Hall, Gabriel ( 2021 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-77,062
GABRIEL PAUL HALL, Appellant
v.
THE STATE OF TEXAS
ON DIRECT APPEAL FROM CAUSE NO. 11-06185-CRF-272
IN THE 272ND DISTRICT COURT
BRAZOS COUNTY
HERVEY, J., delivered the opinion of the Court.
OPINION
In September 2015, a jury convicted Appellant of the 2011 murder of Edwin
Shaar, Jr. in the course of committing or attempting to commit burglary. TEX. PENAL
CODE § 19.03(a)(2). Based on 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 court
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sentenced Appellant to death. See TEX. CODE CRIM. PROC. art. 37.071, § 2(g). 1 Direct
appeal to this Court is automatic. Art. 37.071, § 2(h).
Appellant raises fifteen points of error. After describing the facts of the offense
and the evidence presented at trial, we will begin our analysis by first disposing of point
of error seven, in which Appellant claims that the evidence was insufficient to support the
jury’s affirmative response to the future-dangerousness special issue. We will then
address Appellant’s remaining points of error. Because we conclude that Appellant’s
points of error are without merit, we will affirm the trial court’s judgment of conviction
and sentence of death.
I. BACKGROUND
A. Guilt Phase Evidence
On October 20, 2011, eighteen-year-old Appellant entered the garage of sixty-
eight-year-old Edwin Shaar, Jr. (“Ed”) and murdered him in a manner that even
Appellant describes in his brief as “extended, violent, and bloody.” Appellant stabbed Ed
multiple times, inflicting deep wounds to his face, neck, and upper back. Ed, who
suffered from Parkinson’s Disease, struggled to defend himself, sustaining additional
scrapes and bruises all over his body. Eventually, Appellant shot Ed point blank in the
forehead, killing him. After he shot Ed, Appellant entered Ed’s house and tried to shoot
Ed’s wheelchair-bound wife, Linda—but the gun jammed. So, as Linda frantically
1
Unless otherwise indicated, all subsequent citations in this opinion to “Articles” refer to
the Texas Code of Criminal Procedure and all subsequent citations to “Rules” refer to the Texas
Rules of Evidence.
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begged a 9-1-1 operator for help, Appellant moved behind Linda’s wheelchair and
slashed her throat. Afterwards, Appellant left the house without taking anything.
Police officers responding to Linda’s 9-1-1 call found her inside the house,
covered in blood, and struggling to breathe. On her way to the hospital, Linda was able
to describe her assailant as a “Hispanic or Asian” male dressed in camouflage and
wearing a hat. Ultimately, Linda survived the attack.
The police provided Linda’s description of her assailant to the news media, hoping
that someone might come forward with useful information. Within hours, a local
gardener told the police that Appellant, a Filipino high-school student whom he had
previously seen in the Shaars’ neighborhood, fit the description that Linda had given. A
classmate of Appellant’s informed the police that, around the time of the offense, he had
seen Appellant wearing a camouflage-style hat in a park near the Shaars’ house. The
classmate did not know Appellant’s name, but he was able to identify Appellant in their
school’s yearbook.
The police learned that Appellant was the adopted son of Wesley (“Wes”) and
Karen Hall. In the early morning hours of October 21, 2011, the police went to the Hall
residence, just five blocks from the crime scene, to speak with Appellant. When the
police arrived and asked to speak with Appellant, Appellant’s sister answered the door
and told them that her parents were not home, but she was able to reach Wes, a local
attorney, on his cellular phone. With Wes listening on speakerphone and Appellant
standing just outside the house, a police detective asked Appellant where he had been at
the time of the crime. Appellant replied that he had been “in the park jogging.” The
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detective asked to see the clothes that Appellant wore while jogging. Appellant produced
some freshly washed clothes that did not match the witnesses’ description of the
assailant’s clothing. The police left without arresting Appellant.
Later that day, Wes and Karen brought Appellant to the police station so that
Appellant could give a voluntary statement. Appellant agreed to let the police collect his
fingerprints. However, police discovered that Appellant had a superglue-like film on his
fingertips, preventing them from collecting useful fingerprints. Appellant attributed the
film to “a skin condition,” but the film came off when an officer wiped Appellant’s
fingertips with alcohol, and police were able to obtain his fingerprints.
Appellant began speaking with homicide detectives about Ed’s murder; Wes asked
the detectives to read Appellant his Miranda rights. See Miranda v. Arizona, 384 U.S.
436, 478–79 (1966). While Wes was still in the interview room, Appellant denied
murdering Ed or attacking Linda. Eventually, one of the detectives asked Appellant if he
would feel more comfortable speaking with them if Wes stepped out of the room.
Appellant said that he would. Wes agreed to step out.
Appellant then admitted that he was the person who had murdered Ed and
assaulted Linda. The Shaars were strangers to Appellant—he attacked them simply
because he “want[ed] to kill,” and the Shaars presented “a suitable target.” Appellant
told the detectives that he had “enjoyed” killing Ed, at one point claiming to have had a
“little smile on [his] face” as he did so. Appellant said that he “did not feel any emotion”
when he shot Ed in the head and that Linda’s pleas for Appellant to spare her life “did not
concern” him. At various points, Appellant claimed to have planned the attack for
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anywhere from six months to a year and a half. One of the detectives testified that,
during this confession, Appellant appeared “happy” to describe what he had done.
Appellant told the detectives that he put the murder weapons and clothes he wore
that day into a bag and threw the bag into a pond near the Shaars’ house. Investigators
were unable to find the bag after draining and searching the pond. Appellant eventually
admitted that he had hidden the weapons and clothing in the garage attic of another house
the Halls owned. When the police searched the attic, they found what one police witness
would later describe as a “go bag”—a bag containing “[e]verything you might need for a
rapid response to some sort of violent situation.” Among other things, this bag contained:
(1) a handgun later linked by forensic testing to ballistic evidence recovered at the crime
scene; (2) two knives later shown by DNA testing to have Ed’s and Linda’s DNA profiles
on them; (3) jeans and a long-sleeved shirt, both stained with what was later confirmed to
be Ed’s blood; and (4) a camouflage-style “jungle hat” later shown to have Ed’s DNA on
the outside and Appellant’s DNA on the sweatband. There was also evidence of a
homemade bomb in Appellant’s “go bag.”
Presented with the foregoing evidence, a Brazos County jury found Appellant
guilty of capital murder.
B. Punishment Phase Evidence
In the punishment phase, the State elicited testimony about the brutality of the
charged offense and the extent of Linda’s injuries. The State established that, during a
warrant-supported search of Appellant’s room, police investigators found various cutting
instruments (such as a knife, a machete, and a hacksaw) and drawings of knives. They
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also found a book about serial killers and some of Appellant’s handwritten notes. The
notes included a list of names that the State characterized as a “hit list”—a list of people
whom Appellant intended to kill.
In addition, the State presented evidence of Appellant’s behavior in the Brazos
County Detention Center while he was awaiting trial. Jail officials testified that, during a
February 2013 search of Appellant’s cell, they found a shank hidden in Appellant’s
mattress and two unauthorized razor blades wedged in the binding of a legal pad. A May
2013 search of Appellant’s cell uncovered more unauthorized razor blades hidden under a
corner of Appellant’s bunk.
Four current or former Brazos County Detention Center inmates testified to
statements that Appellant allegedly made while he was awaiting trial. One inmate
testified that, when Appellant described his attack on the Shaars, the inmate could hear
“arousal” in Appellant’s voice. This inmate also claimed that Appellant said that his
attack on the Shaars was simply “practice for his foster parents . . . [b]ecause he was
plotting to murder his foster parents.” Another inmate attributed to Appellant the
statement that he would “fucking kill someone” if he was sentenced to life in prison.
When this inmate asked Appellant who he intended to kill, Appellant responded, “That
old man that’s snoring underneath me, Bones.” A third inmate testified that he overheard
Appellant telling someone that he was going to “kill one of these guards” if he was
convicted. A fourth inmate testified that Appellant claimed to have intentionally dulled
the knife he used to attack the Shaars so that they would feel even more pain.
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The State also presented the jury with video footage showing Appellant interacting
with Comedy Central comedian Jeff Ross in February 2015. Ross was at the detention
center filming content for a television show. In the video, Ross, Appellant, and other
inmates can be seen and heard bantering about life in jail, Appellant’s appearance and
demeanor, and the death penalty and criminality in general.
Appellant’s punishment phase case was multifaceted. He presented testimony and
evidence from multiple witnesses about the squalid and impoverished conditions of his
early life in the Philippines and background information about his adoption and
relocation to the United States. He elicited testimony from a few of his high school
teachers and classmates that they perceived Appellant as a demure and polite but socially
awkward young man. Appellant depicted life in the Hall household as being marked by
constant beratement and psychological abuse, mostly coming from his adoptive mother,
Karen.
Another theme of Appellant’s punishment phase case was that Appellant was not a
future danger because he was a slightly built person with no other history of violence or
criminal behavior. Jail guards who supervised Appellant at the detention center testified
that Appellant was generally well behaved. Appellant presented evidence that, while he
was awaiting trial, he had earned an Official Certificate of High School Equivalency. A
former Texas prison administrator described the policies that Texas prisons have in place
for minimizing the risk of inmate violence.
Appellant presented extensive mental health testimony. A neuropsychologist who
administered a series of psychological tests to Appellant testified that she noticed
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“indications of . . . subtle organic . . . brain dysfunction” in Appellant’s test results.
Although this expert declined to diagnose Appellant with a mental illness, she said that,
based on the test results, she could not rule out diagnoses of schizophrenia, post-
traumatic stress disorder (PTSD), dissociative identity disorder, and depression. Another
expert, a psychologist, described the toll that traumatic events in Appellant’s life had
likely taken on his development. Yet another psychologist opined that Appellant suffered
from dissociative identity disorder, PTSD, and major depression. A psychiatrist testified
that Appellant suffered from “a neurodevelopmental disorder,” likely because of prenatal
exposure to alcohol and drugs, and that Appellant suffered from “a dissociative disorder,”
PTSD, and “a depressive disorder.” He also testified that, based on his review of imaging
done on Appellant’s brain, there was a “discrete area of harm, of lesser functioning” in
Appellant’s brain suggestive of “traumatic brain injury.”
In rebuttal, the State called two forensic psychologists to undermine the defense’s
suggestion that Appellant was severely mentally ill. One testified that Appellant’s
neuropsychological test results did not “suggest or support neuropsychological
impairment that we would see after a traumatic brain injury.” The other testified that,
based on his review of the relevant data, he “did not find any serious mental disease or
defect,” and he specifically disputed the defense experts’ diagnoses of PTSD, dissociative
identity disorder, and major depressive order. He also said that he found no evidence in
the relevant data that Appellant’s biological mother had consumed alcohol or drugs while
she was pregnant with Appellant.
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Ultimately, the jury found by its answers to the statutory special issues that: (1)
beyond a reasonable doubt, there was a probability that Appellant would commit criminal
acts of violence that would constitute a continuing threat to society; and (2) there were
insufficient mitigating circumstances to warrant a sentence other than death. See Art.
37.071, §§ 2(b)(1), (e)(1). Based on the jury’s answers to these issues, the trial court
sentenced Appellant to death.
II. EVIDENCE OF FUTURE DANGEROUSNESS
In point of error seven, Appellant contends that the evidence was legally
insufficient to support the jury’s finding that there is a probability that he would commit
criminal acts of violence constituting a continuing threat to society. See Art. 37.071, §
2(b)(1).
A jury may consider a variety of factors in determining whether a defendant will
pose a continuing threat to society. Martinez v. State, 327 S.W.3d 727, 730 (Tex. Crim.
App. 2010). Those factors include but are not limited to:
(1) the circumstances of the capital offense, including the defendant’s state
of mind and whether he or she was working alone or with other parties; (2)
the calculated nature of the defendant’s acts; (3) the forethought and
deliberateness exhibited by the crime’s execution; (4) the existence of a
prior criminal record; (5) the defendant’s age and personal circumstances at
the time of the offense; (6) whether the defendant was acting under duress
or the domination of another at the time of the commission of the crime; (7)
psychiatric evidence; and (8) character evidence.
Id. at n.4 (quoting Keeton v. State, 724 S.W.2d 58, 61 (Tex. Crim. App. 1987)). In
determining whether there was sufficient evidence to support the jury’s verdict on the
future-dangerousness special issue, we consider all the evidence at the jury’s disposal,
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including evidence adduced at the guilt phase of trial, and view it “in the light most
favorable to the jury’s finding.” Id. at 730. Then, with the factors listed above and any
other relevant considerations in mind, we determine whether “a rational jury could have
found beyond a reasonable doubt that the answer to the future-dangerousness issue was
‘yes.’” Id.In this case, viewed in the light most favorable to the jury’s verdict, the facts of the
underlying capital murder support the jury’s determination that Appellant represents a
continuing threat to society. See, e.g., Sonnier v. State, 913 S.W.2d 511, 517 (Tex. Crim.
App. 1995) (“[T]he circumstances of the offense and the facts surrounding it may
furnish . . . probative evidence . . . regarding the probability of future acts of violence.”).
By his own admission, Appellant brutally stabbed then shot a complete stranger to death,
not out of self-defense or because he was under any form of duress, but simply because
he wanted to. See Devoe v. State, 354 S.W.3d 457, 462 (Tex. Crim. App. 2011) (juries
may consider “the calculated nature of the defendant’s acts”); King v. State, 953 S.W.2d
266, 272 (Tex. Crim. App. 1997) (“Murder by its very nature is brutal, but we have
recognized that a stabbing death is particularly brutal.”). Further, in the same transaction
in which Appellant murdered a particularly vulnerable citizen, he attempted to murder
another such person, this one a wheelchair-bound woman, by slashing her throat. See
Williams v. State, 270 S.W.3d 112, 138 (Tex. Crim. App. 2008) (reasoning that evidence
that the appellant had “broke[n] into the home of and viciously attacked and murdered”
an elderly woman supported a finding of future dangerousness). There was evidence that
Appellant planned this offense for months and took steps to avoid getting caught. See
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Sonnier, 913 S.W.2d at 517 (“[E]vidence of a murder committed with calculation,
deliberation, or premeditation is evidence of future dangerousness.”).
Fellow jail inmates testified that Appellant made statements to them indicating a
lack of remorse for his attack on the Shaars. See Heiselbetz v. State, 906 S.W.2d 500,
507 (Tex. Crim. App. 1995) (reasoning that evidence of “callousness and lack of
remorse” can support a finding of future dangerousness). The same sources testified that
Appellant had expressed a willingness to kill again, with one of his potential victims
being an elderly inmate, the other being a guard. Appellant suggests that this jailhouse
witness testimony was inherently unreliable. See infra Points of Error 4, 5. But, in the
punishment phase, the credibility and weight to assign to that testimony was the jury’s
decision to make, and we cannot say that any rational factfinder would have rejected it
out of hand. See Sonnier, 913 S.W.2d at 517 (“[T]he weight given to particular evidence
is within an individual juror’s prerogative and not an appropriate consideration in
reviewing the sufficiency of evidence [to support a finding of future dangerousness].”).
Even without that testimony, the jury could rationally consider Appellant’s possession of
razors and a shank while incarcerated to be indicative of future dangerousness. See
Alvarado v. State, 912 S.W.2d 199, 209 (Tex. Crim. App. 1995) (“[P]ossession of
weapons while incarcerated . . . constitute[s] evidence of future dangerousness.”).
Appellant, citing our opinion in Berry v. State, argues that the proper inquiry is
whether the evidence proves beyond a reasonable doubt that he would pose a continuing
danger “in the actual circumstances in which [he] would be living”—i.e., prison. See
Berry v. State, 233 S.W.3d 847, 863 (Tex. Crim. App. 2007). In so doing, Appellant
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mischaracterizes the future-dangerousness special issue. “We have rejected such a
reading of Berry as being inconsistent with prior case law construing the future
dangerousness special issue to ask . . . whether a capital defendant would be dangerous
whether in or out of prison.” Lucio v. State, 351 S.W.3d 878, 903 (Tex. Crim. App.
2011) (emphasis added) (internal quotation marks omitted) (quoting Martinez, 327
S.W.3d at 735). With this proper inquiry in mind, and viewing all of the evidence in the
light most favorable to the jury’s verdict, we conclude that a rational jury could have
answered the future-dangerousness special issue in the affirmative. Point of error seven
is overruled.
III. THE COMEDY CENTRAL VIDEO
In points of error one, two, and three, Appellant argues that the trial court erred to
admit in the punishment phase of trial a video recording in which Comedy Central
comedian Jeff Ross is shown joking around with several inmates, including Appellant, in
the Brazos County Detention Center.
In early 2015, a producer for the cable television network Comedy Central
contacted the American Jail Association and asked whether there were any jails that
would be interested in allowing comedian Jeff Ross to film a comedy special in their
facilities. When this inquiry was forwarded to member jails, the Brazos County
Detention Center, where Appellant was being held while awaiting trial, informed the
producer that it would be interested in hosting the special. One Brazos County Detention
Center official testified that the jail’s interest in hosting the special was due to its
adherence to a school of thought called “Inmate Behavior Management.” Pursuant to that
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school of thought, the jail strove to offer incentives for “positive behavior
and . . . productive activities.”
In February 2015, Brazos County entered into a written agreement with Comedy
Central in which Brazos County gave Comedy Central permission to film a comedy
special inside the Brazos County Detention Center. Comedy Central agreed to
compensate Brazos County for “additional staffing money and extraordinary expenses”
related to the filming, but it did not otherwise agree to pay the county for the right to film
inside the jail. The written agreement authorized Comedy Central to “photograph or
record any inmate in the jail” who had signed a release form. The jail posted flyers
throughout its facilities advertising the show.
Ross and his crew filmed the special over the course of three days in late February
2015. For security purposes, they were accompanied by the jail’s quartermaster. As
relevant to these points of error, on February 26, 2015, Ross and his crew entered one of
the jail’s housing pods and mingled with the inmates. Eventually, they approached a
table where Appellant and some other inmates were sitting. Ross sat with the inmates
and proceeded to have a wide-ranging conversation with them. This conversation lasted
over seventeen minutes and was captured on video. 2 As detailed below, during this
conversation, Ross repeatedly mocked Appellant’s appearance and made crass jokes
2
Appellant signed a release form on February 26, 2015—the same day that he was
filmed speaking with Ross. On appeal, Appellant suggests that he did not sign the release form
until after he spoke with Ross. The State disputes this suggestion. Appellant does not allege any
error arising from the timing of his release-form signature, and our resolutions of points of error
one, two, and three do not depend on that timing.
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about his race. Appellant, meanwhile, made comments arguably evincing a lack of
remorse for having committed capital murder.
When the jail’s administrator learned that Ross had interacted with Appellant and
filmed the ensuing conversation, he contacted Comedy Central to request “that any
recording of any interaction with Mr. Hall be omitted from use in any future manner.”
He stated that Appellant’s case was “high-profile” and expressed a concern that “any use
of this material could have an adverse impact on the criminal proceedings.” The
administrator asked Comedy Central to furnish a digital copy of the conversation so that
“both the District Attorney and Mr. Hall’s Defense Attorney” could “make an
independent determination” as to whether “the discussion has an impact on the criminal
proceedings.” A few weeks later, the State subpoenaed the footage and Comedy Central
provided the State with an unedited copy. The State notified Appellant that it intended to
offer the unedited video as punishment phase evidence at Appellant’s trial.
Appellant filed a motion to suppress the video. He argued that, whether
intentionally or not, the State had created a situation in which one of its de facto agents
(Ross) was able to gather evidence against Appellant by speaking with him, post-
indictment, without his lawyer being present. Appellant presented evidence that, in
November 2011, his lawyers had sent a “no contact” letter to the Brazos County
Detention Center, directing the jail to “make no further contact . . . with [Appellant]”
without counsel’s “express written approval.” At a hearing on Appellant’s motion,
Appellant called the jail’s administrator as a witness and questioned him as to why he had
requested a copy of the footage. In giving his explanation, the administrator denied that
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he had requested the footage with the conscious objective of obtaining evidence against
Appellant. After considering arguments for and against Appellant’s motion to suppress,
the trial court denied it, expressly finding that: (1) there was no agreement between Ross
and the State for Ross to gather incriminating evidence; and (2) the reason the jail
administrator had requested a copy of the video was “to keep from disrupting the trial and
delaying the trial”—not “for purposes of gathering evidence.”
Appellant later lodged several relevance and Rule 403 based objections to the
video, both in its entirety and as to certain specific statements contained therein. As a
result of those objections, the trial court ordered extensive redactions. The redacted
video (hereinafter “Comedy Central video”) was admitted in the punishment phase of
Appellant’s trial and was just under nine minutes long.
A. Right to Counsel
In point of error one, Appellant argues that the State circumvented Appellant’s
Sixth Amendment right to counsel when the State, pursuant to a written agreement,
allowed Ross to enter the Brazos County Detention Center and elicit incriminating
statements from Appellant without his counsel being present.
In Massiah v. United States, 377 U.S. 201, 206 (1964), the Supreme Court held
that the Sixth Amendment prohibits the government from using a defendant’s “own
incriminating words” against him in a criminal proceeding if the government or one of its
agents “deliberately elicited” the incriminating statement without the defendant’s counsel
being present. We have described the Massiah inquiry as being “whether, after the Sixth
Amendment right to counsel has attached, the government . . . knowingly circumvented
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the defendant’s right to counsel by using an undisclosed government agent to deliberately
elicit incriminating information.” Rubalcado v. State, 424 S.W.3d 560, 570 (Tex. Crim.
App. 2014). Massiah thus applies “only if the person who elicited statements from the
defendant was a government agent.” Id. at 575.
Neither this Court nor the Supreme Court has ever articulated a comprehensive
test for determining “what makes an individual a government agent for Massiah
purposes.” See id. at 575–76. However, having previously surveyed the approaches of
various jurisdictions in making that determination, we have discerned “at least one
common principle: to qualify as a government agent, the informant must at least have
some sort of agreement with, or act under instructions from, a government official.”
Manns v. State, 122 S.W.3d 171, 183–84 (Tex. Crim. App. 2003). The agreement or
instruction need not necessarily involve a quid pro quo; it may be enough for the State to
make a “conscious decision to obtain the informant’s cooperation” and for the informant
to “consciously decide[] to provide that cooperation.” See Rubalcado, 424 S.W.3d at
575–76 (some brackets omitted). But if there was neither an agreement nor an instruction
from the government for the informant to obtain incriminating information, there was no
agency relationship for Massiah purposes. In reviewing a trial court’s resolution of this
issue, an appellate court should afford “almost total deference” to the trial court’s
determination of historical facts and mixed questions of law and fact that turn on an
evaluation of credibility and demeanor. Manns, 122 S.W.3d at 178 (citing Guzman v.
State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).
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In this case, the trial court expressly found that there was no agreement between
Ross and the State for Ross “to gather evidence.” Further, there is no evidence that the
State instructed or “encouraged” Ross to elicit incriminating information from any of the
inmates in the Brazos County Detention Center. Cf. Rubalcado, 424 S.W.3d at 576; State
v. Hernandez, 842 S.W.2d 306, 316 (Tex. App.—San Antonio 1992, pet. ref’d) (finding
no agency relationship between a news reporter who elicited incriminating statements
from the defendant in a phone interview and the jailer who facilitated the phone interview
because the reporter “was clearly acting on his own in eliciting statements from the
appellee”). Viewing the record with “the proper deference to the trial court’s ruling,” see
Manns, 122 S.W.3d at 189, we conclude that Ross was not acting as an agent of the State
when he spoke with Appellant at the Brazos County Detention Center.
Appellant responds that the lack of an express agreement between Ross and the
State for Ross to elicit incriminating is not dispositive because, as he puts it, “a Massiah
violation can occur even where the State specifically instructs its informant not to initiate
any conversation with or question a defendant regarding the offense.” Thus, Appellant
concludes, Massiah is implicated whenever the State knowingly “orchestrate[s] a
situation in which it was reasonably likely that the defendant . . . would make
incriminating statements in the absence of counsel” because “knowing exploitation by the
State of an opportunity to confront the accused without counsel being present is as much
a breach of the State’s obligation not to circumvent the right to the assistance of counsel
as is the intentional creation of such an opportunity.” Maine v. Moulton, 474 U.S. 159,
176 (1985).
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Appellant’s premise is correct. Massiah violations can occur even when the
government specifically instructs its informant not to broach a specific criminal offense
in any conversation with the accused. In United States v. Henry, the Supreme Court
found a Massiah violation where the federal government told a jailhouse informant to “be
alert to any statements made by the federal prisoners” but specifically instructed the
informant “not to initiate any conversation with” the defendant regarding the offense in
question. United States v. Henry, 447 U.S. 264, 266 (1980).
But Appellant’s conclusion does not follow. Henry does not undermine our
understanding that an agreement (or at least an instruction) to gather incriminating
evidence is an essential element of Massiah’s governmental agency requirement. First,
we discussed Henry and its facts in the very case in which we first recognized that
requirement. See Manns, 122 S.W.3d at 178–79 (discussing Henry). Second, we have
suggested that Henry was focused upon the “deliberate elicitation” prong of a Massiah
claim—not the agency prong. See id. at 179. Our precedent identifying this element of
Massiah agency (i.e., that there must be either an agreement or an instruction to gather
evidence) is not in tension with Henry’s expansive view of deliberate elicitation.
Based on the trial court’s record-supported finding that there was no “agreement
between the State and Jeff Ross” for Ross “to gather evidence,” as well as our own
independent review of the record, we conclude that Ross was not acting as an agent of the
State when he spoke with Appellant. That being the case, the manner in which the
Comedy Central video originated does not implicate Massiah. The trial court did not err
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to deny Appellant’s motion to suppress the Comedy Central video on Sixth Amendment
grounds. Point of error one is overruled.
B. Rules of Evidence 401, 402, and 403 3
In point of error two, Appellant argues that even if the Comedy Central video was
not subject to suppression on Sixth Amendment grounds, its contents were not relevant to
the issues facing the jury at the punishment stage. See TEX. R. EVID. 401, 402.
Alternatively, Appellant argues that any slight relevance the video might have had was
substantially outweighed by its capacity for unfair prejudice, confusing the issues, and
misleading the jury. See id. 403. Appellant thus contends that the trial court erred to
overrule his relevance and Rule 403 based objections to the Comedy Central video.
Under Rule 401, evidence is relevant if it has any tendency to make a “fact . . . of
consequence in determining the action” more or less probable than it would be without
the evidence. Evidence does not need to prove or disprove a particular fact by itself to be
relevant under this rule; it is sufficient if the evidence provides even a small nudge
toward proving or disproving a fact of consequence. Gonzalez v. State, 544 S.W.3d 363,
370 (Tex. Crim. App. 2018). But, if the evidence fails to meet this threshold standard, it
is inadmissible. See TEX. R. EVID. 402. A trial court’s ruling excluding evidence will be
upheld on appeal unless the trial court abused its discretion, Montgomery v. State, 810
3
Because this point of error makes two arguments for inadmissibility, grounded in
distinct rules of evidence, it is multifarious. See TEX. R. APP. P. 38.1. However, in the interest
of justice, we will address both of Appellant’s arguments.
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S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g), and a trial court abuses its
discretion only when its ruling is not within “the zone of reasonable disagreement.” Id.At trial, Appellant lodged relevancy and Rule 403 objections to specific statements
within the video and to the video as a whole. In this point of error, Appellant no longer
argues that specific parts of the video were inadmissible, nor does he segregate the
allegedly inadmissible statements from the admissible statements. See Willover v. State,
70 S.W.3d 841, 847 (Tex. Crim. App. 2002). Therefore, Appellant has forfeited that
argument. Appellant now argues only that the entire Comedy Central video lacks any
relevance to the statutory special issues because (1) most of the statements that it contains
were made by people other than Appellant, and (2) its “essential context” as an
entertainment product makes it impossible for a factfinder to draw any meaningful
inferences from the few statements Appellant did make.
Our independent review of the Comedy Central video reveals at least three
statements made by Appellant that have some relevance to the punishment-phase special
issues. First, during a conversation about the death penalty in Texas, Appellant makes a
comment that could lead a rational factfinder to conclude that Appellant viewed his crime
as a “petty” act:
ROSS: They have the death penalty in Texas. This is a
scary state.
OTHER INMATE: Yeah.
APPELLANT: Yeah.
OTHER INMATE: They’re not bashful about giving it out, either.
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APPELLANT: Yeah, they’ll, uh, they’ll hang you for the,
they’ll hang you for—well, they, they’ll
basically, screw you over, over the most, uh,
petty shit, so. 4
Later, Appellant makes a joke that a rational factfinder could interpret as Appellant
making light of his crime:
ROSS: . . . What are you in here for?
APPELLANT: Ah . . .
ROSS: Hacking somebody’s computer?
APPELLANT: Something like that, yes.
OTHER INMATE: “Hacking” being the operative word.
APPELLANT: Yeah. Yeah, used a machete on someone’s
screen, so.
Finally, shortly after this exchange, Appellant displays what a rational factfinder could
construe as a disregard for human life:
ROSS: He [pointing at Appellant] seems like a
[expletive] scary dude, I don’t know what it is,
man.
APPELLANT: Oh come on, I wouldn’t hurt a fly.
ROSS: What’s that?
APPELLANT: I wouldn’t hurt a fly.
4
Before trial, the State prepared and offered what it conceded was a “rough” transcript
of the unedited video. The trial court admitted this transcript solely for the purpose of litigating
Appellant’s motion to suppress and evidentiary objections. The quotations of the Comedy
Central video in our handling of this point of error are based on our own independent review of
the video—not the rough pretrial transcription.
Hall–22
ROSS: Really? What about a human?
APPELLANT: Eh, they’re annoying. We’ll leave ’em to their
own devices, so.
A rational factfinder could have found Appellant’s comments to be relevant to the future-
dangerousness special issue. See Ford v. State, 919 S.W.2d 107, 112 (Tex. Crim. App.
1996) (“Remorselessness and disregard for human life have been considered in
determining the sufficiency of the evidence to support a jury finding of [future
dangerousness].”).
Appellant argues that, given the context in which he uttered these statements (i.e.,
“in a highly artificial interaction, staged for entertainment purposes, [and] in response to
calculated provocation and encouragement”), no reasonable person would rely on them to
change his or her belief in the likelihood of a consequential fact. We disagree. A rational
factfinder viewing the Comedy Central video could conclude that Appellant appears
relatively relaxed and unguarded throughout—and that Appellant’s interactions with
Ross and the other inmates thus reflected his honest opinions. Furthermore, the jurors
were aware of the context in which Appellant made his remarks. Appellant’s argument
that the Comedy Central video was wholly irrelevant to the punishment-phase special
issues is without merit.
Of course, the Comedy Central video contains much more than just the statements
from Appellant outlined above. It contains statements from Appellant that are less
obviously relevant to the statutory special issues (e.g., the jury was permitted to watch a
portion of the video in which Appellant tells Ross a bizarre story about how he once wore
Hall–23
a cowboy hat to school). And it contains statements from Ross and other inmates that
were neither directed at Appellant nor made in response to something Appellant said
(e.g., at one point, Ross, speaking to no one in particular, opines that jail is
“like . . . summer camp. You get to hang out, have some laughs, talk about [sex]”). In
addition to arguing that the Comedy Central video was wholly irrelevant, Appellant
argues that its irrelevant and inflammatory portions so outweighed its few relevant
portions that the trial court should have excluded the entire exhibit under Rule 403.
Under Rule 403, a trial court “may exclude relevant evidence if 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.” When undertaking a Rule 403 analysis, a trial court must balance:
(1) the inherent probative force of the proffered item of evidence along with
(2) the proponent’s need for that evidence against (3) any tendency of the
evidence to suggest decision on an improper basis, (4) any tendency of the
evidence to confuse or distract the jury from the main issues, (5) any
tendency of the evidence to be given undue weight by a jury that has not
been equipped to evaluate the probative force of the evidence, and (6) the
likelihood that presentation of the evidence will consume an inordinate
amount of time or merely repeat evidence already admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). As with Rule
401, a trial court’s decision to admit evidence over a Rule 403 objection is reviewed for
an abuse of discretion. Montgomery, 810 S.W.2d at 391 (op. on reh’g).
Here again we note that Appellant does not argue that any discrete statement or set
of statements within the Comedy Central video should have been excised from the video
under a Rule 403 balancing test. Instead, he argues that, when certain inflammatory
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statements are included in the balance, a rational observer could only conclude that the
video’s probative value was substantially outweighed by the dangers it posed of “unfair
prejudice, confusing the issues, and misleading the jury.” Consequently, we must
determine whether the video’s cumulative probative value was so clearly outweighed by
its capacity for misuse that the trial court’s decision to admit the video constituted an
abuse of discretion.
We begin with the first two factors: (1) the inherent probative force of the Comedy
Central video and (2) the State’s need for it. See Gigliobianco, 210 S.W.3d at 641.
Appellant contends that because the Comedy Central video was made by a professional
comedian, purely for entertainment purposes, its probative value was slight. We
disagree. While a rational factfinder could regard the video’s origin and purpose as
reasons to afford it little probative weight, our review of the video does not lead us to
conclude that one would be bound to do so. Within the zone of reasonable disagreement,
the trial court could conclude that Appellant’s relaxed attitude around Ross signified a
willingness to be honest with him. Further, the court could reasonably conclude that,
when his guard was down, Appellant characterized his crime as a “petty” thing, on par
with damaging someone’s computer. The trial court could thus rationally regard the
video as uniquely and powerfully probative of Appellant’s character and perception of
the underlying capital murder. See Article 37.071, § 2(a)(1) (stating that a trial court in a
capital proceeding may deem the defendant’s character “relevant to sentence”);
Heiselbetz, 906 S.W.2d at 507 (observing that remorselessness can contribute to the
reasonableness of a jury’s conclusion that a person is a “continuing danger”). Further,
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within the zone of reasonable disagreement, the trial court could conclude that the jury
had no other way to observe Appellant’s unguarded demeanor in a confined setting. The
trial court could also rationally conclude that the uniqueness of this glimpse into
Appellant’s character and thoughts greatly increased the State’s need for it. We find that
each of these factors weighs in favor of admission.
We proceed to consider the next three factors in the Rule 403 analysis: (3) the
video’s tendency to suggest a decision on an improper basis; (4) the video’s tendency to
confuse or distract the jury from the main issues; and (5) the video’s tendency to be given
undue weight by the jury. See Gigliobianco, 210 S.W.3d at 641. Appellant argues that
these factors weigh in favor of exclusion for several reasons. First, the video contains a
number of Ross’s own unsolicited opinions about Appellant’s appearance and demeanor.
For instance, at various points in the video, Ross mocks Appellant’s haircut, criticizes
Appellant for appearing humorless, and opines that Appellant “seems like a [expletive]
scary dude.” Second, several of Ross’s comments denigrated Appellant’s race. For
instance, at one point, Ross refers to Appellant as “Slim Sushi”; at another point, he
compares Appellant to one of the characters from the film “Harold and Kumar.” Third,
according to Appellant, the video shows Ross making “hostile and dehumanizing
statements about inmates and confinement generally.” In addition to the “summer camp”
exchange outlined above, Appellant points to an exchange in which Ross suggests that
inmates tell so many lies that “they don’t know the difference [between lies and truth]
anymore.” Finally, the video contains statements from other inmates that Appellant
neither prompted nor voiced his support for. Appellant specifically directs our attention
Hall–26
to a portion of the video in which an inmate claims that he copes with the more
disagreeable aspects of jail life by remaining “heavily medicated.”
Many of Ross’s comments are disconcerting and pose the very risks that Rule 403
was designed to minimize. Even so, we cannot say that the trial court’s evaluation of this
evidence was outside the zone of reasonable disagreement.
As for the various statements that other inmates made, the trial court could
rationally conclude that, precisely because Appellant was not the one making them, there
was no great risk that the jury would unfairly attribute any of the sentiments expressed
therein to Appellant. Appellant openly agreed with some of the other inmates’ opinions
by saying “yeah,” laughing, or nodding along. Other times, Appellant did not indicate
agreement with something another inmate said. Because the jury was capable of
discerning for itself which statements Appellant signaled some level of agreement with,
the trial court could rationally conclude that the video’s inclusion of statements from
other inmates did not render it intolerably susceptible to misuse under the third, fourth,
and fifth Rule 403 factors.
That leaves only the final Rule 403 factor for us to consider: (6) the time needed to
develop and present the video and the likelihood that the video would “merely repeat
evidence already admitted.” See id. at 641–42. As we have already observed, the trial
court could rationally conclude that this evidence provided a unique glimpse into
Appellant’s unguarded demeanor in a confined setting and that the risk it would “merely
repeat evidence already admitted” was therefore nonexistent. Furthermore, the admitted
video was just under nine minutes long, and once its admissibility had been fully
Hall–27
litigated, the State needed to call only a single witness to lay the foundation for it. We
conclude that this factor weighs in favor of admission.
Balancing these factors, and bearing in mind that Rule 403 favors the admission of
relevant evidence over its exclusion, see Shuffield v. State, 189 S.W.3d 782, 787 (Tex.
Crim. App. 2006), we cannot say that the trial court abused its discretion in admitting the
Comedy Central video over Appellant’s Rule 403 objection. The trial court’s ruling that
the video’s overall probative value was not substantially outweighed by the danger of
unfair prejudice, confusing the issues, or misleading the jury was within the zone of
reasonable disagreement. See TEX. R. EVID. 403. Appellant’s argument that the Comedy
Central video should have been excluded under Rule 403 is without merit. Point of error
two is overruled.
C. Eighth Amendment and Due Process
In point of error three, Appellant argues that the trial court’s admission of the
Comedy Central video rendered the sentencing proceeding inherently unreliable in
violation of the Eighth Amendment, see Gardner v. Florida, 430 U.S. 349, 364 (1977)
(White, J., concurring), and “fundamentally unfair” in violation of due process. He also
argues that the video was demeaning of his “common human dignity,” in violation of the
Eighth Amendment. See Furman v. Georgia, 408 U.S. 238, 273 (1972) (Brennan, J.,
concurring).
To the extent that Appellant claims that admitting the Comedy Central video
rendered the sentencing proceeding inherently unreliable, his claim is inadequately
briefed. See TEX. R. APP. P. 38.1(i). Appellant cites Monge v. California, a noncapital
Hall–28
case, for the proposition that capital proceedings must “be policed at all stages by an
especially vigilant concern for procedural fairness and for the accuracy of factfinding.”
Monge v. California, 524 U.S. 721, 732 (1998). He cites Gardner, a capital case, for the
proposition that “any decision to impose the death sentence [must] be, and appear to be,
based on reason rather than caprice or emotion.” Gardner, 430 U.S. at 358. But he does
not explain how the trial court’s decision to admit the Comedy Central video was
contrary to either of these propositions. Nor does he otherwise cite any precedent to
support his assertion that admitting the video frustrated the Eighth Amendment’s
heightened reliability requirement. See, e.g., Woodson v. North Carolina, 428 U.S. 280,
305 (1976) (plurality op.). Any attempt on our part to gauge the video’s propriety under
that requirement would inevitably entail our making Appellant’s argument for him. We
decline to do so.
To the extent that Appellant asserts that the trial court’s decision to admit this
video “abridged the guarantee of fundamental fairness promised by the due process
clause,” his claim is likewise inadequately briefed. See TEX. R. APP. P. 38.1(i).
Appellant does not cite any legal authority in support of this contention. We will not
make Appellant’s argument for him.
Finally, to the extent that Appellant claims that the trial court’s ruling offended the
Eighth Amendment because “there is a terrible lack of dignity inherent in letting the
Comedy Central video play any role in determining Appellant’s fate,” Appellant failed to
preserve this claim for appellate review. See Darcy v. State, 488 S.W.3d 325, 329 (Tex.
Crim. App. 2016) (explaining that “we have generally treated errors in the admission of
Hall–29
evidence as being subject to procedural default, regardless of the constitutional right
involved”). At trial, Appellant objected on the ground that admitting the video would
“render[] the sentencing proceeding unreliable under the Eighth Amendment.” He did
not object on the ground that the video denigrated his basic human dignity. See TEX. R.
APP. P. 33.1(a)(1)(A). Point of error three is overruled.
IV. JAILHOUSE WITNESS CORROBORATION
In points of error four and five, Appellant argues that the trial court erred by
refusing to include in its punishment phase charge an instruction requiring the
corroboration of jailhouse witness testimony. In point of error four, Appellant cites
Article 38.075. In point of error five, Appellant invokes the Eighth Amendment principle
that in capital cases there is a heightened need for reliability in the determination that
death is the appropriate punishment. See, e.g., Woodson, 482 U.S. at 305; see also
Morris v. State, 940 S.W.3d 610, 615 (Tex. Crim. App. 1996).
At the trial’s punishment phase, the State elicited testimony from four witnesses
who were incarcerated in the Brazos County Detention Center for some of the time that
Appellant was there awaiting trial. Those witnesses attributed statements to Appellant
that the State would later use to argue that Appellant posed a continuing threat to society.
During the punishment phase charge conference, Appellant asked the trial court to
instruct the jury that “jailhouse snitch testimony . . . [is] to be corroborated by other
evidence or else it’s not to be considered.” Although he did not specifically recite an
article number, Appellant directed the court’s attention to “a State statute in Texas . . .
that talks about jailhouse snitch testimony.” He also argued that “the Due Process Clause
Hall–30
and the 8th Amendment” required the trial court to give his requested instruction. The
trial court denied Appellant’s request.
A. Article 38.075
Article 38.075(a) provides,
A defendant may not be convicted of an offense on the testimony of a
person to whom the defendant made a statement against the defendant’s
interest during a time when the person was imprisoned or confined in the
same correctional facility as the defendant unless the testimony is
corroborated by other evidence tending to connect the defendant with the
offense committed.
Art. 38.075(a). Despite the phrase, “may not be convicted of an offense,” Appellant
maintains that this statute applies even in the punishment phase of a criminal trial. Citing
Ex parte Evans, Appellant notes that this Court has sometimes “construed the term
‘conviction’ to mean a judgment of guilt and the assessment of punishment,” Ex parte
Evans, 964 S.W.2d 643, 647 (Tex. Crim. App. 1998), and he urges us to do so here.
We decline Appellant’s request. We have previously suggested that Article
38.075 was designed to operate “similarly” to Article 38.14, the statute “enacted to
address how to handle accomplice-witness testimony.” See Phillips v. State, 463 S.W.3d
59, 67 (Tex. Crim. App. 2015); see also id. at 69 (Keller, P.J., concurring) (“[T]he
jailhouse-witness statute was designed to operate like the accomplice-witness statute.”);
id. at 70 (Newell, J., concurring) (endorsing Presiding Judge Keller’s view of Article
38.075). Several intermediate courts of appeals have reached a similar conclusion. See,
e.g., Schnidt v. State, 357 S.W.3d 845, 851 (Tex. App.—Eastland 2012, pet. ref’d);
Watkins v. State, 333 S.W.3d 771, 778–79 (Tex. App.—Waco 2010, pet. ref’d).
Hall–31
Article 38.14 states that “[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.” We have held that “evidence offered to prove the special issues
of Art. 37.071 . . . is not included within the provisions of Art. 38.14.” May v. State, 618
S.W.2d 333, 343 (Tex. Crim. App. 1981), vacated on other grounds, 454 U.S. 959(1981); see also Thompson v. State, 691 S.W.2d 627, 633 (Tex. Crim. App. 1984). There
is no meaningful textual distinction between the ways in which the terms “convicted” and
“conviction” are used in Articles 38.075 and 38.14. Compare Art. 38.075(a) (“A
defendant may not be convicted of an offense . . .”), with Art. 38.14 (“A conviction
cannot be had upon . . .”). To the extent that there is a literal distinction between those
uses, Article 38.075’s phrasing, “convicted of an offense,” is even more suggestive of a
guilt-phase-only construction than Article 38.14’s. See Ex parte White, 506 S.W.3d 39,
42–43 (Tex. Crim. App. 2016) (“[T]he word ‘convicted’ is more likely to refer solely to
guilt than the word ‘conviction’ is.”). We conclude that evidence offered to prove the
special issues of Article 37.071 is not included within the provisions of Article 38.075.
Cf. May, 618 S.W.2d at 343.
In light of this construction, the trial court in this case did not violate Article
38.075 by refusing to include a jailhouse witness corroboration instruction in its
punishment phase charge. Point of error four is overruled.
B. Eighth Amendment
We have acknowledged that, “[b]ecause death is qualitatively different from any
other punishment, the federal Constitution requires the highest degree of reliability in the
Hall–32
determination that it is the appropriate punishment.” Morris, 940 S.W.2d at 615 (citing
Woodson, 428 U.S. at 305). We have also characterized jailhouse witness testimony as
“inherently unreliable.” Phillips, 463 S.W.3d at 66. Appellant argues that, to reconcile
these holdings, we should hold that in death penalty cases the Eighth Amendment
requires a trial court to include a jailhouse witness corroboration instruction in its
punishment phase charge.
We disagree. Here again we find it useful to analogize between jailhouse witness
testimony and accomplice witness testimony. We have previously described accomplice
witness testimony as “inherently suspect,” see Jones v. State, 982 S.W.2d 386, 389 n.5
(Tex. Crim. App. 1998), yet that description has never led us to conclude that the Eighth
Amendment requires an accomplice witness corroboration instruction in the punishment
phase of a capital trial, see, e.g., Thompson, 691 at 634 (holding that “the accomplice
witness rule set out in Art. 38.14 . . . is not constitutionally mandated”). That is because,
in deciding whether to sentence a capital defendant to death, “[w]hat is important” is that
the jury be equipped to make “an individualized determination on the basis of the
character of the individual and the circumstances of the crime.” Tuilaepa v. California,
512 U.S. 967, 972 (1994) (emphasis omitted). That requirement is met when the jury can
consider and give effect to “relevant mitigating evidence of the character and record of
the defendant and the circumstances of the crime.” See id. And “[i]n no way” does the
absence of an accomplice witness corroboration instruction in the punishment phase of a
capital trial interfere with that requirement. Thompson, 691 S.W.2d at 634 (citing Jurek
v. Texas, 428 U.S. 262, 276 (1976)).
Hall–33
The same is true of jailhouse witness testimony. Allowing the jury to decide for
itself the credibility and weight to give to jailhouse witness testimony, and the
circumstances under which it is inclined do so, does not interfere with a capital
defendant’s right to present relevant evidence in opposition to the death penalty or the
jury’s ability to give effect to that evidence. Cf. id. That being the case, we do not
understand the Eighth Amendment’s heightened reliability requirement to necessitate a
jailhouse witness corroboration instruction in the punishment phase of a capital trial. The
trial court did not run afoul of the Eighth Amendment by refusing Appellant’s requested
instruction for the punishment phase charge. Point of error five is overruled.
V. FUTURE DANGEROUSNESS SPECIAL ISSUE
In point of error six, Appellant argues that, insofar as the future-dangerousness
special issue directs the jury to decide “whether there is a probability that the defendant
would commit criminal acts of violence that would constitute a continuing threat to
society,” see Art. 37.071, § 2(b)(1), that issue “inevitably entail[s] a degree of
speculation,” see Buck v. Davis, 137 S. Ct. 759, 776 (2017), and therefore violates the
Eighth Amendment’s heightened standard for reliability in the determination that death is
the appropriate punishment. See Woodson, 428 U.S. at 305. To support this claim,
Appellant directs our attention to relatively recent law review articles and studies, the
general thrust of which is that jurors cannot reliably determine whether a defendant
convicted of capital murder will commit future acts of violence.
We are not persuaded. The future-dangerousness special issue does not ask jurors
to determine whether a defendant will commit future acts of violence—it asks whether
Hall–34
there is a probability that a defendant would commit criminal acts of violence that would
constitute a continuing threat to society. This distinction is meaningful. Focusing on the
word “probability,” we have described the future-dangerousness special issue as
“essentially . . . normative” in character, as “the Legislature declined to specify a
particular level of risk or probability of violence.” See Coble v. State, 330 S.W.3d 253,
267–68 (Tex. Crim. App. 2010). The normative character of the future-dangerousness
special issue means that concerns over its predictive accuracy “should be addressed to the
Legislature” rather than this Court. See id. at 298 (some capitalization altered); see also
Chambers v. State, 568 S.W.2d 313, 324 (Tex. Crim. App. 1978), overruled on other
grounds by Grijalva v. State, 614 S.W.2d 420, 425 (Tex. Crim. App. 1980) (“Whether or
not the concept of determining the probability of future conduct is mathematically viable,
it is clear that the concept is viable in law.”).
Appellant’s argument thus relies on the same type of evidence that we have
previously held to be irrelevant to the constitutionality of the future-dangerousness
special issue. See Coble, 330 S.W.3d at 298. That being the case, we remain
unpersuaded that the future-dangerousness special issue produces inherently unreliable
death sentences in violation of the Eighth Amendment. See id. at 297–98; McBride v.
State, 862 S.W.2d 600, 611 (Tex. Crim. App. 1993); Joiner v. State, 825 S.W.2d 701,
709 (Tex. Crim. App. 1992). Point of error six is overruled.
VI. STATE’S CLOSING ARGUMENT
In points of error eight and nine, Appellant contends that the trial court erred to
overrule his objection to part of the State’s punishment phase closing argument. The
Hall–35
State argued to the jury that sentencing Appellant to life in prison would be effectively
giving him “a free one” (which in context apparently meant a free pass) for capital
murder. Counsel interjected, “I’m going to object to the use of ‘free one.’ Life without
parole is not a free one.” In point of error eight, Appellant contends that the State’s
argument exceeded the bounds of proper jury argument. See, e.g., Brown v. State, 270
S.W.3d 564, 570 (Tex. Crim. App. 2008). In point of error nine, Appellant contends that
the State’s argument misled the jury about its obligation to fairly consider mitigating
evidence in violation of the Eighth Amendment and Fourteenth Amendment.
A claim that a prosecutor’s closing argument exceeded the bounds of proper jury
argument is subject to procedural default. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex.
Crim. App. 1996). So is a claim that a prosecutor’s closing argument violated the Eighth
and Fourteenth Amendments. See Banda v. State, 890 S.W.2d 42, 61 (Tex. Crim. App.
1994). To preserve error on these kinds of claims, a defendant must make a timely
objection stating the grounds for his desired ruling with sufficient specificity to make the
trial court aware of the claim, unless the specific grounds were apparent from the context.
See TEX. R. APP. P. 33.1(a)(1)(A). Magic words are not required, but the defendant must
at least “let the trial judge know what he wants [and] why he thinks himself entitled to it,”
and he must “do so clearly enough for the judge to understand him at a time when the
trial court is in a proper position to do something about it.” Lankston v. State, 827
S.W.2d 907, 909 (Tex. Crim. App. 1992).
In this case, counsel did not tell the trial court that she regarded the prosecutor’s
comment as outside the bounds of proper jury argument or violative of the Eighth or
Hall–36
Fourteenth Amendments. Furthermore, it was not reasonably apparent from the context
that those were the legal bases of her disagreement with the State’s argument. See TEX.
R. APP. P. 33.1(a)(1)(A). The explanation that counsel gave for her objection—“[l]ife
without parole is not a free one”—did not assert any legal right or invoke any recognized
or proposed rule of trial procedure. On these facts, we conclude that Appellant has failed
to preserve error. Points of error eight and nine are overruled.
VII. VOIR DIRE
A. Morgan v. Illinois
In point of error ten, Appellant argues that the trial court denied him an
opportunity for “meaningful voir dire” in violation of the Sixth, Eighth, and Fourteenth
amendments to the United States Constitution. See Morgan v. Illinois, 504 U.S. 719,
733–34 (1992) (italics omitted). Specifically, Appellant complains about the trial court’s
refusal to allow him to ask each prospective juror whether he or she could consider
“youth and mental illness to be evidence in mitigation.”
At a motions hearing before individual voir dire, the State objected to a series of
PowerPoint slides that Appellant intended to use as a visual aid when questioning the
prospective jurors. In the slides at issue, Appellant asked the jurors to quantify their level
of agreement with various age and mental health related propositions, such as: (1) “Age
or youth is an important factor in determining the appropriate punishment for a crime”;
and (2) “Poor mental health can reduce a person’s moral blameworthiness.” The State
argued that these slides contained improper commitment questions because they invited
the jurors to resolve the mitigation issue a certain way after learning a particular fact. See
Hall–37
Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim. App. 2001). Appellant responded
that: (1) the Supreme Court has recognized youth and mental illness as per se mitigating
circumstances; (2) these questions were designed to reveal those jurors who would refuse
to treat youth and mental illness as mitigating circumstances; (3) the questions were
therefore constitutionally mandated under Morgan; and (4) the United States Constitution
trumps any state law procedural rule to the contrary. The trial court sustained the State’s
objections to Appellant’s slides. 5 Several times throughout the remainder of individual
voir dire, Appellant unsuccessfully attempted to ask certain jurors whether they could
consider youth and/or mental illness as possible mitigating circumstances.
On appeal, Appellant reasserts the argument he made at trial: The Constitution
affords a criminal defendant the right to be tried by jurors who will commit to at least
“consider[ing]” youth and mental illness as potential sources of mitigation. If a juror
flatly states that he or she would not regard those characteristics as even potentially
mitigating, Appellant argues, the juror is subject to a Morgan-based challenge for cause.
Appellant concludes that even if the questions he proposed at trial can be regarded as
improper commitment questions under Texas law, their propriety under the United States
Constitution immunized them from objection under state law.
5
Based on the arguments before the trial court when it sustained the State’s objections to
Appellant’s slides, the trial court’s ruling could reasonably be regarded as a prospective
prohibition on asking individual jurors whether they could consider youth and mental illness as
mitigating circumstances. The State concedes that Appellant has preserved this claim of error as
to at least one juror. We will assume without deciding that Appellant has preserved this point of
error for appellate review.
Hall–38
Appellant is mistaken. “[T]he law does not require a juror to consider any
particular piece of evidence as mitigating; all the law requires is that a defendant be
allowed to present relevant mitigating evidence and that the jury be provided a vehicle to
give mitigating effect to that evidence if the jury finds it to be mitigating.” Raby v. State,
970 S.W.2d 1, 3 (Tex. Crim. App. 1998). Therefore, a trial court may lawfully refuse “to
allow a defendant to ask venire members questions based on facts peculiar to the case on
trial,” including “questions about particular mitigating evidence.” Id. Morgan did not
hold otherwise. Morgan held that a criminal defendant has a constitutional right to
challenge for cause any prospective juror who would automatically vote for the death
penalty, Morgan, 504 U.S. at 729, and a concomitant right to questioning adequate to
discover such jurors, id. at 733–34. Because Morgan does not require the juror
commitment that Appellant envisions, the trial court did not abuse its discretion by
prohibiting Appellant’s proffered questions as improper commitment questions. See
Standefer, 59 S.W.3d at 181 (holding that where the law does not require a given
commitment from a juror, “a commitment question is invariably improper”).
Appellant attempts to distinguish between questions “that seek[] to commit a juror
to a particular sentencing vote” and those that simply “ask[] whether a juror will be able
to fairly consider the aggravating and mitigating evidence in determining punishment.”
But Appellant’s proffered questions went beyond asking the jurors whether they could
consider all the evidence in determining the appropriate punishment. His questions
introduced facts “peculiar to the case on trial,” see Raby, 970 S.W.2d at 3, and sought to
commit the jurors to treating those facts as mitigating.
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Further, even questions that do not expressly “commit a juror to a particular
sentencing vote” can constitute commitment questions. See Standefer, 59 S.W.3d at 180(“[T]he word ‘consider’ does not prevent a question from being a commitment
question.”). Commitment questions are also those that “ask[] the prospective juror to set
the hypothetical parameters for his decision-making.” Id. In this case, the trial court
would not have abused its discretion to conclude that Appellant’s attempted inquiries into
youth and mental illness sought to commit the jurors to a particular set of parameters in
determining the appropriate punishment. Accordingly, the trial court did not err when it
prevented Appellant from asking potential jurors whether they could consider youth and
mental illness as possibly mitigating. Point of error ten is overruled.
B. Batson v. Kentucky
In point of error thirteen, Appellant argues that the trial court erred to overrule his
Batson objection to the State’s use of a peremptory strike against Juror 89, a Hispanic
woman. See Batson v. Kentucky, 476 U.S. 79, 89 (1986). This claim has both a
procedural component, in which Appellant argues that the trial court failed to follow the
established process for resolving a Batson claim, and a substantive component, in which
Appellant argues that the trial court reached an incorrect bottom-line outcome in ruling
on his Batson objection.
In a series of cases beginning with Batson, the Supreme Court established the
following three-step process for adjudicating a claim that the prosecution exercised a
peremptory strike against a juror because of the juror’s race:
First, a defendant must make a prima facie showing that a peremptory
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challenge has been exercised on the basis of race; second, if that showing
has been made, the prosecution must offer a race-neutral basis for striking
the juror in question; and third, in light of the parties’ submissions, the trial
court must determine whether the defendant has shown purposeful
discrimination.
Snyder v. Louisiana, 552 U.S. 472, 476–77 (2008) (internal quotation marks and brackets
omitted). The third step is a pure credibility finding: the trial court must determine as a
matter of fact whether the reasons the prosecution gave for its strike were mere pretexts
for discrimination. See Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004)
(“The term ‘pretext’ is solely a question of fact; there is no question of law.”). For that
reason, a trial court’s ruling on a Batson objection must be affirmed unless it is “clearly
erroneous.” Snyder, 552 U.S. at 477.
In this case, in response to Appellant’s Batson objection, and at the trial judge’s
instruction, the State offered several reasons for striking Juror 89. The State asserted that
Juror 89: (1) had a college degree in psychology, a subject the State believed would be “a
center focus of the Defense’s case”; (2) indicated in her juror questionnaire that “some
[offenders] with mental health issues . . . deserve punishment but not the death penalty”;
(3) indicated in her juror questionnaire that life without parole would be the proper
punishment in capital murder cases with “mental health concerns”; (4) had worked for
Child Protective Services (“CPS”), which concerned the State because “part of the
Defense’s case . . . is going to be based on parental issues”; and (5) indicated in her juror
questionnaire that she was “not sure about” the propriety of the death penalty for persons
with mental illness. One of the prosecutors added that a former coworker of Juror 89s
told him that Juror 89 would not be “a good juror in this case.”
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The trial judge ultimately overruled Appellant’s Batson objection, stating, “That
will be denied. I find there are race-neutral reasons for the strike.” Appellant then
objected to the State’s strike under the Sixth, Eighth, and Fourteenth amendments to the
United States Constitution, and the trial judge overruled this objection. Appellant further
objected under Article I, Section 10 and Section 19 of the Texas Constitution, and the
trial judge overruled this objection as well. Appellant asked the trial judge to make
“specific findings of fact” relating to the “extrajudicial information” the prosecutor had
provided about Juror 89’s coworker. The trial judge responded: “I considered everything
I heard. But . . . for the record, I find that there were sufficient reasons provided before
that and would have ruled the same had it not been presented.”
In the procedural component of this point of error, Appellant argues that the trial
judge failed to undertake the third, credibility-based step of the Batson process. He
points to the explanation the trial judge gave for his ruling—“I find there are race-neutral
reasons for the strike”—as some evidence that the judge “failed to distinguish between
Batson’s second step and its third.” In essence, Appellant argues that the trial judge
merely noted the facial race-neutrality of the State’s proffered justifications
(corresponding with the second step of the Batson process) and then scrutinized those
justifications no further.
We do not agree with Appellant that the trial court failed to reach Batson’s third
step. In Blackman v. State, we noted that the trial court’s ruling, “The Court finds that
the State offered race neutral reasons for exercising their strikes,” could be viewed in
context as “a determination with respect to the genuineness of the prosecutor’s . . .
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explanations.” Blackman v. State, 414 S.W.3d 757, 769 (Tex. Crim. App. 2013). The
same is true in this case. The trial court observed that “there [were] race-neutral reasons
for the strike” in the context of providing Appellant with an adverse ruling on his
objection to the State’s strike, not just once, but thrice. Furthermore, in response to
Appellant’s request for detailed findings of fact, the trial court affirmed that it had
“considered everything [it had] heard.” Given this context, we view the trial court’s
comments as a third-step, credibility-based ruling on Appellant’s Batson objection. The
procedural component of Appellant’s thirteenth point of error is without merit.
In the substantive component of his Batson claim, Appellant points to the
following considerations to argue that the State’s proffered justifications for striking
Juror 89 were mere pretexts for discrimination. First, Appellant notes that as a result of
the State’s peremptory striking of Jurors 80, 89, and 100, “Appellant’s jury . . . was 92%
white, despite the fact that nearly a third of Brazos County residents . . . are people of
color.” 6 Second, Appellant argues that, although the State presented Juror 89’s
psychology degree and sensitivity to psychological issues as reasons to disfavor her, it
did not strike: (a) Juror 11A, a white female, even though Juror 11A had a psychology
degree and expressed some interest in psychological issues; or (b) Juror 41, another white
female, even though Juror 41 expressed some trepidation in her questionnaire about
6
Juror 80 was a black man, and Juror 100 was a black woman, each of whom the State
peremptorily struck. Appellant lodged unsuccessful Batson objections to each of these strikes.
In this point of error, we do not understand Appellant to challenge the trial court’s Batson rulings
as to Jurors 80 and 100. As we understand Appellant’s argument, he offers the fact that the State
struck Jurors 80 and 100 as some additional evidence that, when the State struck Juror 89, it was
engaging in racial discrimination.
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sentencing a mentally ill person to death. Third, Appellant observes that, although the
State presented Juror 89’s work experience with CPS as a reason to disfavor her, Juror
11A had also worked at CPS, and the State did not strike her. Fourth, Appellant argues
that the State engaged in disparate questioning with respect to Jurors 11A, 41, and 89,
with Juror 89 receiving the most rigorous scrutiny.
Taking all of Appellant’s arguments into careful consideration, we cannot agree
that the trial court clearly erred in overruling Appellant’s Batson objection to the State’s
peremptory strike against Juror 89. Although Juror 89 shared some similarities with
Jurors 11A and 41, the trial court could rationally conclude that neither of those jurors
presented the confluence of State-articulated concerns that Juror 89 did. See Cantu v.
State, 842 S.W.2d 667, 689 (Tex. Crim. App. 1992) (“[W]hen the State has offered more
than one plausible reason for striking a venireperson, it is proper to review these reasons
in their entirety in order to assess whether the State’s explanation was valid or merely
pretextual.”). Juror 11A had a psychology degree, exhibited an interest in psychological
issues, and worked for CPS, but she did not express the same level of concern that Juror
89 did about sentencing a mentally ill person to death. And while Juror 41 expressed
some heightened sensitivity to sentencing a mentally ill person to death, she did not have
a degree in psychology and did not work for CPS.
Appellant faults the State for not further exploring the presence or absence of the
concerns that it articulated about Juror 89 with Jurors 11A and 41, but voir dire “is a fluid
process, often hinging on the interaction of a number of variables and permutations.” Cf.
id. (describing the processes behind “[t]he decision to strike a particular venireperson”).
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Especially given the jurors’ divergent responses on their questionnaires, we cannot say
that the trial court clearly erred to attribute any disparate questioning the jurors may have
received to something other than racial discrimination.
Finally, we note that immediately before the State exercised a peremptory strike
against Juror 89, it declined to strike another Hispanic woman from the panel. And
although the empaneled jury was predominantly white, there were at least two other
prospective jurors of color, Jurors 90 and 7A, whom the State accepted but Appellant
peremptorily struck. The fact that a party may be willing to accept some jurors of color
does not, in any given case, immunize that party from a determination that it otherwise
exercised peremptory strikes in a racially discriminatory fashion. But, in combination
with the other considerations outlined above, we believe that the State’s acceptance of
these jurors in this case contributes to the reasonableness of the trial court’s conclusion
that the State did not discriminate against Juror 89 because of her race.
We conclude that the trial court did not clearly err to overrule Appellant’s Batson
objection. The substantive component of Appellant’s thirteenth point of error is without
merit. Point of error thirteen is overruled.
VIII. MITIGATION SPECIAL ISSUE
In points of error eleven and twelve, Appellant contends that Article 37.071’s
definition of mitigating evidence as “evidence that a juror might regard as reducing the
defendant’s moral blameworthiness” is inconsistent with the Eighth Amendment, both on
its face and as applied to Appellant’s case. See Art. 37.071, § 2(f)(4).
A. Facial Constitutional Challenge
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In point of error eleven, Appellant argues that Article 37.071, Section 2(f)(4)
improperly instructs jurors to afford evidence mitigating weight only if it has some
“nexus” to the underlying crime. Thus, he contends, it is unconstitutional on its face. We
have repeatedly rejected this argument. See Coble, 330 S.W.3d at 296; Roberts v. State,
220 S.W.3d 521, 534 (Tex. Crim. App. 2007); Perry v. State, 158 S.W.3d 438, 449 (Tex.
Crim. App. 2004); see also Cantu v. State, 939 S.W.2d 627, 649 (Tex. Crim. App. 1997).
Appellant responds that the Court “has yet to explain how a provision that imposes
a substantive limit on what ‘counts’ as mitigating . . . can survive the sweeping language”
the Supreme Court employed in Tennard v. Dretke in defining constitutionally relevant
mitigating evidence. See Tennard v. Dretke, 542 U.S. 274, 284 (2004) (“Relevant
mitigating evidence is evidence which tends logically to prove or disprove some fact or
circumstance which a fact-finder could reasonably deem to have mitigating value.”). He
is mistaken. On at least three occasions, we have analyzed—and rejected—this argument
with Tennard explicitly featured in our reasoning. See Coble, 330 S.W.3d at 296 (citing
Tennard); Roberts, 220 S.W.3d at 534 (same); Perry, 158 S.W.3d at 449 (same). We see
no reason to revisit these holdings. Point of error eleven is overruled.
B. As Applied Constitutional Challenge
In point of error twelve, Appellant argues that the State’s repeated emphasis on
Article 37.071’s definition of mitigating evidence left the jury with the impression that,
for the jury to regard Appellant’s punishment phase evidence as relevant mitigating
evidence, there needed to be a “nexus” between Appellant’s evidence and his
commission of the underlying capital murder. In this respect, Appellant asserts, Article
Hall–46
37.071, Section 2(f)(4) was unconstitutional as applied in his case. Appellant points to
the facts that: (1) in voir dire, the State “drew prospective jurors’ attention to the ‘moral
blameworthiness’ limitation” and used an illustrative hypothetical that “improperly
implie[d]” a nexus requirement; (2) during the punishment phase, the State elicited
testimony from one of its expert witnesses to the effect that there was no “connection”
between Appellant’s mental health issues and his commission of the underlying capital
murder; and (3) in its closing argument, the State “continued to press the theme that
evidence lacking a direct connection to the crime should not count as mitigation.”
None of these considerations shows that Article 37.071 itself operated
unconstitutionally as to Appellant. The statute itself “does not unconstitutionally narrow
the jury’s discretion to factors concerning only moral blameworthiness.” Perry, 158
S.W.3d at 449. To the extent Appellant might have argued that, as shown by the
considerations outlined above, the State misrepresented controlling Eighth Amendment
law or the requirements of Article 37.071, we note only that that is not what Appellant
argued. Instead, Appellant argued that Article 37.071, Section 2(f)(4) operated
unconstitutionally in his case. And he has failed to explain how exactly the operation of
the statute rendered one or more aspects of his trial offensive to the United States
Constitution. Cf. Estes v. State, 546 S.W.3d 691, 698 (Tex. Crim. App. 2018) (explaining
that, in an as-applied constitutional challenge, the challenger bears the burden of
producing evidence “specifically demonstrating that the law in question is
unconstitutional as applied to him”) (internal quotation marks omitted). Point of error
twelve is overruled.
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IX. CATEGORICAL EIGHTH AMENDMENT CLAIMS
In point of error fourteen, Appellant argues that the Eighth Amendment forbids the
execution of offenders who, like Appellant, were between the ages of eighteen and
twenty-one when they committed their respective offenses. Cf. Roper v. Simmons, 543
U.S. 551, 578–79 (2005) (holding that the Eighth Amendment forbids the execution of
those who were under the age of eighteen when they committed their crimes). In point of
error fifteen, Appellant argues that the Eighth Amendment prohibits the execution of
offenders who were suffering from “severe mental illness” when they committed capital
murder. Cf. Atkins v. Virginia, 536 U.S. 304, 321 (2002) (holding that the Eighth
Amendment forbids the execution of intellectually disabled people). Taking Appellant’s
arguments into careful consideration, we remain unpersuaded that a national consensus
has formed against the execution of either category of offender. See Roper, 543 U.S. at
574 (“The age of 18 is the point where society draws the line for many purposes between
childhood and adulthood. It is, we conclude, the age at which the line for death eligibility
ought to rest.”); Mays v. State, 318 S.W.3d 368, 379–80 (Tex. Crim. App. 2010)
(rejecting a claim that the Eighth Amendment prohibits the execution of persons suffering
from severe mental illness). Points of error fourteen and fifteen are overruled.
X. CONCLUSION
We affirm the trial court’s judgment of conviction and sentence.
Delivered: December 8, 2021
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