (Figures, Juror 755, Q. p.1). A ranking of “4” indicated
the following opinion: “I believe that the death penalty is appropriate
54
in some murder cases, but I could never return a verdict which assessed
the death penalty.” (Figures, Juror 755, Q. p.1).
The State’s reasons were grounded in these jurors’ opinions
about the death penalty and are 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 death penalty
only in two specified circumstances and she felt the death penalty was
imposed too frequently—were facially race-neutral).
Biswas
The State explained that it struck Dr. Neena Biswas, Juror 64, an
Asian female, for a number of reasons. (RR59:73). Biswas
demonstrated concern about being a part of the trial process: she asked
the trial court whether and why it was necessary for Appellant to be
present and she stated that as a physician and healer, she was
uncomfortable dealing with the death penalty. (RR59:73). She stated
that she could not take the oath. (RR59:74). She stated that she would
not follow the law. (RR59:74). Biswas stated that she would require
the State to re-prove guilt and that she would increase the State’s
55
burden of proof. (RR59:74). She stated that she would not be able to
determine credibility but that police officers have more credibility.
(RR59:74). Biswas “had Fifth Amendment issues.” (RR59:74). Biswas
also informed the trial court that she was seeking employment, which
may affect her ability to serve. (RR59:73). These explanations were
race-neutral. See, e.g., Watkins, 245 S.W.3d at 450-51 (prosecutor’s
explanation in a burglary case that the juror would hold the State to a
higher burden than proof beyond a reasonable doubt was race-neutral).
McGowan
The State explained that it struck McGowan due to her stated
belief that “prosecutors are out to get people.” (RR59:75). This
explanation does not reflect an inherently discriminatory intent. See
Johnson v. State, 68 S.W.3d 644, 649-50 (Tex. Crim. App. 2002) (finding
prosecutor’s explanation that a juror was resentful toward law
enforcement was race-neutral).
Additionally, McGowan believed that (1) a difficult childhood
may lead someone to make bad choices to get attention and (2) if
someone commits an offense while on drugs, he should be sent to rehab.
(RR59:75). These explanations are also race-neutral. See Adanandus v.
56
State, 866 S.W.2d 210, 224-25 (Tex. Crim. App. 1993) (finding a
veniremember’s views regarding the role of rehabilitation in
punishment to be a race-neutral explanation for the use of a peremptory
challenge).
Conclusion
The record supports all of the State’s proffered race-neutral
explanations for exercising peremptory strikes against the eight
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.
Appellant failed to establish by a preponderance of the evidence that
the strikes were the product of purposeful discrimination
Appellant failed to demonstrate 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, not reasonableness, of the
asserted non-racial motive. Nieto v. State, 365 S.W.3d 673, 676 (Tex.
57
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
some had characteristics potentially favorable to the State’s position on
the death penalty. (Appellant’s Brief pp.35-41). 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
58
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.
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.
An analysis of these factors demonstrates that Appellant’s claim
of purposeful discrimination lacks merit.
1. Jury Shuffle
The jury pool was not shuffled in this case. The parties selected
the group of qualified jurors from a February 21, 2014 special venire.
(RR9). 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
59
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. At the Batson hearing, the trial court admitted a written
copy of the District Attorney’s Batson policy into evidence for record
purposes and the prosecutor read it into the record. (RR59:67-68;
SX3Z).
3. Proportionality of Strikes
Appellant argues that even one racially motivated peremptory
strike violates Batson yet he fails to demonstrate a pattern of
discriminatory strikes. Appellant does not identify the size or racial
makeup of the pool of qualified venire members. He does not analyze
the number of strikes used by either side or how they were used.
Instead, he relies on the jurors’ questionnaires, arguing that certain
State-struck jurors gave answers similar to those who were not struck
by the State. Appellant then argues that the State used 8 of its 14
peremptory strikes to eliminate 57% of the minorities on the qualified
60
prospective jury panel, a statistic with which the State disagrees.
(Appellant’s Brief p. 49).
The data evinces no discriminatory intent by the State. The panel
of qualified venire members consisted of 45 people. Of these, 16 (36%)
were African-American, 23 (51%) were Caucasian, 3 (7%) were
Hispanic, and 3 (7%) were Asian. The State exercised 14 peremptory
strikes. Of those 14 strikes, 5 (36%) were used on African-Americans, 6
(43%) were used on Caucasians, 1 (7%) was used on a Hispanic juror,
and 2 (14%) were used on Asians. Appellant exercised 17 peremptory
strikes. Of his 17 strikes, 6 (35%) were used on African-American
jurors, 9 (53%) were used on Caucasian jurors, and 2 (12%) were used
on Hispanic jurors. The result was a 12-member jury consisting of 3
African-American jurors, 8 Caucasian jurors, and 1 Asian juror, with 2
African-American alternate jurors.
By striking 8 of the 22 possible minority veniremembers, the State
eliminated only 36% of the minorities on the panel, not 57% as
Appellant alleges. Nevertheless, the number of minorities struck by the
State is, by itself, an irrelevant statistic. It gains relevance only by
establishing its correlation to the entire panel. See Woodward v. Epps,
61
580 F.3d 318, 339 (5th Cir. 2009) (holding that the State’s striking 100
percent 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). In Appellant’s case, the correlation shows no
discriminatory intent.
Of the 45 venire members who could conceivably be chosen for the
jury, 22 (49%), were members of a minority. A random selection would
yield either 6 or 7 minority jurors in the 14 jurors selected (12 plus 2
alternates) (or 49% of fourteen, equaling 6.86 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 4 minority
jurors and 2 minority alternate jurors. Thus, 49% of the qualified
jurors were minorities and 43% of the 14-person jury were minorities.
This jury had only slightly less than the expected amount of minority
members as would be expected from a random selection of the 45
qualified jurors. Statistical analysis simply fails to show any racial
discrimination.
62
4. Comparative Analysis
Appellant contends on appeal that the prosecutor’s stated reasons
are a pretext for racial discrimination because the minority State-struck
jurors gave responses to certain questions on their questionnaire that
are similar to jurors not struck by the State. (Appellant’s Brief p.42).
Importantly, however, at the Batson hearing, defense counsel failed to
provide any comparative analysis regarding the jurors. (RR59:66, 71,
76). And, counsel asked only one question of the prosecutor: whether
the jurors who ranked themselves as “3s,” “4s,” or “5s” on their
questionnaire were going to be struck without regard to the jurors’
qualifications. (RR59:76). The prosecutor was not questioned any
further regarding his reasons for not striking any similarly-situated
venire members. (RR59:76). 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
63
historical fact properly decided in the trial courts. See Hernandez, 500
U.S. at 367-69. 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); 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). 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
64
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
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 his 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
65
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 he
should be accorded no less of an opportunity to explain his 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 potential jurors who were not struck.
Figures, Prieston, Barbosa, Tilley, Moore, Nohe
The record supports the State’s assertion that it struck each and
every qualified prospective juror regardless of race who ranked
him/herself as a “3” or a “4,” on Question 2 of their questionnaire.
(RR59:72-73). This includes the following prospective jurors: Cassie
Figures (Juror 755, an African-American female); Artherine Prieston
66
(Juror 1055, an African-American female); Martha Barbosa (Juror 1095,
a Hispanic female); Jeffrey Nicholson (Juror 281, a Caucasian male);
Kelsey Hooten (Juror 445, a Caucasian female); and, Christen Morris
(Juror 1097, a Caucasian female). (RR59:72; Figures, Juror 755, Q. p.1;
Prieston, Juror 1055, Q. p.1; Barbosa, Juror 1095, Q. p.1; Nicholson,
Juror 281, Q. p.1; Hooten, Juror 445, Q. p.1; Morris Juror 1097, Q. p.1).
The State also struck every person on the qualified-juror panel
that selected number “4.” (RR59:72-73). This includes the following
prospective jurors: Leon Tilley (Juror 126, an African-American male);
Deborah Moore (Juror 225, an African American female); Pornsak Nohe
(Juror 497, an Asian male); Macy Haag (Juror 408, a Caucasian
female); and, Suzanne Morrison (Juror 920, a Caucasian female).
(RR59:73; Tilley, Juror 126, Q. p.1; Moore, Juror 225, Q. p.1; Nohe,
Juror 497, Q. p.1; Haag, Juror 408, Q. p.1; Morrison, Juror 920, Q. p.1).
Appellant points to no evidence to the contrary. He cannot show
disparate treatment of Figures, Prieston, Barbosa, Tilley, Moore, and
Nohe compared to accepted non-minority veniremembers. As such,
Appellant has failed to show that the prosecutor’s explanation was a
pretext for discrimination. See Broadnax v. State, No. AP-76,207, 2011
67
Tex. Crim. App. Unpub. LEXIS 920, at *7-8 (Tex. Crim. App. Dec. 14,
2011) (not designated for publication) (holding no pretext where
prosecutor struck all jurors who believed death penalty should never be
invoked).
Neena Biswas
The State explained that it struck Biswas because she was not a
qualified juror. (RR59:73-74). First, Biswas voiced concerns about
determining punishment without having participated in the
determination regarding Appellant’s guilt or innocence. According to
Biswas, the guilt/innocence portion of trial is the most important part of
the process, not the determination of punishment. Her concerns were so
great that it would affect her ability to take the oath as a juror to follow
the law. The following exchange took place:
[Prosecutor]: Okay. So what I’m hearing from you is that
the Judge may give you a jury instruction and charge that
you are not allowed to consider the Defendant’s guilt or
innocence, because he’s already been found guilty.
[Biswas]: Correct.
[Prosecutor]: What I’m hearing from you is that you could
not follow that law.
68
[Biswas]: Absolutely. I will not actually follow it,
without the evidence, without the data. I wouldn’t do a
good job. I mean, I would need a lot of details. And that is
what I do in my work.
[Prosecutor]: And so in your mind, do you feel, based on
your concern about hearing the facts and circumstances of
the case and not being a part of part of [sic] that guilt-or-
innocence decision, do you feel like you would make the
State prove to you beyond a reasonable doubt again that the
Defendant is guilty of capital murder?
[Biswas]: No, I would not. I will not make a decision.
Because I was not involved in the actual thing, if he was
guilty or not. And I think that is the actual thing. Because,
what comes after the fact is just, oh, how are we going to
deal with the problem? Problem’s already been figured out.
I was not part of that, so I would not be able to decide.
[Prosecutor]: We have to use legal terms here. You said you
could not be able to decide. Does that mean - - the law says
each juror would have to take an oath that they will a true
verdict render, based on the law and the evidence.
Are you saying that you could not take that oath?
[Biswas]: I will not take that oath. Because I was not
part of the actual decision. I could take the oath. But, like I
said, I would prefer not to give a decision “yes” or “no.”
[Prosecutor]: Okay. So you told me both things. So we have
to have affirm [sic] “yes” or “no” that you will not take that
oath or could not take that oath.
69
[Biswas]: I could not take that oath.
(RR14:50-51) (emphasis added). Shortly after the above-mentioned
exchange, Biswas stated that she could take the oath, but the issue of
guilt would remain in the back of her mind. (RR14:54). She stated that
she would have difficulty in following an instruction not to consider
Appellant’s guilt or innocence in answering the special issues.
(RR14:73, 74). The issue of Biswas’ lack of participation in the
guilt/innocence portion of trial was a recurring theme in her responses.
The following exchange took place:
[Prosecutor]: Dr. Biswas, we already talked about, in
Special Issue Number One, that you may hear evidence and
testimony that includes the facts and circumstances of the
offense for which the Defendant was found guilty.
So you already understand that, correct?
[Biswas]: Correct.
[Prosecutor]: But you still say that you would still - - it
would still be stuck in your mind, and it would color your
answers to these questions: Is this person guilty or not
guilty of this offense?
[Biswas]: Correct.
70
(RR14:75-76).
Second, Biswas expressed concern about her ability to answer the
deliberateness special issue because “we don’t know what was going on
in that person’s mind at that time. We don’t know why he took that
action . . . I don’t know why the guilty verdict was achieved.”
(RR14:67). She testified that she would not be able to make credibility
determinations “again, because I was not involved in the guilty or not
guilty verdict, which I think is the main crux of any case.” (RR14:70).
Third, when asked whether she would require the State to prove
Appellant’s guilt beyond a reasonable doubt before she would consider
the special issues Biswas said “Yes.” (RR14:52). But then a short time
later, she said, “I’m not saying you have to prove it again, because it
cost [sic] a lot of money.” (RR14:53). With regard to the future danger
special issue, however, Biswas agreed that she would hold the State to a
higher burden of proof because “[she] was not part of the guilty/not
guilty trial.” (RR14:83).
Fourth, Biswas testified that she did not agree with a criminal
defendant’s Fifth Amendment right not to incriminate himself.
(RR14:86). Initially, she said that if instructed not to consider the fact
71
that Appellant did not testify that she could not follow that instruction.
(RR14:86). Then she stated that she could follow the law, but she did
not agree with it and it would weigh on her mind as she deliberated the
special issues. (RR14:86-87).
Finally, Biswas testified that she would place police officers’
credibility above that of other witnesses. (RR14:88-89). She testified
that she “would give them the benefit of the doubt.” (RR14:89). During
her questioning by the defense, Biswas agreed to follow the law and not
start a police officer at a higher level of certainty. (RR14:108).
On appeal, in support of his argument that the prosecutor’s
explanations are a pretext, Appellant points out that Biswas – like 17
other jurors that the State accepted – ranked herself as a “2” on
Question 2, indicating a belief that “the death penalty is appropriate in
some murder cases, and I could return a verdict in a proper case which
assessed the death penalty.” (Biswas, Juror 64, Q p.2). In truth,
because the State struck all 3s and 4s, the only jurors left for the State
to accept were 2s. Therefore, this argument does nothing to further
Appellant’s claim.
72
The State does not dispute that Biswas’s responses to certain
questions in the questionnaire are the same as those of other accepted
venire members. The questionnaire should not be considered in a
vacuum, however. This is especially true as it pertains to Biswas
because, while she may appear to be a qualified juror on paper, during
testimony, Biswas vacillated on her ability to perform the most basic
duty required of a juror: taking the oath and following the law. As
such, the State had legitimate reason to be concerned about Biswas
sitting as a juror in a capital murder case. Since the trial court denied
the State’s challenge for cause, the State exercised a peremptory
challenge. Notably, the State struck all 9 jurors that it had
unsuccessfully challenged for cause: Biswas (Juror 64, an Asian
female), Leon Tilley (Juror 126, an African-American male), Deborah
Moore (Juror 225, an African-American female), Macy Haag (Juror 408,
a Caucasian female), Pornsak Nohe (Juror 497, an Asian male), Cassie
Figures (Juror 755, an African-American female), Suzanne Morrison
(Juror 920, a Caucasian female), Mary McGowan (Juror 955, an
African-American female), and Artherine Prieston (Juror 1055, an
African-American female).
73
The record supports the genuineness of the State’s explanations
for striking Biswas. Appellant has failed to show that the prosecutor’s
explanation was a pretext for discrimination.
Mary McGowan
The State explained that it struck McGowan because of her bias
against the State and because of her belief in rehabilitation rather than
incarceration, even in cases involving capital murder. During voir dire,
after the prosecutor explained the special issues, he asked McGowan to
elaborate on her response to Question 32, which asks the prospective
juror to write the word that first comes to mind when they think of
certain professions. (McGowan, Juror 955, Q p.6). Regarding
prosecutors, McGowan wrote “they are always out to get a person.”
(McGowan, Juror 955, Q p.6). She affirmed this statement when she
testified that “I feel like - - well, in Texas here, I feel like - - it depends
on the prosecutors. The majority of them - - . . . - - I just feel like they
are out to get that person.” (RR42:25). She continued:
So the prosecutor - - I can understand they have to do their
job, too. Because they’re a prosecutors [sic], that’s their job
to do that. But I think sometimes it’s unfair, and I think
that the prosecutor is actually out to get that person really.
Just my opinion.
74
(RR42:25). Later in the questionnaire, on Question 36F, McGowan
wrote that she “Strongly Agree[d]” with the statement, “The Criminal
Justice System in Dallas County is untrustworthy.” (McGowan, Juror
955, Q p.7).
McGowan also demonstrated a preference for rehabilitation
rather than punishment. On Question 42 of her questionnaire, she
ranked rehabilitation as the most important objective of punishment.
(McGowan, Juror 955, Q p.8). She testified that rehabilitation should
always be the first option in sentencing. (RR42:28). “Then, if they fail
rehab, if they go back again continuously, then make another decision.”
(RR42:28). She continued, “But I just feel like, in some cases, where
somebody do [sic] something bad, commit murder or whatever, I feel
like rehab should be the first thing that should happen.” (RR42:28).
According to McGowan, rehabilitation should be an option even in cases
involving the death penalty. (RR42:29).
On appeal, Appellant argues that the State’s explanations are a
pretext because McGowan’s responses to certain questions on her
questionnaire matched those of other veniremembers who were
accepted by the State. As previously argued, the questionnaire cannot
75
be considered in a vacuum. McGowan (like Biswas and like the 17
jurors the State accepted) ranked herself as a “2” on her questionnaire.
(McGowan, Juror 955, Q p.2). As stated above, this similarity is
insignificant in light of the fact that the only jurors that the State
accepted were 2s. Moreover, the State notes that despite having
ranked herself as a “2,” on Question 36C, McGowan wrote that she
agreed that the death penalty should be abolished. (McGowan, Juror
955, Q p. 7).
The State acknowledges that McGowan answered other questions
similar to jurors that the State accepted: (1) she had no moral,
religious, or personal beliefs that would prevent her from sitting in
judgment of another human being; (2) she had no moral, religious, or
personal beliefs that would prevent her from returning a verdict that
would result in the execution of another human being; (3) she agreed
that life imprisonment or the death penalty are appropriate for someone
guilty of intentional murder committed during the course of a burglary;
(4) she agreed that some crimes call for the death penalty solely because
of their facts and circumstances; (5) she ranked the strength of her
belief in using the death penalty as a “7”; (6) she believed that
76
testimony from a police officer was the same as any other witness; and,
(7) she believed in the principle of “an eye for an eye.” (McGowan, Juror
955, Q p.8). Nevertheless, like Biswas, the fact that McGowan
answered certain questions the same as some accepted jurors does not
change the testimony she gave during voir dire. It was McGowan’s
testimony that set her apart from other jurors and it was that
testimony that caused the State to exercise a strike against her.
(RR59:75-76). The record supports the genuineness of the State’s
explanations for striking McGowan. Appellant has failed to show that
the prosecutor’s explanation was a pretext for discrimination.
Conclusion
Appellant has wholly failed to show that Jurors Figures, Prieston,
Barbosa, Tilley, Moore, Nohe, Biswas, or McGowan 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
77
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 8 minority
veniremembers was the product of racial discrimination. Appellant has
not shown that the State’s explanations 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 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.
This Court should overrule Appellant’s first eight issues.
STATE’S RESPONSE TO ISSUE NOS. 9-23: THE TRIAL COURT DID NOT ERR
IN DENYING APPELLANT’S CHALLENGES FOR CAUSE.
In Issues 9 through 23, Appellant contends that the trial court
erred in denying his challenges to 15 prospective jurors. In so doing,
Appellant argues, the trial court violated his right to a fair and
78
unbiased jury under the United States Constitution and article
35.16(c)(2) of the Texas Code of Criminal Procedure.
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 defendant is entitled to rely. See Tex. Code Crim. Proc. Ann.
arts. 35.16(a)(9), (c)(2) (West 2006); Threadgill v. State, 146 S.W.3d 654,
667 (Tex. Crim. App. 2004).
Appellant has the burden of establishing that his challenge for
cause is proper. See Feldman v. State. 71 S.W.3d 738, 747 (Tex. Crim.
App. 2002). 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.
79
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; 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 defers to the trial court
decision. See Gardner v. State, 306 S.W.3d 274, 295-96 (Tex. Crim. App.
2009). The appellate court reverses a trial court’s ruling on a challenge
for cause “only if a clear abuse of discretion is evident.” Colburn v.
State, 966 S.W.2d 511, 517 (Tex. Crim. App. 1998).
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
80
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 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
The parties asserted their challenges for cause and peremptory
challenges at the conclusion of each prospective juror’s individual voir
dire. With the exception of Jennifer Wilder, following the trial court’s
81
denial of their challenges for cause, the defense exercised a peremptory
strike against each complained-of veniremember. Appellant exhausted
all fifteen of his statutory peremptory strikes on the following jurors:
Annie Fenster (Juror 36); Rebecca Sands (Juror 46); Dorce Jackson
(Juror 138); David Darden (Juror 186); Delores Sawyer (Juror 270);
Jonathan Henderson (Juror 288); Patricia Withers (Juror 323); Larry
Middleton (Juror 427); Isaac Tschewik (Juror 440); Michael Dawson
(Juror 469); Angela Thorpe-Harris (Juror 495); Christopher Weinzapfel
(Juror 612); Phillip Rapp (Juror 968); Nancy Ramos (Juror 1025); and
Jay Kirby (Juror 1052). (RR13:205-06; RR15:114; RR16:76; RR19:225;
RR20:226; RR22:86; RR26:152, 341; RR27:153; RR28:133; RR32:90:
RR42:71; RR44:20; RR45:68).
Appellant was granted two additional strikes, which he used to
remove Nathan Sosa (Juror 1070) and James Martin (Juror 1190).
(RR46:34; RR50:47). Appellant later asked for, and was denied,
another additional strike to exercise on Jennifer Wilder, whom
Appellant identified as objectionable. (RR52:87). Since Appellant
received two extra peremptory challenges in addition to the fifteen
allotted by statute, he must show that the trial court erroneously denied
82
at least three of his challenges for cause to the other veniremembers
identified in Issues 9 through 23. 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).
Issue 9: Rebecca Sands
Appellant challenged Rebecca Sands for cause because she
believed that “if a person committed something intentionally, that was
a greater state of mind than deliberately[.]” (RR13:133). Appellant
argued that Sands’s definition of intentional and deliberate would then
cause her to automatically answer the deliberateness special issue21
affirmatively. (RR13:133).
Deliberate/Intentional
During the State’s voir dire, the prosecutor explained the
deliberateness special issue. (RR13:90-91). He explained that
“[d]eliberate falls more than intentional, but short of premeditation.”
(RR13:91). Sands stated that she could “see the difference” between
the terms. (RR13:91).
21 For ease of the reader, the State will refer to the special issues as follows: “the
intellectual disability special issue” (Special Issue No. One); “the deliberateness
special issue” (Special Issue No. Two); “the future danger special issue” (Special
Issue No. Three); and, “the mitigation special issue” (Special Issue No. Four).
83
Upon questioning by the defense, Sands tried to articulate what
she, in her mind, understood the difference to be between intentional
and deliberate conduct. (RR13:117-18). She stated, “I guess deliberate,
to me, is more short-term than intentional. It’s like, a knee-jerk
reaction, but you knew what was going to happen.” (RR13:118). The
following exchange then took place:
[Defense Counsel]: Okay. So, in your mind, intentional is a
higher process of thought and deliberate is a little bit more
reactionary?
[Sands]: Yes. I think you can say that.
[Defense Counsel]: I think what you’re saying is, if it has
already been determined that this was done intentionally,
then it certainly was done deliberately.
[Sands]: Yes.
[Defense Counsel]: So if you were instructed that the person
had already been convicted of doing this intentionally, your
answer to Special Issue Number Two would, per your
definition, be automatically “yes” because of the instructions
of the Court?
[Sands]: Yes.
[Defense Counsel]: Okay. That’s what I want to know. A lot
of people feel that way. And there’s nothing wrong with it.
84
Isn’t this cruel, we don’t define these things and then we ask
you to define them?
But if that’s how you feel, that’s - - you’re fine, if that’s your
definition of deliberate, is something less than intentional.
So question number two would be answered “yes” for you,
because the Court’s instructed you that it was already
determined that it was an intentional act?
[Sands]: I would like to see more of the details.
[Defense Counsel]: I understand that. We’re just asking you
about your definitions.
[Sands]: Okay. That’s my definition.
(RR13:118-19). The above-mentioned exchange continued on for several
pages, with defense counsel repeatedly confirming Sands’ view that
“intentional” is a higher state of mind than “deliberate” while
simultaneously reassuring Sands that she was entitled to her opinion.
(RR13:119-24). Even when Sands appeared confused and stated, “I
don’t know where I’m at now[,]” defense counsel did not alleviate her
confusion, but merely stated:
I don’t want to confuse you. It’s just that, that is a strange,
archaic, dinosaur question from back in the day. A lot of
people have that issue. That’s why I’m asking you.
85
If the answer to Special Issue Number Two is “yes” for you, if
it’s an intentional act already, that’s fine. We just need to
know that.
And that’s your answer?
(RR13:120). Sands testified that she would “have to see more evidence”
but defense counsel cut her off, instructing that she was not asking how
Sands would vote, but rather was simply concerned with Sands’
definition of the terms. (RR13:122).
Importantly, at no point during the above-described exchange, did
defense counsel actually instruct Sands regarding the law or do
anything to correct her misunderstanding of the distinction between the
terms. As such, Sands was not subject to a challenge for cause based
on this exchange. See generally Threadgill, 146 S.W.3d at 667
(explaining that, before a prospective juror 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).
A review of the entirety of Sands’ voir dire shows that she
understood that there is, in fact, a distinction between the terms
intentional and deliberate. (RR13:89-93, 117-18, 120). Although she
may have confused legal terms when she was questioned by the defense,
86
the record reflects that she would not automatically answer the
deliberateness special issue in the affirmative.
Questionnaire
On appeal, Appellant points to Question 9 on Sands’
questionnaire, which asks, “For what crimes do you think a sentence of
life imprisonment is the proper punishment?” (Sands, Juror 46, Q p.3).
Sands wrote, “NA.” Appellant fails to state why Sands’ response makes
her challengeable. Regardless, Appellant did not challenge Sands based
on this answer at trial; therefore, this complaint is not preserved for
review. See Tex. R. App. P. 33.1(a) (providing that a timely specific trial
objection is prerequisite to presenting a complaint on appellate review).
Regardless, during voir dire, when asked to explain this answer, Sands
testified that “that’s hard to elaborate on, because I don’t know the
crime.” (RR13:112). She then agreed that life imprisonment may be
proper punishment on a murder case. (RR13:112).
Appellant has failed to show that the trial court abused its
discretion in denying his challenge for cause against Sands. Issue 9
should be overruled.
87
Issue 10: Dorce Jackson
Appellant challenged Jackson for cause for the following reasons:
(1) in her questionnaire, she wrote that a life sentence would be
appropriate in cases of self-defense or mental illness; (2) she would
place a burden on the defense to provide evidence in connection with the
mitigation special issue; and, (3) she would increase the burden of proof
on the intellectual disability special issue. (RR15:111-12).
Questionnaire
After questioning concluded, Appellant challenged Jackson for
cause because “in her questionnaire, she indicated that a life sentence
would only be appropriate where a person did not intend to do it or it
was self-defense or had some kind of mental illness.” (RR15:111). This
is a misstatement of Jackson’s answers in her questionnaire. On
Question 9, in response to a question asking “[f]or what crimes do you
think a sentence of life imprisonment is the proper punishment[,]?”
Jackson wrote, “maybe a crime of passion or when murder wasn’t
intended.” (Jackson, Juror 138, Q p.3). Jackson never mentioned self-
defense and she never mentioned mental illness. And, her response did
not indicate that murders involving crimes of passion and lack of intent
88
were the sole offenses that should be eligible for life imprisonment.22
Moreover, during questioning, Jackson testified that she “would agree”
with the statement that “the death penalty may not be appropriate in
some cases[.]” (RR15:40). She testified that she is “open to anything . .
. It just all depends.” (RR15:86).
Burden of Proof – Mitigation
Appellant challenged Jackson for cause on the basis of her
testimony that she would require the defense to present evidence or
convince her that Appellant should receive a life sentence. (RR15:111).
During the State’s voir dire, the mitigation special issue and the fact
that there was no burden of proof on this issue was explained to
Jackson. (RR15:70-76). Jackson indicated that she understood the
issue and responded in the affirmative when asked whether she could
consider mitigating evidence “whether it exists or not[.]” (RR15:81-82).
When she was questioned by the defense, the following exchange took
place:
[Defense Counsel]: Again, my question was: Would you
require the Defense - - this table over here, the Defense - - to
22Defense counsel referenced this question during voir dire, but, because it was in
the middle of a series of questions, Jackson never specifically answered him.
(RR15:86).
89
provide you or convince you that the person should receive a
life sentence instead of a death sentence?
[Jackson]: Would I want you to provide evidence to have a
life sentence instead of death?
[Defense Counsel]: Correct.
[Jackson]: But that’s where I’m confused. Because, based on
all of this - - going through the steps, wouldn’t I basically be
taking that into consideration the whole time?
You’re going to provide evidence and they are, too,
right?
[Defense Counsel]: Well, what I’m saying, on that issue,
nobody has a burden. What I’m asking you is: Would you
need - - in order for you to answer that question, would you
require the Defense to provide you with mitigation evidence
before you could answer Special Issue Number Four?
[Jackson]: Yes.
(RR15:109-10). The defense immediately concluded its questioning.
(RR15:110).
Jackson was not challengeable for cause on the basis of the above-
mentioned exchange. A veniremember is not challengeable for cause
simply because she will place the burden of proof on mitigation on the
defense. Saldano, 232 S.W.3d at 92.
90
Burden of Proof – Intellectual Disability Special Issue
During questioning, defense counsel reminded Jackson that the
defense bears the burden on the intellectual disability special issue.
(RR15:92). He asked Jackson what she thought about the fact that the
burden – preponderance of the evidence – was “a lower burden” than
beyond a reasonable doubt. (RR15:93). Jackson answered, “There
should be a preponderance of the evidence. I should be able to say I’m
clear on that.” (RR15:93). Defense counsel attempted to clarify
Jackson’s definition. The following exchange took place:
[Defense Counsel]: How clear would you want to be?
[Jackson]: Clear enough to say I feel good about it.
[Defense Counsel]: And if it’s more likely than not, is that
enough for you?
Or would you want “I want to be really sure. I want to be
sure beyond a reasonable doubt”?
[Jackson]: I want to be sure.
[Defense Counsel]: And sure, in your mind, does that also fit
into your definition of beyond a reasonable doubt? However
you view it. We can’t define it for you.
91
[Jackson]: Maybe, beyond a reasonable doubt is
preponderance or different. But the same kind of - -
[Defense Counsel]: I’m sorry?
[Jackson]: I said, they’re kind of the same. I want to be
clear either way.
(RR15:93-94). Defense counsel tried to understand whether Jackson’s
need to be “clear” was equivalent to a preponderance of the evidence or
beyond a reasonable doubt. (RR15:93-98). Jackson would not be pinned
down except to say that she would “want to be sure.” (RR15:95). There
is no evidence to suggest that Jackson would increase the burden on the
defense on this issue. Indeed, she testified that she “would want to
understand and be sure, based on whatever the criteria is.” (RR15:97)
(emphasis added).
Appellant has failed to show that the trial court abused its
discretion in denying his challenge for cause against Jackson. Issue 10
should be overruled.
Issue 11: David Darden
Appellant challenged Darden for the following reasons: (1) the
responses in his questionnaire show that Darden had already formed
the opinion that the appropriate punishment in this type of case was
92
the death penalty; and, (2) he believed that if a person was guilty of
capital murder, that person will always be a future danger. (RR16:72-
73).
Questionnaire
After questioning, the defense challenged Darden for cause based
on his responses to two questions on his questionnaire: Question 8 and
Question 11. (Darden, Juror 186, Q.p.3). Question 8 asks jurors “For
what crimes do you think the death penalty is the proper
punishment?” (Darden, Juror 186, Q p.3) (emphasis in original).
Darden wrote, “murder in the commission of crimes.” (Darden, Juror
186, Q p.3). Darden’s response does not reflect a bias against the law
or Appellant. To the contrary, Darden’s response was consistent with
the law. The law provides that the death penalty is available for
intentional murder committed in the course of committing or
attempting to commit certain specified offenses. See Tex. Penal Code
Ann. § 19.03(a)(2) (West Supp. 2015) (capital murder includes
intentional murder “in the course of committing or attempting to
commit kidnapping, burglary, robbery, aggravated sexual assault,
arson, obstruction or retaliation, or terroristic threat”).
93
Question 11 asks jurors whether they agree with the statement
that “‘The death penalty is reserved for those defendants that are such
a threat to society that even incarceration does not remove the
possibility of future violent acts.’” (Darden, Juror 186, Q p.3). Darden
wrote that he agreed with the statement and that “if his/her crimes are
that bad, death is appropriate in my mind.” (Darden, Juror 186, Q p.3).
As above, this response does not reflect a bias against the law or
Appellant and, in fact, was consistent with the law. In a death penalty
case, if the defendant is found guilty, jurors are asked to decide
“whether there is a probability that the defendant would commit
criminal acts of violence that would constitute a continuing threat to
society[.]” Tex. Code Crim. Proc. Ann. art. 37.0711, §3(b)(2) (West
Supp. 2015). Although the wording is slightly different, the statement
in Question 11 is essentially asking jurors whether they agree with the
law. Darden’s response indicated an agreement with – not bias against
– the law.
Future Dangerousness
Appellant also challenged Darden for cause because when he was
asked for “his personal views” regarding the future danger special issue,
94
Darden “indicated . . . once he’s been convinced that the person is guilty
of capital murder . . . and he was convinced that the person would be a
future danger, that he could never answer Special Issue Number Three
in a way that would result in a life sentence.” (RR16:73). This basis
for challenge is not completely clear. If a juror were to find, as counsel’s
challenge suggests, that a person is a “future danger,” then, following
his oath, the juror would answer the future danger special issue in the
affirmative. See Tex. Code Crim. Proc. Ann. art 37.0711(e) (West Supp.
2015). If a juror were to find that a person is a “future danger,” then,
following his oath, the juror would not answer the future danger special
issue in the negative, which would then result in a life sentence.
During the Defense’s voir dire, counsel asked multiple questions
about Darden’s feelings about voting for a convicted capital murderer to
receive a life sentence. (RR16:63-67). At no point, however, did he
explain the law and then ask whether Darden could set aside his
feelings and follow the law. See generally Threadgill, 146 S.W.3d at 667
(explaining that, before a prospective juror 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).
95
To the extent that any of Darden’s responses during the defense
voir dire may be interpreted as contradicting his responses during the
State’s voir dire, 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 vacillated or equivocated on his ability to follow the law, the
reviewing court must defer to the trial judge. Gardner, 306 S.W.3d at
295.
Appellant has failed to show that the trial court abused its
discretion in denying his challenge for cause against Darden. Issue 11
should be overruled.
Issue 12: Delores Sawyer
Appellant challenged Sawyer for cause because, on two occasions,
she testified that in deciding the mitigation special issue, she would
take Appellant’s facial expressions into account. (RR19:224-25).
During the State’s voir dire, in response to a line of questioning
96
regarding her ability to find that a person would not be a future danger,
the following exchange took place:
[Sawyer]: Because, once again, I haven’t heard all the facts.
I believe, if a person shows remorse or some sign of
rehabilitation, there’s a possibility that that may not occur
in future situations.
[Prosecutor]: Okay. Tell me what you mean by “remorse”.
[sic]
[Sawyer]: What I do, I pay a lot [of] attention to their
demeanor, the body language, if they appear to be
somewhat hostile or somewhat combative. You don’t have
to be verbal, as far as being combative or hostile. You can
look at a person’s body language, his or her eye contact. I’m
very good be [sic] reading someone.
I guess, it comes from my law enforcement training in the
past. Because, a lot of times in-law enforcement, you cannot
survive if you are not aware of a potential act or an attack
within the law enforcement environment. Not only do you
have to work in a law enforcement environment, it can
happen on your job. We see this everyday.
What just recently happened in Fort Hood. No one came to
work that day and think [sic] that they’re going to have an
adverse situation to deal with. So it just depends on a lot of
variables and factors. But the individual - - I don’t know
the history. It just kind of depends on what I find out about
that person. It doesn’t have to be verbal. Body language,
like I said. Showing some sign of remorse.
97
(RR19:179-80). During the defense’s voir dire, counsel questioned
Sawyer as follows:
[Defense Counsel]: Let me just ask you this: Do you feel
like that you would need to hear from the Defendant, to find
out if he had remorse for something, in a hypothetical case?
Would you need to hear how that person felt about it, before
you could consider a life sentence?
[Sawyer]: No. Like I said, the facts would have already
been presented. Like I said earlier, I would watch the
Defendant’s body language. He doesn’t have to say
anything. You can tell a lot about a person, whether or not
he is feeling remorse, by his body language. If you’re in a
court of law and the Defendant (demonstrating). [sic] If
you’re in a court of law and the Defendant is, like, just so
distraught by what has occurred - -
[Defense Counsel]: Okay. All right. So you can read ‘em,
kind of.
[Sawyer]: Yes.
[Defense Counsel]: Have you been able to read the
Defendant in this courtroom today?
[Sawyer]: Well, when I came in here, I was focusing over
here. I saw him. Now, I’m looking at him now. He seems
calm and - - I don’t want to use - - well, tranquil means the
same as calm. But he seems just calm. Not agitated, not - -
he doesn’t appear hostile to me.
98
[Defense Counsel]: Okay. So have you formed any opinions
about his character, in just observing him in court?
[Sawyer]: No, I have not. Once I hear the facts, I may.
But, at this point, no.
[Defense Counsel]: Okay. And how he reacts to whatever
he hears in court.
[Sawyer]: Yes.
(RR19:218-20). The prosecutor objected that the defense was “inviting
the juror to consider any facts and circumstances that would be outside
of the record.” (RR19:220). The objection was sustained. (RR19:220).
A defendant’s non-testimonial demeanor is not evidence subject to
reference by the State or the defense. See Good v. State, 723 S.W.2d
734, 736 (Tex. Crim. App. 1986)(discussing comment on defendant’s
demeanor by the State). It follows that jurors should not consider the
defendant’s non-testimonial demeanor. See Tex. Code Crim. Proc. Ann.
art. 38.08 (West 2005) (prohibiting any comment on the right of an
accused to remain silent or his failure to testify).
In this case, defense counsel never explained to Sawyer that if she
were selected as a juror, she would not be allowed to consider
Appellant’s non-testimonial demeanor. She never asked whether
99
Sawyer could set aside her desire to consider Appellant’s demeanor and
consider only the evidence properly presented. See Threadgill, 146
S.W.3d at 667.
On appeal, Appellant also challenges Sawyer because, in her
questionnaire, she indicated support for the death penalty; she thought
the death penalty was seldom used; and she agreed with a statement
that jurors should do what they believe is right, even if it is contrary to
the law. (Appellant’s Br. p.59). These complaints are not preserved for
review because they were not raised at trial. See Tex. R. App. P. 33.1(a)
(providing that a timely specific trial objection is prerequisite to
presenting a complaint on appellate review).
Appellant has failed to show that the trial court abused its
discretion in denying his challenge for cause against Sawyer. Issue 12
should be overruled.
Issue 13: Jonathan Henderson
Appellant challenged Henderson for cause because: (1) once he
found a person to be a future danger, the mitigation issue “would really
not be much to him”; and (2) he was evasive. (RR20:201-02).
100
Future Dangerousness/Mitigation
Appellant challenged Henderson on the basis that he would
automatically assess the death penalty if he found that the murder was
committed deliberately and if the defendant was not intellectually
disabled and was a future danger. During the State’s voir dire, however,
Henderson testified that he was “[a]bsolutely” open to hearing evidence
in mitigation. (RR20:157). He affirmed that he would keep an open
mind and consider all evidence when deciding the mitigation special
issue. (RR20:163-64). He confirmed his understanding that there are
no “automatic answers.” (RR20:164).
During the defense’s voir dire, the following exchange took place:
[Defense Counsel]: Right. In a hypothetical situation, what
are your feelings about the person not receiving the death
penalty but receive [sic] a life sentence instead?
Do you have any feelings, either way?
[Henderson]: Yes, I do.
[Defense Counsel]: Tell me. What are they?
[Henderson]: With the hypothetical situation of a man or
woman or a person, I should say, committing that type of a
crime, it’s almost like an eye for an eye. If they can do it,
then they ought to be able to receive it.
101
...
[Defense Counsel]: “You take a life, we take your life.”
What do you think about that?
[Henderson]: That’s when I say the facts have to be in line.
Because taking a life for a life, and all the facts are the
same, leading to that point, then it should be.
[Defense Counsel]: Then this should be the death penalty
instead of life?
Is that what you’re saying?
[Henderson]: Yes.
(RR20:174-76). Henderson did not testify that he would not consider
evidence in mitigation or that he would automatically answer the
special issues in a way that the death penalty would result. He
testified that “the facts have to be in line.” (RR20:175).
Defense counsel later returned to the subject and asked for
Henderson’s thoughts about a life sentence if the capital murder was
committed deliberately by a defendant who is not intellectually disabled
and is a future danger. (RR20:191). Henderson said that “[his] answer
right now would be no life sentence.” (RR20:191). At this point in
102
questioning, however, counsel did not remind Henderson that he would
still have to consider the mitigation special issue; he asked only for his
feelings up to the future danger special issue. See Threadgill, 146
S.W.3d at 667. In any event, when counsel suggested that Henderson
would not “need to go on anymore[,]” Henderson’s answer changed.
(RR20:193). Henderson testified that “that’s where that two-fold
question comes in again.” (RR20:193). He testified that “[w]ith [his]
open mind, [he] would still want to go on.” (RR20:193). He later
testified that “of course [he] would” be open to answering the mitigation
special issue in a way that a life sentence would result. (RR20:195-96).
Evasive
Appellant also challenged Henderson on the basis that he was
evasive during the defense voir dire. A thorough review of the
transcript shows that Henderson was not evasive. Rather, he was
simply finding it difficult to answer some of counsel’s questions with
just a yes or no answer. The following exchange took place:
[Defense Counsel]: No, I know. Because I’m asking you
about your feelings.
[Henderson]: And I’m telling you. And I want you to
understand that my feelings still ride with, I want to go
103
through the process before I make a decision. But you’re
wanting to know, if I had all of these things and all of that
came about, then would I say “yes” or “no” to this. That’s an
answer. And I don’t want to answer. But I’ve got to give
you something. And that answer is what you want to hear
right now, is an answer. So I’m giving you an answer, but
I’m not answering you, according to how I feel. If that
makes any sense.
(RR20:193-94). A reviewing court should give particular deference
when the veniremember’s answers unclear or contradictory. See
Gonzales v. State, 353 S.W.3d 826, 831 (Tex. Crim. App. 2011).
Appellant has failed to show that the trial court abused its
discretion in denying his challenge for cause against Henderson. Issue
13 should be overruled.
Issue 14: Isaac Tschewik
Appellant challenged Tschewik for cause on the basis that he
would place a burden on the defense in connection with the mitigation
special issue. (RR26:340). The following exchange took place during
the defense voir dire:
[Defense Counsel]: . . . “For me to be able to say that
person should receive a life sentence instead of a death
sentence, you’re going to have to prove to me mitigation.
I’m going to place that burden on you to show me that I
should not give him the death penalty.”
104
What do you think?
[Tschewik]: I think that’s exactly where I am.
[Defense Counsel]: Okay. . . . The law says you can’t place
a burden on us.
Are you telling me that you would place the burden on
the Defense to convince you that he shouldn’t receive the
death penalty, after you’ve been convinced that he’s a future
danger?
[Tschewik]: Well, I haven’t thought of it that way. I don’t
know that I’m placing a burden on the Defense. I’m just
trying to keep an open mind. I’m just saying that, you
know, it would be difficult to find something in my own
mind that will mitigate the circumstances.
If I heard it and I believed it then, yes, I could do that.
I could certainly accept life punishment.
[Defense Counsel]: Okay. You say you may not place a
burden. But would you want us - - would you require the
Defense to provide you that evidence?
[Tschewik]: Well, I don’t know where else it’s going to come
from.
(RR26:335-36). Tschewik was not challengeable for cause on the basis
of this exchange. Because there is no law which places the burden of
proof on the State regarding the mitigation issue, a veniremember is
105
not challengeable for cause simply because he would place the burden of
proof on this issue on the defense. Ladd v. State, 3 S.W.3d 547, 559
(Tex. Crim. App. 1999) (citing Barnes v. State, 876 S.W.2d 316, 329-330
(Tex. Crim. App. 1994).
Appellant has failed to show that the trial court abused its
discretion in denying his challenge for cause against Tschewik. Issue 14
should be overruled.
Issue 15: Michael Dawson
Appellant challenged Dawson for cause on the basis that (1) he
believes in the principle of an eye for an eye; (2) he believes intentional
murder deserves the death penalty; and, (3) he has reservations about
an individual with intellectual disability receiving a life sentence
because that person knows the difference between right and wrong.
Eye for an Eye
Appellant challenged Dawson for cause “based on his
questionnaire which, over and over again, he would tell us under oath
that he believed in the principle of an eye for an eye[.]” (RR27:153).
On Question #1, which asked whether he was in favor of the death
penalty, Dawson wrote that he “believe[s] in the principle of an eye for
106
an eye.” (Dawson, Juror 469, Q p.1). On Question #18, he agreed that
he believes in the principle of an eye for an eye and referenced his
answer to Question #1. (Dawson, Juror 469, Q p.8). Dawson’s
answers to these questions do not demonstrate a clear bias against the
law. The State notes that in response to Question #5, Dawson agreed
that a life sentence would be appropriate in the proper circumstances.
(Dawson, Juror 469, Q p.3). During questioning, he agreed on multiple
occasions that a life sentence may be the appropriate punishment in the
proper case. (RR27:110, 114, 131, 144-45). And, on multiple occasions
he agreed that he could listen to the evidence and follow the law.
(RR27: 96, 101-02, 105, 119-21). He testified that “If I’m chosen as a
juror, I have to abide by the law.” (RR27:137).
Intentional Murder
Next, Appellant challenged Dawson based on his belief that “once
you committed a murder that’s intentional, the death penalty is really
the only option.” (RR27:153). Appellant cited four responses on
Dawson’s questionnaire wherein he indicated that intentional murder
warrants the death penalty. (RR27:153; Dawson, Juror 469, Q pp.2, 3,
4). During questioning, Dawson acknowledged that in response to
107
Question 2 on his questionnaire he wrote that the death penalty is
appropriate in all murder cases. He also testified, however, that this
was just “an answer to a question. But there’s definitely circumstances,
that all of those things should be weighed.” (RR27:127-28). He
testified that he did not “have an issue” with a life sentence for an
intentional murder. (RR27:131). He agreed that a life sentence could
be the proper punishment for intentional murder. (RR27:131).
Right from Wrong
Appellant challenged Dawson because he expressed reservation
about an individual with intellectual disability not being eligible for the
death penalty if the individual knows right from wrong. (RR27:153).
During questioning, Dawson initially testified that he understood that
an individual with intellectual disability is not eligible to receive the
death penalty. (RR27:132). He stated, “You don’t want to pass
judgment on someone who committed a crime that was not in their full
capacity, making judgments.” (RR27:132-33). When asked for his
thoughts about an individual with intellectual disability not being
eligible for the death penalty even though that person knows right from
wrong, Dawson testified:
108
It’s definitely an interesting dilemma, in that you’re saying
someone does meet that criteria and knows right from
wrong. I would say that’s more rare than not. But I guess,
in that circumstance, you know, it’s kind of - - I don’t know.
Almost a gray area. You have to weigh what you’re given
and make a decision, I guess.
(RR27:134). Dawson agreed with defense counsel’s proposition that
his “belief system” tells him that even if a person is intellectually
disabled, that person should face the death penalty if that person knows
right from wrong. (RR27:136). Nevertheless, he testified that if he was
chosen as a juror, he would abide by the law. (RR27:137).
Additionally, later in voir dire, Dawson disagreed that he would
increase the burden on intellectual disability special issue in an effort to
ensure the death penalty. (RR27:141-42). The following exchange took
place:
[Defense Counsel]: Some people will say, “Do you know
what? Because of the way I value life, I’m not going to let
this person avoid the death penalty unless I’m positive that
they’re mentally I [sic] retarded.
“They killed somebody. They knew right from wrong, and
they did it intentionally.”
What do you think about that?
109
[Dawson]: I think that’s a little too harsh. This
questionnaire is very direct and black and white. You
know, what you’re proposing, there’s things to be
considered. There are gray areas. There are definitely
circumstances. That’s why we do this process. I’m
definitely open-minded, and I can hear that and decide.
[Defense Counsel]: I have no doubt that you will keep an
open mind and listen to the evidence. But what I’m asking
you is this: There’s some people that say, “Do you know
what? For me to say this person is mentally retarded and
just let them avoid the death penalty when I know they
committed an intentional murder of another human being
while committing a felony, I’m going to have to be really
convinced that they’re mentally retarded.
“If not, I may be letting some guy off from getting the death
penalty, who I believe deserves it.”
[Dawson]: It’s about what the law requires. That’s what I
have to follow. That’s what I have to base my opinion on.
It’s not whether or not I think he’s really mentally retarded
or not. It’s based on what the law says.
(RR27:141-42).
A review of Dawson’s voir dire shows no bias as a matter of law.
Indeed, as previously stated, Dawson agreed on multiple occasions that
he could listen to the evidence and follow the law. (RR27:96, 101-02,
105, 119-21).
110
Questionnaire
On appeal, Appellant lists a number of other responses Dawson
wrote in his questionnaire that he claims made Dawson challengeable
for cause. (Appellant’s Brief p.64). These arguments were not
presented to the trial court and therefore are not preserved. See Tex. R.
App. P. 33.1(a).
Appellant has failed to show that the trial court abused its
discretion in denying his challenge for cause against Dawson. Issue 15
should be overruled.
Issue 16: Angela Thorpe-Harris
Appellant challenged Thorpe-Harris for cause on the basis of her
testimony that she would place a burden on the defense in connection
with the deliberateness special issue. (RR28:129).
Burden of Proof
During the voir dire, defense counsel asked Thorpe-Harris for her
thoughts about a life sentence for an individual who committed the
offense deliberately and was not intellectually disabled. (RR28:120).
The following exchange took place:
[Thorpe-Harris]: If they did it deliberately?
111
[Defense Counsel]: Uh-huh.
[Thorpe-Harris]: I could consider it. But I know personally
it would take a little bit of proving.
[Defense Counsel]: Who would have to prove what, for a life
sentence?
[Thorpe-Harris]: You (indicating). Your side. You have to
convince me.
...
[Defense Counsel]: Okay. The law says, you can’t place
that burden on me. But, honestly, you’d do that, correct?
[Thorpe-Harris]: Right.
[Defense Counsel]: And there’s nothing wrong with saying
that. Like I said, that’s why we ask these questions. I’m
sure you didn’t get up today saying to yourself “I know
everything about capital murder law and I know exactly
how I would act.” But you know yourself.
[Thorpe-Harris]: I know the burden is supposed to be on the
State’s side for that question. But I’m also going to be
keying in on what you’re saying, too.
[Defense Counsel]: You would still place a burden on us to
show you that it wasn’t deliberate. Because it’s kind of an
important decision that you have to make, right?
[Thorpe-Harris]: Yes.
112
[Defense Counsel]: That’s really how you feel?
[Thorpe-Harris]: Yes.
[Defense Counsel]: So if the Judge were to ask you, “Hey,
Ms. Thorpe-Harris, you understand that you can’t place a
burden on the Defense,” you would, correct?
[Thorpe-Harris]: Yeah. I’m going to listen to you. Yeah.
(RR28:120-22).
After the defense asserted its challenge against Thorpe-Harris,
she was returned to the courtroom for the judge to clarify her
testimony. (RR28:130). The judge confirmed Thorpe-Harris’
understanding that the State – and not the Defense – has the burden of
proof on the deliberateness special issue. (RR28:130-31). The following
exchange then took place:
[Trial Court]: Okay. Would you require that the Defense
prove to you that the act was not deliberately?
Or would you follow the law and just - - if the State proved
to you beyond a reasonable doubt that it was deliberate,
could you make your decision based on that?
Or if the State failed to prove to you that it was deliberate,
then could you make your decision based on that?
113
[Thorpe-Harris]: Yeah, I could. I could do it, based on
whatever the State decides.
[Defense Counsel]: Your Honor, I think she also told us that
she would place a burden on us to prove - - somewhat of a
burden on us to prove that it wasn’t deliberate. I would ask
you to inquire - - first of all ask, if she did say that to us on
the record.
[Trial Court]: Do you recall saying that?
[Thorpe-Harris]: Yeah. Because I’m just sort of assuming
that the Defense is going to be speaking to it - - I assume - -
during the phase. So I’m going to be listening to what they
say, too. But I know the burden of proof, from what they’ve
told me, is on the State.
[Trial Court]: You understand that the burden of proof is
solely upon the State?
[Thorpe-Harris]: Yes.
(RR28:32).
The totality of Thorpe-Harris’s testimony shows that she would
not place a burden on the defense in connection with the deliberateness
special issue. Rather, she “just sort of assum[ed] that the Defense is
going to be speaking to” that issue and she would listen to their
evidence. (RR28:132). To the extent that Thorpe-Harris was
114
equivocating on her ability to follow the law, the reviewing court must
defer to the trial judge. Gardner, 306 S.W.3d at 295.
Claims on Appeal
On appeal, Appellant challenges Thorpe-Harris because she would
require severe intellectual disability to assess a life sentence and
because she did not trust expert testimony. He also cites a number of
the responses she gave on her questionnaire. (Appellant’s Brief p. 66-
67). These complaints are not preserved for review because they were
not raised at trial. See Tex. R. App. P. 33.1(a) (providing that a timely
specific trial objection is prerequisite to presenting a complaint on
appellate review).
Appellant has failed to show that the trial court abused its
discretion in denying his challenge for cause against Thorpe-Harris.
Issue 16 should be overruled.
Issue 17: Christopher Weinzapfel
Appellant challenged Weinzapfel for cause because: (1) he was
familiar with the case; (2) he was evasive in answering questions; and
(3) he invoked the Fifth Amendment. (RR32:89).
115
Familiarity with Case
Weinzapfel was in high school when the instant offense occurred.
(RR32:14-15). He did not recall all of the details of the case, but he did
remember that it “was the headlined story” and “that there was mental
health that was in question and whether or not they were going to seek
the death penalty[.]” (RR32:50, 51). At the time, in school, the issue
“from a generic standpoint” was used as a source of discussion and
debate. (RR32:51). “We argued both sides of that [issue].” (RR32:51).
Although he knew the details of this case when he was in school, he
could not presently recall them “off the top of [his] head.” (RR32:87).
Weinzapfel was not challengeable for cause simply because he had
some knowledge of the facts of the case. Qualified jurors need not be
totally ignorant of the facts and issues involved in the case. See
Murphy v. Florida, 421 U.S. 794, 799-800 (1975). Even if this Court
assumes that Weinzapfel had some limited knowledge of the case, he
nevertheless denied having a pre-formed opinion regarding the case.
(RR32:51-52). Indeed, he stated, “I have to be honest with you, I don’t
remember which side it went. I’ve had too much other stuff on my plate
116
to think too much about it.” (RR32:52). There is nothing in the record
to show that Weinzapfel was biased against Appellant.
Evasive
Appellant challenged Weinzapfel on the basis of his being
“evasive” during questioning. At one point during questioning, defense
counsel began a series of questions asking Weinzapfel for his thoughts
about a life sentence if the offense was determined to be deliberate, and
then if the person is found to be a future danger. (RR32:79-81).
Weinzapfel testified that he was “stuck in the thought process.”
(RR32:81). He was having difficulty answering counsel’s questions
without having the evidence. (RR32:81). Counsel took the questioning a
step further and asked whether the circumstances of the defendant’s
childhood or disabilities would be relevant. (RR32:82). Weinzapfel
responded:
Again, that’s why I’m hoping that it’s not a matter of what I
think but it’s a matter of what I see and what evidence is
presented. And then - - I’m not trying to evade that answer.
I don’t know. It’s a pretty serious answer, to just be
halfhearted about.
117
(RR32:82). A review of the record shows that Weinzapfel was not trying
to be evasive; he was simply finding it difficult to thoughtfully answer
counsel’s questions without knowing the evidence. (RR32:82).
Fifth Amendment
Appellant also challenged Weinzapfel because he invoked the
Fifth Amendment. (RR32:62, 64). A review of the record shows that
Weinzapfel asked to “take the Fifth” on two occasions, but he did so, not
in the traditional sense. (RR32:62, 64). The first time Weinzapfel
asked to take the Fifth, he and defense counsel were discussing
Weinzapfel’s ability to concentrate on the evidence given the fact that
he is the sole provider in his family and would be missing two weeks of
work if he were seated as a juror. (RR32:60-62). The following
exchange took place:
[Defense Counsel]: So, tell me: Would it be such a concern
that it would be hard for to [sic] you concentrate on the
evidence?
[Weinzapfel]: Can I take the Fifth? I have to be honest
with you, I work in a profession where I go to work
everyday. I deal with life and death. The things that are
happening, I can’t take with me. So I wouldn’t be very
honest with you, if I said it would sway me. I have to make
those decisions, regardless. It is a financial burden. It’s
118
going to cost my family - - cost me the ability. But, hey, like
I said before, that’s part of it.
(RR32:62).
The second time Weinzapfel asked to take the Fifth he and
defense counsel were discussing Weinzapfel’s connection with the Darlie
Routier capital murder case. (RR32:64). Weinzapfel is a firefighter
and paramedic. (RR32:17). His colleagues, including his best friend,
were “the primary medics on the case.” (RR32:64). His testimony is
not completely clear, but it appears that Weinzapfel helped “prep” his
colleagues for trial. (RR32:64). Defense counsel asked what
Weinzapfel thought “about all that?” (RR32:64). Weinzapfel testified:
Again, I take the Fifth on that. I’d rather not give an
opinion. It’s one of those things to sit back and watch the
drama unfold. Knowing what was known and the fact [sic]
as they were, with all the details and everything else, it’s a
little different than watching it on the news.
(RR32:64).
The fact that Weinzapfel continued to respond to questioning
despite his requests to “take the Fifth,” proves that he was not truly
attempting to invoke the Fifth Amendment. Indeed, he continued to
respond to questioning for an additional 24 pages. (RR32:64-88). This
119
refutes trial counsel’s claim that Weinzapfel “would just not answer the
question purported [sic] to him.” (RR32:89). It appears that Weinzapfel
used his request to “take the Fifth” in an effort to try to bring
questioning on a particular topic to a close.
Darlie Routier
On appeal, Appellant also challenges Weinzapfel on the basis of
his involvement in the Routier case. He fails to state, however, how
this renders him challengeable. Regardless, this complaint was not
preserved for review because it was not raised at trial. See Tex. R. App.
P. 33.1(a). In any event, Weinzapfel testified that he was not involved
in investigating the Routier case. (RR32:63-64). As stated above,
Weinzapfel was apparently involved in helping his colleagues prepare to
testify for trial. (RR32:64). He testified that his “directions were very
specific . . . to make sure those guys were articulate and comfortable
and knew exactly what they were needing to know, as far as from the
medical side of it.” (RR32:64).
Appellant has failed to show that the trial court abused its
discretion in denying his challenge for cause against Weinzapfel. Issue
17 should be overruled.
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Issue 18: Phillip Rapp
Appellant challenged Rapp for cause for the following reasons: (1)
in his questionnaire he indicated strong feelings in favor of the death
penalty; and (2) he did not understand the questions asked during voir
dire.
Death-Prone
Appellant challenged Rapp because he “indicated in his
questionnaire he has strong feelings for the death penalty,” which
Appellant contended demonstrated a bias against a life sentence.
(RR42:70). Counsel’s challenge is overly general and fails to
specifically describe why he believes Rapp is biased.23 Regardless, the
record reflects that Rapp would have to hear “[e]verything in the facts”
before he could make a decision regarding punishment. (RR42:42-43).
He denied that he was the type of person that would automatically vote
to assess the death penalty. (RR42:65). During questioning by the
defense, Rapp testified that he “would be open to what is presented.
But, [he] still feel[s] more strongly to the death penalty as oppose [sic]
23 On appeal, Appellant cites a number of responses in Rapp’s questionnaire which
he contends demonstrate Rapp’s bias. (Appellant’s Brief pp.69-70). When trial
counsel made his challenge in the trial court, he did not specify the responses that
formed the basis for his challenge. As such, it is the State’s position that he has
failed to properly preserve this claim for appellate review.
121
to a life sentence.” (RR42:67-68). A juror may express strong feelings
for imposing a death sentence, but “if he also unequivocally states that
he could set aside those feelings and follow the trial court’s instructions
on the law and would base his verdict or his answers to the special
issues on the evidence adduced,” he is not disqualified as a matter of
law. See Cordova v. State, 733 S.W.2d 175, 184 (Tex. Crim. App. 1987).
Thus, the trial court properly denied Appellant’s challenge on this basis.
Confusion
Appellant also challenged Rapp because “he might not understand
exactly the questions that were proposed to him and may have a
misunderstanding as to how the scheme works.” (RR42:70). During
the State’s voir dire, Rapp affirmed that he understood the process.
(RR42:45, 49, 50, 54, 57). During questioning by the defense, however,
Rapp got confused by counsel’s questions. Defense counsel asked
whether Rapp could answer the intellectual disability special issue in
the affirmative, if proven by the evidence. (RR42:65-66). Initially,
Rapp said no. (RR42:66). When counsel rephrased his question to be
sure that Rapp understood his question, Rapp apologized and testified
that his answer was yes, he could answer the intellectual disability
122
issue in the affirmative. (RR42:67). Later in the exchange, counsel
asked whether Rapp could “answer it ‘no[.]’” (RR42:68). Rapp
answered that he could not. (RR42:68). Counsel again attempted to
clarify his question. (RR42:68). Rapp asked whether counsel was
asking if he could answer the intellectual disability question no.
(RR42:68). He then testified that he could answer the intellectual
disability special issue in the negative. (RR42:68).
Appellant complains that Rapp was confused, yet the questions
Rapp was being asked were, in fact, confusing. At times, it was unclear
what special issue counsel was asking Rapp to respond to. Once the
questions were clarified, Rapp was able to respond appropriately.
There is nothing in the record to show that Rapp misunderstood the
process to be followed in this case.
Appellant has failed to show that the trial court abused its
discretion in denying his challenge for cause against Rapp. Issue 18
should be overruled.
Issue 19: Nancy Ramos
Appellant challenged Ramos for cause because she ranked herself
as a “1” on Question 2 of her questionnaire, indicating a belief that “the
123
death penalty is appropriate in all murder cases.” (Ramos, Juror 1025,
Q p.2). Other responses on her questionnaire, however, demonstrate
that Ramos’ beliefs regarding the death penalty are not quite as rigid as
her self-ranking would make it seem.
For example, even though Ramos ranked herself as a 1, she
answered “yes” to Question 5, which asked whether she agreed “that a
life sentence, rather than the death penalty, would be appropriate
under the proper circumstances[.]” (Ramos, Juror 1025, Q p.2). In
response to Question 15, she ranked herself a 5 out of 10 on a scale of
how strongly she holds her belief in the use of the death penalty.
(Ramos, Juror 1025, Q p.3). In response to Question 36C, she indicated
that she was “uncertain” about whether the death penalty should be
abolished. (Ramos, Juror 1025, Q p.7). In response to Question 41,
Ramos ranked herself a 2 out of 10 on a scale of her attitude toward
punishment in the criminal justice system. (Ramos, Juror 1025, Q p.8).
During voir dire, Ramos affirmed that if selected as a juror, she could
listen and answer the special issues based on the evidence presented.
(RR44:10, 12, 14, 16, 17, 18).
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Claims on Appeal
On appeal, in addition to Ramos’ self-ranking, Appellant cites a
number of other responses Ramos gave in her questionnaire.
(Appellant’s Brief p.71). He contends that these responses show Ramos’
bias. During voir dire, however, Appellant did not question Ramos
about these responses and he did not mention them during his
challenge for cause. As such, these complaints are not preserved for
review. See Tex. R. App. P. 33.1(a).
Appellant has failed to show that the trial court abused its
discretion in denying his challenge for cause against Ramos. Issue 19
should be overruled.
Issue 20: Jay Kirby
Appellant challenged Kirby for cause because (1) he indicated in
his questionnaire that the death penalty is appropriate in all murder
cases; and, (2) he declined to name his friend who is a police officer.
Questionnaire
Appellant challenged Kirby “based on his answers on the
questionnaire; that he believes the death penalty is appropriate in all
murder cases.” (RR45:68). Kirby ranked himself as a “1” on Question 2
125
of his questionnaire, indicating a belief that “the death penalty is
appropriate in all murder cases.” (Kirby, Juror 1052, Q p.1). On
Question 5, he answered “no” to a question asking if he agreed that a
life sentence may be appropriate under the proper circumstances.
(Kirby, Juror 1052, Q p.2). He wrote that “[i]f found guilty of murder
with intent the death penalty should be used.” Id. On Question 9,
Kirby wrote that he did not think that “life should be considered in a
murder case.” (Kirby, Juror 1052, Q p.2).
While many of Kirby’s responses demonstrate that he is strongly
in favor of the death penalty, they also demonstrate a willingness to
follow the law. For example, on Question 47, in response to a question
asking whether he agreed or disagreed with the following statement,
“Regardless of what the Judge says the law is, Jurors should do what
they believe is the right thing to do, even if it goes against the law[,]”
Kirby wrote, “Disagree. If the Judge asked me to disregard I will.”
(Kirby, Juror 1052, Q p.9). When questioned by the State about his
ability to “keep an open mind to this process and base [his] answers on
the evidence,” Kirby testified that he “[could] keep an open mind.”
(RR45:56). He agreed that he could keep an open mind to the process
126
involved in this case. (RR45:56-57). He testified that although he did
not agree that a defendant does not have to testify, he would follow the
law. (RR45:59). During questioning by the defense, the following
exchange took place:
[Defense Counsel]: Some jurors come in and tell us, “You
know what? I thought we would just hear evidence and we
just check a box, life or death.”
But now that you understand how this works, are you
telling us that you could answer each special issue “yes” or
“no” just depending on what you’re convinced of from the
evidence?
[Kirby]: Yes, I can.
[Defense Counsel]: Even if that leads to a life sentence, you
can do that?
[Kirby]: I believe I can.
[Defense Counsel]: Because you can see how we would be a
little concerned, based on your questionnaire. But now
you’re telling us here in court, under oath, that you can do
that?
[Kirby]: Yeah, I believe I can.
(RR45:66-67). Based on the foregoing, it is clear that Kirby was not
disqualified as a matter of law. See Cordova, 733 S.W.2d at 184.
127
Police Officer Friend
Appellant also challenged Kirby for cause because Kirby declined
to provide the name of his friend who is a Dallas police officer.
(RR45:68). During questioning by the defense, counsel inquired about
the fact that, in his questionnaire, Kirby wrote that he has friends who
are police officers. (RR45:65). Kirby testified that has “a friend” who
works out of the Northwest Police Department. (RR45:65). When
asked for his name, Kirby responded that he “would prefer not to, if
that’s okay.” (RR45:65). Defense counsel did not press Kirby to provide
the friend’s name, but asked whether he knew if the friend was involved
in the investigation of Appellant’s case. (RR45:65). Kirby testified that
he knows the friend “socially” and that he did not know whether he was
involved. (RR45:65). Without more information, Appellant’s challenge
fails as there is no evidence that Kirby’s friendship with a police officer
makes him disqualified as a matter of law. In any event, when asked
whether he could set aside his relationship with that friend and listen
to the evidence and make a decision based on what he hears in court,
Kirby testified, “Sure, I could. Yeah.” (RR45:66).
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Appellant has failed to show that the trial court abused its
discretion in denying his challenge for cause against Kirby. Issue 20
should be overruled.
Issue 21: Nathan Sosa
Appellant challenged Sosa for cause because (1) his responses on
his questionnaire; and, (2) he would only consider a life sentence in
limited circumstances. (RR46:32).
Questionnaire
Appellant challenged Sosa for cause “based on his answers in the
questionnaire.” (RR46:32). Appellant did not identify the responses in
the 22-page questionnaire that he contends render him challengeable
for cause. As such, this complaint is not preserved for review. See Tex.
R. App. P. 33.1(a).
Closure
Appellant also challenged Sosa for cause because “he’s limited
himself - - as to when he can consider a life sentence.” (RR46:32). On
Question 9 of his questionnaire, in response to the question, “For what
crimes do you think a sentence of life imprisonment is the proper
punishment[,]” Sosa wrote, “Someone who gives information so as to
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give closure to love [sic] ones.” (Sosa, Juror 1070, Q p.3). During
questioning, defense counsel inquired regarding this response.
(RR46:27-28). Sosa explained that his answer simply represented an
example of a case in which he would agree that a life sentence was
proper: if someone committed murder and hid the victims’ bodies, he
should get a life sentence if he discloses the location of the bodies so
that the family has “closure.” (RR46:28). Importantly, Sosa did not
testify that his example represented the only situation in which a life
sentence would be appropriate. Quite to the contrary, he testified that
he could keep an open mind. The following exchange took place:
[Defense Counsel]: But now that you have heard the way it
works here, can you see there might be other circumstances
--
[Sosa]: Oh, yeah.
[Defense Counsel]: - - that might lead someone to vote for a
life sentence?
Is that what you’re telling us here today; that you can keep
an open mind to that?
[Sosa]: Like I say, you don’t know what people been
through. You can’t just judge one action by being simple
about it. You know, everything comes to a climax. Like I
said, I’m always open-minded. I don’t judge people. I don’t
130
have no preconceptions of people. I try not to let that get in
my way, because I don’t want to have any preconceived
notions about myself. So I try to be fair to everybody, of all
walks of life, throughout my life.
As far as, you know, you show me the evidence, I’ll use my
own free mind, my own free will, and I’ll make my own
decision.
(RR46:29). The foregoing proves that Sosa was not limited in his
ability to consider a life sentence.
Appellant has failed to show that the trial court abused its
discretion in denying his challenge for cause against Sosa. Issue 21
should be overruled.
Issue 22: James Martin
Appellant challenged Martin for cause because (1) his responses
on his questionnaire; and, (2) he is biased as a result of the fact that his
grandson was killed.
Questionnaire
Appellant challenged Martin “just based on his questionnaire.”
(RR50:45). Appellant did not identify the responses in the 22-page
questionnaire that he contends render him challengeable for cause. As
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such, this complaint is not preserved for review. See Tex. R. App. P.
33.1(a).
Martin’s Grandson
Appellant also challenged Martin “based on the fact that his
grandson was killed.” (RR50:45). Appellant asserted that Martin’s
grandson’s death would affect his ability to be a fair juror in Appellant’s
case. (RR50:45).
On Question 67 of his questionnaire, in response to a question
asking whether he knew anyone who was killed accidentally or
otherwise, Martin wrote that “[his] grandson was shot a [sic] killed by a
stray bullit [sic].” (Martin, Juror 1190, Q p.11). Martin testified that
his grandson’s case occurred in 2005.24 (RR50:43). His grandson’s case
was prosecuted by the Dallas County District Attorney’s Office, but it
would not cause him to be unfair in Appellant’s case. (RR50:38).
Indeed, Martin denied that there was anything about his grandson’s
case that would keep him from being able to listen in Appellant’s case.
(RR50:37-38). During the defense voir dire, Martin promised that his
It is not clear whether the offense against Martin’s grandson occurred in 2005 or
24
whether the perpetrator’s trial occurred in 2005. (RR50:43).
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grandson’s case would not affect his ability to be a fair juror in
Appellant’s case. (RR50:43).
The record supports the trial court’s ruling. Martin’s voir dire
does not show a bias against Appellant or the law. The record shows
that he is in favor of the death penalty, but he testified that he would be
comfortable with assessing a life sentence in the proper circumstances.
(RR50:39, 41).
Claims on Appeal
On appeal, Appellant cites a number of other responses Martin
gave in his questionnaire, which he contends show his bias.
(Appellant’s Brief p.76). Appellant did not cite these responses during
his challenge for cause. As such, these complaints are not preserved for
review. See Tex. R. App. P. 33.1(a).
Appellant has failed to show that the trial court abused its
discretion in denying his challenge for cause against Martin. Issue 22
should be overruled.
Issue 23: Jennifer Wilder
Appellant challenged Wilder for cause because (1) she would
increase the burden on the defense regarding the intellectual disability
133
special issue; (2) she would lower the burden on the State regarding the
future danger special issue; and, (3) she would impose a burden on the
defense regarding the mitigation special issue.
Intellectual Disability
Appellant challenged Wilder for cause because she would hold the
defense “to a burden of beyond a reasonable doubt on Special Issue
Number One.” (RR52:85-86). During the State’s voir dire, the
prosecutor explained that with regard to the intellectual disability
special issue, the burden of proof is on the defense to prove it by a
preponderance of the evidence. (RR52:26-33). Wilder affirmed that she
could abide by the law with regard to this special issue. (RR52:29). She
denied that she would automatically answer the intellectual disability
special issue in the negative simply because the offense at issue is
capital murder. (RR52:33).
When questioned by the defense, Wilder gave a response that
suggested that she would increase the burden of proof:
[Defense Counsel]: You know, sometimes people have told
us also . . . I want to be really sure they’re mentally
retarded. I don’t want to be sure, just more likely than not.
I want to be the most sure I can be, under the law.
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“I want to be sure beyond a reasonable doubt. I don’t want
to have any doubt, for me to just say this person shouldn’t
receive the death penalty because they’re mentally
retarded. I want to be convinced more than just a
preponderance. I have to be convinced beyond a reasonable
doubt.
“We’re holding the State to beyond-a-reasonable-doubt
standard. I want to hold the Defense to that burden also.”
What do you think?
[Wilder]: Yes. You’ve got to be fair. I notice you have
mentally retarded first, instead of last. It seems like
everybody do [sic] a crime, and then they want to say that
they are mentally retarded. You can even fool a doctor that
you’re mentally retarded. You just got to prove it beyond, as
you say, a reasonable doubt. And then you can see some
features in a mentally-challenged person also.
(RR52:64-65). It appears from this exchange that Wilder may have
been confused and thought that beyond a reasonable doubt was the
appropriate burden on this special issue. Later in the exchange,
defense counsel returned to the subject and explained that the burden
on the defense is a preponderance of the evidence. (RR52:66-67).
Wilder affirmed that she would be okay with the defense proving the
intellectual disability special issue by a preponderance of the evidence.
(RR52:68).
135
To the extent that Wilder provided contradictory responses, the
appellate court should defer to the trial judge. 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. Gardner, 306
S.W.3d at 295.
Future Danger
Appellant challenged Wilder because she would only require the
State to prove “just a mere chance or a possibility” that Appellant would
be a future danger. (RR52:86). During voir dire, the prosecutor
explained that the burden on the future danger special issue is on the
State. (RR52:40-41). The State must prove that there is a probability –
more than a possibility, but less than a certainty – that Appellant
would be a future danger. (RR52:44-46). Wilder agreed that she would
be open to either possible answer and testified that “[a]nybody can be
rehabilitated.” (RR52:46).
When questioned by the defense, Wilder again agreed that the
State would have to prove a probability. (RR52:74). Then, however, as
the exchange continued, she gave a response that was equivocal. The
following exchange took place:
136
[Defense Counsel]: So if the law says that you have to hold
the State to prove more than a mere chance and they have
to prove to you a probability, which is more, would you
agree?
[Wilder]: Yes.
[Defense Counsel]: Could you follow that?
Or would a mere chance be enough for you?
Because, if that’s the way you feel, you can tell us. You can
say, “I can follow the law and say a probability is what I
would hold them to.” You tell me.
What would make you more comfortable?
[Wilder]: A mere chance. I think both sides would be a
chance. Proving it beyond a reasonable doubt and thinking
that this person is going to rehabilitate, even if they ever
get out of prison. I could go either way. You’ve got to prove
it. But then, nothing is 100 percent proven.
(RR52:74).
To the extent that any of Wilder’s responses may be interpreted as
contradictory, this Court should defer to the trial court’s resolution of
her 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
137
member during voir dire. Id. 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.
Mitigation
Appellant challenged Wilder because she would place a burden on
the defense regarding the mitigation special issue. (RR52:86). At no
point, however, did Wilder ever say that she would place a burden on
the defense on this issue. Importantly, neither side instructed Wilder
that there is no burden as it relates to this issue. See generally
Threadgill, 146 S.W.3d at 667.
Defense counsel asked Wilder about the fact that some people
would only answer the mitigation special issue in the affirmative if “the
Defense proves it to [them].” (RR52:75). Wilder responded as follows:
You got the Defense over here, then you have the person
that’s defending the Defendant. You would want your
government to really bring everything that they would have
in order to prove the Defendant - - if they should receive life
or death. It’s just looking at the evidence.
(RR52:76). Wilder’s response suggests that she would consider the
evidence presented, not that she would impose the burden of proof on
138
the defense. (RR52:76). Even if her response can be interpreted as
imposing a burden on the defense, which the State does not concede,
this Court has 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, 3
S.W.3d at 559).
Claims on Appeal
On appeal, Appellant cites a number of other responses Wilder
gave in her questionnaire, which he contends show her bias.
(Appellant’s Brief p.78). Appellant did not mention these responses
during his challenge for cause. As such, these complaints are not
preserved for review. See Tex. R. App. P. 33.1(a).
Appellant has failed to show that the trial court abused its
discretion in denying his challenge for cause against Wilder. Issue 23
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
139
denied the use of a statutorily provided peremptory strike. Issues 9
through 23 should be overruled.
STATE’S RESPONSE TO ISSUE NOS. 24-30: THE TRIAL COURT DID NOT ERR
IN GRANTING THE STATE’S CHALLENGES FOR CAUSE.
In Issues 24 through 30, Appellant contends that the trial court
erred in granting the State’s challenges for cause against
veniremembers Sheryly Kingery, Kimberly Morris, Consuelo Davila,
Gloria Hawkins, Jenna Kinzie, Raul Flores, and Kellye Hogan. He
contends the exclusion of these jurors violated article 35.16 of the Texas
Code of Criminal Procedure. 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 State is seeking
the death penalty.
2. That he is related within the third degree of
consanguinity or affinity as determined under
140
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) (West 2006). 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, 146 S.W.3d at 667.
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,
353 S.W.3d at 831. 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.
Issue 24: Sheryl Kingery
On her questionnaire, in response to Question 2, Kingery ranked
141
herself a “5,” indicating a belief that she “could never, under any
circumstances, return a verdict which assessed the death penalty.”
(RR13:22; Kingery, Juror 32, Q p.1). Kingery wrote that she could not
be a part of taking someone’s life. (Kingery, Juror 32, Q p.1). She
made statements in multiple other places, which made her beliefs
regarding the death penalty clear: she has moral, religious, or personal
beliefs that would prevent her from returning a verdict which would
result in the execution of another human being (Kingery, Juror 32, p.3);
“(death sentence) provides no purpose” (Kingery, Juror 32, p.3); “I do
not believe in the death penalty” (Kingery, Juror 32, p.4); “I simply do
not believe in the death penalty” (Kingery, Juror 32, p.4); “[the death
penalty] just never made any sense to me. It seems contradictory.
Murder is a crime but putting someone to death is not” (Kingery, Juror
32, p.5); “I want to be sure to make it clear my stance against the death
penalty and it would be an influence on my thoughts” (Kingery, Juror
32, p.20).
During voir dire by the State, when asked if she was saying, “I
can’t be part of [this process], because of my beliefs[,]” Kingery testified
that the prosecutor was correct. (RR13:23). Kingery testified that if
142
she were a juror, she “would have to answer [the special issues]
truthfully[,]” but later, she conceded the possibility that she would be
looking for a way to answer the questions in such a way that the death
penalty would not result. (RR13:25). Serving as a juror in this case
would do harm to her conscience. (RR13:25-26). Kingery repeatedly
affirmed that she does not believe in the death penalty and believes
that it should be abolished. (RR13:28-29).
When questioned by the defense, Kingery testified that if she were
selected as a juror, she would show up. (RR13:44). She intimated,
however, that her participation would be less than honest. The
following exchange took place:
[Defense Counsel]: If you’re selected as a juror, would you
just refuse to participate at all in the process?
[Kingery]: No, I would not refuse to participate. But I know
how I would participate.
[Defense Counsel]: Okay. That’s what we’re going to talk
about.
Would you do it honestly?
I mean, you’ve indicated, when they were asking you
questions, that you would participate honestly in the
process.
143
[Kingery]: As honestly as I can. I know I have this strong
belief.
(RR13:44). Later, counsel asked Kingery whether she could honestly
answer “no” to the mitigation special issue if she did not find any
mitigating evidence. (RR13:55). Kingery testified that “it would kill
[her].” (RR13:55). As the exchange continued, however, she gave
answers that suggested that her participation would be less than
completely honest:
[Defense Counsel]: But would you be honest and do it?
[Kingery]: I would have to. Because, one way or the other,
my conscience is going to - -
[Defense Counsel]: So you would have to answer it
honestly.
[Kingery]: Yes.
[Defense Counsel]: Even if your answer’s “no” you would be
honest and answer “no” that there’s no mitigation, right?
Even if it would be hard - - extremely hard - - for you, you
could do it?
[Kingery]: Put in that situation, can I absolutely, honestly
answer that today?
144
[Defense Counsel]: No. We don’t know what you’re going to
hear.
[Kingery]: I would hope I would do it. But I still can’t say,
when it came down to that wire. I can only hope that I will
do it.
(RR13:55-56). Kingery then contradicted herself and testified that she
“[could] answer the questions honestly.” (RR13:57).
A veniremember 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, 966 S.W.2d at 517. 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.
The totality of Kingery’s voir dire testimony shows that her beliefs
about capital punishment would prevent or substantially impair the
145
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.
As a result of her bias, Kingery could not ensure the parties that she
would follow the law and answer the special issues honestly. See Clark
v. State, 929 S.W.2d 5, 8-9 (Tex. Crim. App. 1996) (a prospective juror
who maintains she will consciously distort her answers must be excused
on challenge for cause). At a minimum, Kingery vacillated. Where the
venire member either vacillates or equivocates on her 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. 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).
Issue 24 should be overruled.
Issue 25: Kimberly Morris
At the beginning of the State’s voir dire, Morris testified that
146
although she believes in the death penalty, she was concerned about
being the person “to say that that should happen to someone[.]”
(RR13:213). Indeed, she testified that she could not take the oath
because of her beliefs about the death penalty. (RR13:218-19). The
following exchange took place:
[Prosecutor]: Your moral beliefs, they’re yours . . . What I’m
hearing you say, when you tell me it might be hard to
return a verdict that would result in the execution of
somebody else, tells me that you might have some moral
dilemma with actually being on a jury that actually imposed
a verdict that resulted in the execution of somebody else.
[Morris]: Yes.
[Prosecutor]: Is that how you feel?
[Morris]: That’s how I feel.
[Prosecutor]: Okay. What I’m saying is that you would
have to take an oath to follow the law, even if the law
conflicted with your own moral standard.
Some jurors have told me, “I can’t take that oath, because I
don’t want to be in a position of making a determination
that, while in line with the law, is not in line with my own
morals.”
Does that make sense?
147
[Morris]: Yes.
[Prosecutor]: Some people have a moral opposition to
imposing the death penalty, by their verdict. Okay? And
what I’m hearing you tell me is that you could not take that
oath.
Is that right?
[Morris]: Correct.
[Prosecutor]: You couldn’t assure me that you would take
the oath and follow it all the way through because of your
moral dilemmas with the death penalty, correct?
[Morris]: Correct.
(RR13:217-19). Later, the prosecutor returned to the subject and
Morris maintained her position, stating, “No. I couldn’t assure you that
[she would take the oath to follow the law].” (RR13:239).
During voir dire by the defense, however, Morris contradicted
herself. She testified that she would answer all of the special issues
honestly. (RR13:249-50, 254-55, 259). She testified that she would take
the oath if she had to. (RR13:260). In an effort to clarify Morris’
position, the trial judge inquired of her as follows:
[Trial Court]: . . . Now, one side, you’re saying, no, you
can’t. The other side, you’re saying, yes, you can.
148
I need to know “yes” or “no” can you take the oath?
[Morris]: No.
(RR13:264).
Given Morris’ repeated statements that she could not take the
oath, the trial court properly granted the State’s challenge for cause. A
veniremember is challengeable for cause if she states that her
convictions are so strong that she cannot take an oath, knowing that a
death sentence is a possible result at trial. See Goodwin v. State, 799
S.W.2d 719, 731-32 (Tex. Crim. App. 1990). The record supports the
trial court’s decision to grant the State’s challenge. See King v. State,
29 S.W.3d 556, 568 (Tex. Crim. App. 2000). To conclude otherwise
would controvert this Court’s policy as stated earlier. Jones, 982
S.W.2d at 394.
Issue 25 should be overruled.
Issue 26: Consuelo Davila
On Question 2 of her questionnaire, Davila ranked herself a “5,”
indicating a belief that she “could never, under any circumstances,
return a verdict which assessed the death penalty.” (Davila, Juror 103,
149
Q p.1). She wrote in 3 places that she did not think that she could “send
someone to [the] death penalty.” (Davila, Juror 103, Q pp.3, 4, 20).
She also answered “yes” to Questions 3 and 4, which ask whether
the juror has any moral, religious or personal beliefs that would prevent
them from sitting in judgment of another human being or would
prevent them from returning a verdict that would result in the
execution of another human being. (Davila, Juror 103, Q p.3).
During questioning by the State, Davila affirmed the answers on
her questionnaire. (RR14:133-36). She agreed that her beliefs
regarding the death penalty would affect her ability to answer the
special issues. (RR14:154). The following exchange took place:
[Prosecutor]: Okay. So your views then on the death
penalty will impact how you consider whether somebody is
mentally retarded or not; is that right?
[Davila]: Yes.
[Prosecutor]: Okay. In other words, you would change or
consider Special Issue Number One really not in the context
of whether the person suffers from mental retardation, but
whether you want him to get the death penalty or not; is
that right?
[Davila]: Yes.
150
(RR14:154). The prosecutor asked Davila whether her feelings would
affect her answer to the deliberateness special issue, “knowing that if
you answer it ‘yes’ you’re moving closer toward that verdict of death?”
(RR14:159). Davila responded, “I think it would. But I still can’t send
no one to death penalty.” (RR14:159). Her views would affect her
answers to the future danger and the mitigation special issues as well.
(RR14:159-60, 167). Because of her moral beliefs, she is unable to be a
part of the process involved in this case. (RR14:169). When Davila was
questioned by the defense, she appeared to contradict herself because
she agreed that she could answer the special issues. (RR14:178-87). At
the end of questioning, however, she testified that she could not take
the oath to serve as a juror. (RR14:187-88). The following exchange
took place:
[Defense Counsel]: . . . So now that you know how it works,
do you think you could take the oath to serve as a juror and
be part of the process, as long as all you’re asked to do is
answer the questions honestly and base your answers on
the evidence?
Do you think you could do that?
[Davila]: Honestly, no.
(RR14:187-88).
151
Given Davila’s testimony that her beliefs would affect her answers
to the special issues and that she could not take the oath, the trial court
properly granted the State’s challenge for cause. See Goodwin, 799
S.W.2d at 731-32. 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.
Issue 26 should be overruled.
Issue 27: Gloria Hawkins
In response to Question 1 on her questionnaire, Hawkins wrote
that she is not in favor of the death penalty. (Hawkins, Juror 176, Q
p.1). During questioning by the State, Hawkins affirmed the statements
in her questionnaire that she does not believe in the death penalty.
(RR15:216). She testified, “No, I wouldn’t be part of a process where
someone is executed. I will not be.” (RR15:215). Importantly, Hawkins
refused to provide any assurance that if she were selected as a juror
that she would take the oath and follow the law. (RR15:219-21). The
following exchange occurred:
[Hawkins]: I said, I’m against the death penalty. Yes,
that’s what I wrote. That’s what I mean.
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[Prosecutor]: Can you take the oath to follow the law and
render a true verdict?
[Hawkins]: What do you think?
[Prosecutor]: I think you can. What do you think?
[Hawkins]: I’m not gone [sic] give the death penalty.
[Prosecutor]: Because of how you feel, you’re not going to
give the death penalty?
[Hawkins]: And may not even want to give a life penalty.
But go ahead.
...
[Prosecutor]: And even if you [heard the evidence], you
couldn’t impose the death penalty in any case.
Is that what you’re telling me?
[Hawkins]: If I heard witnesses. No, I will not impose the
death penalty. That is too final. And people change.
...
[Prosecutor]: Are you able to give me your assurance right
now that you can take the oath to follow the law and render
a true verdict, based on the law and the evidence?
[Hawkins]: That I could follow the law?
153
[Prosecutor]: And render - -
[Hawkins]: I’m not a part of that. I don’t have to follow
that. No, I don’t have to follow that. I’m not a part of your
law.
(RR15:219-21). In contrast, when she was questioned by the defense,
Hawkins testified that she could answer the special issues honestly.
(RR15:227-28). She testified that she could follow the law. (RR15:230-
31, 234-35, 239).
The totality of Hawkins’ voir dire testimony shows that her beliefs
about capital punishment would prevent or substantially impair the
performance of her duties as a juror as required by law. To the extent,
if any, that some of her 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, 29 S.W.3d at 568 (particular deference is given to the trial court’s
conclusion that venire member cannot follow law when venire member’s
answers are vacillating, unclear, or contradictory). To conclude
otherwise would controvert this Court’s policy as stated earlier. Jones,
982 S.W.2d at 394.
154
Judgment
On Question 4 of her questionnaire, Hawkins answered “yes” to a
question asking whether she has “any moral, religious or personal
beliefs that would prevent [her] from returning a verdict which would
result in the execution of another human being.” (Hawkins, Juror 176,
Q p.2). During voir dire, she testified, “I don’t believe I have a right to,
you know, judge anybody, to say that they should die for what they did.”
(RR15:184). The totality of Hawkins’ voir dire shows she could not sit
in judgment of another individual and her statements support the trial
court’s decision.
Guilt
When Hawkins was told that the Judge would instruct her that
Appellant has already been found guilty, Hawkins testified, “Well, I
didn’t see the trial. It’s hearsay to me.” (RR15:190). The prosecutor
explained that another jury already found Appellant guilty.
(RR15:190). Hawkins testified that she would “have to see it for
[her]self[.]” (RR15:190). As above, Hawkins’ testimony shows that she
was unable (or unwilling) to follow the law. The record supports the
trial court’s decision.
155
Fifth Amendment
On Question 36A of her questionnaire, Hawkins wrote that she
agreed with the statement, “Even though the law says a Defendant has
the right to remain silent, a person accused of capital murder should
testify.” (Hawkins, Juror 176, Q p.7). During voir dire, the prosecutor
explained that jurors are not allowed to consider the fact that a
defendant does or does not testify in his own defense as evidence of
guilt. (RR15:195). Hawkins testified that she “[doesn’t] follow that
law.” (RR15:195). In contrast, she later contradicted herself when she
testified that she would follow an instruction not to consider whether
the defendant elects to testify as evidence of guilt. (RR15:196). To the
extent that Hawkins was a vacillating juror, the record supports the
trial court’s decision. See King, 29 S.W.3d at 568.
Future Danger
Hawkins testified that she could not find a person to be a future
danger unless she talks to that person or if that person testifies and she
hears what that person has to say. (RR15:209). She could not answer
the future danger special issue unless the defendant testifies.
(RR15:210). Even so, “[y]ou can’t tell a person’s heart. You don’t know
156
what he’s going to do or what he’s not going to do in the future. You
can’t do it. You can only predict.” (RR15:211). As a result, she could
never answer the future danger special issue. (RR15:211, 212). She
testified:
I can’t do that. Because I can’t look at a person’s heart and
tell what they’re going to do. I can’t do that. And you can’t
either.
(RR15:211-12). In contrast, she later contradicted herself when she
testified that she could answer the the future danger special issue “yes.”
(RR15:235-36). To the extent that Hawkins was a vacillating juror, the
record supports the trial court’s decision. See King, 29 S.W.3d at 568.
The record supports the trial court’s decision to grant the State’s
challenge. To conclude otherwise would controvert this Court’s policy
as stated earlier. Jones, 982 S.W.2d at 394.
Issue 27 should be overruled.
Issue 28: Jenna Kinzie
On Question 1 of her questionnaire, Kinzie wrote that she is “not
sure what [she] think[s] about the death penalty but [she does] not
think it should be [her] decision whether someone lives or dies.”
(Kinzie, Juror 243, Q p.2). She ranked herself a “3” on Question 2,
157
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.” (Kinzie, Juror
243, Q p.2). During the State’s voir dire, she described herself as
“teeter-tottery” about the subject. (RR17:114). When the prosecutor
asked if taking the oath would violate her conscience, Kinzie said it
would. (RR17:125). Kinzie testified that she thought that she could
take the oath; however, her views on the death penalty would affect her
answers to the special issues. (RR17:128-29). During questioning by
the defense, however, Kinzie agreed that she could take the oath and
render a verdict based on the law and evidence. (RR17:139, 142, 158).
After she was questioned by both sides, the trial court brought
Kinzie back into the courtroom and asked whether she could “take the
oath or not[.]” Kinzie testified that she could not. (RR17:170-71). To
the extent that Kinzie was a vacillating juror, the record supports the
trial court’s decision. See King, 29 S.W.3d at 568.
Fifth Amendment
On Question 36A of her questionnaire, Kinzie wrote that she
agreed with the statement, “Even though the law says a Defendant has
158
the right to remain silent, a person accused of capital murder should
testify.” (Kinzie, Juror 243, Q p.7). During the State’s voir dire, she
testified that she would prefer that a capital murder defendant testify.
(RR17:133). She was unsure whether she would require the defendant’s
testimony. (RR17:133). She would consider it, however, in deciding
the special issues. (RR17:135). When questioned by the defense,
Kinzie agreed that she would not consider the defendant’s failure to
testify. (RR17:157). To the extent that Kinzie was a vacillating juror,
the record supports the trial court’s decision. See King, 29 S.W.3d at
568.
Police Officers
One of Kinzie’s brothers is a police officer. (RR17:129, 154). As a
result, even though the law says that police officers are to be judged as
any other witness, Kinzie would find them to be more credible.
(RR17:130-31). She later contradicted herself and agreed that she
would wait and listen to their testimony before judging their credibility.
(RR17:155-56).
The totality of Kinzie’s voir dire testimony clearly shows her
beliefs about capital punishment and sitting in judgment of another
159
person would prevent or substantially impair her ability to carry out
her obligations as a juror. And, she vacillated on multiple issues.
Indeed, Kinzie was the classic vacillating juror; she gave different
answers depending on who was questioning her. 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, 85 S.W.3d at 231. The record supports the trial
court’s decision to grant the State’s challenge. To conclude otherwise
would controvert this Court’s policy as stated earlier. Jones, 982
S.W.2d at 394.
Issue 28 should be overruled.
Issue 29: Raul Flores
On his questionnaire, Flores wrote that he is not in favor of the
death penalty and described it as “barbaric.” (Flores, Juror 244, Q p.2,
p.5). On Question 4, he answered “yes” to a question asking whether
he has “any moral, religious or personal beliefs that would prevent
[him] from returning a verdict which would result in the execution of
another human being.” (Flores, Juror 244, Q p.3). He wrote that he
was “very unsure that [he] could send a person to their death.” (Flores,
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Juror 244, Q p.3). On Question 19, Flores answered “no,” that the
death penalty is not applied fairly in Texas. (Flores, Juror 244, Q p.4).
On Question 22, Flores wrote that the death penalty is used too often
and that “it’s used as a political tool to gain votes from people thirsty for
punishment, rather than what benefits society.” (Flores, Juror 244, Q
p.4). He answered “agree” to Question 36C, which asked whether the
death penalty should be abolished. (Flores, Juror 244, Q p.7).
During questioning by the State, Flores’ testimony revealed
considerable distrust in the prosecution. The following exchange took
place:
[Flores]: Everybody has their agenda. Everybody wants
something. It just seems that with the prosecutor, lately,
I’ve been hearing about wins and losses. And that’s all that
matters. This morning, I heard about a receipt was [sic]
withheld, evidence was withheld, and the guy went to
prison for 25 years.
[Prosecutor]: Yep.
[Flores]: That happened, because a prosecutor wanted to
win. I’m suppose to believe what you tell me - -
[Prosecutor]: Actually, you don’t have to.
[Flores]: Well, I’m not too succinct [sic] right now.
161
...
[Flores]: So you just told me that, okay, we’re here because
this happened and this happened and this happened. And
I’m supposed to believe you?
[Prosecutor]: In one sense, yes. In another sense, you don’t
have to necessarily agree with it.
Does that make sense to you?
[Flores]: You’re telling me these things, and we’re going to
proceed onward, as if I believe you. And that’s - -
[Prosecutor]: That’s a problem for you?
[Flores]: (Venireperson nods.)
[Prosecutor]: That’s all right. I can tell.
(RR18:21-23). The prosecutor asked Flores whether his personal
experiences and “things that [he has] read about” meant that the State
was “already behind in this case.” (RR18:39). Flores responded that
“That’s accurate.” (RR18:39).
Flores openly admitted that he is biased. He testified, “I’m very
biased.” (RR18:33). He testified that his “biases will factor into how
[he] act[s].” (RR18:34). At one point, Flores testified that he thought
that he could look at evidence objectively. (RR18:40). But then he
162
returned to his initial stance. The following exchange took place:
[Prosecutor]: . . . In other words, you could not be a part of
this process that would result in the execution because of
how you feel; is that right? “Yes” or “no”?
[Flores]: No, I couldn’t.
[Prosecutor]: Okay. All right.
[Flores]: I’d be fine disregarding the instructions, you know.
[Prosecutor]: You would be fine disregarding the
instructions?
[Flores]: If the alternative is sending someone to die.
(RR18:40-41).
Later, when he was questioned by the defense, Flores equivocated
regarding his ability to serve as a juror and answer the special issues
based on the law and evidence. (RR18:66-67). Counsel tried to pin
Flores down, but Flores testified that the best answer he was able to
give was “I don’t know.”
The totality of Flores’ voir dire testimony clearly shows that his
beliefs about capital punishment and his clear bias against the State
would prevent or substantially impair his ability to carry out his oath
and follow instructions in accordance with the law. Threadgill, 146
163
S.W.3d at 667. Flores was equivocal about his ability to take the oath.
Even if he did take the oath, however, by his testimony, he would “be
fine disregarding [the court’s] instructions[.]” (RR18:41). The record
supports the trial court’s decision.
Issue 29 should be overruled.
Issue 30: Kellye Hogan
In her questionnaire, Hogan wrote that she is in favor of the death
penalty in the appropriate case, but she is “hesitant to make a decision
for someone else’s fate.” (Hogan, Juror 1110, Q p.2, 20). During voir
dire, after hearing the prosecutor summarize the process involved,
Hogan testified that she did not feel like she could be a part of the
process. (RR47:69). She testified, “I don’t feel like I can handle making
that type of decision, based on an individual.” (RR47:69). Hogan
acknowledged that her testimony differed from the answers in her
questionnaire; she said that she has “had time to think about it[.]”
(RR47:70). Initially, Hogan agreed that the death penalty “would be
playing on [her] mind” as she answered the special issues. (RR47:74).
But then she testified that if she were a juror that she “would obviously
tell the truth” and that her views on the death penalty would not affect
164
her answers to the special issues. (RR47:75-76). Where the venire
member either vacillates or equivocates on her ability to follow the law,
the Court should defer to the trial court’s judgment on the challenge for
cause. Granados, 85 S.W.3d at 231. The record supports the trial
court’s decision to grant the State’s challenge. To conclude otherwise
would controvert this Court’s policy as stated earlier. Jones, 982
S.W.2d at 394.
Burden of Proof
Hogan also testified that she would hold the State to a higher
burden of proof than beyond a reasonable doubt. (RR47:99). The
prosecutor explained that although the beyond-a-reasonable-doubt
standard is the highest burden in the criminal justice system, it “does
not mean with 100 percent certainty or beyond all possible doubt.”
(RR47:99). When asked if she would hold the State to its burden of
beyond a reasonable doubt or whether she would hold it to a higher
burden, Hogan testified that “it would have to be a higher burden than
reasonable doubt - - beyond a reasonable doubt.” (RR47:99). The
prosecutor explained that the law only requires the State to prove
something beyond a reasonable doubt but Hogan maintained that she
165
would hold the State to a higher burden. (RR47:100-01). The following
exchange took place:
[Prosecutor]: The law is, you would be instructed that I’m
only suppose to prove it beyond a reasonable doubt, if I can
prove it at all. Even if you were convinced beyond a
reasonable doubt about something, about Special Issue
Number Two, Special Issue Number Three, you would still
hold me to that higher burden, because of your thoughts on
capital murder; is that correct?
[Hogan]: That’s correct.
[Prosecutor]: You would hold me to beyond all possible
doubt?
[Hogan]: Yes.
(RR47:101). When she was questioned by the defense, Hogan appeared
to change her answer. (RR47:112-14). She agreed that she would not
hold the State to an impossible burden, but would hold the State to its
burden of beyond a reasonable doubt. (RR47:114). In an attempt to
clear up the confusion, the trial court inquired of Hogan regarding the
burden of proof:
[Trial Court]: . . . All right. I’m confused now, Ms. Hogan.
And I want you to tell me. Because, when Mr. Birmingham
was talking to you . . . you told him that you would hold him
to a higher burden of proof. Mr. Sanchez has been over this
166
with you.
You understand, the law is beyond a reasonable doubt?
That’s the burden of proof that the State has to prove.
Beyond a reasonable doubt can mean anything to you. We
don’t have a legal definition of it. It means whatever it
means to you, each juror. But that is the burden of proof.
It’s not beyond all doubt. It’s not beyond a shadow of a
doubt. It’s not beyond - - it’s not 100 percent. It’s not to a
certainty. It’s beyond a reasonable doubt.
Now, would you hold the State to that burden?
Or would you hold them to a higher burden?
Just be real truthful and honest with us.
[Hogan]: Okay. Well, that’s what I thought I answered,
was it would be a higher - - it would be a higher burden.
[Trial Court]: A higher burden than beyond a reasonable
doubt?
[Hogan]: Yes.
(RR47:115). A review of Hogan’s testimony shows that she has a bias
against the law regarding the State’s burden of proof. Her bias would
prevent or substantially impair her ability to carry out her oath and
instructions in accordance with the law. Threadgill, 146 S.W.3d at 667.
At a minimum, Hogan was a vacillating juror. See generally Ladd, 3
167
S.W.3d at 559. The record supports the trial court’s decision.
Issue 30 should be overruled.
Conclusion
The trial court did not abuse its discretion in granting the State’s
challenges for cause regarding Kingery, Morris, Davila, Hawkins,
Kinzie, Flores, and Hogan. 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 394. 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.
Issues 24 through 30 should be overruled.
STATE’S RESPONSE TO ISSUE 31: THE SUPREME COURT’S DECISION IN
HALL V. FLORIDA DID NOT INVALIDATE THIS COURT’S DECISION IN EX
PARTE BRISENO.
Appellant contends that the recent Supreme Court decision in
Hall v. Florida, 134 S. Ct. 1986 (2014) invalidates and renders
unconstitutional this Court’s decision in Ex parte Briseno, 135 S.W.3d 1
168
(Tex. Crim. App. 2004). Appellant’s contention lack merit.
Pertinent Facts
On June 3, 2014, Appellant filed a motion to quash the jury panel
based on the United States Supreme Court opinion in Hall. (CR:23-24).
Defense counsel argued that under Hall, it is unconstitutional to
instruct the potential jurors that an IQ of “70 or below” as “it’s actually
a moving scale now, depending on the evidence from an expert.”
(RR47:7). Counsel argued that “by application and by statutory
statement through the Brisenio [sic] case, we feel that there’s an
unconstitutionality there.” (RR47:7). The trial court overruled
Appellant’s objection to the State being permitted to instruct the
potential jurors that the first prong of the test for intellectual disability
requires an IQ of 70 or below. (RR47:11-12).
On June 13, 2014, the trial court conducted a second hearing on
Appellant’s motion. At that time, Appellant argued that “Briseno no
longer applies” after Hall. (RR53:15). The defense maintained its June
3rd argument that the jury had been improperly questioned on the
matter during voir dire. (RR53:16-17). The trial court denied
Appellant’s motion to quash the panel. (RR56:4).
169
Applicable Law
Atkins
In Atkins v. Virginia, 536 U.S. 304, 321 (2002), the United States
Supreme Court held that the execution of intellectually disabled
defendants violates the Eighth Amendment. A fundamental premise of
Atkins is that the clinical definition of intellectual disability takes into
account “that IQ scores represent a range, not a fixed number[.]” Hall,
134 S. Ct. at 1999. “And those clinical definitions have long included
the [standard error or measurement “SEM”.]” Id.
Briseno
For the purposes of an Atkins claim, this Court has defined
intellectual disability in accordance with the criteria adopted by the
American Association on Mental Retardation (AAMR) and the Texas
Health and Safety Code as (1) significant sub-average general
intellectual functioning, usually evidenced by an intelligence quotient
(IQ) score below 70, that is accompanied by, (2) related limitations in
adaptive functioning, (3) the onset of which occurs prior to the age of 18.
See Briseno, 135 S.W.3d at 7-8; see also Tex. Health & Safety Code Ann.
§ 591.003(7-a) (West Supp. 2015). The Briseno Court defined
170
significantly subaverage intellectual functioning as an IQ of about 70 or
below (approximately two standard deviations below the mean). Id. at 7
n.24; see also Williams v. State, 270 S.W.3d 112, 113-14 (Tex. Crim.
App. 2008) (noting this Court’s adoption of the AAMR definition of
intellectual disability, which is defined, in part, as “an IQ ‘of about 70’
or below”)) (citing Briseno, 135 S.W.3d at 7 n.24). Regarding adaptive
functioning, this Court recognized that the determination may be
difficult as the criteria “are exceedingly subjective” and articulated
seven factors that a fact-finder may consider when resolving that prong:
 Did those who knew the person best during the
developmental stage – his family, friends, teachers,
employers, authorities – think he was mentally
retarded at that time, and, if so, act in accordance
with that determination?
 Has the person formulated plans and carried them
through or is his conduct impulsive?
 Does his conduct show leadership or does it show that
he is led around by others?
 Is his conduct in response to external stimuli rational
and appropriate, regardless of whether it is socially
unacceptable?
 Does he respond coherently, rationally, and on point to
oral or written questions or do his responses wander
from subject to subject?
171
 Can the person hide facts or lie effectively in his own
or others’ interests?
 Putting aside any heinousness or gruesomeness
surrounding the capital offense, did the commission of
that offense require forethought, planning, and
complex execution of purpose?
Id. at 8-9.
Hall v. Florida
In Hall, the United States Supreme Court held that Florida’s
interpretation of its intellectual disability statute was unconstitutional.
134 S. Ct. at 2000. Freddie Hall filed a motion claiming that he was
intellectually disabled and could not be executed. Id. at 1991-92. He
presented in IQ score of 71.25 Id. at 1992. Florida argued that Hall was
not allowed to present any additional evidence of his intellectual
disability because he had failed as a threshold matter to present
evidence of an IQ score of 70 or below. Id. The Florida court’s
interpretation of the strict 70 cutoff did not permit consideration of the
SEM. Because Hall failed to meet the strict cutoff, he was not allowed
to present evidence of adaptive deficits. See id.
25Hall presented multiple IQ scores, but some were excluded, leaving only scores
between 71 and 80. Id.
172
The United States Supreme Court noted that, on its face, there
was nothing in the Florida statute to preclude consideration of the
standard error of measurement. Hall, 134 S. Ct. at 1994. The problem
was that the Florida Supreme Court had interpreted the provisions of
the intellectual disability statute too narrowly:
It has held that a person whose test score is above 70,
including a score within the margin for measurement error,
does not have an intellectual disability and is barred from
presenting other evidence that would show his faculties are
limited.
Id. at 1994 (citing Cherry v. State, 959 So. 2d 702, 712-13 (Fla. 2007)
(per curiam)). This interpretation contradicts established medical
practice because it uses an IQ score as “final and conclusive evidence of
a defendant’s intellectual capacity” even though an IQ score is “on its
own terms, imprecise” and because experts in the field would still
consider other evidence. Id. at 1995. Hall holds that individual states
may not bar a defendant from litigating an intellectual disability claim
by implementing a mandatory and rigid IQ test-score cutoff, without
considering the IQ test’s SEM. Id. at 2001.
Texas post-Hall
Nearly six months after Hall, in Ex parte Cathey, this Court
173
reaffirmed Texas’ use of the definition of intellectual disability adopted
in Briseno. Ex parte Cathey, 451 S.W.3d 1, 9 fn.15 (Tex. Crim. App.
2014). Briseno was affirmed again in Ex parte Moore, 470 S.W.3d 481
(Tex. Crim. App. 2015), cert. granted in part, 136 S. Ct. 2407 (2016). In
Moore, this Court reiterated that, in the absence of action by the
Legislature, Texas would “continue to follow the AAMR’s 1992
definition of intellectual disability . . . adopted in Briseno for Atkins
claims presented in Texas death-penalty claims.” Id. at 486 (citing In
re Allen, 462 S.W.3d 47, 52 (Tex. Crim. App. 2015)). Citing Hall, this
Court stated that “the legal test we established in Briseno remains
adequately ‘informed by the medical community’s diagnostic
framework.’” Id. at 487 (citing Hall, 134 S. Ct. at 2000).
Analysis
Appellant’s contention that Briseno was rendered
unconstitutional after Hall lacks merit. Hall stands for the proposition
that states cannot implement bright line IQ cutoff scores when
considering a capital defendant’s claim of intellectual disability. 134
S. Ct. at 2001. Briseno does not call for the use of a bright-line IQ
cutoff score. Appellant cites no Texas cases implementing a bright-
174
line IQ cutoff score. Indeed, in Moore, this Court stated:
Regarding Briseno’s first prong, general intellectual
functioning is defined by the IQ and obtained by assessment
with a standardized, individually administered intelligence
test. There is a measurement error of approximately five
points in assessing IQ, which may vary from instrument to
instrument. Therefore, when determining whether an
applicant has met Briseno’s first prong, we consider the fact
that any IQ score could actually represent a score that is
five points higher or five points lower than the score than he
actually obtained.
Moore, 470 S.W.3d at 487 (internal quotations and citations omitted);
see also Ex parte Hearn, 310 S.W.3d 424, 428 (Tex. Crim. App. 2010)
(noting that there is a measurement error of approximately 5 points in
assessing IQ, which varies from instrument to instrument; thus,
depending on the IQ test used, a score could actually represent a score
that is five points higher or five points lower than the actual test
result); Ex parte Woods, 296 S.W.3d 587, 608 n.35 (Tex. Crim. App.
2009) (taking into account a potential five-point deviation up or down
in an IQ score). Notably, the Hall Court did not identify Texas as a
state that, like Florida, employs a bright-line IQ cutoff score. Because
the definition of intellectual disability announced in Briseno does not
preclude consideration of the SEM, it is not unconstitutional under
175
Hall.
In his brief, Appellant invites this Court to reconsider Briseno in
light of Hall. He cites Judge Price’s concurring opinion in Cathey and
Judge Alcala’s dissent26 in Ex parte Lizcano, in support of his
contention that Briseno is un-scientific and unconstitutional. See
Cathey, 451 S.W.3d at 28 (Price, J., concurring); Ex parte Lizcano, No.
WR-68,348-03, 2015 Tex. Crim. App. Unpub. LEXIS 331, at *2 (Tex.
Crim. App. Apr. 15, 2015) (Alcala, J., dissenting) (not designated for
publication). Neither opinion advances Appellant’s argument. In his
brief opinion in Cathey, Judge Price criticized Briseno, however, his
disagreement was “with the Court’s decidedly non-diagnostic approach
to evaluating the adaptive deficits prong[,]” not the subaverage-IQ
prong. Cathey, 451 S.W.3d at 28. In Lizcano, Judge Alcala criticized
Briseno, but, like Judge Price, her criticism concerned the factors used
to determine the adaptive functioning prong, not the subaverage-IQ
prong. Lizcano, 2015 Tex. Crim. App. Unpub. LEXIS at *5-6. As
argued above, Hall concerns the subaverage-IQ prong, not the adaptive
functioning prong.
26 In fact, Appellant refers to “Judge Newell’s dissenting opinion” in Lizcano.
Although Judge Newell did dissent, it was Judge Alcala who filed the dissenting
opinion.
176
On appeal, Appellant also complains that Briseno requires a
defendant to prove that his deficits in adaptive functioning are the
result of an intellectual disability and not a personality disorder.
(Appellant’s Brief pp.90-98). This argument is procedurally barred as
Appellant failed to raise it in the trial court. See Tex. R. App. P.
33.1(a).
Regardless, Appellant’s complaint lacks merit. Briseno does not
require a defendant to prove that his adaptive deficits are not the
result of a personality disorder. The complained-of language from
Briseno provides as follows:
The adaptive behavior criteria are exceedingly subjective,
and undoubtedly experts will be found to offer opinions on
both sides of the issue in most cases. There are, however,
some other evidentiary factors which factfinders in the
criminal trial context might also focus upon in weighing
evidence as indicative of mental retardation or of a
personality disorder.
Briseno, 135 S.W.3d at 8 (emphasis added). The above-quoted
language does not impose an additional evidentiary requirement upon
the defense. This language simply explains that the proposed
“evidentiary factors” may help to distinguish between adaptive deficits
related to intellectual disability and adaptive deficits related to
177
something other than intellectual disability. See Moore, 470 S.W.3d at
488 (stating that “An applicant must . . . demonstrate by a
preponderance of the evidence that his adaptive behavior deficits are
related to significantly sub-average general intellectual functioning
rather than some other cause.”).
In any event, use of the Briseno evidentiary factors - - which
would then be used to weigh evidence “as indicative of mental
retardation or of a personality disorder” - - is not mandatory. Id. at 8.
This Court stated that the factfinders “might . . . focus” on the listed
evidentiary factors. Id. (emphasis added); Ex parte Sosa, 364 S.W.3d
889, 892 (Tex. Crim. App. 2012) (stating that “we did not make
consideration of any or all of [the Briseno] factors mandatory”).
Issue 31 should be overruled.
STATE’S RESPONSE TO ISSUE NOS. 32-34: THE TRIAL COURT DID NOT ERR
IN OVERRULING APPELLANT’S MOTION TO QUASH, HIS MOTION TO RE-
QUESTION JURORS, AND HIS MOTION TO LIMIT THE STATE’S VOIR DIRE.27
In Issue 32, Appellant contends that the trial court erred in
overruling his motion to quash the jury after the Supreme Court
decision in Hall. In Issue 33, Appellant contends that the trial court
27 Because Appellant presents Issues 32-34 together, the State will do so as well.
178
erred in overruling his request to re-question the qualified jurors in
light of Hall. In Issue 34, Appellant contends that the trial court erred
in overruling his objection that the State not be allowed to voir dire the
jury under Briseno. Appellant’s contentions lack merit.
Pertinent Facts
Individual voir dire began on March 31, 2014. (RR12). On May
27, 2014, while jury selection was still underway in this case, the
Supreme Court decided Hall. See Hall, 134 S. Ct. 1986. At the time
Hall was decided, ten jurors had been seated on Appellant’s jury.28
On June 3, 2014, Appellant filed a Motion to Quash the Jury
Panel based on Hall. (CR:23-24). The visiting judge conducted a
hearing on Appellant’s motion but deferred a ruling until the motion
was presented to the trial court. (RR47:5-12). Appellant also
“object[ed] to the State . . . telling jurors that the burden on the Defense
is to prove an IQ of 70 or below, or below 70.” (RR47:5). Appellant
argued that “may be unconstitutional or is unconstitutional” under
Hall. (RR47:5-6). This objection was overruled. (RR47:11-12).
On June 13, 2014, the trial court conducted a second hearing on
28 Dunn-Jelen (#208); Daquiera (#256); Blomberg (#259); Kvalheim (#316); Clark
(#353); Davenport (#504); Agnes (#588); Kiefer (#685); Wells (#802); and, McElyea
(#857).
179
Appellant’s motion. At that time, Appellant argued that “Briseno no
longer applies” after Hall. (RR53:15). The defense maintained its June
3rd argument that the jury had been improperly questioned about the
Briseno factors during voir dire. (RR53:16-17). Seven days later, the
trial court convened a third hearing, during which it denied Appellant’s
motion and stated:
The Court is denying that motion. And offering the Defense
the opportunity as well as the State to bring the panel in
either collectively or one at a time to revisit the issue of 70
benchmark for mental retardation. The State - - made
reference by the State. Bearing in mind that the Court will
note for the record that in its questioning, the State did
include other factors that the jury may take into
consideration when making a determination of mental
retardation. However, since the majority of the questions
asked to the majority of the jurors indicated 70, I think it is
appropriate to revisit with the jurors. The Defense will
have the option of whether it wishes to proceed in that
manner. Or the Court is also of the opinion should the issue
surface during the trial, that the matter could be cured by a
jury instruction.
(RR56:4-5).
After the competency trial, but before the beginning of the
punishment trial, the trial court conducted a fourth hearing in
connection with Appellant’s motion to quash. (RR59:9). The trial court
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stated that, in light of Hall, it was going to individually question each of
the jurors on the panel. (RR59:9). The judge described the procedure to
be followed:
Defendant having been found competent to stand trial,
there’s several issues we need to address, one being
reviewing the . . . mental retardation issue with the panel.
The Court is proposing to do that individually, by calling in
the jurors in the order they were selected.
In the event any indicate they are not able to follow the law,
then we do have alternate jurors that we can question. The
Court is proposing to do that questioning and, in the event
that the jurors raise issues or questions, then I’ll allow the
attorneys to address or answer those questions or question
jurors as they may be needed.
In that absence, however, if the jurors indicate they are able
to follow the law, then that will conclude the Court’s
questioning, with respect to each and every juror, and that
will be the only issue that the Court will go into.
(RR59:9-10). Appellant objected to the proposed procedure. (RR59:13-
18).
Each juror was then brought into the courtroom individually,
informed that during jury selection the United States Supreme Court
issued an opinion regarding intellectual disability and now, the trial
court was meeting with each of the jurors to clarify the definition of
181
intellectual disability. The judge reminded each juror of the three-
prong definition of intellectual disability and then advised that with
regard to IQ scores, the score is not fixed, but represents a range or
approximation of the IQ. (RR59:21-61). Each juror was asked whether
he or she could follow the law and whether he or she had any questions.
Each of the jurors testified that they could follow the law. None had
any questions. (RR59:22, 25, 30-33, 35-36, 38-45, 47, 49-50, 52, 55-56,
58, 60-61).
After the trial court concluded its questioning of the jurors,
Appellant made a bill of exception at which time he recited a list of
questions that he proposed to ask the prospective jurors following Hall.
(RR59:61-65).
Standard of Review
Motion to Quash
An appellate court reviews a trial court’s denial of a motion to
quash a jury panel under an abuse of discretion standard. See Mendoza
v. State, 552 S.W.2d 444, 447 (Tex. Crim. App. 1977).
Limitation on Questioning
An appellate court reviews a trial court’s limitation on questioning
182
prospective jurors for an abuse of discretion. See Tamez v. State, 27
S.W.3d 668, 672 (Tex. App.—Waco 2000, pet. ref’d).
Applicable Law
Preventing defense counsel from asking proper questions of the
venire is not an error of constitutional dimension per se. See Easley v.
State, 424 S.W.3d 535, 536 (Tex. Crim. App. 2014). The trial court
retains the authority to impose reasonable restrictions “for various
reasons, among them to curb the prolixity of what can become the
lengthiest part of a criminal proceeding.” Bodde v. State, 568 S.W.2d
344, 350 (Tex. Crim. App. 1978).
Analysis
Appellant’s issues are insufficiently briefed and therefore nothing
is presented for this Court’s review. See Tex. R. App. P. 38.1(i). After
describing the facts underlying his claims, Appellant devotes a single
paragraph to argue three issues. He fails to recite the standard of
review and he fails to offer any specific argument or discussion of the
authority in support of his contentions regarding any of the three
complained-of issues. This Court is not required to make Appellant’s
case for him. Garcia v. State, 887 S.W.2d 862, 882 (Tex. Crim. App.
183
1994) (stating that a reviewing court “will not brief appellant’s case for
him”).
Issue 32: Motion to Quash
The trial court did not abuse its discretion in overruling
Appellant’s motion to quash the jury panel after the Supreme Court’s
decision in Hall. As argued above, Hall stands for the proposition that
states may not prevent a defendant from litigating an intellectual
disability claim by implementing a mandatory and rigid IQ test score
cutoff, without considering the IQ test’s SEM. Hall, 134 S. Ct. at 2001.
Unlike Florida, Texas does not utilize a cut-off IQ score as a threshold
for litigating an intellectual disability claim. Because Texas has no
applicable statute, intellectual disability claims in death penalty cases
are governed by Briseno. Briseno allows for consideration of the SEM in
connection with an IQ test. Briseno, 135 S.W.3d at 7 n.24. As a result,
even after Hall, Briseno remains valid law. The jurors in this case were
questioned in accordance with Briseno. Appellant points to no place in
the transcript where any juror was questioned improperly.29
29 During the second hearing on Appellant’s motion to quash, defense counsel
argued that the jurors were instructed “that the IQ was 70 or below, and sometimes
they were told below 70[.]” (RR53:5). Counsel did not identify the jurors she claims
were improperly questioned.
184
Before the jury was sworn, the trial court conducted a brief
hearing with each individual juror. Each juror was informed of the
Supreme Court’s recent decision in Hall, reminded of the three-prong
test for intellectual disability, and informed that the significantly-
subaverage-IQ score of 70 is not a fixed number, but represents a range.
Each juror was asked whether he or she could follow the law. The
jurors were asked if they had any questions. Although none had
questions, if a juror had asked one, the trial court planned to “allow the
attorneys to address or answer those questions or question jurors as
they may be needed.” (RR59:9-10).
From the beginning, the jurors were questioned in accordance
with valid law. Nevertheless, the trial court took the added precaution
of informing each juror individually that an IQ score is not a fixed score.
Each of the jurors said that they could follow the law. Accordingly the
trial court did not abuse its discretion in overruling Appellant’s motion
to quash. See Mendoza, 552 S.W.2d at 447. At a minimum, the decision
falls within the zone of reasonable disagreement. Weatherred v. State,
15 S.W.3d 540, 542 (Tex. Crim. App. 2000).
Issue 32 should be overruled.
185
Issue 33: Re-question Jurors
The trial court did not err in denying Appellant’s motion to re-
question the jurors following Hall. Again, Hall did not change the law
in Texas. Like the State, during individual voir dire, Appellant had
forty-five minutes to question each prospective juror and at that time he
could have asked them about the SEM. Notably, Appellant offers no
explanation as to why he was unable to ask the questions he proposed
during his bill of exception during his regular voir dire.
It was well within the trial court’s discretion to deny Appellant’s
motion to re-question the jurors. See Bodde, 568 S.W.2d at 350 (stating
that a trial court may impose reasonable restrictions on voir dire).
Appellant’s proposed questions – all of which he could have asked
during his portion of voir dire – would have simply and unnecessarily
prolonged voir dire. In any event, any alleged harm was cured when
the trial court conducted its own questioning, informed each juror that
an IQ score is not a fixed number, and ensured that each juror could
follow the law.
Issue 33 should be overruled.
186
Issue 34: Objection to State’s Voir Dire
The trial court did not err in denying Appellant’s objection to the
State being allowed to say “70 or below” in explaining the definition of
intellectual disability. The only basis for Appellant’s objection to the
State’s voir dire is his claim that it is not allowed under Hall. As
argued above, Hall did not change the law in Texas. Hall rejects bright-
line 70 IQ cutoff scores, which Texas does not apply. Appellant points
to no evidence that the State informed any juror during voir dire that
an IQ score is fixed or that the SEM is not to be considered.
Issues 34 should be overruled.
STATE’S RESPONSE TO ISSUE NOS. 35-36: APPELLANT WAS NOT DEPRIVED
OF A LAWFULLY CONSTITUTED JURY.
In Issues 35 and 36, Appellant contends that the trial court’s
rulings “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 Texas Code of Criminal Procedure. (Appellant’s Brief pp. 105-
07).
187
Appellant’s contentions lack merit as he has failed to show that 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 35 and 36 should be overruled.
STATE’S RESPONSE TO ISSUE 37: THE TRIAL COURT DID NOT ERR IN
DENYING APPELLANT’S MOTION TO DISQUALIFY THE DISTRICT
ATTORNEY’S OFFICE.
Appellant contends that the trial court erred in denying his pre-
trial motion to disqualify the Dallas County District Attorney’s Office
from prosecuting the instant case. He contends that he was denied due
process as the result of a conflict of interest that arose when his former
second-chair counsel was hired as an Assistant District Attorney while
the case was in the pretrial stages. Appellant’s contentions lack merit.
Pertinent Facts
Appellant was originally tried in September 1987. (CR:208). At
188
the time, he was represented by Wayne Huff and Doug Parks.
(CR:208). When his case was remanded for a new trial on punishment,
the trial court appointed new counsel. In January 2011, Russell Wilson
was appointed second-chair trial counsel. (CR:196; RR3:6, 14). On
October 6, 2011, Wilson filed a motion to withdraw from Appellant’s
case. (CR:196). In his motion, Wilson wrote that “[i]n June of 2011 [he]
accepted employment with the Dallas County District Attorney’s
Office.” (CR:196). “After accepting employment, [Wilson] no longer
performed work on Mr. Thomas’s behalf.” (CR:196). The trial court
granted Wilson’s motion to withdraw. (CR:197).
On September 7, 2011, Appellant filed a motion to disqualify the
Dallas County District Attorney’s Office. (CR4:9-12). The basis for
Appellant’s motion was that Wilson, one of the attorneys who
represented him prior to trial, was now employed by the office
responsible for his prosecution.30 (CR4:9-12). The trial court conducted
a hearing on Appellant’s motion. At the hearing, Wilson testified that
he was appointed to Appellant’s case as “the second chair.” (RR3:6).
Regarding his work on the case, Wilson testified that he had at least
30Wilson could not the recall specific date he began at the District Attorney’s Office,
but he believed it was either July 1, 2011 or July 5, 2011.
189
one conversation with Appellant, some conversations with lead defense
counsel, and he had received a packet of discovery from the State.
(RR3:8-10). According to Wilson, he had “not functioned as
[Appellant’s] attorney . . . since [he] knew that [he] was going to be
taking a position at the district attorney’s office.” (RR3:7). He did not
believe that he had any information about the case or witnesses that
lead counsel did not also have. (RR3:17-18).
Wilson testified that prior to accepting employment at the District
Attorney’s Office, he discussed with then-elected District Attorney
Craig Watkins “certain understandings regarding the law and the
discretion of the district attorney has [sic] as it relates to whether or not
to seek a recusal. (RR3:21-22). Wilson and Watkins later had another
conversation during which Wilson was instructed that he was not
allowed to discuss Appellant’s case with “anybody.” (RR3:20). The lead
prosecutor, Brandon Birmingham, was not allowed to discuss
Appellant’s case with Wilson either. (RR3:20).
Wilson testified that he does not supervise Birmingham or anyone
else in the felony trial bureau division. (RR3:22). He agreed, however,
that if Appellant were sentenced to death, lawyers in one of the
190
divisions that he does supervise would be responsible for reviewing
Appellant’s case. (RR3:12-13).
Appellant’s motion was denied. (RR4:4).
Applicable Law
It is well-settled law that a district attorney’s office, not a trial
court, determines at its discretion when a conflict of interest exists that
requires recusal. See Coleman v. State, 246 S.W.3d 76, 81 (Tex. Crim.
App. 2008); State ex. rel. Hill v. Pirtle, 887 S.W.2d 921, 939 (Tex. Crim.
App. 1994) (indicating the district attorney must initiate his own
recusal). The offices of the district attorneys in Texas are
constitutionally created and constitutionally protected. State ex rel.
Eidson v. Edwards, 793 S.W.2d 1, 4 (Tex. Crim. App. 1990). The
authority of a district attorney cannot be abridged or taken away, and a
court may not remove a district attorney from an individual case absent
one of three statutorily defined circumstances: (1) incompetency, (2)
official misconduct, or (3) intoxication. Id. at 4-5; Tex. Loc. Gov’t Code
Ann. §§ 87.013, 87.018(a) (West 2008). Moreover, a trial by jury must
be held before removal. Eidson, 793 S.W.2d at 5. If a trial court
removes a district attorney and his office from a case by court order, it
191
does so “without authority or jurisdiction.” See id. at 5 (concluding
error occurred where the trial judge’s order disqualified the district
attorney because prior defense counsel became an assistant prosecutor
and the trial court sought to avoid the appearance of impropriety).
In Eidson, defense counsel Ross Adair represented the defendant
during the investigation stage of a case and at an examining trial.
Eidson, 793 S.W.2d at 3. Adair later joined the district attorney’s office
and conducted research for the State’s response to the motion to recuse
the district attorney in his former client’s case. Id. When the elected
district attorney realized Adair had previously represented the
defendant, the district attorney gave him instructions not to discuss the
case with anyone in the District Attorney’s office nor allow anyone to
discuss it in his presence. Id. The trial judge granted the defense’s
motion to recuse the district attorney’s office based on an appearance of
impropriety. Id. Because no statutory factor for removal was met, this
Court held the trial judge entered the order without authority or
jurisdiction, stating that if a conflict of interest exists, responsibility for
recusal lies with the district attorney’s office, not the trial court. Id. at
6.
192
Analysis
As a threshold matter, it is the State’s position that Appellant
failed to properly brief this issue. See Tex. R. App. P. 38.1(i). Appellant
asserts that the trial court erred and provides a few facts in connection
with his complaint, but other than the citation to Eidson, he fails to
offer any specific argument or discussion of the authority in support of
his contention. This Court is not required to make Appellant’s case for
him. Garcia, 887 S.W.2d at 882.
In any event, Appellant’s argument fails. Current Texas law
provides that if an assistant district attorney has previously
represented a defendant in a particular proceeding, then that particular
attorney is disqualified from assisting in the prosecution of the case, but
the elected prosecutor and his other assistants are not. Scarborough v.
State, 54 S.W.3d 419, 424 (Tex. App.—Waco 2001, pet. ref’d). Therefore,
although Wilson could not participate in the instant prosecution,
nothing prevented the district attorney or any of his assistants from
prosecuting Appellant.
The State notes that in his motion and at the hearing, Appellant
did not raise any statutory grounds for District Attorney Craig Watkins’
193
disqualification, and no statutory grounds existed. Appellant argued at
trial and contends on appeal that a trial court may disqualify a district
attorney where a conflict of interest rises to the level of a due process
violation, but he failed to assert or show how the alleged conflict
violated due process. He now asks this Court to conclude that this case
constitutes an exception to Eidson and current Texas law because (1) it
is a death case, (2) former counsel worked on the case, (3) appellate
attorneys in the District Attorney’s office involved in prosecuting the
case fall under Wilson’s supervision, (4) the district attorney
determined to seek death before hiring Wilson, and (5) “the appearance
of impropriety in the due process of the case.” (Appellant’s Brief p. 108).
In State ex rel. Hill v. Pirtle, this Court held that “[a] trial court
may not disqualify a district attorney or his staff on the basis of a
conflict of interest that does not rise to the level of a due-process
violation.” Landers v. State, 256 S.W.3d 295, 304 (Tex. Crim. App.
2008) (citing State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 927 (Tex. Crim.
App. 1994)). At trial, as on appeal, Appellant argues generally that his
due process rights were violated based on an alleged conflict of interest,
but he does not point to any evidence of it in the record. Appellant does
194
not allege his former counsel conveyed information to the prosecution
and he does not allege wrongdoing by anyone involved. There is no
evidence or even suggestion of any impropriety in the record. See
Landers, 256 S.W.3d at 297-98 (holding no due process violation in
prosecution for intoxication manslaughter where elected district
attorney previously represented defendant in DWI prosecution because
there was no evidence the State used any confidential information).
Appellant’s assertion the State violated his due process rights—
based on an “appearance of impropriety,” that this is a death penalty
case, that his former counsel worked extensively on the case, that
Wilson supervised the appellate division, or that the District Attorney
made the decision to seek a death sentence prior to hiring Wilson—
carries no weight because no actual due process violation occurred.
The trial court properly denied Appellant’s motion to disqualify
the District Attorney. Issue 37 should be overruled.
STATE’S RESPONSE TO ISSUE 38: THE TRIAL COURT PROPERLY
OVERRULED APPELLANT’S MOTION FOR MISTRIAL DURING APPELLANT’S
COMPETENCY TRIAL.
Appellant contends that the trial court erred in overruling the
motion for mistrial that he made during his competency trial. He
195
contends that the prosecutor’s remark regarding the “murder weapon”
violated his right to due process and due course of law and prejudiced
the jury impaneled to determine his competency. Appellant’s
contentions lack merit.
Pertinent Facts
Prior to voir dire in connection with Appellant’s competency trial,
the defense filed a motion in limine “with respect to informing the jury
in any manner the offense for which the Defendant is accused[.]”
(CR:68). The trial court granted Appellant’s motion and stated:
. . . I did grant the Motion in Limine filed by Defense. Both
sides instruct their witnesses not to go into the offense.
(CR:70; RR57:8).
During the competency trial, while cross-examining Appellant’s
expert, the prosecutor referred to the lack of a “murder weapon.”
(RR58:29). The following exchange took place:
[Prosecutor]: He has enough understanding of these
proceedings to tell you that he was framed, right?
[McGarrahan]: I’m not sure I understand the question.
[Prosecutor]: You mentioned that he told you that the jury
in this trial that was upcoming wasn’t fixing to see nothing.
And he used the words because he was “convicted without a
196
weapon.” That was something that was important to him.
He kept coming back to the fact there was no weapon; is
that right?
[McGarrahan]: The fact that there was no weapon; and
there must be, by law, a weapon. Yes.
[Prosecutor]: All right. Now, it is a fact - - it is not fiction,
but it is a fact that there was no murder weapon - - I’m
sorry.
(RR58:29). At that point, defense counsel objected and asked for the
jury to disregard the prosecutor’s last statement. (RR58:30). Outside
the presence of the jury, the defense requested a mistrial and argued
that an instruction to disregard would not “remove this harm from this
jury’s mind[.]” (RR58:31-33). The prosecutor stated that his use of the
word “murder” was unintentional. (RR58:34). He pointed out that in
the testimony prior to that time, the jury had already heard several
terms tending to indicate a serious underlying felony: “weapon,”
“exoneree,” and “Conviction Integrity Unit.” (RR58:34). The State
argued that an instruction to disregard would cure any alleged error.
(RR58:34).
The trial court denied Appellant’s motion for mistrial and gave the
197
jury the following instruction:
. . . Ladies and Gentlemen, during the prosecutor’s
questioning of the witness, reference was made to the
underlying offense alleged against the Defendant. You are
hereby instructed to disregard any reference to that offense
and not consider it for any purpose, whatsoever.
(RR58:36-37, 40).
Applicable Law
Mistrial
An appellate court reviews the trial court’s denial of a motion for
mistrial under an abuse-of-discretion standard. Hawkins v. State, 135
S.W.3d 72, 77 (Tex. Crim. App. 2004). A mistrial is an appropriate
remedy in extreme circumstances for a narrow class of highly
prejudicial and incurable errors. Hawkins, 135 S.W.3d at 77; Wood v.
State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). A mistrial should
only halt trial proceedings when an error is so prejudicial that
continuing the trial would be wasteful and futile because an impartial
verdict cannot be reached or a conviction would have to be reversed on
appeal due to obvious error. Ladd, 3 S.W.3d at 567.
Competency Trial
Because a defendant’s guilt or innocence is not at issue during a
198
hearing on his competency to stand trial, it is improper to introduce
evidence of the offense during that hearing. See Callaway v. State, 594
S.W.2d 440, 443 (Tex. Crim. App. 1980) (citing Ex parte Hagans, 558
S.W.2d 457 (Tex. Crim. App. 1977)). However, not every mention of the
crime itself is prejudicial; to be prejudicial, "[t]he evidence of the offense
presented to the competency jury must be of such a nature as to deny
the accused a fair and impartial determination of his competency."
Brandon v. State, 599 S.W.2d 567, 580 (Tex. Crim. App. 1979), vacated
on other grounds, 453 U.S. 902, 101 S. Ct. 3134, 69 L. Ed. 2d 988 (1981).
In the event of an error during the competency proceedings, the
appropriate remedy is to abate the appeal and remand the cause to the
trial court to determine the feasibility of a retrospective competency
proceeding. See Owens v. State, 473 S.W.3d 812, 816 (Tex. Crim. App.
2015) (citing Turner v. State, 422 S.W.3d 676, 696-97 (Tex. Crim. App.
2013)).
Analysis
Appellant was not denied a fair determination of his competency
because the prosecutor referred to the “murder weapon” during cross-
examination. See Goodman v. State, 701 S.W.2d 850, 863 (Tex. Crim.
199
Ohio App. 1985) overruled on other grounds by Hernandez v. State, 757
S.W.2d 744, 752 (Tex. Crim. App. 1988) (finding no reversible error
where the single reference to “the term ‘capital murder’ did not so
confuse or prejudice the jury against [Goodman] that he was deprived of
a fair determination on the matter of his competency to stand trial.”).
That the prosecutor made a single, passing reference to a “murder
weapon” implied only the nature of the offense. Importantly, the
prosecutor did not refer to the facts of the offense: Appellant broke into
the Finch home, stabbed Fred and Mildred to death, and then stole a
significant portion of Fred’s wardrobe and a number of his other
personal belongings. Compare Barber v. State, 757 S.W.2d 359, 362
(Tex. Crim. App. 1988) (finding no reversible error because the use of
the term “capital murder” during Barber’s competency trial referred
only to the nature of the offense, but not to the facts of the case) with
Callaway, 594 S.W.2d at 441-42 (finding deprivation of a fair
determination of competency where prosecutor argued that Callaway
would be “back on the streets” and witnesses referred to Callaway’s
prior offenses and that he wanted to be placed in a psychiatric facility
because it would be easy to escape). The jury heard general testimony
200
about the existence of fingerprints and DNA, but they did not learn
specific details or any of the other evidence against Appellant. Notably,
the jury did not learn the true nature of the charged offense: capital
murder.
In any event, any alleged error was cured when the trial court
sustained Appellant’s objection and instructed the jury to disregard the
prosecutor’s statement. Our system presumes that judicial
admonishments to the jury are efficacious. Waldo v. State, 746 S.W.2d
750, 754 (Tex. Crim. App. 1988). There is no evidence that shows the
jury disregarded the trial court’s instruction, and the remark was not so
prejudicial that they could not ignore it. As such, the trial court acted
within its discretion in denying the motion for mistrial and there was
no harm. See Barber, 757 S.W.2d at 362 (finding any error caused by
witness’s reference to underlying “capital murder” during Barber’s
competency trial cured when trial court sustained the objection and
instructed the jury to disregard).
Issue 38 should be overruled.
201
STATE’S RESPONSE TO ISSUE NO. 39: APPELLANT’S CLAIM THAT THE
TRIAL COURT ERRED IN OVERRULING HIS OBJECTION DURING THE
COMPETENCY TRIAL IS NOT PROPERLY BEFORE THE COURT.
Appellant contends that the trial court erred in overruling his
objection during the competency trial. He complains that the
prosecutor’s question regarding the reversal of Appellant’s 1987 trial
was inadmissible under Rule 403. Appellant’s contention is not
properly before the Court.
Pertinent Facts
During the competency trial, the prosecutor questioned
Appellant’s expert about the fact that Appellant was hoping to get a
“harsher sentence” so that he would have “more appeals.” (RR58:23).
The following exchange occurred:
[State]: So he has more appeals. It is true that Kenneth
Thomas - - appeals have been very fruitful for Kenneth
Thomas, haven’t they?
[McGarrahan]: They have.
[State]: Okay. That first trial that happened in ’87 in
February, that case was reversed on appeal, correct?
(RR58:23-24). Defense counsel objected “to relevancy.” (RR58:24). The
objection was overruled. (RR58:24). The prosecutor asked his question
202
again, after which Appellant objected again “to relevancy.” (RR58:24).
The objection was again overruled. (RR58:24).
Applicable Law
Grounds of error urged on appeal must comport with the
objections made at trial or error is not preserved. Guevara v. State, 97
S.W.3d 579, 583 (Tex. Crim. App. 2003).
Analysis
Appellant’s objection on appeal does not comport with the
objection he made at trial. At trial, Appellant objected to the
prosecutor’s question on the basis of relevancy. (RR58:24). On appeal,
Appellant argues that he is entitled to a reversal on the basis of a
violation of Rule 403. (Appellant’s Brief pp. 113-14). Thus, Appellant
failed to preserve error regarding the complained-of question. See
Guevara, 97 S.W.3d at 583.
The fact that Appellant’s first trial was reversed on appeal was
highly relevant. See Tex. R. Evid. 401. Indeed, as the prosecutor’s
subsequent questioning showed, Appellant articulated to Dr.
McGarrahan that his prior sentence was “vacated” and his case
“remanded.” (RR58:24-25). That Appellant’s prior sentence was
203
vacated and that he was capable of articulating this information was
probative of his knowledge and understanding of the legal process. This
evidence was relevant to the competency determination: whether
Appellant had a “rational as well as factual understanding of the
proceedings against [him].” Tex. Code Crim. Proc. Ann. art. 46B.003(a)
(West 2006).
On appeal, Appellant contends that the complained-of evidence
“allowed the jury to confuse the issue of competency with the
underlying offense of murder.” (Appellant’s Brief p.114). He fails,
however, to explain this confusion and he fails to specify how he was
prejudiced. As such, this argument is insufficiently briefed and nothing
is presented for this Court’s review. See Tex. R. App. P. 38.1(i).
Regardless, the same information came in elsewhere without
objection. (RR58:61). The complained-of question occurred during the
State’s cross-examination of Dr. McGarrahan. (RR58:24). Later,
during the direct examination of defense witness Cynthia Short,
defense counsel asked a question to which Short responded, “Kenneth
had a belief that Judge White, in particular, had played a specific role
in getting the case reversed.” (RR58:61). Defense counsel did not object
204
to this statement. (RR58:61). This Court has held that the erroneous
admission of evidence will not result in reversal when the same
evidence was received elsewhere without objection. See Coble v. State,
330 S.W.3d 253, 282 (Tex. Crim. App. 2010).
Issue 39 should be overruled.
STATE’S RESPONSE TO ISSUE NOS. 40-41: THE EVIDENCE WAS
SUFFICIENT TO PROVE APPELLANT’S COMPETENCY TO STAND TRIAL.
In two issues, Appellant contends that the evidence is legally and
factually insufficient to support the jury’s verdict that he was competent
to stand trial for capital murder. Appellant’s contentions lack merit
and should be overruled.
Pertinent Facts
Appellant’s Case
Dr. Antoinette McGarrahan, a forensic and neuropsychologist,
was contacted by the defense in 2012 to conduct a neuropsychological
evaluation as well as a competency-to-stand-trial evaluation of
Appellant. (RR57:163-64, 167). Since then, she has spent “a little over
twelve hours” evaluating Appellant. (RR57:167). In connection with
Appellant’s recent competency evaluation, Dr. McGarrahan reviewed:
Appellant’s prior mental health evaluations; transcripts of prior
205
proceedings; affidavits from Appellant’s family; medical records; and,
school records. (RR57:170).
According to Dr. McGarrahan, the results of her
neuropsychological evaluation “are almost identical to the results [of his
neuropsychological evaluation conducted] about 28 years ago.”
(RR57:173). She testified that it would be difficult “to be able to fake
from one period to 28 years later on the same tests[.]” (RR57:173). She
also administered tests to determine whether Appellant was
malingering and found that “he was putting forth good effort[.]”
(RR57:173). Indeed, Appellant tried to present himself in a positive
light, without intellectual disability, “because he believes that that
belittles him and removes some of his credibility[.]” (RR57:174).
Dr. McGarrahan testified that Appellant was “not presently
competent to stand trial.” (RR57:171-72). Her opinion was based on:
neuropsychological testing, which showed that Appellant has a full
scale IQ of 71. (RR57:172). Additionally, “he has significant
impairment in his ability to problem solve, plan, organize, [and] think
rationally.” (RR57:172). Appellant perseverates; he “has difficulty
getting past certain beliefs that he has, that are not based in reality[.]”
206
(RR57:172). Appellant is “not able to rationally assist his attorneys, as
he proceeds to trial.” (RR57:172).
For twenty-eight years, Appellant has maintained the belief,
despite being informed to the contrary, that the he cannot be convicted
“if the State does not have a weapon.” (RR57:175). He has been told by
counsel and others that the weapon is not necessary for conviction, but
his belief remains strong. (RR57:175). Dr. McGarrahan testified that
the reason Appellant maintains his belief is rooted in his mental illness.
(RR57:175). His belief is more than just a simple misunderstanding of
the legal system. (RR57:175-76).
Another belief that Appellant has maintained over the years is
that a State’s witness has been involved in “pulling the strings to make
sure that he gets the worst situation possible.” (RR57:177). “He
believes that this individual dressed in a jail uniform and escorted him
over to court, on one occasion.” (RR57:177). Appellant also believes
that it would be to his benefit to “get the worst punishment possible.”
(RR57:179). Given Appellant’s irrational beliefs, he is unable to
rationally consult with his attorneys regarding a strategy for his
defense. (RR57:179).
207
Dr. McGarrahan testified that Appellant has a factual, but not
rational understanding of the proceedings against him. (RR57:181).
And, distortions in his memory and false beliefs affect his ability to
disclose information to counsel. (RR57:182). He does, however, have a
good understanding of the adversarial nature of the proceedings and
can exhibit appropriate courtroom behavior. (RR57:184). If he were to
testify, he could respond to questions and verbalize his responses, but
“he would have significant difficulty testifying in a rational, logical
manner.” (RR57:184). Appellant could be helped with medication and
competency restoration training. (RR57:186).
According to Dr. McGarrahan, Appellant has a delusional disorder
but conceded that he is not schizophrenic and is not responding to
outside voices or voices in his head. (RR57:185; RR58:6). Appellant is
intellectually disabled, evidenced by his low IQ and deficits in his
adaptive behavior, many of which began prior to the age of 18.
(RR57:185).
Dr. McGarrahan conceded that in 1979, Appellant was involved
in a trial and testified in his own defense. (RR58:11). At that time, he
responded to questions on direct and cross-examination in front of a
208
jury. (RR58:11). To Dr. McGarrahan’s knowledge, no competency
issues were raised at the time of that trial. (RR58:13). The first time
competency was raised was in October of 1986, during jury selection.
(RR58:13). At that time, Drs. Crowder, Koons, Lovett, and Nottingham
testified or wrote a report. (RR58:13). Drs. Koons and Nottingham
found Appellant to be competent. (RR58:15). Drs. Crowder and Lovett
found him to be incompetent. (RR58:46). In 1996, in connection with
another proceeding, Appellant was evaluated by Drs. Pittman and
Rogers. (RR58:15-16). Dr. Pittman found him to be competent.
(RR58:16). Dr. McGarrahan testified that Dr. Rogers’ opinion “wasn’t
very clear.” (RR58:16). In 2006, there was a hearing regarding
Appellant’s case and no issues of competency were raised at that time.
(RR58:16-17).
Regarding the evidence against him in this case, Appellant told
Dr. McGarrahan that he “was fucked over 27 years ago, because they
only have he said/she said.” (RR58:18). He said it was “hearsay.”
(RR58:19). Appellant told Dr. McGarrahan that the fingerprints found
at the scene were being reviewed by the Innocence Project. (RR58:20-
21). He told her that when the fingerprints are reviewed, they will not
209
match him. (RR58:21). This “will stop everything and the Judge will
set him free immediately.” (RR58:27). He identified the then-elected
District Attorney, Craig Watkins, and said that Watkins would be
forced to drop the charges. (RR58:27). Appellant also told Dr.
McGarrahan that DNA testing “rendered him innocent.” (RR58:22).
Appellant wants a “harsher sentence” so that he will have “more
appeals.” (RR58:23). He told her that his prior sentence was “vacated”
and his case “remanded.” (RR58:24-25). He pointed out to her two
cases from the Supreme Court relevant to his case and was “somewhat”
able to describe the difference between them. (RR58:25-26).
Dr. McGarrahan testified that Appellant is not on any
psychoactive medications. (RR58:41).
Cynthia Short, an attorney who performs client advocacy, was
appointed by the trial court in 2011 to assist in Appellant’s case.
(RR58:54). Since then, she has spent sixty hours interviewing
Appellant. (RR58:55). Appellant resembles prior clients who were
found incompetent. (RR58:58). He maintains a “fixed-false belief”
about his case and that belief informs his decisions. (RR58:59). He also
did not understand that the trial judge did not have a role in the
210
reversal of his case. (RR58:61).
Short did not believe that Appellant could make rational choices
regarding his legal strategies. (RR58:63). For example, he did not want
to be examined by the State’s expert despite being told that failure to do
so would affect his lawyers’ ability to present evidence gathered on his
behalf. (RR58:63-65).
Short described Appellant as follows:
In many ways, Kenneth is very engaging. He can be very
animated. He is able to engage in a conversation. He’s
very, very spiritual. He’s very faithful. And we have had
many long, animated, good conversations about faith.
But when we switch to talk about things that are related to
the legal process, to criminal justice, then there is a
different way in which he understands or attends. He
becomes more rigid and flexible [sic], in terms of his
understanding of the system and how to make decisions.
(RR58:65-66). She believes that Appellant would not be able to testify
in his own defense. (RR58:68). She testified that Appellant has “poor
auditory memory” and poor reasoning skills. (RR58:70).
Short testified that Appellant sustained a brain injury in 1976.
(RR58:71).
On cross-examination, Short conceded that Appellant testified in
211
his own defense after the Linwood incident in 1979, years after his
brain injury. (RR58:71-72). After his arrest for the instant offense,
Appellant spoke with a detective and gave an alibi.31 (RR58:74-75). He
also gave a TV reporter his alibi. (RR58:76). Short conceded that
Appellant, if he testified in this case, could tell the jury his version of
the evidence (that he was not present at the scene of the crime, that the
DNA exonerates him, and that there is no murder weapon). (RR58:86-
88).
The State’s Case
Dr. Kristi Compton, a clinical and forensic psychologist, was
appointed by the trial court to evaluate Appellant’s competency to stand
trial. (RR58:92-93). Dr. Compton evaluated Appellant on July 3, 2014
at the Dallas County Jail. (RR58:94-95). Over the course of three
hours, she interviewed and tested Appellant. (RR58:94; SX1-2). She
administered the Test of Memory Malingering (“TOMM”), an effort test.
(RR58:99). Appellant was required to look at a series of 50 pictures,
then identify what he saw. (RR58:99-100). A person with normal
intellect would correctly identify 45 of the 50 pictures. (RR58:99-100).
31According to Short, Appellant maintains that he did not meet with detectives.
(RR58:73-76),
212
An individual with intellectual disability will generally identify 30
correctly. (RR58:101). A score of 25 or below is indicative of overt
malingering. (RR58:101). Appellant was administered two trials; he
correctly identified 24 out of 50 on the first and 26 out of 50 on the
second. (RR58:102). His scores reflected that “he was not putting forth
the full effort during the evaluation[.]” (RR58:102).
Dr. Compton also administered the Kaufman Brief Intelligence
Test. (RR58:97, 103). Appellant obtained a full-scale IQ of 40.
(RR58:104). A person taking this test gets 40 points just for showing
up. (RR58:104). Someone with a 40 IQ “would not be able to
communicate.” (RR58:105). “[I]t’s very, very unlikely [a person with a
40 IQ] would be able to communicate in full sentences or understand
much beyond that of a three- to four-year-old child.” (RR58:105).
Appellant’s score was inconsistent with his previous scores, which
“indicate a range between high 60s to low 70s.” (RR58:105).
Dr. Compton administered the CAST-MR, a test to evaluate
competency-related abilities in an individual with low intellect.
(RR58:109). In the Basic Legal Concepts section of this test, the mean
number of correct responses for individuals who are incompetent is 13.
213
(RR58:110). Appellant answered no questions correctly. (RR58:110).
On the Skills to Assist Defense Section, the mean number of correct
responses for individuals with intellectual disability is 8, with an SEM
of 3. (RR58:111). Appellant scored a 5, which is “somewhere within the
range” of those with intellectual disability. (RR58:111). When asked
for spontaneous recall of the roles of the parties (unlike the structured
question-and-answer), Appellant answered all of the questions
sufficiently. (RR58:111).
Appellant correctly described the roles of the parties: the defense
attorneys; prosecutor; and, judge.32 (RR58:106). He understands that
he has been convicted, that the upcoming trial concerns punishment,
and that there are two possible sentences. (RR58:107-08). Appellant’s
responses were inconsistent with a 40-point IQ. (RR58:107). According
to Dr. Compton, Appellant “responded to [her] rationally and logically
and processed what [she] was asking, and responded accordingly.”
(RR58:107). And, “there’s no identifiable nexus between mental illness
and [Appellant’s] ability to consistently engage with counsel.”
(RR58:109). Dr. Compton ranked Appellant’s abilities as follows:
32 Appellant indicated that he knew a judge is supposed to ensure a fair trial, but
told Dr. Compton that they do not. (RR58:106). There was no evidence of a nexus
between this belief and Appellant’s mental state. (RR58:107).
214
ability to disclose facts and events to counsel-below average; ability to
engage in a reasoned choice of legal strategies-below average; ability to
testify and cross-examine witnesses-below average; ability to assist
counsel with a defense-below average. (RR58:128-29).
Throughout the evaluation, Appellant was cooperative with Dr.
Compton. (RR58:113). He “related spontaneously” and made eye
contact. His hygiene was good. (RR58:113).
Dr. Compton testified that Appellant “functions in the borderline
to mental/mild mental retardation.” (RR58:114). She did not know
where in the range “because [she did] not do adaptive deficits.”
(RR58:114). She did not identify a clinical disorder such as depression,
mania, bipolar disorder, or intense anxiety. (RR58:114). She did not
observe that he was overtly psychotic or responding to hallucinations.
(RR58:114). He does, however, have subclinical paranoid delusions
about being framed and about the lack of a weapon. (RR58:115).
Someone with a clinical delusion cannot remove himself from his
delusion. (RR58:126). Someone with a subclinical delusion is capable of
recognizing other possibilities. (RR58:126). Appellant’s subclinical
delusions are not sufficient to impair his competency status.
215
(RR58:116).
In Dr. Compton’s opinion, Appellant was competent to stand trial.
(RR58:98). He has sufficient present ability to consult with his lawyers
with a reasonable degree of rational understanding and has a rational,
as well as factual understanding of the proceedings against him.
(RR58:98).
Applicable Law
Competency
“A defendant is presumed competent to stand trial and shall be
found competent to stand trial unless proved incompetent[.]” Tex. Code
Crim. Proc. Ann. art. 46B.003(b) (West 2006). A defendant is not
competent to stand trial if he lacks:
(1) Sufficient present ability to consult with the person’s lawyer
with a reasonable degree of rational understanding; or
(2) A rational as well as factual understanding of the
proceedings against the person.
Id. art. 46B.003(a). Evidence relevant to the competency determination
includes whether the defendant can: (1) understand the charges against
him and the potential consequences of the pending criminal
proceedings; (2) disclose to counsel pertinent facts, events, and states of
216
mind; (3) engage in a reasoned choice of legal strategies and options; (4)
understand the adversarial nature of criminal proceedings; (5) exhibit
appropriate courtroom behavior; and, (6) testify. See Tex. Code Crim.
Proc. Ann art. 46B.024(1) (West Supp. 2015).
The burden is on the defendant to prove incompetency by a
preponderance of the evidence. Id. art. 46B.003(b).
Legal Sufficiency
A claim regarding a jury’s refusal to find a defendant incompetent
to stand trial – a determination which he has the burden to prove – is
similar to an affirmative defense. See Matlock v. State, 392 S.W.3d 662,
671 (Tex. Crim. App. 2013). An appellate court reviewing the legal
sufficiency of an affirmative defense should assay the record for a
scintilla of evidence favorable to the factfinder’s finding and disregard
all evidence to the contrary unless a reasonable factfinder could not.
Butcher v. State, 454 S.W.3d 13, 20 (Tex. Crim. App. 2015) (citing
Matlock, 392 S.W.3d at 669-70).
Factual Sufficiency
The appellate standard of review for factual sufficiency regarding
a jury’s adverse finding on competency is whether the jury’s finding of
217
competency is so against the great weight and preponderance of the
evidence so as to be manifestly unjust. Meraz v. State, 785 S.W.2d 146,
154-55 (Tex. Crim. App. 1990). The appellate court must consider all of
the relevant evidence and may not usurp the function of the jury by
substituting its judgment in place of the jury's assessment of the weight
and credibility of the witnesses’ testimony. Matlock, 392 S.W.3d at 671.
The defendant’s claim is sustained only if, after setting out the relevant
evidence and explaining precisely how the contrary evidence greatly
outweighs the evidence supporting the verdict, the court clearly states
why the verdict is so much against the great weight of the evidence as
to be manifestly unjust, conscience-shocking, or clearly biased. Id.
Analysis
Appellant has failed to properly brief the issues. He recites the
evidence and the standard of review, however, he fails to offer any
argument or authority in support of his claims. See Tex. R. App. P.
38.1(i).
Regardless, the evidence is both legally and factually sufficient to
support the jury’s determination that Appellant was competent to stand
trial.
218
Issue 40: Legal Sufficiency
A review of the record reveals more than a scintilla of evidence to
support the jury’s finding. The following evidence supports the jury’s
finding of competency:
 Appellant can be engaging and animated and can
participate in long conversations about faith. (RR58:65-
66).
 He understands that he has been convicted, that the
upcoming trial concerns punishment, and that there are
two possible sentences. (RR57:181; RR58:107-08).
 Appellant can articulate that his prior sentence was
“vacated” and his case “remanded” and can cite relevant
Supreme Court cases and “somewhat” describe the
difference between them. (RR58:25-26).
 Appellant can relate his mental state, alleged offense,
and events related to this stage of his case. (RR58:125).
 Appellant can correctly describe the roles of the parties:
the defense attorneys; prosecutor; and, judge. (RR57:187;
RR58:106).
 Appellant can exhibit appropriate courtroom behavior.
(RR57:184).
 If called to testify, Appellant could respond verbally to
questioning. (RR57:184). He could tell the jury his
version of the evidence, including his claim that he was
not present at the scene of the crime, that there is no
murder weapon, and that the DNA shows he is innocent.
(RR58:86-88).
219
 According to Dr. Compton, “there’s no identifiable nexus
between mental illness and [Appellant’s] ability to
consistently engage with counsel.” (RR58:109).
 Dr. Compton testified that Appellant “functions in the
borderline to mental/mild mental retardation.”
(RR58:114). She did not know where in the range,
“because [she did] not do adaptive deficits.” (RR58:114).
 Dr. Compton identified no clinical disorder such as
depression, mania, bipolar disorder, or intense anxiety.
(RR58:114). She did not observe that he was overtly
psychotic or responding to hallucinations. (RR58:114).
 Appellant is not schizophrenic and does not respond to
outside voices or voices in his head. (RR58:6).
 Appellant is not on any psychoactive medications.
(RR58:41).
In short, the jury had substantial evidence from which it could
have concluded that Appellant had sufficient present ability to consult
with his lawyers with a reasonable degree of rational understanding
and that he had a rational as well as factual understanding of the
proceedings against him. See Tex. Code Crim. Proc. Ann. art.
46B.003(a). Appellant did not conclusively prove that he was
incompetent. The jury was entitled to believe Dr. Compton’s testimony
that Appellant was competent to stand trial. (RR58:98).
220
Issue 40 should be overruled.
Issue 41: Factual Sufficiency
The evidence is factually sufficient to support the jury’s
determination that Appellant was competent to stand trial. The
following evidence, when considered in a neutral light, proves that the
jury’s finding that Appellant was competent to stand trial was not
against the great weight and preponderance of the evidence:
 Dr. McGarrahan testified that Appellant was not
competent to stand trial. (RR57:171-72).
 Dr. Compton testified that Appellant was competent to
stand trial. (RR58:98). He had sufficient present ability
to consult with his lawyers with a reasonable degree of
rational understanding and had a rational, as well as
factual understanding of the proceedings against him.
(RR58:98).
 Dr. McGarrahan testified that Appellant had a factual
(but not rational) understanding of the proceedings
against him. (RR57:181). He understood that his prior
sentence was “vacated” and his case “remanded.”
(RR58:24-25). In the upcoming trial, he wants a “harsher
sentence” so that he will have “more appeals.” (RR58:23).
 Dr. Compton testified that Appellant understands that
he has been convicted, that the upcoming trial concerns
punishment, and that there are two possible sentences.
(RR58:107-08).
 Appellant understands the adversarial nature of the
221
proceedings. (RR57:184). He understands the roles of the
parties: the defense attorneys; prosecutor; and, judge.
(RR58:106).
 Regarding the evidence against him, Appellant told Dr.
McGarrahan that the State “only [has] he said/she said.”
(RR58:18). He told her that the fingerprints at the scene
will not match him and the DNA testing “render[s] him
innocent.” (RR58:20-22).
 Dr. McGarrahan testified that Appellant is not able to
rationally assist his attorneys. (RR57:172). He persists
in his belief he cannot be convicted if the State does not
have the murder weapon. (RR57:172, 175).
 Short testified that that Appellant’s “fixed-false belief”
informs his decisions regarding the case. (RR58:59).
 Short did not believe that Appellant could make rational
choices regarding his legal strategies. (RR58:63). For
example, he did not want to be examined by the State’s
expert even though it would affect his lawyers’ ability to
present evidence gathered on his behalf. (RR58:63-65).).
 Dr. McGarrahan testified that if Appellant were to
testify, he could respond to questions and verbalize his
responses, but would have difficulty doing so in a
rational, logical manner. (RR57:184).
 Short testified that Appellant would not be able to testify
in his own defense but later conceded that if he did, he
could tell the jury his version of the evidence (that he was
not present at the scene of the crime, that the DNA
exonerates him, and that there is no murder weapon).
(RR58:68, 86-88).
 Dr. Compton testified that Appellant “responded to [her]
222
rationally and logically and processed what [she] was
asking, and responded accordingly.” (RR58:107).
 According to Dr. Compton, there is “there’s no
identifiable nexus between mental illness and
[Appellant’s] ability to consistently engage with counsel.”
(RR58:109). “[E]ven a mentally ill defendant who resists
cooperating with his counsel may nevertheless be found
competent if the manifestations of his particular mental
illness are not shown to be the engine of his obstinacy.”
Turner v. State, 422 S.W.3d 676, 691 (Tex. Crim. App.
2013).
 Appellant can exhibit appropriate courtroom behavior.
(RR57:184).
 When tested by Dr. McGarrahan, Appellant put forth
good effort and tried to present himself in a positive light.
(RR57:174). Dr. McGarrahan’s testing showed a full scale
IQ of 71. (RR57:172).
 When tested by Dr. Compton, Appellant did not put forth
good effort. (RR58:102). Her IQ testing showed a full
scale IQ of 40, which is inconsistent with his prior scores.
Additionally, given the fact that someone with a 40-point
IQ would not be able to communicate, Appellant’s 40-
point IQ score was inconsistent with the fact that he was
able to communicate with her. (RR58:104-05). On the
CAST-MR, Appellant answered no questions correctly in
the Basic Legal Concepts section. (RR58:110). On the
Skills to Assist Defense Section, he scored within the
range of those with intellectual disability. (RR58:111).
 Dr. McGarrahan testified that Appellant is intellectually
disabled. (RR57:185).
 Dr. Compton testified that Appellant “functions in the
223
borderline to mental/mild mental retardation.”
(RR58:114). She did not know where in the range,
“because [she did] not do adaptive deficits.” (RR58:114).
 Dr. McGarrahan testified that Appellant suffers from a
delusional disorder, but is not schizophrenic and does not
respond to outside voices or voices in his head.
(RR57:185; RR58:6).
 Dr. Compton did not identify a clinical disorder such as
depression, mania, bipolar disorder, or intense anxiety.
(RR58:114). She did not observe that he was overtly
psychotic or responding to hallucinations. (RR58:114).
He has subclinical paranoid delusions but they are not
sufficient to impair his competency status. (RR58:116).
 Appellant is not on any psychoactive medications.
(RR58:41).
The jury was faced with conflicting opinions from two
psychologists. On the one hand was Dr. McGarrahan, the defense
expert involved in the case for at least two years, who testified to her
opinion that Appellant was incompetent. (RR57:166-67, 171-72). On
the other hand was Dr. Compton, the trial court’s neutral expert
appointed only days before the competency trial, who testified to her
opinion that Appellant was competent. (RR58:93-95, 98).
The jury was entitled to credit Dr. Compton’s testimony that
Appellant was competent to stand trial. Dr. Compton was a neutral
224
witness who offered specific testimony regarding her testing and
evaluation of Appellant and her opinion regarding his competency. Dr.
Compton testified that Appellant’s belief in his innocence was “not
sufficient to impair rational communication” with counsel. (RR58:108-
09). She testified that Appellant understood the charges against him;
that he was already convicted; that the upcoming trial concerned
punishment only; and the potential punishments. (RR58:107-08, 136).
See Morris v. State, 301 S.W.3d 281, 291 (Tex. Crim. App. 2009)
(agreeing with lower court holding that Morris’ jury “was entitled to
credit the opinion testimony of the State’s experts that appellant was
competent under art. 46B.003(a).”); see also Williams v. State, 191
S.W.3d 242, 248 (Tex. App.—Austin 2006, no pet.) (stating that “[t]he
jury is the judge of the credibility of the witnesses at the competency
hearing and the weight to give to the testimony.”). The fact that some
evidence was presented that could support a finding of incompetency
does not render the evidence insufficient. See Butcher, 454 S.W.3d at
20.
On appeal, Appellant suggests that the reason he performed
poorly on Dr. Compton’s tests was because he did not want to be found
225
disabled and because he thought the evaluation was meant to belittle
and shame him. (Appellant’s Brief p. 118). Appellant’s argument lacks
merit. If, as Appellant suggests, he did not want to be found
intellectually disabled, it would stand to reason that his scores would be
higher, reflecting increased effort. Instead, on Dr. Compton’s IQ test,
Appellant’s score was so low that it was not only inconsistent with his
prior IQ testing, but also inconsistent with the level that he was able to
communicate with Dr. Compton. (RR58:104-05). On one trial of Dr.
Compton’s malingering test, Appellant’s score was so low that it was
indicative of overt malingering. (RR58:101-02). In any event, Appellant
fails to explain how his lack of participation proves that he was
incompetent to stand trial.
Appellant suggests that Dr. Compton’s opinion was not reliable
because her appointment and evaluation took place only days before
trial; therefore, she “did not have the time to fully research [Appellant’s]
childhood, his brain injury, or his prison history.” (Appellant’s Brief
p.119). Appellant does not specify, however, how further research into
the identified areas would have shed light on his competency to stand
trial.
226
Given all of the testimony and evidence presented, the jury could
have weighed the conflicting evidence and reasonably found that
Appellant was sufficiently capable of consulting with his attorneys and
with a reasonable degree of rational understanding and that he had a
rational as well as factual understanding of the proceedings against
him. The jury's determination that Appellant was competent to stand
trial was not so against the great weight and preponderance of the
evidence as to be manifestly unjust.
Issues 40 and 41 should be overruled.
STATE’S RESPONSE TO ISSUE NO. 42: THE TRIAL COURT PROPERLY
OVERRULED APPELLANT’S OBJECTION TO DR. PRICE’S TESTIMONY THAT
APPELLANT EXHIBITS TRAITS CONSISTENT WITH ANTI-SOCIAL
PERSONALITY DISORDER.
Appellant contends that, during the punishment phase of trial,
the trial court erred in overruling his objection to Dr. Price’s proffered
testimony that Appellant exhibits traits consistent with anti-social
personality disorder. In support of his contention, Appellant points to
the fact that Dr. Price did not diagnose Appellant with this disorder.
Appellant’s contentions lack merit and should be overruled.
227
Pertinent Facts
During a hearing outside the presence of the jury in the
punishment phase of trial, Dr. Price testified that he planned to testify
before the jury that Appellant exhibits traits consistent with anti-social
personality disorder. (RR69:8). Dr. Price testified, however, that he
would not diagnose Appellant with anti-social personality disorder
because he is not aware of any evidence of a conduct disorder prior to
the age of 15. (RR69:8). At the conclusion of the hearing, Appellant
objected that Dr. Price’s testimony would be inadmissible under Rule
403. (RR69:11). Defense counsel objected as follows:
Your Honor, I do have - - I will object to him testifying in
front of the jury about him having the traits of someone
with anti-social personality disorder, since he can’t make
that diagnosis. I think, because he’s an expert, he gives
that inference to the jury. I think it’s dangerous testimony
put in front of them, when he can’t even make the diagnosis
himself.
So I would object to him testifying that he has those traits,
without being able to make the diagnosis. Even if the Court
thinks it’s relevant somehow, I just think that the
prejudicial effect outweighs the probative value, in the way
he’s going to present it.
228
(RR69:11). The trial court overruled Appellant’s objection. (RR69:12-
13).
Before the jury, Dr. Price testified that anti-social personality
disorder is not a mental disorder, but a long-term personality disorder.
(RR69:66-67). An individual with this disorder is “kind of against
society. It’s an individual who breaks the rules, breaks the law, [and]
doesn’t accept responsibility for it.” (RR69:67). One requirement for a
diagnosis of anti-social personality disorder is evidence of a conduct
disorder prior to the age of 15. (RR69:67-68). A child with a conduct
disorder “gets in trouble all the time, skips school, gets in trouble with
the law, sets fires, is aggressive towards others, et cetera.” (RR69:68).
Based on his review of the case and his interaction with Appellant, Dr.
Price testified that Appellant “does have traits and features consistent
with this anti-social personality.” (RR69:68). Appellant renewed his
prior objection and it was overruled. (RR69:68). Dr. Price then briefly
explained the basis for his opinion. (RR69:69-72). Importantly, Dr.
Price testified that he lacked evidence regarding one of the traits
necessary for a diagnosis of anti-social personality disorder. (RR69:71).
229
Dr. Price lacked evidence that the traits began prior to 15 years of age.
(RR69:71-72).
During cross-examination, defense counsel asked Dr. Price about
his opinion that Appellant exhibits traits consistent with anti-social
personality disorder. (RR69:87, 90). He pointed out on at least two
separate occasions that Dr. Price could not diagnose Appellant with the
disorder. (RR69:87, 90).
Standard of Review
An appellate court reviews a trial court’s ruling on the
admissibility of evidence under an abuse of discretion standard of
review. See Weatherred, 15 S.W.3d at 542. 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).
Applicable Law
Expert testimony
Rule 702 authorizes the admission of testimony from a witness
possessing scientific, technical, or other specialized knowledge if the
witness is qualified as an expert by knowledge, skill, experience,
230
training, or education and his testimony will assist the fact finder to
understand the evidence or to determine a fact in issue. Tex. R. Evid.
702.
Rule 403
Under Rule 403, all relevant evidence is admissible unless “its
probative value is substantially outweighed by a danger of one or more
of the following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, or needlessly presenting cumulative evidence.” Tex.
R. Evid. 403. 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). A reviewing court’s consideration of this issue includes, but is
not limited to: (1) how probative the evidence is; (2) the potential of the
evidence to impress the jury in some irrational, but nevertheless
indelible way; (3) the time needed to develop the evidence; and (4) the
proponent’s need for the evidence. Shuffield v. State, 189 S.W.3d 782,
787 (Tex. Crim. App. 2006).
231
Analysis
Rule 702
As a threshold matter, it is unclear whether, at trial, Appellant
intended to object to Dr. Price’s testimony under Rule 702. Defense
counsel’s statement that “I would object to him testifying that he has
those traits, without being able to make the diagnosis” is insufficient to
alert the trial court that Dr. Price was unqualified or that his opinion
was in some way irrelevant or unreliable. As a result, he has not
preserved this argument for review. See Tex. R. App. P. 33.1(a).
On appeal, Appellant states that “the testimony was beyond the
expert’s discipline to opine on the subject[.]” (Appellant’s Brief p.121).
He cites Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992), Nenno v.
State, 970 S.W.2d 549 (Tex. Crim. App. 1998), and Texas Rule of
Evidence 702, but offers no further argument or analysis. This Court is
not required to make Appellant’s case for him. Garcia, 887 S.W.2d at
882 (stating that a reviewing court “will not brief appellant’s case for
him”). To the extent Appellant is suggesting that a psychologist is
unable to testify that, based on his review of documents, an individual
is symptomatic of a specific condition, he points to no authority in
232
support of his claims. He points to no authority suggesting that such
testimony is prohibited in that profession.
In any event, any complaint Appellant had regarding Dr. Price’s
qualifications was waived at the time of trial. During the sub rosa
hearing prior to Dr. Price’s testimony before the jury, the following
exchange occurred:
[State]: Judge, I believe, as we have done with Dr.
McGarrahan, I believe Dr. Hom and Dr. Crowder, I don’t
anticipate objections from Defense that Dr. Price is an
expert who is qualified to give certain opinions. I believe
that’s the agreement that we have from Mr. Sanchez.
[Sanchez]: That’s correct, Your Honor.
[Trial Court]: Very well.
[State]: So this will be just me - - I will tender him as an
expert at this point.
[Trial Court]: Very well.
[State]: And then we’ll ask what his opinions are, and we’ll
go from there.
(RR68:241-42). The parties agreed that Dr. Price was, in fact, an expert
and the only issue to be addressed was the basis for his opinions. See
Tex. R. Evid. 705(b) (stating that an adverse party is entitled to
233
question an expert outside the presence of the jury regarding the facts
or data underlying the expert’s opinion). Appellant did not challenge
Dr. Price’s qualifications at the time of trial and he cannot do so for the
first time on appeal. Tex. R. App. P. 33.1(a).
Appellant argues that Dr. Price’s testimony was “misleading and
designed to give the jury the impression that Appellant had a diagnosed
anti-social personality disorder[.]” (Appellant’s Brief pp.120-21). This
is incorrect. In fact, Dr. Price was upfront about the limitations of his
testimony. He testified that Appellant “does have traits and features
consistent with” anti-social personality disorder, but he lacked evidence
of one of the features required to render a diagnosis: evidence that the
symptoms began before 15 years of age. (RR69:68, 71-72). On cross-
examination, he agreed with defense counsel on two separate occasions
that he could not diagnose Appellant with anti-social personality
disorder. (RR69:87, 90). The jury was not misled in any way.
Rule 403
At trial, Appellant objected to Dr. Price’s testimony under Rule
403. Defense counsel stated “that the prejudicial effect outweighs the
probative value, in the way he’s going to present it.” (RR69:11). In his
234
brief on appeal, Appellant states that “any probative value was
outweighed by the prejudicial effect.” (Appellant’s Brief p.121). As
above, he offers no argument or analysis on this issue; therefore,
nothing is presented for this Court’s review. See Tex. R. App. P. 38.1(i)
(requiring that a brief contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the
record); 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).
Regardless, the probative value of Dr. Price’s testimony was not
substantially outweighed by the danger of unfair prejudice. First, Dr.
Price’s testimony was relevant to rebut Appellant’s claim that he is
intellectually disabled. His testimony was presented during the State’s
case-in-rebuttal to offer an alternate explanation for Dr. McGarrahan’s
testimony regarding Appellant’s symptoms. As such, his testimony was
highly probative to rebut the evidence that the defense presented.
Dr. Price’s testimony was also relevant to the jury’s
determination of Appellant’s future dangerousness. See Griffith v.
235
State, 983 S.W.2d 282, 288 (Tex. Crim. App. 1998) (potential of future
dangerousness is a question of fact which the jury must answer and
testimony from mental health experts is relevant to future
dangerousness special issue); see Powell v. State, 898 S.W.2d 821, 830
(Tex. Crim. App. 1994) (trial court has wide discretion in admitting
evidence relevant to the jury’s determination of a capital murder
defendant’s death-worthiness).
Second, there was no chance that the evidence would impress
the jury in some irrational and indelible way. While Dr. Price testified
that Appellant exhibits traits consistent with antisocial personality
disorder, he was clear that he could not diagnose Appellant with the
disorder. (RR69: 68, 71-72, 90).
Third, Dr. Price’s testimony regarding antisocial personality
disorder, which was presented during the State’s case-in-rebuttal, was
extremely brief. The State’s questioning on this subject consumed less
than seven pages of transcript. (RR69:16, 66-72).
Finally, the State needed Dr. Price’s testimony to rebut Dr.
McGarrahan’s testimony regarding Appellant’s alleged adaptive
236
deficits. Dr. Price’s testimony offered an alternate explanation for
what Dr. McGarrahan testified were Appellant’s adaptive deficits.
Even if the trial court erred in overruling Appellant’s objections
(which the State does not concede), any alleged error is harmless. Error
in the admission of evidence is non-constitutional error and must be
disregarded unless the error affects a defendant’s substantial rights.
See Tex. R. Evid. 103; Tex. R. App. P. 44.2(b); Walters v. State, 247
S.W.3d 204, 218-19 (Tex. Crim. App. 2007). “[S]ubstantial rights are not
affected by the erroneous admission of evidence if the appellate court,
after examining the record as a whole, has fair assurance that the error
did not influence the jury, or had but a slight effect.” Solomon v. State,
49 S.W.3d 356, 365 (Tex. Crim. App. 2001) (internal quotation marks
omitted).
Examining the record as a whole, it is clear that any error in the
trial court’s ruling did not have a substantial and injurious effect or
influence on the jury. Dr. Price testified that someone with antisocial
personality disorder “breaks the rules, breaks the law, doesn’t accept
responsibility for it.” (RR69:67). That Appellant was one who breaks
rules and laws was already well known to the jury. By the time Dr.
237
Price testified, the jury already knew that Appellant broke into the
Finch home, stabbed Mildred and Fred to death, and then stole
numerous items from Fred’s wardrobe. The jury already knew that
Appellant had stabbed Linwood in the head with a screwdriver. The
jury already knew about Appellant’s misconduct in prison. Dr. Price’s
testimony had no negative impact on Appellant. Any alleged error did
not affect Appellant’s substantial rights. See Tex. R. App. P. 44.2(b).
Issues 42 should be overruled.
STATE’S RESPONSE TO ISSUE 43: DR. PRICE DID NOT TESTIFY BEFORE
THE JURY REGARDING APPELLANT’S REMORSE.
Appellant contends that the trial court erred in allowing Dr.
Price to testify regarding his lack of remorse. Appellant’s contentions
lack merit.
Pertinent Facts
During a sub rosa hearing, Dr. Price was asked for the basis of
his opinion that Appellant exhibits traits of anti-social personality
disorder. (RR69:7). He responded as follows:
Criminal history, his history; especially, prior to 2010, and
as far back as 1979, which indicates a repeated pattern of
violation of the law; a lack of remorse for those incidents;
deceitfulness by repeated lying through the record, both in
238
response to the offenses and in talking to individuals in
prison and others that have evaluated him; at least, a
history or irritability and aggressiveness.
(RR69:8). At the conclusion of the hearing, Appellant objected to this
testimony and complained that it would “violate the Defendant’s Fifth
Amendment right[.]” (RR69:13). The objection was overruled.
(RR69:13).
Applicable Law
A reference to a defendant’s lack of remorse is tantamount to a
comment on his failure to testify. Howard v. State, 153 S.W.3d 382, 385
(Tex. Crim. App. 2004). The law does not prohibit such a reference
where it is supported by record evidence. Id. Consequently, the State is
not barred from presenting evidence that the accused has demonstrated
by his words or actions a lack of remorse. See, e.g., id. (prosecutor’s
comment on lack of remorse supported by accused’s statement to officer
that he had no remorse for crime).
Analysis
Appellant has failed to properly brief this issue. See Tex. R. App.
P. 38.1(i). Importantly, Appellant does not specify where in Dr. Price’s
testimony before the jury that he refers to Appellant’s lack of remorse.
239
The State is unable to locate any exchange before the jury wherein Dr.
Price refers to Appellant’s remorse. Additionally, beyond the statement
that the unspecified error “violated Appellant’s right to remain silent
and is of constitutional error dimension [and] denied Appellant a fair
punishment hearing,” Appellant offers no argument or analysis. He
does not explain how Dr. Price’s testimony violated his right to remain
silent. This Court is not required to make Appellant’s case for him.
Garcia, 887 S.W.2d at 882.
Issue 43 should be overruled.
STATE’S RESPONSE TO ISSUE 44: THE TRIAL COURT DID NOT ERR IN
ADMITTING A SILHOUETTE OF A KNIFE AS A DEMONSTRATIVE AID.
Appellant contends that the trial court erred in overruling his
objection to State’s Exhibit #206, a PowerPoint presentation, which
depicts silhouettes of a single edged blade, because it was speculative.
Appellant points to the fact that the purported murder weapon was
never introduced into evidence. Appellant’s contentions lack merit.
Pertinent Facts
State’s Exhibit #206 is a PowerPoint presentation that the State
and the medical examiner, Dr. Edward McDonough, compiled to assist
240
the doctor in his testimony regarding the autopsy on Mildred. It was
admitted over Appellant’s objection for record purposes only. (RR61:49).
Appellant’s objection related to two slides of the exhibit, slides 2 and 5.
Slide 2, entitled, “Stab Wound – Single Edge Blade Characteristics,”
contains a computer generated image of a single edged knife next to
State’s Exhibit #63, a photograph of one of Mildred’s stab wounds.
(SX206). Slide 5, entitled, “Stab Wound Depth Analysis,” depicts three
silhouettes that correspond to wounds of various depths. (SX206).
In a hearing outside the presence of the jury, Appellant objected
to State’s Exhibit #206.33 (RR69:11). He stated the following:
One thing further, Your Honor. I think the State, as part of
their presentation with the medical examiner, will have a
PowerPoint which shows a silhouette of a knife next to the
pictures. I would object to that as speculative. Especially
since there is no knife that’s ever been introduced into
evidence.
For example, this (indicating). I think it would be
misleading to the jury that that’s the way the knife looked,
when there’s no evidence in any way that there’s - - a knife
like that was ever used.
33On appeal, Appellant refers to State’s Exhibit #205. This exhibit is a penitentiary
pack. (SX205). The State believes Appellant is actually referring to State’s Exhibit
#206, which includes photographs from Mildred’s autopsy along with a silhouette of
a single edge blade. (SX206).
241
(RR61:11). The State responded that it was offering the exhibit purely
as a demonstrative aid. (RR61:11). “The purpose of this picture is to
show there’s a sharp edge and dull edge and how a knife like that might
be - - is consistent with causing a wound like we see in State’s Exhibit
Number 63[.]” (RR61:11). The photograph will “show the jury why it is
that this medical examiner will give the opinion that this is consistent
with a single-edge knife.” (RR61:12). The trial court overruled
Appellant’s objection. (RR61:12). The exhibit was subsequently
admitted and utilized by him to explain his autopsy findings.
In particular, Dr. McDonough testified that Mildred “had
extensive sharp-force trauma over almost all the surfaces of her body.”
(RR61:54). He explained that as part of an autopsy, the medical
examiner examines sharp-force wounds in an effort to determine “what
the weapon might be, possibly the length of the weapon, the width of
the blade[.]” (RR61:56-57). The examiner looks at the features of the
wound, including the edges, where “[t]here might be a sharp edge and
blunt edge.” (RR61:56). The features of the wound may suggest the
type of knife used. (RR61:56, 60-61). In the instant case, he opined
that Mildred’s and Fred’s wounds were consistent with a single edged
242
blade. (RR61:58). Dr. McDonough acknowledged, however, that he
was never presented with a knife to examine or compare to Mildred’s
wounds. (RR61:57).
Standard of Review
An appellate court reviews a trial court’s admission of
demonstrative evidence for an abuse of discretion. See Simmons v.
State, 622 S.W.2d 111, 113 (Tex. Crim. App. 1981).
Applicable Law
Demonstrative evidence is evidence admitted to serve as a visual
aid or illustration of a witness’ testimony. Baker v. State, 177 S.W.3d
113, 123 (Tex. App.—Houston [1st Dist.] 2005, no pet.). It is admissible
if it tends to solve some issue in the case and is relevant to the cause.
See Simmons, 622 S.W.2d at 113. An item of demonstrative evidence
must be properly identified by showing that the item in question is
what its proponent claims as opposed to any idea of speculation,
conjecture, or presumption of what the exhibit represents. Torres v.
State, 116 S.W.3d 208, 213 (Tex. App.—El Paso 2003, no pet.) (citing
Vollbaum v. State, 833 S.W.2d 652, 657 (Tex. App.—Waco 1992, pet.
ref'd)).
243
Analysis
The trial court did not err is overruling Appellant’s objection to
the State’s use of a computer-generated silhouette of a generic single
edged knife as a demonstrative aid during the medical examiner’s
testimony. As an initial matter, the silhouette of the knife was properly
identified. Torres, 116 S.W.3d at 213. Dr. McDonough agreed that the
slide entitled “Stab Wound – Single Edge Blade Characteristics”
contained a diagram of a knife. (RR61:57). As to the slide entitled
“Stab Wound Depth Analysis,” he agreed that it explained “different
depths wounds [sic]” that a single knife may create. (RR61:60).
The silhouette of the knife was relevant as it helped the medical
examiner to explain the nature and cause of the injuries that resulted
in Mildred’s death. The silhouette assisted the jury in understanding
Dr. McDonough’s testimony regarding Mildred’s wounds. Contrary to
the statements in Appellant’s brief, the silhouette was not speculative.
The silhouette on Slide 2 depicted a single-edged knife, the same type of
knife that Dr. McDonough believed caused Mildred’s wounds.
(RR61:57-58). The silhouette on Slide 5 showed that a single knife may
cause wounds of different depths. (RR61:60).
244
Importantly, the State did not present the silhouette of the knife
as an image of the weapon that was actually used in the instant offense.
Indeed, the State clarified with Dr. McDonough the fact that he had
never “seen a knife [and had] never been presented a knife to examine”
in connection with Mildred’s autopsy. (RR61:57). On cross-examination,
Dr. McDonough agreed that although he had testified to what the knife
may look like, he could not testify to a scientific certainty what the knife
looked like or how long it was. (RR61:90-91). See Simmons, 622 S.W.2d
at 113-14 (finding no abuse of discretion in overruling Simmons’
objection to the State’s display to the jury of a “similar-type [of] knife”
as that used during the commission of the offense).
On appeal, Appellant argues that the silhouette of the knife was
also inadmissible under Rule 403. (Appellant’s Brief pp.122-23). He did
not object on this basis at trial; he only objected on the basis of
speculation. (RR61:11). As such, Appellant failed to preserve his Rule
403 objection for this Court’s review. See Guevara, 97 S.W.3d at 583.
Regardless, the probative value of the silhouette was not
substantially outweighed by the danger of unfair prejudice. See Tex. R.
Evid. 403. As stated, the silhouette was probative of the nature of the
245
weapon used to inflict Mildred’s fatal injuries. The silhouette was used
to demonstrate the type of blade that may have inflicted Mildred’s
wounds and to demonstrate how a single blade could create different
wounds of varying depth. The potential for the silhouette to impress
the jury in an irrational way was low given Dr. McDonough’s
acknowledgement that he was never presented with a particular knife
to examine or compare with Mildred’s wounds and that he could not
testify to a scientific certainty what the murder weapon actually looked
like. At a minimum, the trial court’s 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 in allowing the
State to use the silhouette as a demonstrative aid, any alleged error is
harmless as it did not have a substantial and injurious effect or
influence on the jury. The complained-of exhibit was offered during
testimony by the medical examiner during the punishment phase of
trial. The fact that Appellant stabbed Mildred to death was previously
determined by another jury. Dr. McDonough simply described for the
new jury Mildred’s cause of death and the nature and extent of her
injuries. The complained-of silhouette was used during his testimony
246
simply to help the jury understand the type of weapon that caused her
wounds. There was no attempt to mislead the jury to believe that the
silhouette was an exact replica of the actual murder weapon. And there
was no dispute that a sharp, blade-like object was used or the lethal
nature of the wounds it inflicted. Accordingly, the silhouette of the
knife did not affect Appellant’s substantial rights. See Tex. R. App. P.
44.2(b).
Issue 44 should be overruled.
STATE’S RESPONSE TO ISSUE 45: THE TRIAL COURT PROPERLY ADMITTED
THE AUTOPSY PHOTOGRAPHS. ALTERNATIVELY, ANY ERROR IS HARMLESS.
Appellant contends that the trial court should have excluded all
of the autopsy photographs offered by the State under evidence rule
403. Appellant’s contention appears to be that the probative value of
the photographs was outweighed by the danger of unfair prejudice.
Appellant’s contentions lack merit.
Pertinent Facts
In a sub rosa hearing, Appellant objected under Rule 403 to
autopsy photographs of Mildred and Fred “being shown to the jury.”
(RR61:8-9). The color photographs were the exact photographs
admitted in the guilt phase of Appellant’s prior 1986 trial. The trial
247
court had rejected a rule 403 objection to their admission back then,
finding that the probative value was not outweighed by the danger of
any unfair prejudice. (RR61:9). The State re-offered all twenty-four
previously admitted autopsy photographs - - fourteen from Mildred’s
autopsy and ten from Fred’s autopsy. (RR61:9-10). The prosecutor
stated:
They are grouped in a manner that is consistent with their
grouping of the injuries that show the injuries, the knife
wounds, the point of entry, why those points of entry can be
seen as being consistent with a single-edge knife. [The
medical examiner] will talk about the location of those
injuries and how - - especially with Mildred - - those might
relate to the fractured ribs that she sustained.
...
There’s probably, I think, 25 [sic] pictures. But that’s
because there were a lot of stab wounds that were inflicted
upon these two folks.
(RR61:10). Importantly, the 24 photographs offered were only “a small
- - a portion of the total pictures that were taken.” (RR61:11).
Appellant’s objection was overruled. (RR61:11). The
photographs were admitted during Dr. McDonough’s testimony.
(RR61:48-49).
248
Analysis
The trial court did not err in admitting the 24 autopsy
photographs over Appellant’s 403 objection. All 24 photographs were
highly probative of Mildred and Fred’s injuries; they show the external
injuries - - stab wounds, cuts, contusions - - that Mildred and Fred
suffered as a result of the instant offense. The photographs were used
by Dr. McDonough to explain those injuries. (RR61:57, 61-65, 67-74,
78-83). 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 and extent of Mildred
and Fred’s injuries – the sheer volume of stab wounds – the
photographs were especially important to help the jury understand the
brutal nature of the offense.
Furthermore, the 24 complained-of photographs are not unfairly
prejudicial under Rule 403. The photographs are not repetitious; each
depicts a different area of injury:
249
 State’s Exhibit #76, the autopsy identification
photograph, is a close up of Mildred’s face.
(RR61:63-64; SX76).
 State’s Exhibit #79 is a close-up of a large cut to
Mildred’s scalp. (RR61:64-65; SX79).
 State’s Exhibit #80 is a close-up of a three-inch cut
on the back of Mildred’s head. (RR61:65; SX80).
 State’s Exhibit #73 is a close up of defensive wounds
on Mildred’s left hand. (RR61:72; SX73).
 State’s Exhibit #74 is a close-up of a large stab
wound to Mildred’s lower right arm. (RR61:72-74;
SX74).
 State’s Exhibit #81 is a close-up of several stab
wounds to Mildred’s left arm. (RR61:71-72; SX81).
 State’s Exhibit #75 shows a large stab wound to
Mildred’s face and shows multiple defects to her
shirt. (RR61:62-63; SX75).
 State’s Exhibit #78 is an overhead view of Mildred’s
upper body and shows the curlers in her hair, her
Rolex watch, and the defects to her shirt. (RR61:61-
62; SX78).
 State’s Exhibit #77 is an overhead view of Mildred’s
lower body and shows two stab wounds to her belly.
(RR61:62; SX77).
 State’s Exhibit #63 is a close-up of a stab to
Mildred’s body. (RR61:57-58; SX63).
250
 State’s Exhibit #65 is a close-up of the right side of
Fred’s face and shows a large stab wound to the
temple area. (RR61:81-81; SX65).
 State’s Exhibit #58 is an overhead view of the upper
portion of Fred’s body from his head to his knees.
(RR61:78; SX58). He is wearing a shirt, but nothing
below his waist. His genital area is covered by a
black box.
 State’s Exhibit #64 is a close-up of Fred’s left
shoulder area and shows multiple stab wounds to his
chest, shoulder and arm. (RR61:81-82; SX64).
 State’s Exhibit #60 is a close-up of blood droplets on
the back of Fred’s left upper leg. (RR61:82; SX60).
 State’s Exhibit #61 is a close-up of cuts to Fred’s
buttocks. (RR61:83; SX61).
 State’s Exhibit #68 is a close-up of a fracture or tear
of a fingernail on Fred’s right hand. (RR61:83;
SX68).
In some of the photographs, Mildred and Fred are unclothed:
 State’s Exhibit #71 shows Mildred’s unclothed body
from her breasts to her abdomen and shows a series
of stab wounds to Mildred’s abdomen and her left
side. (RR61:71; SX71).
 State’s Exhibit #82 is an overhead view of the front of
Mildred’s unclothed body, from her head to just above
her knees and shows multiple stab wounds all over
her body. (RR61:67-68; SX82).
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 State’s Exhibit #83 is a closer-in view of the right
upper side of Mildred’s body and shows groups of stab
wounds to her right arm and right side. (RR61:69-71;
SX83).
 State’s Exhibit #72 is an overhead view of the back of
Mildred’s body and shows multiple stab wounds to
her shoulder, arm, and hip area. (RR61:68-69; SX72).
 State’s Exhibit #62 is a closer-in view of Fred’s chest
and shows multiple stab wounds to that area.
(RR61:81; SX62).
 State’s Exhibit #59 is a closer-in view of the left side
of Fred’s body and shows a group of cuts to that area.
(RR61:82; SX59).
 State’s Exhibit #66 is an overhead view of the upper
portion of the front of Fred’s body, from his head to
his knees and shows seven stab wounds. (RR61:79-
80; SX66).
 State’s Exhibit #67 is an overhead view of the back of
Fred’s upper body and shows eleven stab wounds.
(RR61:80; SX67).
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
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body by Santellan and no damage attributable to the autopsy is
apparent).
Appellant complains that the prosecutor and Dr. McDonough
commented that the photographs were “gruesome.” (RR61:61). The
photographs are gruesome, but they depict nothing more than the
injuries that Appellant inflicted on Mildred and Fred. See Ladd, 3
S.W.3d at 568 (holding that the trial court did not abuse its discretion
in admitting 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). Notably, Dr. McDonough’s testimony
regarding the photographs consisted of only twenty pages in an
otherwise extremely lengthy record. (RR61:57, 61-65, 67-74, 78-83).
The trial court did not abuse its discretion when it admitted the
24 autopsy photographs. 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 24 complained-of
photographs, Appellant was not harmed. As previously argued, there
was overwhelming evidence supporting the jury’s verdict on
253
punishment regardless of the photographs of Mildred and Fred. Even
without the photographs, the jury heard evidence that Mildred was
stabbed 90 times. The jury heard evidence of Appellant’s history of
violence both in and out of prison. 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 45 should be overruled.
STATE’S RESPONSE TO ISSUE 46: THE TRIAL COURT DID NOT ERR IN
OVERRULING APPELLANT’S OBJECTION TO THE TESTIMONY OF JAMES
BELT, SR.
Appellant contends that the trial court should have excluded the
testimony of Mildred and Fred’s son-in-law, James Belt. He claims
Belt’s testimony was not admissible as victim impact testimony.
Furthermore, he claims under Rule 403 that any probative value it had
was outweighed by the danger of unfair prejudice. Appellant preserved
his complaints at trial, but the court acted within its discretion in
overruling them.
254
Pertinent Facts
During it’s case-in-rebuttal, the State called Mildred and Fred’s
son-in-law, James Belt, to testify. (RR68:212). Appellant objected that
Belt was not Mildred and Fred’s child. (RR68:218). He objected to the
fact that Belt would testify as to the effect of the offense on his wife,
Mildred and Fred’s daughter, Molly, as well as Mildred and Fred’s
grandchildren, Melanie and James III. (RR68:212-13, 216). He
objected that the defense would not be able to cross-examine Molly.
(RR68:212-13, 216). Appellant also objected to the testimony under
Rule 403. (RR68:214).
Before the jury, Belt testified that he is married to Mildred and
Fred’s only child, Molly. (RR68:220-21). Belt and Molly have two
children, Melanie and James III. (RR68:226). Fred and Belt, both
lawyers, shared an office close to Rose Lane. (RR68:229). Belt testified
that Fred was more than just a father-in-law; “he was everything to
[Belt].” (RR68:235). Belt had a great deal of respect and admiration for
Mildred. (RR68:235).
Belt testified that even though decades have passed since the
offense, “It comes back. [He] can’t shake it . . . It’s got [him] messed
255
up.” (RR68:236). After the offense, Molly had to take a leave of
absence from work for a year. (RR68:237). “Initially, she had anxiety
attacks. She couldn’t really do anything. But, as time passes, she’s
gotten a lot better . . . But she’s not whole.” (RR68:237). The offense
affected Melanie as well. Melanie “has never been able to stay in a
house by herself.” (RR68:237). Melanie could not be left alone when
she was a child or after she left home to go off to college. (RR68:237).
Applicable Law
Victim-impact evidence is “evidence concerning the effect the
victim’s death will have on others, particularly the victim’s family
members.” Mosley v. State, 983 S.W.2d 249, 261 (Tex. Crim. App. 1998).
Victim-character evidence is “evidence concerning good qualities
possessed by the victim.” Id. Both types of evidence are admissible “in
the context of the mitigation special issue, to show the uniqueness of
the victim, the harm caused by the defendant, and as rebuttal to the
defendant’s mitigating evidence.” Id. at 262.
Victim-impact evidence “remind[s] the jury that murder has
foreseeable consequences to the community and the victim’s survivors -
- family members and friends who also suffer harm from murderous
256
conduct.” Estrada v. State, 313 S.W.3d 274, 316 (Tex. Crim. App. 2010)
(quoting Salazar v. State, 90 S.W.3d 330, 335 (Tex. Crim. App. 2002)).
Evidence about the victim can be an important humanizing factor,
making the victim more than just a faceless stranger before the jury,
and is essential for just decision making in the penalty phase of a
death-penalty trial. See Mosley, 983 S.W.2d at 261 (discussing Payne v.
Tennessee, 501 U.S. 808, 825 (1991)).
However, victim-impact evidence is subject to limitations. Victim-
impact evidence should be excluded under rule 403 if it predominantly
encourages comparisons between the worthiness of the victim and the
worthiness of the defendant. See Mosley, 983 S.W.3d at 262; Tex. R.
Evid. 403. “When the focus of the evidence shifts from humanizing the
victim . . . to measuring the worth of the victim compared to other
members of society[,] then the State exceeds the bounds of permissible
testimony.” Mosley, 983 S.W.3d at 262.
Trial courts should exercise sound discretion in permitting some
victim impact evidence while limiting the amount and scope of such
testimony. See Estrada, 313 S.W.3d 315-16 (quoting Salazar, 90
S.W.3d at 336). Considerations in determining whether testimony
257
should be excluded under rule 403 include the nature of the testimony,
the relationship between the witness and the victim, the amount of
testimony to be introduced, and the availability of other testimony
relating to victim impact and character. See Mosley, 983 S.W.2d at 262.
Analysis
It is the State’s position that Appellant has failed to properly
brief his complaint regarding the testimony of James Belt. Importantly,
he does not provide citations to the portion(s) of the record of Belt’s
testimony that he claims is inadmissible. See Tex. R. App. P. 38.1(i).
The State notes that Belt offered more than simply victim-impact
testimony. Belt was also a fact witness; he was the person who found
Mildred’s and Fred’s dead bodies. (RR68:228-29).
In any event, the trial court did not err in allowing Belt to
provide victim-impact testimony. Belt’s testimony was relevant and
probative evidence that humanized Mildred and Fred. Mosley, 983
S.W.2d at 262. Belt provided a brief description for the jury of who this
married couple was and the impact of the murders on their family.
There was nothing in Belt’s testimony that encouraged a comparison
between Mildred and Fred and Appellant. As such, the trial court acted
258
within its discretion in allowing Belt’s testimony during the State’s
case-in-rebuttal.
That Belt was Mildred and Fred’s son-in-law did not render
Belt’s testimony inadmissible. See Mosley, 983 S.W.2d at 262 (stating,
“[W]e do not believe that an absolute rule limiting testimony to family
members within a certain degree of relationship is viable.”). Although
Belt was not Mildred and Fred’s son by birth, he was their son-in-law
and the father of their grandchildren. It is clear from Belt’s testimony
that he enjoyed an extremely close relationship with Mildred and Fred,
both personally and (as to Fred) professionally.
In his brief, Appellant argues that Belt’s testimony was
improper, extraneous victim testimony because it pertained to a victim
not named in the indictment. (Appellant’s Brief pp.127-28). Mildred is
the only complainant listed in the instant indictment, not Fred.
(CR:206). Appellant did not object on this basis at trial, therefore this
claim is not preserved for review. See Tex. R. App. P. 33.1. Regardless,
Appellant is incorrect. Belt’s testimony regarding the impact of the
offense, that he “can’t shake it” and that it “[had him] messed up”
pertains to Mildred’s murder. Mildred and Fred were killed during the
259
same transaction. Because his testimony pertains to the victim named
in the indictment, it was not improper.
Appellant complained at trial and in his brief on appeal that
because Belt was allowed to testify as to the effect of the offense on
Molly, he was denied the right to cross-examine her. At trial, the State
asked only two questions of Belt regarding the effect of the offense on
Molly. (RR68:236-37). And, Appellant made no attempt to cross-
examine him. (RR68:239).
Even if this Court finds that the trial court erred in admitting
Belt’s victim-impact testimony (which the State does not concede), any
alleged error is harmless. See Tex. R. Evid. 103; Tex. R. App. P. 44.2(b).
Belt’s testimony about the impact of the offense on him and his family
was brief. And, he was the only witness to give this type of testimony.
Indeed, the State was judicious and presented only one witness – Belt –
to testify regarding the impact of the brutal murder of a highly
respected couple in the Dallas community. Belt’s testimony did not
affect Appellant’s substantial rights. See Tex. R. App. P. 44.2(b).
Issue 46 should be overruled.
260
STATE’S RESPONSE TO ISSUE NOS. 47-48: APPELLANT IS NOT
INTELLECTUALLY DISABLED.
In Issue 47, Appellant contends that the jury’s response to the
intellectual disability special issue is against the great weight and
preponderance of the evidence. In Issue 48, Appellant contends that the
evidence was sufficient to show that Appellant is intellectually disabled.
Appellant’s contentions lack merit.
Standard of Review
This Court has characterized the issue of intellectual disability
as an affirmative defense. Neal v. State, 256 S.W.3d 264, 273 (Tex.
Crim. App. 2008). When a defendant asserts this affirmative defense at
trial, he bears the burden to prove by a preponderance of the evidence
that he is intellectually disabled. Id. In reviewing the sufficiency of the
evidence to support the jury’s finding that Appellant was not
intellectually disabled, the appellate court considers whether the
finding is so against the great weight and preponderance of the
evidence as to be manifestly unjust. Id. The jury’s decision is entitled
to great deference as it is in the best position to assess the witnesses’
credibility and resolve any conflicts in the evidence. Id.
261
Alternate Standard of Review
In two issues, Appellant contends that the evidence presented at
trial established that he was intellectually disabled. The State
understands Issue 47 to be that the jury’s response to the intellectual
disability special issue is against the great weight and preponderance of
the evidence and Issue 48 to be that the evidence was sufficient to show
that Appellant is intellectually disabled. It is unclear whether
Appellant is suggesting that there are two standards of review in
connection with the jury’s response to the intellectual disability issue.
As stated above, the standard of review in connection with the jury’s
finding on the intellectual disability special issue is whether the finding
is so against the great weight and preponderance of the evidence as to
be manifestly unjust. Neal, 256 S.W.3d at 273. Appellant cites no
authority to the contrary.
Applicable Law
A defendant is intellectually disabled and, thus, exempt from the
death penalty if he has (1) significant sub-average general intellectual
functioning, usually evidenced by an intelligence quotient (IQ) score
below 70, that is accompanied by, (2) related limitations in adaptive
262
functioning, (3) before the age of 18. Neal, 256 S.W.3d at 272-73;
Briseno, 135 S.W.3d at 7-8; see also Tex. Health & Safety Code Ann.
§591.003(7-a). These criteria are “adequately ‘informed by the medical
community’s diagnostic framework.’” Moore, 470 S.W.3d at 487 (citing
Hall, 134 S. Ct. at 2000).
Factors relevant to evaluating the three prongs include:
 Did those who knew the person best during the
developmental stage--his family, friends, teachers,
employers, and authorities--think he was mentally
retarded at that time, and, if so, act in accordance with
that determination?
 Has the person formulated plans and carried them
through or is his conduct impulsive?
 Does his conduct show leadership or does it show that
he is led around by others?
 Is his conduct in response to external stimuli rational
and appropriate, regardless of whether it is socially
acceptable?
 Does he respond coherently, rationally, and on point to
oral or written questions or do his responses wander
from subject to subject?
 Can the person hide facts or lie effectively in his own or
others’ interests?
 Putting aside any heinousness or gruesomeness
surrounding the capital offense, did the commission of
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that offense require forethought, planning, and
complex execution of purpose?
Neal, 256 S.W.3d at 273.
Analysis
Appellant failed to meet his burden of proving that he is
intellectually disabled. The record supports the jury’s decision to
answer the first special issue “no.”
Appellant’s IQ
General intellectual functioning refers to an IQ which is obtained
by assessment with a standardized, individually administered
intelligence test. See Moore, 470 S.W.3d at 487 (citing Hearn, 310
S.W.3d at 428 n.7). Sub-average general intellectual functioning refers
to an individual’s “measured intelligence on standardized psychometric
instruments of two or more standard deviations below the age-group
mean for the tests used.” Tex. Health & Safety Code Ann. §591.003(20)
(West Supp. 2015). “[T]he MR or Intellectual Disability category is
approximately two standard deviations below the average, about an IQ
score of 70.” Cathey, 451 S.W.3d at 14.
264
Appellant presented evidence of two IQ scores: 77 and 71.
(RR65:118; RR66:23). Dr. Hom administered the Wechsler Adult
Intelligence Test (WAIS-II) in 1987. (RR65:110, 115). On this test,
Appellant’s full-scale IQ was 77. (RR65:118).
In 2012, Dr. McGarrahan administered the WAIS-IV and
Appellant scored a 71.34 (RR66:16, 23, 29; SX248). Appellant’s “full-
scale IQ was 71, which is in the - - what we used to call ‘mildly mentally
retarded’ range to borderline functioning[.]” (RR66:23). Given that the
standard error of measurement is “essentially plus or minus five
points,” Appellant’s score falls in the range of 66-76. (RR66:29-30). Dr.
McGarrahan testified that Appellant’s IQ score was two standard
deviations below the norm. (RR66:9-10).
The State’s expert, Dr. Price, testified that Appellant’s 71 IQ score
places him in “the borderline” range of mildly intellectually disabled.
(RR69:78). He testified, “you take into consideration the confidence
interval of the IQ score obtained and it includes, in this case, a score
that should be considered significantly sub-average.” (RR69:79). Dr.
34 At the time of trial, the WAIS-IV was the current edition of this test. (RR69:24).
265
Price testified that Appellant meets the first prong of the intellectual
disability analysis. (RR69:79).
Taking into consideration the SEM associated with Appellant’s
2012 71-IQ-score, the State agrees with Appellant that the evidence
substantiates a finding that he meets the first prong of the intellectual
disability analysis.
Adaptive Behavior
Even though Appellant’s 2012 IQ score meets the first prong of
the AAMR definition for intellectual disability, his IQ score alone does
not justify his classification as intellectually disabled. See Ex parte
Tennard, 960 S.W.2d 57, 60-61 (Tex. Crim. App. 1997) (IQ scores should
not be used as a “unitary measure of mental retardation”). The score
must be accompanied by deficits in adaptive behavior. Briseno, 135
S.W.3d at 7. Adaptive behavior is defined as “the effectiveness with or
degree to which a person meets the standards of personal independence
and social responsibility expected of the person’s age and cultural
group.” Tex. Health & Safety Code Ann. § 591.003(1) (West Supp. 2015).
“Impairments in adaptive behavior are defined as significant
limitations in an individual's effectiveness in meeting the standards of
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maturation, learning, personal independence, and/or social
responsibility that are expected for his or her age level and cultural
group, as determined by clinical assessment and, usually, standardized
scales.” Briseno, 135 S.W.3d at 7 n.25.
Expert Opinion
Dr. McGarrahan testified that Appellant’s adaptive deficits
“include his academic functioning, his ability to socialize and be in the
community and live independently and take care of himself.”
(RR66:24). According to Dr. McGarrahan, Appellant could not make
change; had problems in school; did not learn how to drive; had
difficulty using a telephone and a telephone book; was a loner; had no
friends; had trouble getting along with people; and, experienced a head
injury at the age of 15. (RR66:25-26).
Dr. Price testified that he did not see significant limitations in
Appellant’s adaptive behaviors. (RR69:38). According to Dr. Price,
there was evidence that Appellant “had many different jobs in the time
after he was 17, in the free world.” (RR69:39). In addition, Appellant
was not incapable of graduating from high school. (RR69:39). Indeed,
Dr. Price did not believe that Appellant’s poor performance in school
267
was related to his intellectual functioning. (RR69:40). That Appellant
was picked on as a child and was a loner was not evidence of significant
limitations in adaptive behavior. (RR69:41). Some of the evidence
showed that he would not stand up for himself but other evidence
showed that he would. (RR69:41-42). Furthermore, Appellant was not
a complete loner; he had girlfriends and was close to some family
members. (RR69:42). Importantly, when Appellant was younger, he
was not treated by everyone as if he was intellectually disabled.
(RR69:44).
Dr. Price testified that Appellant has the ability to “formulate a
plan to behave in a certain way, to get the effect or to achieve the
consequence that he was after.” (RR69:44-45). He also has the ability
to lie in order to avoid criminal responsibility. (RR69:46). Dr. Price
testified that it appeared that the lying started with the Linwood
incident. (RR69:46). Appellant “comes up with excuses, self-defense
argument, denies that he committed this offense in the way in which
the evidence was presented to the jury, telling the investigator one
thing and also telling her at the same time to not put that in the
record.” (RR69:46). Appellant’s testimony in connection with the
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Linwood offense was significant to Dr. Price and “was very inconsistent
with a person with mental retardation[.]” (RR69:58). Dr. Price
testified:
Well, it speaks to the area of communication as adaptive
behavior, as well as the social problem-solving area. He
testified. He was cross examined. He responded to the
questions in a responsive fashion, on point. He understood
the questions. He had an answer that was in his own self-
interest, whether or not it was accurate or not.
It also showed a denial of responsibility for the act and a
memorization of the conduct. But he was able to, if you will,
hold his own on the witness stand under cross examination.
Something that can be difficult to do.
(RR69:48).
Dr. Price also reviewed 24 of Appellant’s 90-day mental status
examinations from 2002 to 2010. (RR69:51). “[W]ith very, very few
exceptions, his mental status examines [sic] for those eight years . . .
were entirely normal.” (RR69:52). There was no evidence of psychosis,
hearing voices, bipolar disorder, or schizophrenia. (RR69:52). No
mental health medications were administered. (RR69:52). There were
no complaints of unusual behaviors. (RR69:53).
269
Other Evidence
The record reflects that, from a young age, Appellant was an
individual fully capable of caring for himself and carrying out everyday
activities whether at home, on the streets, or while incarcerated.
Appellant, also known by his nickname, “Clean,” liked clothes and liked
to dress well. (RR62:19-20, 46, 54, 100, 111; RR66:79). Although he did
not have a driver’s license, he got around by driving Lonnie’s car,
walking, or having friends pick him up. (RR62:62-63, 117, 131).
Contrary to Dr. McGarrahan’s testimony that Appellant was a
loner, didn’t have any friends, and did not know how to get along with
others, multiple witnesses testified that Appellant had relationships
with family, friends, and even had a girlfriend. (RR62:65, 131; RR66:25,
131, 71, 96-97). Indeed, from a young age, Appellant maintained close
relationships with multiple family members, including his brother
Lonnie and sister Shirley as well as his cousins Bobby Charles and
Thomas, Anthony, and Cynthia Penagraph. (RR62:53, 100; RR65:49-
50, 61; RR66:71). Thomas testified that he and Appellant were “just
like two peas in a pot (sic).” (RR62:65). They were “[r]eally close.”
(RR62:65). Anthony testified that he and Appellant went everywhere
270
together. (RR65:51). More recently, Appellant reconnected with his
half-brother Rodney Turner. (RR66:96). The men became pen pals,
encouraging each other through their letters. (RR66:97). Appellant’s
letters included citations to Scripture. (RR66:106).
Growing up, Appellant’s cousins Anthony and Cynthia believed
that Appellant was slow but Lonnie, Thomas, and Delores Easter did
not. (RR62:26, 53, 100; RR65:49; RR66:130). Indeed, Lonnie thought
Appellant was intelligent; Appellant could read and hold a conversation
with him and even helped him with his homework. (RR62:100-01, 118).
Easter described Appellant as “very bright.” (RR62:26).
There is no evidence that Appellant was ever placed in special
education classes through DISD. (RR68:207). Appellant’s school
records reflect that although he performed poorly in middle school, he
improved by his sophomore year of high school when he started
attending Metro North. (RR68:203-04). Notably, Appellant’s move to
Metro North did not occur until after his head injury at Fair Park.
(RR68:210). Dr. Price testified that based on the records, Appellant’s
scores on the Iowa and California tests, and his performance at Metro
North, Appellant was “not incapable” of graduating. (RR69:40). See
271
Cathey, 451 S.W.3d at 64 (noting that “[t]he best source of retrospective
information concerning adaptive behavior during the developmental
period is usually school records.”).
Appellant presented evidence of the head injury at Fair Park.35
The evidence reflects, however, that he testified at the trial in
connection with the Linwood offense three years after the injury.
(RR69:48). Dr. Price testified that Appellant’s testimony at that trial
was “very inconsistent with a person with mental retardation[.]”
(RR69:48). Similarly, when he was interviewed by Cindy Kuykendall
after the instant offense, Appellant responded to questions, answered
questions in his own interest, and “provided alibis, excuses,
rationalizations, [and] denials.” (RR69:49).
Appellant grew up in an area where fighting was common.
(RR62:55-56, 110). While it is true that Appellant would get picked on,
two of his cousins testified that if Appellant had to defend himself, he
would. (RR62:55, 107; RR65:47-48, 56; RR66:84). He even defended
Lonnie on more than one occasion. (RR62:108). Dr. Price testified that
whether one is picked on is not, by itself, evidence of intellectual
35The State introduced a copy of Appellant’s medical records from Parkland
Hospital. The records contain no mention of the head injury. (RR69:57; SX249).
272
disability. (RR69:41). Instead, it is the response to being picked on
that should be considered. (RR69:41).
Although Appellant had “very few jobs over his life[,]” there was
evidence of some work experience. (RR66:18). Appellant worked as a
janitor with his mother at Fair Park. (RR62:114). He worked on trucks
with Rice’s brother, Anthony. (RR66:126, 136). He worked at the Adel
Hunt Furniture Company. (RR66:56). In 1984, however, while he was
out of prison on parole, he did not maintain stable employment.
(RR63:192-93).
Appellant has a history of lying and manipulative behavior.
When interviewed by police in connection with the Linwood incident, he
told the detective that he intended to kill Linwood when he stabbed
him, but then he told her not to include that detail in the report.
(RR66:46-48). When he testified at trial, he claimed that he did not
intend to kill Linwood; he just wanted to “scratch” Linwood to get him
to leave him alone. (RR66:46-47).
In 1983, while in prison, Appellant was aggressive and tried to
extort his then-cellmate Ferguson. (RR63:137-39). He manipulated
another inmate, Turner, into doing his laundry and doing “sexual stuff
273
for him[.]” (RR63:167-68). A 2010 inventory of Appellant’s cell turned
up two razor blades secreted in a book. (RR65:21-22; SX230). He also
had a diagram showing how to alter a radio to create a communication
device. (RR65:17; SX232).
In prison, Appellant manages his time and health. He spends
his time reading. One detention officer testified that Appellant is
always reading or sleeping. (RR67:41). He reads “novels off the law
library cart.” (RR67:45). An inventory of his cell revealed eight books,
a dictionary, and a Bible. (RR65:12, 13, 14, 28-29; SX231, 236-42). He
also had a capital defense periodical that contained markings on
passages concerning confidentiality and strategy. (RR65:24-28; SX233).
When he has recreation time at the gym, Appellant walks or plays
basketball. (RR67:42). In the event that Appellant needs to see a
doctor, he is able to take the steps necessary to do so. (RR69:45).
In 2006, Appellant took an “Adaptive Behavior Screening Test.”
(RR71:1212-13; SX251). He reported the following: prior to his arrest,
he lived with his family (common law wife); he supported himself with a
job; he had bills and he paid them; he got to where he needed to go by
driving himself; he cooked what he ate; when he needed to go to the
274
doctor, his family made an appointment; he looked at an analog clock
and correctly stated the time within 5 minutes; he washed his clothes
himself; and he reported that, to bake cornbread or a cake or biscuits,
the oven should be set to 300°-400°. (RR71:1212-13; SX251). He
answered one question incorrectly: “If cigarettes cost $4.35 and you
gave the clerk a $5.00 bill, how much change should you get back?”
(RR71:1213; SX251). Appellant answered “Any other [number]” instead
of “$0.65.” (RR71:1213; SX251).
The commission of the instant offense demonstrates considerable
forethought and planning. Through trial-and-error, Appellant figured
out how to get inside the Finch home. Once inside, he overpowered not
just one person, but two. After he brutally stabbed and killed Mildred
and Fred, he selected and organized the property that he wanted to
take and then figured out how to transport it from the Finch home to
his own. Once at home, he concocted a story to explain the blood on his
clothing and the source of all of the bags and boxes of clothing and
assorted property. Later, he disposed of his bloody clothes and the knife
he used to kill Mildred and Fred. During an interview with the media
after the offense, Appellant told a reporter that he got the blood on his
275
shoes from a dog that he had hit with a stick. (RR66:50). And, he gave
an alibi for the day after the murders. (RR66:52-53).
Conclusion
A significant impairment in adaptive behavior may be thought of
as the extent to which an individual requires assistance to carry
out age-appropriate activities. See Cathey, 451 S.W.3d at 23. Given all
of the foregoing, it is clear that before and after he turned 18, Appellant
was fully capable of carrying out age-appropriate activities. The jury
could have reasonably determined that any deficits Appellant had in
adaptive behavior were not within the range of intellectual disability.
Onset before 18
Appellant failed to prove an IQ below 70 and deficiencies in
adaptive behavior prior to the age of 18. First of all, both of Appellant’s
IQ tests were taken after his 18th birthday. When Appellant was tested
by Dr. Hom in 1987, he was 26. (DX7). When he was tested by Dr.
McGarrahan in 2012, he was 51. (SX248). The only evidence of an IQ
test taken during the developmental period was the California Test of
Mental Maturity taken when Appellant was in second grade.
(RR68:200). On this test, Appellant scored an 82 total IQ. (RR68:198).
276
Next, the evidence of adaptive deficits was conflicting. Some
family members thought Appellant was slow, but others thought he
functioned well and was bright. Although Appellant performed poorly
during some school years, his performance was better in others. There
was evidence that he worked with his mother. There was evidence that
he was bullied in the neighborhood, but there was also evidence that he
stood up for himself. Appellant failed to prove that he is intellectually
disabled, much less that the onset occurred during the developmental
period. See Cathey, 451 S.W.3d at 28 (stating that “If applicant has
failed to prove that he is intellectually disabled, he clearly did not prove
that he was intellectually disabled before the age of approximately
eighteen.”).
Conclusion
Given the foregoing, it is clear that the jury’s answer to the
intellectual disability special issue was not so against the great weight
and preponderance of the evidence so as to be manifestly unjust. Neal,
256 S.W.3d at 273.
Issues 47 and 48 should be overruled.
277
STATE’S RESPONSE TO ISSUE NO. 49: THE EVIDENCE IS LEGALLY
SUFFICIENT TO SUPPORT THE JURY’S FINDING THAT APPELLANT IS A
FUTURE DANGER.
In Issue 49, 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’s
contention lacks merit.
Applicable Law
The State has the burden of proving the future dangerousness
issue beyond a reasonable doubt. Tex. Code Crim. Proc. Ann. art.
37.0711, §§ 3(b)(2), 3(c) (West 2006); Ladd, 3 S.W.3d at 557. 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 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
278
727, 730 n.4 (Tex. Crim. App. 2010). In reviewing the sufficiency of the
evidence, the appellate 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 State’s evidence 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
broke into a home and brutally stabbed two people to death. “[A]
stabbing death is particularly brutal.” King v. State, 953 S.W.2d 266,
272 (Tex. Crim. App. 1997). Appellant stabbed Mildred 90 times. And,
Mildred was not his only victim. He also stabbed Fred to death. This
Court has stated that the circumstances of the offense may be sufficient
in some cases to support an affirmative finding on the future danger
issue. Devoe v. State, 354 S.W.3d 457, 462 (Tex. Crim. App. 2011); see
also Martinez v. State, 924 S.W.2d 693, 696 (Tex. Crim. App. 1996)
(commenting on the distinction between murders committed with a gun,
279
“which can potentially be used from across a room . . . and which often
results in death resulting from a single shot” and with a knife “a
weapon which, by virtue of its very nature, forces the user to be in such
close proximity to his victim that he is often touching him or comes into
contact with him on each blow [and] several thrusts are often utilized in
order to ensure death”).
Regardless, the State did not rely on the facts of the offense
alone. The State presented the following additional evidence of
Appellant’s history of violence which proves that he is a future danger:
 In 1979, Appellant stabbed Linwood in the head with a
screwdriver causing permanent brain damage. (RR63:72,
84). Appellant told the detective that he was trying to kill
Linwood.
 On the same day as the Linwood incident, Appellant got
into a fight with his brother Billy, during which he cut Billy
and Billy’s friend. (RR63:111-12).
 Later that night, upset when an ex-girlfriend would not let
him inside her house, Appellant broke her window.
(RR63:102-03).
 In January 1983, Appellant “started coming on” to his
cellmate, Ferguson. (RR63:136, 138-39).
 In June 1983, Appellant was seen “raping another inmate.”
(RR63:151).
280
 On the day after the rape, Appellant tried to force another
inmate, McCarroll, to “suck his dick.” (RR63:154). When
the inmate refused, Appellant broke the inmate’s nose and
gave him two black eyes. (RR63:154).
 In August 1983, Appellant manipulated another inmate,
Turner, into washing his clothes and “do[ing] sexual stuff
for him[.]” (RR63:168). Appellant also made Turner have
sex with other inmates. (RR63:169).
 While in jail, Appellant was moved multiple times for a
variety of reasons. He had to be placed in administrative
custody; he assaulted other inmates; he caused trouble in
the tank; he fought; he made sexual threats; and he could
not get along with others. (RR63:182; SX228).
 While in prison, Appellant flooded his cell twice; used
indecent or vulgar language; threw his tray out of his cell;
threatened an officer twice; refused to obey an order
multiple times; got into a fistfight with another inmate;
threw two glasses of water at an officer, striking him on the
face and chest; and was found in possession of contraband
multiple times. (RR65:37-40; SX245).
 In 1984, while on parole, Appellant failed to report and even
tried to stab his mother. (RR63:188-89).
Appellant argues that his good behavior while incarcerated on
death row proves that he is not a future danger. While good behavior
in prison is a factor to consider, it does not preclude a finding of future
dangerousness. Devoe, 354 S.W.3d at 468 (finding evidence sufficient to
281
support jury’s finding of future dangerousness despite Devoe’s “pristine”
behavioral record while incarcerated).
Viewed in the light most favorable to the verdict, the evidence 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 49 should be overruled.
STATE’S RESPONSE TO ISSUE 50: THE TRIAL COURT DID NOT ERR IN
DENYING APPELLANT’S REQUESTED JURY INSTRUCTION.
Appellant contends that the trial court erred in denying his
request to amend the jury instruction defining “significantly sub-
average general intellectual functioning.” Appellant’s contention lacks
merit.
Pertinent Facts
The trial court’s charge to the jury defines “significantly sub-
average general intellectual functioning” as follows:
. . . refers to measured intelligence on standardized
psychometric instruments of approximately two or more
standard deviations below the group mean for the tests
used. Significantly subaverage intellectual functioning is
282
evidenced by an IQ score of approximately 70 or below. An
IQ score is not considered to be a fixed number. Instead a
score represents a range or an approximation of a person’s
IQ.
(CR3:17). Appellant requested that the following two sentences be
added to that definition:
 IQ tests has [sic] a standard error of measurement
which is a reflection of the inherent imprecision of
the test itself.
 An IQ score of 70 is considered to represent a band
or zone of a score of 65 to 75.
(RR69:120). He argued that his additions would “fully develop and give
an accurate definition of [the] terminology[.]” (RR69:120). In support
of his argument, Appellant called Dr. McGarrahan who testified that
the proposed instruction was important as it informs the jury that there
is inherent error in the tests and that the “IQ itself is not a hard and
fast number.” (RR69:122). The State then questioned Dr. McGarrahan
as follows:
[State]: . . . Dr. McGarrahan, is the standard error of
measurement five points, plus or minus, for every IQ test?
[Dr. McGarrahan]: It is not. And that might not be exactly
accurate. The last part, to say a band zone or a score 65 to
75, it’s really not. It’s statistically based on each IQ score
283
and each IQ test. So we say approximately, plus or minus,
five points. But it’s not exact.
[State]: So some tests may have a standard error of
measurement of two-point something or three-point
something. It depends on the test that’s given, correct?
[Dr. McGarrahan]: It does. And it depends on - - like, we
have our verbal IQ or verbal comprehension versus our
performance reasoning, and those are different. Their
standard errors of measurement are different for each of
those.
(RR69:123). The State opposed Appellant’s proffered additions as they
would constitute a comment on the weight of the evidence. (RR69:125).
The trial court denied Appellant’s request. (RR69:125).
Applicable Law
The trial court has a duty to provide the jury with a written
charge, distinctly setting forth the law applicable to the case without
expressing any opinion as to the weight of the evidence, summing up
the testimony, discussing the facts, or using any argument that is
calculated to arouse the sympathy or excite the passions of the jury.
See Tex. Code Crim. Proc. Ann. art. 36.14 (West 2006).
284
Analysis
The trial court did not err in refusing Appellant’s request to
include his two proffered sentences in the punishment charge.
Contrary to the statements in Appellant’s brief, the first sentence,
which references the “standard error of measurement which is a
reflection of the inherent imprecision of the test itself[,]” does not define
sub-average general intellectual functioning. Instead, it is a comment
on the weight of the evidence; it recites that IQ tests are inherently
imprecise. See Tex. Code Crim. Proc. Ann. art. 36.14 (stating that the
court’s charge shall not express any opinion as to the weight of the
evidence). The trial court did not err in denying Appellant’s request to
include this sentence in the charge.
The second sentence, which references the “band or zone of a
score of 65 to 75” is inaccurate. Dr. McGarrahan testified that that
sentence “might not be exactly accurate.” (RR69:123). She stated, “to
say a band zone or a score 65 to 75, it’s really not. It’s statistically
based on each IQ score and each IQ test. So we say approximately, plus
or minus, five points. But it’s not exact.” (RR69:123). Given Dr.
285
McGarrahan’s testimony, the trial did not err in denying Appellant’s
request to include this sentence in the charge.
The trial court did not abuse its discretion in denying
Appellant’s requested instructions. At a minimum, the ruling 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 in denying
Appellant’s requested instructions, which the State does not concede,
Appellant has failed to show some harm. If there is error in the court’s
charge and that error was the subject of a timely objection in the trial
court, reversal is required if the error is calculated to injure the rights
of the defendant, which means only that there must be some harm as a
result of the error. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1985) (op. on reh’g). Whether the defendant suffered actual
harm is evaluated in light of the entire jury charge, the state of the
evidence, counsel’s arguments, and any other relevant information in
the record. See id.
With regard to the first sentence, as previously argued, it was a
comment on weight of the evidence. Regardless, that IQ scores are not
286
fixed numbers was already before the jury. Dr. McGarrahan testified
regarding the standard error of measurement, as did Dr. Price.
(RR66:29-30; RR69:33-34). Indeed, the fact that IQ scores do not
represent fixed numbers was undisputed. As to the second sentence,
Appellant cannot show harm since Dr. McGarrahan herself testified
that it may not be an accurate statement. (RR69:123).
Issue 50 should be overruled.
STATE’S RESPONSE TO ISSUE 51: THE TRIAL COURT DID NOT ERR IN
DENYING APPELLANT’S REQUEST THAT THE JURY BE ALLOWED TO ENTER
A NON-UNANIMOUS VERDICT REGARDING THE INTELLECTUAL DISABILITY
SPECIAL ISSUE.
Appellant contends that the trial court erred in denying his
request that the jury not be required to unanimously find the
intellectual disability special issue in his favor. Appellant’s contention
lacks merit.
Pertinent Facts
During the charge conference, Appellant requested the
following:
. . . where the Court is submitting and that the jury, to find
mental retardation, must agree unanimously, we are
requesting a civil burden be placed here. In the state of
287
Texas, a civil burden is a jury verdict of ten members of the
jury, as opposed to the twelve.
In other words, none is not unanimously to be found, and we
would ask that the Court adopt or adapt one of the - - like,
on page three, where it says in the middle of the page “you
may not answer either issue” we would request “. . . this
Special Issue yes, unless ten or more Members of the Jury
agree”. That that be applied, instead of a unanimously [sic]
burden.
(RR69:125-26). Appellant’s request was denied. (RR69:126).
The jury was instructed regarding the intellectual disability
special issue as follows:
You may not answer Special Issue No. 1 “yes” or “no” unless
the jury agrees unanimously. Members of the jury need not
agree on what particular evidence supports a “yes” answer
to Special Issue No. 1.
(CR3:19).
Analysis
On appeal, Appellant has failed to properly brief this issue. He
lists three cases and a statute, but he includes no argument showing
that he was entitled to the complained-of instruction. Tex. R. App. P.
38.1(i).
288
Regardless, Appellant’s argument lacks merit. Unlike the future
danger and mitigation special issues, the Texas Legislature has not
established a statutory scheme for the presentation and determination
of an issue of intellectual disability in a capital murder trial. See
Hunter v. State, 243 S.W.3d 664, 672 (Tex. Crim. App. 2007). In
Hunter, this Court overruled Hunter’s complaint that he was entitled to
a pre-trial determination of intellectual disability. Id. This Court
stated that, “In the absence of legislation or a constitutional
requirement directing when the determination of mental retardation is
to be made or by whom, the trial court committed no error in denying
[Hunter] a pretrial determination of mental retardation by a judge or
jury separate from that determining guilt.” Id. The same logic applies
here. Since there is no statutory scheme dictating the jury verdict
regarding intellectual disability, the trial court committed no error in
requiring that it be unanimous.
In his brief, Appellant cites three cases and a civil rule;
however, none provide authority in support of his argument that the
jury should have been allowed to answer the intellectual disability
special issue “yes” if only ten of the twelve jurors agreed. (Appellant’s
289
Brief p.144). Neither Briseno nor Gallo mandate Appellant’s proposed
instruction. Briseno, 135 S.W.3d 1; Gallo v. State, 239 S.W.3d 757 (Tex.
Crim. App. 2007). The opinion in Williams v. State contains a footnote,
which recites that jurors were instructed to answer the intellectual
disability special issue “yes” if at least ten jurors found that he proved
by a preponderance of the evidence that he was intellectually disabled.
270 S.W.3d 112, 134 fn.30 (Tex. Crim. App. 2008). The opinion does not
address whether that instruction was required or whether it was even
proper. Id. Rule 292 of the Texas Rules of Civil Procedure provides
that a jury may render a verdict “by the concurrence . . . of the same ten
or more members of an original jury of twelve[.]” Tex. R. Civ. Proc.
Ann. 292. Appellant points to no authority showing that Rule 292
applies to a jury determination of intellectual disability in a capital
murder case.
In any event, even if this Court concludes that the trial court
erred in denying Appellant’s proposed instruction, which the State does
not concede, any alleged error was harmless. In this case, the jury was
unanimous; the jury unanimously found that Appellant failed to prove
by a preponderance of the evidence that he was intellectually disabled.
290
Issue 51 should be overruled.
STATE’S RESPONSE TO ISSUE 52: THE TRIAL COURT DID NOT ERR IN
DENYING APPELLANT’S REQUEST FOR AN ACCOMPLICE WITNESS
INSTRUCTION.
Appellant contends that the trial court erred in failing to include
an accomplice witness instruction in the instant punishment charge.
Appellant’s contention lacks merit.
Pertinent Facts
During the charge conference, Appellant requested “that the jury
be instructed that Lonnie Thomas was an accomplice witness[.]”
(RR69:126-27; DX25). Appellant offered the following instruction:
You are instructed that Lonnie Thomas was an accomplice
and you cannot consider his testimony unless you first
believe that his testimony is true and shows the guilt of the
defendant as charged by the indictment, and then you
cannot consider his testimony unless the accomplice
witness’ testimony is corroborated by other evidence tending
to connect the defendant with the offense charged, and the
corroboration is not sufficient if it merely shows the
commission of the offense, but it must tend to connect the
defendant with its commission.
(DX25). In response, the State argued that an accomplice instruction
would be appropriate for a guilt-or-innocence charge, but not a
punishment charge. (RR69:127). The State pointed out that the
291
existing charge already instructed the jury to determine the credibility
of each witness, which would necessarily include Lonnie. (RR69:127).
Anything further would be a comment on the weight of the evidence.
(RR69:127). Appellant’s request for an instruction was denied.
(RR69:127).
Applicable Law
Article 38.14 of the Texas Code of Criminal Procedure provides
as follows:
A conviction cannot be had upon the testimony of an
accomplice unless corroborated by other evidence tending to
connect the defendant with the offense committed; and the
corroboration is not sufficient if it merely shows the
commission of the offense.
Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005).
Analysis
Appellant has failed to properly brief this issue. Indeed, his
briefing regarding this issue consists of only two sentences.
(Appellant’s Brief pp.144-45). This Court is not required to make
Appellant’s case for him. Garcia, 887 S.W.2d at 882.
Moreover, Appellant points to no authority in support of his
contention that he was entitled to an accomplice-witness-instruction
292
during the punishment phase of trial. Appellant cites one case, Zamora
v. State, 411 S.W.3d 504 (Tex. Crim. App. 2013).36 This case concerns
the use of an accomplice-witness-instruction during the guilt/innocence
phase of trial. Id. at 507-08. Appellant does not cite – and the State
cannot locate – any authority requiring such an instruction in the
punishment charge.
Issue 52 should be overruled.
STATE’S RESPONSE TO ISSUE 53: THE TRIAL COURT DID NOT ERR IN
DENYING APPELLANT’S REQUEST FOR AN ANTI-PARTIES INSTRUCTION IN
THE CHARGE.
Appellant contends that the trial court erred in denying his
request for an anti-parties instruction in the jury charge. Appellant’s
contention lacks merit.
Pertinent Facts
Appellant requested that the trial court include the following
instruction in the charge:
You are further instructed that at this phase of the trial
only the conduct of the Defendant can be considered in
determining the answers to the special issues submitted to
you.
36In fact, Applicant cites to Zamosa v. State, 41 S.W.3d 504 (Tex. Crim. App. 2013).
There is no case by that name at that cite. The State believes this is a clerical error.
293
(RR69:128).
Applicable Law
Where a law of parties charge is given during the
guilt/innocence phase of a capital case, a prophylactic instruction should
be given, if requested, which would instruct the jury to limit its
consideration of punishment evidence to conduct shown to have been
committed by the defendant. Belyeu v. State, 791 S.W.2d 66, 72-73
(Tex. Crim. App. 1989). This is referred to as an “anti-parties” charge.
See Martinez v. State, 899 S.W.2d 655, 657 (Tex. Crim. App. 1994).
However, a blanket rule that each time a charge on the law of parties is
given at the guilt/innocence stage of a capital murder case an “anti-
parties” charge must be given on request at the punishment stage (or
charge error results) is inappropriate. See id. at 73.
Analysis
Appellant has failed to properly brief this issue. Although he
cites three cases, he fails to set forth any specific argument or
discussion of the authority in support of his contention. (Appellant’s
Brief p.144). This Court is not required to make Appellant’s case for
him. Garcia, 887 S.W.2d at 882.
294
Regardless, Appellant’s argument fails. The trial court did not
err in denying Appellant’s request for an anti-parties charge. Contrary
to the statements in Appellant’s brief, a parties instruction was not
included in the original guilt/innocence charge. The jury was instructed
that Lonnie Thomas was an accomplice, however, there was no
instruction regarding Appellant’s criminal responsibility as a party.
Because there was no parties instruction in the guilt/innocence charge,
Appellant was not entitled to one in the instant punishment charge.
Issue 53 should be overruled.
STATE’S RESPONSE TO ISSUE 54: THE TRIAL COURT DID NOT ERR IN
DENYING APPELLANT’S REQUEST FOR A SECOND COMPETENCY HEARING.
Appellant contends that the trial court erred in denying his
request for a second competency hearing. Appellant’s contention lacks
merit.
Pertinent Facts
On July 9, 2014, the jury found Appellant competent to stand
trial. (RR59:7).
Trial on the merits began on July 10, 2014. (RR60). At the
conclusion of testimony on July 15, defense counsel requested the
opportunity for he and Appellant to put some things on the record, ex
295
parte. (RR63:204-05). During that ex parte hearing, Appellant
appeared to offer to “accept signing any document, endorsing any
paperwork needed,” so that he could go home, having already served 27
years for this offense. (RR63:209-10). The trial court informed
Appellant that even if counsel filed a Motion for Time Served, he “would
have to deny it. Because the State has the . . . right to make the
election how they wish to proceed in this type of case. And if they wish
to proceed and pursue the death penalty, then the Court cannot, on its
own, prevent them from doing so.” (RR63:211).
The following morning, before Appellant was brought into the
courtroom, he completely undressed himself then smeared feces on his
face and upper chest. (RR64:4; DX4-5). In a hearing in chambers,
defense counsel stated:
. . . We were in court getting ready to proceed in trial when
the bailiffs alerted us that Mr. Thomas was back in his cell
and undressed and covered in feces.
They allowed me to go back to the holding cell to speak to
him. I asked him if he would get dressed and clean himself
up, and he said he was fine the way he was. I asked him
was he refusing to come into court, and he said, no; that he
was ready to come into the courtroom, but that’s the way he
was going to enter.
296
(RR64:3). Counsel took photographs of Appellant with his phone and
showed them to the trial court “to support our position again that there
has been a material change in his competency, and we would ask the
Court to consider that at this time when deciding whether to make an
inquiry.” (RR64:5-6; DX4-5). Counsel advised of her intent to file an
Amended Motion for Competency Evaluation and Hearing. (RR64:5).
The trial court stated that the defense could file their motion and he
would take it under advisement. (RR64:6). The judge stated, however,
that he believed that Appellant was “just playing games and trying to
delay this proceeding.” (RR64:6).
Appellant agreed to take a shower and clean himself and then
return to court. (RR64:10-11). He requested to see his “psych doctor at
the jail.” (RR64:11). Testimony resumed that afternoon. (RR65:8).
Appellant elected to remain in the holdover during testimony.
(RR65:8).
On July 23, 2014, defense counsel filed “Under Seal Defendant’s
Second Notice of Incompetence to Stand Trial.” (CR-S:24). In the
motion, counsel alleged that “[s]ubsequent to the jury determination on
July 9, 2014 that the Defendant was competent to stand trial there has
297
been a marked and material decline in the Defendant’s competency[.]”
(CR-S:24). Counsel requested that the trial court again inquire into
Appellant’s competency to stand trial. In support of the motion,
counsel attached an affidavit wherein she averred that Appellant’s
condition had worsened; he has persistent delusions; he did not
understand that his innocence is not at issue in the trial proceedings; on
July 16, 2014, Appellant “had a breakdown, removing all his clothes in
the holdover and smearing excrement on his face and chest.” (CR-S:24).
After closing arguments but before the verdict, defense counsel
“ask[ed] the court consider our Motion and make its ruling.” (RR70:81).
The motion was denied. (RR70:81). Counsel re-urged the motion after
the verdict, but prior to sentencing. (RR70:84). The motion was denied.
(RR70:84).
Applicable Law
A defendant is presumed competent to stand trial. Tex. Code
Crim. Proc. Ann. art. 46B.003(b). A defendant is incompetent to stand
trial if he lacks: (1) sufficient present ability to consult with his lawyer
with a reasonable degree of rational understanding; or (2) a rational as
well as factual understanding of the proceedings against him. See Tex.
298
Code Crim. Proc. Ann. art. 46B.003(a). Should a formal competency
trial result in a finding of competency, the trial court is not obliged to
revisit the issue later absent a material change of circumstances
suggesting that the defendant's mental status has deteriorated. Turner
v. State, 422 S.W.3d 676, 693 (Tex. Crim. App. 2013).
Analysis
The trial court did not err in denying Appellant’s request for a
second competency determination because Appellant failed to prove a
material change of circumstances since the previous determination of
competency. Appellant’s competence was determined by a jury on July
9th. A week later, on July 16th, when trial on the merits was well
underway, Appellant undressed and smeared feces on his face and
chest. In a hearing in chambers, the judge stated:
For the record, the Court engaged in a conversation with
the Defendant after the end of testimony yesterday and,
based on that conversation, the Court is going to proceed
with the trial.
The Court is of the opinion that the Defendant is just
playing games and trying to delay this proceeding.
(RR64:6). This exchange was the informal inquiry into Appellant’s
competency. It is clear from the judge’s comment, however, that he did
299
not believe that evidence existed to support a finding of incompetency.
A trial court's first-hand factual assessment of a defendant's
competency is entitled to great deference on appeal. Ross v. State, 133
S.W.3d 618, 627 (Tex. Crim. App. 2004).
In any event, the trial court invited the defense to file a motion,
which the judge would take under advisement. (RR64:4). Defense
counsel did not file the instant motion until seven days later, on July
23rd, when the parties delivered their closing arguments. (CR-S:24).
Although the motion alleges that Appellant has suffered “a marked and
material decline in Defendant’s competency[,]” no evidence was
presented to prove that there had been a material change in
circumstances in connection with Appellant’s mental status. In the
affidavit attached to the motion, counsel described that Appellant
suffers from delusions. But, this evidence was presented and rejected
at the July 7th competency trial. (RR57:177-80, 182, 185). Counsel also
alleged that Appellant “persists in demanding that we put on a defense
to his guilt.” (CR-S:24). Evidence on this subject was also presented at
the competency trial. Dr. McGarrahan testified at length regarding
Appellant’s belief that he cannot be convicted if the State fails to
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introduce the murder weapon. (RR57:175-77). She testified that
Appellant believes that State’s witnesses are working behind the scenes
to ensure his conviction. (RR57:177). She testified that Appellant’s
“perceptions and his beliefs are not based in reality.” (RR57:179). “He
believes that if only his attorneys . . . could file the right motion, he
could walk out the door.” (RR57:181). The competency jury heard this
information and rejected it. (RR59:7).
The affidavit also described the July 16th feces incident.
However, beyond the mere fact of the incident itself, no evidence was
presented to suggest that in the days between the jury’s determination
of competency, the feces incident and informal inquiry, and the filing of
the motion, that Appellant had suffered a material change of
circumstances suggesting that his mental status has deteriorated.
Beyond the mere fact of the incident itself, no evidence was presented to
suggest that Appellant lacked sufficient present ability to consult with
his lawyers with a reasonable degree of rational understanding or that
he lacked a rational as well as a factual understanding of the
proceedings. See Tex. Code Crim. Proc. Ann. art. 46B.003(a). Indeed,
the affidavit merely recites that after the incident, Appellant “seemed
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dazed [and] largely non-responsive to [counsel’s] questions and
explanations.” (CR-S:24). The next day, Appellant “was cheerful and
had returned to his delusive state.” (CR-S:24). There is no mention of
any additional information suggesting a deterioration in Appellant’s
mental status.
While it is true that Appellant’s decision to smear feces on his
face and upper chest was shocking and repellant, it was not necessarily
an act demonstrating incompetency. Johnson v. State, 429 S.W.3d 13,
18 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (stating that “[b]izarre,
obscene, or disruptive comments by a defendant during court
proceedings do not necessarily constitute evidence supporting a finding
of incompetency”). Instead, it was an act intended to cause disruption.
From the very beginning of the trial proceedings, Appellant engaged in
behavior calculated to disrupt those proceedings. At the beginning of
voir dire, Appellant sought to voluntarily absent himself. (RR12:10-11).
He told counsel that if he was brought into the courtroom that he would
fight the guards. (RR11:6). On July 12th, Appellant told one of his
lawyers that “The three of us need to work together to stop the trial[.]”
(CR-S:24). Three days later (the day before the feces incident), during
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testimony by State’s witness Turner, Appellant stood up and tried to
walk out of the courtroom into the holdover. (RR63:163). At the end of
that day, during the ex parte hearing described above, Appellant told
the judge that he had “asked Mr. Carlos [sic] to stop the jury several
times.” (RR63:210). The following morning, Appellant smeared feces
on himself.
The feces incident was not the act of a man suffering a material
deterioration in his mental status; it was the well-devised strategy of a
man trying to derail his capital murder trial. It is worth noting the
bailiff’s description of the incident:
When we did roll call, [Appellant] was in his cell and he was
dressed out at that time. When we had went to get him for
court, he was totally nude and he had feces wiped across his
entire face and also his chest. His clothes were folded up
and put to the side. There was no feces on the walls or floor
or anywhere inside the cell. It was just on hisself [sic].
(RR64:9). Indeed, the photographs reflect that Appellant smeared the
feces on his face very carefully, deliberately avoiding his eyes, nose, and
mouth. (RR72:15, 17; DX4-5). Afterward, he took the time to wash his
hands as there appears to be no feces on his hands. (RR72:15, 17; DX4-
5). That Appellant was able to talk to his attorney and agree to clean
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himself and return to court shows that he was able to communicate
with counsel. Given the foregoing, it is clear that the trial court did not
abuse its discretion in denying Appellant’s motion for a third inquiry
into his competency. At a minimum, it falls within the zone of
reasonable disagreement.
Issue 54 should be overruled.
STATE’S RESPONSE TO ISSUE NO. 55: APPELLANT’S CLAIM THAT THE
EVIDENCE IS INSUFFICIENT TO SUPPORT HIS CONVICTION FOR CAPITAL
MURDER PRESENTS NOTHING FOR THIS COURT’S REVIEW.
Appellant contends that the evidence is insufficient to support his
conviction for capital murder. In particular, he points to the fact that
the murder weapon was never found and entered into evidence.
Applicable Law
On an appeal of a retrial on punishment only, an appellant may
not allege any error that transpired during the guilt-innocence phase of
trial. See Easton v. State, 920 S.W.2d 747, 749 (Tex. App.—Houston
[1st Dist.] 1996, pet. ref’d). The appeal is entirely limited to issues
pertaining to the retrial on punishment. See Sanders v. State, 832
S.W.2d 719, 723-24 (Tex. App.—Austin 1992, no pet.).
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Analysis
On August 25, 2010, this Court vacated Appellant’s sentence and
remanded the case to the trial court for a new punishment hearing. See
Ex parte Thomas, No. AP-76,405, 2010 Tex. Crim. App. Unpub. LEXIS
452, at *6 (Tex. Crim. App. Aug. 25, 2010) (not designated for
publication). Because he was retried as to punishment only, Appellant’s
appeal is limited to issues pertaining to that punishment retrial. See
Sanders, 832 S.W.2d at 723-24. Appellant’s current complaint
regarding the sufficiency of the evidence to support his conviction for
capital murder, however, relates to the guilt/innocence phase of trial.
Appellant has failed to present an issue appropriate for this Court’s
review.
Issue 55 should be overruled.
STATE’S RESPONSE TO ISSUE NOS. 56-67: THE TRIAL COURT PROPERLY
DENIED APPELLANT’S CHALLENGES TO THE DEATH PENALTY STATUTE.
In Issues 56 through 67, 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
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issues not to cause unnecessary litigation but to preserve the issues for
federal court review. (Appellant’s Brief p.151).
In Issue 56, Appellant contends the statute under which he was
sentenced to death violates the Eighth Amendment by allowing the jury
too much discretion in determining who should live and who should die
and results in the arbitrary and capricious imposition of the death
penalty. (Appellant’s Brief p.152).
In Issue 57, 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 Brief
p.152).
In Issue 58, Appellant contends the trial court erred in denying
his motion to hold that Article 37.0711, §§ 2(e) and (f) violates Article I,
§§ 10 and 13 of the Texas Constitution.37 (Appellant’s Brief p.153).
37 The State presumes that Appellant’s citation to Tex. Code Crim. Proc. Ann. art.
37.071 is actually a citation to Tex. Code Crim. Proc. Ann. art. 37.0711, §§ 3(e) and
(f) (West Supp. 2015).
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In Issue 59, 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 Brief p.154).
In Issue 60, 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 Brief p.154).
In Issue 61, 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 Brief p.155).
In Issue 62, Appellant contends that the trial court erred in
overruling his motion to hold Art. 37.071, §§ 2(e) and (f)
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unconstitutional because it fails to require the jury to give meaningful
consideration to mitigating evidence. 38 (Appellant’s Brief p.156).
In Issue 63, 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. (Appellant’s Brief
p.156).
In Issue 64, 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 Brief p.157).
In Issue 65, Appellant contends that Texas’ statutory capital
sentencing scheme is unconstitutional under the Eighth and Fourteenth
Amendments because it lacks meaningful appellate review.
(Appellant’s Brief pp.157-58).
In Issue 66, Appellant contends that the trial court erred in
overruling his pre-trial motions which raised various constitutional
38 The State presumes that Appellant’s citation to Tex. Code Crim. Proc. Ann. art.
37.071 is actually a citation to Tex. Code Crim. Proc. Ann. art. 37.0711, §§ 3(e) and
(f).
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challenges to the Texas capital murder punishment scheme.
(Appellant’s Brief pp.158-59).
In Issue 67, 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. (Appellant’s Brief pp.159-60).
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 151, 158; 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 56 through 67.
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PRAYER
The State prays that this Honorable Court will affirm the
judgment of the trial court.
Respectfully submitted,
Susan Hawk Christine Womble
Criminal District Attorney Assistant District Attorney
Messina Madson State Bar No. 24035991
First Assistant Frank Crowley Courts Bldg
Criminal District Attorney 133 N. Riverfront Blvd., LB-19
Dallas County, Texas Dallas, Texas 75207-4399
(214) 653-3625
(214) 653-3643 fax
CWomble@dallascounty.org
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CERTIFICATE OF COMPLIANCE
I hereby certify that there are 57,838 words in this document,
excluding the caption, statement regarding oral argument, table of
contents, index of authorities, statement of the case, statement of
issues presented, signature, certificate of service, and certificate of
compliance. This number exceeds the maximum allowable number of
words provided in Tex. R. App. P. 9.4(i)(2)(A). The State is filing a
Motion to Exceed the Word Count contemporaneously with this brief.
_____________________
Christine Womble
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing brief was served
on John Tatum, attorney for Appellant, 990 South Sherman Street,
Richardson, Texas, 75081, by email and by United States mail, on
September 16, 2016.
Christine Womble
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