Blanton, Reginald W. ( 2004 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. 74,214

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REGINALD BLANTON, Appellant

v.

THE STATE OF TEXAS

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ON DIRECT APPEAL FROM BEXAR COUNTY

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PRICE, J., delivered the opinion for a unanimous Court.  

O P I N I O N

A Bexar County jury convicted the appellant, Reginald Blanton, of killing Carlos Garza while in the course of robbing him or burglarizing his home. ⁽¹⁾ Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, Sections 2(b) and 2(e), the trial judge sentenced the appellant to death. ⁽²⁾ Direct appeal to this Court is automatic. The appellant raises six points of error challenging his conviction and sentence. He claims that the evidence is legally and factually insufficient. He also claims that the trial court erred in (1) overruling his Batson ⁽³⁾ objections, (2) failing to include lesser-included offense instructions in the jury charge, (3) allowing the State to improperly impeach two witnesses, and (4) overruling the appellant's objection to the State's argument that attacked the appellant over the shoulders of counsel. We reject each of his contentions and affirm the trial court's judgment.

I. Facts

The evidence at trial showed that Garza was murdered at his residence in the Stepping Stone Apartments in San Antonio, Texas, on April 9, 2000. Patricia Romano, who lived across the hall from Garza, testified that she heard a loud banging noise about three or four weeks prior to the murder. She went outside on her balcony and saw the appellant banging on Garza's door. When she told the appellant that Garza was obviously not coming to the door, the appellant angrily replied, "Shut up, bitch, get back in your house."

On the day that Garza was killed, Romano returned to the apartment complex after running an errand with her daughter and saw Garza sitting with a young Hispanic girl at a picnic table near the pool. She went inside her apartment and when she came back outside about an hour later, Garza and the girl were gone. Romano was picking up trash near the laundry room when a Hispanic man named Ralph Vidal and an African-American man named Joseph Anderson approached her. Vidal asked her if she had seen Garza and she replied that she had seen him earlier. Vidal told her that, when they returned from the store, they noticed that Garza's door was open and that frame was splintered. He thought someone might have broken into Garza's apartment, and he asked Romano to call the police.

Romano went upstairs to take a closer look at the door. She saw that the lock was engaged and the door frame was splintered as though it had been kicked open. The stereo blared, and all of the cushions had been pulled off the couch in the living room as if someone had ransacked the apartment. She went to her apartment and called the apartment manager, who told her to call the police. The apartment manager arrived about fifteen minutes later and went into the entryway of Garza's apartment with Romano's husband. From there, they saw a body lying on the floor. Romano's husband believed that it was Garza, and he saw that part of his leg was still moving.

Ernest Borroel, Jr., lived in the apartment beneath Garza's apartment. At around 5:00 or 5:30 p.m. on the day of the murder Borroel heard a noise as if something had fallen or had been tipped over upstairs in Garza's apartment.

When San Antonio Police Department (SAPD) Officer Richard Odoms arrived at Garza's apartment, he saw that the door jamb was destroyed, the door frame was lying on the floor, the dead bolt was sticking out, and there was a footprint on the door as if someone had kicked it in. Odoms saw Garza lying unconscious in the hallway with what looked like a bullet wound to his forehead. Odoms heard Garza make a "gurgling type sound," like "somebody snoring." He saw two spent bullet casings on the floor: one by Garza's feet and another by his head. Garza's stereo was blaring and a pager kept going off.

Paramedic Michael Rodriguez arrived at Garza's apartment at about 6:30 p.m. He saw that Garza was bleeding from two gunshot wounds to his face. He noticed that Garza was still breathing and had a pulse. Garza's breathing was irregular, and he made a "gurgling" sound. His pulse stopped on the way to the hospital. Bexar County Chief Medical Examiner Robert Bux testified that Garza suffered two gunshot wounds to his head, one to the left front scalp area and one to his cheek. The gunshot wound to his scalp was fatal.

Two days later, SAPD Officer Ricky Lopez and his partner were dispatched to the appellant's father's home on a disturbance call. The appellant's twin brother, Robert Blanton, and Blanton's girlfriend, LaToya Mayberry, ⁽⁴⁾ were arguing outside. Mayberry initially gave Lopez a false name, but her brother told the officer her real name. Lopez discovered that Mayberry had active municipal court warrants. Lopez's partner placed Mayberry under arrest. Lopez's partner then placed Mayberry in handcuffs and put her into the patrol car.

While Mayberry sat in the patrol car, she told Lopez that she had information about a murder that had occurred a few days before at the Stepping Stone Apartments. She also told Detective Rocky Dyer that the appellant and Blanton were involved in the homicide, that she heard the appellant brag about it, and that they went back to the scene shortly after the shooting. Mayberry was transported to the police station for formal questioning.

Detective Raymond Roberts interviewed Mayberry and took her statement. Roberts testified that he told Mayberry that she did not have to talk about the murder. She said she wanted to tell him what happened because it was upsetting her. He explained Mayberry's rights to her before the interview began, and she indicated that she understood her rights. He never threatened her or told her that she would be arrested for capital murder if she did not give a statement.

In her statement, Mayberry said that Blanton drove the appellant in her grandmother's car to the Stepping Stone Apartments, where Garza lived. She went along with the brothers. They went to the third floor and knocked on the door of Garza's apartment. No one answered the door, and Blanton told Mayberry to go back downstairs and wait in the car. She heard Blanton tell the appellant, "Let's go," and when she heard the appellant say, "No[,] cuz, don't go," she knew that "something was going to go down." She believed that Blanton stayed with the appellant because he was scared of him.

While Mayberry was sitting in the car, she heard "two loud booms," and she "knew that it had to be them kicking in the door to Garza's apartment." She heard "two more booms." She said that she knew right away that they were gunshots because she had heard gunshots before. She then saw Blanton running toward the car, and his eyes "were real big like he was scared." He was "breathing real fast and hard" and got into the car and started the engine. He did not answer her when she asked him what happened. The appellant jumped in the car as Blanton was driving away. In his hands, the appellant had a small blue box and some jewelry, including a gold herringbone necklace and a broken gold rope necklace. The appellant was also wearing a gold lion's-head ring with two ruby eyes and a diamond in its mouth that Mayberry had not seen before.

As they were leaving, the appellant took a silver gun out of his pocket and told Mayberry that it was a ".380." He also said, "Fuck, I left a bullet in the house," and told Blanton he wanted to go back to the apartment so he could get his "dope." Blanton refused to drive back. Instead, Blanton drove them to a friend's apartment where they stayed for about twenty minutes.

Blanton then drove them back to the Stepping Stone Apartments. Blanton and Mayberry waited in the car while the appellant went inside. When the appellant came back he was laughing and said, "That mother fucker's in there snoring, I thought I was going to have to do that mother fucker again." The appellant also said he "turned everything over in the apartment" and took one hundred dollars.

The appellant then made Blanton drive to a pawn shop. On the way there, the appellant asked Mayberry if she thought the rubies in the lion's-head ring were real. They arrived at the pawn shop at about 5:50 p.m. The appellant pawned the two necklaces and a "Jesus charm."

After they left the pawn shop, Blanton drove them to Adkins, Texas. While they were riding in the car, the appellant was laughing and bragging about shooting Garza. He said, "I peeled that mother fucker's head back, you see how he just dropped in the corner." He said that he kicked in the door and that it looked like Garza had just gotten out of the shower. When Garza asked the appellant what was going on, he told Garza to "brake himself," which means "It's a robbery, give me all your shit." When Garza said, "No," the appellant shot him. When Garza fell down, the appellant shot him again in the head.

Blanton drove the appellant back to his girlfriend's apartment at about 8:00 or 8:30 p.m. Mayberry and Blanton went to get something to eat and then returned home about 9:30 p.m. They heard about a burglary and murder that night on the news. Mayberry asked Blanton what had happened. Blanton told her that the door was kicked in, Garza came around the corner and asked what they were doing, and the appellant shot him. He said that the appellant looked around the apartment for drugs, but could not find any. Then he shot Garza again. Blanton said that "[Garza] was just laying there snoring." After Roberts typed Mayberry's statement, he gave her an opportunity to read it and make corrections. She indicated that she was satisfied with her statement and signed it in front of two witnesses.

After Mayberry signed her statement, she and Roberts called Blanton. Roberts asked him to come down to the station to talk to them and that he was not under arrest. Blanton was reluctant to speak with Roberts at first. After viewing Garza's autopsy photographs and talking to Mayberry alone for a few minutes, however, Blanton gave a statement.

In his statement, Blanton said that he drove the appellant and Mayberry to Garza's apartment complex. They knocked on the door, and when no one answered, he and Mayberry started to leave. The appellant told him to stay. Mayberry went back to the car. He sat down on the steps while the appellant continued to knock on the door. Then he heard a loud noise "like somebody hit something pretty hard." He followed the appellant into the apartment and heard the appellant and Garza arguing in the back room. He heard a gunshot and ran out of the apartment. As he was running down the stairs, he heard another gunshot. He got into the car with Mayberry, then the appellant came walking out of the complex and got into the car. Blanton asked the appellant what happened, and he replied, "Don't worry about it."

From there, Blanton drove to the appellant's apartment, and they stayed there for about five minutes. Blanton then drove them to the apartment complex next door to the Stepping Stone Apartments and parked the car. The appellant walked back to the Stepping Stone Apartments and returned to the car about five minutes later.

Blanton drove them to a pawn shop, where Blanton and Mayberry stayed in the car while the appellant went inside. ⁽⁵⁾ When he got back into the car, the appellant said that he had pawned his jewelry. Blanton drove the appellant back to his apartment, and then Blanton and Mayberry returned home. Blanton found out from the Sunday night news that Garza was dead. He never saw the appellant with a gun, and he did not know what he did with the gun.

After he completed his statement, Roberts gave Blanton an opportunity to review it. Blanton reviewed the statement and signed it.

During the trial, Mayberry testified that the statement that she made to the police was not true. She denied that she approached police with information about a capital murder. She testified that she gave her statement because the police accused her of being in the apartment, stated that they had witnesses implicating her and Blanton, and told her that she would be charged with capital murder if she did not give a statement. When asked about the first two "loud booms" she said she heard while waiting in the car, she denied knowing that it was Blanton and the appellant kicking in the door to Garza's apartment. She testified that children were outside playing with rocks and sticks, and she said that all the noises sounded the same. When asked about the second set of "booms" that she heard, she testified that she did not know if they were gunshots because she had heard gunshots before only on television. She denied telling police that Blanton stayed upstairs with the appellant because he was scared of him. She denied saying that Blanton's eyes were big and that he appeared to be afraid when he returned to the car. On the first day of her trial testimony, Mayberry stated that when they left the apartment complex she saw that the appellant had something "shiny" that looked like a gun, and that she asked him what it was and he told her it was either a ".380" or a ".38." On the second day of her trial testimony, she stated that she never saw the appellant with a gun and that she lied the day before when she testified that she had.

Mayberry also denied telling police that the appellant said that he "left a bullet in the house." She denied that the appellant wanted to go back to Garza's apartment to get some "dope," that the appellant said he "turned everything over in the apartment" and took one hundred dollars, and that the appellant stated, "I thought I was going to have to do that mother fucker again." She denied that the appellant was laughing and bragging about shooting Garza and that he said, "I peeled that mother fucker's head back."

Mayberry clarified at trial that the appellant had been wearing a gold religious pendant in addition to the lion's-head ring, a gold herringbone necklace, and a gold "broke rope" necklace. She said that the appellant often carried a blue box in which he kept his pencils. She also testified at trial that when they left the Stepping Stone Apartments the first time, she noticed a black male and a Hispanic male walking down the street towards the grocery store. When they later returned to the Stepping Stone, she noticed the same two men walking back from the store.

Blanton denied certain portions of his statement when he testified during the appellant's trial. He confirmed that they went to Garza's apartment and to the pawn shop, but he said, "The part that's not correct is when they interject things about [Garza's] death." He testified that he told Mayberry to go back to the car because it was hot outside and she "had a little attitude," and said that he and the appellant came down to the car at the same time about a minute later. He denied seeing the appellant enter the apartment and hearing gunshots. He confirmed that the appellant later returned to Garza's apartment and came back to the car about five minutes later, but testified that the appellant told them when he returned to the car that Garza was still not home. He denied telling police that he found out that Garza was dead when he watched the Sunday night news. He testified that the only reason he signed the statement was so that the police would let him and Mayberry go home.

Blanton also testified that he never saw a blue box in the appellant's hands. He had seen the appellant wearing a gold lion's-head ring prior to the day of the murder. He did not see the jewelry that the appellant intended to pawn until they arrived at the pawn shop. He thought that the appellant must have had the jewelry in his pocket.

Garza's girlfriend Debra Estrada testified that she was with him at the apartment complex on the day of the murder. Estrada saw Garza wearing a gold chain with a religious pendant, a couple of rings including a lion ring with ruby eyes, and a gold nugget bracelet. She identified these items as the same items that the police had obtained from the pawn shop where the appellant pawned jewelry after the killing.

Estrada testified that, on the afternoon of the murder, she and Garza had been sitting outside at a picnic table waiting for her friends to pick her up when an African-American man later identified as Anderson and a Hispanic man later identified as Vidal came by to talk to Garza. Garza told them about an incident the day before when he pulled a knife on someone at the Poteet Strawberry Festival. Anderson asked Garza what he would do if someone ever pulled a gun on him. The men were teasing each other at first, but then Anderson started getting aggravated with Garza and looked like he was going to take a swing at him. The men talked about getting together later to smoke marijuana. Then she and Garza got up from the table and left. Garza went to the laundry room, and Estrada left the apartment complex when her friend arrived to pick her up.

Vidal and Anderson testified that they had talked with Garza and his girlfriend at the picnic table that afternoon. They had agreed to meet up with Garza later to smoke marijuana. Garza said he was going up to his apartment to change clothes, and Vidal and Anderson walked to the store to buy cigars and beer.

When they returned, they saw from their position downstairs that Garza's door was slightly open. They whistled for Garza to come downstairs, but he did not respond. Vidal walked back a bit so he could get a better view of the door, and he saw the dead bolts sticking out and broken wood. They went to Vidal's apartment where Vidal paged Garza. Garza did not call, however.

They went back outside, saw Romano picking up trash, and asked her to take a look inside Garza's apartment.

Vidal further testified that he had seen Garza wearing a necklace with a religious pendant many times. He also testified that the appellant used to hang out at the apartment complex with Garza and other friends. Two or three weeks prior to the murder, Garza had flaunted his money in front of the appellant and his brother. The appellant had said, "You keep pulling out money, somebody's going to jack you."

Garza's wife, Yvonne, from whom he had been separated, testified that the last time she saw Garza was on April 6, 2000, when he came to her apartment to visit their son. He had called her on April 9 at 2:00 a.m. and said he was coming to visit their son that day. She paged him around 4:45 or 5:00 p.m., and he did not return her page. He never showed up, and a friend who came to her home on Sunday evening told her that he had been killed.

Yvonne testified that she bought and gave Garza a ten-karat gold nugget bracelet from Treasures jewelry store on February 3, 2000. She also bought Garza a herringbone chain from Piercing Pagoda on February 3. On February 16, she bought and gave Garza a ten-karat gold lion ring. She testified that Garza often wore a Jesus and Mary pendant on a gold rope chain that was broken and held together with wire.

Yvonne also testified that Garza had a lockbox in his apartment where he kept items of value. About a week after Garza's death, she cleaned out his apartment and noticed that the lock was missing from the lockbox. The gold rope necklace with the religious pendant, the herringbone necklace, the lion's-head ring, and the nugget bracelet were also missing from the apartment. Garza was wearing all of this jewelry, except for the herringbone chain, when she last saw him on April 6. She testified that she had never known Garza to lend his jewelry to friends. However, upon viewing photographs of the appellant, Garza, and other friends taken prior to Garza's death, she acknowledged that the appellant was wearing jewelry similar to Garza's religious pendant and gold nugget bracelet.

Henry Esparza, Jr., an employee at Hollywood Video, testified that movies were rented on Blanton's account at 4:43 p.m. on April 9, 2000. Brian Collins, the assistant manager at EZ Pawn, testified that the appellant pawned a gold herringbone chain, a gold rope necklace with a broken chain, and a religious pendant for eighty-five dollars at 6:00 p.m. on April 9. Collins noticed that the appellant was wearing a lion's-head ring with rubies in its eyes and a diamond in its mouth, but he did not pawn it. While the appellant was inside the store, Collins observed a black man and a black woman outside the shop. The woman seemed upset and was pacing back and forth and the man was talking to her and trying to calm her down. At trial, Mayberry denied that she was upset while waiting outside the pawn shop.

Alkeshia Hoyle testified that she and the appellant were living together at the time of the offense. The appellant's brother and his brother's girlfriend were coming to visit him when she left the apartment on April 9. The appellant paged her from their apartment sometime between 6:00 p.m. and 7:00 p.m. He was at the apartment when she arrived home at about 10:00 p.m. She observed him wearing a gold nugget bracelet and an "animal ring" with red rubies that she had not seen him wearing before. When the appellant was arrested at their apartment on April 13, he was wearing a gold nugget bracelet and a lion's-head ring with ruby eyes and a diamond in its mouth.

The State introduced several jewelry receipts at trial, including a receipt from Piercing Pagoda for a twenty-two-inch gold rope chain; a layaway pick-up receipt from Piercing Pagoda for a gold herringbone necklace dated February 3, 2000; a receipt from Treasures for a ten-karat gold nugget bracelet dated February 3, 2000, under the customer name "Yvonne;" and another receipt from Treasures for a ten-karat gold lion ring dated February 16, 2000, also under the customer name "Yvonne."

Physical evidence included three footprints on Garza's door which appeared to have been made by a tennis shoe. SAPD Detective Myron Oberheu measured one of the footprints at approximately twelve inches. He measured the appellant's foot in court at twelve and one-fourth inches. Two spent shell casings and one bullet were recovered from Garza's apartment. The shell casings were ".380 auto caliber." They were two different brands but appeared to have been fired from the same firearm. The bullet was consistent with ".380 auto caliber."

State's witness Frank Trujillo testified that he used to work at the front desk of the West Point Inn in San Antonio and he was familiar with the appellant because he had come to the motel on a couple of occasions asking for a room. Trujillo was not sure of the exact date, but, a few days before April 13, 2000, the appellant asked for a room at the motel. He also asked Trujillo if he wanted to buy a gun. When Trujillo asked him why, he said, "I had to smoke a nigger." Trujillo noticed that the appellant was wearing a ring with "a tiger or lion with red eyes."

Trujillo was arrested on a parole warrant on April 13 and was in jail at the same time as the appellant. While in jail, the appellant told him that he, his brother, and his brother's girlfriend went over to some guy's house to "jack him" for drugs and he kicked the door in and shot the guy. He talked about taking some jewelry and said he was on camera at the pawn shop trying to pawn the jewelry.

Defense witness Ronald Marshall testified that he was friends with both Garza and the appellant. Marshall testified that he was wearing Garza's gold chain and religious pendant in a photograph that was recovered from Garza's apartment. Garza and the appellant were also in the photograph that Marshall believed was taken in February or March of 2000. Marshall testified that Garza originally owned the pendant, but he had given it to the appellant. The appellant let Marshall wear the pendant in the picture and he gave it back to the appellant afterwards. While wearing the pendant, he observed that the links in the chain of the necklace were broken and held together by wire.

Marshall had never seen the appellant wearing the lion's-head ring. Marshall was present when Garza got into an altercation at the strawberry festival the day before his murder. At that time, Garza was wearing the gold nugget bracelet, but he was not wearing the lion's-head ring or religious pendant.

II. Legal Sufficiency of the Evidence

In his third point of error, the appellant challenges the legal sufficiency of the evidence of guilt. ⁽⁶⁾ In order to convict the appellant of capital murder, the charge required the jury to find beyond a reasonable doubt that the appellant intentionally committed murder in the course of committing or attempting to commit robbery or burglary. The appellant specifically alleges that the State failed to prove that he committed the underlying offenses.

In evaluating the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. ⁽⁷⁾ When the trial court's charge authorized the jury to convict on alternative theories, as it did in this case, the verdict of guilt will be upheld if the evidence was sufficient on any one of the theories. ⁽⁸⁾  

A person commits the offense of robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens

or places another in fear of imminent bodily injury or death. ⁽⁹⁾ Theft is defined as the unlawful appropriation of property with the intent to deprive the owner of the property. ⁽¹⁰⁾

The appellant argues that the State failed to prove that he robbed Garza, pointing out that the jewelry at issue was common and there was a possibility that Garza gave him the jewelry. Mayberry testified that when the appellant came back to their car on their first trip to the Stepping Stone Apartments, he was wearing a gold herringbone necklace, a gold "broke rope" necklace, a gold religious pendant, and a gold lion's-head ring with rubies in its eyes and a diamond in its mouth. Mayberry had not seen the appellant wearing the lion's-head ring before. Hoyle testified that when she saw the appellant at 10:00 p.m. on April 9, he was wearing a gold nugget bracelet and an "animal ring" with red rubies that she had not seen him wearing before. Marshall testified that he had not seen the appellant wearing a lion's-head ring before. A Treasures jewelry store employee testified that the placement of the stones in the lion's-head ring was distinctive. Also distinctive was the fact that the gold rope necklace was broken and held together with wire.

The appellant also contends that no witnesses "could place the allegedly stolen jewelry on [Garza] on the day of his death." However, Estrada testified that she was with Garza at the apartment complex on the day of the murder and he was wearing a gold chain with a religious pendant, a lion ring with ruby eyes, and a gold nugget bracelet. Garza was not wearing any jewelry when the police and paramedics arrived at his apartment. The appellant pawned a gold herringbone chain, a gold rope necklace with a broken chain, and a religious pendant that evening. The appellant was wearing a gold nugget bracelet and a lion's-head ring when he was arrested on April 13. The jewelry was missing when Yvonne cleaned out Garza's apartment a week after his death.

Trujillo testified that the appellant told him he took some jewelry from the "guy" he shot. The evidence also showed that the appellant took money from Garza. Mayberry told police in her statement that the appellant said he took one hundred dollars when he returned to Garza's apartment. ⁽¹¹⁾

The evidence, viewed in the light most favorable to the verdict, established that the appellant intentionally killed Garza while in the course of entering Garza's apartment, without Garza's consent, with the intent to commit theft. Based on the evidence at trial, a rational jury could have concluded beyond a reasonable doubt that the appellant intentionally committed murder in the course of committing burglary. ⁽¹²⁾ We overrule the appellant's third point of error.

III. Factual Sufficiency of the Evidence

In his fourth point of error, the appellant generally challenges the factual sufficiency of the evidence during the guilt phase of the trial. In a factual sufficiency review, we view all the evidence in a neutral light and set aside the verdict only if (1) the evidence was too weak to support a finding of guilt beyond a reasonable doubt or (2) if the contrary evidence was so strong that the evidence in favor of the verdict could not have established guilt beyond a reasonable doubt. ⁽¹³⁾

The evidence adduced during the guilt phase of the trial is outlined above. The evidence established that the appellant kicked in the door of Garza's apartment with the intent to commit a theft, shot Garza twice, and stole Garza's jewelry. The evidence that supports this conclusion includes (1) the statements that Mayberry and Blanton gave to police, ⁽¹⁴⁾ (2) the testimony that Garza had been wearing his jewelry just before the murder but was not wearing any jewelry when the paramedics found him, and (3) the testimony identifying the jewelry that the appellant pawned as Garza's jewelry. This evidence was not too weak to support the jury's verdict that he committed murder while in the course of burglary. ⁽¹⁵⁾

The evidence that undermines the verdict includes the trial testimony of Mayberry, Blanton, and Marshall. Mayberry and Blanton testified that Roberts threatened them with capital murder charges if they did not give a statement implicating the appellant. At trial they claimed that the appellant did not enter Garza's apartment and the appellant never said that he had entered the apartment. Blanton also claimed that he had seen the appellant with the lion ring before the day of the murder. Also, Marshall testified that he thought that Garza gave the appellant the gold rope necklace and religious pendant.

Marshall's testimony that Garza gave the gold rope necklace and religious pendant to the appellant had been bolstered by the photograph of the appellant wearing the necklace and pendant. But the testimony that Garza gave the necklace to the appellant instead of lending the necklace to the appellant was undermined by Estrada's testimony that Garza had been wearing this same necklace and pendant a short time before he was killed.

The jury was free to reject any part of or all the testimony of these witnesses. We cannot say that the evidence contrary to the verdict was so strong that the jury's verdict was clearly wrong or unjust. ⁽¹⁶⁾ We overrule the appellant's fourth point of error.

IV. Batson Claims

In his first point of error, the appellant contends that the trial court erred in overruling his Batson objections to the State's peremptory challenges of prospective jurors Michelle Johnson and Ann Henderson. ⁽¹⁷⁾ A defendant objecting under Batson must make a prima facie showing of racial discrimination in the State's exercise of its peremptory strikes. ⁽¹⁸⁾ The burden then shifts to the State to articulate race-neutral explanations for its strikes. ⁽¹⁹⁾ Once the prosecutor has articulated race-neutral explanations, the burden shifts back to the defendant to show that the explanations are really a pretext for discrimination. ⁽²⁰⁾ The trial court must then determine whether the defendant has carried his burden of proving discrimination. ⁽²¹⁾ The trial court's determination is accorded great deference and will not be overturned on appeal unless it is clearly erroneous. ⁽²²⁾

A. Johnson

The appellant objected to the State's peremptory strike against Johnson under Batson, the trial court made a finding that the appellant had made a prima facie case, and the State articulated the reasons for its strike. The prosecutor explained that she struck Johnson because she stated that the death penalty was against her religious beliefs, she was confused about the death penalty, she believed that capital punishment was appropriate only for premeditated cases, and she would hold the State to a higher standard of proof because "she would have to be convinced without any doubt whatsoever" in order to return a guilty verdict. The appellant argued in response that the questions that the prosecutor asked Johnson were not race-neutral and were specifically designed "to try to knock her off this jury." The trial court denied the Batson challenge.

The appellant engages in a comparative analysis on appeal to show that the State's reasons for striking Johnson were actually a pretext for discrimination. He compares the State's questioning of Johnson to its questioning of prospective jurors Karen Albert, Richard Rosas, Joe Ann Dobrick, Ada Bohlken, and Deborah Parker. All of these prospective jurors stated that they could return a verdict of death if warranted by the evidence and that they could follow the beyond a reasonable doubt standard of proof. In contrast, Johnson told the prosecutor that "God is the only one" who should be able to take someone's life and that in order to return a guilty verdict she would have to "believe entirely" "without any doubts whatsoever" that the person committed the crime.

The appellant claims that the prosecutor spent more time explaining the law and alleviating confusion with other prospective jurors. The State responds that it spent more time with prospective jurors who clearly said that they could return a verdict of death because these were people who would appear to make good jurors in a capital case.

The appellant also complains that Johnson was struck due to her views on premeditation, while Rosas, Dobrick, Bohlken, and Parker were not. None of these prospective jurors expressed that the death penalty should be reserved for only premeditated crimes, as Johnson did; instead, they said that premeditation might be a factor to consider in their decision-making process.

The appellant points out that, after questioning by defense counsel, Johnson stated that she could answer the questions to result in a death sentence based on the evidence, that she would not require premeditation, and that she would not hold the State to a higher burden than beyond a reasonable doubt. But the fact that a prospective juror vacillates about her ability to choose the death penalty, despite personal beliefs, is a valid and neutral reason to strike that person. ⁽²³⁾

B. Henderson

We next turn to the appellant's Batson challenge to the State's peremptory strike against Henderson. Without making a finding that the appellant had made a prima facie case, ⁽²⁴⁾ the trial court entertained the State's explanations for the strike. The prosecutor explained that she struck Henderson because Henderson admitted that she had a bias against the district attorney's office, she lied on her juror questionnaire about her prior arrests, her son had a lengthy criminal history, she stated that she could not sentence someone to death, she stated that "based on her job she would not be able to give his case her full attention," and she stated that she would have to be "convinced 100 percent" in order to convict a person of a crime. The trial court denied the appellant's Batson challenge.

The appellant claims that the trial court failed to perform a complete Batson analysis with regard to Henderson because it made no ultimate ruling on the third step of the Batson analysis. The appellant complains that the trial court stopped the analysis after determining that the State's proffered reasons were race-neutral. During the hearing, however, the appellant did not attempt to rebut the State's reasons for striking Henderson. The trial court's ruling was apparent from the context and is supported by the record. ⁽²⁵⁾

The appellant also argues that, upon further questioning by defense counsel, Henderson stated that she could put aside her personal beliefs about the death penalty and make a decision based on the evidence. Henderson's vacillation as to whether or not she could impose the death penalty despite her personal beliefs is a valid and neutral reason for a peremptory strike. ⁽²⁶⁾

The appellant says that one reason Henderson was struck was due to her son's criminal activities, while prospective juror Ada Bohlken was seated on the jury despite having a brother and a cousin with criminal histories. Bohlken said that her relatives were treated fairly and it would not be a factor in her thought process at all. Henderson, on the other hand, said that her son had not been treated fairly by the system and that she had a bias against the district attorney's office.

The appellant also complains that Henderson was struck due to her own criminal history, while prospective jurors Troy Hanson and Joy Carr were not. Henderson failed to disclose her prior arrests in her jury questionnaire; Hanson and Carr were forthcoming about their prior arrests and convictions.

The State's explanations for striking Johnson and Henderson were facially race-neutral and the record shows no evidence of pretext. The trial court did not abuse its discretion in denying the appellant's Batson challenges. We overrule the appellant's first point of error.

V. Lesser-Included Offense Instructions

The appellant asserts in his second point of error that the trial court erroneously refused to instruct the jury on the lesser-included offenses of murder, felony murder, criminal trespass, and criminal mischief. The appellant, however, requested that the trial court instruct the jury only on the lesser-included offense of murder. He failed to preserve the rest of his claim for appellate review because he did not request the trial court to instruct the jury on felony murder, criminal trespass, and criminal mischief, nor did he object to the omission of these issues from the charge. ⁽²⁷⁾

We use a two-pronged test to determine whether a defendant is entitled to an instruction on a lesser-included offense. ⁽²⁸⁾ The first step in our analysis is to determine if the lesser offense, murder, is included within the proof necessary to establish the offense charged, capital murder. ⁽²⁹⁾ Here, the first prong of the test has been satisfied because we have held that murder is a lesser-included offense of capital murder. ⁽³⁰⁾

The second step requires an evaluation of the evidence to determine whether there is some evidence that would permit a jury rationally to find that the defendant is guilty only of murder. ⁽³¹⁾ The evidence must establish murder as a valid rational alternative to capital murder. ⁽³²⁾ We are not concerned with whether this evidence is strong, credible, or uncontroverted. ⁽³³⁾ If some evidence exists, from whatever source, the appellant is entitled to the instruction upon request. ⁽³⁴⁾

The appellant argues that the murder was not committed in the course of another felony because the State failed to prove the underlying offenses of robbery or burglary. The appellant asserts that there was no evidence besides "speculation" that anything was taken from Garza's apartment. The appellant contends that the evidence instead shows that the jewelry, which was "not unique and could be purchased anywhere," actually belonged to the appellant.

We disagree with the appellant's claim that there was no evidence, besides speculation, that anything was taken from the apartment. As we discussed above, the evidence is both legally and factually sufficient to support the jury's verdict. The question is whether there is some evidence in the record from which a rational jury could conclude that, if the appellant was guilty, he was guilty only of murder.

We will review the evidence that tends to establish that the appellant did not commit burglary or robbery. Blanton testified that the appellant knocked on Garza's door but did not actually enter Garza's apartment. He also denied that the appellant bragged about having killed Garza. Blanton also said that he had seen the appellant wearing a lion's-head ring before the day of Garza's murder. Mayberry testified that the appellant knocked on Garza's door, but she did not see him enter the apartment. Marshall testified that Garza gave his gold rope chain and religious pendant to the appellant. Photographs introduced during the trial depicted the appellant wearing jewelry that was similar to Garza's religious pendant and gold nugget bracelet.

The evidence that suggests that the appellant did not commit burglary or robbery also suggests that the appellant did not commit murder. If the jury believed Blanton's and Mayberry's testimony, the appellant was guilty of nothing more than knocking on a friend's apartment door. If the jury believed Marshall, then the appellant merely accepted a gift from Garza. And the photographs do not show the appellant killing Garza. The record contains no evidence from which the jury could conclude that, if the appellant was guilty, he was guilty only of murder. We overrule the appellant's second point.

VI. Improper Impeachment

In the appellant's fifth point of error, he claims that the trial court allowed the State to improperly impeach Mayberry and Blanton by reading their statements to the jury in violation of Texas Rule of Evidence 613. ⁽³⁵⁾ The appellant specifically argues that "the State, though admonished by the trial court on several occasions to . . . comply, not only read the statements to the jury, but had the Detective who took the statements repeat the process." The appellant did not object on this basis when Roberts testified regarding Mayberry and Blanton's statements; thus, this portion of his claim was not preserved for appeal. ⁽³⁶⁾

Rule 613(a) permits a party to impeach a witness with a prior inconsistent statement. Before a witness may be impeached with a prior inconsistent statement, the witness must be told the contents of the statement and the time and place and the person to whom it was made, and must be afforded an opportunity to explain or deny such statement. ⁽³⁷⁾ If the witness denies making the contradictory statement, then it may be proved by the prior inconsistent statement. ⁽³⁸⁾ If the witness admits the prior inconsistent statement, however, the prior statement is not admissible. ⁽³⁹⁾ If the witness admits making the written statement but upon inquiry denies portions of the statement, then the portion that contradicts the witness may be proved for purposes of impeachment. ⁽⁴⁰⁾

Before questioning Mayberry about her statement to Roberts, the prosecutor showed her the statement and asked her if it was the statement that she gave to police on April 11, 2000. Mayberry acknowledged that it was her statement. Upon further questioning, however, Mayberry testified that the contents of the statement were not true, that Roberts was putting words in her mouth, and that she signed the statement only because she was told that she would be charged with capital murder if she did not do so.

Before questioning Blanton about his statement, the prosecutor showed him the statement and asked him if it was the statement he gave to Roberts on April 11, 2000, at 11:35 p.m. at 214 West Nueva. Blanton testified that the portions of his statement pertaining to Garza's murder were untrue, that the majority of his statement was based on what Roberts told him, and that he signed the statement only because he feared that he would be charged with capital murder and he wanted the police to let him and Mayberry go home.

The prosecutor did not read the statements to the jury as the appellant suggests during the cross-examination of Mayberry or Blanton. ⁽⁴¹⁾ Instead, the prosecutor questioned Mayberry and Blanton about their prior inconsistent statements for impeachment purposes, consistent with Rule 613. The trial court did not abuse its discretion. We overrule the appellant's fifth point of error.

VII. Jury Argument

In his sixth point of error, the appellant complains that the prosecutor improperly attacked him over the shoulders of defense counsel. He contends that the prosecutor's argument violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, §§ 9 and 10 of the Texas Constitution.

On the first day of trial, Mayberry testified that, after leaving Garza's apartment complex, she saw that the appellant had something "shiny" that looked like a gun and he told her it was either a ".380" or a ".38." The next day, defense counsel elicited from Mayberry that she spoke with him following the conclusion of the first day of trial. Mayberry changed her trial testimony and stated that she never saw the appellant with a gun and that she lied the day before when she testified that she had. During closing argument, the prosecutor referred to Mayberry's change in testimony and the following exchange occurred:

[PROSECUTOR]: [Mayberry] also said - - in her statement she told you that the first day while she was testifying on Monday that I glanced and I saw a gun. I glanced - - yes, I saw - - I glanced and I saw it. And I asked the Defendant what it was and he said it's either a .38 or a .380. Then she has the opportunity, she and [Blanton], to go visit with the defense attorneys and the next day, surprisingly enough, she gets on the witness stand.

[DEFENSE COUNSEL]: I'm going to object.

[PROSECUTOR]: And said I lied.

[DEFENSE COUNSEL]: We're entitled to talk to witnesses just like the State is. I mean I'm - - I've heard this over and over. There's nothing wrong with the defense attorneys talking to witnesses.

THE COURT: Overruled.

The prosecutor then continued her argument. The appellant complains only about the following statement:

[PROSECUTOR]: After visiting with the defense attorneys, the next day she comes in here and she says I didn't see a gun. I didn't see a gun. If it ain't here in black and white, Mayberry didn't say it. Well, you heard her, I asked her time after time. Three or four times about the gun on Monday and she told you she saw it.

The appellant argues that the prosecutor improperly attacked the appellant over the shoulders of defense counsel during this portion of her closing argument by implying that defense counsel manipulated Mayberry into changing her trial testimony. The appellant did not object to this portion of the prosecutor's argument, which is the sole basis for his challenge on appeal. The appellant objected to the prosecutor's prior statement, which he does not challenge here. As a result, his objection made during the trial does not comport with his complaint on appeal. The appellant has failed to preserve his complaint for our review. ⁽⁴²⁾ Point of error six is overruled.

VIII. Conclusion

Having found no reversible error in the record, we affirm the trial court's judgment.

Delivered: June 30, 2004.

Do Not Publish.

1. Tex. Pen. Code § 19.03(a).

2. Tex. Code Crim. Proc. Art. 37.071, § 2(g).

3. Batson v. Kentucky, 476 U.S. 79, 89 (1986).

4. By the time the appellant's trial began, Mayberry had married Robert Blanton. For purposes of this opinion, we will refer to Robert Blanton as Blanton and Latoya Mayberry as Mayberry.

5. The pawn shop video showed that Blanton and Mayberry were outside the car but not inside the store.

6. The appellant also contends that Section 19.02(a)(2) of the Texas Penal Code is unconstitutional as applied to him because the State "used the murder to transform the appellant's illegal entry of the habitation into a burglary and then used the same murder coupled with the burglary to establish the offense of capital murder." The appellant's claim is factually incorrect. The State charged the appellant with murder in the course of committing burglary with intent to commit theft. Even if such bootstrapping claims had not been rejected by this Court,

see Homan v. State, 19 S.W.3d 847, 849 (Tex. Crim. App. 2000), the appellant's claim would still fail.

7.

See Jackson v. Virginia, 443 U.S. 307, 319 (1979).

8.

Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999) (citing Rabbani v. State, 847 S.W.2d 555, 558-559 (Tex. Crim. App.1992)).

9. Tex. Pen. Code § 29.02.

10. Tex. Pen. Code § 31.03(a).

11. During Mayberry's testimony, portions of her statement came in only as impeachment evidence. During Roberts's testimony, however, the statement was read without objection. As a result, the statement was substantive evidence of guilt.

See Tex. R. Evid. 802 ("Hearsay is not admissible except as provided by statute or these rules or by other rules prescribed pursuant to statutory authority. Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay").

12.

Jackson, 443 U.S. at 319.

13.

Zuniga v. State, No. 539-02, slip op. at 14, 2004 Tex. Crim. App. LEXIS 668 (Tex. Crim. App., delivered April 21, 2004).

14. During Blanton's testimony, portions of his statement came in only as impeachment evidence. During Roberts's testimony, however, the statement was read without objection. As a result, the statements became substantive evidence of guilt.

See Tex. R. Evid. 802 ("Hearsay is not admissible except as provided by statute or these rules or by other rules prescribed pursuant to statutory authority. Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay").

15.

Ibid.

16.

See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).

17.

See Batson v. Kentucky, 476 U.S. 79, 89 (1986) (holding that "the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant") The appellant also argues in a footnote that the trial court erred in refusing "to conduct a Batson analysis with regard to the jury shuffle." The only legal authority he presents in support of this claim is a citation to a footnote to Ladd v. State, 3 S.W.3d 547 (Tex. Crim. App. 1999), in which we noted that one scholar argued in a law review article that Batson should extend to jury shuffles. Id., at 575 n.9. The appellant omitted the remainder of the footnote where we stated: "We wish to make it clear, however, that we do not endorse such a view." Ibid.

18.

See Herron v. State, 86 S.W.3d 621, 630 (Tex. Crim. App. 2002).

19.

Ibid.

20.

Ibid.

21.

Ibid.

22.

Ibid.

23.

Jasper v. State, 61 S.W.3d 413, 422 (Tex. Crim. App. 2001).

24. Once the responding party has offered a race-neutral explanation for the peremptory challenge and the trial court has ruled on the ultimate question of purposeful discrimination, the preliminary issue of whether the objecting party made a prima facie case becomes moot.

Malone v. State, 919 S.W.2d 410, 412 (Tex. Crim. App. 1996).

25.

See Simpson v. State, 119 S.W.3d 262, 268 (Tex. Crim. App. 2003).

26.

Jasper, 61 S.W.3d at 422.

27. Tex. Code Crim. Proc. Art. 36.14;

Posey v. State, 966 S.W.2d 57, 61 (Tex. Crim. App. 1998) (holding that the trial court has no duty to instruct sua sponte the jurors on defensive issues, even under Code of Criminal Procedure Article 36.19 and Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (op. on reh'g)).

28.

Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993).

29.

Ibid.

30.

Jones v. State, 833 S.W.2d 118, 127 (Tex. Crim. App. 1992).

31.

Rousseau, 855 S.W.2d at 672.

32.

Wesbrook v. State, 29 S.W.3d 103, 113-14 (Tex. Crim. App. 2000).

33.

Rousseau, 855 S.W.2d at 672.

34.

Ibid.

35. The appellant also claims the State's improper impeachment of Mayberry and Blanton violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, §§ 9 and 10 of the Texas Constitution. Because the appellant does not provide separate authority or argument for his constitutional claims, we decline to address them.

See Heitman v. State, 815 S.W.2d 681, 690-91 n.23 (Tex. Crim. App. 1991).

36. Tex. R. App. P. 33.1.

37. Tex. R. Evid. 613(a). The appellant argues that the State failed to establish "surprise" or "injury" before impeaching Mayberry and Blanton. This showing is no longer required. Tex. R. Evid. 607; Hughes v. State, 4 S.W.3d 1, 5 (Tex. Crim. App. 1999); Barley v. State, 906 S.W.2d 27, 40 n.11 (Tex. Crim. App. 1995) 607.

38. See McGary v. State, 750 S.W.2d 782, 786 (Tex. Crim. App. 1988).

39. Ibid.

40. Id. at 787.

41. Later in the trial, these statements were read to the jury without objection during Roberts's testimony.

42. Tex. R. App. P. 33.1.