Runnels, Travis Trevino

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS



NO. AP-75,318

TRAVIS TREVINO RUNNELS, Appellant



v.



THE STATE OF TEXAS



ON DIRECT APPEAL

FROM POTTER COUNTY

Keller, P.J., delivered the opinion for a unanimous Court.





On January 29, 2003, while appellant was serving time in prison for an aggravated robbery, he killed Stanley Wiley, a supervisor at the prison boot factory. As a result, the State charged appellant with capital murder. (1) Appellant pled guilty. Pursuant to the jury's answers to the punishment special issues prescribed by law, (2) the trial judge sentenced appellant to death. (3) Direct appeal to this Court is automatic. (4) Appellant raises twelve points of error. Finding that none of his points have merit, we affirm the trial court's judgment.

I. SUFFICIENCY OF THE EVIDENCE - Future Dangerousness

In point of error ten, appellant contends that the evidence was legally and factually insufficient to support the jury's affirmative answer to the future dangerousness special issue. (5) In a legal sufficiency review on this subject, "[w]e review the evidence in the light most favorable to the jury's verdict to determine whether any rational trier of fact could have concluded beyond a reasonable doubt that 'there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.'" (6) We do not conduct a factual sufficiency review of the jury's future dangerousness determination. (7) Turning to the legal sufficiency question, we now set forth the evidence in the light most favorable to the verdict.

Appellant did not enjoy working as a janitor at the prison boot factory. On the morning of the day of the murder, he expressed anger at the fact that he had not been transferred to being a barber as he had requested. He told fellow inmate Bud Williams that he was going to be "shipped one way or another" and that "he was going to kill someone." Appellant said that he would kill Wiley if Wiley said anything to him that morning. Appellant told another inmate, William Gilchrist, that he planned to hold the boot-factory plant manager hostage in the office after the other correctional officers had left. Finally, after appellant had arrived at the boot factory, he told fellow inmate Phillip Yow that he was going to do something.

During the first shift at the boot factory, appellant approached Wiley, raised a knife, tilted Wiley's head back, and cut his throat. Appellant then wiped the knife with a white rag and walked back toward the trimming tables. When Yow later asked appellant why he had attacked Wiley, appellant said, "It could have been any offender or inmate, you know, as long as they was white." In response to Yow's explanation that appellant could get the death penalty if Wiley died, appellant responded, "A dead man can't talk."

Wiley did die from the injury. It was later determined that the cut was a twenty-three centimeter long neck wound that transected the external carotid artery and the internal jugular vein and extended in depth to the spine. A medical examiner found that the force required to inflict the wound was "moderate to severe." Appellant was twenty-six years old when he committed the offense.

In addition to the crime before us, the record shows that appellant has been convicted of three other felonies. In 1993, he was convicted of the second-degree felony of burglary of a building. He was placed on probation for that felony, but later that year he committed another burglary of a building. As a result, he received a second conviction and his probation on the first conviction was revoked. In 1997, appellant was convicted of aggravated robbery, a first-degree felony. That conviction carried a deadly weapon finding, specifying the deadly weapon as a "firearm."

Appellant also committed several acts of misconduct in prison. On January, 19, 1999, he hit a guard in the jaw. On May 3, 2003, he threw urine at a guard. On November 18, 2003, he threw a light bulb at a guard. And on June 25, 2004, he threw feces at a guard. Several of the State's inmate witnesses testified that they had never known appellant to be involved in violent activity before the date of the current offense (January 29, 2003). At least two of those - Williams and Gilchrist - had known appellant for a significant length of time (eight years for Williams and nine to ten months for Gilchrist).

Appellant relies upon the factors set out in Keeton v. State (8) for the proposition that the evidence does not support the jury's finding that he constitutes a future danger to society. Those factors are:

1. the circumstances of the capital offense, including the defendant's state of mind and whether he or she was working alone or with other parties;

2. the calculated nature of the defendant's acts;

3. the forethought and deliberateness exhibited by the crime's execution;

4. the existence of a prior criminal record, and the severity of the prior crimes;

5. the defendant's age and personal circumstances at the time of the offense;

6. whether the defendant was acting under duress or the domination of another at the time of the commission of the offense;

7. psychiatric evidence; and

8. character evidence. (9)

This list of factors is not exhaustive. (10) Moreover, the factors are "simply guides to the kinds of evidence that we recognize as tending to support future dangerousness" and are "not [to] be weighed against each other to determine evidentiary sufficiency." (11)

The evidence at trial supports viewing a number of the Keeton factors in the State's favor. There was evidence to suggest that appellant's crime was planned ahead of time and executed with forethought and deliberation (factors 2 and 3). Appellant had three prior felony convictions, and one of those was a violent crime involving the use or exhibition of a firearm (factor 4). At age 26, appellant was not particularly young (factor 5). Appellant was not acting under the domination of another but committed this crime by himself on his own initiative (factor 6). And appellant had some prison disciplinary infractions involving violence, which reflect negatively on his character (factor 8). In addition, appellant's prior criminal history culminating in the present capital murder shows an escalating pattern of violence, which also supports a finding of future dangerousness. (12) Finally, the jury could have rationally inferred from appellant's reactions after the murder that appellant lacked remorse, another factor militating in favor of finding him to be a continuing threat to society. (13) We conclude that the evidence was legally sufficient to support the jury's answer to the future dangerousness special issue. Point of error ten is overruled.

II. GUILTY PLEA

In points of error two and three, appellant contends that the trial court failed to fulfill its statutory duty not to accept a guilty plea "unless it appears that the defendant is mentally competent and that the plea is free and voluntary." (14) We first address appellant's contention in point three that the trial court failed to assure voluntariness by failing to ascertain that appellant had a complete understanding of the consequences of the plea.

After the indictment was read, the trial court asked appellant for his plea. Appellant then replied that he pleaded guilty. Immediately after that response, the trial court sent the jury out of the room and engaged in the following colloquy:THE COURT: Mr. Runnels, you have entered a plea of guilty to the offense charged in the indictment before this jury. Several things come into play at this point that I need to visit with you about. First of all, because this is a case in which the State has indicated it's - that it's seeking the death penalty, it's not a situation where any jury trial can ever be waived. You understand that?



MR. RUNNELS: Yes, sir.



THE COURT: And that's why the jury is here. However, your - your plea of guilty before the jury, you need to understand, sir, that if you persist in that plea and I find that that plea is - is voluntary and that you have done it with full knowledge of the results of your plea of guilty, I'll instruct the jury to return in accordance with your plea a finding of guilt. Do you understand that?



MR. RUNNELS: Yes, sir.



THE COURT: That instruction will preclude them from even having the opportunity to consider whether the State has met its burden of proof. Your plea of guilty in this case - and this doesn't differ from any other criminal case - will be all the evidence that's necessary to support a finding of guilt. Do you understand that?



MR. RUNNELS: Yes, sir.



THE COURT: Even though that's true, the State no doubt will put on much of the same evidence that it would have anyway in order to give the jury an idea of what this case is all about. Do you understand that?



MR. RUNNELS: Yes, sir.



THE COURT: But there will not be an issue of your guilt or innocence. Do you understand that?



MR. RUNNELS: Yes, sir.



THE COURT: You understand that you still maintain all the rights and privileges that you enjoy under the constitution and laws of the State of Texas and of the United States, but the -- with regard to the jury being able to consider guilt/innocence stage of this trial, that will not be one of them? You still have the right against self-incrimination, you know. You're not going to have to testify in this case. And I only tell you that because there have been cases in the past where people have said, "Well, my entering a plea of guilty to the jury is really, in effect, testifying, and nobody told me that I didn't have to do that." And our court of criminal appeals has said, "No, that's not the case," but -- under Texas law and the United States constitutional law, but I'm telling you that just to give you a heads up on that. All right? And you're still going to be able to, you know, call witnesses of your own, cross-examine witnesses, have all the witnesses testify in front of you. Nothing is going to change in this trial with regard to all of your rights other than the ability of the jury to require the State -- and your ability to require the State to prove their case beyond a reasonable doubt with regard to your guilt or innocence. Do you understand what I've told you?



MR. RUNNELS: Yes, sir.



THE COURT: Knowing that your plea of guilty, if I receive that, is going to result in you being found guilty of this case, and knowing that the State is seeking the death penalty in this case, do you really want to do this?



MR. RUNNELS: Yes, sir.



THE COURT: Okay. The State is still going to, as you've heard us discuss time and time again for days, they have the burden of proof with regard to the first special issue, and there will still be evidence entertained with regard to the second special issue, that being the mitigation issue. You understand that?



MR. RUNNELS: Yes, sir.



THE COURT: So the only thing that's going to change is that I will have to tell this jury that they must return a finding of guilt if you persist in this plea. Is that what you want to do? Do you want to persist in it?



MR. RUNNELS: Yes, sir.



THE COURT: Okay.



[DEFENSE COUNSEL]: Your Honor, I have a document I wish to file for the Court. I'll provide a copy, unsigned copy, but a copy to the district attorney.



THE COURT: Okay. Mr. Runnels, this affidavit that I've been handed says that you, having discussed the strategic and tactical aspects of a plea of guilty in this case, freely and voluntarily decided to enter this plea of guilty, and you have signed that. Is that what you fully intended to do?



MR. RUNNELS: Yes, sir.



THE COURT: All right. I will file that, then, among the papers of this cause.



The submitted affidavit, signed by appellant on October 26, 2005, stated: "I, TRAVIS TREVINO RUNNELS, having discussed the strategic and tactical aspects of a plea of guilty in this case, I [sic] have freely and voluntarily decided to enter a plea of guilty."

A guilty plea can be voluntary even in a capital case. (15) Even when the defendant is subject to the ultimate penalty, a trial court does not err in accepting a plea of guilty if the defendant is "thoroughly admonished as to the free, voluntary and knowing nature of his plea, and to the serious consequences arising from his decision." (16) In the present case, the trial court carefully admonished appellant of the gravity and consequences of his decision to plead guilty. During the colloquy, appellant affirmatively indicated that he understood what he was doing and wished to persist in a plea of guilty. Appellant even submitted an affidavit stating that the decision to plead guilty was free and voluntary, and the affidavit suggested that the decision was a matter of strategy and tactics.

Appellant, however, contends that the trial court's statements regarding his ability to call witnesses and present mitigating evidence might have misled him into believing that defense witnesses and mitigating evidence would in fact be presented. Relying upon Burnett v. State (17) for the proposition that a "silent record" can support a claim that he did not understand the consequences of his plea, he claims that the record was "silent" as to his understanding regarding whether defense witnesses would be called or mitigating evidence presented.

But the trial court's statements just conveyed to appellant that he had a right to do those things. Whether defense witnesses were called and mitigating evidence was actually presented was a matter of strategy between appellant and his counsel. Aside from the fact that Burnett addressed the requirements of a harm analysis due to a trial court's failure to give an admonishment required by Article 26.13(a) (18) rather than the substantive requirements of the provision found in Article 26.13(b), we observe (as discussed above) that the record is not silent regarding the voluntary and knowing nature of appellant's guilty plea. Point of error three is overruled.

We now turn to the claim, advanced in point of error two, that the trial court erred in failing to inquire into appellant's mental competency before accepting a plea of guilty. In this point of error, appellant also complains that the trial court adjudged him to be "sane" (as evidenced by an instruction submitted in the jury charge) but made no determination of his "mental competency." These claims were specifically addressed and rejected in Kuyava v. State:

As appellant recognizes, this court has long held in interpreting Article 26.13, supra, that unless an issue is made of an accused's present insanity or mental competency at the time of the plea the court need not make inquiry or hear evidence on such issue. And this has been particularly true where the court has had opportunity to observe the accused in open court, hear him speak, observe his demeanor and engage him in colloquy as to the voluntariness of his plea. We find nothing in the 1975 amendment to Article 26.13, which would render these cases inapplicable, although the better practice is for the trial judge to inquire into mental competence of the accused whether an issue is made of the same or not.



While prior to the 1973 and 1975 amendments to Article 26.13, the statute used the word "sane" and while some of the opinions referred generally to "sanity," it was always understood that the statute had reference to the present sanity of the accused or his mental competency to stand trial as opposed to insanity at the time of the commission of the offense (insanity as a defense).



Obviously what happened is that a form of judgment printed prior to the recent amendments to the statute was used and the word "sane" rather than the words "mentally competent" is found therein. Since the word "sane" as used in former Article 26.13 and "present insanity" and "mentally competent" are all synonymous we find no merit in appellant's contention that the record is devoid of any finding as to his mental competency to stand trial. (19)



Here, as in Kuyava, the trial court was able to observe appellant's demeanor during a colloquy on the voluntariness of his plea. And as in Kuyava, "sane" is used here as a synonym for "mentally competent." In addition, appellant fails to point to anything in the record suggesting that he was not mentally competent. Point of error two is overruled.

III. JUDICIAL REMARKS

A. "Reasonable doubt" remark

In point of error one, appellant contends that the trial court violated his constitutional right to due process of law by giving the venire panel a flawed definition of "reasonable doubt" that "trivialized" the State's burden of proof.

Because the courtroom facilities were not large enough to accommodate the entire panel, the venire was split into two groups. The complained-of remark was made to the first group in the following discussion:

Our laws require that every element of an offense be set out in the indictment, the written instrument upon which we go to trial. And that's the State's burden, is to prove those things to the jury beyond a reasonable doubt, to your satisfaction, beyond a reasonable doubt. There is no definition in the law of reasonable doubt. For several years, our -- back a while back, our legislature tried to -- Court of Criminal Appeals tried to define for us what reasonable doubt might be, and then ultimately discovered it's a really fluid kind of thing. It's what you personally believe.



Most people agree, though, and I think these lawyers will probably tell you, that it's something way up there high. It's not a hundred percent sure, because you can't be a hundred percent sure of anything unless you were a witness to something that occurred, and even then you might have some question about it. But if you're a witness in the case, then you can't sit and judge a case, so we can't get to that point.



We've got these different levels of burdens of proof of folks who bring lawsuits. And in civil cases, it's a preponderance of the evidence, which simply means the greater weight of the credible evidence presented to you. You know, more likely than not would be a way to look at that.



The second level we have is called clear and convincing. That's a civil burden, too, but it's up a little step higher. It has to do with things like termination of parental rights and whether something in a divorce case is separate property as opposed to the presumption that all property on hand is community property. It's a higher burden.



And even higher still is this reasonable doubt. And we all kind of agree that reasonable doubt is something that really makes you stop and think about and consider, and it needs to be something that you would -- the level you rise to to make important decisions in your life.



Appellant complains only about the italicized portion of the trial court's comments, but we have set out the entire discussion to place the complained-of portion in context. (20)



Appellant did not object to the trial court's comments. Ordinarily, a failure to object at trial results in forfeiting complaint on appeal. (21) Even if we were to assume that improper comments by the trial court with respect to the beyond a reasonable doubt standard could, in an appropriate case, be so egregious as to constitute "fundamental," reversible error, (22) we do not believe that to be the case here. The italicized remark is in some respects similar to jury charge language repudiated as "confusing" in Paulson v. State, but we nevertheless stated in that case that reversible error would not occur if the parties agreed to use that language. (23) While the parties did not affirmatively "agree" to the comments here, they certainly acquiesced in them, and the comments here were not made in the jury charge, but were simply introductory comments made during voir dire. Moreover, while Paulson dealt with a "definition," (24) the trial court here expressly stated that there was no legal definition of reasonable doubt. In addition, the trial court's earlier description of the beyond a reasonable doubt standard as "something way up there high" indicates that the trial court's comments, when viewed as a whole, did not "trivialize" the State's burden of proof. And finally, the jury charge did not incorporate the complained-of remarks but properly provided that the State had the burden of proving the future dangerousness special issue beyond a reasonable doubt. Point of error one is overruled.

B. "Defense will call witnesses" remark

In points of error four through seven, appellant contends that the trial court erred by stating in its remarks that the defense would call witnesses. Appellant alleges that this remark violated the Fifth Amendment by alluding to his potential to testify, violated due process by placing a burden on the defense that is not required by law, violated an "impartiality" obligation found in Article 38.05, and violated due process by "diminishing the Defense approach to the case."

After appellant pleaded guilty and the jury was returned to the courtroom, the following occurred:

THE COURT: Members of the jury, the defendant has entered his plea of guilty to the charge contained in the indictment before you. I have talked with him and he persists in his plea of guilty. I have found that that plea is freely and voluntarily entered into, and because of that, at the conclusion of this case, I will instruct you to return a finding of guilty of the charges contained in the indictment in this case.



That does not preclude anything about the presentation of the evidence. The State will still call witnesses, as will the defense, with regard to other factors in this case. Then both sides are interested in you having a full and complete opportunity to know everything that you can about this case in order to make an intelligent decision with

regard to those special issues that we discussed that will still be put to you.



Okay. Do you have any witnesses here that are to be sworn?



(Pause)



THE COURT: Okay. If you folks who intend to testify this morning will please raise your right hands.

(Witnesses sworn)



THE COURT: Okay. If you would step back outside, please, we'll call you in when we need you. Do not discuss anything about the case among yourselves or with others.



[DEFENSE COUNSEL]: Your Honor, for the record, we will invoke the Rule. Our witnesses are under subpoena for the 31st, and they will be instructed as to the Rule.



The record reflects that appellant did not object to the trial court's remarks. Indeed defense counsel noted that he had witnesses under subpoena. However, when the State rested, defense counsel chose not to call any witnesses.

As we observed earlier, an objection at trial is ordinarily required to preserve error on appeal. By failing to object, appellant forfeited his claim of error. Assuming arguendo that a judicial remark regarding the calling of witnesses could, in an appropriate case, be egregious enough to constitute fundamental, reversible error, the remark in this case did not rise to that level. The remark was brief, made in passing, and appeared in good faith to have been made in anticipation of what would actually occur at the trial. Moreover, the trial court had earlier, during voir dire, emphasized that the defendant retained the presumption of innocence and did not have to present evidence. To the first half of the panel, the trial court remarked, "And so the burden of proof is on the State to prove all their allegations by the reasonable doubt we discussed. The burden does not shift at any time to the defendant for any reason." To the second half of the panel, the trial court was even more explicit:

The burden of proof in a criminal case is always on the State. It never at any time shifts to the defendant for any reason. And if they are unable to do that, then the defense is under no obligation to bring any evidence whatsoever forward. That concept is so strong in our United States jurisprudence, that if Mr. Sims or Mr. Yontz or Mr. Owen stood up, once we begin the trial of this case and 12 of you, or 14 of you were sitting up here in this jury box, and he stood up and I said, "Will you read the indictment to the defendant, please?" Read this indictment out. I said, "Mr. Runnels, how do you plead?" And Mr. Runnels said, "Not guilty," and if Mr. Sims then turned around and said, "The State rests," do you know what your obligation would be? It would be to find him not guilty, wouldn't it? That's how strong that is. And being, you know, relatively sure, probably so, none of those things get there. A defendant has to put on no evidence whatsoever. That's a good thing.



Points of error four through seven are overruled.

IV. BATSON

In point of error eight, appellant contends that the trial court abused its discretion when it overruled appellant's Batson objection to a peremptory challenge exercised by the State. In a line of cases starting with Batson v. Kentucky, (25) the Supreme Court has held that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits any party from exercising a peremptory strike against a prospective juror on the basis of race. (26) The Batson inquiry involves a three-step process: (1) the opponent of the strike must establish a prima facie case of discrimination, (2) if that is accomplished, the proponent of the strike must set forth a race-neutral explanation for the strike, and (3) if a race-neutral explanation is tendered, the opponent of the strike must carry the burden of proving purposeful discrimination. (27) At the second step of the inquiry, the race-neutral explanation need not be persuasive or even plausible, so long as the reason is not inherently discriminatory. (28) The persuasiveness or plausibility of the explanation can be considered in the third step in determining the genuineness of the explanation. (29) At the third step, the ultimate burden of persuasion to show purposeful discrimination never shifts from the opponent of the strike. (30)

Appellant objected to the prosecutor's peremptory challenge of prospective juror Tinner. He asserted that Tinner was one of the few black persons on the panel. The trial judge then asked the prosecutor for a race-neutral explanation, and the prosecutor proffered two explanations at that point. (31) First, the prosecutor stated that Tinner served on a jury that rendered a "not guilty" verdict in a homicide case earlier in the year. Second, the prosecutor claimed that the prospective juror had lived in Tulia, and he did not want her on the jury because of the highly publicized official misconduct that occurred there.

The next day, the prosecutor was sworn and questioned about his reasons. Defense counsel questioned the prosecutor about whether the prior acquittal made the juror a bad juror for future cases. The tenor of that questioning and statements made by defense counsel the day before was that the prosecutor would have to objectively justify the juror's unfitness to serve on the jury by showing, for example, that the jury she served on delivered a bad verdict in the prior case. The prosecutor did contend that a "not guilty" verdict should not have been returned. Regarding the prospective juror's association with Tulia, defense counsel asserted that Tinner had not lived in Tulia for thirty years and asked whether the prosecutor could articulate his reasons for not wanting someone on the jury who had contacts with Tulia. The prosecutor responded that Tinner still had relatives living there, and the prosecutor's personal feeling was that "Tulia has put a bad name on the criminal justice system in its entirety." Under questioning from co-counsel, the prosecutor explained that the venire contained another prospective juror who had served in the prior homicide case with Tinner, and that the prosecutors had concluded that this other member of the venire also would not be a good juror in the present case. After taking the issue under advisement, the trial court ultimately overruled appellant's Batson objection.

We find the State's first reason - that Tinner served earlier that year on a jury that rendered a "not guilty" verdict in a homicide case - to be sufficient to uphold the trial court's ruling. The reason itself was clearly race-neutral, passing step two. With respect to step three, appellant provided no evidence to suggest that the reason was a mere pretext for discrimination. Whether or not the "not guilty"verdict delivered in that case was in fact a "bad" verdict, the prosecutor was entitled to strike the juror just because she had served on a jury that delivered a "not guilty" verdict. Moreover, the prosecutor indicated that he believed the verdict was a bad verdict, and appellant introduced no evidence to suggest otherwise. Given our conclusion with respect to the first reason, we need not address the prosecutor's second reason (contacts with Tulia), except to say that the trial court was within its discretion to believe that appellant did not prove any discriminatory intent underlying that reason. (32) Point of error eight is overruled.

V. JUROR MISCONDUCT

In point of error nine, appellant contends that the trial court erred in denying his motion for new trial on the ground that a juror engaged in misconduct by using appellant's failure to present evidence at trial as a circumstance against him. In an affidavit submitted with appellant's motion for new trial, juror Hendrix stated:

I wish to state that I was concerned that we were called upon to make a decision without any defense evidence. I was concerned of who would sentence the Defendant once our decision was made. I do not recall any specific jury misconduct.



Subsequently, the trial court held a hearing, at which Hendrix testified. (33) In response to questioning from defense counsel, Hendrix testified to the following:

Q. Well, did you have a concern of the defense evidence in that case?



A. Yes.



Q. What was that --



A. May I --



Q. - concern?



A. - express it? I had a concern in my own mind as to, I was just wondering - I - I was concerned that there was no defense. I don't know the reason there was no defense. I don't know if there were - they - they gave us a list of - I believe it said 200 witnesses when we first started this in the questionnaire we filled out. I assumed some of the witnesses were going to be defense witnesses. I don't have any way of knowing, I just was -- I was confused why there might not be someone to testify on the defense side. I don't know if any -- maybe, as far as I know none of the witnesses on that list were defense witnesses. I don't have a problem with anything except what I was wondering in my mind.



Q. Do you recall if the defendant testified during that trial?



A. No, the defendant didn't testify during the trial.



Q. What concerns, if any, did you have with that?



A. That does not bother me in the least. I didn't find that the least bit unusual.



Q. When you say the word concern, could you be - could you define that?



A. About what I mean?



Q. Yes.



A. I came to be a juror on a trial here that carried two people's lives. We had a defendant and we had a - the - the deceased man. I assumed that - I have concern in my heart for everyone who was involved in this - in this trial who - whose lives are at stake in this trial. I have just simply felt badly that there was no one to testify in the other young man's defense, that I was going to get the opportunity to hear.



Q. Did you feel, if there was evidence, that you should have heard that?



A. If there was evidence, yes, I expected to hear any kind of evidence there was, but I don't know if there was evidence. It was a heartfelt thing for me more than anything. I had no opinion against anything that happened in the trial. My heart just went out to the other young man as well, - to this young man as well. Plain and simple.



Q. If you can, were you content to make your decision, the decisions, without hearing other evidence and what came before the Court?



A. Correct. I was instructed to make my decisions according to the testimony and the evidence that was presented to me in court, and that's what I did.



The prosecutor then questioned Hendrix, and the following occurred:

Q. Okay. And do you remember -- do you remember the attorneys qualified you on your ability to hold the State to its burden of proof?



A. Exactly.



Q. All right. And do you recall it being discussed during that process that the defendant didn't have any burden to prove anything, that the State still had to meet its burden?



A. Correct.



Q. All right. Now, do you recall also the instruction that the State had the burden of proving that there was a probability the defendant would commit criminal acts of violence in the future?



A. Yes, I do.



Q. All right. Did you hold the State to its burden in that?



A. Yes, I did.



Q. Was that in any way affected by the fact that you didn't hear any defensive evidence? Did you --



A. No, sir.



Q. Okay. Now, the Court -- the Court gave you a written charge, did it not?



A. Gave me a what?



Q. A written instruction when you went to deliberate.



A. Yes.



Q. A written charge, okay.



A. Right.



Q. Was that read to you?



A. Yes.



Q. All right. And do you recall this instruction:



"Our law provides that a defendant may testify in his own behalf if he elects to do so. This, however, is a privilege accorded a defendant, and in the event he elects not to testify, that fact cannot be taken as a circumstance against him. In this case, the defendant has elected not to testify, and you are instructed that you cannot and must not consider, discuss, allude to, comment upon or refer to that fact throughout your deliberations or take it into consideration for any purpose whatsoever against him." Do you recall that?



A. Correct.



Q. And did you follow that instruction?



A. I did.



Defense counsel then briefly questioned the witness once more:

Q. Do you recall in our conversations since your verdict -



A. Yes.



Q. - making the statement, quote, "I do not know why there was no defense"?



A. Yes, I do recall that. But I explained just a minute ago what I meant by that.



Q. And you are still bothered to this day that there was no defense in the case?



A. I'm not bothered in the way that - I'm not doing well at explaining myself on this I don't think. I don't know quite what to do here. I simply - I don't know if there were any defense witnesses ever involved in this case. That wasn't part of what I knew as a juror. I -- I don't know who all of these witnesses on this list were supposed to testify for. The only thing I was saying is my concern was not in the way the court proceedings were held or the trial was held or any attorney or anyone in this matter handled this case. My heart went out to the defendant as well as the victim. My heart went out to the defendant that I had nothing there personally to help me on the defense side. That's simply what I meant.



Appellant characterizes Hendrix's testimony as "conflicting," but he claims "although the juror may have thought she was holding the State to its burden, she was also bothered by the lack of defense evidence which potentially included Appellant's own testimony." Appellant then quotes Article 38.08 as stating that "the failure of any defendant to so testify shall not be taken as a circumstance against him," and he then concludes, "This, however, by implication entered into the deliberations of at least one member of the Appellant's jury panel." The State responds that any conflict in the testimony was for the trial court to decide.

We see no conflict in Hendrix's testimony, but that fact does not inure to appellant's benefit. There is simply nothing in the record to suggest that Hendrix improperly used against appellant his failure to present evidence. She acknowledged that appellant had no burden to present evidence, and she consistently stated that she held the State to its burden of proof.

As for appellant's failure to testify, we observe that appellate counsel failed to cite Hendrix's very explicit testimony (italicized above) that appellant's failure to testify did not bother her in the least because she did not find it to be the least bit unusual. Point of error nine is overruled.

VI. CHALLENGE TO THE DEATH PENALTY

In point of error eleven, appellant contends, "Article 37.071 . . . fails to provide a method by which the State of Texas determines the 'deathworthiness' of a capital defendant, thereby eliminating consistency in the decision to seek death and weakening the degree of accuracy required in imposing death in contravention of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution." Relying upon Bush v. Gore, (34) appellant argues that the Equal Protection Clause of the Fourteenth Amendment requires uniform statewide standards to guide prosecutors in deciding when to seek the death penalty. He also argues that statewide standards are necessary to prevent "the exercise of unfettered discretion [that] arbitrarily values some peoples' lives more than others" in violation of the Eighth Amendment. We have decided these claims adversely to his position. (35) Point of error eleven is overruled.

VII. CUMULATIVE ERROR

In point of error twelve, appellant contends that his right to due process was violated by the cumulative effect of the following errors: (1) the judicial remark about defense evidence (points of error four through seven), (2) the judicial remark regarding reasonable doubt (point of error one), (3) the question of the voluntariness of appellant's plea as well as his competency to enter same (points of error two and three), and (4) Batson error. We have found no error as to (3) and (4). Claims (1) and (2) were not preserved, but even if the matters discussed could be reviewed for the possible existence of fundamental error, for the reasons already outlined, the combined effect of those two alleged errors would not cause them to rise to the level of fundamental, reversible error. Point of error twelve is overruled.

Finding no reversible error, we affirm the judgment of the trial court.

Delivered: September 12, 2007

Do not publish

1. See Tex. Pen. Code §19.03(a)(5)(A)("A person commits an offense if the person commits murder as defined under Section 19.02(b)(1) and . . . the person, while incarcerated in a penal institution, murders another . . . who is employed in the operation of the penal institution.").

2. See Tex. Code Crim. Proc., Art. 37.071, §2(b)(1), (e)(1). Unless otherwise indicated, all future references to articles are to the Texas Code of Criminal Procedure.

3. Art. 37.071, §2(g).

4.

Art. 37.071, §2(h).

5. See Art. 37.071, §2(b)(1).

6. Russeau v. State, 171 S.W.3d 871, 878 (Tex. Crim. App. 2005), cert. denied, 126 S. Ct. 2982 (2006)(quoting Art. 37.071, §2(b)(1)).

7. Id. at 878 n.1.

8. 724 S.W.2d 58 (Tex. Crim. App. 1987).

9. Id. at 61.

10. Wardrip v. State, 56 S.W.3d 588, 594 n.8 (Tex. Crim. App. 2001); Keeton, 724 S.W.2d at 61.

11. McGinn v. State, 961 S.W.2d 161, 168 n.6 (Tex. Crim. App. 1998).

12. Swain v. State, 181 S.W.3d 359, 370 (Tex. Crim. App. 2005), cert. denied, 127 S. Ct. 145 (2006); Guevara v. State, 97 S.W.3d 579, 582 (Tex. Crim. App. 2003).

13. Smith v. State, 74 S.W.3d 868, 872 (Tex. Crim. App. 2002).

14. See Art. 26.13(b).

15. Holland v. State, 761 S.W.2d 307, 322 (Tex. Crim. App. 1988).

16. Id.

17. 88 S.W.3d 633 (Tex. Crim. App. 2002).

18. See id. at 638.

19. Kuyava v. State, 538 S.W.2d 627, 628-29 (Tex. Crim. App. 1976)(citations omitted).

20. To the second half of the panel, the trial court made the following pertinent remarks:



This concept of reasonable doubt, we have really three levels of burdens of proof in our Texas law. And the lowest of those levels is the level we use in general civil cases, and that is a preponderance of the evidence.



* * *

And it was defined, probably, as just saying the greater weight of the credible evidence that was presented in the courtroom. More likely than not. And that's good enough to tip the scales, and that's the burden of proof in a criminal case. There are other type -- excuse me, in a civil case. There are other types of civil cases that require a bit more proof; for instance, termination of parental rights. If the State or anyone else alleges that your parental rights should be terminated, then the level of proof rises higher than preponderance of the evidence. And that level is called clear and convincing evidence. That level of clear and convincing evidence means you ought to be pretty darn sure. You ought to be just pretty sure that this is the right thing to do. In criminal cases, the -- our burden is the State must show you beyond a reasonable doubt. You cannot have a reasonable doubt. If you have a doubt which would be based on reason, hopefully, it would be, definitionally, I suppose, a reasonable doubt and you would not be able to convict because they've got to get beyond a reasonable doubt. So that's the highest level. And it's way beyond, way beyond, pretty darn sure. Our law does not define it for you. Our law went 200 years without being able to define reasonable doubt, and then we went through a short period of time where the legislature thought, "Well, we probably can get close to defining reasonable doubt," and they attempted to do that. They based that definition on a definition that has been used from time to time in the federal court system. And then after a few years we abandoned that because it was once again decided, and where we came back to was, reasonable doubt is a concept or a theory that is different for each of us. Each of us have our own level. Each of us have our own level of -- pain level, what we can -- what we can tolerate. Each of us have these different things that we are concerned with. And reasonable doubt is what you believe it to be. But I'll tell you, it's way past pretty darn sure. That sounds fair, doesn't it? Before you take someone's life and liberty, you ought to be way beyond pretty darn sure that that's the right thing to do.

21. See Tex. R. App. P. 33.1(a)(1)(A).

22. See Blue v. State, 41 S.W.3d 129, 131-33 (Tex. Crim. App. 2000)(plurality op.)(trial judge's comments were fundamental, reversible error because they tainted presumption of innocence); Jasper v. State, 61 S.W.3d 413, 420-21 (Tex. Crim. App. 2001)(even if bound to follow plurality opinion in Blue, judge's comments did not rise to that level).

23. 28 S.W.3d 570, 572-73 (Tex. Crim. App. 2000).

24. Id.

25. 476 U.S. 79 (1986).

26. See, e.g., Rice v. Collins, 546 U.S. 333, 338 (2006).

27. Id.

28. Id.

29. Purkett v. Elem, 514 U.S. 765, 769 (1995).

30. Collins, 546 U.S. at 338.

31. The prosecutor's proffer of a race-neutral explanation obviates the need to address whether the defendant satisfied the step one prima facie case requirement. Simpson v. State, 119 S.W.3d 262, 268 (Tex. Crim. App. 2003).

32. See Guzman v. State, 85 S.W.3d 242 (Tex. Crim. App. 2002)(discussing dual-motivation analysis in the Batson context).

33. The State objected to the affidavit and the testimony on the ground that it related to internal jury deliberations in violation of Tex. R. Evid. 606(b). Citing the gravity of the trial's outcome, the trial court expressed its intent to "get all the information out on the table" and proceeded to hear Hendrix's testimony. The State has not filed a notice of appeal or raised a cross-point with respect to the Rule 606(b) issue. In its appellate brief, the State points out that it made the objection, but it does not specifically complain about the receipt of this evidence. Given our disposition of appellant's point of error, we need not address the propriety of the trial court's decision to hear the evidence, nor do we need to address the potential procedural hurdles that the State might face in advancing a Rule 606(b) complaint on appeal.

34. 531 U.S. 98 (2000).

35. Roberts v. State, 220 S.W.3d 521, 535 (Tex. Crim. App. 2007); Crutsinger v. State, 206 S.W.3d 607, 611-13 (Tex. Crim. App. 2006), cert. denied, 127 S. Ct. 836 (2006).