IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
v.
THE STATE OF TEXAS
Appeal from Case F05-59563-QS of the
282nd Judicial District Court of
Dallas County
A jury convicted Juan Lizcano of capital murder on October 9, 2007. Pursuant to the jury's findings on special issues about future-dangerousness, mitigation, and mental-retardation, the trial court sentenced the appellant to death. The appellant now raises seventy-nine points of error on direct appeal to this Court. (1) Finding no reversible error, we affirm the judgment and sentence of the trial court.
I. Background
The appellant and Jose Fernandez, a friend, spent the evening of Saturday, November 13, 2005, at a dance club in Dallas. Fernandez testified at the appellant's trial that they arrived around 10:00 or 11:00 p.m. and consumed three beers each, leaving around 1:00 a.m. on Sunday morning. As the appellant drove them home in his truck, Fernandez overheard the appellant talking on his cell phone to Marta Cruz, his girlfriend. The appellant told Cruz "if she was with another person, he was going to kill her. He's going to kill her and him." The appellant then drove with Fernandez to the apartment the appellant shared with his uncle and brother. The appellant took his uncle's revolver and continued to Cruz's house. Fernandez stayed in the truck while the appellant went inside.
Marta Cruz testified that the appellant knocked on her door around 2:00 a.m. on Sunday morning. After she let him inside, the appellant pointed the revolver at her head. Then he fired one shot into the ceiling. Cruz said the appellant told her that "[t]he next shot was for me. That I was next. The next one was for me." The appellant left the house after about ten minutes. Cruz immediately called 911.
Before the police arrived, Cruz called Fernandez to find out if he knew that the appellant had a gun. When Fernandez answered, Cruz learned that he was with the appellant. She asked Fernandez to tell the appellant not to come back to her house because the police were looking for him. But the appellant called Cruz and told her that he "didn't give a damn. He just didn't care."
Officer Lori Rangel was one of the officers who responded to Cruz's first 911 call. Officer Rangel testified that after Cruz described the incident with the appellant, Officer Rangel searched the surrounding area, but did not find the appellant or his truck. Following the unsuccessful search, Cruz told Officer Rangel that she did not need anyone to continue waiting with her, so Officer Rangel left the house.
Cruz received another call from the appellant after Officer Rangel left. The appellant said "that he could see that there was no police. That I was lying." A couple of minutes later, the appellant began kicking her side door to gain entry. Cruz hid in a closet. She called 911 while the appellant continued trying to kick through the door. Eventually, police officers arrived at Cruz's house and the appellant's kicking stopped.
Several police officers testified about the events following Cruz's second 911 call. Officer David Gilmore saw the appellant run from the back yard into an alley behind the house. Several officers then searched the alley. A marked police vehicle led officers on foot, and a police helicopter hovered above. Officers Brad Ellis, Richard Rivas, Francis Crump, and Raymond McClain described scrambling for cover as the appellant fired at least three shots at them from behind a tree in the alley. The appellant then ran from the alley, toward the front of the house.
While other officers searched the back alley, Officer Brian Jackson took an AR-15 rifle from his police vehicle and moved into a position at the front of the house. After the appellant ran to the front of the house, officers heard the appellant's revolver fire one shot, followed by Officer Jackson's rifle firing three shots. As the officers converged on the front yard, they found Officer Jackson fatally wounded and the appellant lying on the ground behind a trash can. His revolver lay empty on the ground two or three feet from his head. According to Chief Medical Examiner Dr. Jeffrey Barnard, the appellant's shot traveled through Officer Jackson's right arm and then into his heart, killing him within ten to fifteen seconds.
At trial, the appellant did not contest that he had fired the fatal shot. He did, however, challenge the State's theory that he fired first and that he knew Officer Jackson was a police officer.
II. JURY SELECTION
A. Batson Challenges
In points of error one through six, the appellant argues that the State exercised peremptory challenges to strike six black venire members in violation of the Equal Protection Clause of the United States Constitution and Batson v. Kentucky. (2) In Batson, the United States Supreme Court held that while a prosecutor ordinarily may exercise peremptory challenges for any reason related to his views concerning the outcome of the trial, "the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race ...." (3) The Supreme Court articulated the procedure for bringing a Batson challenge in Purkett v. Elem (4):
Under our Batson jurisprudence, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination. (5)
1. Standard of Review
The ultimate burden of persuasion rests with the opponent of the strike to establish by a preponderance of the evidence that the strike was the product of the proponent's purposeful discrimination. (6) The appellant concedes that the State offered race-neutral explanations for the six challenged venire members, but argues that the trial court erred because the State's explanations were a pretext for racial discrimination. Therefore, the only issue before us is whether the trial court erred in finding that the appellant did not prove purposeful racial discrimination by a preponderance of the evidence.
On appeal, a trial court's ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous. (7) This deferential standard of review is due to the trial court's ability to make determinations about an attorney's credibility and demeanor: "Step three of the Batson inquiry involves an evaluation of the prosecutor's credibility and the best evidence of discriminatory intent often will be the demeanor of the attorney who exercises the challenge." (8)
2. Analysis This Court has identified a number of relevant factors that may be considered by a trial court in determining discriminatory intent. (9) The appellant argues two of these factors on appeal: (a) the State disproportionately eliminated black venire members in striking six out of the eight black venire members on the qualified panel of forty-seven total venire members, and (b) the answers given by the stricken black venire members in response to voir dire questioning were similar to answers given by non-black venire members who were not struck.
a. Proportionality of Strikes
The record from the Batson hearing conducted by the trial court indicates that a total of forty-seven venire members were found qualified after individual voir dire. Of these forty-seven, eight were black, thirty-two were white, six were Hispanic, and one was of an "other" race. (10) The State exercised peremptory challenges against six black, seven white, two Hispanic, and the one "other" venire member. The appellant exercised peremptory challenges against no black, sixteen white, and two Hispanic venire members. Ultimately, the jury consisted of two black, eight white, and two Hispanic jurors and one white alternate juror. (11)
The appellant encourages us to determine proportionality by simply comparing the number of black venire members struck by the State to the total number of black venire members: 6 of 8, or 75%. (12) The State would have us compare the number of black jurors to the total number of jurors plus the alternate juror (2 of 13, or 15%), and compare that percentage with the percentage of black jurors that would be expected from a random selection from the qualified venire (8 of 47, or 17%). (13) We also could analyze the data using a number of other statistical techniques found in decisions of the United States Supreme Court and this Court. (14)
The parties have not provided analysis of why any one technique would be preferable to determine proportionality under the facts of the present case. Because the record does not indicate which, if any, of these techniques the trial court relied upon, we will not decide which technique is preferable. (15) Instead, we simply observe that certain techniques yield statistics favoring the appellant and certain techniques yield statistics favoring the State. Therefore, this factor does not support the appellant's contention that the trial court's ruling was clearly erroneous, and we look next to the appellant's comparative juror analysis.
b. Comparative Juror Analysis
The United States Court of Appeals for the Fifth Circuit recently extracted key principles from the United States Supreme Court decision in Miller-El v. Dretke to help guide comparative juror analyses:
First, we do not need to compare jurors that exhibit all of the exact same characteristics. If the State asserts that it struck a black juror with a particular characteristic, and it also accepted nonblack jurors with that same characteristic, this is evidence that the asserted justification was a pretext for discrimination, even if the two jurors are dissimilar in other respects. Second, if the State asserts that it was concerned about a particular characteristic but did not engage in meaningful voir dire examination on that subject, then the State's failure to question the juror on that topic is some evidence that the asserted reason was a pretext for discrimination. Third, we must consider only the State's asserted reasons for striking the black jurors and compare those reasons with its treatment of the nonblack jurors. (16)
The primary reason asserted by the State for striking five of the six black venire members at issue was that they were among eight venire members who circled a specific answer to a specific question on the jury questionnaire. The answer indicated that, although they did not believe that the death penalty ever ought to be invoked, as long as the law provides for it they could assess it under the proper circumstances. A venire member's responses to a written questionnaire can be valid grounds for a peremptory challenge. (17) Because the State struck all eight venire members who shared the characteristic of circling this answer, including three non-black venire members, the appellant has not demonstrated that the State's reason for striking those five black venire members was a pretext for discrimination.
The State offered four reasons for striking the sixth black venire member, R. Howard: (i) he preferred a sentence of life in prison to the death penalty; (ii) he was argumentative and became alienated during voir dire; (iii) he would hold the State to a burden of proof higher than beyond a reasonable doubt; and (iv) he would prefer a sentence of life in prison if the evidence of guilt was sufficient, but weak. The appellant argues that the record does not support the State's reasons and that Howard's responses to voir dire questioning suggest that he would have been a strong juror for the State.
Our review of the record reveals that there is evidence supporting the State's reasons for striking Howard; indeed, the State attempted to challenge Howard for cause on the basis of the third and fourth reasons. More importantly, the appellant has failed to identify any non-black jurors with characteristics similar to Howard who were not struck by the State, thus providing no comparison. As the appellant bears the burden of persuasion, we decline to scour the extensive record to find an appropriate comparison.
Because neither the proportionality nor the comparative-juror-analysis factor weighs in favor of a finding that the trial court's ruling was clearly erroneous, points of error one through six are overruled.
B. Appellant's Challenges for Cause
In points of error seven through fifteen, the appellant argues that the trial court erred in denying his challenges of nine venire members for cause. In Johnson v. State, we reaffirmed that harm arising from erroneous denial of challenges for cause is "demonstrated, and the error held reversible, when the appellant (1) exercised his peremptory challenges on the venire member whom the trial court erroneously failed to excuse for cause, (2) exhausted his peremptory challenges, (3) was denied a request for additional peremptory challenges, and (4) identified an objectionable juror who sat on the case." (18) Here, the appellant failed to identify an objectionable juror who sat on the jury at the appellant's trial.
At the conclusion of voir dire, the State and the appellant each exercised their full allotment of fifteen peremptory challenges. In addition, the appellant exercised two additional peremptory challenges granted by the trial court. When the State and the appellant had exhausted the last of their peremptory challenges, only nine venire members had been seated as jurors. The trial court therefore seated the next three venire members: L. Morris, L. Jackson, and A. Perez.
After the appellant had used his last peremptory strike and before the final three jurors were seated, the appellant requested additional peremptory strikes but failed to identify an objectionable juror who sat on the case:
DEFENSE COUNSEL: Your Honor, we will exercise that peremptory challenge on Ms. Lee. Your Honor, we will ask an additional peremptory challenge. We are out of them now and there are jurors that will be placed on the jury that we have attempted to get off for cause and are objectionable and prejudiced against the Defendant in violation of his rights under Article one, section ten of the - ten, fifteen, nineteen and twenty-nine of the Texas Constitution, the Sixth and Fourteenth Amendment of the United States Constitution, and request extra strikes - an extra strike, and they were challenged for cause for bias, which we, you know, brought to the Court's attention, and we would need to use a peremptory challenge on them to keep them off the jury.
[I]t is my understanding that per the agreement with the Court and Counsel that [Defense Counsel] was allowed to specify her peremptory challenges for people that were challenged by the Defense for cause and that challenge was overruled by the trial court, and I think there was a total of seven of them, and beginning with the first one, going through seven, we would state that the Court erred in not granting the challenge for cause, and in successive order, we have had to challenge these people as objectionable jurors that would have ended up on the jury if we hadn't used peremptory challenges, therefore, using up our peremptory challenges on jurors that should not have been in the strike zone.
THE COURT: That will be denied. And that results in Morris being juror 10, Jackson, juror 11, and Perez being juror 12.
Defense counsel's statements do not identify Morris, Jackson, and Perez as objectionable jurors because the record shows that none of these individuals were challenged by either party for cause during individual voir dire. Additionally, on appeal, the appellant identifies each of the nine venire members whom the appellant actually struck as an "objectionable juror" and states that because the appellant had exhausted his peremptory challenges on these objectionable jurors, he "was required to accept an 'objectionable' juror on the jury."
Ultimately, the appellant failed both at trial and on appeal to identify any specific, objectionable juror who actually sat on the jury during the trial. Because the appellant has not established one of the four necessary elements to show harm, we find it unnecessary to review the merits of the trial court's ruling on each venire member. (19) Points of error seven through fifteen are overruled.
C. State's Challenges for Cause
In points of error sixteen and seventeen, the appellant argues that the trial court erred in granting the State's challenges for cause of venire members G. Jefferson and N. Miller Phillips. The appellant argues that these venire members did not exhibit bias and could follow the law.
A venire member is challengeable for cause if his beliefs against capital punishment would prevent or substantially impair the performance of his duties as a juror in accordance with the court's instructions and the juror's oath. (20) A venire member who can set aside his beliefs against capital punishment and honestly answer the special issues is not challengeable for cause. (21) We review a trial court's ruling on a challenge for cause with considerable deference because the trial court is in the best position to evaluate the venire member's demeanor and responses. (22) When the venire member's answers are vacillating, unclear, or contradictory, particular deference is accorded to the trial court's decision. (23) We will reverse a trial court's ruling on a challenge for cause only if a clear abuse of discretion is evident. (24)
Jefferson ultimately stated that she could not perform her duties as a juror in accordance with the juror's oath. During voir dire, Jefferson vacillated about her ability to take the juror's oath due to her religious beliefs. The trial court then posed several questions directly to her:
THE COURT: Well, let me ask a few questions. I think you are intelligent enough - certainly intelligent, and you understand you said some conflict - you have made some conflicting answers.
[JEFFERSON]: Uh-huh.
THE COURT: You agree with that, don't you, Ms. Jefferson -
[JEFFERSON]: Yes, sir.
THE COURT: - from talking to these lawyers. Let me ask you this and I'll just leave it at that: To sit on the jury, you have to take that oath that both sides have been talking to you about, that you can a true verdict render according to the law and evidence, and that would mean that if the - you believe that the State proved that the person on trial was guilty beyond a reasonable doubt, that you could find the person guilty. And if you didn't, you would find the person not guilty.
[JEFFERSON]: Yes, sir.
THE COURT: Can you take the oath and follow the law as to whether or not to find someone guilty or not guilty.
[JEFFERSON]: I couldn't take it. I can't take the oath, at least not at this time, without finding out from my church how they feel about that, sir.
THE COURT: Well, we're just not - under our procedure, we can't wait until you have had an opportunity to talk to your church, so I need a "yes" or "no" answer at this time.
[JEFFERSON]: No, sir, not at this time.
Because Jefferson vacillated about whether she could impose the death penalty, and ultimately stated to the trial court that she could not take the juror's oath, the trial court did not abuse its discretion in granting the State's challenge.
Miller Phillips was originally examined on June 27, 2007, and also made conflicting statements with respect to her ability to impose the death penalty. At the beginning of questioning she stated, "I'm not in favor of putting someone to death. I'm not in favor of death under any circumstances. In all honesty, I find it ludicrous that we can't kill stem cells, but we can kill an individual. That just does not make any sense to me." As questioning proceeded, however, she indicated that she could perform her duties as a juror.
Several weeks after her initial questioning, Miller Phillips contacted the court coordinator with concerns about her ability to serve on the jury. She subsequently retained counsel and appeared in court with counsel on September 4, 2007, to inform the trial court that she could not perform her duties as a juror: "Well, after much thought and deliberations and a great deal of soul searching, I have concluded that I cannot bring myself to find another person to death [sic]. I cannot do that. I find it morally and ethically wrong." Miller Phillips stated further, "I would not in good conscience be able to answer [the special issues] in such a way that it would lead to the death of another human being." She did not waver from this position during further questioning by defense counsel.
Because Miller Phillips expressly informed the trial court that she would be unable to impose the death penalty, the trial court did not abuse its discretion in granting the State's challenge. (25) Points of error sixteen and seventeen are overruled.
D. Lawfully Constituted Jury
In point of error eighteen, the appellant argues that the errors claimed in points of error one through seventeen violate the United States Constitution by "depriv[ing] Appellant of a lawfully constituted unbiased and non prejudicial group of jurors, all of which should have been qualified according to the law." The appellant also states that our holding in Jones v. State (26) is "constitutionally illusory erroneous and barbaric in its application." In point of error nineteen, the appellant repeats point of error eighteen, but substitutes the Texas Constitution.
As we have found no error in the selection of qualified jurors, points of error eighteen and nineteen are overruled.
III. MENTAL RETARDATION
A. Psychological Examination
In points of error twenty and twenty-one, the appellant argues that he was compelled to submit to a psychological examination conducted by the State in violation of the Fifth Amendment to the United States Constitution and Article I, Sections 9 and 10 of the Texas Constitution. The appellant fails to provide any distinction between his state and federal constitutional arguments. Therefore, we will analyze only his federal claims. (27)
In Lagrone v. State, we held that "when the defense demonstrates the intent to put on future dangerousness expert testimony, trial courts may order defendants to submit to an independent, state-sponsored psychiatric exam prior to the actual presentation of the defense's expert testimony." (28) Then in Chamberlain v. State, (29) we discussed the broader principle of Lagrone:
[I]f a defendant breaks his silence to speak to his own psychiatric expert and introduces that testimony which is based on such interview, he has constructively taken the stand and waived his fifth amendment right to refuse to submit to the State's psychiatric experts . Appellant cannot claim a fifth amendment privilege in refusing to submit to the State's psychiatric examinations and then introduce evidence gained through his participation in his own psychiatric examination. (30)
The immediate question before us is whether the holding in Lagrone may be extended to psychological examinations to determine mental retardation. We hold that when the defense demonstrates the intent to introduce evidence of the defendant's mental retardation through psychological examinations conducted by defense experts, the trial court may order the defendant to submit to an independent, state-sponsored psychological examination on the issue of mental retardation. As we stated in Lagrone, "[o]ur sense of justice will not tolerate allowing criminal defendants to testify through the defense expert and then use the Fifth Amendment privilege against self-incrimination to shield themselves from cross-examination on the issues which they have put in dispute." (31) The precise nature of the psychological testimony to be presented is immaterial; that it is being presented by the defendant is enough to trigger the rule. (32)
The trial in this case began on October 1, 2007. On April 20, 2007, by order of the trial court, the appellant had filed a declaration of his intent to claim mental retardation as a bar to the death penalty. On the same day, the State filed a motion to compel the appellant to submit to an examination by the State's expert to determine whether he was mentally retarded. The trial court granted the State's motion, and further ordered that (i) the appellant's and State's experts make the raw test data and notes from their evaluations available to the opposing expert, and (ii) neither expert disclose the underlying facts or data to the attorneys without prior judicial authorization. At a pretrial hearing on June 1, 2007, the appellant objected to the examination primarily on the grounds that it should be conducted only after the appellant had actually introduced expert testimony on the issue of mental retardation at trial. In response, the trial court revised its order to prohibit the State's expert from talking with the appellant about the facts of the underlying offense. The appellant now argues that the examination was unconstitutional, but does not discuss the timing of the examination. (33)
We conclude that the trial court's order did not violate the appellant's Fifth Amendment rights, particularly where the trial court adopted the prophylactic measures of ordering the experts not to disclose underlying facts or data to the attorneys without prior judicial authorization, and ordering the state's expert not to question the appellant regarding the offense. Points of error twenty and twenty-one are overruled.
B. Pretrial Determination of Mental Retardation
In point of error twenty-two, the appellant argues that the trial court denied him due process of law by refusing to empanel a separate jury to make the mental-retardation determination before trial. In point of error twenty-three, the appellant argues that the trial court denied him due process of law by refusing to make the mental-retardation determination itself before trial. In point of error twenty-four, the appellant states that the trial court denied him due process of law by refusing to allow him to offer evidence of mental retardation before the trial. Point of error twenty-four is not briefed and is therefore overruled. (34)
In Atkins v. Virginia, (35) the United States Supreme Court held that the execution of mentally retarded persons violates the Eighth Amendment's prohibition of cruel and unusual punishment, but left to the states the task of developing appropriate ways to enforce this constitutional restriction. This Court has consistently held that a determination of mental retardation during the punishment phase of trial is sufficient to protect a defendant's Eighth Amendment rights. (36) In Neal v. State, we explained that "the nature of the offense itself may be relevant to a determination of mental retardation; thus, a jury already familiar with the evidence presented at the guilt stage might be especially well prepared to determine mental retardation." (37)
The appellant fails to cite any binding authority for the proposition that punishment-phase determinations of mental retardation are a violation of due process. While his policy arguments could be considered by the legislature if it chooses to enact a statutory response to Atkins, we decline to overturn established precedent. Points of error twenty-two and twenty-three are overruled.
C. Mitigation Report Underlying Expert Opinions
In point of error thirty, the appellant argues that the trial court erred in requiring the appellant to produce the facts and data underlying the opinions of his mental-retardation experts approximately ten days before the appellant called the experts to testify. The appellant also argues that the facts and data were "work product and not subject to discovery."
Rule of Evidence 705(a) controls disclosure of facts or data underlying an expert opinion:
The expert may testify in terms of opinion or inference and give the expert's reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event disclose on direct examination, or be required to disclose on cross-examination, the underlying facts or data. [Emphasis added.]
A trial court is vested generally with broad discretion to conduct a trial. (38) The emphasized clause "unless the court requires otherwise" provides the trial court with specific discretion to require the disclosure of facts or data underlying expert opinions prior to the testimony of the expert.
The record shows that the appellant's defense counsel hired an investigator, Debbie Nathan, to conduct interviews to assemble mitigation evidence. Based on these interviews, Nathan compiled a "mitigation report." When defense counsel decided to pursue a mental-retardation claim, they sent the mitigation report to their mental-retardation experts. The experts used the mitigation report to form their opinions, and the mitigation report was sent to the State's expert pursuant to the trial court order discussed above in Section III-A.
On Wednesday, October 10, the jury heard testimony from several of the appellant's punishment witnesses. The trial court then dismissed the jury for the weekend, reminding the jurors that the trial would break again after the Tuesday of the next week. On Thursday, October 11, the trial court ordered defense counsel to disclose facts or data, including the mitigation report, underlying the opinions of their experts. Defense counsel objected on the grounds that the State should get the mitigation report only "at the time that the witness is on voir dire preparing to testify in front of the jury." The trial court overruled the defense objection and explained that it wanted to avoid further delays in the trial:
[H]ere's the rule. 705 says, "Prior to the expert giving the expert's opinion that the State is entitled to take this person on voir dire." It doesn't talk about time frame or anything else like that.
This case has been delayed, delayed, delayed. I'm not going to run up to October 22nd or 29th now when you plan to call this witness and delay this case any further, because they're going to want a continuance. They will be entitled to a continuance to review the information. They simply will be.
The data is what it is. And [Defense Counsel], if you do not create or enhance the substance of information, it ain't work product. So, at this time, I'm ordering the Defense to turn over the disclosure of facts or data underlying your expert's opinion that you will be calling to testify.
On Monday, October 15, the trial resumed. In the afternoon of Tuesday, October 16, the jury was again excused until Monday, October 29. The State conducted a voir dire examination of the appellant's experts on Wednesday, October 31, and the experts completed their testimony that day. The trial finally concluded on Thursday, November 1.
As a preliminary matter, the appellant argues on appeal that the mitigation report was "work product and not subject to discovery." At trial, however, the appellant conceded that the mitigation report would have to be disclosed; he argued only that he should not be required to disclose the mitigation report before the experts were called to testify. The contention that the mitigation report was "work product and not subject to discovery" was not argued to the trial court and is not preserved for review. (39)
The record shows that the trial court ordered the disclosure before the defense experts were called to testify, but during the presentation of defense witnesses at the punishment phase, so that the State could review the information while the jury was excused. The trial court could thereby avoid granting another continuance that would extend the trial further. Under the facts described above, the trial court did not abuse the discretion provided under Rule 705(a). Furthermore, the appellant fails to allege any specific harm arising from the State's possession of the mitigation report prior to voir dire of the expert witnesses. Point of error thirty is overruled.
D. Mental Retardation Finding
In point of error forty-nine, the appellant argues that the jury's answer to the mental-retardation special issue is against the great weight and preponderance of the evidence. In points of error fifty and fifty-one, he argues that the trial court erred in failing to disregard the jury's answer to the mental-retardation special issue and in denying the appellant's motion for judgment notwithstanding the verdict. We will address the latter two points first.
In points of error fifty and fifty-one, the appellant argues that because he introduced expert witnesses to demonstrate mental retardation and the State did not introduce its own expert witnesses in rebuttal, the trial court should have disregarded the jury's answer to the mental-retardation special issue or granted his motion for judgment notwithstanding the verdict. (40) In Gallo v. State, we held that when an affirmative defense of mental retardation is asserted at trial, a defendant bears the burden of proof, by a preponderance of the evidence, to establish that he is mentally retarded. (41) We find no authority, however, to support the appellant's contention that only expert testimony can be used to prove or disprove mental retardation, or that the State had a burden of production to introduce expert witnesses. In fact, in Ex parte Briseno, we cautioned that "[a]lthough experts may offer insightful opinions on the question of whether a particular person meets the psychological diagnostic criteria for mental retardation, the ultimate issue of whether this person is, in fact, mentally retarded for purposes of the Eighth Amendment ban on excessive punishment is one for the finder of fact, based upon all of the evidence and determinations of credibility." (42) Points of error fifty and fifty-one are overruled.
We now proceed to point of error forty-nine. As noted above, at trial the appellant bore
the burden of proof, by a preponderance of the evidence, to establish that he is mentally
retarded. (43) This Court defines "mental retardation" according to a three-prong test: (i)
significantly sub-average general intellectual functioning, usually evidenced by an IQ score of
about 70 or below, (ii) accompanied by related limitations in adaptive functioning, and (iii) the
onset of which occurs prior to the age of eighteen. (44)
In reviewing the jury's finding that the
appellant is not mentally retarded, we must consider all of the evidence relevant to the mental-retardation special issue and determine, with great deference to the jury's finding, whether this
finding is so against the great weight and preponderance of the evidence as to be manifestly
unjust. (45) 1. Significantly Sub-Average General Intellectual Functioning The appellant's evidence on the first prong of the mental retardation test came from two
expert witnesses who testified that his IQ scores are consistently below 70. Dr. Antonio Puente, a
clinical neuropsychologist and professor of psychology at the University of North Carolina,
administered three IQ tests and reported scores of 62, 60, and 48. Dr. Puente gave his opinion
that the appellant was mildly mentally retarded. He also noted an IQ test performed by defense
expert Dr. Gilbert Martinez that resulted in a score of 69. Dr. Kristi Compton, a psychologist in private practice in Dallas, administered one IQ test
and reported a score of 53. In her opinion, the appellant suffered from mild mental retardation.
Dr. Compton further testified that IQ tests have a standard error of measure of plus or minus five
points. On cross-examination, Dr. Compton confirmed that Hispanic test subjects historically
score 7.5 points lower on IQ tests than Caucasian subjects. She explained, "That doesn't mean
they're less intelligent, it has to do with culture and influence." Dr. Compton indicated that there
was no standard protocol for whether to simply add back 7.5 points to the scores of Hispanic
subjects. She agreed with the State that if the 7.5 points were added, the appellant's IQ scores
would be 55.5, 59.5, 69.5, 67.5, and 76.5. If five additional points were added to reflect the upper
limit of the error of measure, the scores would be 60.5, 64.5, 74.5, 72.5, and 79.5. (46) Dr. Compton
testified on redirect examination, however, that having multiple scores within the same range
gave her additional confidence that the scores were correct and that it would not be proper to
simply add 7.5 and 5 points to each score. The State contends on appeal that three considerations should increase the IQ scores
reported by Drs. Puente and Compton. First, "Dr. Compton testified that Spanish speakers tend to
score one-half standard deviation below Caucasians, or 7.5 points, because of 'culture and
influence,' not cognitive deficiency." Second, the standard error of measurement was plus or
minus five points. Third, "case law and the theory of regression to the mean further support
interpreting the results, in this case, so that they trend upward to the mean IQ of 100." The State's contentions have little merit. Whether or not "Spanish speakers" as a group
tend to score below "Caucasians" on IQ tests, has little relevance for the proposition that, on the
tests administered to him, the appellant's scores were somehow inaccurate due to his particular
culture and influences. (47) Furthermore, the State presented no evidence showing why the standard
error of measure of five points should be added to the appellant's score rather than subtracted
from it or even ignored, particularly in light of the testimony from Dr. Compton that the multiple
scores below 70 increased her confidence in the validity of the scores. Finally, the theory of
"regression to the mean" was not presented to the jury, and the State does not indicate how that
theory would logically apply in this case. The appellant clearly satisfied the first prong of the mental retardation definition by a
preponderance of the evidence. 2. Related Limitations in Adaptive Functioning To aid our analysis of an appellant's limitations in adaptive functioning, we look to the
definition of "adaptive behavior" in the Health and Safety Code. (48) Section 591.003(1) of the
Health and Safety Code defines adaptive behavior as "the effectiveness with or degree to which a
person meets the standards of personal independence and social responsibility expected of the
person's age and cultural group." The appellant was approximately twenty-eight years old at the
time of the offense, and because neither party presented evidence or argument concerning the
appellant's cultural group, we will consider his cultural group to be simply the people of the State
of Texas. A significant number of witnesses provided testimony relevant to the appellant's adaptive
functioning. The testimony of many of the witnesses, however, provided evidence both for and
against the appellant's claim. The following is a summary of the more relevant testimony: As noted above, "adaptive behavior" was defined for the jury as "the effectiveness with
which a person meets standards of personal independence and social responsibility expected of
the person's age and cultural group." (49) The jury could consider relevant evidence presented at
both the guilt or innocence and the punishment phases of trial, and could also focus on evidence
relevant to the factors laid out in Briseno. (50) The evidence relevant to adaptive functioning was extensive, and we need not assign a
weight to each piece of evidence. Some of the more significant evidence showing limitations in
adaptive functioning was the following: (i) the appellant had trouble following instructions and
performing fairly simple tasks in the work environment; (ii) the appellant used limited
vocabulary and did not seem to understand humor; (iii) the appellant could not perform certain
simple personal tasks such as reading an analog clock, following directions to a location, or
operating a VCR; and (iv) the appellant had difficulty learning and socializing. On the other
hand, the following evidence suggested that the appellant did not exhibit limitations in adaptive
functioning: (i) the appellant maintained continuous employment and was recognized by his
employers as a hard and reliable worker; (ii) the appellant made regular payments on a vehicle he
purchased as a co-buyer; (iii) the appellant maintained romantic relationships with at least two
women, neither of whom considered him to be mentally retarded and one of whom considered
him to be "bright"; and (iv) the appellant reliably sent significant amounts of money and other
items to assist his family. To prove mental retardation, the appellant had to show by a preponderance of the
evidence that he was not effective in meeting standards of personal independence and social
responsibility expected of his age and cultural group. On review, we must give great deference to
the jury's finding that the appellant was not mentally retarded. Because there was significant
evidence admitted that supported the appellant's effectiveness in meeting standards of personal
independence and social responsibility, we find that the jury's conclusion that the appellant was
not mentally retarded is not so against the great weight and preponderance of the evidence as to
be manifestly unjust. (51) Therefore, we need not consider the third prong, onset before the age of
eighteen. Point of error forty-nine is overruled. E. Motion to Open and Close the Argument In point of error fifty-two, the appellant argues that the trial court erred in denying his
motion to open and close the arguments at the punishment phase with respect to the issue of
mental retardation. The appellant argues that because he had the burden of proof on the issue of
mental retardation, he should have been permitted to offer a rebuttal after the State's argument.
The appellant would have us apply Rule 269(a) of the Rules of Civil Procedure, which provides
that "the party having the burden of proof on the whole case, or on all matters which are
submitted by the charge, shall be entitled to open and conclude the argument." Article 36.07 of the Code of Criminal Procedure governs the order of closing arguments
in criminal trials: "The order of argument may be regulated by the presiding judge; but the
State's counsel shall have the right to make the concluding address to the jury." We dealt with an
argument similar to the appellant's in Martinez v. State, (52) in which the appellant contended that
the civil rules should apply and a defendant should have the right to open and close the argument
when only the issue of insanity is raised, because the defendant bears the burden of proof as to
that affirmative defense. We found no error in denying the appellant's request to open and close
the argument: "Though it may be true that appellant has the burden of proving his affirmative
defense, it is still the State's burden to overcome the defendant's evidence and to prove beyond a
reasonable doubt all the elements of the offense charged, including the intent and culpability of
the defendant." (53) More recently in Masterton v. State, we held that Article 36.07 - not the civil rules -
applies to the punishment phase of a capital trial. (54) We stated, "Nothing in the Code of Criminal
Procedure limits the application of Article 36.07 to non-capital cases and we see no reason to do
so." (55) Masterton claimed trial court error in refusing to give him the concluding argument on the
mitigation special issue, but we ultimately found "nothing about the mitigation special issue,
which imposes a burden of proof on neither party, that distinguishes appellant's situation from
our prior holdings." (56) Article 36.07 of the Code of Criminal Procedure continues to apply to the punishment
phase of capital trials. (57) At the punishment phase, the State bears the ultimate burden of proof
required by Article 37.071(c) of the Code of Criminal Procedure to prove future dangerousness
beyond a reasonable doubt. The State's statutory right to make the concluding address to the jury
at punishment reflects that burden. We find no authority for creating an exception from Article
36.07 when the affirmative defense of mental retardation is raised. Point of error fifty-two is
overruled. IV. ADMISSIBILITY OF WITNESS TESTIMONY A. Wommack In points of error twenty-five through twenty-seven, the appellant argues that the trial
court erred in admitting Officer Mark Wommack's testimony regarding the relative positions of
the appellant and the victim. The appellant argues that the trial court erred for three reasons: (i)
the testimony was speculative; (ii) Officer Wommack was not qualified as an expert witness to
express an opinion concerning the juxtaposition of the appellant and victim; and (iii) the
testimony was more prejudicial than probative. 1. Trial Record At trial Officer Wommack testified, without objection, that he is responsible for training
all Dallas police officers who carry the AR-15 rifle. He trained Officer Brian Jackson to use the
AR-15 rifle and recalled that Officer Jackson exceeded standards in his training. He testified that
when standing in a "ready gun position" and observing a threat coming from the side, Officer
Jackson was trained to pivot on the foot nearest the threat and square his shoulders and body
armor to the threat before firing. He testified further that Officer Jackson was trained to continue
firing at a suspect if he was shot by the suspect. The appellant first objected when the State asked Officer Wommack to consider a
hypothetical situation with a mannequin representing Officer Jackson. The appellant stated his
objection, "Hypothetical with facts not in evidence." Upon the trial court's request, the State
made the following offer of proof: I anticipate with the hypothetical having the mannequin positioned - placed like
we've done with other witnesses in relation to the light that was in here earlier.
And other witnesses indicating where the suspect was found when he was lying in
the yard, the approximate distance. And the other evidence being the photograph
that depicts Officer Jackson's rifle defects in the chair that was on the porch and
the two in the house next door. And I'm going to present a hypothetical to him, if
the officer is struck, as the evidence will show, through the right arm or through-and-through and across the body and with a defect in a chair being here
(indicating), the target being there (indicating), and a couple of defects behind that
target, his opinion, based on his training and experience of whether or not Officer
Jackson was able to get that suspect in sight or what his position would have been
in relation to him being shot based on that training and experience. After the State's offer, the appellant renewed his objection: [W]e don't have any
firm evidence as to where the officer was standing and
how he was standing. And we don't have any evidence at all as to where the
defendant was standing, because only people can testify that that corner was dark,
and by the time they got there many seconds later he was on the ground with his
hands over his head. So there's no evidence where the defendant was when this
event occurred, or how he was standing, or what position he was in. Nor is there
any evidence as to where the officer was standing, or what position he was in at
the time of the shooting. And this is speculation. I'm sure the State would love to
be able to prove this through this witness, but without the facts in evidence, it's an
improper hypothetical. The appellant further objected that "[t]here's no predicate under the 705 hearing that that
meets the tests of Daubert or Kelley or anything." The trial court permitted the appellant to
conduct the following voir dire examination: [DEFENSE COUNSEL]: What training have you received in crime scene
investigation? [WOMMACK]: Actually I was a crime scene investigator through part of the
early years in my deployment time. I didn't do it as a full-time job, but I've had
fingerprints, photo, some reconstruction, but not much. [DEFENSE COUNSEL] And when was that? [WOMMACK]: It was a long time ago. I hired on in '72, and it was somewhere
around '75.
[DEFENSE COUNSEL]: Fair enough. And what training do you have in crime
scene re-enactment? [WOMMACK]: Nothing certified, ma'am. [DEFENSE COUNSEL]: Okay. Have you been to the scene of this incident?
[WOMMACK]: No, ma'am. [DEFENSE COUNSEL]: Is there anything else that you can give us, like some
study or some kind of proof that this is an accepted method
of determining
where people were standing when an event occurred? Do you have the
documentation for that? [WOMMACK]: In relationship to how he was shot? [DEFENSE COUNSEL]: Uh-huh -- yes, sir. [WOMMACK]: Just years of going to calls and studying gun fights. The appellant renewed his objection on the basis that Officer Wommack's crime-scene
investigation training was outdated and that he had not been to the scene. The appellant also
objected under Rule 403, arguing that any opinion given by Officer Wommack would have low
probative value that would be outweighed by danger of undue prejudice. Finally, the appellant
objected that the testimony would be "speculation on his part as to what the state of mind of
people were at that point and that evening." After the appellant's objections were overruled, Officer Wommack ultimately testified
that in his opinion, based on Officer Jackson's training, the trajectory of the appellant's bullet,
and the spray of bullets from Officer Jackson's AR-15, Officer Jackson was shot as he faced
away from the appellant and before he had the opportunity to see the appellant, pivot to face him,
and commence firing. 2. Analysis On appeal, the appellant does not present any argument whatsoever with respect to his
points of error on speculation and Rule 403. Rule of Appellate Procedure 38.1(h) requires that
the appellant's brief "must contain a clear and concise argument for the contentions made, with
appropriate citations to authorities and to the record." Points of error twenty-five and twenty-seven are therefore overruled. We turn now to point of error twenty-six. While the appellant cited Rule 705 at trial, it
appears from the substance of his objection at trial and his argument on appeal that the appellant
objects to the qualification of Officer Wommack as an expert witness under Rule of Evidence
702. In general, witnesses must testify to matters of which they have personal knowledge. (58) At
common law, witnesses were prohibited from expressing opinions, even when based upon facts
within the witnesses' personal knowledge. (59) Rule 701 relaxed this common law prohibition: "If
the witness is not testifying as an expert, his testimony in the form of opinions or inferences is
limited to those opinions or inferences which are (a) rationally based on the perception of the
witness and (b) helpful to a clear understanding of his testimony or the determination of a fact at
issue." Expert witnesses are permitted wider latitude to offer opinions under Rule 702. (60) "If
scientific, technical, or other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education may testify thereto in the form of an opinion or otherwise." (61) We need not reach Rule 702, however. We may affirm the trial court's ruling if it is
correct on any theory of law applicable to the case and supported by the record. (62) This principle
holds true even when the trial judge gives the wrong reason for his decision, and is especially
true with regard to admission of evidence. (63) Officer Wommack's testimony was admissible as the
opinion of a lay witness under Rule 701. Officer Wommack testified to his personal knowledge
of the training of Officer Jackson, specifically that Officer Jackson was trained to pivot and
square his shoulders to a threat perceived from the side. The State then gave Officer Wommack
the hypothetical assumption that the defendant approached Officer Jackson from the side, and
that the defendant's shot entered Officer Jackson from the side and through his arm and armpit.
Officer Wommack testified that, in his opinion, Officer Jackson did not see the threat, because if
he had seen the threat, he would have pivoted according to his training. Officer Wommack's opinion was rationally based on his perceptions; that is, a reasonable
juror could draw the opinion that Officer Jackson did not see the appellant from the facts of
Officer Jackson's training and the trajectory of the bullet into the side of his body. Furthermore,
the fact at issue was whether the appellant fired before Officer Jackson saw him, and ultimately
whether the appellant acted in self-defense. Officer Wommack's opinion was helpful to the jury
in connecting his testimony about Officer Jackson's training to the determination that the
appellant fired first. The testimony was therefore admissible as a lay opinion under Rule 701.
Point of error twenty-six is overruled. B. Compton, Wimbish, and Cruz In points of error thirty-one through thirty-three, the appellant argues that the trial court
erred in sustaining the State's objection to testimony from Dr. Kristi Compton, Dr. Gary
Wimbish, and Marta Cruz regarding diminished capacity. The appellant argues that because of
mental disease or paranoid delusions, the appellant did not know that he was shooting at a police
officer. Texas does not recognize diminished capacity as an affirmative defense. (64) The Texas
Legislature has not enacted any affirmative defenses, other than insanity, based on mental
disease, defect, or abnormality. Thus, they do not exist in Texas. (65) Instead, there is a presumption
under Texas law that a criminal defendant intends the natural consequences of his acts. (66) As with
other elements of an offense, relevant evidence may be presented that a jury may consider to
negate any mens rea elements. (67) This evidence may include evidence of a defendant's history of
mental illness, (68) or evidence of a defendant's physical or mental diseases or defects. (69) But the
evidence still must meet generally applicable requirements for admission of evidence, such as
Rules of Evidence 402 and 403, (70) and may be excluded if it does not truly negate the mens rea. (71) During the trial, the appellant called Dr. Kristi Compton as an expert witness to testify
regarding IQ tests taken by the appellant. During the State's voir dire examination of Dr.
Compton, defense counsel made an offer of proof that the witness would testify that the appellant
had "limited cognitive ability," which was relevant to mens rea: [W]e are trying to establish that the defendant is less than normal
in his
understanding and comprehension of events that occur around him. It is an
attempt to rebut evidence of mens rea
. The State has put forth evidence that he
intended and knew what he was doing, and I think that his cognitive disabilities
are relevant and should be provided to the jury so that they can
know about
them in making a decision about how his mind worked that night. The trial court asked, "[A]re you going to offer any direct evidence of examinations that the
defendant in this case did not have
the mens rea?" Defense counsel conceded that there was
no such evidence: "No, Your Honor,
she could not say that. All she can offer is that this man
functions at a low level of cognitive disability [sic]." The appellant called Dr. Gary Wimbish to testify about the approximate level of alcohol
in the appellant's blood at the time of the offense. During the State's voir dire examination, Dr.
Wimbish testified that he would give the opinion that the appellant consumed between two and
five drinks on the day of the offense, but that he could not render an opinion about whether the
appellant was intoxicated. Marta Cruz's testimony was discussed above. During cross-examination at the guilt
phase, defense counsel asked Cruz if, during the course of her relationship with the appellant, she
helped him "with certain things" or assisted him "in making orders and things at the jail." The
State objected to relevance, and the trial court sustained the objection. When Cruz testified at the
punishment phase, defense counsel said that Cruz's testimony at the punishment phase "is what
we would have put on had we
been allowed to in guilt and innocence." Because the evidence from these witnesses does not negate any mens rea element, the
trial court did not err in excluding the evidence at the guilt or innocence phase. Our analysis in
Ruffin v. State provides a good contrast by illustrating when evidence of mental illness would be
admissible. Ruffin was charged with aggravated assault after shooting at police officers whom he
believed were "trespassers" and "Muslims," but not police officers. We held that the testimony of
a psychologist was relevant and admissible to rebut the mens rea element of the offense; the
psychologist testified that Ruffin suffered from delusions, and that in the psychologist's opinion,
Ruffin was suffering during the offense from psychotic symptoms such as hearing and seeing
things that did not exist. (72) In the present case, the appellant argues that the excluded testimony was relevant to
"whether, because of mental disease or delusion he believed he was not shooting at a uniformed
police officer." He argues further that "when and how paranoid delusions may distort a person's
auditory and visual perceptions is admissible as it relates to whether Appellant intended to shoot
a police officer." But, there is no suggestion in the trial record that the excluded testimony had
anything to do with delusions. Instead, the excluded testimony suggested general limitations in
cognitive ability, intoxication at the time of the offense, and general deficits in adaptive
functioning. The excluded testimony had relevance only to whether the appellant's mental
functioning was below normal to some degree. There was no evidence showing a connection
between the appellant's generally low level of mental functioning and his knowledge during the
commission of the offense that the victim was a police officer. (73) The trial court therefore did not
abuse its discretion in excluding the evidence. (74) Points of error thirty-one through thirty-three are
overruled. C. Daulat In point of error thirty-four, the appellant argues that the trial court erred in sustaining the
State's objection to photographs and accompanying testimony offered to prove that he suffered
broken ribs at or near the time of the arrest, and thereby to impeach police officers who testified
that they did not assault the appellant during his arrest. The appellant argues that he was also
"denied the opportunity to possibly create sympathy for the defendant because he was severely
beaten by officers." During the trial, the appellant attempted to show that police officers assaulted him during
his arrest. On cross-examination, several of the testifying officers denied assaulting the appellant.
The appellant then introduced evidence suggesting that the officers had assaulted him, including
testimony from a neighbor and DNA evidence that a bloodstain on the exterior of the neighbor's
house matched the appellant's DNA profile. The appellant also sought to introduce X-ray images and testimony from Dr. Veena
Daulat. Dr. Daulat examined X-rays of the appellant's ribs taken on August 17, 2007. On voir
dire, Dr. Daulat testified that the X-rays showed a "remote left seventh rib fracture." She further
testified that "remote" simply meant that the fracture did not occur on the day of examination or
the day prior: "Remote means it's old. It could be a few days old, it could be a few years old
.
[I]t looked old because it didn't have a lucent line to say that it was done today or yesterday." In
fact, the rib fracture could have occurred five, ten, or fifteen years prior to the examination. The State objected that Dr. Daulat's testimony was not relevant because she could only
testify that the appellant had a "remote" rib fracture. The trial court ruled that the evidence was
not admissible: "The Court is
not inclined to let the doctor testify about
an injury that she
knows nothing about and can't pinpoint it. We don't know when the rib was
broken." The trial court did not abuse its discretion in ruling that Dr. Daulat's testimony was not
relevant. There was no evidence connecting the appellant's "remote" rib fracture to the alleged
assault by officers at the time of the appellant's arrest, nearly two years before X-rays were taken.
That the appellant sustained a rib fracture at some time in his life did not tend to make more
probable the theory that the appellant was assaulted by officers on November 14, 2005. (75) Point of
error thirty-four is overruled. D. Wilcox In point of error thirty-five, the appellant argues that the trial court erred in denying his
objection to the testimony of Officer Robert Wilcox. The entirety of the appellant's point of error
is reproduced below: Appellant respectfully directs this Honorable Court's attention to Reporter's
Record Volume 48 pages 123-154 at which the trial court allowed the State to
question Officer Robert Wilcox concerning the initiation of questioning of
Appellant about an extraneous offense of driving while intoxicated. The State
sought to have Officer Wilcox testify about his initial conversation with Appellant
through a translator concerning whether Appellant had any medical or mental
disability that would present him from performing field sobriety tests contrary to
Art. 38.22 C.C.P. and objection to hearsay evidence from the translator.
(RR48:135-137). The Court overruled Appellant's objection. See Miffleton v.
State, 777 S.W.2d 76 (Tex. Crim. App. 1989) for support of issue that no audio
conversation between officer and suspect is admissible. Additionally, the trial
court allowed the State to violate Appellant's fifth amendment of U.S.
Constitution right to remain silent by allowing such testimony. Appellant is
entitled to a new trial based on this constitutional error that denied him a fair trial. None of the issues raised in this multifarious point of error is adequately briefed. Rule of
Appellate Procedure 38.1(i) requires a "clear and concise argument for the contentions made,
with appropriate citations to authorities and to the record." To be adequately briefed, a point of
error must cite relevant legal authority and provide legal argument based upon that authority. (76)
The appellant fails to show how Miffleton v. State is relevant to any of his potential claims, (77) and
provides no argument based on that authority. (78) Point of error thirty-five is overruled. V. CONTINUANCES In point of error twenty-eight, the appellant argues that the trial court erred in denying his
oral motion for continuance in order to obtain the presence of a defense expert. The appellant
acknowledges our clear rule that an oral motion for continuance preserves nothing for review, (79)
but urges us to reconsider because several Texas Courts of Appeals have found an "equitable" or
"due process" exception to this rule. We decline to find such an exception. (80) The record reflects
that the appellant's oral motion for continuance, which was subsequent to several earlier motions
for continuance, was made late in the afternoon of Wednesday, October 31, 2007. The parties
and the trial court had discussed potential scheduling conflicts with this defense expert on the
previous day. There is no question that the appellant had the time to properly present a written,
sworn motion for continuance compliant with the requirements of Articles 29.03, 29.07, and
29.08 of the Code of Criminal Procedure. Point of error twenty-eight is overruled. In points of error twenty-nine and forty-six, (81) the appellant argues that a week-and-a-half
recess during the defense presentation of punishment evidence violated his due process rights
under the Fourteenth Amendment of the United States Constitution because it interfered with his
right to present evidence in his favor in an effective and consistent manner. The record reflects
that the trial court excused the jury on the afternoon of Tuesday, October 16, 2007, following an
off-the-record bench conference with the parties. The trial court admonished the jurors not to
deliberate, research, or talk about the case, and concluded, "and those of you going on vacation,
please enjoy it. We are envious." It is not clear from the record why the trial court recessed the
trial, or whether the parties expressly agreed to the recess. But, it is clear that the appellant was
aware of the upcoming recess at least as early as Thursday, October 11, 2007, and did not object
on the record at any time. In the context of a trial-recess point of error, we stated in Johnson v. State, "A trial judge
necessarily has broad discretion to deal with the many unexpected situations which arise during
trial." (82) Our review of the record does not reveal an abuse of the trial court's discretion. Not only
has the appellant failed to show how these points of error are preserved for review, but he has
failed to cite any authority involving recesses found to be an abuse of the trial court's discretion,
or supporting his contention that the trial court's action was error because "[p]rocedural [due]
process provides that the defense
be allowed to put on a continuous and logical presentation
of evidence." Points of error twenty-nine and forty-six are overruled. VI. MOTION FOR NEW TRIAL In point of error forty-seven, the appellant argues that the trial court erred in denying his
request for an evidentiary hearing on his Motion for New Trial. In point of error forty-eight, the
appellant argues that the trial court erred in denying his Motion for New Trial. On November 30, 2007, the appellant filed a Motion for New Trial pursuant to Rule of
Appellate Procedure 21. The motion contained the following grounds for a new trial: (i) the
evidence was legally and factually insufficient to support the jury's verdict on each of the special
issues; (ii) consideration of mental retardation during the punishment phase was unconstitutional;
(iii) the delay in trial during the defense presentation of punishment evidence denied the
appellant a fair trial; (iv) the delays during punishment while the trial court simultaneously
administered another case denied the appellant a fair trial; (v) the requirement that the defense
disclose underlying evidence that would form the basis of expert witness opinions gave the State
an unfair advantage; and (vi) the denial of a continuance to secure the testimony of Dr. Martinez
prejudiced the appellant's defensive strategy. On January 3, 2008, the trial court held a hearing on the Motion for New Trial. Because
the appellant had already been transported to the custody of the Texas Department of Criminal
Justice, the trial court decided not to take live testimony, but rather to consider sworn affidavits
from defense counsel as evidence in support of the motion. The trial court explained that it "[did]
not see any evidence in the affidavits that would require any live testimony, and the Court is of
the opinion the Court can
make a ruling on that motion based solely on the affidavits, which
were incorporated into the record and are evidence." Rule of Appellate Procedure 21.7 provides a trial court with discretion in considering a
motion for new trial: "The court may receive evidence by affidavit or otherwise." A trial court
may rule based on sworn pleadings and affidavits without oral testimony. Live testimony is not
required. (83) A trial court abuses its discretion in failing to hold a hearing only when a defendant
presents a motion for new trial raising matters not determinable from the record. (84) From our
review of the record, we agree with the trial court that the matters raised by the appellant in his
Motion for New Trial could be adequately determined from the record and the affidavits of
defense counsel. Point of error forty-seven is overruled. In point of error forty-eight, we review the trial court's denial of the Motion for New Trial
under an abuse-of-discretion standard. (85) We do not substitute our judgment for that of the trial
court; rather, we decide whether the trial court's decision was arbitrary or unreasonable. A trial
court abuses its discretion in denying a motion for new trial only when no reasonable view of the
record could support the trial court's ruling. (86) Each of the matters raised in the Motion for New Trial has been raised again as a point of
error on appeal. Based on our review of the record and the arguments of the parties, we have
affirmed the trial court's ruling on the merits of each matter with the exception of the sixth, the
denial of a continuance to secure the testimony of Dr. Martinez. With respect to this matter, a
reasonable view of the record supports the trial court's reasoning that the testimony of Dr.
Martinez would have been substantially similar to the two other mental-retardation experts that
were introduced by the appellant, and Dr. Martinez had been available to testify at other times
during the defense presentation of evidence. We therefore find that the trial court's decision was
not arbitrary or unreasonable, and the trial court did not abuse its discretion in denying the
appellant's Motion for New Trial. Point of error forty-eight is overruled. VII. JURY CHARGE A. Guilt Phase In points of error thirty-six through thirty-eight, the appellant argues that the trial court
erred in denying his requests for jury charges on the lesser-included offenses of manslaughter and
negligent homicide, and the justification of self-defense. 1. Manslaughter and Negligent Homicide The appellant argues that a charge on manslaughter was warranted because the appellant
was highly intoxicated and acting recklessly, and "[t]he events that occurred when the Defendant
encountered Officer Jackson
happened very fast." In addition, the appellant "submits that
he felt in his mind that he was being confronted by an armed person when he recklessly pointed
the gun toward the deceased and fired once." The appellant argues that a charge on negligent
homicide was warranted because "Appellant acted negligently and should have been aware of a
substantial and unjustified risk that the circumstances exist or the result would occur when he
fired his gun once upon the excited, highly emotional encounter where the police were chasing
him." We use a two-step test to determine whether an appellant was entitled to a jury charge on
a lesser-included offense. (87) First, we determine if the offense requested was a lesser-included
offense of the offense charged. Article 37.09 of the Code of Criminal Procedure defines a lesser-included offense: An offense is a lesser included offense if: (1) it is established by commission of the same or less than all the facts required to
establish the commission of the offense charged; (88) (2) it differs from the offense charged only in the respect that a less serious injury
or risk of injury to the same person, property, or public interest suffices to
establish its commission; (3) it differs from the offense charged only in the respect that a less culpable
mental state suffices to establish its commission; or (4) it consists of an attempt to commit the offense charged or an otherwise
included offense. Second, we determine if there is some evidence in the record that would permit a jury rationally
to find that if the appellant is guilty, he is guilty only of the lesser-included offense. (89) We
consider the evidence produced by both parties, but the credibility of the evidence and whether it
conflicts with, or is controverted by, other evidence is not considered. (90) The indictment alleged the offense of capital murder with the following elements: (i) the appellant; (ii) intentionally and knowingly; (iii) caused the death of Brian Jackson, an individual, by shooting him with a firearm; and (iv) Brian Jackson was a City of Dallas police officer acting in lawful discharge of an
official duty; and (v) the appellant knew that Brian Jackson was a police officer. The offense of manslaughter is defined in Section 19.04 of the Penal Code: "A person commits
an offense if he recklessly causes the death of an individual." The offense of negligent homicide
is defined in Section 19.05: "A person commits an offense if he causes the death of an individual
by criminal negligence." Because manslaughter and negligent homicide could have been
established by commission of the same or less than all the facts required to establish the offense
of capital murder as alleged in the indictment, manslaughter and negligent homicide are lesser-included offenses. While he meets the first prong, the appellant does not meet the second prong of the test
because there was no evidence that he negligently or recklessly, but not intentionally or
knowingly, caused the death of Officer Jackson. Whatever the appellant now "submits that he
felt in his mind," evidence of his internal thoughts was not presented to the jury at the trial.
Furthermore, because voluntary intoxication does not constitute a defense to the commission of a
crime, (91) the appellant's evidence of voluntary intoxication would not permit a rational jury to
find that the appellant was guilty of manslaughter or negligent homicide, but was not guilty of
capital murder. Finally, there is no evidence in the record that the appellant came upon Officer
Jackson too suddenly to be able to form an intentional or knowing mental state with respect to
his conduct in shooting the officer. Points of error thirty-six and thirty-seven are overruled. 2. Self-Defense In point of error thirty-eight, the appellant argues that the trial court erred in denying his
request for a jury charge on self-defense. He argues that in his "intoxicated and paranoid state of
mind at the time of the offense, he was acting in self defense." Further, he argues that there is no
evidence that Officer Jackson identified himself as a police officer or ordered the appellant to
throw down his weapon. On the other hand, there was evidence that he surrendered after Officer
Jackson fell, and the arresting officers beat the appellant after his arrest. The issue of self-defense is not submitted to the jury unless evidence is admitted
supporting the defense. (92) In Shaw v. State, we stated that a defense is supported by the evidence if
"there is some evidence, from any source, on each element of the defense that, if believed by the
jury, would support a rational inference that that element is true." (93) If a defense is so supported,
"the defendant is entitled to an instruction on that defense, even if the evidence supporting the
defense is weak or contradicted, and even if the trial court is of the opinion that the evidence is
not credible." (94) Whether a defense is supported by the evidence is a sufficiency question
reviewable on appeal as a question of law. (95) Section 9.31(a) of the Penal Code establishes the elements of self-defense. "Except as
provided in Subsection (b), a person is justified in using force against another when and to the
degree the actor reasonably believes the force is immediately necessary to protect the actor
against the other's use or attempted use of unlawful force." (96) Subsection (b) then establishes
certain exceptions, including that "the use of force against another is not justified
to resist an
arrest or search that the actor knows is being made by a peace officer
even though the arrest or
search is unlawful, unless the resistance is justified under Subsection (c)." Subsection (c)
provides: The use of force to resist an arrest or search is justified (1) if, before the actor
offers any resistance, the peace officer
uses or attempts to use greater force
than necessary to make the arrest or search; and (2) when and to the degree the
actor reasonably believes the force is immediately necessary to protect himself
against the peace officer's
use or attempted use of greater force than
necessary. (97) Here, it is undisputed that the appellant fired several shots at police officers as they
searched for him behind Cruz's house. As the appellant ran around to the front of the house, the
appellant fired one shot and Officer Jackson fired three shots. The evidence presented at trial was
consistent with the appellant's revolver firing first, followed by Officer Jackson's rifle firing
second. The appellant failed to introduce evidence supporting each of the elements of self-defense. The appellant has failed to introduce evidence that, before the appellant offered any
resistance, Officer Jackson used or attempted to use greater force than necessary to make the
arrest. Furthermore, the appellant has failed to introduce evidence that the appellant reasonably
believed that force was immediately necessary to protect himself when no officer had returned
the appellant's fire until after he shot Officer Jackson. Because the appellant did not submit
evidence to support a rational jury finding on each element of self-defense, the trial court did not
err in denying the requested jury charge. (98) Point of error thirty-eight is overruled. VIII. PUNISHMENT PHASE A. Victim-Impact Testimony In points of error forty-one through forty-five, the appellant argues that the trial court
erred in overruling his objections to the testimony of several State witnesses as improper victim-impact testimony. In Mosley v. State, (99) we established that victim-impact and victim-character
evidence are admissible at the punishment phase of trial with certain limitations: Both victim impact and victim character evidence are admissible, in the context of
the mitigation special issue, to show the uniqueness of the victim, the harm caused
by the defendant, and as rebuttal to the defendant's mitigating evidence. Rule 403
limits the admissibility of such evidence when the evidence predominantly
encourages comparisons based upon the greater or lesser worth or morality of the
victim. (100) 1. Foster In point of error forty-one, the appellant argues that the trial court erred in admitting
testimony of Officer Anthony Wayne Foster. (101) Officer Foster testified that he came into contact
with the appellant approximately two months before the instant offense. Officer Foster was
waiting in the "book-in line" at the Dallas County Jail with an individual whom Officer Foster
had just arrested; Officer Robert Wilcox was waiting in the line with the appellant, whom he had
just arrested for DWI. The appellant was screaming profanities and threatening to kill Officer
Wilcox. Officer Wilcox asked Officer Foster if he should file a retaliation charge against the
appellant, but Officer Foster recommended against filing the charge. A few days after Officer
Foster learned of the death of Officer Jackson, he learned that the appellant had been arrested for
the crime. The State asked Officer Foster, "Now, Officer, do you wish now to this day you would've
filed a retal-." The State's question was interrupted by a relevance objection from the appellant.
The trial court sustained the objection. On cross-examination, the appellant nonetheless asked the
officer about the retaliation charge: [DEFENSE COUNSEL]: Okay. And, of course, no retaliation case was filed, was
there? [FOSTER]: No. [DEFENSE COUNSEL]: You talked about it and didn't take it serious and didn't
file it. On redirect, the State again asked Officer Foster about the retaliation charge: [STATE]: Officer, you wish you'd filed that charge? [DEFENSE COUNSEL]: Again, Your Honor, I object. It's irrelevant. THE COURT: Overruled. I think it was a close call before, and I think the door's
been opened by
your line of questioning. You can answer
the question. [FOSTER]: Yes, I do. I'm going to think about it for the rest of my career. [DEFENSE COUNSEL]: Your Honor, I object. That's victim impact statement
right there. THE COURT: Overruled. The appellant simply characterizes Officer Foster's response - "I'm going to think about
it for the rest of my career" - as victim-impact evidence, without any further discussion. (102) Even
assuming such characterization is proper, the appellant himself "opened the door" to the
testimony. In addition, the appellant has failed to explain why such victim-impact evidence
would be inadmissible. As we said in Mosely, victim-impact evidence is admissible so long as it
complies with the rules of evidence and does not encourage comparisons based on the greater or
lesser worth of the victim. The appellant fails to explain how Officer Foster's testimony
regarding the effect of Officer Jackson's death violates the limitations of Mosely or the rules of
evidence. Point of error forty-one is overruled. 2. Jackson, Irizarry, Kramer, and Huerta In points of error forty-two through forty-five, the appellant argues that the trial court
erred in overruling his objection to the testimony of four State witnesses (Jackson, Irizarry,
Kramer, and Huerta, respectively) as victim-impact testimony with a prejudicial effect that
outweighed any probative value. The appellant argues that their testimony "makes a comparative
worth analysis of the value of the victim to their families and the community compared to the
defendant or other members of society." But the appellant failed to preserve any error for review. For the alleged errors to be preserved for our review, Rule of Appellate Procedure 33.1
requires that the record must show that the appellant made a timely, specific objection to the trial
court, and the trial court ruled on the objection, or refused to rule on the objection, and that the
appellant objected to the refusal. (103) Before the witnesses were called, the appellant stated that he
"anticipate[d] that the next witnesses will be giving victim impact testimony." He objected under
the Eighth Amendment, arguing that "there is a danger that the admission of this
victim
impact statement creates a constitutionally uncontestable risk that the jury might impose the
death penalty in an arbitrary and capricious manner," and also objected under Rules of Evidence
401, 402, and 403. The trial court overruled the constitutional objection, citing Mosely. The trial
court refused to make a finding with respect to the evidentiary objection, reasoning, "I can't
balance anything until I've heard it." Gina Jackson was the first of the four witnesses to testify. Ms. Jackson is the victim's
older sister. She described hearing the news of her brother's death, traveling to Dallas, and
meeting her brother's friends upon her arrival. She further described the memorial services, the
close relationship she had with her brother, and the negative impact that her brother's death
continued to have on her life. At the conclusion of her testimony, the State asked the following
question: "Ms. Jackson, if you would, tell the jury, again, through your eyes as Brian's sister the
type of person, the character you saw when you think of your younger brother. Just help them
understand a little bit about the character." The appellant objected and asked the trial court "to do
a 401, 402, and 403 analysis to this type of evidence." The trial court overruled the objection, but
the State withdrew the question and called its next witness. After Ms. Jackson's testimony, Officer Melquiades Irizarry testified that she arrested the
appellant for public intoxication on June 6, 2004. Officer Brandi Kramer then testified that she
encountered the appellant in an intoxicated state on December 25, 2004, and that she would have
arrested him for public intoxication, but a relative appeared at the scene and took responsibility
for him. Finally, David Huerta, a neighbor of Marta Cruz, testified about a "scuffle" at Cruz's
house in September 2005. The appellant made no objections during the testimony of these three
witnesses. The appellant's preliminary objection that unidentified "next witnesses" would be
presenting victim-impact testimony was not sufficiently specific to preserve error for review. In
addition, the trial court never ruled on the objection that the testimony was inadmissible under
Rules 402 and 403, and the appellant failed to object to its refusal to rule. We also note that only
Gina Jackson actually gave victim-impact testimony. Her testimony was not only well within the
limitations established by Mosely, but the State withdrew the only question specifically objected
to by the appellant. Points of error forty-two through forty-five are overruled. B. Review of Future Dangerousness Pursuant to Article 37.071 of the Code of Criminal Procedure, the trial court submitted a
future-dangerousness special issue to the jury at the conclusion of the punishment phase. In point
of error fifty-three, the appellant argues that the evidence was legally insufficient to support the
jury's affirmative answer because (i) the appellant had no prior violent background, (ii) defense
experts testified that the appellant was a low risk for future dangerousness, but the State did not
introduce expert testimony in rebuttal, and (iii) there was no evidence of premeditation. Article 44.251 of the Code of Criminal Procedure requires this Court to reform a sentence
of death to a sentence of confinement for life without parole if we find that there is legally
insufficient evidence to support the jury's affirmative answer. In reviewing a legal insufficiency
claim, we view the evidence in the light most favorable to the jury's finding and then determine
whether any rational trier of fact could have found beyond a reasonable doubt that there is a
probability that the appellant would commit criminal acts of violence that would constitute a
continuing threat to society. (104) In other words, if a rational juror necessarily would have
entertained a reasonable doubt as to the probability of appellant's dangerousness, we must reform
the trial court's judgment to reflect a sentence of life imprisonment. (105) During the punishment phase of trial, the State attempted to prove the probability of the
appellant's future dangerousness by introducing evidence of his criminal record and his
propensity for violence against police officers. Lieutenant Richard Rivas, Sergeant Francis Scott
Crump, and Officer Raymond McClain testified that the appellant fired at them in the alley
behind Marta Cruz's house. Officer Robert Wilcox arrested the appellant for driving while
intoxicated in September 2005, and several witnesses testified that the appellant was
uncooperative, screamed profanities, and threatened to kill Officer Wilcox when the appellant
got out of jail. Officer Melquiades Irizarry testified that she arrested the appellant for public
intoxication on June 6, 2004. Officer Brandi Kramer testified that she encountered the appellant
in an intoxicated state on December 25, 2004, and that she would have arrested him for public
intoxication, but a relative appeared at the scene and took responsibility for him. David Huerta
testified that he heard a "scuffle" at Cruz's house in September 2005; when he approached Cruz
and the appellant and informed them that he intended to call the police, the appellant told him
"You call the damn police. I'll take them down, too, with me." The appellant called Marta Cruz to provide evidence with respect to the mental-retardation and mitigation special issues. However, evidence demonstrating future dangerousness
emerged on both direct and cross-examination. Cruz testified that on September 11, 2005, the
appellant was angry that she was not answering her cell phone and left several voice messages
threatening to "fuck [her] up." He waited for her to arrive home, and when she got home he
pulled a steak knife from the kitchen and forced her to go into the bedroom. When she threatened
to call the police, the appellant grabbed her phone and dialed 911 himself before hanging up.
When the police responded to the call, an officer noticed that Cruz had bruises on her leg and
arm. She told the officer that during an argument approximately a week earlier, the appellant had
pushed her into an exercise machine. Cruz further testified that the appellant had told her that
after breaking up with a previous girlfriend and then seeing her with other men at a club, he
retrieved a knife from his car but could not find the ex-girlfriend afterwards. The defense evidence rebutting future dangerousness included a number of family
members, friends, and co-workers who testified about the appellant's good character. Several
witnesses, including Cruz, suggested that the appellant was violent only when he had been
drinking. In addition, detention officers in the jail where the appellant was held for nearly two
years testified that the appellant had behaved well. The defense also introduced expert witnesses, Dr. Jonathan Sorensen and Dr. Mark
Vigen. Dr. Sorensen, an expert on risk assessment and future dangerousness, testified that he
performed an actuarial study to determine the likelihood that the appellant would commit acts of
violence while incarcerated. Relying on certain characteristics of the appellant and data on
disciplinary infractions from the Texas Department of Criminal Justice, Dr. Sorensen testified
that the appellant's likelihood of committing a violent act over a lifetime of incarceration was 8.1
percent, while the overall base rate is 16.4 percent. Dr. Vigen, a psychologist in private practice,
testified that the prisons run by the Texas Department of Criminal Justice are well-run prisons.
The corrections officers are well-trained and are able to effectively control the inmates, resulting
in low rates of violence within the prison system. He further opined that "the likelihood that [the
appellant] will continue to commit violent behavior which would be a threat to the prison society
is very low." Viewing all of the evidence in the light most favorable to the jury's finding, a rational
trier of fact could have found beyond a reasonable doubt that there is a probability that the
appellant would commit criminal acts of violence that would constitute a continuing threat to
society. The State presented evidence that the appellant had a history of violence toward
girlfriends, including multiple threats and assaults against Cruz and an attempt to assault a
previous girlfriend. The appellant also had a criminal history of DWI and public intoxication.
Perhaps most importantly, the appellant made several statements indicating his willingness to kill
police officers, directly threatened to kill a police officer during a DWI arrest, committed
aggravated assault by shooting at multiple police officers on the night of the offense, and
ultimately shot and killed Officer Jackson. The appellant's propensity for threats and violence
against police officers could prove to a reasonable juror that the appellant would be particularly
likely to commit criminal acts of violence within prison society, where the appellant would be in
frequent contact with prison personnel. (106) Point of error fifty-three is overruled.C. Review of Mitigation In point of error thirty-nine, the appellant acknowledges in his brief that this Court "does
not review the sufficiency of the evidence to support a jury's negative answer to the mitigation
special issue," but argues that "the failure to do so violates his constitutional and statutory rights
and renders the statute unconstitutional." In point of error forty, the appellant argues that the
jury's verdict on the mitigation special issue is against the great weight and preponderance of the
evidence. In McFarland v. State, (107) we held that appellate review of the jury's answer to the
mitigation special issue is not constitutionally required: "So long as the jury is not precluded
from hearing and effectuating mitigating evidence, we have never regarded appellate review of
mitigating evidence to be an essential component of a constitutionally acceptable capital
punishment scheme." (108) We decline to overrule this clear precedent. Points of error thirty-nine
and forty are overruled. IX. PREVIOUSLY DECIDED POINTS OF ERROR In points of error fifty-four through seventy-nine, the appellant copies twenty-six points
of error originally presented in the Amended Brief for Appellant in Saldano v. State. (109) The
Saldano points of error are, respectively, 19, 25, 28, 30, 38-41, 44-46, 51-62, and 64-66; these
points of error have been altered only by deleting some of the argument contained within them
and adding a few non-substantive changes. (110) Points of error fifty-four through sixty-four in the
present case challenge the constitutionality of the jury charge at the punishment phase, while
points of error sixty-five through seventy-nine challenge the constitutionality of Texas death
penalty procedure. In his brief, the appellant concedes, as did the appellant in Saldano, (111) that the
latter points of error "have been previously submitted to this Honorable Court; which previously
has turned them down." The appellant does not present any facts that distinguish the present case from Saldano,
nor does he present any new legal authority suggesting that we should reconsider our disposition
of these issues. Therefore, as in Saldano, we believe it sufficient to dispose of points of error
fifty-four through sixty-four "by recognizing that the trial court submitted a charge consistent
with applicable state statutes, which have withstood numerous constitutional challenges." (112)
Further, we will "decline appellant's invitation to review our prior decisions" (113) on the issues
raised in points of error sixty-five through seventy-nine. Points of error fifty-four through
seventy-nine are overruled. We affirm the judgment of the trial court. Delivered: May 5, 2010. Do not publish.
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