Jenkins, Willie Roy

AP-77,022
FILED IN COURT OF CRIMINAL APPEALS
COURT OF CRIM1NALAPPEALS
AUSTIN, TEXAS
February 24, 2015 Transmitted 2/10/2015 1:37:30 AM
Accepted 2/24/2015 9:52:53 AM
ABELACOSTA, CLERK ABEL ACOSTA
No. AP-77,022 CLERK
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
WILLIE ROY JENKINS,
Appellant
THE STATE OF TEXAS,
Appellee
On direct appeal from the 274th Judicial District Court
Cause No. 10-1063, Hays County, Texas
Honorable Gary L. Steele
BRIEF OF APPELLEE
DEATH PENALTY CASE
WESMAU KATHERINE D. HAYES
Hays County District Attorney Assistant Attorney General
SBOT 00784539 Lead Counsel
712 S. Stagecoach Trail, Ste. 2057 SBOT 00796729
San Marcos, TX 78666 Texas Office of the Attorney General
(512)393-7600 Criminal Appeals Division
(512) 393-7619 fax P.O. Box 12548
wes.mau@co.hays.tx.us Austin, TX 78711-2548
(512)936-1400
(512) 320-8132 fax
katherine.hayes(g),texasattorneygeneral.gov
The States does not request oral argument.
IDENTIFICATION OF PARTIES AND COUNSEL
Pursuant to Tex. R. App. P. 38.1(a), the following is a list of all parties to the
trial court's judgment and all counsel of record:
Victim:
Sheryl Ann Norris
Appellant/Criminal Defendant:
Willie Roy Jenkins, TDCJ #999581, Allan B. Polunsky Unit, 3872 FM
350 South, Livingston, TX 77351
Counsel for Appellant on appeal:
Angela J. Moore, 310 S. St. Mary's, Ste. 1830, San Antonio, TX
78205; and Kerri Anderson Donica, 301 West 3rd Ave., Corsicana, TX
75110
Counsel for Appellant at trial:
Norman Lanford, P.O. Box 1136, Cameron, TX 67520; and John R.
Duer, P.O. Box 920, Georgetown, TX 78627-0920
Counsel for the State of Texas on appeal:
Katherine D. Hayes, Assistant Attorney General, Lead Counsel, Texas
Office of the Attorney General, Criminal Appeals Division, P.O. Box
12548, Austin, TX 78711 -2548; and Wes Mau, Hays County District
Attorney, 712 S. Stagecoach Trail, Ste. 2057, San Marcos, TX 78666
Counsel for the State of Texas at trial:
Lisa M. Tanner, Assistant Attorney General, Texas Office of the
Attorney General, Criminal Prosecutions Division, P.O. Box 12548,
Austin, TX 78711-2548; and Sherri K. Tibbe, Hays County District
Attorney (now retired)
Trial Judge:
Honorable GARY L. STEEL, Judge presiding
-l-
TABLE OF CONTENTS
IDENTIFICATION OF PARTIES AND COUNSEL i
INDEX OF AUTHORITIES v
STATEMENT OF THE CASE 1
STATEMENT REGARDING ORAL ARGUMENT 2
ISSUES PRESENTED 2
STATEMENT OF FACTS 5
SUMMARY OF THE ARGUMENT 12
ARGUMENT ... , 16
STATE'S REPLY TO POINT OF ERROR 1 (SUFFICIENCY OF THE
EVIDENCE) 16
STATE'S REPLY TO POINT OF ERROR 2 (ADMISSION OF DNA
EVIDENCE) 21
STATE'S REPLY TO POINT OF ERROR 3 (ADMISSIBILITY OF
EVIDENCE OF WILLINGNESS TO PLEA) 25
STATE'S REPLY TO POINT OF ERROR 4 (FAILURE TO GRANT
A MISTRIAL) 27
STATE'S REPLY TO POINT OF ERROR 5 (CUMULATIVE
ERROR) 30
-li-
STATE'S REPLY TO POINT OF ERROR 6 ("10-12" RULE AND NO
INSTRUCTION ON EFFECT OF HOLD-OUT JUROR) 31
STATE'S REPLY TO POINT OF ERROR 7 (NO INSTRUCTIONS ON
VICTIM IMPACT EVIDENCE) 37
STATE'S REPLY TO POINTS OF ERROR 8-11 (NO INSTRUCTION
DEFINING TERMS) 40
STATE'S REPLY TO POINT OF ERROR 12 (NO INSTRUCTION
LIMITING SCOPE OF MILITATING EVIDENCE) 43
STATE'S REPLY TO POINT OF ERROR 13 (NO INSTRUCTION
THAT FINDING OF GUILT DOES NOT FORECLOSE
CONSIDERATION OF MITIGATING EVIDENCE) 45
STATE'S REPLY TO POINT OF ERROR 14 (NO PRESUMPTION IN
FAVOR OF DEATH AND NO REQUIREMENT TO CONSIDER
MITIGATION INDEPENDENTLY) 48
STATE'S REPLY TO POINT OF ERROR 15 (NO VEHICLE FOR
JURY TO RETURN A VERDICT OF LIFE IMPRISONMENT) ....... 50
STATE'S REPLY TO POINT OF ERROR 16 (FAILURE TO QUASH
INDICTMENT - APPRENDIv. NEWJERSEY) 53
STATE'S REPLY TO POINT OF ERROR 17 (FAILURE TO
PRECLUDE THE DEATH PENALTY - BUSH v. GORE) 58
STATE'S REPLY TO POINT OF ERROR 18 (INSTRUCTIONS
FAILED TO PROVIDE AN OPPORTUNITY FOR A "REASONED
MORAL RESPONSE") 59
STATE'S REPLY TO POINT OF ERROR 19 (INSTRUCTIONS
FAILED TO PROVIDE JURORS A "REASONED AND RATIONAL
MORAL RESPONSE") 63
-in-
PRAYER 64
CERTIFICATE OF SERVICE ...: 65
CERTIFICATE OF COMPLIANCE .66
-IV-
INDEX OF AUTHORITIES
Cases Page
Alameda v. State,
235 S.W.3d 218 (Tex. Crim. App. 2007) :..... 57
Almanza v. State,
686 S.W.2d 157 (Tex. Crim. App. 1985) passim
Apprendi v. New Jersey,
530 U.S. 466 (2000) passim
Barrow v. State,
207 S.W.3d 377 (Tex. Crim. App. 2006) 57
Brooks v. State,
323 S.W.3d 893 (Tex. Crim. App. 2010) 17, 20
Burley v. Cabana,
818 F.2d 414 (5th Cir. 1987) 34
Busby v. State,
253 S.W.3d 661 (Tex. Crim. App. 2008) 26, 34, 56
Bush v. Gore,
531 U.S. 98 (2000) x, 15, 58, 59
Caldwell v Mississippi,
All U.S. 320 (1985) 33
Camacho v. State,
864 S.W.2d 524 (Tex. Crim. App. 1993) 42
Cannon v. State,
691 S.W.2d 664 (Tex. Crim. App. 1985) 20
-v-
Cantu v. State,
842 S.W.2d 667 (Tex. Crim. App. 1992) 25, 58
Castillo v. State,
739 S.W.2d 280 (Tex. Crim. App. 1987) 54
Cathey v. State,
992 S.W.2d 460 (Tex! Crim. App. 1999) 37
Chamberlain v. State,
998 S.W.2d230 (Tex. Crim. App. 1999) 31
Charles v. State,
146 S.W.3d 204 (Tex. Crim. App. 2004) 28
Clewis v. State,
922 S.W.2d 126 (Tex. Crim. App. 1996) 19, 20
Coble v. State,
330 S.W.3d 253 (Tex. Crim. App. 2010) 42
Colburn v. State,
966 S.W.2d 511 (Tex Crim. App. 1998) .47
Crutsinger v. State,
206 S.W.3d 607 (Tex. Crim. App. 2006) 59
Davis v. State,
782 S.W.2d 211 (Tex. Crim. App. 1989) 33
Draughon v. State,
831 S.W.2d 331 (Tex. Crim. App. 1992) 35
Druery v. State,
225 S.W.3d491 (Tex. Crim. App. 2007) 36
-VI-
Escamilla v. State,
143 S.W.3d 814 (Tex. Crim. App. 2004) 35, 47
Estrada v. State,
313 S.W.3d274 (Tex. Crim. App. 2010) 35
Feldman v. State,
71 S.W.3d 738 (Tex. Crim. App. 2002) 42
Gamboa v. State,
296 S.W.3d 574 (Tex. Crim. App. 2009) ...... 31, 49
Gardner v. State,
306 S.W.3d 274 (Tex. Crim. App. 2009) 42, 44
Gonzales v. State,
353 S.W.3d 826 (Tex. Crim. App. 2011) 36
Granviel v. State,
552 S.W.2d 107 (Tex. Crim. App. 1976) 20
Gregg v. Georgia,
428 U.S. 153 (1976) 58
Guevara v. State,
152 S.W.3d 45 (Tex. Crim. App. 2004) 17
Hankins v. State,
132 S.W.3d 387 (Tex. Crim. App. 2004) 59
Hathorn v. State,
848 S.W.2d 101 (Tex. Crim. App. 1992) 35
Havard v. State,
800 S.W.2d 195 (Tex. Crim. App. 1989) 20
-vn-
Hayes v. State,
982 S.W.2d 419 (Tex. Crim. App. 1990) 22, 24
Hooper v. State,
214 S.W.3d 9 (Tex. Crim. App. 2007) 17
Hughes v. State,
24 S.W.3d 883 (Tex. Crim. App. 2000) 27
Hutch v. State,
922 S.W.2d 166 (Tex. Crim. App. 1996) 15, 62
Jackson v. Virginia,
443 U.S. 307 (1979) 17, 19
Jenkins v. United States,
380 U.S. 445 (1965) 35
Johnson v. Texas,
509 U.S. 350 (1993) 52
Jurekv. Texas,
428 U.S. 262 (1976) 58
Kelly v. State,
824 S.W.2d 568 (Tex. Crim. App. 1992) 22
Laddv. State,
3 S.W.3d 547 (Tex. Crim. App. 1999) 42
Lagrone v. State,
942 S.W.2d 602 (Tex. Crim. App. 1997) 33
Lawton v. State,
913 S.W.2d 542 (Tex. Crim. App. 1995) 33, 34
-vni-
Leza v. State,
351 S.W.3d 344 (Tex. Crim. Ap. 2011) 39, 42, 56
Lockhart v. McCree,
476 U.S. 162 (1986) 34
Luna v. State,
268 S.W.3d 594 (Tex. Crim. App. 2008) 44
Martinez v. State,
924 S.W.2d 693 (Tex. Crim. App. 1996) 50
Martinez v. State,
327 S.W.3d 727 (Tex. Crim. App. 2010) 20
Mays v. State,
318 S.W.3d 368 (Tex. Crim. App. 2010) 39, 52, 56
McCarthy v. State,
65 S.W.3d 47 (Tex. Crim. App. 2001) 26
McFarland v. State,
928 S.W.2d 482 (Tex. Crim. App. 1996) 47
Mills v. Maryland,
486 U.S. 367 (1988) 33, 34
Montgomery v. State,
810 S.W.2d 372 (Tex. Crim. App. 1991) 22, 25
Neal v. State,
256 S.W.3d 264 (Tex. Crim. App. 2008) 59
Ocon v. State,
284 S.W.3d 880 (Tex. Crim. App. 2009) 28, 30
-IX-
Perry v. State,
158 S.W.3d 438 (Tex. Crim. App. 2004) 37, 56
Prystash v. State,
3 S.W.3d 522 (Tex. Crim. App. 1999) 33, 34, 35
Rayford v. State,
125 S.W.3d 521 (Tex. Crim. App. 2003) 54, 59
Richardson v. State,
879 S.W.2d 874 (Tex. Crim. App. 1993) 15, 62
Roberts v. State,
220 S.W.3d 521 (Tex. Crim. App. 2007) 56, 59
Russeau v. State,
171 S.W.3d 871 (Tex. Crim. App. 2005) 34, 54
Russeau v. State,
291 S.W.3d 426 (Tex. Crim. App. 2009) passim
Saldano v. State,
iyi S.W.3d 77 (Tex. Crim. App. 2007) 39, 49, 52
Scheanette v. State,
144 S.W.3d 503 (Tex. Crim. App. 2004) 45
Sharp v. State,
101 S.W.2d 611 (Tex. Crim. App. 1986) 55
Simmons v. South Carolina,
512 U.S. 154 (1994) 36
Smith v. Texas,
543 U.S. 37 (2004) 52
-x-
Threadgill v. State,
146 S.W.3d 654 (Tex. Crim. App. 2004) 34, 35, 58, 59
Wardrip v. State,
56 S.W.3d 588 (Tex. Crim. App. 2001) 19, 20
Weadv. State,
129 S.W.3d 126 (Tex. Crim. App. 2004) 28
Webb v. State,
232 S.W.3d 109 (Tex. Crim. App. 2007) 27
Whitaker v. State,
286 S.W.3d 355 (Tex. Crim. App. 2009) 56
Will. v. State,
937 S.W.2d 479 (Tex. Crim. App. 1996) 47
Will. v. State,
301 S.W.3d 675 (Tex. Crim. App. 2009) 34, 36
Woods v. State,
152 S.W.3d 105 (Tex. Crim. App. 2004) 54
Wooten v. State,
400 S.W.3d 601 (Tex. Crim. App. 2013) 38
Constitutions. Statutes, and Rules
Tex. Const, art. I, § 3 55
Tex. Const, art. I, § 10 55
Tex. Const, art. I, § 19 55
Tex. Code Crim. Proc. art. 36.22 27, 29
-xi-
Tex. Code Crim. Proc. art. 37.071, § 2(d)(1) 49
Tex. Code Crim, Proc. art. 37.0711, § 2(b)(1) 43
Tex. Code Crim, Proc. art. 37.0711 § 2(b)(2) .43
Tex. Code Crim. Proc. art. 37.0711 § 3(b)(1) ..r 2,19
Tex. Code Crim. Proc. art. 37.0711 § 3(b)(2) 2
Tex. Code Crim. Proc. art. 37.0711 § 3(d)(1) 32
Tex. Code Crim. Proc. art. 37.0711 § 3(d)(2) 32
Tex. Code Crim. Proc. art. 37.0711 §3(e) 2,46,49
Tex. Code Crim. Proc. art. 37.0711 § 3(f)(1) 32
Tex. Code Crim. Proc. art. 37.0711 § 3(f)(2) 32
Tex. Code Crim. Proc. art. 37.0711 §3(i) 33
Tex. Code Crim. Proc. art. 37.0711, § 3(j) 2
Tex. Code Crim. Proc. art. 44.2511(b) 16
Tex. Penal Code § 12.31(a) 53
Tex. Penal Code § 19.02(b)(1) 17
Tex. Penal Code § 19.02(b)(2) 17
Tex. Penal Code § 19.03(a) 17
Tex. Penal Code § 19.03(b) 17, 53
Tex. R. App. P. 9.4(e) 66
-xn-
Tex. R. App. P. 9.4(i)(l) 66
Tex. R. App. P. 9.4(i)(2)(A) 66
Tex. R. App. P. 33.1(a) 54
Tex. R. App. P. 33.1(a)(1)(A) 50
Tex. R. App. P. 38.1(a) i
Tex. R. App. P. 38.1(e) 26
Tex. R. App. P. 38.1(f) 26
Tex. R. App. P. 38.1(h) 26
Tex. R. App. P. 38.1(i) 19, 60
Tex. R. Evid. 702 22
-xm-
FILED IN
COURT OF CRIMINAL APPEALS
March 3, 2015
No. AP-77,022
ABELACOSTA, CLERK
Corrected page 1
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
WILLIE ROY JENKINS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
On direct appeal from the 274th Judicial District Court
Cause No. 10-1063, Hays County, Texas
Honorable Gary L. Steele
BRIEF OF APPELLEE
DEATH PENALTY CASE
To the Honorable Justices of the Court of Criminal Appeals:
STATEMENT OF THE CASE
On May 31, 2013, a Hays County jury convicted Appellant of the capital
offense of murdering Sheryl AnnNorris. (2 CR 327; 40 RR 46).'The indictment
1 "CR" is the Clerk's Record; "RR" is the Reporter's Record of transcribed
testimony and exhibits. Citations are preceded by volume number and followed by page or
exhibit number (with "SX" or "DX" for the State's, or Defendant's, exhibits).
-1-
alleged that on or about November 24,1975, Appellant intentionally caused Norris's
death by strangling her (paragraph 1) or drowning her (paragraph 2) during the course
of his committing or attempting to commit the offense of aggravated rape. (1 CR 4).
A separate sentencing hearing was conducted pursuant to Tex. Code Crim. Proc. art.
31.0711, §§ 3(b)(l)-(2) and 3(e). The jury answered "yes" to the special issues on
deliberateness and future dangerousness, and answered "no" to the special issue on
mitigation. (2 CR 336-39; 48 RR 110-11). On June 13, 2013, Appellant was
sentenced to death by lethal injection. (2 CR 342-45). Appellant filed a motion for
new trial which was overruled by operation of law. (2 CR 347-48). Direct appeal to
this Court is automatic. Tex. Code Crim. Proc. art. 37.011, § 3(j).
STATEMENT REGARDING ORAL ARGUMENT
The State does not believe the decisional process would be significantly aided
by oral argument. The dispositive issues have been authoritatively decided, and the
facts and legal arguments are adequately presented in the briefs and record.
Appellanthas waived oral argument (Appellant's Brief["Br."] at cover), and the State
will do the same.
ISSUES PRESENTED
POINT OF ERROR 1: The death sentence must be reformed to life
imprisonment because the evidence is legally insufficient to establish
that Appellant deliberately caused the death of Sheryl Ann Norris.
-2-
POINT OF ERROR 2: The trial court erred in failing to suppress any
and all DNA evidence and testimony due to the failure of the testing to
meet quality assurance standards.
POINT OF ERROR 3: The trial court erred in not allowing evidence
of Appellant's willingness to enter a plea to aggravated sexual assault
because this was evidence relevant to the mitigation evidence, special
issue [number three].
POINT OF ERROR 4: The trial court erred in failing to grant a mistrial
after jury misconduct was brought to the trial court's attention.
POINT OF ERROR 5: The cumulative impact ofthe above errors was
so great that reversal is required.
POINT OF ERROR 6: The trial court violated the Sixth, Eighth, and
Fourteenth Amendments of the United States Constitution by failing to
instruct the jury that a vote by one of them would result in a life
sentence despite the statutory requirement of ten votes for a "No"
answer to the question of future dangerousness, or for a "Yes" vote for
finding a mitigating circumstance.
POINT OF ERROR 7: The trial court violated the Eighth and
Fourteenth Amendments of the United States Constitution by failing to
instruct the jury (a) that its consideration of victim impact evidence
should not be conducted in connection with the future-dangerousness
special issue; (b) that its consideration ofvictim impact evidence did not
relieve the State of its burden to prove the "future dangerousness" issue
beyond a reasonable doubt; (c) to disregard victim impact evidence that
was not shown to be within the knowledge or reasonable expectation of
the defendant; and (d) to not make a comparative worth analysis of the
value ofthe victims to their families and the community compared to the
defendant or other members of society.
POINT OF ERROR 8: The trial court violated the Eighth and
Fourteenth Amendments when it failed to define the word "probability"
for the jury during the sentencing phase.
-3-
POINT OF ERROR 9: The trial court violated the Eighth and
Fourteenth Amendments when it failed to define the phrase "criminal
acts of violence" for the jury during the sentencing phase.
POINT OF ERROR 10: The trial court violated the First, Eighth, and
Fourteenth Amendments of the United States Constitution by failing to
define the word "militates" so as to preclude consideration of the
defendant's age, race, sex, national origin, religion, political views or
sexual orientation as a factor supporting a death sentence.
POINT OF ERROR 11: The trial court violated the Eighth and
Fourteenth Amendments when it failed to define the phrase "continuing
threat to society" for the jury during the sentencing phase.
POINT OF ERROR 12: The trial court violated the Eighth and
Fourteenth Amendments of the United States Constitution by failing to
instruct the jury so as to limit the scope of militating evidence to that
which a juror might regard as increasing the defendant's moral
blameworthiness.
POINT OF ERROR 13: The trial court violated the Eighth and
Fourteenth Amendments of the United States Constitution by failing to
instruct the jury that their finding of guilt in the first phase of the trial
did not foreclose consideration of evidence which they believed tended
to reduce the moral blameworthiness of the defendant.
POINT OF ERROR 14: The trial court violated the Eighth Amendment
by failing to instruct the jury that there is no presumption in favor of
death even if they found [Appellant] to be a "future danger" in answer
to special issue number two, and that special issue number three,
regarding mitigating circumstances, is to be taken up and considered
independently without regard to the jury's finding on number two.
POINT OF ERROR 15: The trial court violated the Eighth Amendment
when it failed to instruct the jury so as to provide a vehicle for a juror to
return a life verdict where the juror concludes that the aggravating
-4-
factors, although established by the evidence, still are not so severe as
to call for death as a punishment.
POINT OF ERROR 16: The trial court erred when it refused to quash
the indictment because a grand jury had not considered and alleged in
an indictment the facts legally essential to [Appellant's] conviction and
death sentence.
POINT OF ERROR 17: The trial court erred in denying a defense
motion to preclude the death penalty as a sentencing option due to Equal
Protection violations.
POINT OF ERROR 18: The trial court violated [Appellant's] rights
under the Eighth Amendment of the United States Constitution in that
the sentencing phase instructions failed to provide the jury the
opportunity to have its decision reflect a "reasoned moral response" to
the offender and his offense.
POINT OF ERROR 19: The trial court violated the Eighth and
Fourteenth Amendments when it failed to instruct the jury so as to
provide a reasoned and rational moral process for the consideration and
implementation of mitigating circumstances.
(Appellant's Br. 47-124).
STATEMENT OF FACTS2
In August of 1975, Wayne Andrus moved from Florida to San Marcos, Texas,
to attend school at Southwest Texas University. (37 RR 133). Wayne rented unit #602
at the Ye Olde Colony Apartments at the corner ofAquarena Springs and Interstate-
2 This Statement of Facts focuses on the evidence at trial. Appellant does not
challenge the sufficiency ofthe evidence supporting the future dangerousness or mitigation
special issues.
-5-
35. (37 RR 112, 119-20, 139). Wayne's girlfriend, 20-year-old Sheryl Ann Norris,
stayed behind in Florida. (37 RR 134-35). In September of 1975, Sheryl joined
Wayne in San Marcos, moving into apartment #602 with him. (37 RR 133-35). Sheryl
soon got a job working as a secretary at the Crime Prevention Institute of Texas
located just a few blocks from the apartment complex. (37 RR 104, 112-14, 138).
Although she felt homesick occasionally, she was excited about the opportunity to
begin a new life in Texas. (37 RR 91).
On November 24,1975, Sheryl went to work at 8:00 a.m. and stayed there until
about noon, when she went back to her apartment for lunch. (37 RR 110). She was
particularly excited because, the following day, she was going to meet her older sister
to see a concert in Alabama before heading to visit her family in Florida for the
Thanksgiving holidays. (37 RR 92, 110). When she did not return to the office after
lunch, her boss was not concerned because Sheryl had mentioned earlier in the day
that she wanted to get off early from work to go home, and pack for the trip. (37 RR
114-15).
Sheryl's boyfriend, Wayne, called the apartment several times over the lunch
hour knowing Sheryl would be there, but got no answer and left messages. (37 RR
137-38). After finishing his exam on campus that afternoon, Wayne picked up his car
around 5:00 p.m. at the mechanics and then headed for home. (37 RR 138-39).
-6-
As Wayne walked up the stairs towards their apartment, he immediately
noticed that their front door was ajar, which worried him because the couple always
locked the door. (37 RR 37 RR 140). Entering the apartment, Wayne found the stereo
blaring, which was unusual because they never played their music loudly. (37 RR
141-42). Wayne also noticed that the rug was "all crumpled up," which was out ofthe
ordinary because their apartment customarily was tidy. (37 RR 142, 148). Wayne
called out to Sheryl but got no answer, so he walked towards the bedroom and then
the across the corridor to their bathroom looking for her. (37 RR 142-43).
When he entered the bathroom, Wayne saw Sheryl laying face up, bent
backwards over the bathtub with her head, lower arms, and shoulders submerged in
the tub which was almost full with water. (37 RR 144, 214, 263). She had on the
white blouse and pair of boots that she had worn to work that morning, but that was
all. (37 RR 144, 214, 258). Sheryl's pants and panties were off and were bunched
around the lower part of one of her boots, which she was still wearing. (37 RR 214).
In panic, Wayne reached down to help Sheryl and immediately felt she was stiff. (37
RR 144). Fearing the assailant might still be present, Wayne ran to a neighbor's home
and called the police. (37 RR 145).
Evidence at the crime scene indicated that Sheryl struggled with her attacker
and had been sexually assaulted before her murder. (38 RR 85). Investigating officers
-7-
found a dollar bill and coins scattered on the floor which was out of the ordinary for
the otherwise tidy apartment. (37 RR 181, 184, 253). There was also a hole in the
sheetrock ofthe wall near a light switch in the living room. (37 RR 225-26). A white
powdery substance that matched the sheetrock was recovered from the toe ofSheryl's
right boot, the upper area ofher left boot, and inside her pants. (37 RR 226-27). Feces
were discovered in the middle of the bed, the edge of a sheet, the floor of the
bathroom by Sheryl's foot, and underneath her body. (37 RR 258, 260). Blood and
feces were also found on Sheryl's buttocks and genital area. (37 RR 218, 265). Two
scarves were knotted tightly around her neck like a ligature. (37 RR 214,220-21). A
wristwatch that Sheryl was wearing at the time of her murder was submerged under
water with the clock stopped at 12:31 p.m., which would have been just 15 to 20
minutes after she returned home from work. (37 RR 263). Investigators believed that
given the short time frame of events, the perpetrator of the rape was also the
murderer.
It was subsequently determined that Sheryl's death was a homicide caused by
strangulation or drowning. (38 RR 99). During the autopsy, Dr. Charles Bell collected
evidence and specimens that were submitted to the Texas Department of Public
Safety (DPS) Crime Laboratory in Austin for scientific analysis. A vaginal swab
revealed the presence of semen, but no suspect was generated. (37 RR 222-23, 224-
-8-
25, 227-30). At the time, forensic testing was fairly limited to presumptive tests for
the presence of blood, sperm searches, and RFLP or blood group comparisons. (37
RR 206, 227-30).
In October 1997, the case was re-submitted to the DPS Crime Lab for new
analysis and evaluation for the recovery ofany evidence. (37RR237; 38RR140-41).
DNA testing using PCR analysis was attempted, but yielded no results or no
interpretable results. An extract obtained from the vaginal smear slide in 1997. (39
RR 71-73, 81). The same extract was again tested for DNA in 1999 by the DPS Crime
Lab, but this time using STR analysis. (39 RR 151-52). One partial DNA profile from
an unknown contributor was identified; however, the profile contained an insufficient
number of loci to allow DPS to run it through CODIS. (39 RR 170).
With the advent of MiniFiler, a more advanced type of PCR testing, San
Marcos Police Detective Penny Dunn requested the DPS Crime Lab analyze a vaginal
smear slide. (38 RR 149). On July 6, 2010, DPS Forensic Scientist Negin Kuhlmann
reported that she obtained a sufficient DNA profile by using MiniFiler, which
amplifies DNA profiles contained in degraded samples. (38 RR 150; 39 RR 60-63,
222). The newly-obtained DNA profile was entered into CODIS. (39 RR 228). On
August 5, 2010, the DPS Crime Lab advised that there was a "hit" in the CODIS
database, which means a match with an offender in the CODIS system. (38 RR 151;
-9-
39 RR 160). On August 9,2010, the offender was verified by CODIS as being "Willie
Roy Jenkins (B/M, DOB: 07/30/1953)." (38 RR 152).
At the time the suspect profile was identified, Appellant was being held at the
Coalinga State Hospital in Fresno County, California, under a civil commitment.3
San Marcos Police Officer Penny Dunn and Corporal Scott Johnson traveled to
California to obtain a specimen for direct comparison to the evidentiary DNA. (38 RR
157). After securing a search warrant, the officers obtained a buccal swab (saliva)
specimen from Appellant. (38 RR 158). The officers interviewed Appellant about the
capital crime, but he denied ever knowing the victim and stated that he did not know
what the officers were talking about. (38 RR 159).
Appellant's saliva sample was secured until September 2,2010, when Corporal
Johnson delivered it to the DPS Crime Lab for analysis and direct comparison to the
evidentiary DNA. (39 RR 236-37). On September 15, 2010, DPS Forensic Scientist
Kuhlmann advised that Appellant could not be excluded as a contributor to the DNA
profile obtained from the vaginal smear slide 14-B. (39 RR 237-38). The probability
of seeing someone else with the same DNA profile as Appellant was 1 in 365.6
quadrillion Caucasians, 1 in 5.705 quadrillion blacks, and 1 in 20.37 quintillion
3 The trial court granted the defense's motion in limine which prevented the
State from informing the jury during the guilt/innocence phase that Appellant had been
designated a "sexually violent offender" by the State of California. (2 CR 231 -33, 236).
-10-
Hispanics. (39 RR 245). Appellant's DNA profile was additionally identified in a
handprint on the shoulder of the white blouse that Sheryl Ann Norris had been
wearing at the time of her death. (38 RR 162-65; 39 RR 248-50, 255-58). The
probability of another black individual having the same DNA profile as Appellant's
was reported to be 1 in 44.68 trillion blacks. (39 RR 259).
Records obtained from the military established that in 1975, Appellant was
enlisted in the United States Marine Corps and stationed at the base in Twentynine
Palms, California. (38 RR 187; 49 RR at SX-66). However, Appellant was granted
emergency leave from the base for a period ofthirteen days that began on November
22,1975, just two days before the capital murder. (38 RR 192-93). During that time,
Appellant traveled to Texas to visit his wife who was then hospitalized in San
Antonio. (29 RR 30-32). He also stayed at the home of his wife's father in Marion,
Texas, which is located about 30 miles from San Marcos where the murder occurred.
(29 RR 38). Appellant was no stranger to the area: he grew up in Marion and attended
one semester at Southwest Texas State University on a football scholarship before
quitting to join the Marines. (38 RR 153; 39 RR 24-25).
The defense moved for an instructed verdict, alleging that the State failed to
establish that Appellant was guilty ofmurder and that DNA evidence only connected
Appellant to a sexual assault, and the trial court denied the motion. (39 RR 282). The
-11-
defense presented no witnesses at the guilt-innocence stage. During closing argument,
defense counsel presented the following defensive theories: that DNA evidence
proves Appellant committed a sex act, possibly forcibly, but not a murder (40 RR 24-
25,28); that Sheryl's boyfriend Wayne was a "dope dealer" who might have exposed
her to individuals who caused her death (40 RR 27-28); that the State never checked
Wayne's alibi (40 RR 25); and that the State failed to meet its burden of establishing
Appellant's guilt beyond a reasonable doubt because the ligatures tied around
Sheryl's neck were lost and had never tested for DNA (id. at 26-27).
SUMMARY OF THE ARGUMENT
State's Reply to Point of Error 1: Appellant fails to briefhis stated claim that
evidence is insufficient to show that he deliberately killed Sheryl AnnNorris. Instead,
he asserts that there is no evidence linking him to the killing, which is a challenge to
the sufficiency of the evidence at trial. By failing to brief the initial issue, Appellant
has waived it on appeal. Regardless, the evidence is legally sufficient to support
Appellant's capital murder conviction and the jury's affirmative answer to the
deliberateness special issue. The evidence at trial established a well-confined timeline
of events proving that Appellant's commission of aggravated rape was attendant to
Sheryl's death, both circumstantially and forensically. Appellant's DNA profile was
identified in semen located inside the victim and on her clothing. The medical
-12-
examiner's testimony and evidence regarding the positioning of Sheryl's body was
consistent with someone being deliberately strangled and drowned. The Court should
therefore overrule Appellant's first point of error.
State's Reply to Point of Error 2: The trial court properly admitted DNA
evidence which conclusively linked Appellant's DNA profile to semen recovered
from inside and on the victim. Following a hearing, the trial court denied Appellant's
motion to suppress all DNA results as fruit of the poisonous tree. Appellant
complained that the DPS Crime Lab failed to use a reagent blank and thus never
should have submitted any DNA profile into CODIS. The FBI standards that
Appellant relied upon did not apply to extracts obtained in 1997. Regardless, the DPS
Crime Lab did use a reagent blank in 1997, and subsequent testing in 1999 and 2010
using the same extraction did not need a new reagent. Because the trial court did not
abuse its discretion in denying Appellant's motion, the Court should reject
Appellant's claim.
State's Reply to Point of Error 3: The trial court did not prevent Appellant
from presenting mitigating evidence at punishment. Prior to trial, Appellant filed an
"Offer to Enter Plea of Guilty." He cites noting in the record to prove that he ever
tried to introduce this "evidence" at punishment and was denied by the trial court. The
Court should reject the claim as inadequately briefed and waived on appeal.
-13-
State's Reply to Point of Error 4: Although juror misconduct did occur when
one juror sent text messages to a childhood friend, the trial court took appropriate
remedial actions that preserved the integrity of the punishment phase proceedings.
Because Appellant failed to show harm, the trial court did not abuse its discretion in
denying a new trial.
State's Reply to Point of Error 5: Appellant fails to show error in the four
preceding claims, so the Court should reject his claim of cumulative error because
non-error cannot be aggregated.
State's Reply to Points of Error 6 to 19: In fourteen points of error,
Appellant rehashes arguments that have been rejected by this Court on multiple
occasions over many years—the "10-12" Rule and no instruction on the effect of a
hold-out juror (Issue 6); no instructions on victim impact evidence (Issue 7); no
instructions defining "probability," "criminal acts of violence," "militates," and
"continuing thereat to society" (Issues 8,9,10,11); no instruction limiting militating
evidence to that which might reduce moral blameworthiness (Issue 12); no instruction
requiring consideration ofmitigating evidence (Issue 13); no instruction that there is
no presumption in favor ofdeath or requirement to consider mitigating circumstances
independently (Issue 14); no instruction providing a vehicle for jurors to return a
verdict for life imprisonment (Issue 15); failure to quash the indictment because the
-14-
special issues were not pled as required under Apprendi v. New Jersey, 530 U.S. 466
(2000) (Issue 16); failing to preclude the death penalty as a sentencing option based
on Bush v. Gore, 531 U.S. 98 (2000) (Issue 17); no vehicle for jurors to express a
"reasoned moral response" to the evidence (Issue 18); and no satisfactory process for
jurors to consider and give effect to mitigating circumstances (Issue 19).
Appellant failed to present several claims to the trial court (Issues 7,10,12,14,
15, 16(b)-(e), 18 and 19), and must show fundamental error and egregious harm on
appeal. Regardless, he cannot show that any claim has merit. Appellant cannot
overcome the presumption that jurors understood the instructions in their intended
meaning, followed the instructions given, and acted rationally in discharging their
duties. See, e.g., Hutch v. State, 922 S.W.2d 166, 172 (Tex. Crim. App. 1996);
Richardson v. State, 879 S.W.2d 874, 882 (Tex. Crim. App. 1993). The special
punishment issues and instructions submitted to the jury have consistently been found
to be constitutional, and Appellant suggests nothing new for this Court to hold
otherwise. Because the issues have been thoroughly litigated, examined, explained,
and rejected ad infinitum, the Court should overrule Appellant's sixth to nineteenth
points of error.
-15-
ARGUMENT
STATE'S REPLY TO POINT OF ERROR 1
(SUFFICIENCY OF THE EVIDENCE)
In his first point of error, Appellant contends that his death sentence must be
reformed to life imprisonment because the evidence is legally insufficient to establish
that he deliberately caused the death of Sheryl Ann Norris. (Appellant's Br. 47-49)
The first special issue at punishment concerned whether Appellant caused Norris's
death deliberately. (2 CR 336). However, Appellant also contends that he is entitled
to an acquittal because the State failed to prove the underlying offense of murder.
(Appellant's Br. 49).4 Regardless, the evidence is legally sufficient to support the
jury's verdict at trial and its affirmative answer to the deliberateness issue so the
Court should overrule Appellant's first point of error.
The evidence is legally sufficient to support Appellant's capital murder
conviction.
The indictment in this case alleged that Appellant intentionally caused the
death of Sheryl Ann Norris by strangling her (paragraph One) or drowning her
(paragraph Two) in the course ofhis committing or attempting to commit aggravated
4 Appellant states thathissentence should bereformed to a lifesentence andthat
he is entitled to an acquittal. (Appellant's Br. 47,49). Acquittal is not an option if the Court
finds that evidence is legally insufficient to support an affirmative answer to a special issue.
Instead, Article 44.2511(b) ofthe Texas Code ofCriminal Procedure requires that a sentence
of death be reformed to a sentence of confinement for life.
-16-
rape. (1 CR 4). At the close of evidence, the jury convicted Appellant of capital
murder as charged in the indictment. (2 CR 327).
In reviewing the sufficiency ofthe evidence, an appellate court must determine
whether, considering all the evidence in the light most favorable to the verdict, the
jury was rationally justified in finding guilt beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307,319 (1979); Brooks v. State, 323 S.W.3d 893,899 (Tex. Crim.
App. 2010). "Circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor, and [can alone] be sufficient to establish guilt."
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Guevara v. State,
152 S.W.3d 45, 49 (Tex. Crim. App. 2004)).
A person commits murder if he "intentionally or knowingly causes the death
of an individual." Tex. Penal Code § 19.02(b)(1). A person commits capital murder
if he "commits murder as defined under Section 19.02(b)(1), and:... (2) the person
intentionally commits the murder in the course ofcommitting or attempting to commit
... aggravated sexual assault[.]" Id., § 19.03(a). Appellant concedes in his brief that
evidence "may support a rational jury's finding of aggravated sexual assault," but
argues there is "no evidence" to support a finding of murder and that the scarves
recovered from around the victim's neck were lost. (Appellant's Br. 49).
•17-
The evidence at trial established a well-confined timeline ofevents proving that
Appellant committed the aggravated rape of Sheryl Ann Norris and that the rape was
attendant to her death, both circumstantially and forensically. Sheryl's former
supervisor testified that on November 24, 1975, Sheryl left the office at 12:05 p.m.
(37 RR 110). A map of the area showed that Sheryl's apartment was located only a
short distance from work, which made it a 5 or 10 minute trip for her to return home.
(37 RR 112-14,138; 49 RR at SX-15). Sheryl's body was found partly submerged in
water in the bathtub, with her neck tightly tied with ligatures. (37 RR 177, 186, 212,
220; 38 RR 102,108; 49 RR at SX-40 to SX-42, SX-49). Her watch, also submerged
in water, had stopped at 12:31 p.m., just 15 to 20 minutes after she would have
returned home. (37 RR 263; 38 RR 110; 49 RR at SX-51). Forensic testing identified
Appellant's DNA profile in semen recovered inside Sheryl's body and in the
handprint found on her white shirt. (37 RR 222-23; 39 RR 255-56,237-38). Because
the evidence only supports a theory that Appellant was continually involved the crime
from beginning to end, the evidence is legally sufficient to support the jury's verdict
that Appellant was guilty of capital murder beyond a reasonable doubt.
The evidence is legally sufficient to support the jury's affirmative
answer to the deliberateness special issue.
To the extent Appellant challenges the sufficiency ofthe evidence showing the
•18-
he deliberately caused Sheryl Ann Norris's death, the claim should be rejected.
Appellant provides no explanation for why he believes the evidence is insufficient
apart from the caption of his claim. (Appellant's Br. 47-49). His contention that the
State failed to prove he committed murder and that scarves were lost are, at best,
challenges to the sufficiency ofthe evidence at trial. (Appellant's Br. 49). Appellant's
claim is inadequately briefed and the issue is therefore waived on appeal. See Tex. R.
App. P. 38.1(i) (requiring a brief to contain a clear and concise argument for the
contentions made, with appropriate citations to authorities). Even if the claim is
preserved, the evidence is legally sufficient to show that Appellant acted
"deliberately" within the meaning of Tex. Code Crim. Proc. art. 37.0711, § 3(b)(1).
At the punishment phase, the jury answered affirmatively the first special issue
which asked "Do you find from the evidence beyond a reasonable doubt that the
conduct of the Defendant, Willie Roy Jenkins, that caused the death of the deceased
was committed deliberately and with the reasonable expectation that the death ofthe
decedent, Sheryl Ann Norris, would result?" (2 CR 336). This Court reviews the
sufficiency of the evidence supporting the jury's affirmative finding using the
Jackson v. Virginia legal-sufficiency standard.5 Before answering "yes" to the
5 Challenges to the sufficiency of the jury's affirmative answer to the
deliberateness special issue were previously reviewed for factual sufficiency. Wardrip v.
State, 56 S.W.3d 588, 591 (Tex. Crim. App. 2001) (citing Clewis v. State, 922 S.W.2d 126,
-19-
deliberateness special issue, the jury needed to find "a moment ofdeliberation and the
determination on the part ofthe actor to kill[.]" Cannon v. State, 691 S.W.2d 664,667
(Tex. Crim. App. 1985). "An act need not be premeditated to be deliberate, however,
and the killing may occur during a 'frenzy.'" Wardrip v. State, 56 S.W.3d at 592
(citingHavardv. State, 800 S.W.2d 195, 212 (Tex. Crim. App. 1989), and Granviel
v. State, 552 S.W.2d 107, 122-23 (Tex. Crim. App. 1976)).
In this case, the evidence ofthe circumstances ofthe capital crime is sufficient
to support the jury's determination that Appellant acted deliberately in causing the
death of Sheryl Ann Norris. A rational trier of fact would have found the above-
described timeline of events to be compelling evidence of Appellant's deliberate
conduct. Additionally, the medical examiner testified that death by drowning or
strangulation is not a quick death (38 RR 114-15); that it is typical a victim would
struggle with the assailant (id. at 116); that even if the victim temporarily loses
consciousness after having blood flow cut off, the assailant must continue to exert
sufficient force for several minutes in order to kill the victim (id. at 116-17); and that
death by strangulation at the hands of another is not something that occurs
unintentionally (id. at 117). The deliberateness ofAppellant's actions are also shown
129 (Tex. Crim. App. 1996)). The Court subsequently "overruled Clewis and, in effect,
overruled the Wardrip factual-sufficiency holding as well." Martinez v. State, 327 S.W.3d
727, 736 (Tex. Crim. App. 2010) (citing Brooks v. State, 323 S.W.3d at 895).
-20-
by the tightly knotted ligature around Sheryl's neck and the fact that she was bent
over backwards in the bathtub submerged in water. (3 7 RR 177,186,212; 38 RR 102,
108; 49 RR at SX-40 to SX-42, SX-49). Jurors were also faced with evidence of the
frenzied nature ofAppellant's attack including money scattered on the floor; the hole
in the sheetrock wall and white powdery substance on Sheryl's boot and clothing; a
trial of feces leading from the center of the bed, to the sheet, to the bathroom floor,
and underneath Sheryl's body; and the presence of blood mixed with feces around
Sheryl's buttocks and genital area. (37 R R 218, 258, 260). The jury had sufficient
evidence to find beyond a reasonable doubt that when Appellant left Sheryl bent over
backwards in a tub full ofwater with her head submerged and a scarftightly knotted
around her neck, that it would be reasonable to believe her death would result. The
Court should therefore overrule Appellant's first point of error.
STATE'S REPLY TO POINT OF ERROR 2
(FAILURE TO SUPPRESS DNA EVIDENCE)
Appellant contends that the trial court erred in failing to suppress any and all
DNA evidence and testimony due to the failure of the testing to meet quality
assurance standards. (Appellant's Br. 49-55). On the record in this case, the trial court
properly admitted reliable scientific DNA evidence which conclusively linked
Appellant's DNA profile to semen recovered from inside and on the victim.
-21-
Determination ofthe admissibility ofevidence rests within the sound discretion
of the trial court. The trial court's admission of evidence will not be disturbed absent
a clear abuse of discretion. To show a clear abuse of discretion requires more than a
showing that this Court disagrees with the trial court's determination of the issue.
Rather, a clear abuse ofdiscretion is shown only when the trial court's determination
falls outside "the zone of reasonable disagreement." Montgomery v. State, 810
S.W.2d 372, 386, 391 (Tex. Crim. App. 1991). An appellate court's review in
conducted in light ofthe evidence before the trial court at the time the disputed ruling
was made. Hayes v. State, 982 S.W.2d 419, 422 (Tex. Crim. App. 1990).
This Court applies a three-part reliability test to determine the admissibility of
scientific testimony under Tex. R. Evid. 702: (1) the scientific theory must be valid;
(2) the technique applying the theory must be valid; and (3) the technique in question
must have been properly applied on the occasion in question. Kelly v. State, 824
S.W.2d 568, 573 (Tex. Crim. App. 1992).
Appellant filed a motion to suppress "any and all DNA evidence and testimony
which the State intends to offer" contending that the results were unconstitutionally
obtained as fruit of the poisonous tree. (2 CR 317-18). More specifically, Appellant
claimed that all DNA samples uploaded into CODIS must satisfy the FBI's quality
assurance standards which include using a reagent blank control. (2 CR 317).
-22-
Appellant's motion stated that no reagent blank control was used by the DPS Crime
Lab in 1997 when it extracted the original DNA sample from the vaginal smear (item
14-B) and continuing through the final DNA testing in 2010 which generated the
"hit" in the CODIS database. He argued that the DNA results should never have been
loaded into CODIS because they lacked the quality required by FBI standards, Texas
law, and DPS protocol. Appellant supported his motion with a "Deviation Report"
issued by the DPS Crime Lab in June of 2010. (51 RR at DX-MS-1).
The trial court conducted a hearing on Appellant's motion during which it
heard argument from the parties (39 RR 141-46), and the State presented three
exhibits in rebuttal. (49 RR at SX-MS-1, -2, -3). At the conclusion ofthe hearing, the
trial court denied Appellant's motion. (39 RR 146). The ruling was no abuse of the
court's discretion.
The FBI standards that Appellant relied upon only apply to samples that are
extracted "on or after July 1, 2009." (51 RR at DX-MS-1). Those standards did not
apply to the extracts obtained by the DPS Crime in 1997. (39 RR 54,57). Regardless,
the DPS Crime Lab did use a reagent blank control when it obtained the original
extractions in 1997, as evidenced by the Reagent Blank Extraction Log. (49 RR at
SX-79A). The Standard Operating procedure followed by the DPS Crime Lab in 1997
went above and beyond the standards required by the FBI at the time the extract was
-23-
obtained. (See 49 RR at SX-MS-2). Additionally, before the hearing, Javier Flores,
the former DPS forensic examiner who obtained the original extraction from the
vaginal smear slide in 1997, testified before the jury regarding the "checks and
balances throughout the screening, extraction, amplification, and interpretation
processes," the use of proficiency testing and certification, and the fact that the DPS
Crime Lab is nationally accredited. (E.g., 39 RR 53-56).
Appellant argues that the State failed to meet its burden because "the State's
very own witnesses explained they did not perform the reagent blanks on the old
extractions made by Javier Flores." (Appellant's Br. 55). There was testimony
following the hearing from DPS forensic examiners Cassie Carradine and Negin
Kuhlmann in which both witnesses explained that no reagent was used for additional
testing conducted on the existing extract. (E.g., 39 RR 193, 204, 227). That testing
did not violate the FBI standards relied on at the hearing. Reagent blanks were used
for any new samples that were obtained as well as when a sample ofthe "old" extract
was amplified. (39 RR 193, 209-10, 227; 49 RR at SX-79B). While this testimony
strengthens the State's argument, it is not relevant to this Court review because it was
not part of the record at the time the trial court denied Appellant's motion. Hayes v.
State, 982 S.W.2d at 482.
-24-
Considered together, Appellant failed to show that the DNA results were
scientifically unreliable and warranted suppression. Because the trial court did not
abuse its discretion in denying Appellant's motion, the Court should affirm the ruling
and overrule Appellant's point of error.
STATE'S REPLY TO POINT OF ERROR 3
(ADMISSIBILITY OF EVIDENCE OF WILLINGNESS TO PLEA)
In his third point of error, Appellant argues that the trial court erred in not
allowing evidence of his willingness to enter a plea to aggravated sexual assault
because the evidence was relevant to the jury's deliberation ofthe mitigation special
issue. (Appellant's Br. 55-56). Appellant fails to adequately brief the issue and
waives it on appeal. In any event, the trial court did not prevent Appellant from
presenting mitigating evidence.
An appellate court reviews a trial court's exclusion of evidence for an abuse
of discretion. Montgomery v. State, 810 S.W.2d at 391. An abuse of discretion of
established "only when the trial judge's decision was so clearly wrong as to lie
outside that zone within which reasonable persons might disagree." Cantu v. State,
842 S.W.2d 667, 682 (Tex. Crim. App. 1992).
Prior to trial, Appellant filed an "Offer to Enter Plea of Guilty" stating that he
"hereby offers to enter a plea of 'Guilty' to the offense ofCapital Murder in exchange
-25-
for a sentence of life imprisonment." (2 CR 264). The "Offer" also stated that
Appellant was willing to plead guilty to burglary ofa habitation with intent to commit
sexual assault, but wanted to enter the two pleas on separate dates so that TDCJ might
not consider them a single plea making the sentences stacked. (Id.).
Although Appellant asserts that his offer "was denied," he does not indicate by
whom or what authority. (Appellant's Br. 55). Even more importantly, Appellant cites
noting in the record establishing that he ever tried to introduce this so-called
"evidence" at punishment and was denied by the trial court. Rule 38.1 (h) ofthe Texas
Rule of Appellate Procedure requires that a brief contain "a clear and concise
argument for the contentions made, with appropriate citations to authorities and to the
record." Tex. R. App. P. 38.1 (h). Inadequately briefed issues like Appellant's may be
waived on appeal. McCarthy v. State, 65 S.W.3d 47,49 n.2 (Tex. Crim. App. 2001);
see Busby v. State, 253 S.W.3d 661,673 (Tex. Crim. App. 2008) (affirming that court
has no obligation "to construct and compose" a party's "issues, facts, and arguments
'with appropriate citations to authorities and to the record'") (citing Tex. R. App. P.
38.1(e),(f),(h)).
Yet even if Appellant could prove the trial court denied his request to present
the instant offer to plea as mitigating evidence at punishment, a defendant does not
automatically have a right to introduce self-serving documentary evidence simply
-26-
because he claims it has mitigating value. If Appellant was actually remorseful for
his crimes, he could have taken the stand and testified to that fact at punishment.
Because Appellant's claim does not show error on any part by the trial court, the
Court should not hesitate to overrule this point of ercor.
STATE'S REPLY TO POINT OF ERROR 4
(FAILURE TO GRANT A MISTRIAL)
Appellant contends that the trial court erred in denying his motion for mistrial
after it was brought to the trial court's attention that a juror had sent text messages
during trial. (Appellant's Br. 56-60). Article 36.22 of the Texas Code of Criminal
Procedure provides that "No person shall be permitted to converse with a juror about
the case on trial except in the presence and by the permission ofthe court." Tex. Code
Crim. Proc. art. 36.22. "When a juror converses with an unauthorized person about
the case, injury is presumed, and a new trial may be warranted." Hughes v. State, 24
S.W.3d 883, 842 (Tex. Crim. App. 2000). No new trial was warranted here because
the trial court's actions remedied the situation and preserved the integrity of the
punishment phase proceedings. The Court should affirm the trial court's ruling as no
abuse of discretion and reject Appellant's point of error.
A trial court's denial of a mistrial is reviewed for an abuse of discretion. Webb
v. State, 232 S.W.3d 109,112 (Tex. Crim. App. 2007)."An appellate court views the
-27-
evidence in the light most favorable to the trial court's ruling, considering only those
arguments before the court at the time ofthe ruling." Ocon v. State, 284 S.W.3d 880,
884 (Tex. Crim. App. 2009). The trial court's ruling must be uphold if it was within
the "zone of reasonable disagreement." Id. (citing Weadv. State, 129 S.W.3d 126,
129 (Tex. Crim. App. 2004)). An abuse ofdiscretion exists "when no reasonable view
ofthe record could support the trial court's ruling." Charles v. State, 146 S.W.3d 204,
208 (Tex. Crim. App. 2004).
While the record in this case evidences juror misconduct, it does not support
that Appellant suffered any injury as a result. During the punishment phase
proceedings, the trial court was contacted by Judith Davis, a local attorney, who had
information that juror Tim Altenhoff had communicated with a friend about the
capital case. (45 RR 6). Ms. Davis attested that Mr. Altenhoff recently sent several
text messages to Jan Ellis, a mutual friend who lived in New York City, asking Ms.
Ellis to call him so that he could tell her about the murder trial. (45 RR 6, 8). The trial
court conducted a hearing on juror misconduct during which Ms. Davis testified that
Jan Ellis contacted her about having received text messages from Mr. Altenhoff. (45
r
RR 8-9). Ms. Ellis forwarded the text messages to Ms. Davis, and they were read into
the record along with the text messages exchanged between Davis and Ellis. (45 RR
11-15). In the first message to Ms. Ellis, Mr. Altenhoff texted: "What's up? If you
-28-
have a few minutes, give me a call at home and I'll tell you what I can about the
murder trial I'm on." (45 RR 12). In a second message, Mr. Altenhoff sent his phone
number. (45 RR 12-13). Ms. Ellis asked the name of the case and Mr. Altenhoff
replied: "State versus Willie Jenkins." (45 RR 13, 14). When Ms. Ellis texted "That
can't be the one from when we were in high school?," Mr. Altenhoff replied "Yep."
(45 RR 15). Ms. Ellis additionally sent a message to Davis saying that she did not
remember any discussions about the case in 1975, but "[w]e were in high school and
everybody knew about it." (45 RR 14).
Appellant moved for a mistrial based on juror Altenhoff s prohibited
communication with Jan Ellis. (45 RR 24). The State did not dispute that misconduct
occurred under Article 36.22. In order to determine whether Appellant suffered
injury, all twelve jurors were questioned about whether Mr. Altenhoff had discussed
information outside the record that concerned the case and whether any juror had any
knowledge ofhis violating any other instructions from the court. Each juror answered
the questions negatively. (45 RR 35-36, 37-39, 40-41, 41-43, 44-45, 46-48, 48-49,
50-51, 52-53, 53-54, 55-56, 56-57). Finally, Mr. Altenhoff testified that he did not
remember anything about the capital murder until he was called for jury duty and did
not recall this case being the murder that occurred while he was in high school until
Jan Ellis mentioned it in the text message. (45 RR 70-71).
-29-
The trial court found that Mr. Altenhoff violated the court's instructions by
texting someone (45 RR 74); there has been no sharing of any information by Mr.
Altenhoff with the jurors (45 RR 58); that the misconduct was "not as big and major
an issue" after talking to all twelve jurors (45 RR 74); that the person who actually
remembered about the murder being from around the time of high school was Jan
Ellis, not Altenhoff (45 RR 74, 76); and that Mr. Altenhoff s testimony was credible
in responding that he did not remember the murder (45 RR 76). The court therefore
overruled Appellant's motion for mistrial. (45 RR 76).
This Court has cautioned that a mistrial is an extreme remedy that should be
granted "only when residual prejudice remains" and after less dramatic alternatives
are explored. Ocon v. State, 284 S.W.3d at 884-85. Consistent with that holding, the
trial court remedied the juror misconduct by striking Mr. Altenhoff, replacing him
with the alternate juror, questioning all the jurors about potential harm, and
instructing the jury to refrain from any communications and to follow to follow the
rules imposed on them. Because Appellant cannot show that the denial of a mistrial
was an abuse of discretion, the Court should overrule this point of error.
STATE'S REPLY TO POINT OF ERROR 5
(CUMULATIVE ERROR)
Appellant asserts that when his four preceding claims of insufficiency of the
-30-
evidence and trial-court error are viewed together, the combined effect deprived him
of a fundamentally fair trial. (Appellant's Br. 61-62). Appellant cannot avail himself
of the cumulative error doctrine.
This Court has recognized that the cumulative effect of several errors can, in
the aggregate, constitute reversible enor even though no single instance of enor
would suffice. Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999).
For the doctrine to apply, the alleged enors must actually constitute enor. Gamboa
v. State, 296 S.W.3d 574, 585 (Tex. Crim. App. 2009). Non-enors cannot become
enor cumulatively. See id.
Appellant's first four points of enor are all without merit, as set forth in the
State's reply to each claim above. Because there is no individual enor, there is
nothing that could interact to have a cumulative effect. The Court should hold that
this claim is meritless and overrule Appellant's fifth point of enor.
STATE'S REPLY TO POINT OF ERROR 6
("10-12" RULE AND NO INSTRUCTION
ON EFFECT OF HOLD-OUT JUROR)
Appellant raises seven claims challenging the constitutionality of the trial
court's jury instructions on the "10-12" Rule and the prohibition against informing
-31-
thejury ofthe effect ofa single hold-outjuror. (Appellant's Br. 62-72)..6 He maintains
that the trial court's instructions, or lack thereof in the case of the hold-out juror,
violated his Sixth, Eighth, and Fourteenth Amendment rights. To the contrary, the
trial court did not en because this Court has previously rejected the claims cunently
advanced by Appellant.
The trial court properly instructed the jury, in accordance with Tex. Code Crim.
Proc. art. 37.0711, § 3(d)(l)-(2), that in deciding whether Appellant deliberately
caused the death of Sheryl Ann Nonis, "You may not answer Special Issue Number
One 'Yes' unless you agree unanimously" and "You may not answer [the issue] 'No'
unless ten (10) or more jurors agree." (2 CR 331). The jury received a similar
instruction regarding its deliberation of the second special issue on future
dangerousness. (2 CR 331-32). The jury was further instructed, pursuant to article
37.0711, § 3(f)(l)-(2), that if it reached the final special issue on mitigation, "You
may not answer Special Issue Number Three 'No' unless you agree unanimously" and
"You may not answer [the issue] 'Yes' unless ten (10) or more jurors agree." (2 CR
332). The trial court did not inform the jury of the effect of a failure of the jury to
6 Appellant presented his arguments in a "Motion to Declare the ' 10-12 Rule'
Unconstitutional," which was denied. (1 CR 32-56; 2 CR 261). He also filed a "Motion for
Jury Instruction" on the failure ofjurors to agree on answers to the special issues. (1 CR 135-
38). The request was presumably denied since no instruction was provided.
-32-
agree on a special issue. Tex. Code Crim. Proc. art. 37.0711, § 3(i).
Appellant asserts that the trial court's instructions were unconstitutional,
although he acknowledges his claims have been rejected. (Appellant's Br. 63 & n. 5)
(citing Lawton v. State, 913 S.W.2d 542, 558 (Tex. Crim. App. 1995); Lagrone v.
State, 942 S.W.2d 602, 620 (Tex. Crim. App. 1997)). Appellant offers no reason for
the Court should reconsider its prior decisions. Nor should the Court do so.
In Point ofEnor 6(a), Appellant asserts that the 10-12 Rule violates the Eighth
Amendment's need for heightened reliability. (Appellant's Br. 64-65) (citing
Caldwell v Mississippi, All U.S. 320, 323 (1985)). This Court has already decided
the issue adversely to Appellant. Prystash v. State, 3 S.W.3d 522,536-37 (Tex. Crim.
App. 1999) (explaining that one ofthe underlying values ofthe Caldwell decision "is
to ensure the proper level ofjuror deliberation," and that the 10-12 Rule "serves this
value by not giving the jury the consequences ofa nonverdict, while at the same time
it ensures that the death penalty will not be imposed without the unanimous consent
ofthe jury"); accord Davis v. State, 782 S.W.2d 211,221 -22 (Tex. Crim. App. 1989)
(rejecting Due Process claim based on failure to inform the jury about the effect of
a failure to agree on a special issue).
In Point of Enor 6(b), Appellant alleges that the trial court's jury instructions
violate the constitutional principles in set forth in Mills v. Maryland, 486 U.S. 367
-33-
(1988). (Appellant's Br. 65-66). This Court has distinguished Mills and decided the
issue adversely to Appellant. E.g., Williams v. State, 301 S.W.3d 675, 694 (Tex.
Crim. App. 2009); Busby v. State, 253 S.W.3d at 667; Russeau v. State, 171 S.W.3d
871, 886 (Tex. Crim. App. 2005); Lawton v. State, 913 S.W.2d at 558-59.
In Point of Enor 6(c), Apellant argues that the 10-12 Rule denies the right to
a fair and impartial trial because jurors might have misconceptions about the law and
are forced to guess about the effect of a deadlock. (Appellant's Br. 66-68) (citing
Lockhart v. McCree, 476 U.S. 162 (1986)). Appellant's speculation is no ground for
enor. This Court has "consistently held that '[t]here is no constitutional prohibition
to concealing from the jurors the consequences oftheir deliberations, so long as they
are not misled into believing that ultimate responsibility for the verdict rests
elsewhere.'" Threadgill v. State, 146 S.W.3d 654, 673 (Tex. Crim. App. 2004)
(quoting Prystash v. State, 3 S.W.3d at 532).
In Point of Enor 6(d), Appellant contends that the 10-12 Rule prevents a
defendant from receiving effective assistance of counsel because it disallows
"informing the jury of the true state of the law." (Appellant's Br. 68) (citing Burley
v. Cabana, 818 F.2d 414, 418 (5th Cir. 1987)). In Burley, the Fifth Circuit Court of
Appeals held that trial counsel was ineffective under Strickland because counsel
failed to conect the trial court's enoneous statement that it believed a life sentence
-34-
was mandatory. 818 F.2d at 417-18. That situation did not occur here. Appellant does
not identify any inconect or enoneous statement in the jury charge for which counsel
was constitutionally ineffective in failing to call to the trial court's attention. If
Appellant maintains that the "true state of the law" means informing the jury about
the consequence of the jury's potential inability to answer a special issue, his
argument fails. The Court has rejected the claim that the 10-12 Rule affirmatively
disallows the trial court or its officers from curing any "misleading effect" and held
that jurors are not misled by the instructions. Hathorn v. State, 848 S.W.2d 101,124-
25 (Tex. Crim. App. 1992)(citing Draughon v. State, 831 S.W.2d 331, 337 (Tex.
Crim. App. 1992)). Again, there is '"no constitutional prohibition to concealing from
the jurors the consequences oftheir deliberations[.]'" Threadgillv. State, 146 S.W.3d
at 673 (quoting Prystash v. State, 3 S.W.3d at 532).
In Point of Enor 6(e), Appellant contends that the 10-12 Rule has a coercive
effect on the jury, thus rendering the trial court's instructions unconstitutional.
(Appellant's Br. 69) (citing Jenkins v. United States, 380 U.S. 445,446 (1965)). This
Court has previously decided the issue adversely to Appellant. Estrada v. State, 313
S.W.3d274,306 (Tex. Crim. App. 2010) (citingEscamillav. State, 143 S.W.3d 814,
828 (Tex. Crim. App. 2004)).
-35-
In Point of Enor 6(f), Appellant argues that the 10-12 Rule violates his right
to Equal Protection because it "leaves jurors in the dark" about the fact that their
failure to unanimously agree on an answer to the special issues results in a life
sentence. (Appellant's Br. 70). The Court has rejected Fourteenth Amendment claims
in this very context. Gonzales v. State, 353 S.W.3d 826, 837 (Tex. Crim. App. 2011);
Williams v. State, 301 S.W.3d at 694; Druery v. State, 225 S.W.3d 491, 509 (Tex.
Crim. App. 2007).
Finally, in Point ofEnor 6(g), Appellant contends the 10-12 Rule deprived the
jury of "an effective vehicle for expressing its reasoned moral response to the
evidence it heard." (Appellant's Br. 71) (internal quotations omitted). However,
Appellant does not identify any evidence that was beyond the scope of the three
statutorily-mandated special issues. Appellant also contends that the State obtained
a death sentence "while concealing a mechanism which might have resulted in a
sentence of life[.]" (Appellant's Br. 71-72) (citing Simmons v. South Carolina, 512
U.S. 154, 169 (1994)). Simmons held that in a capital case "where the defendant's
future dangerousness is at issue, and state law prohibits the defendant's release on
parole, due process requires that the sentencing jury be informed that the defendant
is parole ineligible." 512 U.S. at 156. Unlike Simmons, there was no information
relevant to sentencing that was concealed from Appellant's jury. Appellant appears
-36-
to be contending that the trial court ened by not instructing the jury that each juror
had the power to prevent assessment of the death penalty by blocking a unanimous
verdict for the State. However, he has no constitutional or statutory right to such an
instruction and the Court has rejected the claim. Perry v. State, 158 S.W.3d 438,449
(Tex. Crim. App. 2004) (citing Cathey v. State, 992 S.W.2d 460, 466 (Tex. Crim.
App. 1999)). Considered together, Appellant's arguments offer no basis for the Court
to consider revisiting its well established precedent. The Court should overrule
Appellant's sixth point of enor.
STATE'S REPLY TO POINT OF ERROR 7
(NO INSTRUCTIONS ON VICTIM IMPACT EVIDENCE)
Appellant contends that the trial court's failure to instruct the jury regarding
victim impact evidence violated his Eighth and Fourteenth Amendments ofthe United
States Constitution. (Appellant's Br. 73-79). The complained-of, omitted instructions
are (1) that the jury should have been instructed that its consideration of victim
impact evidence should not be conducted in connection with the future-
dangerousness special issue, (2) that the jury's consideration of victim impact
evidence does not relieve the State of its burden to prove the "future dangerousness"
issue beyond a reasonable doubt; (3) that the jury must disregard victim impact
evidence that was not shown to be within the knowledge or reasonable expectation
-37-
of the defendant; and (4) that jurors may not make a comparative worth analysis of
the value of the victims to their families and the community compared to the
defendant or other members of society. (Id.).
In reviewing a claim of jury-charge enor, an appellate court first determines
whether enor occuned. See Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App.
2013). Ifthe defendant did object at trial, then he will obtain reliefifthe record shows
that he suffered "some harm." Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.
App. 1985). Ifhe did not object, then he must show that the enor was "fundamental"
and that he suffered "egregious harm." Id.
Assuming for the sake of argument that Appellant was entitled to the above
instructions, he never requested them from the trial court. He also has failed to
identify any statutory provision requiring that the above-listed instructions be
provided. Without the request for an instruction, Appellant would be entitled to relief
only if the record showed that he suffered egregious harm. Almanza v. State, 686
S.W.2d at 171. He cannot make that showing.
As an initial matter, Appellant points to no specific testimony that is victim
impact evidence. He states, at best, that "[considerable victim character and victim
impactevidencewas introducedat [his] trial,mostnotablyfromthe deceased's sisters
and also that her parents were now deceased, and died not knowing who killed their
-38-
daughter." (Appellant's Br. 74) (citing 37 RR 84; 38 RR 132 et seq.). The first cite
is to a page of testimony from Sheryl's older sister (37 RR 84), while the second cite
is to the entirety of testimony from Corporal Dunn (38 RR 132 et seq.). Without
more, the Court has no reason to find that there is any victim impact testimony on
which the trial court might have offered an instruction.
The Court also has no reason to find that jurors were urged to make any kind
ofcomparative worth analysis. Appellant acknowledges in his briefthat the State "did
not explicitly" argue for such a comparison. (Appellant's Br. 78-79). In such instance,
there would be no need for the trial court to offer any instruction to jurors against
making a comparison.
In any event, the Court has held on more than one occasion that the trial court
does not en in failing to submit the very instructions that Appellant now contends
should have been submitted on appeal. Leza v. State, 351 S.W.3d 344, 361 & n. 71
(Tex. Crim. App. 2011) (citing Mays v. State, 318 S.W.3d 368, 391 & n. 85 (Tex.
Crim. App. 2010); Saldano v. State,131S.W.3d at 105-07). Because Appellant offers
no reason to reconsider established precedent, the Court should overrule his seventh
point of enor.
-39-
STATE'S REPLY TO POINTS OF ERROR 8-11
(NO INSTRUCTION DEFINING TERMS)
In his eighth, ninth, and eleventh points ofenor, Appellant complains that the
trial court failed to define terms "probability," "criminal acts of violence," and
"continuing threat to society," as used in the special issue on future dangerousness.
(Appellant's Br. 79-85, 89-91). He asserts that because the terms were not defined,
the special issue was "vague and overbroad," possibly resulting in the arbitrary and
capricious imposition of a death sentence in violation of the Eighth and Fourteenth
Amendments. In his tenth point ofenor, Appellant argues that the trial court's failure
to define the term "militates" violated his First, Eighth, and Fourteenth Amendment
rights by allowing the jury to consider "constitutionally protected personal
characteristics" such as age, race, sex, national origin, religion, political views or
sexual orientation as factors supporting a death sentence. (Appellant's Br. 85-89).
Appellant filed a "Motion to Quash Indictment" which alleged that the Texas
capital sentencing statute is "vague and overbroad" for failing to define
"probability," "criminal acts of violence," and "continuing threat to society." (1 CR
26-27). The trial court denied the motion. (2 CR 260). Appellant did not request that
the term "militates" be defined. Nor did he object to the punishment charge on any
basis. (47 RR 130-131). As a result, Appellant must show that the trial court's
-40-
instructions were enoneous and that he suffered some harm for his first three claims.
Almanza v. State, 686 S.W.2d at 171. For his tenth point of enor regarding
"militates," he must show fundamental enor and egregious harm. Id. He cannot make
either showing.
The trial court properly instructed the jury that in deliberating the special
issues, "You must consider all the evidence of the guilt or innocence stage and the
punishment stage, including but not limited to evidence of the Defendant's
background and character or circumstance of the offense that militates for or
mitigatesagainst the imposition ofthe death penalty." (2 CR 330-31,331) (emphasis
added). The jury returned an affirmative answer to Special Issue Number Two which
asked "Do you find from the evidence beyond a reasonable doubt that there is a
probability that the Defendant, Willie Roy Jenkins, would commit criminal acts of
violencethat would constitute a continuing threat tosociety!" (2 CR 337) (emphasis
added). The terms "probability," "criminal acts of violence," "militates," and
"continuing threat to society" are not statutorily defined, and no definition was
provided by the trial court. (2 CR 330-35).
There is no enor in the trial court's refusing to define any term identified by
Appellant. The Court has rejected claims of constitutional enor, explaining that the
terms need no definition because jurors are presumed to understand their commonly
-41-
accepted meanings. See, e.g., Leza v. State, 351 S.W.3d at 362 (rejecting claim of
constitutional enor in failing to define the terms "militates," "criminal acts of
violence," and "probability"); Coble v. State, 330 S.W.3d 253,297 (Tex. Crim. App.
2010) (future dangerousness special issue is not unconstitutional because the terms
"probability," "criminal acts ofviolence," and "society" are not defined); Gardnerv.
State, 306 S.W.3d 274, 302-03 (Tex. Crim. App. 2009) (no enor in trial court's
refusing to define the terms "probability," "criminal acts ofviolence," "militates," and
"continuing threat to society" because "jury should give them their commonly
accepted meanings"); Feldman v. State, 71 S.W.3d 738, 757 (Tex. Crim. App. 2002)
(no definition needed for "probability," "criminal acts ofviolence," and "continuing
threat to society"); Laddv. State, 3 S.W.3d 547, 572-73 (Tex. Crim. App. 1999) (no
definition needed for "criminal acts of violence," "probability," "continuing threat"
and "society"); Camacho v. State, 864 S.W.2d 524, 536 (Tex. Crim. App. 1993) (no
definition needed for "criminal acts of violence," "probability," and "society").
Appellant acknowledges that the Court has previously resolved each of his
claim adversely to his position. (Appellant's Br. 80, 83, 90). Because Appellant
provides no reason for the Court to consider reexamining its prior holdings, the Court
should overrule Appellant's eighth, ninth, tenth, and eleventh points of enor.
-42-
STATE'S REPLY TO POINT OF ERROR 12 (NO INSTRUCTION
LIMITING SCOPE OF MILITATING EVIDENCE)
Appellant maintains that the trial court violated the Eighth and Fourteenth
Amendments of the United States Constitution by failing to instruct the jury so as to
limit the scope of militating evidence to that which might increase a defendant's
moral blameworthiness. (Appellant's Br. 92-94). He contends that unless the scope
ofmilitating evidence is limited in this manner, jurors might give weight to vague and
overbroad factors beyond a defendant's control. Because Appellant failed to seek an
instruction from the trial court and does not argue that he has suffered egregious harm
as required under Almanza, 686 S.W.2d at 171, the Court should reject the claim.
The trial court conectly instructed the jury, in accordance with Tex. Code
Crim. Proc. art. 37.0711, § 2(b)(l)-(2), that in deliberating the first two special issues,
jurors "shall consider all the evidence of the guilt or innocence stage and the
punishment stage, including but not limited to evidence of the Defendant's
background and character or circumstance of the offense that militates for or
mitigates against the imposition of the death penalty." (2 CR 330-331).
Appellant contends that an instruction limiting the scope ofmilitating evidence
was constitutionally required, but Appellant never requested such an instruction in
-43-
the trial court.7 Nor did he object to the punishment charge before it was submitted
to the jury. (47 RR 130-31). To preserve an issue for appeal, a party must make a
timely, specific objection or motion in the trial court that states the grounds for the
desired ruling with sufficient specificity to make the trial court aware of the
complaint. Tex. R. App. P. 33.1(a)(1)(A). Appellant failed to preserve enor in this
instance and, on appeal, must demonstrate fundamental enor and egregious harm.
Almanza v. State, 686 S.W.2d at 171. He cannot make either showing.
There is no constitutional or legislative requirement for an instruction that
limits the scope of militating evidence to that which a jury might consider as
increasing a defendant's moral culpability. This Court has rejected arguments like
Appellant's, explaining that the "statutorily mandated language requires the jury to
look at all the evidence and not just evidence that a juror might find mitigating."
Gardner v. State, 306 S.W.3d at 303 & n.92 (citing Luna v. State, 268 S.W.3d 594,
7 Appellant states that he "raised various objections" to the definition of
mitigating evidence as being that which might reduce a defendant's moral blameworthiness.
(Appellant's Br. 94) (citing 2 CR 130). Page 130 of the Clerk's Record is contained in
Volume 1. The cited page has nothing to do with Appellant's objections, but rather is a
"Defendant's Motion for Discovery ofExperts." (1 CR 130). Appellant did, however, object
to the definition of mitigating evidence in his "Motion Requesting the Court to Find Tex.
Code Crim. Proc. Art. 37.0711, Section 3(F)(4) to be Unconstitutional." (1 CR 57-61). There,
he claimed the definition "unconstitutionally narrows the jury's discretion in sentencing to
factors that concern only moral blameworthiness." (1 CR 58). Yet that contention is the
opposite of Appellant's current argument—that the jury's deliberations of the first two
special issues should be limited to considering evidence of moral blameworthiness.
-44-
610 (Tex. Crim. App. 2008); Scheanette v, State, 144 S.W.3d 503,507-08 (Tex. Crim.
App. 2004)). And in Russeau v. State, 291 S.W.3d 426 (Tex. Crim. App. 2009), the
Court held:
Appellant's argument has no merit. First, the jury, in its deliberations on
the first two special issues, was not limited to evidence 'which a juror
might regard as increasing [the] defendant's moral blameworthiness.'
The jury could properly consider any of the evidence submitted at trial
that was relevant to the two special issues. Second, appellant did not ask
the trial court for the instruction that he now claims is constitutionally
required, and nothing in the record suggests that he suffered any harm,
let alone egregious harm, from the lack of such an instruction.
Id. at 435-36 (citing Almanza, 686 S.W.2d at 171). Appellant does not acknowledge
the Court's controlling precedent, nor attempt to distinguish it from the facts in this
case. The Court should therefore overrule Appellant's twelfth point of enor.
STATE'S REPLY TO POINT OF ERROR 13
(NO INSTRUCTION THAT FINDING OF GUILT DOES NOT
FORECLOSE CONSIDERATION OF MITIGATING EVIDENCE)
Appellant alleges that the trial court violated the Eighth and Fourteenth
Amendments ofthe United States Constitution by failing to instruct the jury that their
finding of guilt in the first phase of the trial did not foreclose consideration of
evidence, which they believed tended to reduce the moral blameworthiness of the
defendant. (Appellant's Br. 94-96). This Court has previously decided the issue
adversely to Appellant. E.g., Russeau v. State, 291 S.W.3d at 436.
-45-
For purposes of deliberating the special issues on deliberateness and future
dangerousness, the trial court's instructions were sufficient to convey to the jury that
a finding of guilt in the first phase of the trial did not foreclose consideration of
evidence which tended to reduce the moral blameworthiness of Appellant. The jury
was instructed that in deliberating the special issues, "You must consider all the
evidence of the guilt or innocence stage and the punishment stage, including but not
limited to evidence of the Defendant's background and character or circumstance of
the offense that militates for or mitigates against the imposition ofthe death penalty."
(2 CR 330-31,331). In addition, the jury was instructed, "In answering Special Issue
Number Three you shall consider mitigating evidence to be evidence that a juror
might regard as reducing the defendant's moral blameworthiness." (2 CR 332).
Prior to trial, Appellant filed a "Motion to Hold Unconstitutional Tex. Code
Crim. Proc. Art. 37.0711, Sec. 3(E) And (F) - Failure to Require Mitigation Be
Considered," which was denied. (1 CR 14-16; 2 CR 256). The motion appears to
include the arguments cunently made by Appellant.8 Because Appellant raised the
claim below, he must now show enor and "some harm." Almanza v. State, 686
8 Appellant incorrectly states thatthis issue was preserved inhis"written motion
to declare article 37.0711 (3)(f)(4) unconstitutional pretrial (2 CR 21)." (Appellant's Br. 95
n.12). Page 21 is located in Volume 1 of the Clerk's Record. Neither the motion at page 21
nor the actual motion regarding article 37.0711, § 3(f)(4), raise the claim currently made by
Appellant. (Compare Appellant's Br. 96-98 with 1 CR 21-23, 57-62).
-46-
S.W.2datl71.
That showing is not met where, as here, the trial court properly instructedjurors
to consider all ofthe evidence from both stages oftrial in determining the answers to
the special issues at punishment. (2 CR 330-31,331). Jurors are presumed to follow
the trial court's instructions in the manner presented. Colburn v. State, 966 S.W.2d
511,520 (Tex Crim. App. 1998) (citing Williams v. State, 937 S.W.2d479,490 (Tex.
Crim. App. 1996)). The presumption is rebuttable, but Appellant has pointed to no
evidence in rebuttal. Thus, while the trial court did not provide the type ofinstruction
urged by Appellant, he cannot show he was harmed by the omission.
Additionally, no constitutional enor is shown where the legal claim has already
been decided adversely to Appellant. Russeau v. State, 291 S.W.3d at 436; see
Escamilla v. State, 143 S.W.3d at 828-29 (rejecting claim that Texas death-penalty
law is unconstitutional because it does not "mandate consideration of mitigating
evidence") (citing McFarland v. State, 928 S.W.2d 482, 497-98 (Tex. Crim. App.
1996) ("There is no per se evidence that a juror must view as having definitive
mitigating effect.")). The Court should overrule this point of enor.
-47-
STATE'S REPLY TO POINT OF ERROR 14
(NO PRESUMPTION IN FAVOR OF DEATH AND
NO REQUIREMENT TO CONSIDER MITIGATION INDEPENDENTLY)
Appellant contends the trial court violated the Eighth Amendment by failing
to instruct the jury that there is no presumption in favor of death, even if they found
him to be a "future danger" in answer to Special Issue Number Two, and that Special
Issue Number Three, regarding mitigating circumstances, is to be taken up and
considered independently, without regard to the jury's finding on the future
dangerousness issue. (Appellant's Br. 92-98). Appellant did not request that the trial
court instruct the jury in the manner urged on appeal. Even ifAppellant had made the
request, it would have been to no avail. This Court has rejected claims identical to
Appellant's and, therefore, should overrule Appellant's fourteenth point of enor.
The trial court was not required, for purposes of the Eighth Amendment
prohibition of cruel and unusual punishment, to instruct the jury in the manner now
urged by Appellant. The jury was instead properly instructed that in deliberating the
special issues, "You must consider all the evidence ofthe guilt or innocence stage and
the punishment stage, including but not limited to evidence of the Defendant's
background and character or circumstance of the offense that militates for or
mitigates against the imposition ofthe death penalty." (2 CR 330-331,331). The jury
was additionally instructed, in accordance with Tex. Code Crim. Proc. art. 37.0711,
-48-
§ 3(e), that if it answered the special sentencing issues on deliberateness and future
dangerousness in the affirmative, "then and only then" would the jury answer Special
Issue Number Three on mitigation. (2 CR 332).
There was no request by Appellant for the trial court to instruct the jury in the
manner now urged on appeal.9 Nor did Appellant object to the punishment charge.
(47 RR 130-31). Because the jury-charge claim was not raised at trial, Appellant's
sentence may only be reversed if he establishes fundamental enor and egregious
harm. Almanza v. State, 686 S.W.2d at 171. He cannot make this showing.
This Court has held that "[n]othing in our law required the trial court to further
instruct the jury that there was 'no presumption in favor of death.' Russeau v. State,
291 S.W.3d at 436 (rejecting claim based on instructions given under Tex. Code
Crim. Proc. art. 37.071, § 2(d)(1)); Gamboa v. State, 296 S.W.3d at 585-86 & n.36
(no enor in failing to instruct jury there is no presumption in favor of death) (citing
Saldano v. State, 131 S.W.3d 77, 105 (Tex. Crim. App. 2007)).
9 Appellant states that this issue was raised "by written objection to the statute,
to declare it unconstitutional due to the lack ofthis charge, which was filed before trial (2 CR
14) and denied by the court (14 RR 72-73)." (Appellant's Br. 97 n.13). Page 14 is located
in Volume 1 of the Clerk's Record and is a motion regarding the "Failure to Require
Mitigation be Considered." (1 CR 14). The motion does not include the requested jury
instructions made the basis of Appellant's claim on appeal. (Compare id. with Appellant's
Br. 96-98).
-49-
The Court has additionally rejected the claim that a jury should be instructed
to consider the mitigation issue independently and without regard to the future
dangerousness issue. Russeau v. State, 291 S.W.3d at 436; see Martinez v. State, 924
S.W.2d 693, 698 (Tex. Crim. App. 1996) (rejecting claim that trial court violated the
Due Process Clause by refusing to grant request to submit the mitigation special issue
to the jury only in the event the jury answered the special issue on future
dangerousness in the affirmative). Appellant provides no reason for the Court to
reconsider its prior precedent. The Court should therefore deny Appellant's claims
and overrule his fourteenth point of enor.
STATE'S REPLY TO POINT OF ERROR 15
(NO VEHICLE FOR JURY TO RETURN A VERDICT
OF LIFE IMPRISONMENT)
In his fifteenth point of enor, Appellant complains that the trial court failed to
instruct the jury that it could return a verdict of life imprisonment even if the jurors
conclude that their honest answers to the special issues would require the trial judge
to sentence Appellant to death. (Appellant's Br. 98-100). Appellant failed to raise this
specific claim to the trial court and did not object to the punishment charge. (47 RR
130-131).10 Because enor was not preserved, Tex. R. App. P. 33.1(a)(1)(A),
10 Appellant states thatthis issue "wasraised bya written objection to the statute
due to the court's charge in this regard, which was filed before trial (2 CR 129) and denied
by the court (14 RR 71-72)." (Appellant's Br. 98 n. 14). Page 129 of the Clerk's Record is
-50-
Appellant must show fundamental enor and egregious harm. Almanza v. State, 686
S.W.2d at 171. On the record in this case, that showing cannot be met.
The trial court properly instructed the jury that it was required to answer the
special sentencing issues based on an honest evaluation of the mitigating and
aggravating nature ofthe evidence rather than on public sentiment, public feeling, or
on a discretionary act ofmercy. Specifically, the jury was instructed that in answering
the special sentencing issues, it was "not to be swayed by mere sentiment, conjecture,
passion, sympathy, prejudice, public opinion, or public feeling in considering all of
the evidence[.]" (2 CR 331, 332). The jury was provided a vehicle—the mitigation
special issue—by which an affirmative answer would result in a life sentence being
imposed rather than a death sentence. (2 CR 338).
Appellant contends that jurors should have unfettered sentencing discretion to
impose a life sentence even though the law and the facts, as viewed by each and every
juror, would require a sentence of death. He argues that the Eighth Amendment
requires the trial court to empower the jury with a vehicle "capable of giving effect
located in Volume 1 and is the signature page of the defense's "Motion for Production of
Impeachment Evidence." (1 CR 126-129). Neither motion that was denied by the trial court
during the pre-trial hearing concerns Appellant's instant claim. (14 RR 71-72). While
Appellant did file various motions challenging the constitutionality of Texas's capital
sentencing statute, no motion appears to include the claim currently raised by Appellant
regarding the jury's entitlement to a vehicle by which to return a life verdict. (See 1 CR 14-
16, 17-23, 21-23, 26-31, 32-56, 57-62, 63-86, 135-138, 139-146).
-51-
to the evidence." (Appellant's Br. 100) (citing Smith v. Texas, 543 U.S. 37, 45
(2004)).n However, he cites no precedent for his proposition. In rejecting an Eighth
Amendment claim identical to Appellant's, the Court noted that the Supreme Court
"has held that such unbridled discretion is not required by the constitution." Mays v.
State, 318 S.W.3d 368, 397 & n.120 (Tex. Crim. App. 2010) (citing Johnson v.
Texas, 509 U.S. 350,362-63 (1993)). Appellant also fails to show harm because, just
like Mays, he never demonstrates that any theory of obtaining a life sentence falls
outside the scope of the statutorily-mandated special issues. Id.
The Court has repeatedly rejected Eighth Amendment claims like Appellant's,
and there is no reason for the Court to reconsider its established precedent. Mays v
State, 318 S.W.3d at 397; Russeau v. State, 291 S.W.3d at 436 ("The trial court's
instructions meet the requirements of Article 37.071, which, in turn, met the
requirements of the Eighth Amendment."); see Saldano v. State, 232 S.W.3d at 107-
08 (rejecting claim that punishment charge "fails to provide a rational process to
permit a discretionary grant ofmercy based on mitigating circumstances"). The Court
should therefore overrule Appellant's fifteenth point of enor.
11 The Supreme Court's decision in Smith addressed the constitutionality of a
non-statutory, "nullification" special issue that effectively instructed the jury to change one
of its "yes" answers to one ofthe statutory special issues to a "no" answer if the jury believed
that mitigating circumstances existed warranting a sentence less than death. See Smith, 543
U.S. at 38-39, 45-49. No such instruction was provided in Appellant's case.
-52-
STATE'S REPLY TO POINT OF ERROR 16
(FAILURE TO QUASH INDICTMENT - APPRENDI v. NEW JERSEY)
A Hays County grand jury indicted Appellant for capital murder, a capital
felony for which the punishment is either death or imprisonment for life. Tex. Penal
Code § 12.31(a); id., § 19.03(a), (b). The fact that the State was intending to seek the
death penalty was not alleged in the indictment, but the State did file a "State's Notice
ofIntent to Seek the Death Penalty" on March 25,2011. (1 CR 4,12). The statutorily-
mandated special sentencing issues on deliberateness, future dangerousness, and
mitigation were also not alleged in the indictment. Appellant moved to quash the
indictment, alleging that it was unconstitutional under Apprendi v. New Jersey, 530
U.S. 466 (2000), for failing to allege statutory facts required to impose a death
sentence. (1 CR 26-30). The trial court denied the motion. (2 CR 260).
Appellant now raises five claims based on Apprendi and its progeny.
(Appellant's Br. 100-10). The majority of Appellant's complaints were never
presented to the trial court, including his claim based on Texas Constitutional law,
his claim challenging the lack of grand jury involvement in the State's decision to
seek the death penalty, and his claim that the State has the burden of proving a
negative answerto the mitigation issue. (Appellant's Br. 103-09).nFor those claims,
12 Appellant filed a "Motion to Quash Indictment On Grounds That Tex. Code
Crim. Proc. Art. 31.0711(3) Is Unconstitutional." (1 CR26-30). Paragraph 16 alleged: "The
-53-
Appellant has waived any purported enor. See Tex. R. App. P. 33.1(a). Yet even if
the claims had been preserved for appellate review, Appellant acknowledges there is
"adverse authority from this Court" rejecting his arguments. (Appellant's Br. 110)
(citing, e.g., Woods v. State, 152 S.W.3d 105, 121 (Tex. Crim. App. 2004); Rayford
v. State, 125 S.W.3d 521, 533 (Tex. Crim. App. 2003)). The Court should therefore
overrule Appellant's sixteenth point of enor.
Appellant cannot show that the trial court ened in its ruling because this Court
has repeatedly rejected claims of constitutional enor arising under Apprendi. For
example, in Point of Enor 16(a), Appellant alleges that the indictment was
fundamentally defective because it did not contain a grand jury charge on the
sentencing phase special issues. (Appellant's Br. 101-03). Although everything
necessary to be proven in the guilt-innocence phase of trial must be alleged in the
indictment, the same requirement does not apply to the special sentencing issues. This
Court has held on numerous occasions that Apprendi does not require the State to
allege the special issues in the indictment. Russeau v. State, 111 S.W.3d at 885-86;
Rayford v. State, 125 S.W.3d at 533; Castillo v. State, 739 S.W.2d 280, 299 (Tex.
statute does not require the indictment to allege the special issues, i.e., the 'facts' relied upon
to enhance the capital sentence from life to death, contrary to the U. S. Supreme Court's
holding inApprendi[.]"(1 CR 30). He also referenced Apprendiin a "Motion to Preclude the
Death Penalty as a Sentencing Option," which was denied. (1 CR 144-45; 2 CR 263). These
appear to be the only arguments made by Appellant regarding Apprendi.
-54-
Crim. App. 1987); Sharp v. State, 707 S.W.2d 611, 624-25 (Tex. Crim. App. 1986).
In Point of Enor 16(b), Appellant argues that his rights under the Texas
Constitution were violated because he was denied due course of law and the
consequent notice and opportunity to prepare as a result ofthe State's failure to plead
the special issues and supporting facts in the indictment. (Appellant's Br. 103) (citing
Tex. Const, art. I, §§ 3,10 & 19). The Texas constitutional provisions cited concern
a citizen's right to notice of charges against him and that a person shall not be held
to answer for a criminal offense unless indicted by a grand jury. Those provisions do
not govern Appellant's specific claim. Appellant cites no constitutional or statutory
provision requiring that the punishment-phase special issues be pled in the indictment
or that the State must include all the facts supporting its decision seeking the death
penalty.13 While Appellant maintains that he had no notice, the special issues are
statutorily-mandated. Appellant was given sufficient notice of their potential
applicability when he was charged with capital murder in the indictment. (1 CR 4).
Appellant was also given specific notice outside the indictment through a filed
13 Appellant's assertion that all facts supporting the decision seeking the death
penalty must necessarily be included in the indictment is both factually and legally to no
avail. When the State indicts a defendant for capital murder, that does not automatically mean
that a death sentence will be sought. And there is certainly no requirement for the State to
concurrently file notice of its intent to seek the death penalty at the same time a defendant
is indicted. Indeed, as in this case, Appellant was indicted on November 19, 2010, and the
State filed notice of its intent on March 25, 2011. (1 CR 4, 12).
-55-
pleading served on him that established the State intended to seek a death sentence.
(1 CR 12). Because the indictment does not violate any Texas Constitutional
safeguard, the Court should deny Appellant's claim.
In Point of Enor 16(c), Appellant cites Apprendi for his proposition that the
Texas capital sentencing scheme is unconstitutional by failing to assign a burden of
proof to the State to disprove mitigating evidence. (Appellant's Br. 104-07). "This
Court has consistently held that, under Texas statute, the State does not bear the
burden of proof on the mitigation special issue and that the statute setting out the
issue and the instructions is constitutional." Mays v. State, 318 S.W.3d 368,397 (Tex.
Crim. App. 2010) (citing Whitaker v. State, 286 S.W.3d 355, 370 (Tex. Crim. App.
2009); Busby v. State, 253 S.W.3d at 667); Roberts v. State, 110 S.W.3d 521, 534-35
(Tex. Crim. App. 2007) (rejecting claim that the Apprendi line of cases requires a
burden of proof with the mitigation-special issue) (citing Perry v. State, 158 S.W.3d
at 446-48).
In Point of Enor 16(d), Appellant argues that the trial court should have
quashed the indictment on the ground that there was no grand jury involvement in the
decision to pursue the death penalty against him. (Appellant's Br. 107-09). Again,
this Court has rejected the identical argument. Leza v. State, 351 S.W.3d at 354
(citing Roberts v. State, 220 S.W.3d at 535 & n. 1).
-56-
Finally, in Point of Enor 6(e), Appellant argues that he was denied his Sixth
Amendment right to trial by jury because the indictment did not allege the special
issues and the supporting facts necessary to impose a death sentence. (Appellant's Br.
109). It is unclear how Appellant believes he was denied a right to trial by jury. In
Apprendi, the Supreme Court held that "[t]he Fourteenth Amendment right to due
process and the Sixth Amendment right to trial by jury, taken together, entitle a
criminal defendant to a jury determination that he is guilty of every element of the
crime with which he is charged, beyond a reasonable doubt." 530 U.S. at 467.
Appellant does not contend that the State failed to allege every element ofthe capital
offense. Nor does he contend that a special issue was not submitted to the jury or was
not answered by the jury at punishment. While the Court has addressed Sixth
Amendment claims under Apprendi, they have generally involved whether a trial
court's decisionto cumulate sentences violatedApprendi,14 andthat situationdoes not
exist here. Appellant's allegations presents no viable Sixth Amendment claim.
Considered together, Appellant's arguments fail to show that the trial court
ened in denying his motion to quash the indictment. The Court should affirm the trial
court's ruling and reject Appellant's sixteenth point of enor in its entirety.
14 Alameda v. State, 235 S.W.3d 218, 223-24 (Tex. Crim. App. 2007) (citing
Barrow v. State, 207 S.W.3d 377, 379-80 (Tex. Crim. App. 2006)).
-57-
STATE'S REPLY TO POINT OF ERROR 17
(FAILURE TO PRECLUDE THE DEATH PENALTY - BUSH v. GORE)
As his seventeenth point of enor, Appellant contends the trial court ened in
denying his motion to preclude the death penalty as a sentencing option due to Equal
Protection violations. (Appellant's Br. 111-120).15 Citing the Supreme Court's
decision in Bush v. Gore, 531 U.S. 98, 102 (2000), he argues that Texas's death
penalty system is unconstitutional because there are "no uniform, statewide
standards" to guide Texas prosecutors in deciding when they should seek the death
penalty. (Appellant's Br. 111). The trial court did not en in denying Appellant's
motion because this Court has repeatedly rejected Appellant's very claim. See, e.g.,
Threadgill v. State, 146 S.W.3d at 672.
"It is well-settled that the discretion afforded the State to seek the death penalty
is not unconstitutional." Cantu v. State, 842 S.W.2d at 692 (citing Gregg v. Georgia,
428 U.S. 153, 199 (1976) (holding that prosecutorial discretion was not
unconstitutional); see also Jurekv. Texas, 428 U.S. 262, 274 (1976) (holding that
prosecutorial discretion was not unconstitutional). This Court has "previously
rejected the notion that there should be 'a statewide policy or standard for
determining in which cases the State will seek the death penalty as opposed to leaving
15 Prior to trial, Appellant filed a "Motion to Preclude the Death Penalty as a
Sentencing Option," which was denied. (1 CR 63-86, 139-46; 2 CR 263).
-58-
the decision in the hands of individual district attorneys.'" Roberts v. State, 220
S.W.3d at 535 (citing Crutsinger v. State, 206 S.W.3d 607, 611-13 (Tex. Crim. App.
2006); Hankins v. State, 132 S.W.3d 380, 387 (Tex. Crim. App. 2004)).
The Court has also specifically rejected claims, like Appellant's, that a
disparity in death-penalty decision-making from county to county violates the
principles articulated by the Supreme Court in its Bush v. Gore decision. E.g., Neal
v. State, 256 S.W.3d 264, 272 (Tex. Crim. App. 2008); Roberts, 220 S.W.3d at 535;
Threadgill, 146 S.W.3d at 672; Rayford v. State, 125 S.W.3d at 534. Appellant offers
no basis for this Court to revisit the issue. Accordingly, the Court should affirm the
trial court's ruling and overrule Appellant's seventeenth point of enor.
STATE'S REPLY TO POINT OF ERROR 18
(INSTRUCTIONS FAILED TO PROVIDE AN OPPORTUNITY
FOR A "REASONED MORAL RESPONSE")
Appellant maintains that the trial court's instructions at punishment violated
his Eighth Amendment rights by "fail[ing] to provide the jury the opportunity to have
its decision reflect a 'reasoned moral response' to the offender and his offense."
(Appellant's Br. 120). In Point of Enor 18(a), he contends that the trial court's
instructions "conveyed the false impression that mitigation is necessarily tied into the
finding on future dangerousness" and thatjurors might believe that because the future
dangerousness issue must be proven beyond a reasonable doubt, then they might
-59-
enoneously believe that evidence in mitigation must somehow outweigh that finding.
(Appellant'sBr. 121).16 In Pointof Enor 18(b), Appellant argues that the trial court's
instructions for the jury to consider all evidence that militates for or against the death
penalty directed jurors away from a '"reasoned moral response' to the offender and
his offense" and allowed improper consideration of evidence that militated in favor
of death. (Appellant's Br. 122).
Neither issue appears to have been raised to the trial court. While Appellant
states that he raised these issues "in a written motion pretrial" that was denied by the
trial court (Appellant's Br. 120 n. 19) (citing 2 CR 57; 14 RR 57), there is no
reference to Appellant's cunent arguments in the pages cited. The Court should reject
Appellant's claims at the outset for his failing to provide appropriate citations to the
record. See Trap. R. App. P. 38.1(i).
If the Court does reach the issues, it should deny relief. Because Appellant's
arguments do not appear to have been made to the trial court, he must show
fundamental enor and egregious harm. Almanza v. State, 686 S.W.2d at 171. He
cannot make that showing,
16 Appellant also asserts thattheinstructions "didnotallow thejuryto give effect
to the mitigation evidence presented." (Appellant's Br. 121). However, he fails to identify
any mitigating evidence that purportedly falls outside the scope ofthe existing special issues,
so the Court should reject the claim.
-60-
The trial court's instructions do not reveal enor, statutorily or otherwise. The
jury was properly instructed that in deliberating the special issues, jurors "must
consider all the evidence of the guilt or innocence stage and the punishment stage,
including but not limited to evidence of the Defendant's background and character
or circumstances of the offense that militates for or mitigates against the imposition
ofthe death penalty." (2 CR 330-31,331). The jury was also instructed that the State
has the burden ofproving beyond a reasonable doubt that the answer should be "Yes"
to the deliberateness and future dangerousness special issues. (2 CR 330, 331). In
turn, the jury's answers to the first two special issues stated, "We, the jury,
unanimously find and determine beyond a reasonable doubt" that the answer to each
issue is "Yes." (2 CR 336, 337). No "beyond a reasonable doubt" language is
included in the trial court's instructions regarding the mitigation special issue or in
the actual special issue itself. (2 CR 331-32, 338).
Appellant's supposition that jurors might have held an enoneous belief
regarding a standard of proof on the mitigation special issue is no basis for a claim
of constitutional enor. (Appellant's Br. 121). He starts with the faulty presumption
thatjurors misread, misconstrued, and misinterpreted the trial court's instructions. He
does so despite the clarity ofthe instructions set forth above and the voir dire of each
juror about the special issues. Appellant's conjecture does not rebut the principle that
-61-
jurors are presumed—in the absence of any contrary evidence—to have understood
the instructions in their intended meaning, to have followed the instructions given,
and to have acted rationally in discharging their duties. Hutch v. State, 922 S.W.2d
at 172; Richardson v. State, 879 S.W.2d at 882.
Appellant's Point of Enor 18(b) fairs no better. (Appellant's Br. 122-23). The
crux of the claim is that the trial court enoneously instructed the jury to consider all
the evidence during its punishment-phase deliberations which, in turn, paved the way
for "improper consideration of other evidence that militated in favor of death."
(Appellant's Br. 122). Apellant contends that the improper evidence in his case is
"graphic accounts by other inmates of offenses committed by others," whatever that
might be. (Id.). This generalized description with no citation to the record makes it
impossible to verify Appellant's claim. In any event, Appellant's arguments are
largely a repeat of his Point of Enor 12 regarding the trial court's failure to limit the
scope of militating evidence to that which might be viewed as reducing moral
blameworthiness. (Compare id. at 92-94). As argued in the State's Reply to Point of
Enor 12 and incorporated herein, the trial court did not err in providing the
challenged instruction because jurors are statutorily required to consider all the
evidence during deliberations. The Court should overrule Appellant's eighteenth
point of enor in its entirety.
-62-
STATE'S REPLY TO POINT OF ERROR 19
(INSTRUCTIONS FAILED TO PROVIDE JURORS A "REASONED
AND RATIONAL MORAL PROCESS")
As his final point of enor, Appellant asserts that the trial court violated his
Eighth and Fourteenth Amendment rights when it failed to instruct the jury so as to
provide "a reasoned and rational moral process for the consideration and
implementation of mitigating circumstances." (Appellant's Br. 123). He argues that
the jury instructions failed to provide a constitutionally satisfactory process for
considering and giving effect to mitigating evidence. Although he contends the
instructions have a "lack ofdefinition" and "structure," and are "vague and inherently
flawed," his briefing fails to provide any specific reason or facts in support, nor does
it identify any mitigating evidence that jurors were not able to consider in this case.
(See Appellant's Br. 123-24). Because Appellant does not appear to identify any new
complaint that has not already been raised and addressed by the State in its reply to
Appellant's Points of Enor 6 to 18, the Court should reject his claim and overrule
this final of enor.
-63-
PRAYER
The State respectfully requests that this Honorable Court overrule Appellant's
points of enor and affirm his conviction and sentence of death.
Respectfully submitted,
WES MAU
Hays County District Attorney
SBOT 00784539
712 S. Stagecoach Trail, Ste. 2057
San Marcos, Texas 78666
(512)393-7600
(512) 393-7619 fax
wes.mau(g),hays.co.tx.us
/s/ Katherine D. Hayes
KATHERINE D. HAYES
Assistant Attorney General
Lead Counsel
SBOT 00796729
Texas Office of the Attorney General
Criminal Appeals Division
P.O. Box 12548
Austin, TX 78711-2548
(512)936-1400
(512) 320-8132 fax
katherine.hayes@texasattorneygeneral.gov
-64-
CERTIFICATE OF SERVICE
I certify that on February 9, 2015, a copy of the foregoing Brief of Appellee
was filed electronically with the Court through the eFileTexas.gov electronic filing
system. Electronic service was complete on that same date on transmission of the
document to the serving party's electronic filing service provider, and notice offiling
was automatically generated and served on the following counsel for Appellant:
Angela J. Moore
310 S. St. Mary's, Ste. 1830
San Antonio, TX 78205
amoorelaw@aol.com
Kerri Anderson Donica
301 West 3rd Ave.
Corsicana,TX 75110-4665
keni(S>kenidonicalaw.com
I further certify that on the same date, a copy of this Brief of Appellee was
served on the following counsel for the State by email and by U.S.P.S. delivery:
Wes Mau
Hays County District Attorney
712 S. Stagecoach Trail, Ste. 2057
San Marcos, TX 78666
wes.mau(g),co.hays.tx.us
/s/ Katherine D. Hayes
KATHERINE D. HAYES
Assistant Attorney General
-65-
CERTIFICATE OF COMPLIANCE
I certify that the foregoing Brief of Appellee complies with the typeface
requirements of Tex. R. App. P. 9.4(e) because it has been prepared using Corel
WordPerfect Office 12, Times New Roman font with 14-point for text and 12-point
for footnotes. This document also complies with the word-count limitations of Tex.
R. App. P. 9.4(i)(2)(A) because it contains 15,589 words, excluding any parts
exempted by Tex. R. App. P. 9.4(i)(l).
/s/ Katherine D. Hayes
{CATHERINE D. HAYES
Assistant Attorney General
-66-