Norman, Lejames

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,063

LEJAMES NORMAN, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL
FROM CAUSE NUMBER 06-1-7346 IN THE 24TH JUDICIAL DISTRICT COURT
JACKSON COUNTY

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

OPINION

Appellant pled guilty to a capital-murder indictment that charged him with using a firearm

to murder three people (Sam Roberts, Tiffani Peacock, and Celso Lopez) in the course of committing

or attempting to commit burglary or robbery during the same transaction or scheme. Following a

guilt-phase proceeding at which the State presented evidence to support appellant’s guilt, the trial

court instructed the jury to find appellant guilty as charged in the indictment, and the jury did so.

Pursuant to the jury’s answers to the special issues at the punishment phase, the trial court sentenced
 Norman–2

appellant to death. Appellant raises five points of error on direct appeal. Deciding that these points

have no merit, we affirm.

The evidence presented in this case supports findings that appellant and an accomplice named

Ker’sean Ramey murdered the three victims in their home in the course of committing burglary and

robbery.1 The three victims, who were appellant’s neighbors, were shot multiple times. Appellant

testified at the punishment phase and claimed that he was remorseful and that he wanted to apologize

for murdering the victims. He also testified about a troubled childhood, including his father being

shot and killed by police in California. Appellant claimed that it was mitigating that he cooperated

with the police by confessing to this capital-murder offense and that he assisted the prosecution by

testifying against Ker’sean Ramey without any kind of a deal for doing so. Appellant also testified

that he had a dream in which he apologized to one of the victims (Tiffani) for murdering her.

Q. [DEFENSE]: Lejames, you had once told me way back that one of the reasons you
were cooperating and confessing when you eventually started to tell the truth, you
had something about some dreams. Do you remember telling me that?

A. [APPELLANT]: Yes, sir, I--

Q. What were these dreams you were telling me you had?

A. Tiffani, she–she was in the dream. I don’t want to say she–I had a dream about
Tiffani and I was–I told her I never wanted to be like this. I said I was going to make
it right, I apologized and she looked at me. I woke up and started trying to confess.

Through its cross-examination of appellant and permissible inferences from other evidence

that it presented, the State maintained that appellant was unremorseful, that he testified against

1

Ramey was also convicted of capital murder and sentenced to death in a separate trial. See
Ker’sean Olajuwa Ramey v. State, No. AP-75,678 (Tex.Cr.App., delivered February 11, 2009) (not
designated for publication).
 Norman–3

Ker’sean Ramey only for the purpose of improving his legal situation, and that he was a “rotten to

the core” and “worst of the worst” murderer. The State also presented evidence of appellant’s

lengthy criminal history since at least the age of ten, including evidence of his misbehavior in the

county jail while awaiting trial for this offense. The State presented other evidence that appellant

gave several statements to the police during the course of which appellant initially denied shooting

any of the victims but eventually admitted to shooting all three of them. The State’s theory was that

appellant would not admit to anything until the evidence compelled him to do so and that his

eventual admission to shooting all three of the victims was not out of any sense of remorse.

In point of error one, appellant claims that the State’s punishment-phase jury argument,

suggesting that appellant may have committed unknown crimes before the age of ten, denied

appellant due course of law under the Texas Constitution and due process of law under the United

States Constitution by depriving him of a fair and impartial trial. The record reflects that appellant

was almost twenty years old when, on August 24, 2005, he used a firearm to commit the capital-

murder offense in this case.2 The State presented evidence that, when he was ten years old, appellant

was involved along with another nine-year-old in two armed robberies involving a firearm on the

same day. The State also presented evidence that, since then, appellant has committed several

burglaries and assaults and that he has used and sold drugs. While in the county jail awaiting trial

for this offense, appellant made weapons, planned escapes, and talked about killing people.

Appellant held a shank to the neck of a 65-year-old female jailer and threatened to kill her during

an unsuccessful escape attempt with another county-jail inmate. During closing jury arguments, the

2

Appellant’s date of birth is November 26, 1985.
 Norman–4

State made the following argument:

[STATE]: The book didn’t just open on Lejames Norman when he killed those three
people. The book opened on Lejames Norman as Mrs. Guenther said, when he was
10 years old. Folks, 10 years old. And you say, oh we know all about that, Mr. Bell,
you don’t have to tell us. Yes, I do. Because what was he doing when he was 10
years old. Bring up the part–I’m going to try–some of this will be a little awkward,
but we worked last night in getting this so we don’t have to, you know, hold you up.
904.

Why am I showing you this? Well, folks, Lejames Norman at the age of 10 was at
this park, a place where grandmothers take their grandchildren, like the victim, to
play. A public place in broad daylight and what does Lejames Norman bring to this
little public park here? He brings a pistol. And what does he tell you about that
pistol? I’m going to show you that all throughout, all throughout he has lied and lied
and lied and will only tell the truth when he is captured and caught in his lies. What
did he say about this? I found that gun. Oh, some weeks before in the back of a
truck. You know what that translates to? I stole it. At 10 years old he wants a pistol
to help him, what do they call it, stang a lick. Commit a robbery. And this lady, this
elderly lady walking with her–bring up No.–walking with her two grandchildren is
walking here by the Burger King. There’s your wall right there where he was sitting.
He lied about that. I’m not going to go through those details. He said where he was.
He said he just came over after all this happened. She’s walking there and she gets
a pistol pointed at her and told to give the money. And who runs off with the money?
He does, Lejames Norman.

She came to a public place with her grandchildren. And this isn’t all. It got so good
with him that he did it, what, again. Committed two. Now, I’m going to say this
to you because I believe this is a reasonable deduction from the evidence. I
think you have only seen the tip of the iceberg of Lejames Norman, and I think
that’s reasonable assumption. Does anybody within the sound of my voice
believe every crime he got–he committed he got caught? Does that sound
reasonable? How many jacks did he have before this and after this?

[DEFENSE]: Excuse me, Judge. I’m going to object to arguing outside the record.

[STATE]: It’s a reasonable deduction from the evidence, Your Honor.

[THE COURT]: Ladies and Gentlemen of the Jury, I’m simply going to instruct you
that you are to confine yourself to the evidence, what you believe the evidence to be.
Counsel is entitled to make reasonable deductions, but in considering the evidence
you have to confine yourself to the evidence. Okay?
 Norman–5

[DEFENSE]: And as to my objection, Judge, is it--

[THE COURT]: I’m going to overrule your objection.

[DEFENSE]: Okay. Thank you.

[STATE]: If you don’t believe it is a reasonable deduction that he didn’t commit any
other crimes other than the ones we caught him with, so be it. That is–that’s
ludicrous. The tip of the iceberg. That’s all you see.

(Emphasis in bold and in italics supplied).3

Appellant argues on appeal that the State’s reference to unknown crimes that appellant may

have committed before the age of ten was outside the record and was a calculated effort to deprive

appellant of a fair and impartial trial. Appellant further argues that the State’s “uninvited and

manifestly improper request for the jury to speculate on aggravated robberies committed by the

Appellant materially affected the jury where they returned a death verdict after obviously affirming

the prosecutor’s personal venom, and being inflamed by his improper summation.”

The State argues that it is a reasonable deduction from the evidence that appellant committed

other crimes for which he did not get caught especially, when it is shown that appellant was

“apprehended for committing armed robberies at age 10.” See Gallo v. State, 239 S.W.3d 757, 767

(Tex.Cr.App. 2007) (reasonable deduction from the evidence is a permissible area of jury argument).

The State also argues that “it is common knowledge that quite often people who engage in numerous

criminal activities are not always arrested and prosecuted for each and every offense they commit”

3

In his brief, appellant also cites to the State’s subsequent and unobjected-to jury argument
during which the State, while summarizing appellant’s criminal history, argued, “He’s 11 years old.
Again, I guess this is all he’s ever done . . . .” Appellant also cites to other portions of the record
where the State later argued without objection that it believed “that a man’s character never
drastically changes from youth to old age . . . .” We do not read appellant’s brief to challenge these
unpreserved-for-appellate-review jury arguments.
 Norman–6

and that it “is not an illogical deduction, from the evidence in this case, that appellant has not been

arrested and charged with each and every offense that he committed from the time he was 10 years

of age.”

In disposing of this point of error, we initially note that appellant did not present any

constitutional due-process or due-course-of-law objections in the trial court to the State’s jury

argument. These constitutional claims, therefore, are not preserved for appellate review. See TEX .

R. APP. P. 33.1(a)(1); Pena v. State, 285 S.W.3d 459, 464 (Tex.Cr.App. 2009) (in order to preserve

issue for appellate review, complaint on appeal must comport with complaint made at trial). The

only claim that appellant preserved for appellate review is the claim that the State’s jury argument,

suggesting that appellant committed unknown crimes before and after the age of ten, was “outside

the record.”4

This Court has decided that jury argument, similar to the one that the State made in this case,

is improper as being outside the record. See Ex parte Lane, 303 S.W.3d 702, 711-12 (Tex.Cr.App.

2009) (in defendant’s trial for possession of a large amount of methamphetamine, State’s jury

argument suggesting that defendant would sell these drugs to children and turn them into addicts was

improper as being outside the record); Borjan v. State, 787 S.W.2d 53, 57 (Tex.Cr.App. 1990) (in

defendant’s trial for aggravated rape of a child, it would have been improper and outside the record

for the State to have “called upon the jury to speculate about other crimes that the [defendant] may

have committed against other children”); Walker v. State, 664 S.W.2d 338, 340 (Tex.Cr.App. 1984)

(in defendant’s trial for burglary of a habitation, it was improper and outside the record for the State

4

Appellant objected that it was “outside the record” when the State argued, “How many jacks
did he have before this and after this?”
 Norman–7

to argue that the defendant’s “job” was to commit burglaries and that the defendant made his “living”

by committing burglaries). In this case, we will assume that the State’s jury argument constituted

error as a matter of state law and consider whether this state-law error was harmless under TEX . R.

APP . P. 44.2(b). See Gallo, 239 S.W.3d at 767 (Rule 44.2(b) harm analysis for improper jury

argument uses “the following three-factor test: (1) the severity of the misconduct (the magnitude of

the prejudicial effect of the prosecutor’s remarks); (2) the measures adopted to cure the misconduct

(the efficacy of any cautionary instruction by the judge); and, (3) the certainty of conviction absent

the misconduct (the strength of the evidence supporting the conviction)”;5 Mosley v. State, 983

S.W.2d 249, 258-60 (Tex.Cr.App. 1998).

The record in this case reflects that the complained-of argument was only a small portion of

the State’s entire jury argument. The State instead emphasized appellant’s known criminal history,

the brutal facts of the offense, the various statements appellant gave to the police and his demeanor

on the stand to argue that appellant is “rotten to the core” and is the “worst of the worst.” For

example, the State argued:

[STATE]: But what this–what [the defense] says is a bad thing is to take this gun,
cock it, stick it to the head of that good friend of his who hugged him in the halls and
pull the trigger. Is that it? Is that the end of the bad things? No. He then takes and
cocks it and puts it to the head of Sam Roberts and I’ll show you in a minute, and
shoots him with his hand behind his head. Then he leans down. I mean, this isn’t
premeditated. He’s already shot Tiffani point blank contact. He’s already shot Sam
Roberts contact. He cocks it again. Is he the worst of the worst? Is he rotten to the
core? You tell me what rotten to the core is. If leaning down and putting a gun to
the back of somebody’s head and pulling the trigger and saying that aint enough, I
aint out of bullets, bang, I’m going to do it again. Bang. If that isn’t rotten to the
core, if that isn’t the worst of the worst, then somebody show me who is.

5

The third factor in this case would focus on the strength of the evidence supporting the jury’s
answers to the special issues.
 Norman–8

***
And you heard what he said when Kersean Ramey said I should have F’d that sexy
bitch before she died. What did he say? I didn’t miss a beat. Didn’t faze me. But
what did he do? I mean, what were his actions? Can you imagine somebody who
isn’t the worst of the worst going home, going to his girlfriend’s after he had just
executed three people and taking Zanax, having sex and then he’s at peace.
***
Two armed robberies at ten, three burglaries of the Carver school within less than a
month after getting here to Texas. Lying about his involvement. The criminal
trespass and mischief breaking into the Formosa Apartments. Breaking the door for
no reason, lying about it. Assaulting Jessica Castro, lying about it. Still lying about
it on the stand I didn’t assault her. Hitting the mama of his babies with bare hand,
with the heel of his hand three times. Bowing up to the officer with his fist clinched
when the officer came.

This on the other side of the balancing. Wouldn’t take his daughter, yet she’s
precious to me. Doesn’t believe in child support. Resisting arrest after the triple
homicide. Blaming KK for it. Bought a gun before the triple homicide for some
weed. Killed these people in cold blood and still lies about it. Watched us the next
day when we investigated. Involving Daisy Torres by marrying her. Break the cycle.
Please. Making a shank, holding it to Betty’s throat, threatening to kill her. His
statement, his foul attitude and mouth. Making another shank, another shank,
Victoria. All of this.

We further note that the evidence supporting the jury’s answers to the special issues is strong.

The evidence supports findings that appellant has a known and lengthy criminal history beginning

by the age of ten that includes the brutal murders of the three victims in this case followed by holding

a shank to the neck of a sixty-five-year-old female jailer and threatening to kill her during a failed

escape attempt from jail while, according to appellant’s trial testimony, he was feeling extreme

remorse for murdering the three victims in this case. Although no curative measures were taken to

cure any prejudice from the State’s jury argument, we decide that, on this record, any error in this

argument had little, if any, influence on the jury’s answers to the special issues. See Johnson v.

State, 967 S.W.2d 410, 417 (Tex.Cr.App. 1998) (non-constitutional error is harmless under Rule

44.2(b) when “the appellate court, after examining the record as a whole, has fair assurance that the
 Norman–9

error did not influence the jury, or had but a slight affect”). Point of error one is overruled.

We understand appellant to claim in point of error two that the trial court should have sua

sponte provided the jury with a life-without-parole sentencing option and that the trial court’s failure

to do so egregiously harmed him. Appellant committed this offense on August 24, 2005, about one

week before the life-without-parole amendments to Article 37.071, TEX . CODE CRIM . PROC., went

into effect on September 1, 2005.6 These amendments contained a savings clause providing that an

“offense committed before the effective date of this Act is covered by the law in effect when the

offense was committed, and the former law is continued in effect for that purpose.”7 Without any

objection from appellant, the trial court submitted a jury instruction that a life-sentenced appellant

would not be parole-eligible for 40 years as required by former Article 37.071, which is the state law

applicable to appellant’s case and the law in effect when appellant committed this offense.

Appellant claims for the first time on appeal that the trial court should have sua sponte

disregarded the state law applicable to appellant’s case and provided the jury with a life-without-

parole sentencing option that is not applicable to appellant’s case.8 Appellant must show that it was

error for the trial court not to have sua sponte provided the jury with a life-without-parole sentencing

6

See Acts 2005, 79th Leg., R.S., ch. 787, §§§§ 7, 8, 9, 18 (SB 60), eff. September 1, 2005,
currently codified in Article 37.071, § 2 (e)(2)(A) (requiring trial court to instruct jury that trial court
will sentence a capital defendant to life without parole if the jury finds circumstances that do not
warrant a sentence of death).
7

See Acts 2005, 79th Leg., R.S., ch. 787, § 17(b) (SB 60).
8

This Court has decided that the law applicable to appellant’s case in former Article 37.071,
requiring the 40-year parole-eligibility jury instruction that was given in this case, did not violate the
federal constitution by not providing a jury with a life-without-parole sentencing option. See Fuller
v. State, 253 S.W.3d 220, 233 (Tex.Cr.App. 2008).
 Norman–10

option and that this “egregiously harmed” appellant. See Tolbert v. State, 306 S.W.3d 776, 779

(Tex.Cr.App. 2010) (reviewing court applies “egregious harm” standard only when it finds jury-

charge “error” to which the defendant did not object).

To support his argument, appellant relies on a repealed version of Federal Rule of Criminal

Procedure 59, which provided that the federal rules of criminal procedure took effect on September

1, 1945, and that they “govern all criminal proceedings thereafter commenced and so far as just and

practicable all proceedings then pending.”9 Appellant seems to argue that this former version of

Rule 59 preempted the state law applicable to his case in former Article 37.071 and required the trial

court to submit a life-without-parole sentencing option under the current version of Article 37.071

because appellant’s trial was commenced after this current version of Article 37.071 took effect on

September 1, 2005. We reject this argument and note, for example, that the federal rules of criminal

procedure do not apply to state-court proceedings in Texas courts because they apply only to

“criminal proceedings in the United States district courts, the United States Courts of Appeals, and

the Supreme Court of the United States.” See FED . R. CRIM . P. 1(a), 18 U.S.C.A. (West 2008).

Point of error two is overruled.

Appellant claims in point of error three that he was denied a fair trial when “the prosecutor,

albeit without objection, routinely and continuously became a witness for the State.” See Powers

9

We note that this version of Rule 59 was deleted in 2002, and is no longer in effect. See, e.g.,
Advisory Committee Notes to FED . R. CRIM . P. 59, 18 U.S.C.A. (West 2008) (noting that “former
Rule 59, which dealt with the effective date of the Federal Rules Of Criminal Procedure, was
deleted” in 2002). We further note that current Rule 59 was added in 2005 and that it governs
matters which a federal district judge may refer to a federal magistrate judge. See id. (noting that
current Rule 59 “is a new rule that creates a procedure for a district judge to review nondispositive
and dispositive decisions by magistrate judges”).
 Norman–11

v. State, 165 S.W.3d 357, 359 (Tex.Cr.App. 2005) (discussing Rule of Professional Conduct

Disciplinary Rule 3.08 prohibiting a lawyer from assuming “dual roles” of advocate and witness);

TEX . DISCIPLINARY R. PROF’L CONDUCT 3.08(a) (prohibiting a lawyer from accepting or continuing

“employment as an advocate in a contemplated or pending adjudicatory proceeding if the lawyer

knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on

behalf of the lawyer’s client”). Appellant’s third point of error states verbatim:

Appellant was denied the structure of a fair trial . . . where at punishment phase the
prosecutor, albeit with only one objection, routinely and continuously became a
witness for the State on the issues of future danger and no mitigation.

Appellant argues that the “entire punishment phase rests in pertinent part on the testimony

of the prosecutor; a trial more inquisitorial than adversarial and hence structurally unfair where death

was imposed.” The record reflects that the prosecutor did not become a “witness” in the sense that

the prosecutor took the stand and provided testimony under oath. Appellant cites to numerous

instances in the record where he claims that the prosecutor became a witness through the

prosecutor’s questioning of various witnesses.

The State argues that “appellant’s allegation that the prosecutor became a witness in this

cause through his questioning is without foundation.” The State also argues, “All of the instances

referred to are situations where the prosecutor was either explaining the basis for a question to a

witness so that the witness could answer properly or were [sic] pointing out unopposed facts as a

reference for a question.” The State further argues:

Quite frankly, the undersigned is unable to discern a valid objection to the vast
majority of the instances referred to by appellant. While some might be arguably
objected to as leading, they all involved readily provable facts that experienced trial
counsel would be hesitant to object to for fear that a jury would merely feel that he
is nitpicking. To say that a prosecutor, when stating a provable reference for a
witness to answer a question, is becoming a witness in the case is a gross
 Norman–12
overstatement.

We set out the instances, cited in appellant’s brief, where appellant claims that the State

became a witness through its questioning of various witnesses.

Q. [STATE]: Mr. Tamez, from having listened to the grand jury CD as well as your
independent recollection, do you recall me being present during that time?

A. [GRAND JURY MEMBER TAMEZ]: Yes, sir. I do.

Q. Did I go through all–you don’t know all, but did I go through certain rights and
warnings and admonitions orally with Defendant Lejames Norman prior to his [grand
jury] testimony?

A. Yes, sir. You did. Yes, sir. That is correct.

Q. And did I ask him as to each of those rights and warnings whether he understood
those rights?

A. You did. Yes, sir.

Q. And did I ask him if he was knowingly and intelligently and voluntarily waiving
those rights and doing it orally?

A. Yes, sir. You did. That is correct.

Q. And did I do that prior to him giving any grand jury testimony?

A. That is correct.

Q. Once he–did he indicate that he understood those rights and that he was
knowingly, intelligently and voluntarily waiving those rights?

A. Yes, sir. He did.

Q. Once he did that did I then present Mr. Norman with certain rights, warnings and
admonitions in writing?

A. That is correct. Yes.

Q. And did I ask the bailiff to hand him those written warnings and rights prior to me
going over them with him again?
 Norman–13
A. Yes.

Q. And did I once again go through each of those rights and each of those warnings
with Mr. Norman in writing before he gave his grand jury testimony?

A. Yes, sir.

Q. And did I ask him if he was again intelligently, knowingly and voluntarily waiving
those rights and specifically requesting permission of the grand jury to testify?

A. Yes, sir.

Q. Did I then ask him to sign that written waiver of his rights if that’s what he desired
to do?

A. Yes.
***
Q. I’m going to show you what’s been marked for identification purposes as State’s
Exhibit 911 which I’ll represent to you, sir, are the certified copy [sic] of the juvenile
records as it pertains to this incident. You and I have looked at this, have we not sir?
***
Q. Officer Chaffin, while [the defense] is looking at that, I’ll represent to you, and
I don’t know if you know what’s happened since, but I’ll represent that Mr.
Wooldridge and I went to visit with Jamal Gibson and he was at that time in prison.
Are you aware that he’s been to prison?

A. Yes.

Q. And I’ll also represent that he was somewhat less than cooperative, but do you
know what his status is now, what–whether he’s in prison or out on parole or what–
***
Q. Reason I ask you is that when we were looking at that together last night, there
was some mention of a robbery the day before and then when Mr. Norman was
giving the statement he was describing two robberies that same day. Was that–but
you just can’t tell, can you?
***
Q. Would you mind, did you at my request, remember I asked you if you could draw
kind of a diagram of where Mr. Norman was living at the time and where these other
individuals that all this kind of resulted from? Can you do that for us?
***
Q. Remember I asked you it referred to him in the report as two years old and then
another time is four years old. Do you recall how old he was actually?
***
Q. That’s all right. In all fairness to the Defense, let me–I believe from when Officer
 Norman–14
Wooldridge and I were out there–Chief Wooldridge and I were out there that the
pistol was actually on the west side of the fence in a little kind of a–had been tossed
by Mr. Gibbs before he–and–
***
Q. And if we look at–I’ll represent that when Chief Wooldridge and I went out there
we took some photographs and this is the same area. Only difference this being the
it’s now brick or concrete or whatever instead of chain link. But this gives a little
better view, does it not, of the area where he was running?
***
Q. Yesterday I believe you originally testified when you were asked about it whether
you were told about how the pistols were disposed of you said that Sean told you he
threw them off the bridge?
***
[STATE]: And then this is re-direct by me to Mr. Norman [in Ker’sean Ramey’s
trial]. You’ll be reading my questions.

Q. [READING BY MRS. GUENTHER]: Mr. Norman, have I put anything in your
mind by anything that I’ve ever said to you that would cause you to believe or
speculate that there is a possibility of a deal? Have I ever done that, sir?

A. No, sir. You have not.

Q. [READING BY MRS. GUENTHER]: Have I winked at you, nodded at you or
done anything in that fashion?

A. No, sir. You have not.

Q. [READING BY MRS. GUENTHER]: In fact, have I mentioned to you that you’re
going to trial this year? Have I told you that?
***
Q. And at my request have you reviewed the certified copy of the court records in the
County Clerk’s office as it pertains to this particular case?
***
Q. Okay. And I believe your cohort over there Mr. Robert Martinez met with him
when I came out to visit with you; is that right?10
***
Q. Prior to you testifying, did I–did you furnish me some photos that you took there
at the scene?
***

10

The record reflects that this was a question that the defense asked a State’s witness on cross-
examination.
 Norman–15
Q. Go to the next one. Ms. Castro is going to testify in a minute and I believe she’s
going to testify that earlier she was choked. Is there anything here to–that would
substantiate?
***
Q. I think you also told me that when he was in jail after this triple homicide that he
asked you to marry him; is that correct?
***
Q. And I think you told me–correct me if I’m wrong–you said because it wouldn’t
be any kind of life for me; is that right?
***
Q. And do you remember me asking you about Daisy Torres, you know, why would
she marry him, you remember, or why would he want to marry–you remember what
you told me?
***
Q. I’m going to ask you. We talked about this a little bit the other day. When this
offense occurred, this crime, and you told me that at one point Lejames finally
admitted to you exactly what happened, correct?11
***
Q. Uh-huh. Did you tell me months ago when we met that he knew he had ruined the
rest of his life and he cried to you that he wouldn’t be with his kids?12
***
Q. Okay. And you mentioned–you told [the defense] he would just push me on these
other occasions. Do you remember telling me that he would also hit you in the legs
too?
***
Q. Sheriff, I’m actually because of your commitment I’m going out of order to an
incident that occurred on September 25 of 2007. And without me having to go into
all of the particulars, would you describe the cell that Mr. Norman was in and
whether there’s other inmates in the cell? Just give them a brief description, please.
***
Q. Reason I wanted to put you on out of order, I know you’re a little more familiar.
Would you explain so the jury can understand it a little better about what a pipe rack
is and about another escape that you had at one point where they were using the pipe
rack?
***
Q. Did you at my request try to go and find that leafy substance? I think, Cassie, did

11

The record reflects that this was a question that the defense asked a State’s witness on cross-
examination.
12

The record reflects that this was a question that the defense asked a State’s witness on cross-
examination.
 Norman–16
you do that?
***
Q. It just happened to come right after that. That’s just a coincidence; right? After
I confronted you and said, Mr. Norman, we’re going to know which guns fired which
shots. And I said, we can definitely tell which pistol was used to shoot Tiffani. Do
you remember me telling you that?
***
Q. So, that’s just when you decided to get your business straight with Tiffani is when
I said, we’ll know which pistol was used to shoot Tiffani; right?
***
Q. Remember me saying, well, but Mr. Norman, different people say you were
wrestling with Sam and he was getting the better of you when Sean came in and shot
him. I said, are you sure it didn’t happen like that, Mr. Norman. Do you remember
saying, positive, positive?
***
Q. You looked me right in the eye when you were under oath and told me you were
positive you didn’t have–you weren’t in the room when Sam was shot, just like
you’ve told this jury you’re positive you didn’t put the gun to the back of the head of
Sam Roberts and shoot him; isn’t that true?
***
Q. And then about the dirt–I’m sorry. For the record that was on Page 124 of the trial
transcript. And then on Page 142 of the trial transcript I asked you, do you remember
making any statement or giving Kersean any advice when you were going to the
home about the sidewalk or anything of that nature? And you said, you mean not to
step in the dirt, but–I said, did you say anything to him about that. And you said, yes,
sir. I asked you, what did you tell Kersean. Answer: Don’t step in the dirt.
Question: Why were you telling him that. Answer: Because it would leave footprints
on the carpet or whatever. Is that correct?
***
Q. Problem is, Mr. Norman, and I’m being fair with you on this. Problem is when
I asked him to tell us what happened, he wasn’t going to tell anything on his
homeboy. He didn’t say anything.

The record reflects that appellant did not object to any of these prosecutorial comments,

which appellant claims on appeal were “testimony.” We decide that appellant failed to preserve any

error in these comments. See TEX . R. APP . P. 33.1 (a)(1).

Appellant cites to an instance where he did object during the prosecutor’s cross-examination

of appellant. The record further reflects that the trial court instructed the jury to disregard the

prosecutor’s objectionable comment, but denied appellant’s motion for a mistrial.
 Norman–17
Q. [STATE]: Lastly, then I’m through, Mr. Norman, is I want to talk to you about
this dream. And I’m going to tell you right up front I really find that insulting, and
let me tell you why.

[DEFENSE]: Excuse me. For the record, Judge, I object to the giving his opinion he
finds it insulting and--

[STATE]: I withdraw it. Let me tell you what you--

[THE COURT]: Let’s avoid the side bars.

[STATE]: Sure.

[DEFENSE]: And I ask the Court to instruct the jury to disregard, please.

[THE COURT]: Ladies and Gentlemen of the Jury, you are instructed to disregard
the comment that was made by the district attorney.

[DEFENSE]: And for the record, Judge, we move for a mistrial.

[THE COURT]: Overruled.13

We decide that appellant’s trial objection that the prosecutor was “giving his opinion he finds

it insulting” does not comport with his claim on appeal that the prosecutor abandoned his role as an

advocate and became a “witness.” See Pena, 285 S.W.3d at 464 (in order to preserve issue for

appellate review, complaint on appeal must comport with complaint made at trial). And, assuming

appellant preserved this claim for appeal, we further decide that the trial court’s instruction to

13

Immediately after this, appellant reaffirmed his earlier testimony on direct examination by
the defense that he confessed to the triple homicide in this case because of the dream that he had
about apologizing to Tiffani for murdering her:

Q. [STATE]: When [the defense] asked you why you confessed, do you remember
you said, well, it’s because I had this dream of Tiffani. I saw her and I told her I
never wanted it to be like this. I’d make it right. I apologized to her and then I
started confessing. That’s what you told this jury, didn’t you?

A. [APPELLANT]: Yes, sir.
 Norman–18
disregard was sufficient to cure any harm and that the trial court, therefore, did not abuse its

discretion to deny appellant’s mistrial request. See Ladd v. State, 3 S.W.3d 547, 567 (Tex.Cr.App.

1999) (asking of an improper question seldom calls for a mistrial because any harm can usually be

cured by an instruction to disregard, and a mistrial is required “only when the improper question is

clearly prejudicial to the defendant and is of such character as to suggest the impossibility of

withdrawing the impression produced on the minds of the jurors”); see also Young v. State, 137

S.W.3d 65, 69 (Tex.Cr.App. 2004) (“A grant of a motion for mistrial should be reserved for those

cases in which an objection could not have prevented, and an instruction to disregard could not cure,

the prejudice stemming from an event at trial–i.e., where an instruction would not leave the jury in

an acceptable state to continue the trial.”); Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Cr.App. 2004)

(“A mistrial is the trial court’s remedy for improper conduct that is so prejudicial that expenditure

of further time and expense would be wasteful and futile.”) (internal quotes omitted). Point of error

three is overruled.

Appellant claims in point of error four that the “death penalty sentence violates the Eighth

Amendment, United States Constitution (cruel and unusual).” And in point of error five, appellant

claims that this sentence “violates the treaty of the United Nations Charter which hold [sic] that all

human beings have dignity and worth, and that all human beings would receive equal treatment in

the administration of justice.” This Court has rejected these claims. See Williams v. State, 301

S.W.3d 675, 694 (Tex.Cr.App. 2009), cert. denied, 130 S.Ct. 3411 (2010) (rejecting claim that death

penalty is cruel and unusual punishment under the federal constitution); Hinojosa v. State, 4 S.W.3d

240, 252 (Tex.Cr.App. 1999) (rejecting claim that United Nations Charter compelled reversal of the

defendant’s death sentence). Points of error four and five are overruled.
 Norman–19
The judgment of the trial court is affirmed.

Hervey, J.

Delivered: February 16, 2011
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